PAYMENT. The fulfilment of a pro mise, or the performance of an agreement.
The discharge in money of a sum due. 2. The word payment is not a teehnical term : it has been imported into law proceedings from the exchange, and not fiom law treatiees. When pay ment is pleaded as a defenoe, the defendant must prove the payment of money, or something accepted in its stead, made to the plaintiff or to some person authorized in hisbehalf to receive it. 2 Greeuleaf, Ev. 509.
Payment, in its ,most general acceptation, is the accomplishment of every obligation, whether it con sists in rgiving or in doing : Solutio est przeseatio ejus quod in obligatione est.
It follows, therefore, that every not which, while it extinguishes the obligation, has also for its object the release of the debtor ,and bis exemption ,from liability, is not payment. Payment is doing pre cisely what the payer has agreed to do. Solvere dicitur cum qui fecit quod facere joromisit.
However, practically, the name of payment is often given to methods of release which are not accompaniod by the performanoe of the thing pro mised. Restri»ximus solutiones ad eampensationcm, ad novationem, ad delegationem, et ad nttmerationem.
3. In a more restricted sense, payment is the disoharge in money of a RUM due. Numeratio est ntommarize solutio. 5 Masse, Droit oommerciel, 229. That a payment may extinguish a debt, it must be made by a person who has a right to make it, to a pereon who is entitled to reoeive it, in somo thing proper to be received both as to kind and quality, and at the appointed place and time.
In the civil law, it is said, where payment is something to be done, it muat be done hy the debtor himself. If I hire a skilful mechanic to build a steam-engine for me, he cannot against my will substitute in his stead another workman. Where it is something to be given, the general rule is that it can he paid by any one, whether a co obliger, or surety, or even a third person who has no interest; exoept that in this last case subrogation will prevent the extinotion of the debt as to the debtor, unloss the payer at the time of payment sot in the name of the debtor, or in his own name to release the debtor. See Sunnooemoir.
What constitutes payinent.
4. According to Comyns, payment by mer chants must be made in money or by bill. Comyns, Dig. Merch.ant (F).
It is now the law for all classes of citizens that payment must be made by money, unless the obligation is, by the terms of the instru ment creating it, to be discharged by other means. In the United Statesi congress has, by the constitution, power to decide what shall be a legal tender ; that is, in what form the creditor may demand his payment or must receive it if offered ; and congress has deter mined this by statutes. The same power is exercised by the governments of all civilized countries. Payment in the United States roust be made in .coined ruoney (or treasury notes made legal tender), if the creditor insists upon having it, 3 Mist. N. J. 172 ; 4 N. H. 296 ; 4 Dev. & B. No. C. 435 ; and popper cents are not legal tender under the United States constitution. 2 Nott & M'C. So. C. 519.
In England, Bank-of-England notes are legal tender. See LEGAL TENDER. But the creditor may waive this right, and any thing which he has accepted as satisfaction for the debt will be considered as payment.
5. Upon a plea of payment, the defendant may prove a discharge in bank-notes, nego tiable notes of individuals, or a debt already due from the payee, delivered and accepted or discounted as payment. Phillipps, Ev. Cowen & FI. ed. n. 387. Bank-notes, in con formity to usage and common understanding, are regarded as cash, 1 Burr. 452 ; 3 id. 1516 ; 9 Johns. N. Y. 120; 6 Md. 37 ; unless objected to. 1 Mete. Mass. 356 ; 8 Ohio, 169 ; 10 Me. 475; 2 Crompt. & J. Exch. 16, n.; 5 Yerg. Tenn. 199 ; 4 Esp. 267 ; 3 Humphr. Tenn. 162; 6 Ala. N. s. 226. Treasury notes are not cash. 3 Conn. 534. Giving a check is not considered as payment ; but the holder may treat it as a nullity if he derives no benefit from it, provided he has not beet, guilty of negligence so as to cause injury to the drawer. 2 Parsons, Contr. 136; 2 Campb 515 ; 8 Term, 451 ; 2 Bos. & P. 518 ; 4 Ad.
& E. 952 • 4 Johns. N. Y. 296 ; 1 IIall, N.