takes charge of the business, books and money, and is frequently a very undesirable guest, so that the debtor is glad to be relieved of his company by giving a bond with sureties, that he will pay the judgment debt if the case is decided against him.

Garnishee or Trustee Process.

Another method of attachment is that variously known as the trustee process, garnishee process, or process of foreign attachment, by means of which debts. are frequently collected.

Thus A owes money to B, and has nothing in his possession with which to pay it; but C owes money to A for wages or services, or for a loan, or for goods sold, or for something else, and the law considers. him to be a trustee for A to the amount in which he is indebted to him, and will allow B to sue him (C) as such trustee, and to recover as much of the money owing to A as is necessary for the payment of A's debt to B. It is of course a sufficient defense to such a suit, if C can show that he owes A nothing, and has no property of A's in his possession. [See Abstracts, Title, "Garnishment."]

Exempted Property.

In all states there are exemption laws, by which certain property is secured to the owner and cannot be taken for his debts. The intent of these laws is that no one shall be reduced to actual starvation or cold, or be left without a bed, or without certain implements of trade or business stock, wherewith to earn a living. The homestead laws which prevail in a large number of states also make some provision for securing a roof over the heads of a debtor and his

family. Under the Abstracts of Statutes in the various states, the property exempted is enumerated as fully as space will allow. [See Abstracts, Title, "Exemptions."]

Tender of Money Due.

It is always a good defence to the costs of a suit brought to recover a debt, if the debtor can prove that he actually tendered the money when due, to the plaintiff, who refused to take it; unless the plaintiff can show, in his turn, that although he refused to take it when tendered, he asked for it afterward, and it was not paid.

To make such a tender of money as will be a good defence, however, the exact sum due must be distinctly offered to the creditor, at the time when due. It is not enough if the debtor merely tells the creditor that he has the money and is ready to pay; he must offer the money itself, taking care not to let it go out of his possession, until a receipt is ready to be exchanged for it.

This rule as to tender is often important to one who has hired a house on a lease which provides that rent shall be paid at stated intervals, or else the lease shall become void. The lessor may, because the rent is low, because of some prejudice against the tenant, or for some other reason not in itself sufficient to vacate the lease, wish to get rid of the tenant, and may try to prevent the latter from paying his rent on the day stipulated, and then take advantage of this breach of contract to eject him. It is always important therefore, that a tenant shall be able to prove that he made a good tender of the money. If there is no place named where the payment shall be

made, the tenant should try to find the lessor at his place of business or residence, and if unable to do this, should tender the rent on the exact day when due, to some member of his family or other person who might be reasonably supposed to have authority as his agent.

A Note or Check as Payment of a Debt.

A check or promissory note, if given in payment for a debt, is not actual payment thereof, until the money shall have been obtained thereon.

In New England, the legal presumption is that, if nothing was said or intimated to the contrary, the parties both intended that the check or note should be in actual payment of the debt; but outside of New England, the presumption is just the other way, and if the check or note is not honored, the creditor may sue on the old claim itself. In New England more especially than elsewhere, therefore, people should be cautious about taking checks or notes in payment of debts, and should be very prompt in cashing them.

Receipts.

A receipt which is given when money is paid is a mere memorandum of payment; it is only evidence— though most excellent evidence of a contract; but not being itself a contract, it may be shown, by evidence of any kind, if a suit arises concerning the payment, that the receipt falsely states the amount or time of payment, or some other fact concerning it. [See Appendix, for blank form of receipt.] The rule of law that oral evidence is not admissible to vary a written contract, of course cannot, therefore, apply to a receipt.

Releases.

If it is intended to give a paper which will absolutely settle the matter, and which-in absence of fraud-cannot be opened up again, a release should be given instead of a receipt. [See Appendix, for blank form of release.]

A "release of all claims and demands" which are held by the party giving it, against the party to whom it is given, may be expressed in general, as "of all claims and demands of whatever nature;" or it may be limited to some one matter, as "of all claims and demands concerning" etc. In either case, the release is a contract, and not subject to be opened up as a mere receipt may be. It is also well to put a release under seal, thereby preventing the question of consideration from arising at any future time.

CHAPTER XV.

VARIOUS WAYS OF TRANSFERRING PROPERTY.

Transfer by Gift-Transfer in Fraud of CreditorsGifts in Prospect of Death-Loaning Personal Property-The Care to be Taken of Loaned Property— Test as to Degree of Care-Pawn or Pledge of Personalty-Letting or Hiring Personalty-Property Intrusted for Repairs, etc.

A contract may be for the outright sale of property, involving a complete transfer of title; or it may be only for a partial transfer of title, of possession, or of both.

Transfer by Gift.

The title to property may pass by means of gift, and though this is not a matter of contract, it may best mentioned here.

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A gift needs no consideration to support it, the presence or absence of a consideration being the test by which to determine whether the agreement is one of contract or one of gift.

Therefore an agreement to make a gift in the future cannot be legally enforced, as an agreement to make a contract in the future may be, because only contracts can be enforced. But if present possession is actually given with the intention of passing the title thereby, the property becomes that of the party to (129)

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