The evidence introduced by the plaintiff at the trial tended to prove that the defendant made an oral promise to pay for the past and future board of the child at a certain weekly tote. The judge presiding at the trial instructed the jury that *329if the defendant made such a con:ract, he would be liable for the future board of the child; but not for the past board, because the contract to pay for that was a promise to pay the debt of another and within the statute of frauds. The latter part of this instruction was in the defendant’s favor and is not excepted to. And he has no just ground of exception to the first part; for the promise to pay for both past and future board at a certain rate was clearly severable, and the plaintiff under a general count (such as this declaration contains) might recover for so much as was not within the statute. Rand v. Mather, 11 Cush. 1. Allen v. Leonard, 16 Gray, 202.
The instruction as to the appropriation of payments was equally correct. A creditor, receiving payments from his debtor without any direction as to their application, may appropriate them to any debt which he holds against him, and which is not illegal, even if it would not support an action, either because the law, without prohibiting the contracting of such a debt, has declared that no action shall be maintained upon it, or because a right of action once existing has been barred. Philpott v. Jones 4 Nev. & Man. 14; S. C. 2 Ad. & El. 41. Rohan v. Hanson, 11 Cush. 47. Mills v. Fowkes, 5 Bing. N. C. 455; S. C. 7 Scott, 444. Ramsay v. Warner, 97 Mass. 13. The statute of frauds does not make an oral. promise to pay the debt of another unlawful, or prohibit its performance, but only prevents the maintenance of an action upon it. This plaintiff was allowed to maintain her action upon so much only of the defendant’s contact as was not within the statute. Exceptions overruled.