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swered, “there is the money; you may take it, or not, as

you please; but you will take it with my protest, that BIGGS

v. there is nothing due on the bill for 25l.This evidence DWIGHT.

was objected to for the defendant, as being contradictory of the plaintiff's own written indorsement on the bill for 25l., but was received by the learned Judge. The bill for 25l. was not produced on that occasion ; the plaintiff said that he had it not then with him. It was admitted on both sides, that if the first payment of 221. 10s., was to be considered as made on account of the bill for 501., that, together with the second payment of 291., would cover the plaintiff's claim upon the bill for 501., including the principal and interest. The learned Judge told the jury he was clearly of opinion, that the bill for 25l. having been altered in its date, and not having been re-stamped subsequently to that alteration, was so far void, that the plaintiff could not maintain the action in respect of that bill. The question then was, whether the defendant' had paid the 221. 10s. specifically 'on account of the bill for 50l.; because, if he had, that, together with the subsequent payment of the 291., satisfied the plaintiff's claim, and he could not maintain the action at all. But, if the first paymeut was not so specifically made, the case was altered. If that money

was paid generally on account of both the bills, the defenį dant could not afterwards direct it to be applied specifi

cally to the bill for 501. If it was paid specifically on account of the bill for 25l., the defendant could not retract that specific application of the money, and apply it to the bill for 501. Unless the Jury were satisfied, therefore, that the first payment was made specifically on account of the bill for 501., he was of opinion that the plaintiff was entitled to recover. Upon the evidence, it appeared to him that the money was paid generally, on account of both the bills, and, therefore, that the defendant could not now appropriate it to the 501. bill; and the protest made by the attorney at the time of the second payment, could not vary the case, because it could have no bearing upon the first

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v. Dwight.

payment. The Jury, under this directiori, found a verdict for the plaintiff.

In Easter term last, a rule nisi for a new trial was obtained ; upon the ground,-first, that improper evidence had been received; and secondly, that the learned Judge had misdirected the Jury, inasmuch as he ought to have told them that the first payment, not having been made specifically on account of the void bill, but generally on account of both the bills, could not be applied at the subsequent settlement of the account, to any but the good bill.

The case was twice argued, by Robinson, for the plaintiff, and Storks, Serjeant, for the defendant; first before the puisne Judges, at the Sittings in Banco, before this term ; and afterwards in this term, before the full Court.

Arguments for the plaintiff. First, if the defendant did not, at the time of paying the 221. 10s., appropriate it specifically to either of the bills, it was competent to the plaintiff to appropriate it to the 251. bill. Secondly, the Jury ought to have found, upon the evidence in the case, that the defendant did so appropriate it. As to the first point;—the general rule of law is, that where the debtor owes money upon several accounts to the same creditor, he is entitled, when he makes a payment, to appropriate it to whichever account he pleases; but, if he then makes no such appropriation, the creditor has the same option (a). Therefore, if the defendant made no specific appropriation of the 221. 10s. at the time when he paid it, the plaintiff had the option of appropriating it as he chose. The money was paid on account; the indorsement, “received in part of two bills, was read over to the defendant, who made no objection to it, and there-.

(a) See Simson v. Ingham, 3 D. & or the new; where he makes no R: 249, 52, (2 B. & C. 65), where election, but pays the money in Bayley, J., thus lays down the rule: generally, the party to whom it is ordinarily, the party who pays in paid becomes entitled to the same money, has the liberty of applying liberty, unless the exercise of it is it specifically to whichever of two calculated to work injustice.” And accounts he chuses, either the old, see 16 Vin. Abr. Payment, M.

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fore recognised his liability upon both the bills; and as the plaintiff then claimed the full amount of the 251. bill, which was the longest over due of the two, the understanding seems clearly to have been, that the money was to go in liquidation of that bill. Devaynes v. Noble (a), which contains a full statement of the law upon this subject, is a direct authority for this mode of appropriation. It was held, in Bosanquet v. Wray (b), that a creditor receiving money without any specific appropriation made by the debtor, might be permitted, in a court of law, to ascribe his receipt to the discharge of a prior, and purely equitable debt, and to sue him at law for a subsequent legal demand. The case of Wright v. Laing (c) will perhaps be relied on by the other side. There, B. had two demands against A., one upon a legal contract for goods sold, the other upon an usurious contract for money lent. A. made a payment, which was not at the time specifically appropriated by either party to either demand. It was held, that the law would afterwards appropriate that payment to the demand for goods sold, as arising out of a contract recognized by the law, and not to the demand for money lent, which arose out of an unlawful contract. But that case does not bear upon the present; because the ground of the decision there was, that the law would not sanction the appropriation of the payment to a demand arising out of an unlawful transaction. The transaction there was one prohibited by the law; here the transaction was not illegal, and was strictly honest.

The test by which to try it is, could the money, if confessedly paid on account of the void bill, have been recovered back? Most certainly it could not; yet in order to support the objection on the other side, the affirmative of that proposition must be maintained. The cases differ materially both in their facts and in their results; for there is a wide difference between a man's fulfilling a contract,

(@) 1 Meriv. 604.
(6) 6 Taunt. 597 ; 2 Marsh. 319.

(c) 4 D. & R. 783; 3 B. & C. 165.




which is absolutely prohibited by law, and illegal, and his honestly performing a promise, which the law would not compel him to perform, from the performance of which he might escape by an act of dishonesty if he pleased, but which having once completed, he cannot recal. As to the second point, there was evidence in this case which ought to have satisfied the jury, and which ought to have been so left to them, that the money was paid and received on account of the 251. bill. The receipt, indeed, was for money“ in part of two bills ;” but that was explained by the conversation which took place between the parties at the time; for as the plaintiff, when the money was paid, demanded the full amount of the 251. bill, and the defendant answered that he would pay some more in a short time, it is perfectly clear that each was treating the money, just before paid, as paid on account of that bill, and of that bill only. It was said, that that conversation was contradictory of the written indorsement on the bill, and therefore not receivable in evidence ; but it was only explanatory of it, and as such was not excluded by the rules of evidence.

Arguments for the defendant. First, the money was paid, in the eye of the law, specifically on account of the good bill only. Secondly, even if it was paid, generally, on account of both bills, the plaintiff was not at liberty, after having received it generally, to appropriate it to either. Thirdly, the parol evidence to shew that the payment was appropriated to one of the bills, was contradictory to the written indorsement, which shewed that it was made on account of both, and therefore inadmissible. As to the first point: the money being paid " on account,” and received " in part of two bills,” can, by law, be applied only to such of those bills as constituted a legal debt; now the only subsisting legal debt arose upon the 501. bill: therefore, the money must be taken to have been paid solely in respect of that bill. But, secondly, admitting the principle, that where the debtor does not appropriate




the money to one of two accounts, the creditor may, to apply here, and that in such a case the creditor may, according to the decision in Bosanquet v. Wray (a), apply the money to a debt purely equitable; still the present plaintiff had no right to appropriate the money to the 251. bill: for as regarded that bill, he had no debt at all, legal or equitable. The defendant was not the original debtor. He became liable merely as the surety of Webb; and his liability was confined entirely to the bill; for, independently of the bill, neither the plaintiff nor Webb had any demand against him. Then when the bill was rendered void by the alteration of the date, his liability ceased altogether; and as far as respected that bill, the plaintiff had not even an equitable claim against him. Then, even if the money was paid generally, the case of Wright v. Laing (6) is decisive to shew that it could not be applied to the void bill. In that case, there was no legal claim for the money lent; here there was no legal claim for the amount of the 251. bill: the cases in principle are not distinguishable. As to the distinction taken on the other side, between a claim from which a man may escape honestly, and one from which he can only escape dishonestly, it cannot be recognized in a court of law; the only question is, had the plaintiff a claim, either at law or in equity, such as he could have enforced against the defendant ? and it has been satisfactorily shewn that he had not. Thirdly, evidence of the conversation which took place at the time the money was paid, was not receivable to contradict the plaintiff's own written indorsement on the bill. It has been argued, that the effect of that conversation was not to contradict, but only to explain, the indorsement; but as the indorsement described the money as paid on account of two bills, and the conversation went to shew that it was paid on account of one only, the latter was not explanatory merely, but directly contradictory of the former.

(a) 6 Taunt. 597 ; 2 Marsh. 319.

(6) 4 D. & R. 783; 3 B. & C. 165.

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