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Lord TENTERDEN, C. J.-The learned Judge left it as a question of fact to the jury, whether the money was paid specifically on account of the second, or valid bill, or not, and told them, in effect, that if it was not so appropriated, the plaintiff was entitled to recover. The Jury, by finding a verdict for the plaintiff, must be understood to intimate, that they did not consider the money to have been paid exclusively on account of the second bill, though it does not therefore follow that they considered it to have been paid exclusively on account of the first bill; they may have regarded it as a payment on account generally, in which case the plaintiff was entitled to appropriate it to the first bill; and having done so, had a right to recover upon the second. Then the only question is, whether there was such an inconsistency between the written indorsement and the conversation, as to render evidence of the latter inadmissible, and entitle the defendant to a new trial upon that ground. Looking at all the facts of the case together, I cannot bring my mind to think that there was. At the time when the 221. 10s. was paid, the first bill was mentioned by the plaintiff, and not objected to by the defendant; and the receipt indorsed upon that bill speaks, therefore, of both the bills; and though, afterwards, an objection was taken to one of the bills, still, I cannot say that the evidence of what passed when the money was paid, and the indorsement was written, was so contradictory of the indorsement, as to render it inadmissible. If that evidence was properly admitted, as it seems to me that it was, I think it has had its natural and proper influence with the jury, and that their verdict may be fairly taken to mean, that both parties, when the money was paid, understood it to be a payment made on account of the first bill. In this view of the case, I am of opinion that there is not sufficient ground for disturbing this verdict, and consequently, that the rule for a new trial ought to be discharged.
BAYLEY, J.-My mind is not free from doubt in this case. The defendant was liable, only as the acceptor of the bills, for the plaintiff had no claim upon him except in that character; and assuming the first bill to have been void, as I think it was (a), the right of appropriation was clearly with the defendant at the time when the money was ⚫ paid. The defendant paid the money, without saying any thing respecting its appropriation; but the plaintiff, by the receipt which he indorsed on one of the bills, acknowledged that it was paid on account of both the bills: then could he afterwards retract that acknowledgment, and appropriate the money to one? I confess, I think he could not, and therefore I entertain some doubt whether the case ought not to undergo the investigation of another jury.
HOLROYD, J.-Upon the whole, it seems to me that the verdict was right. I doubt whether, under all the circumstances, the first bill was void (b); but even admitting that it was, I do not see that there existed any objection in point of law, to the defendant's paying, or the plaintiff's receiving, the whole or part of the sum professed to be - secured by it. The intention of the parties, as to the mode and effect of the payment, was a question of fact for the jury, upon the evidence; the whole of the evidence was left to them; and I think their verdict may fairly be taken as finding, that the intention of the parties was to pay and receive the money, specifically on account of the first bill.
LITTLEDALE, J.-I am clearly of opinion that the verdict was right. It is perfectly plain that the defendant,
(a) And see Calvert v. Roberts, 3 Campb. 243.
(b) No contract arises out of the creation of an accommodation bill until it comes into the hands of a party entitled to sue upon it.
Downes v. Richardson, 1 D. & R. 332; 5 B. & A. 674. An alteration of the date before negotiation seems, therefore, to be nearly the same thing as an alteration before signature.
at the time when he paid the money, considered himself liable upon the 257. bill; and I think the evidence was sufficient to shew that he made the payment specifically on account of that bill. The plaintiff stated at the time, that he wished the full amount of the 257. bill to be paid, to which the defendant replied, not that the bill was void, and that he considered himself released from all liability upon it, but that he had no more money about him then, but would pay some more in three weeks or a month; and the 507. bill was never mentioned or alluded to by either of them. Under such circumstances, if the larger bill had been void, I think the defendant would have been entitled to treat the money as appropriated specifically to the smaller bill, and as neither of the bills was then treated as void, that he was equally entitled so to appropriate it.
BAYLEY, J.-It is a satisfaction to me to be now able to state, that the reasons given by my brother Littledale, for his opinion, have removed the doubt I entertained, and have satisfied my mind that the verdict was right. I concur, therefore, with the rest of the Court, in thinking that this rule should be discharged.
WILLETT V. ARCHER.
A term must not intervene be
return of an
alias, and the issuing of a pluries, bill of
HUTCHINSON had obtained a rule calling upon the plaintiff to shew cause why all the proceedings in this cause should not be set aside for irregularity, with costs, and why the bail bond should not be delivered up to be cancelled, and ordering that in the mean time proceedings should be stayed; upon an affidavit stating that, a bill of Middlesex. Middlesex was issued by the plaintiff against the defendant on the 11th January, returnable on Tuesday next after eight days of St. Hilary; that an alias bill
of Middlesex was issued on the 12th February, returnable on Wednesday next after fifteen days of Easter; that a pluries bill of Middlesex was issued on the 13th August, returnable on Tuesday next after the morrow of All Souls; and that the alias being returnable on Wednesday next after fifteen days of Easter, in Easter term, and the pluries not having issued until the 13th August, in Trinity Vacation, one term intervened without any continuance or pluries being issued, which deponent was informed and believed was irregular, and contrary to the practice of the Court.
Halcomb shewed cause. Mr. Tidd, in his Practice (a), speaking of a latitat, says, "If it be sued out in term time, it is usually tested on the first day of that term, though it may be tested of the preceding one. If sued out in vacation, it should be tested on the last day of the preceding term, for if tested in vacation it is altogether void; and in all continued writs, the alias must be tested the day the former was returnable (b)." If, therefore, the process in this case had been a latitat, it is clear that the plaintiff would have been most strictly regular, for then the first writ would have been tested the last day of Michaelmas, returnable the first day of Hilary; the alias would have been tested the last (c) day of Hilary, returnable the first day of Easter; and the pluries would have been tested the last day of Trinity, returnable the first day of Michaelmas term. That the latter would have been regular, is clear upon the authority of the late case of Durdon v. Hummond (d), where the Court said, "if a writ is sued out in Trinity, it may be made returnable at any time in Michaelmas term." A bill of Middlesex, it must be admitted, has no teste; but that circumstance cannot render it necessary to renew that process more (a) Tidd, 150, 8th ed.
(b) Touchin's case, 2 Salk. 699. (c) It should have been tested on the first day of Hilary Term, to comply strictly with the rule laid
down in Salkeld.
(d) 2 D. & R. 211; 1 B. & C. 111. But the Court was then speaking with reference to a single writ, not to continued process.
frequently than a latitat; if it did, the only effect would be to impose on the plaintiff the expense of issuing writs, whether the defendant can be found or not. At all events, even if the plaintiff has been altogether regular, this rule cannot be made absolute, because it prays for all the proceedings to be set aside for irregularity, with costs, and it is perfectly clear that up to the issuing of the pluries, the plaintiff's proceedings were strictly regular.
PER CURIAM.-A term intervened between the return of the alias and the issuing of the pluries, without any continance being entered, and in that respect we think the plaintiff was irregular (a). It is true that continuances may be entered at any time, being generally mere matter of form, but here they never have been entered. The rule, however, prays too much; because it asks to set aside all the proceedings, all of which with the exception of the pluries are regular; or the pluries latitat may be good as an original process, rejecting the pluries clause as surplusage, though the costs of the former writs might not be allowed on taxation, or the staleness of the affidavit might be a ground for discharging the party from an arrest. The rule, therefore, must be discharged, but without costs.
Rule discharged, without costs.
(a) Parsons v. Lloyd, 3 Wils. 341. And see Johnson v. Norton, 2 Roll. Rep. 442, 3; Adam's case, 7 Mod. 17; Shirly v. Right, ib. 29, 2 Salk. 700, 2 Lord Raym. 775, S. C.; 3 Dow, 22; but a writ of execution, returnable two terms after teste, is good, at least as against the sheriff, who has suffered defendant to escape. Shirly v. Right, ubi suprà. But where the party is entitled to plead to writ of execution, as in the case of
an immediate writ of capias extendi