If it did him no prejudice, no matter how erroneous, it forms no ground of reversal. Bosley v. Chesapeake Insurance Company, 3 Gill & Johns. 450.

3. (Irrelevant question not answered.) The refusal of the County Court to compel an unwilling witness to answer a question, though erroneous, will not affect the judgment of the Appellate Court, where the answer to the question would be irrelevant or inadmissible. Naylor v. Semmes, 4 Gill &

Johns. 273.

Where a

4. (Procedendo refused on reversal of judgment.) plaintiff sued out a writ in debt for £5000, and afterwards, by permission of the County Court, amended his writ to debt. for £1500, the defendant pleaded limitations in bar, and had judgment of the County Court upon general demurrer. Upon appeal, the judgment was reversed, but as a writ cannot be amended, and the plea of limitations would be a conclusive answer to an amended declaration conforming to the original writ, this court refused a procedendo. State, use of Johnson v. Green, 4 Gill & Johns. 381.

5. (Procedendo refused on reversal of judgment.) When the court believe the plaintiff can recover nothing, they will not award a procedendo, though they reverse the judgment of the County Court rendered in favor of the defendant. Morgan v. Morgan, 4 Gill & Johns. 395.

6. (Bill of exceptions and motion in arrest.) When a defendant takes a bill of exception, and afterwards succeeds in a motion in arrest of judgment, he has no ground of appeal; yet if the plaintiff appeals, and the court reverses the decision upon the motion, if it is perceived that the County Court has erred upon the bill of exceptions, a procedendo will be awarded, and when the County Court enters a final judgment, the defendant will be entitled to his appeal. Charlotte Hall School v. Greenwell, 4 Gill & Johns. 407.

7. (Procedendo refused on arrest of judgment.) Where the verdict was for the plaintiff, and upon the appeal of the defendant the court reversed the judgment of the County Court, the granting of a procedendo depends entirely upon whether the plaintiff, from the facts disclosed by the record, could recover in a second trial. So where the writ was against husband and wife and the facts proved by the plaintiff showed a cause of action against the husband alone, the court refused a procedendo. Berry v. Harper, 4 Gill & Johns. 467. APPLICATION OF PAYMENTS.

1. (In discharge of surety.) On the 25th of October, 1820, M,

of Baltimore, sold L, of Havre de Grace, Md., merchandize to the amount of $395 89, at 6 months credit. On the 3d of January, 1821, L. made further purchases from M., to the amount of $552 97, at 4 months credit, which last sum was guarantied by D. On the 5th of May, M. notified D. that his guaranty was due, and, on the 7th, M. drew upon L. for the amount of the first purchase. On the 8th, L. advised M. that he could not pay this draft, and wrote he presumed 'before it becomes payable you will be paid the amount of it, having directed A. to pay D. the amount of the first invoice, to pay over to you. We wrote to D. to this effect: in two or three days he (A.) or Mr. D. will call and pay the amount of your draft.' On the 10th, D. paid M. $400, for which the latter gave a receipt, viz. 'received of L. through D., on account,' &c. On the 16th June, D. paid M. $400, for which he gave another receipt, viz. received of D. for account of L.,' &c. The transactions between M. and L. were conducted by agents, who deposed at the trial, that the payments. in 1821 were handed to D. to be applied for his security and relieve him. In an action upon this guaranty it was held, that if the jury believed that when the first payment of the 10th May was made, M. had received L's. letter of the 8th, then M. was bound to apply that payment in discharge of the first purchase, unless L. before the payment gave different directions, or M. had reason to believe he intended a different application. Mitchell v. Dall, 4 Gill & Johns. 361. 2. (The creditor may elect the application of a general payment.) It is a general rule, that a debtor on different accounts, may, when he makes a payment, apply it to which account he pleases; but, if he does not at the time of payment apply it specifically to either, but makes it generally, or on account, the creditor who receives it, may apply it to which account he pleases. Ib. 3. (Election of the debtor may be inferred from circumstances.) The application of a payment need not be expressly directed at the time by the party paying the money, but his intention may be inferred from the circumstances of the particular

4. (Payment by debtor by hand of guarantor.) The mere fact that a payment was made to a creditor, having several demands upon the same debtor, with the debtor's money, through one who was the security of the debtor for one of the debts, is not a circumstance from which any inference

can arise, that the debtor intended it should be applied to the debt of which such agent was the guaranty. Ib. ARBITRATION AND AWARD.

1. (Validity of award, &c.) Where, after a suit in chancery had progressed to an order of reference to a master to state an account, the complainant assigned all his estate and effects as an insolvent debtor, and it was then agreed between the solicitor for the complainant and the defendant, to submit the question to the master, whether the suit could be further prosecuted or not, and if he should be of opinion that it could not, then it was agreed by the solicitor, as the attorney and of counsel for and acting on behalf of the holders and owners of certain acceptances, the subject matter of the suit, on the one part, and the defendant on the other, that all claims and demands upon or relating to the acceptances, and all matters of set-off, should be referred to the arbitrament of the master, and in case of any sum being awarded, to be paid by the defendant, time should be given him for the payment of the same, until a certain day; and the master determined that the suit did abate by the assignment; that the plaintiff was the true and lawful holder of the acceptance; that the defendant was bound to account to him for the monies in his hands, belonging to the drawer of the bills at the time of the acceptances; that each party should pay his own costs in the suit in chancery, and that the expense of the arbitration should be borne by them equally: it was held, notwithstanding a plea of the assignment of the estate and effects of the plaintiff, previous to the making of the award, that the award directing payment to him was good, that the arbitrator had not exceeded his authority, that the day of payment having been agreed on in the submission, the omission to specify it in the award was immaterial, and that the order in relation to costs, if not within the submission, being void only pro tanto, did not destroy its validity as to the residue. Gomez v. Garr, 6 Wend. 583.

ARREST OF JUDGMENT.

1. (Assignment of reasons.) Upon a motion in arrest of judgment no reasons need be assigned. That motion serves in some measure, the office of a demurrer, and brings the whole record to the view of the court. Charlotte Hall School v. Greenwell, 4. Gill & Johns. 407.

SEE APPEAL, 6.

ASSUMPSIT.

1. (Splitting demand.) A second action of assumpsit will lie by a

second indorser against the first indorser of a note for monies paid on account of the note after a former action and recovery for monies previously paid; and such action may be maintained before the taking up and final payment of the note, and whilst it remains in the hands of a third person as the legal holder thereof. Wright v. Butler, 6 Wend. 284. 2. (Money counts substitutes for bill in equity.) Actions of assumpsit on the money counts are resorted to as substitutes for bills in chancery, and are encouraged whenever the law affords no other remedy, and where a court of equity would compel a defendant to repay to a plaintiff money which the latter had been compelled to pay for his benefit. Ib. 3. (Money counts for note paid.) It seems, had the second indorser paid the whole amount of the note and taken it up, so that he might have maintained an action directly on the note, the suit on the money counts would not have been sustained. 4. (Former recovery.) The former recovery for the amount of monies paid at the commencement of the first suit, is no bar to a second action for other monies subsequently paid. on the same account; the former recovery being as for so much money paid at the request of the defendant, implied from his legal liability to indemnify the plaintiff. Ib.

5. (Limitations.) It seems, that a plea of the statute of limitations would be a bar to an action by the second indorser against the first indorser for monies paid after the statute had actually run as against the defendant. lb.

6. (Bank bills cut, and a part lost.) The holder of bank bills cut in two parts for the purpose of safe transmission per mail, is entitled to recover of the bank the amount of the bills, where it appears that the bills were actually mailed, and that only one set of the halves came safe to hand. Hinsdale and others v. The Bank of Orange, 6 Wend. 373. 7. (Money counts.) Such recovery may be had under the common money counts.

8. (Consideration.) The possession of lands being an interest which is the subject of sale, is an adequate consideration to support a promise to pay the price thereof. Parker v. Crane, 6 Wend. 647.

9. (Committee responsible.) A committee appointed at a public meeting to carry into effect the objects of such meeting, are responsible to workmen for labor performed by them. The workmen are not bound to look for their compensation to the individuals composing the meeting. M'Cartee and others v. Chambers, 6 Wend. 649.

10. (Implied.) K. had a judgment against B. upon which he sued out a fi. fa., and placed it in the hands of the sheriff, who delivered it to the defendant, his deputy, to be levied and collected. B. paid the defendant the amount of this judgment, and it was entered satisfied. The defendant then made a payment to K. but it appeared that one of the bank notes thus paid, was a counterfeit, and that the defendant had not received it from B. Held, that the taking upon himself to pay over to the plaintiff the amount he had collected, placed the defendant in the attitude of one who had received money for another, and that, together with the circumstance of the judgment being entered satisfied, was evidence tending to show, that he was authorized by the sheriff to pay over the money to the plaintiff, from which the law raises an implied assumpsit. The defendant having received good money, was responsible for the whole amount. Keen v. Thompson, 4 Gill & Johns. 463.

ASSIGNMENT.

(Of a bond.) The blank indorsement and delivery of a bond invests the holder with the right of collecting and suing for, in the name of the assignor, the money due upon such bond, and of appropriating the same to his own use. McNulty v. Cooper, 3 Gill & Johns. 214.

BAIL.

1. (Agreement of plaintiff.) Special bail, sued on their recognizance, may insist, by way of plea in bar of the action, that before a breach of the condition of the recognizance, an agreement was entered into by the plaintiff that the defendant in the original action might depart the state, and that no proceedings should be had in such action until his return. Clark v. Niblo, 6 Wend. 236.

2. (Agreement of Plaintiff.) If such agreement is made with the knowledge and consent of the bail, it is founded on a sufficient consideration, and the remedy of the plaintiff is suspended until the return of the defendant: if made with the defendant only, without the privity or consent of the bail, the latter is absolutely discharged, as it would be a fraud upon him for the plaintiff to induce the defendant to leave the state under such circumstances, and then to proceed against the bail. Ib.

3. (Relief.) The court in which the original proceedings were pending, might in such case set aside a ca. sa. and the sheriff's return thereon, or order a stay of proceedings until the 11

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