5

PETERS U.ANDERIJON

TAW.&%

a23

entitled tn Is. damages and 40s. costs. The arbitrator cannot certify either under the
statute of 4 Ann. c. 16, S. 5, or that of 22 & 23 Car. 2, c. 9, S. 136, as a judge of
aesize may. The only doubt of late years has been, whether the costs of the pleadings
only, or of the trial also shall be given,
Beat Serjt. shewed cause in the first instance against the rule. He relied on Posta.lt
v, lituplfoay, 5 East, 261, as riot in principle diatinguiahable from the present ease.
And urged that i t greatly shook the autkorjty of the clecisioiis that have been cited.
There were no issues here, bnt such as were necessary for the purposes of justice,
and rearonable defence of the Plaintiff.
The Court relieved Copley from supporting his rule.
This turns on khe constructio~~
of two differe~tstatut%s22 & 23 Car. 2, c. 9,s. 136,
and 4 Ann. e. 16, s. 5,depending on which, there may be two different rules of taxing
costa iu replevin, wherein both parties are actors ; but suffice i t to say, this point of
practice was decided in Dodd v. J o t ~ ~ r ei nl B. R.,and in ~0~~~~~ v. S ~ r n where
~ ~ ~ ,
Heath J. says, the stat. of Anne being a remedial statute, ought so to be cotistrued as
to advance the remedy. The costs intended to be given, appear to me to he all those
costs which follow the unnecessary plea. The case cited for the L)efendant differs
from this in a circumstance which has always guided the officers of the Court. We
do not agree with the Defeudant, that these are the issues, which a cautious man
ought ta take, in order to support his cause : if the Defendant disproved either of the
tbree, he had a good cause of distress; I5961 there was ti0 reason of prudence or
caution which called OR the Plaintiff to aver those issues, which he knew to be false ;
110 reason w6y he should not content himself with that which he knew to be true.
The rule therefore must be made
Absofu te.

PETERS
v.

[S.G. 1 Marsh.

238.

ANDERSON.

May 22, 1814,

Referred to, Seymozcr v. Piekett, [1905] 1 K. B. 722.1

A person who is indebted to another on two several acco~nts,may, on paying him

his eIectioti may either be
money, ascribe i t t o which account he pleases.-h.nd
expressed,-Or may be inferred from the circumatatices of the traasaction.-But
if
the payer does not pay specifically on one account, the receiver may afterwards
appropriate the payment to the discharge of either of the accounts that he pleases.
-And if he sue on each a c c o u ~ semble
~ ~ , fhxt he thereby declares his electjon, and
the Defendant cannot, by a subsequent notice of set-off, elect to which account he
will ascribe the payment.--The Plaintiff served the Defendant three years under a
covenant,, and three and a quarter years more under a simple contract. He received
goods and money during the first period in part payment ; he ai80 received goods
and money during the second period : the whole receipts more than covered the
aalary due under the covenant : the p r t i e s kept a blended account, and made 110
rest in it a t the arid of the first period. The Plai~it~ff
brought coveiiai~tfor the
balance of wages for the first period, and assumpsit for the balance of wages for
the last. The Defendant attempted to appropriate by set-off to the discharge of
the c a v ~ n a u ~ d e bast much of the goods and money as would cover i t : but held,
k t , that Shes6 were two separate debts, and not one account ; 2dly, that Plaintiff
had the election to ascribe to the second debt, for which he had the worse security,
the valae received in the second period, and might therefore recover in both actions.

The Plaintiff served the Defentlntit as a surgeon at Barice Island for three years,
ending on the 23d November 1808, under r ? u indenture, whereon the Plaintiff declared
in covenant against the Deferidant for his salary, which amounted to 2261. 12s. ; but
agent at Bance Island
during the same period he had received from the L)efei~a~its
in money and goods (received a t a sbipulated price a8 money) 971. 2s. 10d., leaving
then due to the Plaintiff 1291. 9s. 2d. After tbree years the Plaintiff agreed, (not
under seal,) to rmve the ~ e f e n d a i i as
t stirgeon a t Bance Islaud a t the i n ~ ~ e a s ewages
d
of 1751. a-year, under which contract he served three years and one quarter, and
thereby became entitled to 5681. 15s. for his wages: [697] h t he received during
that time from the Defendants agent, in money and goods, 1471. ?S. 4d., which, if
deducted from the last sum, left due to him 4211, 78. 8d., for which he had brought

8%

PETERS U. ANDERSON

6 TAUNT. 698.

tmurnpsit. Eoth causes were referred, on the terms that the costs of the causes should
a K i e their respective events, aud the costs of the refereuce and award should be in
the discretion of the arbitrator, who awarded that 1991. 9s. 2d. waa due to the Plaintiff
in tbe first action, and 4211. 78, 8d. in the last. And he further awarded, that if, by
ang rule of law, the 1471. 7s. 4d. ought to be applied i n (iischarge of the specialty
debt which accrued due on the 23d November 1808, as the Deferident had contetided,
arid had desired to take the opinion of the Court thereon, then the Plaintiff would
not be entitled to recover iri the action of covenant, but there would theu be due to
him in the action of assumpsit 5501. 16s. 10d., and to enable the Deferidant to take
the opiuian of the Court on the ciuestioo, he stated, that the different sums claimed
by the Defeudant as set off, were paid on accourit generally, and not applied by the
Defendant in dischar~eof the first debt alone, nor was any balauce struck on the
23d November 1808, in the accouiit current kept by the ~efendatitsagent a t Bance
Island ; and by coascnt ha annexed to his award a copy of the account,
Coyley Serjt. had 011 a former day moved to etiter a nonsuit in the action of
covenant, upon the terms of giviug the Plairitiff judgmeut in the action of assumpsit,
for 5501. 16s. ZOd. and for the costs of that action only, 011 the groutid that the Defendant had paid the Plnintiff more i n the whole thari was due to him 011 the covenant, and
that as the Plaintiff did not, a t the time when he received tbe payments, apply them
to any particular account, the Deferidant had a right to apply them to the discharge
of the elder debt. Dawe v. I ~ < J ~ ~Peakes
S Z ON.
OP.
) .[&@I
~ ~ ,cases, 64,Lord Kenyon C. J,
there held that as no particular directions had been given at the time of paymerit to
what account the payincnt should be applied, ho must apply it to the older debt.
There indeed both the debts were d u e on simple contracts. In Newmarch v. Clay,
14 &at, 239, where all the cases are collected i n a note, Lord Ellenborough C. J. says
that there may be a special appIica~io1~
of a ~aymeIrtmade, arisitig out of the Iiature
of the tran~action,though not expressed at the time by the party ruakirrg it. The
acoount between these parties contairied items embracirig a part of the time of each
service ; for instance, September 8tb, 1810, the Defendants prove a credit for the
Plaintiffs monthly note, paid t o his wife from 1st April 1808 to 8th September 1810,
911. 7s. So, 011 the debtors side, Wages from 2d February 1808 to January 1809,
deducting three guineas per mouth to the Plaitrtifls wife up t o April 1808, 3561. 48,;
these, and the want of rests in the a~count,were evidence that the Plairitiff bad
assented that all the credits should be applied to the first debt. He also cited 2 Str.
1194. Goddard v. cm: Meggot Assignee of #&77~
Y. 8.lills, 1 Lord IZaym. 286, where
I m d Holt C, J. lays dowrr the same doctrine as Lord Kenyon, hut tie rests somethiug
011 the fact d bankruptcy ; and Hummersly v. Kwzulys, 1 Esp. N. P. Cas. 666, ace.
Another ohjectiou was, that before the PlitillLiff had made ariy appropriation of the
several psgmenta, the Defendant had specifically appropriated them by giving notice
of set-off to the whole amouut iii the action of coveiiant, and had thereby acquired
B right to apply the goods and paymefits in discharge of that action nniy. IC was not
equitable that the Plaintiff should iricresse costs agaitist the L)efet~danthy keeping on
foot twocauses of action, when he might have done sway one action by applyiug these
pajmerits thereto.
@99] Gibbs C. J. enquired whether the counsel for the Defendant had found any
case wherein a part of the debt had accrued on a deed, and part an a simple contract.
It nrright in many cases be important to the creditor to retain his lien and remedy or1
the deed, to ss great an extent as possible : for in case of the decease of the debtor,
the Plaintiff has a remedy against the heirs for the debt due on tbe deed. The Court
itlolined to think that the set off must be confined to the sums paid i n the three first
years, and the goods delivered, otily ; for t h o sums paid afterwards on the general
acqount current, beitig a t least equally applicable to both debts, would not avail the
Defendant b3 way of set off in the first action. Another poiut was, how could the
Court in this ase order a noiisuit t o be entered in the first act~oti? The form of the
motion s h o d be to Bet aside the award, for which they granted a rule rrisi,
Beat arid aughan Serjts. now shewed cause against this rule. The gerieral priuciple
is, that he who pays, may a t the time of payment apply the paymerit to what accoikiit
he pleasea, but if he does not apply it to any specific account, the persou receiviug i t
may apply it to what account he pleases. As to that which is said by Holt C. J. in
&faggot v. Mills, 3rd res., viz. that if A. beiiig a trader, becomes indebted to 3.in 1001,
aird then he quits his trade, and afterwards becowes indebted to 8,itr 1001. more, and

5 TAUNT. 61ib

PETERS V. ANDERSON

825

afterwards A. pays to B. 1001. not expressing upon what accourit; since so much in
quantity is paid to B. as was due to him from A., when A. was capable of beirig a
bankrupt, i t would be too rigorous, to admit B. to sue a commission of bankrupt for
the old debt of 1001. ; i t is first to be observed, that he adds, that a s to this, he
would not give an absoiute opinion. Secon~ly,E6001 there may be cases where the
c ~ r c u ~ s t a n c eindicate
s
an election in the party paying ; and in favorem of trade, Lord
Holt intended that the debtor meant t o appropriate the payment to the first account,
and riot to leave himself liable t o the rigour of a commission of bankrupt, when he
could avoid it. This was a circumstance which, i n his judgment, afforded evidence of
an intent to appropriate. Iri that case, too, interest was payable on the specialty, and
the Court would not presume t h a t the payee paid money unap~ropriatedarid applicable
by the rece~verto n simple contract debt, while he left a bond debt bearing interest.
So, in ~ ~ ~ nv. X~ ~ ~o w$Lord
~ ~~ s Kerryon
s ~ $qualifies
~
his assertion that the payer may
retain after the time of payment the election how to apply it, by saying if it be i n
pursuanee of a forgone transactiori ; but he admits the general rule, that on the
payers default to elect, the election devolves on the payee. But these cases, as well
a1 Dawe v. BolLruMth, are exceptions to the general rule. There are no circumstances
to taka this case out of the general rule, and it is for the P ~ a i n t i ~advantage
s
to &rig
to the higher security which the covetiant gives him. The arbjtrator has here expressly
found the fact that the payer had not applied the money to arty particular account,
Io iVewmarck v. Clay the circumstances denoted a specific appropriation. I n Goddard
v. Cm the Court held that the persoti receiving had the right to apply the money
received to which demand he would, except where the debt was payable out of a
different, fund.
CopIey, in support of his rule, did riot dispute the general ~ ~ o s i ~ i that
o n , where the
payer doe8 riot af)propr~atethe p a ~ ~ e n qt ~, ~ i c q u jrecipitur,
d
recipitur ad modum
rccipientia : but here the nature of the transactions afforded a strong inference that
the Defeiidatrt made the several [Sol] payments and deliveries i n satisfaction of the
first debt. This was precisely the case of Dnwe v. Eoldsworfh. Nothing there depended
on ita beirig a question of bankruptcy. That too waa a case where one of the demands
arose on a specialty, a bond (a), and the other on o simple contract, The general rule
applies as much to a debt due on spec~aItyand simple contract cotijoititly, as 011 either
arone : the question deperids on the right of the receiver to elect, not ott the fact what
is most b%rie~cialto him. I n this case there is but o m blended account, though it
consists of several iterne, and several of them apply to both services. The rule was
well applied i n Meggdt v. MiZls, lmt that authority is adverse to the Plaintiff.
Per Curiam. We think the arbitrator has taken a correct view of the law of this
case, and that the Plaintiff was nt liberty to apply the money he received to which
nf the a c c o u ~ t she pleased, and therefore might ap~)ropria~e
i t to his latter account,
far which he had the worse security, and might leave the first accouIit open. The
person who pays rnoneg, may, when ha pays it, apply the payment to which account
he pleases: but if he does not a t the time of payment apply it to any specific accoiint,
the receiver may apply it t o which account he [SO21 pleases. This is admitted
to he the general law. It is further admitted, if there were a debt due on bond, aud
another for goods sold, the person receiving ai1 unappropriated payment., might apply
i t to which nccount he would ; but it i s said that here was only one ruritiirig account,
wages on t h e one side, and di~ereritarticles on the other, and makirtg but one account;
~ and D ~ v.~ ~ e 0 1 ~
arid that it is like the two cases cited, of ~ e g g fv.f ~BfilL,
Looking at them, you will see, it is oiily the circumstance of the paycr being a trader,
arid the conaideratiori of hankruptcg, which made it a question there. I n Meggott
( a ) tfibbs C. J. on the following day referred to the case of Dawa v. Holtiszuorth,
and after reading it, observed that the bond was not given in evidence; therefore i t

appeared that the b o d had beers exc~Lide[~

front the view of the Judge, before the debt
which wa3 c0ntracted after the debtor ceased to trade, was j)re~e~ited
to the Court: i t
stood thus; A man deals for five years as a trader, then leaves of trading, then goes
on dealing for five pears more j a t i d the Court mean to say this : It cantiot be considered that tha debtor meant to leave this debt outstanding, which subjects him to
such severe consequences, wheti he had done that which, if he were so inclined, was a
discharge of it. The cme, therefore, goes exactly so far, and no farther than the case
iri Lord Raymond : i t must be taken as if there ware tio bond, for si0110 was proved.

828

DEWELL t. MOXON

TAUNT. Ba3.

v. Milk, however, the debts were both for goode, botb arcs9 on tbe same account, atid
i t was wholly immaterial to which end of the account the payment niight be applied :
arid Lord Bolt thought it should be inferred that the payer iutended it to be ao
applied, a8 to avoid what was then thougbt the criminality of a bankruptcy. The
Court would presume the Defendant did not mean to commit stn offence. So iri &we
v. ~
~ if the first~ debt, ittcurred
~
while he~ was a traifer,
n WRS paid~ off, there ~
warn no petitioning creditors debt : if it was not paid, there was a good petitiouing
creditors debt. I consider this case as standing on the authority of the cam i n Lord
Raymond, and that the Court meant to say, that i t would be too hard, that a man
having made a payment s u ~ c i e n tto exempt him from the operation of the barikru~t
laws, should not have the benefit of paging off that part of his debt, which subjected
him to thoee laws. Lord Kenyou and Lord Holt went both on this ground : it is
an exception, and founded ori the c i r c u n ~ ~ ~ of
~ n bankr~fitcy.
ce
The counsel for the
~ e f e n d a n thas great difficulty in estabiishing that in the present case there are not
two debts, the one by covenant, the other by a simple cotitiact. It is impossible to
say that because they accrued for only one speciea of service, they were not therefore
two distinct [so31 debts: a debt arising on a deed, and a debt on simple contraot,
are very different iti their cons~que~ices.We cannot pay that because the parties go
on serving in the same manner, the salary due is therefore one debt, any more than if
a man lent 1001, on borid, and lent another 1001. on a p r o ~ i s s o r ynote. The debts
are therefore distinct; and if so, there is nothing to impeach the validity of the
application of the general rule, that payments made without specific appropriations may
he applied by the person receiving the money to srich debt as he pleases. We agree
r if he
that the payer might have paid the money to the crtdit of a ~ ~ r t i c u l adebt
would : we agree that there are cases where the circumstaiiccs shew t h a t the money
was paid in application to a particui;tr debt, but they do riot exist here ; we therefore
think that the arbitrator has judged r;ghtly iri the view he has taketi of the law of
the case, a i d that the rule must be
Discharged,
DEWELL 21.

MOXON, May 21, 1814.

If money be paid to a stakeholder, urtder a rule of Court, to aKde the event

of a trial
in an action of tort, atid before the trial, the suit abates by the T~eferii~antsdeatb,
$he PIaiuti~,not having obtained any previous verdict, is riot etititled to receive
the money.

I n 1808 the Plaintiff brought X I I tiction i i i tort, with a couiit in trover against the
D e ~ e n ~ a the
n ~ ,owner of a vessel, and Biggin, the master, to reooyer damages for their
liot delivering, free of freight, a cargo of deals, which, it was contended, the niaster
had taken on board a t Catlshamm on those terms, AEter a tiotisuit, with a rule to set
it a8id6 and cause shewn, ante, 1, 391, the Court being of opiiiioti that there was 110
purpose in making Biggin a defendant, but to prevent the Defendarit M U X ~ Ifrom
I
having the benefit of his testimony, ordered Biggins iiarne to he struck out of the
recnrd, and made the rule absolute for. s new trial, upon the terms of [604] the Defen
dant Moxou paying to certain batikers under a rule of Court, 13451. the whole prioe
of the deab, ta abide the decision of the questiori whether he were erititled to retaip
thereout for t b freight of the deals, the sum of 7331. 0s. 4d. This was done, arid the
cause waa again eutered for trial, but Biggiri the master beitig theri a prisoiier in
Fratiee, the trial had beeu postpoued, arid, for the same reason, the cause had ever
sirice stood as k remanet i n the paper of Guildhall. The witness being iiow returaed
to this country, the Plaintiff gave notice of trial, but the Defentlants attorney refused
to try the cauae, upon the grouttd that the ~ e f e i i d a i i tMoxuri was sirice dead, arid
that the aation bad abated. Shepherd Solicitor-Gerieral now moved t h a t the sani of
7331. Os. 4d., the amount of the freight, might be paid over to the Plaintiff, upoti the
ground that his right to it had only been s u ~ p e n ( ~ ebyd t h e rule of the Court, and that
the Defendants derzth was a sufficient reason why he should iiow receive it.
Per Curiam. The Plaintiff has lost his Defendtint iu an action of tort. If an
actiori can be maintained against the Deferidants execubrj for t h i s money, the Plaititiff
may apply to the Court to permit this sum to abide the evetit of such ati action to be
brought. But we tire asked to make a ride, by which we are to put this money into
the Plaintiffs harids, and to determilie, without heiiriog the cause, that the Defendant