5 TAW. &% PETERS U. ANDERIJON 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,

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.

Beat Serjt. shewed cause in the first instance against the rule.

The Court relieved Copley from supporting his rule. This turns on khe constructio~~ of two differe~t statut%s 22 & 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 i u 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 e l i n 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. ANDERSON. May 22, 1814, [S. G. 1 Marsh. 238. 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 money, ascribe i t t o which account he pleases.-h.nd his eIectioti may either be 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~t for 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 b t as 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 during the same period he had received from the L)efei~a~its agent at Bance Island 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 fenda i i t as stirgeon a t Bance Islaud a t the i n ~ ~ e a s e d wages 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 aKie 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 in (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~e of the first debt alone, nor was any balauce struck on the 23d November 1808, in the accouiit current kept by the ~efendatits agent 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 Defen- dant 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 ~

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~rcu~s tances indicate 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~ropriated arid applicable by the rece~ver to n simple contract debt, while he left a bond debt bearing interest. So, in ~ ~ ~ n ~ ~ $ ~ s ~ $ ~ v. X ~ o w ~ ~ s Lord Kerryon 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 ~ s advantage 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 o n , that where the payer doe8 riot af)propr~ate the p a ~ ~ e n t , q~~icqujd recipitur, 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 i ta 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~aIty and 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~cial to 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 in Meggdt v. MiZls, lmt that authority is adverse to the Plaintiff.

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 accou~ts he 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~ererit articles on the other, and makirtg but one account; arid that it is like the two cases cited, of ~ e g g f f ~ ~ v. BfilL, and D ~ ~ e v. ~ 0 1 ~ ~ ~ 0 ~ ~ ~ . 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

Per Curiam.

(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 con- sidered 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.

8 28 DEWELL t. MOXON 8 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. ~ ~ ~ ~ ~ n ~ ~ ~ ~ , if the first debt, ittcurred while he was a traifer, 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 t to 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 ~ ~ ~ ~ n c e of bankr~fitcy. The counsel for the ~ e f e n d a n t has 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 it i 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 pro~issory note. 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 that the payer might have paid the money to the crtdit of a ~ ~ r t i c u l a r debt if he 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 id 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~ants deatb, $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 n ~ , the 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 ~ I I from 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 ~efei idai i t Moxuri 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 su~pen(~ed by the 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