So if a debtor owe a debt, contracted whilst he was a trader within the bankrupt laws, and another debt contracted afterwards, and make a general payment, although nothing be said respecting the application, the law will apply the payment to the first demand, so as to prevent the creditor from obtaining a fiat in bankruptcy thereon (d).

And if a person have two demands upon another, one arising out of a lawful contract, the other out of a contract forbidden by law (as usury), and the debtor make a payment which is not specifically appropriated by either party at the time of the receipt, the law will apply it to the well-founded and legal demand (e). But where one of the demands is for spirituous liquors supplied in quantities not amounting to 20s. at a time, the party receiving the payment may apply it to that demand, the statute 24 Geo. II. c. 40, only preventing the seller from maintaining an action (f); and this though in his particulars he claim the whole demand, for he may make the appropriation at any time before the matter comes before the jury (g).

If a partner in a firm owe a private debt to A., who is also a creditor of the firm, and pay money of the firm generally on account, the payment is impliedly to be appropriated to the discharge of the partnership debt (h).

It has been determined at Nisi Prius (i), that a payment by the obligor of a bond to the obligee, to whom the obligor is also otherwise indebted, cannot, without some circumstances to show that it was intended to be made in discharge of the bond (k), be so applied in favour of the surety of the obligor, in an action upon the bond, under the plea of payment. But where security had been given by a surety for goods to be supplied to his principal, and not in respect of a previously existing debt, and goods were subsequently supplied, and payments were from time to time made by the principal, in respect of some of which discount was allowed for prompt payment, it was inferred in favour of the

(d) Meggott v. Mills, 1 Ld. Raym. 286; Dawe v. Holdsworth, Peake's R. 64; Peters v. Anderson, 5 Taunt. 602; Plomer v. Long, 1 Stark. R. 155, n.; Exparte Hunter, 6 Ves. jun. 94.

(e) Wright v. Laing, 3 B. & C. 165; 4 Dow. & Ry. 783, S. C.

(f) Cruickshanks v. Rose, 1 M. & Rob. 100; 5 C. & P. 19, S. C.; unte, 425.

(g) Philpott v. Jones, 4 Nev. & M. 14; 2 Ad. & E. 41, S. C.

(h) Thompson v. Brown, Moo. & M. 40; see ante, 249 to 259.

(i) Plomer v. Long, 1 Stark. 153; Martin v. Brecknell, 2 M. & Sel. 39; Williams v. Rawlinson, 3 Bing. 76, &c.; 10 Moore, 362, S.C.

(k) See Williams v. Rawlinson, 3 Bing. 71, 76.

surety that all these payments were intended to be in liquidation of the latter account (7).

A person who kept cash with a banker, deposited with him the note of a third person for a sum of money, telling him at the same time that it was a note made for his accommodation; and afterwards paid a sum of money into the bank without making any specific appropriation of it. Lord Kenyon held, that this money must be placed, as far as it would go, towards the discharge of the then existing debt, and that the banker could not hold the maker of the note responsible for more than the balance remaining due at the time of such payment, although he afterwards trusted his debtor with a further sum of money (m).

In Bardwell v. Lydall (n), where the defendants guaranteed the plaintiffs against debts to be contracted by L. M., to the extent of 4001., and L. M. became indebted to the plaintiffs to the amount of 6257., upon which, by a composition with his creditors, he paid them 8s. 7d. in the pound, leaving due to the plaintiffs, out of their whole claim, 3567.; it was held, that the defendant was entitled to deduct from that sum 1711. 13s. 4d., being the amount of the dividend of 8s. 7d. in the pound upon 4007.

Raikes v. Todd (o) is a similar case, there it was held, that if a creditor receive dividends upon a debt partly secured by the guarantee of a third person, such dividends must not be applied to the excess of the debt above the sum guaranteed, but must be applied rateably to the whole debt, and the surety is relieved from liability by the amount of dividend on the sum which is secured.

The doctrine of election, or appropriation, does not in general apply where there are not distinct accounts, or where separate accounts are treated as one entire account by all parties. In such cases, payments made generally are considered as payments made in discharge of the earlier items, although at the time of payment the debtor were silent on the subject (p). This rule is not however conclusive, but is only evidence of an appropriation (9).

(1) Marryats v. White, 2 Stark. R.

101.

(m) Hammersley v. Knowles, 2 Esp. R. 66.

(n) Bardwell v. Lydull, 5 M. & P. 327; 7 Bing. 489, S. C., cited and recognised in Raikes v. Todd, 8 Ad. & E. 855.

(0) Raikes v. Todd, 8 Ad. & E. 846.

(p) Clayton's case, 1 Meriv. 572, 608; Bodenham v. Purchas, 2 Bar. & Ald. 45, 47; Stoveld v. Eade, 12 Moore, 370; 4 Bing. 81, 154; Field v. Carr, 2 M. & P. 46; 5 Bing. 13, S. C.

(q) Per Denman, C. J., Wilson v. Hirst, 4 B. & Ad. 766.

A bond was given to the several persons constituting the firm of a banking-house, conditioned for the repayment of the balance of an account, and of such further sums as the bankers might advance to the obligor. One of the partners died, and a new partner was taken into the firm. At that time, a considerable balance was due from the obligor to the firm. Advances were afterwards made by the bankers, and payments made to them, on account, by the obligor: the latter was credited by the new firm with the several payments, and charged with the original debt, and subsequent advances, as constituting items in one entire account; and the balance due at the time of the partner's death was considerably reduced, and that reduced balance, by order of the obligor, was transferred by the bankers to the account of another customer, who, with his assent, was charged with the then debt of the obligor. The person so charged having become insolvent, the surviving partners of the original firm brought their action. upon the bond. It was held, that, as they had not originally treated it as a distinct account, but had blended it in the general account with other transactions, they were not at liberty so to treat it at a subsequent period; and that having received, in different payments, a sum more than sufficient to discharge the debt due upon the bond at the time of the death of the deceased partner, the bond was to be considered as paid (r).

The rule is, that where one of several partners dies, and the partnership is in debt, and the surviving partners continue their dealings with a particular creditor, and the latter joins the transactions with the old and new firm in one entire account, then the payments made from time to time by the surviving partners must be applied to the old debt; because it is to be presumed that all the parties have consented that it should be considered as one entire account (s), and that the death of one of the partners has produced no alteration (t). However, the creditor's right of

(r) Bodenham v. Purchas, 2 B. & Ald. 39; Williams v. Rawlinson, 3 Bing. 71; 10 Moore, 362, S. C. Mr. J. Holroyd, in Bodenham v. Purchas, seemed to be of opinion, that the transfer of the balance due from the obligor to the account of the other customer, with his assent, operated in point of law as a payment. And see ante, 613, 614, 752.

(s) See Moor v. Hill, Peake's Add. C. 10; ante, 613, 614, 752.

(t) Simson v. Ingham, 2 B. & C. 72; S D. & R. 252, S. C. Retiring partner when not discharged by the creditor taking the bill of the remaining partners; Kirwan v. Kirwan, 2 C. & M. 617; Thompson v. Percival, 3 Nev. & M. 167; 5 B. & Ad. 925, S. C.

election, or power of appropriation, is not exercised by him merely by entries made in his own private books; and is not complete, or lost to him, until such election or appropriation has been communicated to the other party (u).

And the doctrine of appropriation by the creditor only applies to cases in which the debtor has an opportunity of himself making the appropriation, but neglects to do so; and therefore an attorney who has received the amount of damages recovered in an action brought by his client, cannot appropriate that amount as he might have done had his client paid him such amount generally, without appropriating it to the payment of any particular demand (x).

5. Of a Receipt for Money Paid.

The Stamp Act, 55 Geo. III. c. 184, Sch. tit. Receipt, affixes a duty upon every receipt or discharge given for or upon the payment (y) of money amounting to 21. and upwards (2), varying with the amount received.

"And where any sum of money whatever shall in the receipt. be expressed or acknowledged to be received in full of all demands (a), a stamp duty of 10s. is required.

"And any note, memorandum, or writing whatsoever, given to any person for or upon the payment of money, whereby any sum of money, debt, or demand, or any part of any debt or demand therein specified, and amounting to 21. (z) or upwards, shall be expressed or acknowledged to have been paid, settled, balanced, or otherwise discharged or satisfied, or which shall import or sig

(u) Simson v. Ingham, 2 B. & C. 65; 3 D. & R. 249, S. C.; Williams v. Rawlinson, 3 Bing. 76. The acceptance of a remittance of bills, &c. will sometimes waive a right of action arising from a delay, &c. in making a payment, though the creditor was not bound to accept the remittance as made; Shipton v. Casson, 5 B. & C. 378; 8 D. & R. 130, S. C.

(r) Waller v. Lacy, 8 Dowl. P. C. 563; per Tindal, C. J., id. 573, 574; 1 Scott's N. R. 186; 1 Man. & Gr. 54, S. C.

(y) An I. O. U. does not require a stamp, ante, 120; nor does a memorandum given by an agent admitting the receipt of bills, &c. deposited with,

nify any such acknowledgment (b), and whether the same shall or not be signed with the name of any person, shall be deemed and taken to be a receipt for a sum of money of equal amount with the sum, debt or demand so expressed or acknowledged to have been paid, settled, balanced, or otherwise discharged or satisfied, within the intent and meaning of this schedule, and shall be charged with a duty accordingly."

A receipt or other acknowledgment not under seal (c) is not conclusive, but only presumptive evidence, that the money therein mentioned has been paid, and may be disproved by the creditor, on the ground of fraud, or mistake of facts, &c. (d). It may be explained by parol evidence (e).

Acknowledgments entered at different times on unstamped paper of the receipt of money, are not evidence of the payments made (ƒ); but a bill containing an account of debits and credits, and bona fide made at one time, to be delivered to the defendant as showing the balance against him, is admissible in evidence for the defendant as to the payment (f), without a receipt stamp (g), And a written acknowledgment at the foot of an account, that it is correct, does not require a receipt stamp ().

An unstamped receipt, though not per se admissible in evidence, may be shown to a witness as a memorandum made by him, in order to refresh his memory as to the fact of payment in his presence (i); and it suffices, that he swear that he has no doubt, from the circumstance of his having made the memorandum, that the money was paid as stated in the memorandum, although he add that he cannot recollect the fact (k).

And a written acknowledgment of the payment of money, stamped as a receipt, is evidence of the fact of payment, although

(b) Tomkins v. Ashby, 6 B. & C. 42; 9 Dowl. & R. 543, S. C. The words "settled, Samuel Hughes,” at the foot of a bill import a receipt and acquittance; Rex v. Martin, 7 C. & P. 549.

(c) Gilb. Ev. 142.

(d) Stratton v. Rastall, 2 T. R. 366; 1 Fortesc. 157; Alner v. George, 1 Camp. 393, 394, n.; Lampon v. Cork, 5 B. & Al. 611; Skaife v. Jackson, 3 B. & C. 421; 5 D. & R. 290, S. C.; Farrar v. Hutchinson, 1 P. & Dav. 427.

ante, 106.

(f) By producing the account the defendant also makes it primú fucie evidence for the plaintiff as to his side of it. The whole account must be read and taken together.

(g) Williams v. Smith, 2 B. & Bl. 501, 502, note.

(h) Wellard v. Moss, 1 Bing. 134; 7 Moore, 533, S. C.

(i) Rainbert v. Cohen, 4 Esp. 213; Jacob v. Lindsay, 1 East, R. 460.

(k) Maugham v. Hubbard, 8 B. & C. 14. And see Trentham v. De

(e) Graves v. Key, 3 B. & Ad. 313; verill, 4 Scott, 128.