funds from a debtor, to be by them transmitted through their foreign correspondents to a foreign creditor, it seems that the bankers are not liable if they pass it to the credit of their foreign correspondents, and give notice to them to pay it over to the creditor, and afterwards accept bills drawn on them by the foreign correspondents, although the foreign correspondents become bankrupts before the notice reaches them, and do not transmit the money to the creditors. (v) The rule seems to rest on the fact that the bankers had done all that was to be expected of them, and all that they had undertaken to do. 8. OF STAKE-HOLDERS AND WAGERS. Payment is sometimes made to a third party, to hold until some question be determined, or some right ascertained.1 The third party is then a stake-holder, and questions have arisen as to his right and duties, and as to the rights of the several parties claiming the money. If it be deposited with him to abide the result of a wager, it seems to be the law in England, or to have been so before the recent statute of 8 & 9 Vict., that where the wager is legal, neither party to it can claim the money until the wager is determined; and then he is bound to pay it to the winning party. (w) That is, neither party can rescind the agree same bankers, transferred the sum to the plaintiff's credit on Friday, the 9th of December. The plaintiff, being at a distance, did not receive notice of this transfer till the Sunday following, and on the Saturday the bankers failed. The learned serjeant thought that this transfer amounted, under the circumstances, to payment. And this ruling was sustained by the Court of Common Pleas, on a motion for a new trial. Best, C. J., said: "The learned serjeant was right in esteeming this a payment. The plaintiff had made the Maidstone bankers his agents, and had authorized them to receive the money due, from the defendant. Was it then paid, or was that done which was equivalent to payment? At first, not; but on the 8th a sum was actually placed to the plaintiff's account; and though no money was transferred in specie that was an acknowledgment from the bankers that they had received the amount from Ellis. The plaintiff might then have drawn for it, and the bankers could not have refused his draft." See also Bodenham v. Purchas, 2 B. & Ald. 39, and ante, vol. i. pp. 217-220. See Hewes v. Hansom, 10 Gray, 336. (v) M'Carthy v. Colvin, 9 A. & E. 607. (w) Brandon v. Hibbert, 4 Camp. 37. There the plaintiff laid a wager with a butcher that another butcher would sell him meat at a certain price. The wager 1 As to the distinction between "bets or wagers,' and "purses, prizes, or premiums," and the driving of horses for either, see Alford v. Smith, 63 Ind. 58; Delier v. Plymouth, &c. Soc., 57 Iowa, 481; Harris v. White, 81 N. Y. 532. Cf. Bronson, &c. Assoc. v. Ramsdell, 24 Mich. 441. — W. of charges or credits in shop-books are admissible in evidence, though the witness producing the book cannot say who made the entries. Donovan v. Boston & Maine R. Co., 158 Mass. 450, 33 N. E. 583. This does not apply to the books of a bank. Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 587, 58 N. E. 162. * * 627 ment; although Lord Ellenborough said otherwise, in one case. (x) If the wager be illegal, either party may claim the money. If the loser claim money he has deposited on an illegal wager, and claim it even after the wager is decided against him, but before it is actually paid over, the stake-holder is bound to return it to him. (y)1 (xx) But although the wager be illegal, if was accepted, and the money placed in the defendant's hands, and the decision of the question was left to him, and he decided against the plaintiff, who then brought this action to recover his deposit; but Dampier, J., was of opinion that the action could not be maintained, and directed a nonsuit. In Bland v. Collett, id. 157, the plaintiff, in the presence of the defendant and one Porter, boasted of having conversed with Lord Kensington. Porter asserted that the plaintiff had never spoken to Lord Kensington in his life. A bet was talked of upon the subject, but none was then laid. Next morning the parties again met, when Porter asked, "What will you now lay that you conversed with Lord Kensington?" The plaintiff answered, "80 guineas to 10." The money was accordingly deposited in the hands of the defendant, as a stake-holder. Upon which Porter exclaimed, "Now I have you; I have made inquiries, and the person you conversed with was Lord Kingston, not Lord Kensington." The plaintiff owned his mistake; but said he had been imposed upon, and gave notice to the defendant not to pay over the money. This action was brought to recover back the deposit of eighty guineas, on the ground that it was a bubble bet. But per Gibbs, C. J." I think the action cannot be maintained. There is nothing illegal in the wager. Nor can it be said that the point was certain as to one party, and contingent as to the other. The plaintiff relied upon his own observation, Porter upon the information he had received. The former was the more confident of the two; and either might have turned out to have been mistaken." (x) Eltham v. Kingsman, 1 B. & Ald. 683. This was an action against a stakeholder to recover back a wager. Lord Ellenborough said: "I think there is no distinction between the situation of an arbitrator and that of the present defendant; for he is to decide who is the winner and who is the loser of the wager, and what is to be done with the stake deposited in his hands. Now an arbitrator's authority before he has made his award is clearly countermandable; and here, before there has been a decision, the party has countermanded the authority of the stake-holder." This position, however, was strongly doubted in the subsequent case of Maryatt v. Broderick, 2 M. & W. 369. (y) Cotton v. Thurland, 5 T. R. 405; Smith v. Bickmore, 4 Taunt. 474; Bate v. Cartwright, 7 Price, 540; Hastelow v. Jackson, 8 B. & C. 221; Hodson v. Terrill, 1 Cromp. & M. 797; Martin v. Hewson, 10 Exch. 737, 29 Eng. L. & Eq. 424. In Manning v. Purcell, 7 De G., M. & G. 55, 31 Eng. L. & Eq. 452, a testator before his death had received sums of money, which he held as stake-holder for others, to abide the result of races, upon the event of which bets had been made by other persons. The testator had also placed about £6,000 in the hands of other parties, which by them had been depos ited in a bank, to abide the result of a bet made by himself (but which failed by his death). In the administration of the estate the administratrix had paid £2,349 to persons who had paid these sums to the testator; the fact being, that part of the money was in respect of wagers which were decided before the testator's death, and part in respect of bets not decided at that time. Nothing had been done as to the £6,000 in the hands of the stake-holders. Held, that the payments made by the testatrix in respect of the wagers decided in the testator's lifetime could not be allowed against the estate; 1 If a stake-holder in a presidential election bet pays over the money after forbidden so to do, an action will lie against him for the money, and it is immaterial that the reason for forbidding payment was that a question arose whether the wager was put an end to by the death of the presidential candidate after the election. Fisher v. Hidreth, 117 Mass. 558. K. (xx) See Diggle v. Higgs (2 Ex. D. 422), 6 English Ruling Cas. 477, 482, 490 n.; Bernard v. Taylor (23 Oregon, 416), 37 Am. St. Rep. 693, 697 n. the stake-holder has paid it over to the winner, before notice or demand against him by the loser, he is exonerated. (*) But in New York it has been held, under a statute giving the losing party a right of action against the stake-holder for the stake, "whether the same shall have been paid over by such stakeholder or not, and whether any such wager be lost or not," that the stake-holder was liable to the losing party although he had paid over the stake by his directions. (a) But in * 628 such a case he must declare on the statute and cannot recover at common law, (b) and though he has deposited the money of others as well as his own, he can only recover against the stake-holder the portion belonging to himself. (c) When the event has been determined, it is said that the winner may bring an action for the money against the stake-holder, without giving him notice of the happening of the event. (d) The Statute 8 & 9 Vict. ch. 109, § 18, makes all wagers, or contracts or agreements by the way of gaming or wagering, null and void, and provides that no suit shall be maintained for the recovery of anything deposited to abide the event of any wager.1 Many of the courts of this country have viewed wagers as entitled to no favor; (e) but where they are in any degree legal contracts, they would doubtless be governed by the rules above stated. An auctioneer is often made a stake-holder; and where he receives a deposit from a purchaser, to be paid over to the seller, if a good title to the property be made out, and in default thereof to be returned to the purchaser, he cannot return it to the purchaser on his demand, without such default. But on default, or a rescinding or abandonment of the contract, the auctioneer is bound but that those made in respect of wagers (z) Perkins v. Eaton, 3 N. H. 152; Howsen v. Hancock, 8 T. R. 575; M'Cullum v. Gourley, 8 Johns. 147; Livingston v. Wootan, 1 Nott & McC. 178. (a) Ruckman v. Pitcher, 1 Comst. 392. And see Sutphin v. Crozer, 1 Vroom, 257. (b) See Morgan v. Groff, 4 Barb. 528; Like v. Thompson, 9 Barb. 315. (c) Ruckman v. Pitcher, 20 N. Y. (6 Smith) 9. (d) Duncan v. Cafe, 2 M. & W. 244. (e) Perkins v. Eaton, 3 N. H. 152; Bunn v. Ricker, 4 Johns. 426; McAllister v. Hoffman, 16 S. & R. 147; McAllister v. Gallaher, 3 Penn. St. 468; Wheeler v. Spencer, 15 Conn. 28. 1 Hampden v. Walsh, 1 Q. B. D. 189, decided, on the authority of Varney v. Hickman, 5 C. B. 271; Martin v. Hewson, 10 Exch. 737; and Graham v. Thompson, I. R. 2 C. L. 64, that the St. 3 & 9 Vict. c. 109, § 18, did not apply to the recovery by a -depositor of a sum so deposited if demanded by him before it was paid over. See also Trimble v. Hill, 5 A. C. 342.-K. to return it to the purchaser on his demand; and if he have paid it to the owner of the property, he has done so in his own wrong, and must refund it to the depositor. (f) If one deposits money in the hands of a stake-holder, to be paid to a creditor when his claim against the depositor shall be ascertained, and the stakeholder pays this money to the creditor on his giving an indemnity, before the claim is ascertained, without the assent of the depositor, it is said that such depositor may maintain an action against the stake-holder for money had and received, without any refer629 ence to the demand * of the creditor. (g) But if the check of the depositor be given to the stake-holder, the mere fact that he cashes it and holds the money is not such wrong-doing as makes him liable to be sued for the amount. (h) A stake-holder who cashes a check left with him, if the parties agree to regard it as money, is guilty of a breach of duty. (i) 9. OF APPROPRIATION OF PAYMENTS. There are many cases relating to the appropriation of a payment, where the creditor has distinct accounts against the debtor. In Cremer v. Higginson, (j) Mr. Justice Story lays down with much precision the general rules governing these cases. First, a debtor who owes his creditor money on distinct accounts, may direct his payments to be applied to either, as he pleases. Second, if the 815. (f) Edwards v. Hodding, 5 Taunt. In Duncan v. Cafe, M. & W. 244, the plaintiff, having deposited a sum with the auctioneer, until a good title was made out, was allowed to recover the deposit without notice to the auctioneer that the contract had been rescinded by the parties. And see, to the same effect, Gray v. Gutteridge, 1 Man. & R. 614. (g) Cowling v. Beachum, 7 J. B. Moore, 465. In this case the plaintiff had employed one Langdon, an auctioneer, to sell an estate, and disputed the sum charged by him for his expenses; whereupon it was agreed that the amount should be deposited with the defendant, until it should be ascertained whether the auctioneer was entitled to the whole of his demand or not. The defendant having paid over the amount so deposited to the auctioneer on receiving his indemnity, without the knowledge or concurrence of the plaintiff, it was held, that the latter was entitled to recover it back in an action for money had and received. And, per Burrough, J., "The sum in question was deposited by the plaintiff with the defendant for an express purpose; it should, therefore, have remained in his hands until it was ascertained to what remuneration Langdon was entitled for selling the estate in question. The payment of it by him to Langdon, on his indemnity, was a wrongful act, and a breach of the trust reposed in the defendant by the plaintiff, and for which the sum in question was deposited in his hands, and which he cannot now possibly comply with, in conse quence of his own act.' 536. (h) Wilkinson v. Godefroy, 9 A. & E. (i) Wilkinson v. Godefroy, 9 A. & E. 536. (j) 1 Mason, 338. And see Franklin Bank v. Hooper, 36 Me. 222; Frazier v. Lanahan, 71 Md. 131; Smuller v. Union Canal Co., 37 Penn. St. 68; Bennet v. Austin, 81 N. Y. 308. 1 Lee v. Early, 44 Md. 80; Champenois v. Fort, 45 man, 59 Ala. 345; Trullinger v. Kofoed, 7 Oreg. 228. Miss. 355; Levystein v. Whit- * debtor makes no appropriation, the creditor may apply the money as he pleases. (k) Third, if neither party makes a specific appropriation of the money, the law will appropriate it as the justice and equity of the case may require.1 These rules seem to apply, although one of the debts be due on specialty and the other on simple contract. (1)2 If one owe money in respect of a * 630 debt contracted by his wife before marriage, and also a debt of his own, and pay money generally, the creditor may apply the payment to either demand. (m) And if one of the debts be barred by the statute of limitations, and the other not, and the money be paid generally, the creditor may apply the payment to the debt that is barred; (n) 3 but, by the weight of authority, he (k) Blackman v. Leonard, 15 La. An. 59; Commonwealth Bank v. Mechanics' Bank, 94 U. S. 437, 439; Harding v. Tifft, 75 N. Y. 461; Davis, &c. Co. v. Buckles, 89 Ill. 237; Coxwell v. De Vaughn, 55 Ga. 643. (1) Brazier v. Bryant, 2 Dowl. P. C. 477; Chitty v. Naish, id. 511; Mayor, &c. of Alexandria v. Patten, 4 Cranch, 317; Peters v. Anderson, 5 Taunt. 596; Hamilton v. Benbury, 2 Hayw. 385; Hargroves v. Cooke, 15 Ga. 221; Pierce, Clark, & Co. v. Knight, 31 Vt. 701; Heintz v. Cahn, 29 Ill. 308. And see Pennypacker v. Umberger, 22 Penn. St. 492. (m) Goddard v. Cox, 2 Stra. 1194. In this case the defendant was indebted to the plaintiff on account of debts contracted by his wife dum sola, and also on account of debts contracted by himself. His wife was also indebted to the plaintiff, as executrix. The defendant made payments to the plaintiff on account generally, without directing what debts they should be applied to. Held, that the plaintiff might elect whether to apply the payments to discharge the debts contracted by his wife dum sola, but could not apply them to discharge the debts due from the wife as executrix. (n) Mills v. Fowkes, 5 Bing. N. C. 455, In this case Tindal, C. J., said: "The ation of a conveyance has agreed to discharge a mortgage and has made payments to the mortgagee, must be deemed to have made the payments on the mortgage, and cannot convert them into the consideration for a transfer of the mortgage debt which he has induced the mortgagee to make. Burnham v. Dorr, 72 Me. 198.-K. 1 Where a note was given which both covered a debt secured by a mortgage and certain prior unsecured debts, payments made generally on the note must be applied pro rata to the secured and unsecured indebtedness. Shelden v. Bennett, 44 Mich. 634. And where several debts were secured by a mortgage, and an indorsed promissory note was given in extension of one of them at its maturity, the mortgagor is not bound to apply to the debt secured by the note the proceeds of a foreclosure sale, they being less than the entire sum secured. West Coal Co. v. Kilderhouse, 87 N. Y. 430. See also Murdock v. Clarke, 88 Cal. 384; Northern Nat. Bank v. Lewis, 78 Wis. 475. When the holder of a note is a bank at which the maker has an account, and the maker after maturity deposits a sum sufficient to cover it, but gives no direction to apply it in payment, this is not payment, nor does the bank discharge the indorsers by failing to so apply it. Newburgh Bank v. Smith, 66 N. Y. 271. Where the defence to a note was payment by a joint-maker, the entry of a credit on a separate account of the joint-maker with the plaintiff is inadmissible to prove that the payment was applied to the account and not to the note. Craig v. Miller, 103 Ill. 605. K. 2 Funds arising from a security for a particular debt should be applied in its satisfaction. Sanders v. Knox, 57 Ala. 80.-K. 8 And this, too, without the consent of the debtor. Phillips v. Moses, 65 Me. 70; Brown v. Burns, 67 Me. 535. Where payments were made from time to time, without application, by a discharged bankrupt, upon a running account for goods sold partly before and partly after his discharge, the creditor who received no notice of the bankruptcy proceedings and was not named in the bankrupt's schedules, may, if the payments made after the discharge exceed the price of the goods purchased after that time, apply them to the first items in the account. Hill v. Robbins, 22 Mich. 475. — K. |