4. Payment. Payment. To an action of assumpsit the defendant may plead matter of discharge ex post facto, as payment before action brought: Indebitatus assumpsit for goods sold: plea, payment; special demurrer, because the plea amounted to the general issue; but per Cur. it admits at one time good cause of action (81) in the plaintiff, and excuses it by matter ex post facto, and therefore is a good plea. But this ground of defence, viz. payment before action brought, may be, and generally is, given in evidence under the general issue. Payment, however, after action brought, must be introduced by plea. But, in a case where defendant had paid debt and costs after action brought, and taken a receipt, and then pleaded the general issue, the judge would allow the plaintiff to take nominal damages only. A person who is indebted to another on several accounts, may, at the time of payment, apply the money to whichever account he thinks proper; and his election so to do may either be expressed, or may be inferred from the circumstances of the transaction; but if the party paying does not make such election, the receiver may apply it as he pleases' (82). d Vanhatton v. Morse, Ld. Raym. 787. e Per Gibbs, C. J. in Holland v. Jourdine, 1 Holt, N. P. C. 6. f S. C. g Newmarch v. Clay, 14 East, 239. h Bowes v. Lucas, B. R. M. 11 G. 2. Andr. 55. Goddard v. Cox, Str. 1194. See 2 Vern. 607. S. P. per Ld. Cowp. Ch and Peters v. Anderson, 5 Taunt. 596. Hall v. Wood and wife, before Lord Mansfield, C. J. Middlesex Sittings, Hil. 1785. S. P. 14 East, 243. n. (81) "It is generally true, that a plea, which admits that there was once a cause of action, does not amount to the general issue." Per Holt, C. J. in Brown v. Cornish, Ld. Raym. 217. In pleading a plea of payment, the defendant ought to plead actio. non. and not onerari non debet, for he allows the promise to be a good promise, but avoids it by matter of discharge ex post facto, per Holt, C. J. ibid. (82) The defendant owed money on two bonds, and paid money on account, but gave no directions to which he would have it applied; and upon a case reserved, it was determined, that the plaintiff had the election. Bloss v. Cutting, cited in 2 Str. 1194. A creditor receiving money, without any specific appropriation by the debtor, will be permitted in a court of law to ascribe the receipt to the discharge of a prior and purely equitable debt, and sue him at law for a subsequent legal debt. But where one demand arises out of a lawful contract, and another out of an unlawful contract, the law will appropriate a payment not specifically appropriated to the lawful contract. "It seems most consistent with reason, that where payments are made upon one entire account, such payments should be considered in discharge of the earlier items." Per Bayley, J. Bodenham v. Purchas, 2 B. and A. 45. "In the case of a banking-account, there is no room for any other appropriation than that which arises from the order in which the receipts and payments take place, and are carried into account. Presumably it is the first sum paid in that is first drawn out. It is the first item on the debit side of the account, which is discharged by the first item on the credit side. The appropriation is made by the very act of setting the two items against each other." Per Sir W. Grant, M. R. Clayton's case, 1 Mer. 572. Security having been given by a surety for goods to be supplied to his principal, and not in respect of a previously existing debt, 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 holden that it was to be inferred in favour of the surety, that all these payments were intended in liquidation of the latter account'. The mere production of a bill of exchange from the custody of the acceptor is not presumptive evidence of payment, unless it be shewn that the bill was once in circulation after being accepted". Nor is payment to be presumed from a receipt indorsed on the bill, unless it can be shewn that the receipt is in the handwriting of a person entitled to demand payment". Where defendant being indebted to plaintiffs for goods sold, and C. being indebted to defendant, plaintiffs, with consent of defendant, drew a bill on C. payable at two months, which C. accepted, but afterwards dishonoured; it was holden, that defendant was not entitled to notice of the dis honour, his name not being on the bill, and that the bill was not to be esteemed a complete payment of the debt, under stat. 3 and 4 Ann, c. 9, s. 7. In the foregoing case the person insisting on the want of presentment was not a party to the bill. In an action for the price of goods, it appeared that the goods were sold in the morning, at York, on Saturday the 10th Dec. 1825, and on the same day, at 3 o'clock in the afternoon, the vendee delivered to the vendor as and for payment of the price, promissory notes of the bank of D. and Co. at Huddersfield, payable to bearer on demand. D. and Co. had stopped payment on the same day at 11 o'clock in the morning, and never afterwards resumed their payments: but neither of the parties knew of the stoppage, or of the insolvency of D. and Co. The vendor never circulated the notes, or presented them to the bankers for payment; but on Saturday the 17th December, he required the vendee to take back the notes, and to pay him the amount, which the vendee refused. It was holden, that the vendor was guilty of laches in not giving notice to the vendee of non-payment and insolvency of the bankers within a reasonable time; and consequently that the notes operated as a satisfaction" of the debt. The rule as to all negotiable instruments is, that if they are taken in payment of a pre-existing debt, they operate as a discharge of that debt, unless the party who holds the instruments does all that the law requires to be done, in order to obtain payment of them. Where the holder of a bill of exchange, upon its being dishonoured, received part payment, and for the residue another bill of exchange, drawn and accepted by persons not parties to the original bill, and afterwards sued the drawer and acceptor upon the original bill: it was holden that it was sufficient for him to prove presentment of the substituted bill to the acceptor for payment, and that it was dishonoured, without proving that he gave notice of the dishonour to the drawer of the substituted bill. If a creditor refer a third person to his debtor for payment, intending the third person to take payment in money, and the third person, instead of taking payment in money, takes payment in any other way, he does it at his peril. Per Bayley, J. in Smith v. Ferrand, 7 B. and C. 24. p Camidge v. Allenby, 6 B. and C. 373. r Bishop v. Rowe, 3 M and S. 362. q Per Bayley, J. S. C. 6 B. and C. 382. 5. Release. 5. Release.-Defendant may plead a release after promise, and before action brought, specially (83), or give it in evidence under the general issue. The usual replication to a plea of release is non est factum (84). A release, upon performance of the promise in part quoad hoc, will not discharge the promise for the residue. If after the last continuance the plaintiff give the defendant a release, he may plead it in bar"; such plea is called a plea puis darrein continuance: as it is pleaded sometimes at the assizes, the following form may be useful: "And now at this day, to wit, on the in the day of year of the reign of our Sovereign Lord George the Fourth by the grace of God, &c. before A. B. and C. D., justices of our Lord the now King, appointed to take the assizes in and for the county of G. aforesaid, at in the county of G. aforesaid, comes the said H. J., by J. S. his counsel, and says that the said E. F. ought not further (85) to maintain his action against the said H. J. because he says that after the making the said several supposed promises and undertakings in the said declaration mentioned, and after the last continuance of the aforesaid plea, that is, after the (86) last past, from which day until the day of day of in Mich. Term next (unless the justices of our Lord the King assigned to hold the assizes of our Lord s Miller v. Aris, ante, p. 124. Hawley t 2 Roll. Abr. 413, 1. 2. adjudged. v. Peacock, 2 Campb. N. P. C. 558. u Bull. N. P. 309. S. P. (83) See the form, Clerk's Assist. p. 257, 258. 2 Rich. P. B. R. p. 43, third edition. (84) 2 Rich. Pr. B. R. p. 44. (85) This seems to be the proper way for pleading a collateral thing, which happens after the action brought; for by this it admits that the action was well brought, but that the plaintiff by reason of the new matter ought not to proceed further in it. Campion v. Baker, Lutw. 1143. "Since the case of Evans v. Prosser, 3 T. R. 186, it may be considered as a settled rule of pleading, that no matter of defence arising after action brought can properly be pleaded in bar of the action generally." Per Lord Ellenborough, C. J. in Le Bret v. Papillon, 4 East's R. 507, recognised in Lee v. Levy, 4 B. and C. 393. (86) The day of the return of venire facias. at the King in and for the county of G. should first come on the day of in the said county of G.) the action aforesaid is continued, to wit, on, &c. (87) at, &c. the said E. F. by his deed, dated, &c. did release,' and so shew the particular matter, and conclude, 66 And this he is ready to verify, wherefore he prays judgment if the said E. F. ought further to maintain this action against him, &c." It is the constant experience at the assizes to put the party to verify a plea puis darrien continuance, before it is allowed; and if the party does not give some evidence of the truth of it, the judge will reject it, and go on with the cause. The same certainty is required in this, as in other pleas'. A plea puis darrien continuance may be pleaded at Nisi Prius, although there has been time to plead it in bank since the last continuance. If it be verified by an affidavit which refers to the plea, and the plea is in the cause, the affidavit is sufficient, though not specially entitled in the cause. If the jury be not taken at the day of Nisi Prius, a release is pleadable after the last continuance at the day in bank, although it be not offered at Nisi Prius; but otherwise it is, if the jury be taken. 1. Of Limitations. 6. Statutes, 2. Of Set-Off. 1. Statute of Limitations.-By stat. 21 Jac. 1. c. 16. §. 3. all actions upon the case (other than slander) shall be commenced and sued within six years next after the cause of such actions, and not after. Advantage must be taken of this statute by pleading it (88), although it should appear on the (87) The defendant must allege precisely the very day, time, and place. Per Cur. Yelv. 141. (88) Different reasons are assigned for this, which seems to be an exception to the general rule, that where it is required by statute, that an action shall be commenced within a limited time, it is incumbent on the plaintiff to prove that he has complied with the terms of the statute. In an anonymous case, in Salk. p. 278. Holt, C. J. said, that the statute of limitations could not be given in evidence on non assumpsit, because that plea spoke of a time past, and related to the time of making the promise, but that on nil debet it might; and in Draper v. Glassop (Lord Raym. 153.) he expressed the same opinion. In Gould v. Johnson (Ld. Raym. 838.) it was said by the court, |