cannot convert it into a tort, so as to charge the infant. "If one deliver goods to an infant on a contract, knowing him to be an infant, the infant shall not be charged for them in trover and conversion; for the law will not permit a plaintiff, by changing the form of action, to vary the liability of the infant." Hence, whatever be the form of the action which is commenced, if the act done by the infant is the foundation of an assumpsit, the plea of infancy will be a good bar: as where an infant hired a mare of the plaintiff to go a journey, in the course of which the mare was strained. The plaintiff having declared against the infant for this injury in tort, he pleaded infancy, which on demurrer was holden a good plea; and Lord Kenyon, C. J. said, that if it were in the power of a plaintiff to convert that which arises out of a contract into a tort, there would be an end of that protection which the law affords to infants. Lord Mansfield, indeed, frequently said, that this protection was to be used as a shield and not as a sword; therefore, if an infant commit slander, God forbid that he should not be answerable for it in a court of justice. But where an infant has made an improvident contract with a person, who has been wicked enough to contract with him, such person cannot resort to a court of law to enforce such contract; and the words "wrongfully, injuriously, and maliciously," introduced into the declaration, cannot vary this case (70). A single bill given by an infant for the amount of necessaries is binding on him, but a bond in double the amount is not. So an account stated of monies due for necessaries will not lie against an infant, the law not giving an infant credit for accurate computation, nor can he agree to any such account. A warrant of attorney given by an infant is absolutely voide, and the court will not confirm it, though z 1 Sid. 129. Manby v. Scott. a Jennings v. Rundall, 8 T. R. 335. b Russell v. Lee, 1 Lev. 86, 87. c Ayliff v. Archdale, Cro. Eliz. 920. See also 1 Inst. 172 a. d 2 Roll. Rep. 271. and Trueman v. the place of the person paid, viz. the creditor for necessaries, and shall recover in equity as the other should have done at law. Per Cur. Marlow v. Pitfield, 1 P. Wms. 558. The same rule of equity holds with respect to money lent to a feme covert, and afterwards applied to her use for necessaries. See post, tit. Baron and Feme, s. 4. (70) As in the cases of contract where the law has protected the infant againt his liability, he cannot be prejudiced by the form of action. in which he is sued; so in cases ex delicto, where he is responsible, he cannot derive any advantage from it. In Bristow v. Eastman, 1 Esp. N. P. C. 172. Kenyon, C. J. was of opinion, that money had and the infant appear to have given it (knowing that it was not valid) for the purpose of collusion; for such acts of an infant as are only voidable are allowed in equity to be confirmed, but not such as are actually void. An infant cannot be bound by a submission to arbitrationf. 4. Payment; and herein of Payment of Money into Court. Payment. To an action of assumpsit the defendant may plead matter of discharge ex post facto, as payment before action brought. Part-payments to plaintiff, although not pleaded, may be given in evidences in reduction of damages. 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 (71). 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 f Anon. B. R. Hil. 55 Geo. 3. g Shirley v. Jacob, 2. Bingh. N. C. 88. h Newmarch, v. Clay, 14 East, 239, Agreed per cur. Peters v. Anderson, 5 Taunt. 596. Shaw v. Picton, 4. B. and C. 715. 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. i Bowes v. Lucas, B. R. M. 11 G. 2. k Bosanquet v. Wray, 6 Taunt. 597. received would lie against the defendant, to recover money which he had embezzled, notwithstanding the infancy of the defendant, on the ground that infants were liable to actions ex delicto, though not ex contractu; and though the action for money had and received was in form an action ex contractu, yet in this case it was in substance an action ex delicto; that if trover had been brought for the property embezzled, infancy would not have been a defence and as the object of the action for money had and received was the same, he thought the same rule of law ought to apply, and therefore that infancy ought not to be a bar. (71) 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. 1 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. A party, however, to whom two sums are due, the one for spirituous liquors supplied in quantities not amounting to 20s. at a time, the other for meat, &c., may apply m payments made generally to the account for spirituous liquors. "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. See further on this subject Devaynes v. Noble, 1 Mer. 608; Pease v. Hirst, 10 B. & C. 122; and Taylor v. Kymer, 3 B. & Ad. 333, where the Court thought the rule laid down in Devaynes v. Noble did not apply. See Tomlinson v. Copland, 2 Clarke & Finelly, App. Cas. 681. 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 paymentP. 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 1 Wright v. Laing, 3 B. & C. 165. & Ell. 41. S. P. n Marryatts v. White, 2 Stark. N. P. 439. months, which C. accepted, but afterwards dishonoured; it was holden, that defendant was not entitled to notice of the dishonour, 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 & 4 Ann, c. 9, s. 7. In this 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. & Co. at Huddersfield, payable to bearer on demand. D. & 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. & 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 thems. It is perfectly clear, that a bill of exchange will operate as a satisfaction of a preceding debt, if the holder makes it his own by laches, as by not presenting it for payment when due.t So where the vendor of goods, having been paid for them by a bill drawn by the vendee on a third person, after the bill had been accepted, altered it in a material part, viz. the time of payment; it was holden", that the vendor thereby made the his own as against the vendee, and caused it to operate as a satisfaction of the debt for which it was originally given. 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 q Swinyard v. Bowes, 5 M. & S. 62. r Camidge v. Allenby, 6 B. & C. 373. Per Bayley, J. S. C. 6 B. & C. 382. t Per Ld. Tenterden, C. J. 3 B. and Ad. 663. u Alderson v. Langdale, 3 B. & Ad. 660. x Bishop v. Rowe, 3 M. & S 362. 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. In an action for goods sold, a witness cannot be called for the defence to prove that the defendant has paid the amount to him, (either as agent for the plaintiff or in his own right,) if it appear that he obtained the payment under such circumstances that, in the event of the plaintiff's recovering, the witness would be liable to the defendant, not only for the sum so recovered, but also for the costs of the cause as damages resulting from the witness's deceit. Payment of Money into Court.-By stat. 3 & 4 W. 4, c. 42, s. 21, it shall be lawful for the defendant in all personal actions, (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching plaintiff's daughter or servant,) by leave of any of the superior courts where such action is pending, or a judge of any of the said superior courts, to pay into court a sum of money by way of compensation, in such manner and under such regulations as to the payment of costs and the form of pleading, as the said judges, or such eight or more, shall by rule direct. By R. G. H. T. 4 W. 4, No. 17, when money is paid into court, such payment shall be pleaded in all cases, and, as near as may be, in the following form, mutatis mutandis: day of , ats. The defendant, by his attorney, [or, in A. B. person, &c.] says, that the plaintiff ought not further to maintain his action, because the defendant now brings into court the sum of £ ready to be paid to the plaintiff; and the defendant further says, that the plaintiff has not sustained damages, [or, in action of debt, that he is not indebted to the plaintiff,] to a greater amount than the said sum, &c., in respect to the cause of action in the declaration mentioned, and this he is ready to verify; wherefore he prays judgment if the plaintiff ought further to maintain his action." In assumpsity for breach of an agreement to keep premises in repair, the Court would not allow defendant to pay money into court as compensation under the foregoing statute, upon pleas of payment of money into court and of tender. x Larbalestier v. Clark, 1 B. & Ad 899. y Dearle v. Barrett, 2 Ad. & Ell. 82. |