an appropriation merely, and other evidence may be adduced which may vary the application of the rule (n). "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" (o); per Sir W. Grant, M. R., Clayton's case, 1 Mer. 572. See further on this subject, Toulmin v. Copland, 2 Cl. & Fin. 681; Williams v. Griffith, 5 M. & W. 300. There can be no appropriation of money by the receiver, where the debtor has not had the means or opportunity of exercising any election as to its application; as where money was paid to an attorney, without the knowledge of his client, for damages recovered in an action conducted by him for such client (p). Security having been given by a surety for goods to be subsequently supplied to his principal, and not in respect of a debt which then existed, goods were accordingly supplied, and payments were from time to time made by the principal: these payments corresponded exactly with the amounts of goods supplied since the security was given, and on those payments made before the usual trade credit had expired, discount had been allowed; it was held, that these facts created a strong inference that the payments were intended in liquidation of the latter account, and therefore that the surety was relieved (q). The mere production of a bill of exchange from the custody of the acceptor is not presumptive evidence of payment, unless it be shown 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 be shown that the receipt is in the handwriting of a person entitled to demand payment (r). Where, the defendant being indebted to the plaintiff's for goods sold, and C. being indebted to the defendant, the plaintiffs, with consent of the defendant, drew a bill on C. payable at two months, which C. accepted, but afterwards dishonoured; it was held, that the 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 3 & 4 Anne, c. 9, s. 7 (s). In this case the person insisting on the want of presentment was not a party to the bill. (n) Per Cur., Wilson v. Hirst, 4 B. & Ad. 767; acc. per Tindal, C. J., Field v. Carr, 5 Bingh. 16; per Alderson, B., Bell v. Backley, 11 Exch. 636; Taylor v. Kymer, B. & Ad. 333. (o) as in the ordinary case of a banker's pass book; secus, of entries made by bankers or others in books kept for their own private purposes, and before any communication made to the other party. Simpson v. Ingham, 2 B. & C. 65. (p) Waller v. Lacy, 1 M. & G. 70. (9) Marryatts v. White, 2 Stark. 101. "A surety can have no control over the way in which the principal shall make his payments, unless by distinct agreement." Williams v. Rawlinson, 3 Bingh. 71; and see Pease v. Hirst, 10 B. & C. 122. (r) Pfiel v. Vanbatenberg, 2 Camp. 439. (s) Swinyard v. Bowes, 5 M. & S. 62. In an action for the price of goods, it appeared that the goods were sold in the morning of Saturday, the 10th December, 1825, at York, and on the same day, at three o'clock in the afternoon, the vendee delivered to the vendor, in 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 eleven 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 held, that the vendor was guilty of laches in not giving notice to the vendee of the non-payment of the notes and insolvency of the bankers within a reasonable time; and consequently that the notes operated as a satisfaction of the debt (t). "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” (u). "It is perfectly clear, that a bill of exchange will operate as a satisfaction of a precedent debt, if the holder makes it his own by laches, as by not presenting it for payment when due" (x). 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 held, that the vendor thereby made the bill his own as against the vendee, and caused it to operate as a satisfaction of the debt for which it was originally given (y). An order on a banker to give credit on a future day is not payment until the day arrives (z). 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 held, 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 substituted bill (a). "If a creditor refer a third person to his debtor for payment, intending the third person to take payment in money, and the third (t) Camidge v. Allenby, 6 B. & C. 373. See Rogers v. Langford, 1 C. & M. 637. (u) Per Bayley, J., in Camidge v. Allenby, 6 B. & C. 382. See Plimley v. Westley, 2 B. N. C. 249. (a) Per Lord Tenterden, C. J., 3 B. & Ad. 663. (y) Alderson v. Langdale, 3 B. & Ad. 660. Secus, if the vendor draws, and the vendee accepts, a bill of exchange in payment for goods, which bill is subsequently altered by the drawer in a material part. Atkinson v. Hawdon, 2 A. & E. 628. (z) Pedder v. Watt, B. R. H. 36 Geo. III., L. P. B. 98, Dampier, MSS., L. I. L. (a) Bishop v. Rowe, 3 M. & S. 362. person, instead of taking payment in money, takes payment in any other way, he does it at his peril" (b). Although a creditor has right to insist on payment to himself or his appointee, yet having once given an order for the payment of his debt to a third person, he has no right to revoke that order, provided there be a pledge by the person to whom the authority is given that he will pay the debt according to the authority (c). Where to a declaration on a guarantee by the defendant for the payment of goods to be supplied to S., with an averment that plaintiff supplied S. with goods to the amount of 787., that S. did not pay, nor did defendant, after notice; it was pleaded, that S. did pay the sum in the declaration mentioned, in full satisfaction and discharge, &c., and that plaintiff received the same. Plaintiff replied, that S. did not pay, nor did plaintiff receive the said sum in the declaration mentioned, in full satisfaction and discharge; it was held, that the pleadings did not confine the plaintiff in his proof to the 787.; but that after proof by defendant, that S. had paid 781., plaintiff might, without having new assigned, give evidence of a balance unpaid beyond the 781. Moses v. Levy, 4 Q. B. 213. When the defendant pleads that he paid, and the plaintiff accepted monies in full satisfaction, a replication alleging that the plaintiff did not accept the monies in full satisfaction, (or, a joinder of issue under s. 79 of the Comm. Law Proc. Act, 1852,) puts the payment as well as the acceptance in issue (d). 6. Payment into Court. 6. Payment into Court.-By 15 & 16 Vict. c. 76, s. 70, "It shall be lawful for the defendant in all personal actions, (except actions for assault and battery (e), false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation (ƒ), or debauching of the plaintiff's daughter or servant,) and, by leave of the court or judge, upon such terms as they or he may think fit, for one or more of several defendants, to pay into court a sum of money by way of compensation or amends." The above section applies only "where the money is paid in satisfaction of the cause of action" (g). It cannot therefore be pleaded to an action on a bond, alleging breaches, under the 8 & 9 Will. III. c. 11 (h). The whole penalty, however, may be paid into court (i). If the defendant usurps the privilege of paying into court, when not entitled to do so, the plaintiff's remedy money is by an application to the court or a judge (k). By s. 71, "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:-"The defendant, by his attorney, parcel of and [or, in person, &c.] [if pleaded to part, say, 'as to £ the money claimed'], brings into court the sum of £says, that the said sum is enough to satisfy the claim of the plaintiff in respect of the matter herein pleaded to." The above form is to be adopted in all cases (k), and the words "as near as may be," "mutatis mutandis," "only authorize such alteration as may be necessary in order to adapt the plea to the names of the parties, to the form of action, to the sum paid, and the like” (1). When money is paid into court, under the general indebitatus counts, such payment operates only as an admission that the plaintiff is entitled to recover, in respect of some contract, to the extent of the money so paid in (m): but where the plaintiff declares on a special contract, a payment into court admits the contract as declared on, i. e. the material parts of it (n). Hence, where in an action against two, money is paid into court by both defendants, under the above section, the plaintiff, in order to recover damages beyond the sum paid in, must show, not only that his demand, in respect of which the money is paid into court, exceeds the amount paid in, but that the defendants are joint contractors (o). Debt for rent on a demise for years, with an indebitatus count for fixtures sold; the plaintiff claimed by his particulars 51. 5s. for rent, and 127. for fixtures. The defendant paid 117. 5s. into court, on the whole declaration, and pleaded nunquam indeb. ultra. It was held to be no admission of the defendant's liability in respect of fixtures, to a greater amount than had been paid into court. Goff v. Harris, 5 M. & G. 573. By s. 73, "The plaintiff, after delivery of a plea of payment of money into court, shall be at liberty to reply to the same by accepting the sum so paid into court in full satisfaction and discharge of the cause of action in respect of which it has been paid in; and he shall be at liberty, in that case, to tax his costs of suit, and in case of non-payment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed; or the plaintiff may reply, that the sum paid into court is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is 53. (i) Brangwin v. Perrot, 2 W. Bl. 1190. (k) Thompson v. Sheppard, 4 E. & B. (1) Per Cur., Aston v. Perkes, 15 M. & W. 390. (m) Steavenson v. Corporation of Berwick, 1 Q. B. 154. (n) Cooper v. Blick, 2 Q. B. 915; and see Attwood v. Taylor, 1 M. & G. 279. (0) Archer v. English, 1 M. & G. 873. pleaded; and, in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit." Under the above section, where money paid into court is taken out in satisfaction of part only of the plaintiff's demand, there being other issues upon which the parties are proceeding to trial, the plaintiff is not entitled to tax his costs (p). Where money was taken out of court by mistake, and the plaintiff's costs taxed and paid, an application subsequently made by the plaintiff for leave to set aside the replication and all subsequent proceedings, to amend his declaration and particulars, on payment of costs and refunding the money already received, with liberty to the defendant to plead de novo, was granted and confirmed by the court. Emery v. Webster, 9 Exch. 242. 7. Release. 7. Release.-Defendant may plead a release after promise, and before action brought (q). The usual replication to a plea of release is non est factum. A release, upon performance of the promise in part quoad hoc, will not discharge the promise for the residue (r). If after the last continuance the plaintiff' give the defendant a release, he may plead it in bar (s). A plea that before breach, the plaintiff exoneravit the defendant of the said promise, was held good on demurrer, on the ground that a promise by words might be discharged by words before breach, “ eodem modo quo oritur, eodem modo absolvitur." Langden v. Stokes, Cro. Car. 383; and this decision was recognized in King v. Gillett, 7 M. & W. 55; in which case, to a declaration for a breach of promise of marriage, the defendant pleaded that after the promise, and before any breach thereof, the plaintiff exonerated and discharged him from his promise, and on demurrer, the plea was held good; and see Dobson v. Espie, 2 H. & N. 79. The 15 & 16 Vict. c. 76, s. 69, enacts, that in cases in which a plea puis darrein continuance has heretofore been pleadable in Banc, or at Nisi Prius, the same defence may be pleaded with an allegation, that the matter arose after the last pleading, and such plea may, when necessary, be pleaded at Nisi Prius between the 10th of August and 24th of October; but no such plea shall be allowed unless accompanied by an affidavit that the matter thereof arose within eight days next before the pleading of such plea, or unless the court or a judge shall otherwise order." A plea puis darrein continuance must in all cases be accepted by (p) Cauty v. Gyll, 4 M. & G. 907; 12 Pr. R. Hil. T. 1853. (4) See the form, Sched. B. to 15 & 16 Vict. c. 76, "That after the alleged claim accrued and before this suit the plaintiff by deed released the defendant there- (r) 2 Roll. Abr. 413 (H.) 1. 2. |