opinion that an agent employed to sell has no authority, as such, to receive payment. Mynn v. Joliffe, 1 M. & Rob. 326. And an auctioneer, though he is authorised to receive the deposit, has no general authority to receive the purchase-money. Sykes v. Giles, 5 M. & W. 645.

Where a creditor directs his debtor to transmit money by the post, and it is lost, the creditor must bear the loss; Warwicke v. Noakes, Peake, 67.; and where no directions are given about the mode of remittance, yet, this being done in the usual way of transacting business, it seems that the debtor is discharged. Per Lord Kenyon C. J., ibid. It has been ruled that if the letter is delivered to the bellman in the street, and is lost, it is no payment. Hawkins v. Rutt, Peake, 186. But this decision appears to be at variance with Pack v. Alexander, 3 Moore & S. 789.

A payment to one of several persons (not partners) without the authority of the others, who have deposited money in a bank, is not good as against the others. Innes v. Stephenson, 1 M. & Rob. 145.; Stewart v. Lee, M. & M. 158. But a payment to one partner is payment to all, and a receipt by one is prima facie evidence against all; but they may show that it was given fraudulently to defeat the action. Farrar v. Hutchinson, 9 A. & E. 641.

Payment by an attorney to a creditor will support an averment of payment by the principal, though the latter has not repaid his attorney, but has only given him a promissory note. Adams v. Dansey, 6 Bing. 506. In assumpsit for money lent, payment was pleaded; the plaintiff new assigned, and the defendant pleaded non assumpsit to the new assign, ment: The plaintiff at the trial claimed 157. for money lent in August, 1833, and proved an acknowledgment by the defendant after that time that he owed the plaintiff 157.: The defendant gave evidence of his having paid the plaintiff 157. in October, 1833. The Court held that the proper question for the jury was, whether or not there had been two debts; and that the defendant was not precluded from taking this point by the evidence of payment which he had produced at the trial. Hall v. Middleton, 4 A. & E. 107.

Application of payments.] In general, the party who pays money has a right to direct the application of it; but where money is paid to a creditor generally without any specific appropriation by the party paying, and the creditor has several demands against the party paying, he may apply the money paid to which of those demands he pleases. Hall v. Wood, 14 East, 243. (n). ; Clayton's case, 1 Merivale, 572. The creditor need not apply it to any particular demand at the moment of payment, but has a right to make the application at a subsequent period; nor will an entry in his books, applying it to a particular demand, but not communicated to the party paying, preclude him from applying it afterwards to another demand. Simson v. Ingham, 2 B. & C. 65. See also Grigg v. Cocks, 4 Simons, 438. The creditor may apply the payment to the discharge of a prior and purely equitable demand, and sue his debtor at law for the subsequent legal debt. Bosanquet v. Wray, 6 Taunt. 597.; but see Birch v. Tebbutt, 2 Stark. 74. He may apply it to a debt barred by the Statute of Limitations; though such payment will not take the whole debt out of the statute. Mills v. Fowkes, 5 New Ca. 455. So where the party paying is indebted to the party receiving for a sum due from his wife dum sola, and also on an

other demand, the party receiving may apply the money to the first demand. Goddard v. Cox, 2 Stra. 1194.

Per

In some instances the law will direct the application of money paid generally. Thus, 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 of the old and new firm in one entire account, the payments, made from time to time by the surviving partners, must be applied to the old debt. Bayley J., Simson v. Ingham, 2 B. & C. 72.; Clayton's case, 1 Merivale, 572.; Brooke v. Enderby, 2 B. & B. 71. So payments by a debtor to surviving partners, from time to time, upon one general account including an old debt due to the former firm, are to be applied, in the first place, to such old debt. Bodenham v. Purchas, 2 B. & A. 39. But where the old debt is not brought into the new account, general payments on the new account are not to be considered as made in dis. charge of the old debt. Simson v. Ingham, 2 B. & C. 65. And where there are distinct demands, one against persons in partnership, and another against one only of the partners, if the money paid be the money of the partners, the creditor is not at liberty to apply it to the debt of the individual. Thompson v. Brown, M. & M. 40. Where payments are made upon one entire account, they are to be considered as payments in discharge of the earlier items. Per Bayley J., Bodenham v. Purchas, 2 B. & A. 46. So a general payment must be applied to a prior legal, and not to a subsequent equitable demand. Goddard v. Hodges, 1 C. & M. 33. 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 payments were made from time to time by the principal, in respect of some of which discount had been allowed for prompt payment (the goods having been sold on credit), it was held that it was to be inferred in favour of the surety, that the payments were in liquidation of the latter account; Marryatts v. White, 2 Stark. 101.; but the law will not, in favour of a surety, direct the application of money paid generally in discharge of the debt secured, without some circumstances to show that it was so intended. Plomer v. Long, 1 Stark. 153.; Williams v. Rawlinson, 3 Bing. 71.

When A. has a demand against B. as executor, and also another demand against him in his own right, and B. makes a general payment, A. cannot apply it to the former demand; Goddard v. Cox, 2 Stra. 1194.; and where there are two demands, one legal, and the other illegal, and a general payment is made, the law will apply it to the discharge of the legal demand. Wright v. Laing, 3 B. & C. 165. But where one of the demands is for spirituous liquors supplied in quantities not amounting to 20s. at a time, the party receiving the money may apply it to that demand; the statute 24 G. 2. c. 40. only preventing the seller from maintaining an action. Cruickshanks v. Rose, 1 M. & Rob. 100. And in such a case the creditor may apply the payment to the demand for spirituous liquors, although his particulars claim the whole demand; and he may make the appropriation at any time before the matter comes before the jury. Philpott v. Jones, 2 A. & E. 41.

As to cases in which payment will be presumed, see antè, p. 20-22., and as to the effect of written receipts, see antè, p. 39.

Payment by a bill or note.] If the seller of goods takes notes or bills for them without agreeing to run the risk of the notes being paid, and

they turn out to be worth nothing, this will not be considered as payment. Owenson v. Morse, 7 T. R. 64.; Swinyard v. Bowes, 5 M. & S. 62. But if the seller agree to run the risk of the bill being bad, and to take it as payment or cash, he cannot, on the dishonour of the bill, resort to his original cause of action. Ward v. Evans, 2 Salk. 442. By an agreement entered into between the plaintiff, together with other creditors, and the defendant, the defendant agreed to pay a composition of 15s. in the pound by two instalments, and a surety, in consideration of the creditors agreeing to discharge the defendant from all debts on receiving such composition, agreed to pay a sum of money in part pay. ment of the first instalment, and to accept a bill of exchange drawn by the defendant in part payment of the second, the creditors agreeing to "exonerate and discharge the defendant on payment of the said 15s. in the pound." It was also agreed, that several bills of exchange, the amount of which was equal to the residue of the sum payable on the composition, which had been before indorsed by the defendant, and handed over to the plaintiffs, should be considered as part payment of the said 15s. in the pound. It was held, that the bills left in the hands of the plaintiffs were not, under this agreement, to be considered as an absolute payment, unless they were paid when at maturity, and, one of them having been dishonoured, that the defendant remained liable upon his indorsement. Constable v. Andrew, 2 C. & M. 298. Where a purchaser gives the seller an order upon a third person entitling him to receive cash, instead of which the vendor elects to take a bill, in such case, though the bill is dishonoured, the purchaser is discharged. Vernon v. Boverie, 2 Show. 296.; Smith v. Ferrand, 7 B. & C. 19. But it is otherwise if the order is upon the purchaser's agent, and the seller takes from him a check which is dishonoured. Everett v. Collins, 2 Camp. 515. Where the master of a vessel took from the freighter's agent abroad, who was furnished with funds to pay him the freight, a bill upon a third person, which was dishonoured, it was held by Gibbs C. J., that the freighter was not thereby discharged. Marsh v. Pedder, 4 Camp. 257. Payment is not proved by the sending of a check to the plaintiff, which purported to be the balance of an account; for acceptance of such a check might operate as an admission of the balance; and the payee of such a check need not present it, or, semb., return it but it would be otherwise if the plaintiff had accepted it as cash. Hough v. May, 4 A. & E. 954.

Payment by bills is primâ facie evidence of payment, without showing that such bills were paid; it is for the plaintiff to show that they have been dishonoured. Hebden v. Hartsink, 4 Esp. 46.; Stedman v. Gooch, 1 Esp. 4. Where the purchaser gave the seller an order on his banker for a "good bill on London," to the amount of the goods, and the seller took a bill which was afterwards dishonoured, Lord Kenyon held that it was incumbent on the seller to take care that he got a good bill, and that he could not on its being dishonoured have recourse to his demand for goods sold. Bolton v. Reichard, 1 Esp. 106. But this case is probably misreported; see Taylor v. Briggs, M. & M. 28., and note, ibid. Where goods were sold without recourse to the buyer in case of non-payment, to be paid for by E.'s bill on P., and the vendee knew the bill to be worth nothing, it was held that the vendor could not sue in assumpsit for the price of the goods, but that his remedy was an action of tort. Read v. Hutchinson, 3 Camp. 352. Where a bill, indorsed in blank, is taken by the vendor for goods, and lost before it is

paid, the vendor can neither recover for the price of the goods nor upon the bill. Champion v. Terry, 3 B. & B. 295. But where the purchaser of goods accepted a bill drawn in favour of the seller, who lost it before he indorsed it, it was held that this was no defence in an action for the value of the goods. Rolt v. Watson, 4 Bing. 273.

Payment of Money into Court.

The cases decided upon the effect of this plea have been referred to in the first part, p. 45—47.

Release.

A release must, by the new rules, be specially pleaded. After breach, the contract can only be discharged by a release under seal; but before breach it may be discharged by parol, ante, p. 16.

Though a release of the whole debt, given to one of two joint con tractors, enures to the benefit of both, yet receiving a portion of a debt and putting an end to an action against one of the contractors, is not a release of the other. Watters v. Smith, 2 B. & Ad. 889. So a release under seal to one may reserve the right of proceeding against the other. Solly v. Forbes, 2 B. & B. 38. But where the right is not reserved in the release itself, parol evidence of the reservation cannot be given. Cocks v. Nash, 9 Bing. 341.. A covenant not to sue will support a plea of release; but a covenant by one of several joint creditors not to sue the defendant is not pleadable as a release to an action by all. Walmesley v. Cooper, 11 A. & E. 216.

A discharge of one joint and several debtor is a discharge of all. Nicholson v. Revill, 4 A. & E. 675.

The plaintiff lent the defendants and others, co-adventurers in a mine, a sum of money on the security of a note for the amount by the defendants alone. He afterwards signed a composition deed with the adventurers, which provided that, if he should sue any of them for their debt due to the plaintiff it should operate as a release of the debt. Held, that the debt due from the defendants to the plaintiff on the note was not released by suing on it, such note not being a debt due from the whole body of adventurers. Lanyon v. Davey, 11 M. & W. 218.

Set-off.

A set-off must, by the new rules, be specially pleaded. Graham v. Partridge, 1 M. & W. 395.

The plea of set-off is not divisible. If, therefore, it be pleaded to the whole demand, and it is not proved to be at least equal to the amount which the plaintiff proves to be due, the plaintiff will have a verdict, though the amount actually proved will go in reduction of damages. Moore v. Butlin, 7 A. & E. 595. But if the plea is pleaded with other pleas, and the defendant under his other pleas reduces the demand down to the amount covered by the set-off, then the defendant is entitled to a verdict on this plea. S. C., and Tuck v. Tuck, 5 M. & W. 109. See antè, p. 50. and p. 323.

The common replication to a plea of set-off will enable the plaintiff to prove any defence to it that would have been admissible before the late rules of pleading; for those rules do not apply to replications. Jackson v. Robinson, 8 Dowl. P. C. 622. But where the plaintiff replied nunquam indebitatus, the plaintiff was held not entitled to prove pay

ment; for on that issue the defendant was only put to prove that a debt once existed. Brown v. Daubeny, 4 Dowl. P. C. 585.

Where the defendant has been obliged to finish work which the plaintiff had contracted to do, and for which he seeks to recover in indebitatus, the amount laid out by the defendant cannot be pleaded as a set-off, but is matter of deduction on the general issue. Turner v. Diaper, 2 M. & G. 241.

When the plea does not cover the whole demand, but goes only in reduction of damages, the plaintiff, when he takes a verdict for the balance, should apply to have a special indorsement on the postea in order to protect him from an action for the amount allowed under the set-off. Jervis's New Rules, p. 405. n. (a.), 4th ed.

It is only necessary to plead a set-off where there are cross demands; for where the nature of the employment or dealings necessarily constitutes an account consisting of receipts and payments, debts, and credits, the balance only is the debt. See Green v. Farmer, 4 Burr. 2221., and Le Loir v. Bristow, 4 Camp. 134.

The defendant pleaded by way of set-off a bond given to him by the plaintiff, conditioned for payment of an annuity to a third person which had been previously granted by the defendant, and that a certain sum was in arrear; it was held that the defendant was not bound to prove that he had paid the money, in order to set it off, but that on production of the bond the plaintiff was bound to prove payment. Penny v. Foy, 8 B. & C. II.

Where the defendant pleads a set-off the plaintiff is not obliged to prove the whole of his account in the first instance, but may prove only the balance, and, on the defendant's establishing his set-off, may prove other parts of his account to cover it. Williams v. Davies, 1 Č. & M. 464.

The allowance of a set-off on the plaintiff's particular will not dispense with a plea of set-off, but will be evidence of it when pleaded. If, however, the defendant uses the particular for this purpose, the whole account, as stated by the plaintiff in it, must be submitted to the jury. Rowland v. Blaksley, 1 Q. B. 403.

Where the particular of set-off claimed on an “acceptance" of the plaintiff, and it was in fact an indorsement by him, the variance was held immaterial, the amount and date being sufficient to prevent the plaintiff from being misled. Parsons v. Wilson, 3 M. & G. 445.

Nature of the debt set off, and of the debts against which it is set off] In cases where either of the debts shall accrue by reason of a penalty in any bond or specialty, the plea must show how much is justly due on either side; 8 G. 2. c. 24. s. 4. The demand intended to be set off must be liquidated. Freeman v. Hyett, 1 W. Bl. 394. Thus a guarantee, though of a sum certain, cannot be set off. Crawford v. Stirling, 4 Esp. 207.; Morley v. Inglis, 4 New Ca. 58. So in an action by a servant against his master for wages, the latter cannot set off the value of goods lost by the negligence of the former; but if it should be proved to be part of the original contract, that the servant should pay, out of his wages, the value of his master's goods lost through his negligence, this would be tantamount to an agreement that the wages should be paid only after deducting the value of the things so lost, which, in an action of indebitatus assumpsit, would be a good defence under the