Dec. 22.-THE MASTER OF THE ROLLS:-Four questions are made. First. The assignees claim to be entitled to the remaining purchase money, on the ground that the deeds were in the order and disposition of the bankrupt. For this claim there is no foundation. Secondly. The plaintiff, being creditor in respect of his mortgage debt, and also in respect of a book debt, claims to be entitled to the sum of 3001., which he received on the 19th of November, 1840, in satisfaction of the book debt. In support of his claim, in that respect, he alleges, that nothing was said as to the application of the money which he received, and he insists, that in the absence of express direction, he has a right to make the application most beneficial to himself.[1] But it appears to me, from the nature of the transaction, that English paid this money only in respect of the plaintiff's right to the mortgage, and that it must, from the circumstances, be understood, that English meant the payment to be applied towards satisfaction of the mortgage.[2] .2; [1] That such is the general rule, to which however there are many exceptions, see The United States v. Kirkpatrick, 9 Wheat. 720; Bacon v. Stackpole, 9 Cow. 420; The United States v. Wardwell, 5 Mason, 82; Hillyer v. Vaughan, 1 J. J. Marsh. (Kenty.) Rep. 583; Hammer's Administrators v. Rochester, 2 J. J. Marsh. 145; Burks v. Albert, 4 J. J. Marsh. 97; Bosley v. Porter, id. 621; Bacon v. Brown, 1 Bibb's (Kenty.) Rep. 334; Gass v. Stinson, 3 Sumn. 98, infra, n. Hill v. Sutherland's Executors, 1 Wash. (Va.) Rep. 128. In the absence of an agreement, a creditor receiving a partial payment of a debt, has the right of applying it first to the satisfaction of the interest then due, before it is applied to discharge any part of the principal. Hart v. Dewey, 2 Paige, 207. Campbell v. Graham, 1 Russ. & M. 465. [2] The general doctrine as to the application of payments was discussed by Mr. Justice Story, at some length, in Gass v. Stinson, 3 Sumn. 98, 109, et seq. He says: "There is no doubt, that the doctrine of the common law, as to the appropriation of indefinite payments, has generally been borrowed from the Roman law; and it is deeply to be regretted, that there has been any departure in any of the authorities from its true results. The Roman law is equally simple, convenient and reasonable upon this subject; and for most cases will furnish an easy and satisfactory solution. Sir William Grant in Clayton's case, Devaynes v. Noble, (1 Meriv. R. 604,) has stated the general doctrine of the Roman law in an accurate manner. 'The leading rule' (says he)' with regard to the option given, in the first place to the debtor, and to the creditor in the second, we have taken literally from thence. But, according to that law, the election was to be made at the time of payment, as well in the case of the creditor, as in that of the debtor. If neither applied the payment, the law made the appropriation according to certain rules of presumption, 1843.-Young v. English. Thirdly. The purchasers claim to be entitled to deduct from the purchase money the sum of 671. 2s. 5d., being such depending on the nature of the debts, or the priority in which they were incurred. And, as it was the actual intention of the debtor that would in the first instance have governed; so it was his presumable intention, that was first resorted to as the rule by which the application was to be determined. In the absence therefore of any express declaration by either, the inquiry was, what application would be most beneficial to the debtor. The payment was consequently applied to the most burthensome debt, to one that carried interest, rather than to that which carried none; -to oue secured by a penalty, rather than to that which rested on a simple stipulation ;—and if the debts were equal, then to that which had been first contracted.'” -"Now the whole of this doctrine of the Roman law turns upon the intention of the debtor, either express, implied or presumed; express, when he has directed the application of the payment, as in all cases he had a right to do; implied, when he knowingly has allowed the creditor to make a particular application at the time of payment without objection; presumed, when in the absence of any such special appropriation, it is most for his benefit to apply it to a particular debt. And notwithstanding there are contradictory and conflicting authorities on this subject in the English and American courts, I cannot but think, that the doctrine of the Roman law is, or at least ought to be held, and may well be held, to be the true doctrine to govern in our courts. There is great weight of common law authority in its favor; and, in the conflict of judicial opinion that rule may fairly be adopted which is most rational, convenient, and consonant to the presumed intention of the parties. If the creditor has a right in any case to elect to what debt to appropriate an indefinite payment, it seems to me, that can be only when it is utterly indifferent to the debtor, to which it is applied; and then perhaps, his consent that the creditor may apply it as he pleases, may fairly be presumed. Mr. Justice Cowen, in his learned and elaborate opinion in Pattison v. Hull, (9 Cow. 747,) has examined and criticized all the leading authorities; and manifestly leans in favor of adopting the doctrine of the Roman law throughout. I confess myself strongly inclined the same way; and shall yield only to authorities which I am bound to follow." Where there is no arrangement to the contrary the payment is applicable to the debt bearing interest. Supra. Scott v. Fisher, 4 Monroe's (Kenty.) Rep. 387. Blanton v. Rice, 5 Monroe, 253. Bacon v. Brown, 1 Bibb's (Kenty.) Rep. 334. But the creditor has the advantage of applying the payment first to the extinguishment of the interest. Supra, n. 1. If neither the debtor nor the creditor has made the application of the payments, the court will apply them to the debts for which the security is most precarious. Field v. Holland, 6 Cranch, 8. Blanton v. Rice, ubi supra. Burks v. Albert, 4 J. J. Marsh. (Kenty.) Rep. 97. In the case of a running account between parties, where there are various items of debit on one side, and various items of credit on the other, occurring at different times, and no special appropriation of payments constituting the credits has been made by either party, the successive payments and credits are to be applied in discharge of the items of debit, antecedently due, in the order of time in which they stand in the account. Gass v. Stinson, ubi supra. The United States v. Kirkpatrick, 9 Wheat. 720. The 1843.-Young v. English. [*17] portion of the ground rent due at Lady Day, *1841, as accrued due before possession was given up. The agreement however affords no foundation for this claim, and I am of opinion that it cannot be sustained. Fourthly. Mr. Walker claims to have a lien on the deeds, not only for the costs of completing the purchase, but also for a general bill of costs, which he states that he has against English. The replication to his answer was withdrawn, and the plaintiff has examined him as a witness. The consequence of which is, that his answer must be taken to be true, and the plaintiff must pay him his costs of the cause. He has further contended, that he is entitled to have his claim allowed to its fullest extent; but any question on the subject is, in this case, precluded by the form of the answer, in which Mr. Walker says that he claims such a lien as the court shall consider him entitled to; and having considered what he is entitled to, I am of opinion that his lien extends only to the costs incurred in completing the purchase for which the deeds were placed in his hands.[3] The plaintiff is now seeking the benefit of the purchase in which he acquiesced from the beginning, and he cannot have the remaining purchase money without paying to Mr. Walker the proper costs of the transaction by which it was made available; but to extend the lien further, would be to allow Mr. Walker to United States v. Wardwell, 5 Mason, 82. But the doctrine is limited to debts antecedently due, and not applied to debts which were not due at the time of the pay. ments or credits. McDonell v. The Blackstone Canal Company, 5 Mason, 11. It is presumed that a partner paying a sum of money to his private creditor, who is also a creditor of the partnership, means to pay it on his own private account, unless some circumstances occur which repel or qualify that presumption. Gass v. Stinson, ubi supra. A factor having funds on which he had a lien, was held entitled to apply them to payment of such portion of his debt as accrued after the bankruptcy of his principal, and to prove for the balance under the commission. Ex parte Kensington, 1 Deac. 58. [3] That a solicitor or attorney has ordinarily a lien on his client's papers, for the general balance of his account, see Bozon v. Bolland, 4 Myl. &. Cr. 353; St. John v. Diefendorf, 12 Wend. 261; Blunden v. Desart, 2 Conn. & Law. 111; 2 Kent's Comm. 641; Pal. Pr. & Ag. (ed. by Dunl.) 131, n. (^). But the lien which a solicitor has upon a realized fund is not a general lien, but only a lien for the costs of the suit in which the fund was recovered. Bozon v. Bolland, ubi supra; Perkins v. Bradley, 1 Hare, 231; Hall v. Laver, id. 571. 1843. The Barnsley Canal Company v. Twibell. profit by the fraud of his own client, and that, in a case where a little proper attention on his own part, would have procured him full information of all the circumstances. I think that Mr. Walker is entitled to his costs of the suit, only because the plaintiff has thought proper to examine him as a witness. *Mr. Walker alleging that the purchase money to be [*18] paid by the club was in part for the relinquishment by English of his business as an hotel keeper, has endeavored to resist the plaintiff's claim, on the ground that his lien extends only to so much of the purchase money as ought to be attributed to the leasehold interest in the premises; but in the circumstances of this case, I am of opinion that no such distinction can be maintained. An account must be taken of what remains due to the plaintiff on his mortgage; and in taking the account credit must be given for the sum of 3001. paid on the 19th of November, 1840. An account must also be taken of what remains due from the trustees of the Conservative Club for the purchase money. The costs of the suit and the costs of Mr. Walker in completing the purchase must be taxed: what is due to the trustees and Mr. Walker must be paid; the residue must be paid to the plaintiff towards satisfaction of his mortgage; and on such payment, Mr. Walker must deliver up the deeds to the trustees of the club. *THE BARNSLEY CANAL COMPANY v. TWIBELL. [*19] 1843: May 11; November 17, 18. 1844: January 18. A canal company was authorized, by its act, to purchase the coal which the safety of the canal required to be left unworked. The purchase of part was delayed many years, and in the mean time a lease had been granted by the owner to a coal worker. The company purchased the interest of the owner. Held, that the coal worker was also entitled to compensation. No equity can be founded on an allegation that a court legally constituted is not properly competent to decide questions within its jurisdiction; and where the legislature has given jurisdiction to a court provided by the act, and has made its decision final, if any inconvenience arises from the legal exercise of the jurisdiction, the legislature alone can supply a remedy. A canal act provided, that in case the company and the coal owner could not agree VOL. VII. 3 1843.-The Barnsley Canal Company v. Twibell. as to the amount of compensation for the coal tak n for the purposes of the canal, it should be settled by a jury summoned by the commissioners, whose verdict was "to be conclusive, and should not be removed, by certiorari or other process whatever, into any of the courts of record at Westminister, or any other court." A bill was filed, praying an injunction to restrain proceedings before a jury, on the ground that the defendant was entitled to no compensation, and that the special jurisdiction provided by the act was not so constituted as to be likely to come to a just conclusion. Held, that the plaintiffs were not entitled to an injunction if the defendant was entitled to any compensation, the amount of which had to be ascertained; but whether this court had any jurisdiction to interfere in the matter, if it had clearly appeared that the defendant was entitled to no compensation, quære. Where a plaintiff obtains an injunction on affidavits, the defendant is not wrong in meeting the case by affidavits on a motion to dissolve, although the point might be determined shortly by filing a demurrer. THE case came twice before the court: in the first instance, to obtain, and on the second to dissolve, an injunction to restrai the defenda, his solicitor, &c., from appearing or producing any evidence before a jury which had been summoned, under a canal act, to assess the compensation for the coal which was required to be left unworked for the safety of the canal. By an act passed in the thirty-third year of the reign of George III. (a) the company were incorporated, for the purpose of making a canal from the river Calder to or near to the town of Barnsley, in Yorkshire, with the usual powers to take and hold land; and, in order to fix the price which was to be paid by the company for any lands which they should require, in case the company and the owners should not agree as to the amount of purchase money, commissioners were appointed, who were to call a meeting [*20] and decide all such differences, *upon being requested to do so either by the company or by the owners of the land; and, if either of the parties refused to submit to the decision of the commissioners, they were empowered to issue a warrant to the sheriff of the county of York, commanding him to empannel a jury to assess the amount of compensation to be paid by the company; and it was declared that the verdict of the jury should be conclusive, and should not be removed, by certior ri or other process whatever, into any of the courts of record at Westmin (a) 33 G. 3, c. 110. |