Page:The American Cyclopædia (1879) Volume XIII.djvu/210

 200 PAYMENT drawn, but the check was kept a week, and then the bank failed, the creditor loses the money by this unreasonable delay. What de- lay is excusable, and what is not, is not settled by any positive rule, but is determined in each case by its own circumstances. If the drawer had no funds in the bank, and no adequate ar- rangement for funds, when he drew the check, it need not be presented at all in order to bind him, because the drawing of such a check, and using it as payment, was itself a fraud upon the creditor. Payment is sometimes made by note ; and if this be a negotiable note, it may be an absolute payment, discharging the origi- nal debt, and leaving the creditor no claim ex- cepting on the note itself. The law of Mas- sachusetts was quite peculiar in this respect ; and as this was the law of Maine when they formed but one state, it continued to be the law of Maine after their separation. At pres- ent some part of this peculiarity remains. It may be said, however, to be the law of those two states, that if negotiable paper is given for the amount of a debt, the presumption of law is that it was given and received as payment thereof ; but this presumption may be rebutted by proof that the parties did not so understand it. But in England and in all the other states, and in the courts of the United States, the presumption of law is against the note being a payment of the debt, without affirmative proof that it was so understood and intended ; but this presumption is changed if the creditor assign the note as his own to a third person. Payment is sometimes made to a third party, to be held by him until some question is de- termined or some right ascertained. Such a third party becomes a stakeholder. For the rights and duties of a stakeholder in a case of wager, see WAGER. But one may be a stake- holder in other ways. Thus an auctioneer may receive from a purchaser a sum of money by way of deposit or security, to be kept by him until the title to the property bought can be investigated ; and to pay it over to the seller if that be good, or to the purchaser if it be bad. If such a stakeholder pays the money over before the question is determined, he pays it in his own wrong, and at his own peril ; for it is his duty simply to hold the money. And it is said that if such stakeholder pays the money to a creditor before his right is deter- mined, the depositor may at once sue him and recover the money without any reference to the state of the question between the creditor and himself. But if the deposit be made by check, the stakeholder may draw the money, and hold it or even use it, without making himself liable for the amount. The law of appropriation of payments is of much impor- tance. It determines the right of applying a payment in one way or in another, or to one debt or to another. The general rule, upon which all others are founded, is, that whoever pays money may direct the appropriation as he pleases ; or, in other words, pay it on such account as he chooses. But if the party pay- ing the money makes no such appropriation, the party receiving it may make such applica- tion of it as he pleases; and if neither party makes any specific appropriation, it rests with the law to make it according as the justice and equity of the whole case may require. These rules are held to apply even where the debts are of very different descriptions. Thus, if A owes B $100 on a bond, and as much more on a note, and as much more on simple book ac- count, and pays $100, the appropriation of this payment shall be determined to one or other of these debts, in accordance with the above rules. As the payer may certainly appropriate the money as he will, if he declines doing so, this gives the payee the power of appropriating it at his pleasure, although in a way adverse to the interest of the payer. Thus, if A's wife owed money to B before marriage, and A also owes B, and A pays B a sum of money with- out specific appropriation, B may apply the money to the debt of A's wife. So, if A owes B two debts, one of which is more than six years old and so is barred, and the other is not, and pays money without appropriation, B may apply it to the debt which A was not legally compellable to pay ; but he cannot by such ap- propriation revive the remainder of the barred debt, and then make B pay the balance. The appropriation, to have full force, must be made at or very near the time when the money is paid. For if either party at some subsequent period finds out what will be to his advantage, and then undertakes to make such a disposition of it, this will not avail him to the disadvantage of the other ; but the law will consider this as a case in which it must make an appropriation because the parties did not. So also an ap- propriation by either party will not affect the other party unless it be communicated to him. Thus, mere entries in the books of either party do not affect the other party ; but if these en- tries were shown to the other party, then they bind him. And although the payment be gen- eral, the creditor cannot make the appropria- tion, provided the debts due to him are due in different rights. Thus, if A, as executor of C, owes B a debt, and also owes him a private and personal debt, and pays money generally, B must appropriate it first to the payment of the private and personal debt. Nor has the creditor the right of appropriation merely be- cause the debtor did not make an appropria- tion, if the payment were made in such a way as to prevent the debtor from appropriating it ; as on his account by some other person, or in any way which impaired his power of exer- cising his right. Where the court makes the appropriation because the parties do not, it will generally favor the creditor so far as to ap- ply it to the most precarious and least secured debt. But if there be two or more debts, and the sum paid will exactly discharge one of them, the court will consider that it was in- tended to pay that debt. If one of the debts