decided, rendered the contract of sale voidable by the other party. It is true that Pollock, C. B., in delivering the judgment of the Court observes that "the doctrine of caveat emptor applies not at all to the title of the plaintiff, but to the condition of the goods;" *this remark, as we should submit, was irrelevant, reference [*637] being made to the facts as disclosed upon the pleadings, and is directly opposed, as well to those earlier authorities, which we have already cited, as to the judgment subsequently given in the case of Ormrod v. Huth,' where it is laid down, that the rule of caveat emptor applies whenever a representation is made, which, though not true in point of fact, is believed at the time to be true by the party making it; and where it is observed that, "although the cases may in appearance raise some difference as to the effect of a false assertion or representation of title in the seller, it will be found on examination that in each of those cases there was either an assertion of title embodied in the contract, or a representation of title which was false to the knowledge of the seller."

In the preceding remarks upon the maxim caveat emptor we have confined our attention to those classes of cases to which alone it appears to be strictly applicable, and in connexion with which reference to it is, in practice, most frequently made. This maxim may, indeed, be said to have some application under circumstances altogether dissimilar from those which present themselves in the various decisions to which we have above alluded; where, for instance, a question arises as to what amounts to an acceptance of goods, or as to the performance of conditions precedent to the vesting of the property, or to the right of action. So, where some specified act must be done by the vendor, in order to perfect the transfer of the thing sold, or wherever the *right and title to property are disputed as between the original owner and the assignee or bailee [*638] of some subsequent holder," the principle set forth by the maxim caveat emptor, may, perhaps, be thought in some measure applicable. A consideration of the above topics, however, although necessary in a treatise upon contracts generally, would evidently have been out of place in the present volume, and irrelevant to its imme

114 M. & W. 651.(*)

2 See Curtis v. Pugh, 16 L. J., Q. B. 199.

3 Kingdom v. Cox, 2 C. B. 661; E. C. L. R. 52.

4 See Wilkinson v. Lloyd, 7 Q. B. 27; E. C. L. R. 53; Leeman v. Lloyd, 14 L. J., Q. B. 165; per Erle, J., Ross v. Moses, 1 C. B. 232; E. C. L. R. 50; Gregory v. The East India Company, 7 Q. B. 199; E. C. L. R. 53.

5 See Cooper v. Willomatt, 1 C. B. 672; E. C. L. R. 50; ante, p. 361.

diate design. We have not, therefore, extended our inquiries beyond the subject of warranty on the sale or demise of property, and have examined those decisions only which seemed best calculated to throw light upon the question, whether or not the vendee has a remedy against the vendor for a defect either in the title to or quality of the subject-matter of the sale.

QUICQUID SOLVITUR, SOLVITUR SECUNDUM MODUM SOLVENTIS— QUICQUID RECIPITUR, RECIPITUR SECUNDUM MODUM RECIPI

ENTIS.

(Halk. M., p. 149.)

Money paid is to be applied according to the intention of the party paying it; and money received according to that of the recipient.

"According to the law of England, the debtor may, in the first instance, appropriate the payment-solvitur in modum solventis; if he omit to do so, the creditor may make the appropriation-recipitur in modum recipientis; but if neither make any appropriation, the law appropriates the payment to the earlier debt;"" and again, "where a *creditor receives, without objection, what is offered [*639] by his debtor, solvitur in modum solventis, and it must be implied that the debtor paid it in satisfaction-where the creditor objects, recipitur in modum recipientis, and issue taken on the receipt in satisfaction is impliedly an issue on the payment in satisfaction." Thus succinctly is the law relating to the above maxim explained by Tindal, C. J., in two recent cases, and, in accordance with this explanation, it has been held, that, where the defendant being indebted to the plaintiff for goods supplied to his wife dum sola, and to himself after coverture, made a payment without any specific appropriation, the plaintiff might apply the money in discharge of the debt contracted by the wife dum sola; that where part of a debt was barred by the Statute of Limitations, a payment of money made generally might be applied in liquidation of that part, and that a creditor receiving money without any specific ap

1 Mills v. Fowkes, 5 Bing., N. C. 461; E. C. L. R. 35; per Bayley, J., 2 B. & C. 72 ; E. C. L. R. 9; per Sir L. Shadwell, V. C. E., Greenwood v. Taylor, 14 Sim. 522; Toulmin v. Copland, 2 Cl. & Fin. 681. See James v. Child, 2 Cr. & J. 678; Newmarch v. Clay, 14 East, 239; Id. 243 (c).

2 Webb v. Weatherby, 1 Bing., N. C. 505; E. C. L. R. 27.

3 Goddard v. Cox. 2 Stra. 1194.

4 Mills v. Fowkes, 5 Bing., N. C. 455; E. C. L. R. 35; Williams v. Griffith, 5 M. & W. 300.(*)

propriation by the debtor, shall be permitted in a court of law to apply it to the discharge of a prior and purely equitable debt.' Moreover, it has been held that the creditor is not bound to state at the time when a payment is made, to what debt he will apply it, but that he may make such application at any period before the matter comes under the consideration of a jury.2

But although it is true that where there are distinct accounts and a general payment, and no appropriation made *at the time

of such payment by the debtor, the creditor may apply it to [*640]

3

which account he pleases; yet, where the accounts are treated by the parties as one entire account, this rule does not apply. For instance, in the case of a banking account, where all the sums paid in form one blended fund, the parts of which have no longer any distinct existence, 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 the account. Presumably, it is the sum first paid in that is first drawn out. It is the first item on the debit side of the account that is discharged or reduced by the first item on the credit side. The appropriation is made by the very act of setting the two items against each other. Upon that principle all accounts current are settled, and particularly cash accounts. In like manner, 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 the new firm in one entire account, then the payments made from time to time by the surviving partners must be applied to the old debt. In that case it is to be presumed that all the parties have consented that it should be considered as one entire account, and that the death of one of the partners has produced no alteration whatever. It must be borne in mind, notwithstanding the preceding remarks, that, although the payment of money on account generally, without making a specific appropriation of it, *would, in many cases, go to discharge the first part of an account,

[*641]

1 Bosanquet v. Wray, 6 Taunt. 597; E. C. L. R. 1. In Goddard v. Hodges, 1 Cr.

& M., 33, (*) it was held that a general payment must be applied to a prior legal, and not to a subsequent equitable demand.

2 Philpott v. Jones, 2 Ad. & E. 41; E. C. L. R. 29.

3 Per Bayley, J., Bodenham v. Purchas, 2 B. & Ald. 45.

Per Sir Wm. Grant, M. R., Clayton's case, 1 Mer. 608; Bodenham v. Purchas, 2

B. & Ald. 39; Judgment, Henniker v. Wigg, 4 Q. B. 794; E. C. L. R. 45.

5 Per Bayley, J., Simson v. Ingham, 2 B. & C. 72; E. C. L. R. 9.

yet that rule cannot be taken to be conclusive-it is evidence of an appropriation only; and other evidence may be adduced, as of a particular mode of dealing, or of an express stipulation between the parties which may vary the application of the rule.1

Where a person has two demands, one recognised by law, the other arising on a matter forbidden by law, and an unappropriated payment is made to him, the law will afterwards appropriate it to the demand which it acknowledges, and not to the demand which it prohibits.2

Again, where a person bought two parcels of goods of a broker, the property of différent persons, and paid generally to the broker a sum larger than the amount of either demand, but less than the two together, and afterwards the broker stopped payment; it was held that such payment ought to be equitably apportioned as between the several owners of the goods sold, who were only respectively entitled to recover the difference from the buyer.3

The following remarks made in a recent case, will serve to show some additional important limitations of the maxim under consideration. "If, in the course of dealing between A. and B., various debts are from time to time incurred, and payment made by B. to A., and no acknowledgment is made by A., nor inquiry by B. how the pay

ments are *appropriated, the law will presume that the pri[*642] ority of debt will draw after it priority of payment and satisfaction, on the ground that the oldest debt is entitled to be first satisfied. That doctrine is recognised in Devaynes v. Noble, but the principle was never applied to cases where the obligations were alio jure, nor to other cases, as, for instance, where in dealings between B. and C. the latter directs B. to receive moneys due to him, the law will not presume an appropriation of these moneys to the payment of a debt due to A. and B. in the absence of any specific directions."s

1 Judgment, Wilson v. Hirst, 4 B. & Ad. 767; E. C. L. R. 24; Henniker v. Wigg, 4 Q. B. 792; E. C. L. R. 45.

2 Judgment, Wright v. Laing, 3 B. & C. 171; E. C. L. R. 10. Payment into Court is an admission of, and will be applied to, a legal demand only: Ribbans v. Crickett, 1 B. & P. 264. See Philpott v. Jones, 2 Ad. & E. 41; E. C. L. R. 29. Where there had been a running cash and bill account between a bankrupt and a banking company, "the Court will appropriate the early payments to the early items of the account, and to the legal and not the illegal part of the demand:" Ex parte Randleson, 2 D. & C. 534, 540.

3 Favenc v. Bennett, 11 East, 36.

4 1 Meriv. 608.

5 Per Lord Brougham, C. Nottidge v. Prichard, 2 Cl. & Fin. 393.

Where a bill of exchange or promissory note has been given by a debtor to his creditor, it is not unfrequently a matter of some difficulty to determine whether the giving of such instrument should be considered as payment, and as operating to extinguish the original debt; or whether it should be regarded merely as security for its payment, and as postponing the period of payment until the bill or note becomes due. Upon this subject, which is one of great practical importance, the correct rule is thus laid down by Lord Langdale, M. R.:-"The debt," says his Lordship, "may be considered as actually paid if the creditor, at the time of receiving the note, has agreed to take it in payment of the debt, and to take upon himself the risk of the note being paid; or if, from the conduct of the creditor, or the special circumstances of the case, such a payment is legally to be implied. But in the absence of any special circumstances throwing the risk of the note upon the creditor, his receiving the note in lieu of present payment of the debt, is no more than giving extended credit, postponing the demand for immediate payment, or giving time for payment on a future day, in consideration of receiving this species of security. While the time runs, payment cannot legally be enforced, but the debt continues [*643] till payment is actually made; and if payment be not made when the time has run out, payment of the debt may be enforced as if the note had not been given. If payment be made at or before the expiration of the extended time allowed, it is then for the first time that the debt is paid.”1

In connexion with the preceding remarks, we may be permitted to remind the reader of the distinction which exists between a payment "on account," and a payment "in satisfaction and discharge" of a debt due, in the former case the original right of action being suspended merely, and in the latter being altogether extinguished.2

QUI PER ALIUM FACIT PER SEIPSUM FACERE VIDETUR.
(Co. Litt. 258, a.)

He who does an act through the medium of another party is in law considered as doing it himself.

The above maxim enunciates the general doctrine on which the law relative to the rights and liabilities of principal and agent de

1 Sayer v. Wagstaff, 5 Beav. 415; recognised, In re Harries, 13 M. & W. 3; (*) per Lord Kenyon, C. J., Stedman v. Gooch, 1 Esp. 5; cited 6 Scott, N. R. 945.

2 See Sibree v. Tripp, 15 M. & W. 23 ;(*) Sard v. Rhodes, 1 M. & W. 153.(*)