1 loss of such originals as were to be recorded in future; all that the clause appears to require, as necessary, is, that such originals should be proved before a justice of the peace before they are recorded. It was therefore ordered, that the rule be discharged; but having afterwards considered the great hardship of the defendants' case, who had trusted to the practice which before prevailed, they consented that there should be a new trial, in order to give the defendants an opportunity of producing their original deeds, and proving them by the subscribing witnesses. 1795. Purvis V. Robinson. The Executors of HUGER against BoCQUET.* : DEBT on three bonds, all dated the 21st of April, 1774 one bond for 2,000/. currency, payable the 1st of July, 1774; one do. for 7,000l. do. 1st of April, 1775; one do. for 7,000l. do. do. 1776. enough to pay first, those two shall be considered as the law, This matter turned upon the depreciation law. Sundry off the two receipts were produced for sundry sums paid on account of these bonds, from March, 1775, to January, 1780, amount- extinct, under ing together to upwards of 16,000l. currency; and the point cation deprcin dispute was, whether these payments should be carried and the bato the credit of all the bonds, generally, which would leave carried to the them as one entire contract, or to the credit of the two first, third. (which would thereby become extinguished,) and the balance, after being depreciated, to the credit of the third bond? For the defendant, it was contended by Pinckney and Rutledge, that the payments ought to be applied to the extinguishment of the two first bonds, in the first place; and the residue, after being depreciated, to the credit of the third lance shall be credit of the Executors of Bocquet. 1795. bond and interest, as far as it would extend; and that the plaintiffs would then be entitled to a verdict for the balance, and no more. That to settle it in any other manner, would make an amazing difference in the sum now really due, as the whole of the contracts would then remain unsettled, and the payments must be depreciated; whereas, to settle it in the manner they insisted on, would be extinguishing the two first contracts, and would leave only the third and last, a subsisting one. This, they further contended, was agreeable to the nature and order of things, that the bonds first due, should be paid off first, and the one due at the latest period, last. That he who pays the money, has a right to direct the application of it; or to what purpose it ought to be applied; and for that purpose quoted 1 Esp. 357. Cro. Eliz. 68. They further quoted Wane and Wade's case; the case of Fitzsimons v. Ashe; Whippy v. Ashe; and Chisolm v. Gillon; in all which cases the courts had determined agreeable to these principles. Pringle, for the plaintiffs, contended, that the bonds bearing all the same date, and for one entire purchase, could be considered as only one contract, although payable at different days; and if any part remained due, the whole was to be considered as a subsisting contract at this day, and ought to be settled accordingly, after giving credit for the payments, agreeable to the depreciation law. He relied on the case of Murphy v. Thompson, at Georgetown, where two bonds out of four, being paid off, a suit upon the third bond was dismissed, as more than two-fifths, under the instalment law, were paid off. He also contended that the case of Wade and Wane was not the opinion of the court, only the fluctuating opinion of a jury, which might be contradicted by another jury. By the Court, unanimously. (Present, the CHIEF JUSTICE, BURKE and BAY, Justices.) The payments ought, in the first place, to be applied to the extinguishment of the two first bonds, and the balance to the credit of the last bond. The case of Murphy v. Thompson, quoted from Georgetown, was a case under the instalment law, and respected the commencement of a suit, when it was alleged two-fifths of the original debt had been paid off; but it did not go to the extinguishment of any part of the debt under the depreciation law. The case of Wane and Wade had been determined by a special jury, on very just and legal principles, and all the other cases quoted by the defendant's counsel, have confirmed the doctrine ever since. The jury found the two first bonds paid off, and carried the balance of payment to the credit of the last bond. 1795. Executors of V. Bocquet. BAYLY against LAWRENCE.* of COVENANT for rent in arrear, brought on a lease of a ship-yard at Hilton-Head, for 10 years, dated the 6th June, 1774. Defence-that the defendant was driven off by the casualties of war, and deprived of the enjoyment. Resolved, Per Cur. That the defendant ought to pay for the time he peaceably enjoyed the premises, but not for any time he was prevented by the casualties of war. * This case was omitted among those of 1792. The STATE against GAILLARD.* Under the CASE for 12 per cent. on the defendant's estate, under amerciament act, although the amerciament law. the defendant is precluded Discount pleaded to the whole of the demand, for sundry from recover- articles taken for the use of the American army, during the ing any thing against the state, unless his account is delivered in in war. To which it was objected, that as Gaillard had not given time: yet he in his account to the commissioners, within the time mencan defend himself against tioned in the act of 1785, he was now precluded from it. By the Court. Although the defendant is by that law precluded from recovering any thing from the state, yet he may still defend himself against the state to the amount of its demand. He is not entitled however, to the balance which his account exceeds the demand of the state, under the discount law, though he is entitled to a verdict in his favour. Verdict for the defendant, but without costs. * This case was omitted among those of 1792. The Executors of HATFIELD against KENNEDY.* and several sue either of the obligors, though one of at his election, them sign his DEBT on bond, assigned to Mr. Rivers. A special ver- Upon a joint dict in this case found, that the bond in question was a joint bond, the and several bond from John Hammilton and James Ken- plaintiff may nedy to the deceased Hatfield, and that Kennedy, the defendant, signed his name as security; therefore, submitted to the judgment of the court, whether the plaintiffs could go against the security, until the other obligor was proceeded against to insolvency. The special verdict also found, that when this bond was signed, Hammilton gave a mort- debt, makes gage of sundry negroes to secure payment, which had been for wherever assigned over to Mr. Rivers, with the bond in question. name as secuobligee having for the same rity. That the a mortgage no difference; the plaintiff has different remedies, he one, or all of same time; 401. have Pinckney, for the defendant, contended, that the defend- may ant ought to be considered in this case, only as a collateral them, at the undertaker, or bail; in both which cases, he only became tho' he shall liable upon the failure of the principal. That this must have never double damabeen the obvious intent and meaning of the defendant when ges. Dong. he signed his name as surety, which ought to govern; and that the very import of the term security, conveyed only the idea of a warranty in case of insolvency, agreeable to the civil law. 1 Dom. 374. 377. That at all events, as the mortgage was not foreclosed and the negroes sold, Mr. Kennedy was not liable till that was done, in order that he might know whether there was any, and what deficiency, to make up. Hall, for the plaintiffs, insisted that the addition of the word security, under the defendant's name, to the bond, did not alter the binding nature of the bond, which was joint and several. That both were equally principals; and that there was nothing in the bond itself, or the condition, which specified that he was only a collateral undertaker, or warranted only in default of Hammilton, the other obligor, and that the law would warrant no such construction. * This case was omitted among those of 1793. |