Appraisement.—Application of Payments of Money.

30. In the case of The State of Rhode Island v. The Commonwealth of Massachusetts, the court said: "It has been contended that this court cannot proceed in this cause without some process and rule of decision prescribed, appropriate to the case; but no question on process can arise on these pleadings: none is now necessary, as the defendant has appeared and plead, which plea in itself makes the first point in the case, without any additional proceeding; that is, whether the plea shall be allowed, if sufficient in APPLICATION OF PAYMENTS OF MONEY. law, to bar the complaint, or be overruled, as not being a bar in law, though true in fact." The State of Rhode Island v. The Commonwealth of Massachusetts, 12 Peters, 656.

Application of Payments of Money.

alty of Alexandria v. Patton et al., 4 Cranch, 317; | payments according to its own notions of justice. 2 Cond. Rep. 122. It is, however, too late for either party to claim a right to make an appropriation after the controversy has arisen, and, a fortiori, at the time of the trial. United States v. Kirkpatrick et al., 9 Wheat. 720; 5 Cond. Rep. 733.

2. Circumstances may occur, which would be equivalent to an election by a creditor as to the application of a payment; and it is error in the court to direct a jury, that if the application has not been made at the time of payment, the jury may make the application when the cause is tried. Ibid.

3. Where there are items of debt and credit in a running account between the postmastergeneral and the deputy postmasters, in the absence of any specific appropriation by either party, the credits are to be applied to the discharge of the debits antecedently due, in the order of the account. Postmaster-General v. Furber, &c., 4 Mason's C. C. R. 333.

4. A debtor may control, at will, the application of his payments; on his omitting to make the application, it devolves on his creditor. If this power be exercised by neither, the law makes the application, and it becomes the duty of the chancellor, in its performance, to exercise a sound discretion; and it is equitable to apply them, first, to extinguish those debts of which the security is most precarious. United States v. January et al., 7 Cranch, 572; 2 Cond. Rep. 611. 5. When a collector of revenue has given two bonds for his official conduct, at different periods, and with different sureties, a promise by the supervisor to apply his payments exclusively to the discharge of the first bond, although some of the payments were for money collected and paid after the second bond was given, does not bind the United States, and does not amount to an application of the payments to the first bond. Ibid.

6. Where a debtor, owing several debts, makes a payment to a creditor, the debtor has a right to apply it to what debt he pleases; if he make no specific designation, the creditor may apply it as he pleases: and where neither party appropriates it, the law will apply it according to its own notion of the intrinsic justice and equity of the case. Cremer v. Higginson et al., 1 Mason's

10. In cases of long and running accounts, where balances are adjusted, merely for the purpose of making rests, the law will apply payments to extinguish the debts, according to the priority of time. Ibid.

11. If a debtor deposits money for his creditor with a third person, and the creditor assents thereto, or gives the depositary a new credit, upon the footing of such deposit, the original debtor is discharged. Swift v. Hathaway et al., 1 Gallis. C. C. R. 417.

12. A debtor of the United States, who puts evidence of debts due to himself into the hands of a public officer of the United States to collect, and apply the money, when received, to the credit of such debtor, in account with the United States, is not entitled to such credit, until the money gets into the hands of a public officer of the United States entitled to receive it. Its being in the hands of an agent of a person who, at the time when the claims were put into his hands for collection, was a public officer of the United States, entitled to receive debts due to the United States, but whose office became extinct before the money was received by his agent, is not sufficient to entitle such debtor to a credit in account with the United States therefor. United States v. Patterson, 7 Cranch, 576; 2 Cond. Rep. 617.

13. In Virginia, the moneys arising from the sale of personal property are called legal assets, in the hands of an executor or administrator; and those which arise from the sale of real property are denominated equitable assets. By the law, the executor or administrator is required, out of the legal assets, to pay the creditors of the estate, according to the dignity of their demands; but the equitable assets are applied equally to all the creditors, in proportion to their claims. Legal and equitable assets were in the 7. The comptroller of the treasury has a right hands of an administrator, he being also a comto direct the marshal to whom he shall pay missioner to sell the real estate of a deceased money received upon an execution; and a pay-person; and by a decree of the court of chanment, according to such directions, is goods; and it seems he may avail himself of it upon the trial, without having submitted it as a claim to the accounting officers of the treasury. United States v. Giles et al., 9 Cranch, 212; 3 Cond. Rep.

C. C. R. 323.

377.

8. A person owing money under distinct contracts has, undoubtedly, a right to apply his payments to whichever debt he may choose. This direction may be evidenced by circumstances as well as by words; and a positive refusal to pay one debt, and an acknowledgment of another, with the delivery of the sum due upon it, would be such a circumstance. Tayloe v. Sandiford, 7 Wheat. 13; 5 Cond. Rep. 210.

9. The general doctrine is, that the debtor has a right, if he pleases, to make the appropriation of payments; if he omits it, the creditor may make it; if both omit it, the law will apply the

cery, he was directed to make payment of debts due by the intestate, out of the funds in his hands, without directing in what manner the two funds should be applied. Payments were made under this decree, by the administrator and the commissioner, to the creditors, without stating, or in any way making known, whether the same were made from the equitable or legal assets. A balance remaining in his hands, unpaid to those entitled to the same, the sureties of his administrator claimed to have the whole payments under the decree credited to the legal assets, in order to obtain a discharge from their liability for the due administration of the legal assets. Held, that their principal having omitted to designate the fund out of which the payments were to be made, they could not do it. Backhouse et al. v. Patton et al., 5 Peters, 160.

14. Where debts of different dignities are due

Application of Payments of Money.

to a creditor of an estate of an intestate, and no | solvent, the debt due to the United States shall specific application of the payment made by an first be satisfied; and that this priority shall exadministrator is directed by him, if the creditor tend to cases where a debtor, not having suffiapplies the payment to either of his debts by cient property to pay all his debts, shall make a some unequivocal act, his right to do so cannot voluntary assignment thereof. Held, that albe questioned. Quere, whether the application though this act gives to a debt due to the United must be made by the creditor at the time, or States a priority over debts due to individuals, it within a reasonable time? There may be cases does not give to one part of a debt due to the where no indication having been given as to the United States a priority over any other part of application of the payment by the debtor or cre- it; nor does it vest the property absolutely in ditor, the law will make it. But it cannot be the United States, though it gives them a right admitted, that in such cases the payment will to pursue it for the purpose of appropriating it be uniformly applied to the extinguishment of a in payment; nor does it affect the right of the debt of the highest dignity. That there have debtor to apply a payment of money in his hands been authorities which favour such an applica- either to a bond debt or a debt due by open action is true, but they have been controverted by count by him to the United States. The United other adjudications. Where an administrator States v. Cochran et al., 2 Brockenb. C. C. R. 274. has had a reasonable time to make his election as to the appropriation of payments made by him, it is too late to do so after a controversy has arisen. And it is not competent for the sureties of the administrator to exonerate themselves from responsibility, by attempting to give a construction to his acts which seems not to have been given by himself. Ibid.

18. Where a collector of the revenue at a port, had given bond with sureties in the penalty of ten thousand dollars for the faithful discharge of his official duties, and being largely indebted to the United States, had made a deed of his property for their benefit, but previously thereto had transferred ten thousand dollars to his sureties, and directed them to apply that money to their exoneration; and the sureties accordingly did so apply it, by paying it into the treasury, and receiving from the treasury their obligation, without any knowledge at the treasury, that the money so paid had been transferred by the collector himself to his sureties: it was adjudged, that by applying that payment to the extinguishment of the bond, the sureties were discharged. Ibid., 2 Brockenb. R. 533.

19. Where money belonging to A. and C., arising out of a joint transaction between him and C., has, with the knowledge of B. of the in

agent of A. and C. to the credit of B. & C., who are partners, and C. is indebted to his partner B.; B. cannot apply the money of A. to the credit of C. in satisfaction of his claim upon him. Vanderwick v. Summerl, 2 Wash. C. Č. R. 41.

15. Page was indebted, at the time of his decease, to Patton, three thousand pounds and upwards, which was covered by a deed of trust on Mansfield, one of Page's estates. The executors of Page refusing to act, Patton, in 1803, took out administration with the will annexed, and gave securities for the performance of his duties. Patton made sales of the personal estate for cash, and on a credit of twelve months, and received various sums of money from the same; he made disbursements in payment of debts and expenses for the support and education of the children of Page, and in advance to the le-terest of A. in the same, been placed by the gatees. He kept his administration accounts in a book provided for the purpose, entering his receipts and disbursements for the estate, but not bringing his own debt and interest into the account. In 1810 he put the items of his account into the hands of counsel, and requested him to introduce the deed of trust "as he might think proper;" and an account as administrator was made out, in which the principal and interest of Patton's debt was entered as the first item. Afterwards, in the same year, by order of court, the real estate was sold, and Patton received the proceeds of the same. Held, that the sum due under the deed of trust to Patton should be charged on the funds arising from the sale of the real estate: and that having omitted to retain from the proceeds of the personal estate the sum due to him by Page, Patton could not afterwards charge the same against the legal assets, being the fund produced by the personal estate. Page v. Patton et al., 5 Peters, 304.

16. The court of chancery has established it as a rule, that where the charge is general the purchaser is not bound to see to the application of the purchase-money. Garnett v. Macon et al., 2 Brockenb. C. C. R. 185.

17. An act of congress (act of March 3, 1797, sec. 5) declares that where a revenue officer, indebted to the United States, shall become in

20. M. and R. had become, by separate engagements, liable to make up any deficiency of the proceeds of property assigned to the plaintiffs, to pay the debts of another, for equal portions of which they were also liable as endorsers. After the deficiency was ascertained, an account was rendered, in which the proceeds of the sale were credited to both M. and R.; R. having become insolvent, the court refused to permit the plaintiffs to apply the proceeds of the property to discharge the whole of R.'s engagement, and to claim the whole deficiency from M., the plaintiffs having applied the proceeds in the first instance to the discharge of both debts. Bank of North America v. Meredith, 2 Wash. C. C. R. 47.

21. The general doctrine as to the application of payments is, that if the debtor fail to apply them, the government may do so. If both fail, the law will make the application as the principle of justice shall require. United States v. Linn, 2 M'Lean, C. C. R. 501.

22. Where different sets of sureties are concerned, this rule does not govern. Ibid.

Appointments to Office.-Appropriation of Payments by the Debtor or Creditor.-Appurtenances.

23. Sureties are only bound, on the bond of a receiver of public money, that he shall pay over all moneys on hand at the date of the bond, and which he shall subsequently receive. Ibid.

APPOINTMENTS TO OFFICE.

1. Some point of time must be taken, when the power of the executive over an officer not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. The power has been exercised, when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. Marbury v. Madison, 1 Cranch, 137; 1 Cond. Rep. 268.

2. If the act of delivery be necessary to give validity to the commission to an officer, it has been delivered when executed and given to the secretary of state, for the purpose of being sealed, recorded, and delivered to the party. Ibid.

3. In the case of commissions to public officers, the law orders the secretary of state to record them. When, therefore, they are signed and sealed, the order to record them is given; and whether inserted in the book or not, they are recorded. Ibid.

ditor, in the case of The United States v. January and Patterson, 7 Cranch, 572, is the true one. In that case the court say: "The debtor has the option, if he think fit to exercise it, and may direct the application of any particular payment, at the time of making it. If he neglect to make the application, the creditor may make it; if he also neglect to apply the payment, the law will make the application." The United States v. Eckford's Executors, 17 Peters, 251.

See COLLECTOR OF THE REVENUE; SURETY.

APPROPRIATION OF WATER.

1. Priority of occupancy of the flowing of water of a river, creates no right, unless the appropriation be for a period which the law deems a presumption of right. Tyler v. Wilkinson, 4 Mason's C. C. R. 397.

2. A mill-owner as such, has no right to the water of a river beyond what has been legally appropriated to his mill by title, or long uses. Ibid.

3. The riparian proprietors have a title to all the waters not so appropriated. Ibid. 4. The exclusive use of flowing water for twenty years, is a conclusive presumption of a right. Ibid.

5. Prima facie, every proprietor upon each bank of a river, is entitled to the land covered with water in part of his bank to the middle thread of the river. Ibid.

4. To enable the supreme court to issue a mandamus to compel the delivery of the commission to a public officer by the secretary of state, it must be shown that it is an exercise of 6. In virtue of this ownership, he has a right appellate jurisdiction, or that it is necessary to to the use of the water flowing over it in its enable the court to exercise appellate jurisdic-natural current, without diminution or obstruction. tion. But he has no property in the water itself. Ibid.

Ibid.

5. Where a commission to a public officer has been made out, signed, and sealed, and is withheld from the person entitled to it, an action of detinue for the commission against the secretary of state, who refuses to deliver it, is not the proper remedy, as the judgment in detinue is for the thing itself, or for the value of it. The value of a public office not to be sold, is incapable of being ascertained. It is a plain case for a mandamus to deliver the commission, or a copy of it, from the record. Ibid.

6. The appointment of a paymaster is complete, when made by the president, and confirmed by the senate. The giving a bond for the faithful performance of his duties, is a mere ministerial act, for the security of the government; and not a condition precedent to his authority to act as a paymaster." U. S. v. Bradley, 10 Peters, 343.

APPORTIONMENT.
See INSURANCE.

7. Every proprietor may use the water as it flows, according to his pleasure, if the use be not to the prejudice of any other proprietor. Ibid.

8. There is no difference whether a proprietor be above or below another in the river, for no right is acquired or lost by any such circumstance. No proprietor has a right to throw back water on a proprietor above, or divert it from a proprietor below, to his injury. Ibid

APPURTENANCES.

1. Where a house or store is conveyed by the owner thereof, every thing passes which belongs to it, and is in use for the house or store, as an incident or appurtenance. U. S. v. Appleton, 1 Sumner's C. C. R. 492.

2. Certain streets were laid out by the town of Charlestown, Massachusetts, and the proceedings relative to the same were afterwards confirmed by an act of the legislature. The streets passed over the land of John Harris, and he afterwards received a compensation from the town, for taking the land occupied by the streets. In 1800, the United States, under the authority of an act of the legislature of Massachusetts, purchased of Mr. Harris several parcels of land 1. The rule established by this court, as to now occupied as a navy yard; and in 1801, by an the appropriation of payments by debtor or cre-arrangement between the town of Charlestown

APPROPRIATION OF PAYMENTS BY THE
DEBTOR OR CREDITOR.

General Principles.

6. There is a class of cases upon awards to be found in the books, in which arbitrators have been held to more than ordinary strictness, in pursuing the terms of the submission, and in awarding on the several distinct matters submitted, upon the ground of the submission being conditional, ita quod. But the rule is to be understood with this qualification, that in order to impeach an award made in pursuance of a conditional submission, on the ground of a part only of the matters in controversy having been de cided, the party must distinctly show that there were other points in difference, of which express notice was given to the arbitrators, and that they neglected to determine them. Karthaus v. Ferrer et al., 1 Peters, 227.

and the United States, the streets, so far as they | The reference not being made under an order of were within the limits of the navy yard, were the court, the party complaining must resort to closed up, and have ever since been discon- his ordinary remedy at law or in equity, founded tinued, and have been used as a part of the navy on the agreement and award. Lessee of Banert yard. The agent of the United States, and Mr. v. Eckert, 4 Wash. C. C. R. 325. Harris, not agreeing as to the value of the land taken for the navy yard, the value was ascertained and determined by a jury proceeding under a law authorizing the same, and the amount of the valuation was paid to Mr. Harris by the United States. The jury did not appraise the land on which the streets were laid out. One lot of ground was appraised, "with the appurtenances." An action was instituted by the heirs of Mr. Harris, claiming to be paid the value of the land on which the streets had been laid out, but which had been discontinued. The defendant was the commandant of the navy yard. By the court: The term "appurtenances," in common parlance and in legal acceptation, is used to signify something appertaining to another thing as principal, and which passes as incident to the principal thing. Land cannot be appurtenant to land. The soil and freehold of the streets did not pass to the United States, under and by virtue of the term appurtenances. Harris v. Elliott, 10 Peters, 25.

ARBITREMENT AND AWARD.

1. General principles.

2. Submission to arbitrement, and its effects 3. What is a good award..

4. Exceptions to an award

5. Performance and enforcing an award

1. General Principles.

7. It is a settled rule in the construction of awards, that no intendment shall be indulged to overturn an award, but every intendment shall be allowed to uphold it. Ibid.

8. That judges chosen by the parties themselves, as well as those constituted by law, ought to be exempt from all imputation of partiality or corruption; that their conduct ought to be fair, and their proceedings regular, so as to give the parties an opportunity of being heard, and themselves the means of understanding the Page 174 subjects they are to decide, are propositions not 175 to be controverted; but corrupt motives are not 175 likely to be ascribed to the arbiter; nor is par177 tiality to be ascribed to him, on account of dif 177 ference of opinion with respect to the decision he has made. Davy's Ex'rs. v. Faw, 7 Cranch, 171; 2 Cond. Rep. 461.

1. Under a general submission, the reasonable rule seems to be, that the referees are not bound to award upon the mere dry principles of law applicable to the case before them. They may decide upon principles of equity and good conscience, and make their award ex æqui et bono. Kleine v. Catara, 2 Gallis. C. C. R. 61.

2. Referees cannot be examined by the court, to explain what, on the face of the report, is vague and uncertain. Kingston v. Kincaid, 1 Wash. C. C. R. 448.

3. The language of awards must be so plain, that, by a fair construction of the whole instrument, or by reference to something connected with it, the parties may know what it is they are ordered to do. Ibid.

4. Unless the submission authorized the referees to refer to the court the decision of a question, it cannot be done; the referees cannot delegate their authority. Ibid.

5. Pending an ejectment in the court, the parties agreed to refer it to certain persons to value the land in controversy; one-third of which, it was agreed, belonged to the plaintiffs, and twothirds to the defendant; and that if, by drawing lots, it should turn out that the plaintiff should take the whole, he was to pay two-thirds of the appraised value to the defendant. The award being made, the court refused to confirm it.

9. When the price of land, and not the ques tion of title, is submitted, the submission and award need not be by deed. Ibid.

10. An award may be void in part, and good for the residue. But if the part which is void for uncertainty, be so connected with the rest as to affect the justice of the case between the parties, the whole is void. Lyle et al. v. Rodgers, 5 Wheat. 394; 4 Cond. Rep. 702.

11. An attorney at law, as such, has authority to submit a cause to arbitration. Holker v. Parker, 7 Cranch, 436; 2 Cond. Rep. 506.

12. Upon exceptions taken to the report of referees, the court may examine the accounts and documents laid before the referees, to ascertain whether they had refused to allow certain credits. Hurst v. Hurst, 1 Wash. C. C. R. 56.

13. In this examination the court will receive no new evidence; and in deciding upon that laid before the referees, it is not a sufficient objection to their report, that they have drawn from the conflicting evidence a different conclusion from what the court might have done. Ibid.

14. But if they have misapprehended plain facts or principles of law, the report will not be confirmed. Ibid.

15. If part of the matter reported be without the submission, it will be set aside; and if such part be independent of the other parts of the