Theophilus Parsons.

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which is regarded by him and the mortgagee as a renewal of the
old note, and even repeats this many times, each note tliat is
given up is itself paid by the new one, and is a good considera-
tion for the new one, but the original debt is not paid so as to
discharge or affect the mortgage ; nor will that be discharged
unless by payment in money of the first note with interest, or

See also Kemp v. Balls, 10 Exch. 607, 29 Eng. L. & Eq. 498 ; (rood win v. Crenier, 18
Q. B. 757, 16 Eng. L. & Eq. 90. But in Lazarus ;;. Cowie, 3 Q B. 459, a payment of
the bill by a drawer was held a complete satisfaction. It has been said, and would
seem to be favored by the reason of the thing, that, the drawer being security for
the acceptor, the payment by the former would be, pro tanlo, a discharge, and that,
if payment in full were made, only nominal damages could be recovered against
the acceptor. See Pothier, 106; Hemming v. Brook, 1 Car. & M. 57. Payment
by a party who is a security upon negotiable paper may be considered in two ways,
which perhaps accord with the original and reasonable intent of the parties. With
regard to subsequent parties to a bill or note, a security's having paid tiie bill oper-
ates as satisfaction. So far as they are concerned the bill is extinct, functum officio.
If this were the case with regard to prior parties, such a security, having paid the bill,
would have no right of action against such prior parties on the bill, but only for money
paid to the use of such prior party. This, however, is at variance with the every-day
practice, which allows any indorser who has " taken up " or paid the paper (so far as
subsequent parties are concerned), to erase all the names subsequent to and including
his own, and proceed like an ordinary indorsee against prior parties. Callow v.
Lawrence, 3 M. & S. 95. See Roberts v. Eden, 1 B. & P. 398 ; s. c critici>:ed by
Patteson, J. in Bartrum v. Caddy, 9 A. & E. 275, I Per. &, 1). 207. See Pacific Bank
V. Mhchell, 9 Met. 297.

(l) Pacific Bank v. Mitchell, 9 Met. 297.

(m) Pease o. Hirst, 10 B. & C. 122.


some other payment which the parties agree upon as satisfying
the mortga<>e.(/i)

As negotial)le paper may be demanded and should be surren-
dered upon payment, the possession of it by one bound to pay it
is in general presumptive proof that he has paid.(6>) But the

{n) Sec chapter on Payment by Note or Bill, for a full collection of authorities upon
this subject.

(o) Mill V. Ciiiyle, 1 Ala. 275; Dugan v. United States, 3 Wheat. 172; Biiring v.
Clark, 19 Pick. 220 ; Northampton Bank v. Pepoon, 11 Mass. 288 ; Green v. Jaekson,
1.5 Maine, 136; Grecnl. on Evid., § 33; Story on Notes, §§ 247, 4.'>2. In Dugan v.
U. S., 3 Wheat. 172, this was so held, although there was a special indorsement by
the iiidorser to a third person. In Baring ;;. Clark, 19 Pick. 220, the aceejjtor had pos-
session of the hill, but it had been in circulation after acceptsmce. Sec Prtel v. Van-
bate n berg, 2 Camp. 439; Egg v. Barnett, 3 Esp. 196; Aubert i'. Walsh, 4 Taunt.
293; 3 Stark Ev., 4th Am. ed., 1090, 1091 ; Gilihon u. Featherstonhaugh, 1 Stark.
225; Bell v. Norwood, 7 La. 95 ; Brembridge i'. Osborne, 1 Stark. 374 ; Picquct v.
Curtis, 1 Sumner, 478; Hughes v. Hind, 1 Wright, 650 ; Wilson v. Goodin, id. 219.
In Dugan v. U. S., 3 Wheat. 172, Mr. Justice LImngslon, delivering the opinion of the
court, said : " After an examination of the cases on this subject, (which cannot all of
them he reconciled,) the court is of opinion that, if any person who indorses a bill of
exchange to another, whether for value or for the purpose of collection, shall come in
possession thereof again, he shall be regarded, unless the contrary appear in evidence,
as the bona fide holder and proprietor of such bill, and shall be entitled to recover, not-
withstanding there may be on it one or more indorsements in full, subsequent to the
one to him, without producing any receipt or indorsement back from cither of such
indorsees, whose names he may strike from the bill or not, as he may think proper."
3 Kent's Com. 79; Mauran v. Lamb, 7 Cowen, 174 ; Dean v. Hcwit, 5 Wend. 257.
In Mendez v. Carreroon, 1 Ld. Raym. 742, per Ld Ch. J. Holt, the plaintiff was indor-
see, who had himself been sued. It was held, that he must prove that he had paid the
party who sued him. There seemed to be a qutvre whether the plaintiff must not
produce a receipt upon the protest. The case of Welch v. Lindo, 7 Cranch, 159, to
the same effect, may be considered as overruled. This case, decided by Marshall,
0. J., held that such an indorsee must have a reassignment or a receipt from the
last or subsequent indorsees. These cases have led Mr. Justice Story, in his work on
Promissory Notes, to say that " the production of a note, it is said, in the hands of a
party either maker or indorscr, is not evidence that it has been paid by him, but proof
aliunde should be given ; and hence the importance of a receipt upon the back of a
note." See also Chitty on Bills, ch. 9, pp. 456, 457, 8th ed. ; id., p. 429, 9th ed., Chiity
and Hulme. But he hints at the adoption of the doctrine in our text by the United
States and American courts generally. U. S. v. Barker, 1 Paine C. C. 156 ; Norris v.
Badger, 6 Cowen, 449; Brinkley v. Going, 1 Breese, 288; Campbell v. Humphries-,
2 Scam. 478, 479, and notes; Bank of U. S. v. U. S., 2 How. 711. All these cases
follow the case of Dugan v. U. S., quoted supra. See also Mottram v. Mills, 1 Sandf.
37 ; Hunter v. Kibbe, 5 McLean, 279 ; Dollfus r. Frosch, 1 Denio, 367. In an ac-
tion by drawer against acceptor of bill, if the plaintiff produce the bill with a gen-
eral receipt upon the back, this was held to be prima facie evidence that the bill had
been paid by the defendant, and not by the plaintiff. Scholey v. Walshy, Pcake, Ca«
24 ; Jones v. Fort, 9 B, & C. 764. The presumption of payment, ari.sing from the


* course of business may weaken or destroy this presumption. As,
if a depositor at a bank is in the habit of sending to a bank
checks drawn upon it, the mere possession of the check by the
bank is not even prima facie evidence that the check was paid
by them.(/?)

So the possession of a bill by an acceptor is not evidence of
payment by him, unless it can be shown that, after he received it
for acceptance, it passed from his hands into circulation. Then,
if he received it again, the presumption is that he acquired it by
payment. (^) And if a bill or check be sent to the drawee to be
passed to the credit of the sender, and is so credited, the bill is
discharged, and can no longer be negotiated, (r)

If there be a general receipt of payment on the back of a
note or bill, as the maker or acceptor is primarily the person to
pay, the presumption will be that the payment was made by
him ; (s) and since the holder has the custody of the negotiable
paper, receipts on the back of such negotiable paper are pre-
sumptive evidence of payment ; but it is for a jury to decide if
this was done to take the bill out of the Statute of Limita-
tions. (^) These presumptions are of course open to rebutter.

possession of the note by the party liable to pay, may be rebutted certainly. Fellows
V. Kress, 5 Blackf. 536.

(p) See chapter on Checks, where the authorities are collected.

(q) Ptiel V. Vanbatenberf^, 2 Camp. 439. See also cases in note o.

(r) Savage v. Merle, b Pick. 83. In this somewhat peculiar case the circumstances
were as follows. The defendant, John A. Merle, drew a bill of exchange on W. &
N. Wyer, of New Orleans, in favor of the plaintiff. The plaintiff sent the bill
directed to " Wyer & Merle," directing them to pass it to the credit of the plaintiff.
At the time the bill was drawn no such firm as " Wyer & Merle " existed ; but Wyer,
the survivor of the firm of W. & N. Wyer, and John A. Merle, the defendant, had
made arrangements to go into partnership, and had issued circulars intimating such in-
tention. The bill was passed to the credit of the plaintiff in the books of W. & N.
Wyer. The receipt of the letter was acknowledged by W. & N. Wyer, who say the
bill has been accepted and will meet with due honor. The contemplated partnership
never went into operation. There was no presentment of the bill to the drawee for ac-
ceptance or payment other than sending of the bill itself to him, and no protest or
notice was sent to the drawer. Held, that the defendant was not liable as drawer, nor
as the plaintiff's agent, and so liable for negligence.

(s) Scholey v. Walsby, Peake's Cas. 24.

{t) Gibson v. Peebles, 2 McCord, 418. But where tlie receipts were such as might
take the bill or note out of the Statute of Limitations, such receipts in the handwriting
of the holder would be of very slight weight, as they could hardly be then considered
as admissions against interest. Perhaps all the writing in the case is to be presumed to
have beea made at the time at which it bears date. If such receipts were in the hand-




If a debtor wlio owes on sundry accounts makes a general
payment, the question may arise as to wliicli account it shall be
credited ; he may owe on book account and on note, and does
this payment settle the note ? or he may owe notes some of
wliich are secured and others not, and which of these notes are
paid ? The law of appropriation presents in this way questions
of some difficulty.(«)

The general rules are, first, that the party paying can appro-
priate his payments as he chooses,(i;) but lie should indicate
to the payee his application of tiie payment at or before the time
of payment. (i^) He is not, however, allowed so to appropriate

writing of the defendant, who sets up the Statute of Limitations, of course they would
be good evidence of such payment. But if the writing is in the hand of the plaintiff,
it may, at least, be said to be a species of evidence which the holder has it in hi? power
at any time to create. Perhaps the actual payment should be shown, or at least that
such writing was on the note before the statute had run its course. This question has
been thought worthy of special statutes in some of the States, as, for example, in Jlas-

{ii) The whole law on the subject of the application, or, as it is sometimes called, the
imputation of payments, was learnedly discussed and fully expounded in Clayton's
case, in Devaynes v. Noble, 1 Meriv. 572.

(v) That in the case of voluntary payments, and not those made by process of law
(Blackstone Bank v. Hill, 10 Pick. 129), the debtor may apply the payments as he
pleases, is held in the following cases. Tayloe v. Sandiford, 7 Wheat. 13 ; Reed v.
Boardman, 20 Pick. 441 ; Martin v. Draher, .5 Watts, 544 ; M'Donald v. Pickett, 2
Bailey, 617; Mitchell v. Dall, 4 Gill & J. 361 ; Selfridge v. Northampton Bank, 8
Watts & S. 320; Runyon r. Latham, 5 Ired. 551; Rowland v. Rench, 7 Blackf.
236; Rackley v. Pearce, 1 Ga. 241 ; Randall v. Parramore, 1 Fla. 409; United States
V. Bradbury, Daveis, 146.

(m') Reynolds v. M'Farlane, 1 Overt. 488; Moss v. Adams, 4 Ired. Eq. 42. The
parties need not declare how the money is to be appropriated ; it will suffice if such
direction or appropriation can be implied from any circumstances. Robert v. Garnic,
3 Caines, 14; Brett v. Marsh. I Vem. 468 ; Shaw v. Picton, 4 B. & C. 715, 7 Dowl.
& R. 201 ; Chitty v. Naish, 2 Dowl. 511 ; Mitchell v. Dall, 2 Harris & G. 159, 4 G.
& J. 361 ; Marryatts v. White, 2 Stark. 101 ; Peters r. Anderson, 5 Taunt. 597;
Taylor v. Rymer, 3 B. & Ad. 333 ; Scott v. Fisher, 4 T. B. Mon. 387. If such in-
tention on the part of the debtor appear, the creditor is bound thereby. Reed r.
Boardman, 20 Pick. 441; Hall r. Marston, 17 Mass. 575; Gilchrist v. Ward, 4
Mass. 692; Bonaffe r. Woodberry, 12 Pick. 463; Hussey r. Manuf & Mechanics'
Bank, 10 Pick. 415; Bosley v. Porter, 4 J. J. Marsh. 621; Hall ^ Constant, 2
H.ill, 185; M'Donald v. Pickett, 2 Bailey, 617; M.irtin r. Draher, 5 Watts. 544 ;


payment as to affect the relative rights of his sureties, (x) but in
some cases he seems to be permitted to exercise his option, to
the injury of a surety of one of the debts. (?/)

Tlie question of the time within which the creditor may make
his appropriation has been much discussed, and the authorities

Boutwell V. Mason, 12 Vt. 608; Pindall i'. Bank of Marietta, 10 Leigh, 481; Mil-
ler V. Trevilian, 2 Rob. Va. 1, 27 ; Mills v. Fowkcs, 7 Scott, 444 ; Black r. Schooler,
2 McCord, 293. Though the creditor at the time, and constantly afterwards, refuse
to make the application directed or requested, if he receive the money he is bound
by the application made by the debtor. Reed y. Boardman, 20 Pick. 441. The fact
that a debtor denied owing one of the debts is evidence of intention to have the pay-
ment applied to another; so the correspondence of the sum paid with one of the debts
affords a presumption that it was intended to cancel that debt. Tayloe v. Sandiford,
7 Wheat. 13, 20; Mitchell v. Dall, 2 Harris & G. 159, 160, 173, 4 Gill & J. 361 ;
Robert v. Garnie, 3 Gaines, 14; "West Branch Bank i>. Moorehead, 5 Watts & S. 542 ;
Scott V. Fisher, 4 T. B. Mon. 387 ; Stone v. Seymour, 15 Wend. 19. In this case the
following rules are laid down, which may be said to be universally received, both among
the civilians and in courts of common law. 1st. If both debts are due at the time of
a partial payment, the debtor is at liberty to apply the payment to which he pleases,
if his intention is manifested at the time of payment ; subject to this restriction, how-
ever, that the creditor is not obliged to receive a partial payment of any particular
debt of which the whole is due at the time the oflFer of payment is made. 2d. When
the debtor neglects to manifest his intention as to the application of the payment at the
time it is made, the creditor may at the time he receives the money apply it to which
debt he pleases, unless the debtor objects ; the creditor manifesting his intention at the
time, either in the acquittance which he gives or in some other way. 3d. If a partial
payment is made on account of debts, one part of which debts consists of the principal,
and another of the interest or compensation due for tlie use of capital, of such debts
so much of the payment as is necessary to satisfy the interest or arrears then due shall
be first applied for that purpose, and the residue only shall go to reduce the amount of
the principal debt. These rules prevailed in the Roman or civil law, and are now tlie
settled law of France, Spain, Holland, Scotland, England, and the United States. 1
Domat, B. 4, tit. 1, §4. Art. 1, 3, 5, 6 ; Nap. Code, Art. 1253, 1254, 1255 ; 5 Partidas,
tit. 14, Law 10 ; Van Der Linden's Inst, of Holland, B 1, ch. 18, § 1, Henry's Transl.
267 ; Bell's Law of Scot., Art. 562, p. 135 ; 2 Bell, Com. 535 ; Wood's Civ. Law, 293 ;
1 Evans, Poth. 328, No. 528 ; Anonymous, Cro. Eliz. 68 ; Bois v Cranfield, Style, 239 ;
Haynes r. Harrison, 1 Ch. Cas. 105; Crisp v Bluck, Finch, 89; Field v. Holland, 6
Cranch, 27 ; Taylor v. Talbot, 2 J. J. Marsh. 49 ; Baker v. Stackpoole, 9 Cowen, 420 ;
Civ. Code of Louis., Art. 2159, 2160, 2161 ; Hart v. Dewey, 2 Paige, 207. See also
Williams v. Houghtaling, 3 Cowen, 88 ; Tracy v. Wikotf, 1 Dall. 124. In Hall v.
Marston, 17 Mass. 575, it was held that when a creditor receives from his debtor a bill
of exchange, with directions to pay a part of it to another creditor, he has no right to
appropriate the whole sum collected to the payment of his own debt. It may be a
question whether the debtor could complain ; but there is no doubt that the creditor to
whom a portion was to be paid could maintain an action for money had and received.

(x) Postmaster-General v. Norvell, Gilpin, 106; Merrimack Co. Bank v. Brown,
12 N. H. 320; Myers v. United States, 1 McLean, 493.

{y) See, on the rights of a surety, Kirby v. Marlborough, 2 Maule & S. 18 ;
Postmaster-General i;. Furber, 4 Mason, 303.


are far from uniform. Perhaps the general rule may be stated
tlius : As l)ot\voen tlic debtor and creditor, it may be made at
any time before a suit is brought, or an actual controversy
begun. But in re<i;ard to third parties, whom a delay might
ufTect, it must l»e made within reasonable time.(c) The cred-
itor cannot change an application which he has once made. (a)
Secondly, if he can exercise this choice, but does not, the payeo
may make tliis aj)pro{)riation,(/>) provided it be such an appli-
cation as the creditor could not reasonably and justly object to.

(z) Mayor of Alexandria ?'. Patten, 4 Cranch, .317 ; Pattison v. Hull, 9 Cowen, 747 ;
Bosanquet v. Wray, 6 Taunt. 597 ; Frazcr v. Bunn, 8 C. & P. 704 ; United States
V. Kirivpatrii-k, 9 Wheat 720, 737. See also Philpott v. Jones, 2 A. & E. 41 ; Williams
;;. Griffitli, .5 M & W. 300 ; Brady v. Hill, I Misso. 315 ; Hilton v. Burley, 2 N. H. 193 ;
Heilbron v. BisscU, 1 Bailey, Eq. 4-30 ; Starrett v. Barber, 20 Maine, 457. Whether
the application can Ik? made by the creditor after suit brought is discussed in Wilkin-
son V. Sterne, 9 Mod. 427 ; Bosancjuet ;'. Wray, 6 Taunt. 597 ; Mills c. Fowkes, 5 Bing.
N. C. 455 ; Williams r. Griffith, 5 M. & W. 300 ; Mayor of Alexandria v. Patten, 4
Cranch, 317; Brady v. Hill, 1 Misso. 315; Heilbron v. Bissell, 1 Bailey, Eq 430.
In Mayor of Alexandria v. Patten, 4 Cranch, 317, Marsliall, C. J. stated the whole
law on the subject of application of payment so clearly and in so few words that we
quote them at length. " It is a clear principle of law, that a person owing money on
two several accounts, as upon bond and simple contract, may elect to apply his pay-
ments to which account he pleases ; but if he fails to make the application, the election
passes from him to the creditor. No principle is recollected which obliges the cred-
itor to make this election immediately. After having made it, he is bound by it ; but
until he makes it, he is free to credit either the bond or simple contract. Unques-
tionably circumstances may occur, and perhaps did occur in this case, which would
be equivalent to the declaration of his election on the part of the debtor, and therefore
the court was correct in instructing the jury that, if they should be satisfied that the pay-
ments were understood to be made on account of the goods sold at vendue, they ought
to apply them to the discharge of that account ; but in declaring that the election, which
they supposed to devolve on the plaintiff if the application of the money was not under-
stood at the time by the parties, was lost if not immediately exercised, that court erred."

(a) Hill V. Southerland, 1 Wash. Va. 128; White v. Trumbull, 3 Green, N.J. 314;
Hilton V. Burley, 2 N. H. 123.

(6) Smith V. Screven, 1 McCord, 368 ; Blinn v. Chester, 5 Day, 166. The rule which
t!ie Continental law adojjts from the Koman law is, that the intention of the party mak-
ing the payment should govern. The words of the Digest are : " Quoticns quis debi-
tor ex pluribus causis unum debitum solvit: est in arbitrio solventis dicere, quod potius
debitum voluerit solutum ; et quod dixerit id erit solutum." Dig. 46, 3, 1 ; Cod. 8, 43, 1.
" Quoticns vero non dicimus id quod solutum sit, in arbitrio est accipieiuis, cui potius
debito acceptum ferat." Id. This indicates the power of election in the payee, but
that such election should be indicated to the payor appears from the same and following
passages: " Dum in re agenda (in re present!, hoc est statim atque solutum est) hoc
fiat; ut vel creditori liberum sit, non accipere, vel debitori non dare, si alio nomine ex
solutum quis eorum velit. Cteterum postea non permittitur." But if there be no appro-
priation by the debtor, the creditor at common law, where there are several distinct debts,
has a right of appropriation any time before action. Simson v. Ingham, 2 B. & C. 65,


The limitation imposed by this last requirement is hardly capable
of exact definition ; but the reason for it is obvious. The debtor
has an \indoubted right to apply his payments. But if he ab-
stains from exercising this right, and is only silent, it cannot be
supposed that he intends, by his silence, to subject himself to an
injury. Nor can the creditor reasonably allege that the debtor
was under any obligation to make an express application of the
payment, and, by not doing it, gave the creditor a right to inflict
upon him injury. The only fair inference, and, as we appre-

.3 Dowl. & R. 249 ; Philpott v. Jones, 2 A. & E. 41. The following cases hold that,
in case of distinct debts, the creditor may exercise his option. Clayton's Case, I
Meriv. 572, 604 ; Bodenham v. Purchas, 2 B. & Aid. 39 ; Kirby r. Marlborough, 2 M.
& S. 18; Peters v. Anderson, 5 Taunt. 596; Mayor of Alexandria v. Patten, 4
Cranch, 317 ; Rackley v. Pearce, 1 Ga. 241 ; Brewer v. Knapp, 1 Pick. 332; Wash-
ington Bank v. Prescott, 20 Pick. 339 ; Blackstone Bank v. Hill, 10 Pick. 129 ; Mann
V. Marsh, 2 Caines, 99 ; Mitchell v. Dall, 4 Gill & J. 361, 2 Harris & G. 159 ; Arnold
V. Johnson, 1 Scam. 196 ; Brady v. Hill, 1 Misso. 315 ; Blinn v. Chester, 5 Day, 166 ;
Logan V. Mason, 6 Watts & S. 9 ; Rosseau v. Cull, 14 Vt. 83 ; Selleck v. Sugar-
Hollow Turnpike Co., 13 Conn. 453 ; Allen v. Kimball, 23 Pick. 473 ; Jones v. United
States, 7 How. 681 ; Cremer v. Higginson, 1 Mason, 338; Van Rensselaer v. Roberts,
5 Denio, 470 ; Sawyer v. Tappan, 14 N. H. 352 ; United States v. Wardwell, 5 Ma-
son, 82. For the mode in which application made by the creditor may be proved
.and fixed, see Starrett v. Barber, 20 Maine, 457 ; Allen v. Kimball, 23 Pick. 473 ;
Lindscy v. Stevens, 5 Dana, 104. Campbell v. Hodgson, Gow, N. P. 74 ; Hall iv
Wood, 14 East, 243, note; Neale v. Reid, 1 B. & C. 657, 3 Dowl. & R. 158. In
this case A sold goods to B, to whom and at whose risk they were shipped to
Lisbon. They were to be paid for by bills on R. & Co. C, the supercargo, wa.«
A's agent, and was to retain possession of the goods until the amount of the bills
on R. & Co. was remitted, and then the bill of lading was to be given up to B.
R. & Co., by B.'s order, effected insurance. The ship was captured, and R. & Co. re-
ceived the proceeds, and gave credit for a part thereof to B, and paid a portion to his
assignees in bankruptcy. The bills drawn by B in favor of A were paid in part, and in
part rejected. A brought an action for money had and received for his use. It was
held that they were not obliged to apply the proceeds of the policy to the payment of
the bills for the goods. In Woodrotfe v. Hayne, 1 C. & P. 600, accommodation accept-
ances were given by A to B, and passed by B to C to secure some acceptances of his,
which were paid by B out of the produce of other acceptances of C. A's acceptance
was not given up, though C was desired not to present it, and A was informed that it
would not be presented. The original transaction was held to be continued. The fact
A did not call for the bill, was held to constitute a presumption that he allowed it to re-
main in the hands of C as security for acceptances given subsequently to those for which,
it was first given. See Atwood v. Crowdie, 1 Stark. 483. The doctrine of the exercise
of the creditor's option applies where one of the debts is due on a specialty. Manning v.
Westerne, 2 Vern. 606 ; Peters v. Anderson, 5 Taunt. 596. So where there are a judg-
ment and a simple contract debt. Brazier v. Bryant, 2 Dowl. 477 ; Chitty v. Naish, id.
511. Or where there is a prior debt which is merely equitable. Bosanquet i;. Wray, 6
Taunt. 597, 2 Marsh. 319. It is said that a general payment must be applied, if not ap-
propriated by the creditor, to a prior legal and not to a subsequent equitable demand.
Vol. XL— P


hcnd, the only legal infcieuce, from the silence of the debtor, is
that he is willing the creditor should make any application of
the money which is advantageous to iiim, and at the same time
not injurious to tiie creditor. (c) When the payee has once made
an election, he cannot cliange it.(<i) This privilege of the payee
only applies to voluntary payments, (e) and where several notes are

Goddanl c. Iloilgcs, 1 Cromp. & M. 33, 3 Tynv. 209. AltIionj,'h one of two del.ts was

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