continuous account for all transactions before and after the change of the firm. This is evidence of the party receiving the money having applied it to the payment of the earliest items of the account. But it is impossible to contend, that a rest may not be made and a new account opened. The deceased or retiring partner may be indebted to the partnership, and there can be no right that the old debt should be satisfied by money of the remaining partners. The question, here, must therefore turn upon the effect to be given to the entries in the plaintiffs' books before the new account was opened. But these entries never having been communicated, would have been no evidence of an appropriation for the plaintiffs themselves, and are to be considered as of no validity with respect to others. Manning v. Western, 2 Vern. 607; Cox v. Troy, 5 B. & A. 474. The meaning of an appropriation by the receiver at the time of payment is, that he shall appropriate on the first occasion of there being any [*71 communication between him and the payer, and this course was here pursued; for in the first account rendered after Benjamin Ingham's death, the subsequent payments were appropriated to the new debt, and the old debt remains unsatisfied. He was then stopped by the Court.

F. Pollock, contrà. The London bankers were bound to apply the payments at the time of receiving them. That is expressly laid down by the master of the rolls in Clayton's case, 1 Mer. 604. After observing that the rule with regard to the option given in the first place to the debtor, and to the creditor in the second, was taken from the civil law, he proceeds to state, that according to that law, the election was to be made at the time of payment, as well in the case of the creditor as in that of the debtor; and he then cites the words of the civil law, "in re præsenti; hoc est statim atque solutum est: cæterum posteà non permittitur." Dig. lib. 46, tit. 3, qu. 1, 3. The rule laid down refers to an act of appropriation to be done either by the party paying or receiving the money. The party paying money is bound to communicate his intention, that it shall be applied in payment of a particular debt to the party receiving it; for otherwise the right of appropriation would devolve upon the creditor. The very act of communicating the intention is the act of appropriation. But where a creditor receives money without any appropriation by the debtor,. the right of applying it in payment of any one of several debts devolves on the former. The appropriation is an act to be done by him only, and it is unnecessary that it should be communicated to the debtor; for the latter not having made his election in the first instance, has no right to dissent from the [*72 appropriation made by the creditor. Here, therefore, the London bankers did, at the time of receiving the several payments, make the appropriation by entering them in their own books to the account of the old firm. The making of these entries constituted the act of appropriation; and having once done that act, they had no right to make any alteration in the account, especially to the prejudice of the heirs and devisees of B. Ingham, who are mere sureties for any debts contracted by the new firm since his death.

BAYLEY, J.(a) The general rule is, that the party who pays money has a right to apply that payment as he thinks fit. If there are several debts due from him, he has a right to say to which of those debts the payment shall be applied. If he does not make a specific application at the time of payment, then the right of application generally devolves on the party who receives the money. But there is a third rule, viz., that 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

(a) Abbott, C. J., was absent.

In

as one entire account, and that the death of one of the partners has produced no alteration whatever. In this case the *partner died in September, 73] 1814. If, in the ordinary course of business, in October, 1814, a monthly account had been sent in, stating the transactions before and after the death of the partner as forming part of one entire account, and the balance as due from the survivors; in that case the creditor would have been precluded, and would have had no right to have said that the payments made subsequently to the death of the partner should be applied to any but the old account. fact the bankers in London did not send in any account after the death of the partner until November, and then they sent in two distinct accounts; one made up to the day of the death of the partner, and the other commencing from that period. At that time, therefore, the bankers in London expressed their dissent from making the whole one entire account. It has been insisted that, at that period of time, they had no right so to do, because they were precluded by the entries which they had already made in their own books in the intermediate space of time. I, indeed, a book had been kept for the common use of both parties as a pass oook, and that had been communicated to the opposite party, then the party making such entries would have been precluded from altering that account; but entries made by a man in books which he keeps for his own private purposes, are not conclusive on him until he has made a communication on the subject of those entries to the opposite party. Until that time he continues to have the option of applying the several payments as he thinks fit. For these reasons I am of opinion that the plaintiffs were not precluded from applying the paymer ts to the new account, and therefore that this award is right.

*74] *HOLROYD, J. I am also of opinion, that in this case the award is right. The persons paying the money not having made any direct application of it, the right of making such application devolved on the receivers ; and if they have done no act which can be considered as such an application, it is equally clear, that although they did not apply it at the moment of payment, they would have a right to make the application at a subsequent period. The question therefore is, whether from any entry in the books there appears to have been a complete election by them to apply the payments in any other way than they are applied in the accounts which have been actually delivered. Now, those entries not having been communicated to the opposite party, it seems to me that the election was not complete. The effect of making the entries in their own private books, shows only that the idea of so applying the payments had passed in their own minds. It is much the same thing as if they had expressed to a stranger their intention of making such application of the payments, and had afterwards refused to carry such intention into effect. In the case of Cox v. Troy, a party who had written his acceptance with the intention of accepting a bill, afterwards changed his mind, and before it was communicated to the holder, or the bill delivered back, obliterated his acceptance; and it was held that the acceptance was not complete. That case is very similar to the present; for the drawer of the bill there, by writing his acceptance on it, had expressed an intention to accept, yet it was held not to be a complete acceptance until it was communicated to the holder. So in this case, the entries made in the bankers' books could not amount to an election by them to *757 appropriate the *sums to a particular account until those entries were communicated to the opposite party. That being so, I am of opinion that the bankers are not bound by those entries; and therefore that the award is right.

BEST, J. Clayton's case is altogether unlike the present. He had money in the banking-house at the time of Devaynes' death and afterwards paid in more money, which was blended in the same account. It was on the ground that the accounts were so blended that the master of the rolls decided that case. He thought there was no other appropriation than what arose from the order

VOL. IX.

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in which the receipts and payments took place, and according to that order, the money lodged in the house in Devaynes' lifetime was first paid. In this case, the payments after the death of Benjamin Ingham are appropriated by the rendering of the accounts, in which credit is given for them to the surviving partners, from whose hands these payments came. But it is said that this application of the money was made too late, and after the plaintiffs were precluded from so applying them, by their having previously entered them to the credit of the old firm. It is true that Sir WILLIAM GRANT says, in Clayton's case, that, by the civil law, the application is given first to the debtor, and then to the creditor, and that as well the creditor as the debtor must make his election at the time of payment; and that unless such election be immediately made, the law will appropriate it in discharge of the most burdensome, and if all are equally burdensome of the oldest debts. But according to the cases there cited, our law does not require from the creditor an instant decision. I think that he has a reasonable time to decide, to which account he will place a sum that has been paid him without any application of it by his debtor, and more than a reasonable time has not been taken by the plaintiffs. When once the creditor has made his election, he is bound by it. For the reasons given by my brothers, I think no election was made until the account was rendered to the Huddersfield bankers, and consequently that the award is right. Judgment for the plaintiffs.

COLEGRAVE v. DIAS SANTOS.

[*76

The owner of a freehold house, in which there were various fixtures, sold it by auction. No. thing was said about the fixtures. A conveyance of the house was executed, and possession given to the purchaser, the fixtures still remaining in the house: Held, that they passed by the conveyance of the freehold; and that even if they did not, the vendor, after giving up the possession, could not maintain trover for them. A few articles, which were not fixtures, were also left in the house; the demand described them together with the other articles, as fixtures, and the refusal was of the fixtures demanded: Held, that upon this evidence the plaintiff could not recover them in this action.

At

TROVER for stoves, grates, kitchen-ranges, closets, shelves, brewing-coppers, cooling-coppers, mash-tubs, locks, bolts, blinds, &c. Plea, general issue. the trial before ABBOTT, C. J., at the Westminster sittings after last Michaelmas term, the following were proved to be facts of the case. The plaintiff being the owner of a freehold house and estate, advertised them for sale, and printed particulars were circulated, which took no notice of the articles enumerated in the declaration, which were then in the house. The defendant became the purchaser, the house and estate were conveyed to him, and possession given, those articles still remaining in the house. The plaintiff afterwards desired that a valuation of them should be made, and that defendant should pay for them according to it; the latter contended that they passed to him, together with the freehold, and refused to pay for them or deliver them up. [*77 The plaintiff demanded all the articles as fixtures; and in his particulars delivered under a judge's order, described them as fixtures; and the refusal was of "the fixtures demanded." The lord chief justice thought that some of the articles clearly passed by the conveyance of the freehold; but that others of them, viz., the stoves, cooling-coppers, mash-tubs, water-tubs, and blinds, were removable as between landlord and tenant, and that the plaintiff might recover for them. The value of those articles was proved to be 501., and the plaintiff had a verdict for that sum, the defendant having leave to move to enter a nonsuit. A rule was accordingly obtained for that purpose, against which Marryat and Platt now showed cause. The question is, whether all those articles which were in the house, and belonged to the seller of the estate, necessarily passed to the purchaser by the conveyance of the estate. They may be divided into three classes. The first of which being clearly fixed to the free

hold, must be admitted to have passed; the second class, consisting of fixtures, commonly so called, but removable as between landlord and tenant, and the third, consisting of a few articles, not fixtures in any sense, remained the property of the plaintiff, and he is entitled to retain the verdict which was taken for the value of those articles. The conveyance must be construed to apply to the freehold only; Ex parte Quincy, 1 Atk. 477; which case also shows that trover will lie for such articles as brewing utensils. [BAYLEY, J. The general rule relating to the right to fixtures, is that between the heir and executor; and, as between them, the second class of articles would belong to the heir: *78] all the other cases as to landlords and tenants, and execution creditors, are mere exceptions in favour of trade.] At all events the plaintiff is entitled to a verdict for something; for a few of the articles, viz., mash-tubs water-tubs, &c., were not fixtures, in any sense of the word.

Gurney and Storkes contrà were stopped by the Court.

ABBOTT, C. J. I am of opinion that this rule must be made absolute. This was the case of a freehold house sold by auction. Printed particulars were circulated, and in them no mention was made of the vendor's right to the articles in the house. The usual course is to say that the fixtures shall be taken at an appraisement, or at a valuation to be made in some appointed mode; but here nothing at all was said respecting them. After the auction a conveyance was executed, the purchase-money paid, and the defendant put into possession, all the articles which form the subject of the present action being still left in the house. The rule of law is most strict between the heir and executor. According to that rule, the articles in the two first classes mentioned by the plaintiff's counsel, would be considered as parcel of the freehold. If they are so, why should they not pass by a conveyance of the freehold, when there is nothing to indicate a contrary intention? But another important question arises, viz., whether the vendor can now maintain trover for those articles, even on the supposition that he might have removed them after the sale but before possession

was given to the purchaser. In Lee v. Risdon, 7 Taunt. 188, GIBBS, *79] C. J., says, speaking of the power which tenants have to remove fixtures," Unless the lessee uses during the term his continuing privilege to sever them, he cannot afterwards do it; and it never, I believe, was heard of, that trover could be afterwards brought." According to that opinion, nothing can now be done with respect to those things which may be considered as fixtures, whatever power the plaintiff might have had before he gave up the possession. There may, perhaps, have been in the house three or four trifling articles which were not fixtures, and the plaintiff insists that he is entitled to a verdict for them. But I think that he is not. Upon the evidence given at the trial, it appeared that they were included in a long list, together with many other things. The whole were demanded as fixtures, and the defendant refused to deliver the fixtures demanded. The plaintiff should have made a specific demand of those articles if he intended to rely upon them as distinguished from fixtures.

BAYLEY, J. If we were obliged to support the verdict which has been found for the plaintiff, we should be obliged to do great injustice. It is assumed that the fixtures were not intended to pass by the conveyance of the house. But there is nothing to prove that; and on the contrary, I think that as nothing was said about them at the time of the sale, the plaintiff has no right to make this claim. In the case of an heir selling a house which descends to him, in the absence of any express stipulation, he would be taken to sell it as it came to him, and the fixtures would pass. If the plaintiff may now insist upon payment of these fixtures, he might also after the sale of the house have refused to sell the fixtures, and might have done great injury to the house *by *80] taking them away. He should have insisted upon his right before the conveyance was executed. It is quite clear that the major part of the articles were so far fixtures as not to be the subject of larceny; but it is suggested that

some of them were not fixtures. As to them I should be disposed to say, that if the seller gave up the estate with those things upon it, he must be considered as throwing them into the bargain. But at all events, in order to maintain this action, he should have made a specific demand, instead of including them amongst other things claimed generally as fixtures.

BEST, J. Where a stipulation is made that fixtures are to be taken at a valuation, that shows that they are not otherwise to pass. So of timber, if there be a provision that it shall be valued; if there be not, the wood passus with the land, and the fixtures with the house. In the absence of authorities, I should hold, that every thing which forms part of a house passes by a sale and conveyance of the house itself. If it descends, fixtures pass, so also if it be devised; why then should they not in the case of a purchase? But it is unnecessary to decide upon that ground, for there has been a delivery of possession as well as a conveyance; and we have the authority of GIBBS, C. J., in Lee v. Risdon, for saying, that under such circumstances trover will not lie. As to the other point, all the articles were described as fixtures in the demand; and it would be unfair, under a demand of fixtures, to admit evidence of things which were not fixtures. The refusal, also, was of the fixtures demanded. I am, therefore, clearly of opinion, that a nonsuit must be entered.

(a) Holroyd, J., had left the court.

Rule absolute. (a)

MERINGTON v. BECKET, Gent., one, &c.

The Court will not compel a defendant to verify his plea.

[*81

ASSUMPSIT for goods sold. Defendant pleaded a sham plea, precisely similar to that pleaded in Richley v. Proone, 1 B. & C. 286; and upon the authority of that case a rule nisi had been obtained, that the plaintiff might be at liberty to sign judgment, as for want of a plea, upon an affidavit stating that the plea was in every respect false. And now, after hearing Comyn, in support of the rule, and Langlow, contrà, the Court said that it was very desirable that the proceedings should not be productive of unnecessary expense and delay; but that it was equally important that that object should be effected without breaking in upon any established principles, which would be the case if a defendant were to be compelled to verify his plea. If that might be done, the Court might be called upon to grant a rule to compel the plaintiff to verify, by affidavit, his cause of action. The truth of a plea of release had been inquired into, because a court of equity would entertain the question; and this Court only does that in a less expensive way. The case of Richley v. Proone was decided upon the authority of what fell from Lord HOLT, in Peirce v. Blake, 2 Salk, 515. That case, however, is only an authority to show that an attorney who puts a false plea upon the record may be fined; and if the defendant had not been an attorney, the Court might perhaps have granted a rule, calling upon the attorney to show cause *upon what grounds he put the plea upon the record; and if he had not shown sufficient grounds, he might have been fined for his im[*82 proper conduct: but it would be going too far to treat the plea as a nullity, unless the defendant verified it. On a subsequent day the lord chief justice said that calling upon the attorney to show by what authority he put a sham plea upon the file, might not be effectual, and that the Court would consider whether some means could not be adopted for the prevention of sham pleading, without breaking in upon any established principle. In the mean time, however, until some such regulation could be devised, the practice must remain as it had been heretofore.

Rule discharged.