12 Vt. 608 | Vt. | 1839
The opinion of the court was delivered by
— It is a well settled rule of law, that the party paying money,, has the right to direct the application of it. Goddard v. Cox, 2 Strange, 1194. 13 Petersdoff’s Ab. 246. 2 Saund. R. 415, note b., and cases cited. This re-suits from one of the most obvious principles of human action, that a free agent may annex such conditions to an offer as he sees fit; and he who accepts the offer, takes it subject to those conditions. It is true this appropriation must be made at the time of payment, and if not done, the creditor may make such application of the money as he will, unless the circumstances under which it was paid show an intention on the part of the debtor to have it applied to some particular demand. Newmarch v. Clay, 14 East. 239. 2 Starkie’s Ev. 6th Ed. 598, note b. In the present case it is evident the application of the payment was so directed, by the debtor, that the creditor must be bound by it. If he did not intend to make the application directed, he should have returned the money. His keeping it, under the circumstan
But we have no doubt the indorsement of the entire sum was made in perfect good faith. Indeed it must be so considered, unless the contrary is shown by the bill of exceptions. And the jurisdiction in actions upon promissory notes does not depend upon the sum due; but upon the sum, which shall “appear” to be due “either by the plaintiff’s declaration or the indorsement on the notes.” In the Bank of Middlebury v. Tucker, 7 Vt. R. 144., it was held that where the note by “ actual payments,” although not indorsed upon the note, was reduced below $ 100, a justice had jurisdiction. I apprehend that payments, not indorsed upon a note, in order to affect the question of jurisdiction, must be such payments as are acknowledged by the plaintiff. If there is a controversy, in regard to such payments, although the defendant shall finally establish them, and thus show, that the sum actually due upon the note, at the time the suit was brought, was less than $100, the jurisdiction of the county court, over .such action, would still be maintained. In Southwick, et al. v. Merrill, 3 Vt. R. 320, the rule of jurisdiction, in regard to notes, was extended to the case of debt upon judgment, and it was held, that where, by payments, indorsed upon the execution, it “ appeared that a less sum, than $100, was due,” the county court had not jurisdiction of the action although the original judgment exceeded that sum. In the present case it did appear, both by the plaintiff’s declaration and the indorsement on the note, that the sum due thereon was less than $100. By the very terms of the statute then, the justice had jurisdiction, unless the indorsement was made under such circumstances as to be disregarded. The court are not, at present, called upon to decide whether making a mere voluntary indorsement upon a note, without any belief of having received payment, and for the mere purpose of bringing the case within the jurisdiction of a justice, will enable the party to choose his own
Judgment of county court affirmed.