Fowke v. Bowie , 4 H. & J. 566 ( 1819 )

Dorsey, J.

delivered the opinion of the Court. It appears by the bill of exceptions that the defendant, both in his own right, and as administrator, was indebted to the plaintiff, to whom he made partial payments; and the question in conlroversy at the trial was, in what way those payments were to be applied? It is clear that a debtor, standing in the predicament of the defendant, has the right, when he pays money, to apply the payment either to the debt due in his own right, or to the one due in outer droit; and whether he made any, and what application, is a question of fact solely cognizable by the jury. There is evidence stated in the exception from which the jury might infer that the defendant applied the payment in his representative character. Whether this testimony was true or Eot, was a question solely for. the consideration of the jury; and the court below erred, when they instructed the jury, that the defendant had not made any application of the payment. The judgment of the court below must be reversed.

■fUDGMEKT REVERSE», AS» EitaeSDENDQ AWARDED,