Gwinn v. Whitaker's Adm'x , 1 H. & J. 754 ( 1805 )

Chase, Ch. J.

Two judgments obtained by the plaintiffs against the defendant, in the general court at October term 1797, one for ¿£600 current money damages, and costs, to be released on payment of 3571 15s bid current money, with interest on 1941 8s 10¡¡id current money, part thereof, from the 3d of September 17S7, and costs. The oilier for ¿elOOO cur-sent money damages, and costs, to be released on pay-sxsent of 4251 Is 6d current moneys with interest on 2311 Os Sd current money, part thereof, from the 3d of September 1797, and costs.

It is stated that several payments have been tpade by the defendant to the plaintiffs? agent at different times, on account of the said judgments, without any particular application at the times they were made.

The question submitted to my decision by the counsel of the parties is, How these payment® ought to be applied?

I consider the following principles as established by the judgments of the courts of Maryland, and in harmony with the decisions of the courts of England,

That every judgment for money will carry interest from the obtention of it, unless by the terms consented to by the parties, or the nature of the judgment, interest is not demandable, on only so in a particular way.

It is the general right of the debtor, if indebted opt different securities, to make the application of money when he pays it, and if he omits to do it in those cases where both securities carry interest, or neithei; does, the right of application wiil devolve on the creditor.

If the debtor is indebted on mortgage and simple, contract, or on bond and simple contract, and when he makes a payment should neglect to apply it, the law will make application of it in the way most beneficial to the debtor; that is, to the mortgage or bond; and in some cases the fund out of which the money arose will direct the application — -as where A is indebted pn bond and on judgment, and sells bis land, and the purchaser pays a sum of money to the creditor without application, the law will apply it to the judgment in exoneration of the land.

The execution must pursue the judgment, and in all cases where it will cover the interest as well as the principal, the interest may he levied by execution, if recoverable in an action of debt on the judgment.

In an action of debt on a judgment which bears in-te rest, the jury .have no discretion to allow or not al» low interest, but must, under the direction of the court, assess a sum of money by way of damages equivalent to the interest.

Money paid by the debtor must be first applied to extinguish the interest, and thesu>plus, ifany, tocon-sume so much of the principal, and the debtor has no election to make a different'application The defen-, dant in tiiis ease is indebted on two judgments, both qualified by the agreement of the parties as to the interest recoverable on cachi and no interest can be recovered beyond such stipulation.

The particular sum mentioned in each judgment was specified to ascertain the interest which was tobe paid on the judgment, and to prevent the piaiijiifFs from demanding or recovering interest on the whole sum. It was for the benefit of the defendant, operating as a reduction of the legal interest on the whole sum, and does not designate or appropriate one particular part of the.debt more than the other as that on which the interest, is to arise, so as to enable the defendant to apply her payment to it, or to let in the operation of law, on the principle that they became debts due on different securities, one bearing interest and the other not, nor coiiid it be so intended' by the parties.

I am of opinion, that the statement of the plaintiffs’ agent, (one of the papers lodged with me,) is conformable to the legal mode of adjusting what is due on these judgments.

Key, for the Plaintiffs. Buchanan, for the Defendant.