The Hawaiian gazette., 1888-03-13
NJ. Justice Dole haUing been Of conn
sci did not SIT.
G. W. WILFoNG vs.. J. II. Patty
EFT AL.
Opinion by MeCULLY J.

Inc -ueleludnIS eACepIeu 10 lnS
Masters report in finding due the
defendants three hundred eighty
FIVE and 4S-100 1885. 4S) dollars and
moved that the report be modified
to allow the defendants fifteen hun
dred sixty-nine and 63-IOO (S1569.63)
dollars, which exception was allowed
by the Chief Justice to the extent of
allowing the sum claimed less the
sum of one hundred forty-nine and
95-1OO charged for compound in
terest.
From this decision the plaintiff
appealed. BY reference to the liti-
cation in this case and the decision
of the Court, upon which reference
was made to the Master for compu-
tation, it will be seen that the Court
determined that the defendants,
Patty and Parker, held certain shares
of the Hawaiian Agricultural Com
pany as pledge to secure the pay
ment both of notes and interest given
with a mortgage upon planting in
terest in Hamakua, and of a certain
note for six thousand (S6,O00) dollars
originally given to C. Brewer d Co.,
with whom the shares were then
first pledged, and the Court further
held that the subsequent re-convey-
ance by the plaintiff to the defend
ants of the planting interest, was a
release of the charge on the shares
for the notes which had been given
for the plantation, leaving the shares
then pledged for the payment of the
SIX thousand (S6, O00) dollar note, as
originally pledged to Brewer d Co.
The plantation was sold back to
defendants, March 81, 1884. The
defendants make an account appre-
priating from the dividends an
amount sufficient to meet the inter
est to that date on the six thousand
] (S6, 000) dollars note, the remainder
Of the dividends going in against
the interest On the other notes, and
from that date appropriating all the
! dividends to the interest and in re-
duction of the principal. In this
way the balance due on the note is
fifteen hundred sixty-nine and g.
100 (S1569.63) dollars. The plaintiff
claims that the whole of the divi-
dends from the beginning should
have been appropriated to the inter-
est and reduction of the principal of
this note.
BY this computation the balance
due is three hundred eighty-fve and
4S-10O 1885. 49, dollars.
What should be the rule of appro-
priation? In this case the debtor
made no appropriation, for the
money did not pass through his
hands, and he does not appear to
lave made any claim at this time to
direct the receipts to any account,
they being of very inconsiderable
amount in proportion to his whole
Indebtedness.
The creditor did not at that time
make specific appropriation for he
considered that he had purchased
the shares. He kept no account, as
to the debtor, of the receipts from
dividends.
His account presented to the
Court was made only in connection
with this suit.
We are left to the third case of
the common law, if the common law
is followed, of neither party making
application.
If neither party makes a specific
appropriation of the money the law
will appropriate it as the justice and
equity of the case may require-per
Justice Story, Creen1er as. Higgin-
son, l Mason 338, cited in , Parsons
on Contracts 629, and in . Green
leafs Ev. Sec. 529, Munger on the
Application of Payments, Chap. III.
The Court has determined that
the defendants were in the position
of mortgages of the stock.
1t may be said that the Court has
made them mortgages against their
claim that they We're the owners of
it. "Justice and Equity" would
seem to require that they should be
placed in that position at the date of
the resale of the plantation and the
discharge of the plantation debt from
security on the mortgaged shares.
If the defendants had then recog-
nized their position they would have
awaited themselves of their right to
consider the previous payments by
the dividends, in excess of the in
terest on this note to have gone upon
the account of the other debt for
which the shares were security,
leaving the principal of the note
without reduction.
He that asks equity must do
equity. The defendants must be
considered by the Court as having
made the appropriation which should
have haen Doada