The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-05-02

creditor in fact apply the money re-
ceived TO the payment of the charges
in the order Of time in which they ac-
crued? He certainly did not segre-
gate the items not covered by his no.
tice Of the lien and apply the pay
rnents 10 them. Phillips on Hechan-
les Liens Sec. 2S9, says: 1.-THE rule in
regard 10 an open, current account, the
items of which DO not form distinct
debts, but are blended together in an
account is. that the payments will be
applied as they are paid 10 the charges
in the order of time in which they ac-
cTue. This case does not fall within
the principle OF the application of pay
ments 10 distinct debts. because not the
items. but only the balance of an ac-
count. is considered debt, and falls
under the rules upon which mutual ac-
counts are cast and settled by law.
This is taken bodily from the 1 Amer
lean Leading Cases, p: 299, Sd Ed. 1t
makes no difference whether we con-
slider that the creditor has actually
made the application TO the earlier
items or whether the creditor not hay-
ing made any specific application the
Court is now TO do it. The result is
the same. In Briggs Y. Titus and wife,
Z r. I. AL, it was held that when pay
ments were made in an account for la
Dor and materials generally the pay
ments should be applied to the charges
in the account, in the order OF time in
which they accrued.
In Day V. Anderson, SO n. J. l. 199,
it was held that where there We're rights
to file liens upon two separate build
ings, for different parts of an account.
and the debtor and creditor having
treated the account as a running &C
count, the application OF note will be
made by the Court to the earliest items
In 18 Am. & Eng. Encyc. of Law, ..
244, the syllabus of a case, Lane v
Jones, 70 Ala. 1876, is taken as follows:
Where neither the debtor nor creditor
makes a special appropriation of the
payments at the time they are made, !
but they are entered as general credits
on general account, the creditor is
without right TO make a special ap- |
plication thereafter to any special part |
of the account, to serve his interests as |
may subsequently be developed" This |
case, if correctly reported, is quite par
allel with the one before us.
We think the presumption is that, |
when the payments were entered on
the creditor to the items not covered
by the notice of the lien, they were in
fact applied to the charges in the order
of time in which they accrued, and
when the appropriation was so made
and the defendants notified of it, as
they were by the suit upon the account
it was conclusive and both
parties were bound by ii. 1t is not nee
essary to decide the question at what
time the creditor can make his appli-
ca tiOn. The decisions are conflicting
but no authority extends the time later
than the time of bringing the action
and the manifesting and declaring the
application when the controversy
begins in Court. Am. Leading
Cases, p. 291 Granting for arguments
AXE that this last stated rule may be
applied here, the creditor was too late,
or the controversy must be consid-
.red as beginning at the time the ac-
ion. was brought, in 1894, and not when
Ilaintiff sent his letter of Decembe &c,
895, for no new action was. begun. A
rev trial only was ordered on the same
and account. .
Willfong v Patty, Haw, 226, is
Urged upon US as an authority that a
statement Of account made up for pur-
loseS of litigation is not an application
# payments. That case held that under
is circumstances the debtor could not
nave directed the application and that
he creditor had not. In that case there
we're two notes upon. either of which the
application of dividends could have
leen made, and the creditor not having
made any specific application. the Court
applied the dividends where justice re-
Iuired it. We do not see that
he decision in that case affects the
'uIe governing the present case. that
payments made in general account
where all the items are blended and do
lot form distinct debts, are to be con-
;idered as dischaTging the earlier items.
The Court therefore holds on the re-
served question that the sum of S230S
s TO be considered as applied by the
creditor to the charges in the order Of
heir accruing, without reference to
whether they are covered by the notice
If the lien or not.
The case is remanded to the Circuit
Court for further proceedings in accord
nice with these views.
". 4. Kinney for Plaintiff. c. Brown
or Defendant Hawaiian Lodge, No. 81,
? & 4. NJ
Honolulu, April %. 1896