Excerpt from Reports of Cases Adjudged in the Supreme Court of Pennsylvania, Vol. 6: Containing the Cases Decided in September Term and December Term 1843, and Part of March Term 1844

On the 25th November 1839 he transferred to them a note drawn in his favour by Johnson, which was no part of the joint effects, for $550, as collateral security, without specifying for what debt. He made a general assignment on the 19th January 1840, preferring Owens as his surety, and was discharged as an insolvent debtor on the 23d March 1840. On the 13th May 1840, Logan & Kennedy applied the proceeds of the note, by an entry on their books, to the debt due from Mason on separate account in the first place; and the residue to the debt due by Mason & Dilworth. Owens subsequently paid the plaintiffs all the partnership debt except the part of it which he insisted ought to have been satisfied out of the proceeds of the note; and it was agreed, if the court should be of opinion that the plaintiffs had a right to apply the proceeds of the note to Mason's separate debt, in the first instance, judgment should be rendered in their favour for the $259.79; otherwise for the defendants. The District Court gave judgment for the defendants, and the record was removed to this court by writ of error.

M'Candless, for the plaintiffs, cited 1 Wash. (Virg.) Rep. 133; 4 Cra. 320; 9 Wheat. 724; 29 Engl. C. L. R. 25; 30 Ibid. 286; 35 Ibid. 78; 2 Hall 197; 4 Gill. & J. 372.

Eyster, for the defendants, relied on Harker v. Conrad, (12 Serg. & Rawle 301); Gass v. Stinson, (3 Sumner's Rep. 110); and the American Lawyer's Magazine, No. 1, art. 2.

The opinion of the Court was delivered by

Gibson, C. J. - If anything has been settled by decision, it is that the right to apply a payment without restriction as to anything but the time, devolves on the creditor in default of application by the debtor; and I feel myself so bound by it, that were I ever so well convinced of the superior excellence of the civil law, I could not adopt it. I know not how an English or an American judge can strip an adopted rule of its common law emendations merely because they were originally no part of it. It has become the law of his court, not by virtue of any inherent obligation in it, but by the force of precedent; and the same force that was competent to adopt it, was equally competent to establish the parts that were added to it. If the courts were to discard them now, the law of contracts, of testaments, of donations causa mortis, of guardian and ward, and, in short, of the whole mass of moveable property, would be thrown into hopeless confusion by it, followed by instability of decision - the worst curse that can befall a people.

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