Campbell v. Mathews

6 Wend. 551

Opinion

By the Court,

Savage, Ch. J.

As this is an application to the equitable powers of this court, and as the equity seems to me against granting the motion, it must be denied. The note as a payment on the judgment was invalid in the hands of the plaintiff—4t could not have been enforced against J, B. M.; and as it was paid out of the partnership funds, it should have been applied to the partnership demand. The defendant had no right to direct the application differently. It is not the case of an ordinary debtor, applying payments made by himself, where there are different demands against him; it is more like one man entrusted with the money of another to pay the other’s debt, who misapplies it to the payment of his own debt, the person to whom the money is paid being the creditor of both. In a case like this it is proper, when in the power of the court, to correct the procedure. The motion is denied, with costs; but proceedings are stayed for 30 days, that the defendant may file a bill in equity,, if he shall be so advised.