Dissenting.
It is not so entirely clear to my mind, as it appears to be to my brethren, that the plaintiff should not recover the whole sum which has been reported to be his due, by the auditor, though I incline to the same opinion. If he is not entitled to recover for the services rendered after the agreement, I think judgment should be for the defendant. It seems, by the report, that after a small portion of the plaintiff’s account had accrued, the defendant, being unwilling to be harrassed with a suit, declined further to employ the plaintiff, except upon the condition that his charges should be moderate, and that he should receive such pay as the defendant could make from time to time, and that he should never be sued therefor. To this the plaintiff assented and the services were subsequently rendered under this stipulation. The defendant’s account against the plaintiff was allowed at about thirty dol*19lars, and more than sufficient to balance the plaintiff’s legal claim against the defendant, and the question is, how it shall be applied ? Where there are distinct demands, and indefinite payments are made, there is, no doubt, some want of uniformity in the rules which shall govern their application.
The weight of authority, however, I think, in cases where there is no express declaration by either party, or what may be equivalent to it, is in favour of the rule that such application will be made as will be most beneficial to the debtor. This is according to the presumed intention of the debtor, who has the first right to direct the application, disregarding the supposed intention of the creditor. (This seems to be a reasonable rule, inasmuch as the creditor has neglected, equally with the debtor, to avail himself of his right to direct the application, which accrued to him upon the debtor’s omission to do it.
This principle has been carried out by courts in many cases, both ancient and modern. Heyward v. Lomax, 1 Vernon, 24. Pattison v. Hull, 9 Cow. R. 765, where the question is much considered; and in Goddard v. Hodges, 1 Cromp. & Mason’s Rep. 33, it was held that a general payment must be applied to a prior legal, and not a subsequent equitable demand. So the law will apply such a payment to a well founded and legal claim in preference to one which is usurious. Wright v. Laing, 3 B. & C. 165.
In Wood v. Barney, 2 Vt. R. 369, the plaintiff’s account consisted, in part, for liquors, sold by him as an inn-keeper by small measure, for which the right to recover beyond $1,50, was taken away by statute, and the court refused to apply the articles in the defendant’s account to extinguish the liquor charges in the plaintiff’s account. It may be remarked, that the statute did not render void the account for liquor, beyond the $ 1,50, but simply took away the remedy. In the case now before us, the parties, by their own agreement, took away all remedy as to a portion of the account. How then can the court apply articles delivered by the defendant and charged generally in account, and no specific application made by either of the parties, but which remained to be adjusted by the auditor, in extinguishment, in the first place, of such portion of the account for which there is no remedy ?
*20But, I think this case is not one where the plaintiff has two distinct and independent demands. The plaintiff’s whole account has grown out of his professional services, and is treated by him as one entire account. Where there are current accounts between two parties, and no appropriation made by either, the law makes the appropriation according to the order of time in the items of the account; the first item on the debit side, being the item discharged or reduced by the first item on the credit side, of the account. This is well settled. Clayton’s case, 1 Meri. R. 572, 608. Bodenham v. Purchas, 2 Barn. & Ald. 45, 47. Pemberton v. Cakes, 4 Russ. Rep. 155. United States v. Kirkpatrick, 9 Wheat. Rep. 720. Barker v. Stackpole, 9 Cow. Rep. 435.
This, then, would be the rule tq be applied to this case, if all the items in the plaintiff’s account were such as to furnish the party a legal remedy. The fact that the plaintiff has no remedy for the latter portion of the aceount, cannot vary, or, rather, reverse the rule. To reverse the rule, for this cause, would indeed be to make an application the least beneficial to the defendant.
It is true, if the auditor had found that the articles charged in the defendant’s’ account were delivered under the contract, and received by the plaintiff in payment of such services as were rendered after the agreement, no debt would have been created in favor of the defendant and there would have been an end of the question.
But, I do not so understand the report. The defendant’s account is kept and charged in the ordinary way, and is presented and allowed against the plaintiff as a subsisting account. There is no suggestion, in the report, that even the plaintiff claimed, before the auditor, that thére was to be any specific application of the defendant’s account, but the contest is put, and proceeds, on other grounds.
The plaintiff claims the right to recover the whole balance of his account. Though the parties had agreed that there should be no right of action for the services rendered after a given time, and the defendant might pay at pleasure in such things as he could, yet it is a non sequitur that the articles in question were delivered and received in payment of such services.
They might, or they might not not have been. If the *21plaintiff claimed such to have been the fact, it was his duty to have had such fact found by the auditor.
This court sits as a court of error, and their duty is simply to declare the law upon the- facts found by the auditor, and not to infer a fact from the existence of others which may have been proved. This is frequently done by the triers, and is, indeed, nothing ‘less than the finding a fact proved by indirect or circumstantial testimony.
It is possible the auditor might have infered, from the evidence before him, that the articles in the defendant’s account were delivered and received in payment of the latter portion of the account; but it it is evident that neither the attention of the parties, nor of the auditor, was turned to this view of the case, and, indeed, the fact that the defendant’s account was treated and allowed as a subsisting account, without objection, goes far to rebut such intention. If such was their intention, it must have been affirmatively made out, and so found by the auditor, before this count should give it effect.
This, then, being a case, in my view, where no application has been made by the parties, and no specific intention found by the auditor, I think the law will apply the defendant’s account in extinguishment of the first items in the plaintiff’s account. This may be regarded as most beneficial, to the debtor, and hence, according to his presumable intent tion. As this court, sitting as a court of error, cannot recommit the report, I would advise an affirmance of the. judgment of the county court.