PETITION POE BEHEAEING.
Richard Hayward, Appellee in this case, asks the Conrt for a re-hearing of this cause, on the following grounds :
I. The Appellee’s Counsel in this case supposed the case as was ordered by the decree of the Court below, would be referred to a master, to ascertain the amounts due respectively to Hayward and to Wilson and Herr, when it could be shewn that nothing was really due to the latter and therefore, he did not think it proper to discuss it here. But as the Court orders the bill to be dismissed, Appellee Respectfully asks the Court to open the judgment in this case, *198that he may now be permitted to show that the debt to Wilson and Herr was fully paid before they obtained their foreclosure at law.
II. The debt due for which West assigned the notes to Wilson as collateral security, has been paid.
It appears from the answers of D. C. Wilson, and^of Wilson and Herr, that on the 16th day of September, 1840, West only owed Wilson and Herr $2723,49, for which amount, they drew a draft on West in favor of D. C. Wilson, and which draft was accepted by West. No other evidence of indebtedness exists in the record. Wilson states in his answer that “ on the first day of June, 1841, West being indebted in the sum of $2723,49,/or which amount, West had accepted their draft, and being desirous to secure it and upon'such security being given to obtain further credit,” fyc. Wilson and Herr say that the sum of $2723,49, the amount of the draft, was the sum due them for goods, &c., furnished before that time. From all this, it is clear, that no other /■sum was due from West than the amount of said draft.— There is no pretence that there was any other sum due to which any subsequent payment by West could be applied. Certainly there is no proof of any other indebtedness.— Neither Wilson nor Wilson and Herr pretend or allege that there was any other indebtedness. See the answers of D. C. Wilson and of Wilson and Hen*, To secure then the only indebtedness from West to Wilson and Herr, on the 1st June, 1841, West assigned the notes mentioned in the record as collateral security, which notes were to be returned when the draft for which they were a security should be paid. We repeat there is neither proof nor pretence that there was any other indebtedness from West on the *199first day of June, 1841, than the draft for $2723,49.
Now if that sum was all he owed them at that time, the next question is what has he paid them since the draft Was given which ought to be credited on it.
The first payment of which We have any evidence is that of $681,43, made on the 33th January, 1841, as appears from their accounts filed with their answers. This credit, it is true, is placed on an account for $2027,84, but let it be recollected that this account is all for goods furnished before the date of the draft for $2723,49, and which latter amount, by the answers of Wilson and Herr and D. C. Wilson, was all that was due Wilson and Herr at the date of the draft, viz: 16th September, 1840. This account, it will be seen, was for 1839, &c., and consequently does not and did not constitute any evidence of debfe/especially as the defendants themselves do not claim any other indebtedness up to 16th September, 1840, than the amount of the draft. It is asked why was this amount of $681,43 not credited on the draft ?
Can it be .said that it was appropriated by Wilson and Herr to the payment of an indebtedness other and anteri- or to the draft, for goods sold before the date of the draft. We answer that there is no evidence or even pretence of any such indebtedness, but on the contrary, Wilson and Herr in their answer say that the draft was the amount in which West stood indebted for goods furnished previous to its date. No witness swears to any debt, nor does West acknowledge any but the draft. The simple presentation of an account subsequently, without any evidence, and against their own statements, does not authorize them to apply a payment made subsequently to the *200date of the draft, which they acknoweldge was all that was due to them.
The account is evidence of the payment to them, but no evidence of indebtedness. Even if the account was correct, it should have been proved, but we cannot presume it to be true, when the parties themselves say the draft was all that was due. But if it is claimed that this account is just and correct, let us enquire if it was not itself also paid. By it, it appears that in August, 1840, West paid D. 0 Wilson $1360.46, and by the receipts in the record, it is seen that Thompson and Hagner paid Wilson, 7 August,-1840, $952, and 10 August 1840, $700 by order of West, These last two sums together, make $1652, yet we ñnd no credit for them anywhere. This will go to strengthen the declaration of Wilson, and Herr themselves, that on 16th September, 1840, the amount of the draft was all that was due to them. Again, the item in said account, dated 27 August, of “ 5 p. c. exchange on amount of our bill of 13 November, 1839.” (The very date of this account,) “paid at Florida,” shows that this bill or account was paid when the draft of 16 September, 1840, was accepted, and furnishes still stronger proof, (although there is no proof of such indebtedness,) that Wilson and Herr were right when they say in their answer that the amount of the draft was all that was due them.
But why multiply instances when the parties themselves make no prenience of such a claim. There being no such claim, then the payment of $661,43, as of 30th January, 1841, should go as a credit on the draft. We cannot go behind the draft of 16th September, 1840, to enquire into the state of the accounts before that time. *201The defendants say themselves that the draft was for $2723,49, “ that being the amount in which he stood indebted for goods furnished previous to that time.” But if they had not said so, the presumption of law would be the same, for the law will not presume that a creditor will do so foolish a thing as to take the acceptance or promisory note of his debtor for a subsequent debt, and leave a prior debt unprovided for. The law presumes a prior debt, in such a case, to have been paid.
We will take the 16 Sept., 1840, as our starting point. At that date West owed D. C. Wilson or Wilson and Herr a sum which with interest on it for six months, (the time when the draft became due;) made it amount to $2723.49 for which West accepted a draft. One month and half before the maturity of the draft, to wit: 30 January, 1841, West made a payment of $661.43-100, he is entitled to interest on this payment until the maturity of the draft, to wit: $2.29, which with the principal makes $663.63.—■ Deduct this from the draft and it leaves on the draft $2059.86, due 16 March, 1841.
The next payment, (see Wilson’s receipt in the record,) was made on 23 October, 1841, amounting to $1000.00.— Wilson in his answer to the fourth interrogatory, states that he is satisfied this payment was made, for and on account of a draft for $2336.26, and yet 'his receipt shows the contrary.
On the production of this receipt, Wilson’s counsel abandoned such application, and yielded the point that the payment was made on the draft for $2723.49- This shows how much Wilson’s recollections are to be relied on. Add now the interest ($97) from 16 March, ’41, to 23 Octo*202ber, ’41, to $2059.86, the balance due on the draft on 16 March, and we have $2156.86, and then credit the payment of $1000.00, there remains $1156.86 due on the draft on 23 October, 1841.
The next credit we contend for, is that of $1000.00 made January 6th, 1842, It is true of this payment as of the other that D. C. Wilson denies that it was made as a payment on this draft. Being mistaken as to the other we will show that he is equally so as to this. But before discussing his testimony in regard to this payment, I premise that his testimony should be entirely rejected.
1. Because he is a party to the record, &c.
2. Because of his interest in the case.
The objection to Wilson’s competency was made before he was examined, as the record will show. A party to the record is sometimes allowed to be examined as a witness, but only where an order of Court for that purpose is first had and obtained.
Again, he is clearly interested. He claims a right here by his own testimony, of appropriating to himself a payment which West, who made it, swears was appropriated by him, at the time, to the draft, or to Wilson and Herr.
If the Court shall decide upon his testimony that he properly retained for himself the payment, he makes a thousand dollars. If the Court shall decide on the testimony of West, that the payment was on the draft to Wilson and Herr then he loses a thousand dollars. I can imagine no clearer case of interest. But let us continue to pursue the facts.
We have in evidence a check drawn by E. M. West on -D. C. Wilson for the amount of this last payment in favor *203of A. K. Allison who endorses on it, “pay to the order of R. K. West.” Then we have the positive assertion of R. K. West that his order was that it should be applied in payment of the draft to secure which the Lunn notes were assigned. West in answer to the nineteenth cross interrogatory, says : “ It was not used by me in a settlement with D. C. Wilson, but was- given to pay the Lunn notes.” Again, in answer to the 4th question he says : “ on the same day a few minutes after the cotton transaction, I called on D. C. Wilson and demanded the notes already referred to. Wilson refused to give them up, saying there was a balance of over three hundred dollars yet due.” This makes out a plain case. The check is endorsed pay to the order of R. K. West, and West swears that his order was that it should be paid on the Lunn notes. A debtor has the right to apply a payment to whatsoever debt he pleases. This principle is always recognized in every Court. David C. Wilson, without denying this, seeks to justify the appropriation to himself by speaking of some transaction between himself and Edward M. West and A. K. Allison. But it is submitted that what occurred between himself and Allison and E. M. West has nothing to do with the question. Here then is the undenied oath of R. K. West. West never consented that the check to Allison should go to an alleged indebtedness by him to D. C. Wilson nor does Wilson pretend that he ever did. A further evidence of the fact that he did not so consent is the pregnant fact that he did not at that time or at any time subsequent, take up the notes which Wilson alleges he held against him and produced in evidence by Wilson himself with his own endorsement on them. West not all only had the right to order the Allison check *204to be applied to the draft, secured by the Lunn notes, but did absolutely so order. It is presumed that his testimony is entitled lo more weight on this point than that of .any other person, particularly Wilson, who, it is shown, is ■deeply interested. West’s testimony, it is believed, is on this point, uncontradicted.
Add then to the sum due $1156,86, interest to 6th January, 1842 $19,28, and we have $1176,14, from which deduct the payment of a thousand dollars and it leaves due •only $176,14, 6th January, 1842.
The next payment of which we have any evidence is that of June 24, 1842, as shown by the account in the record, viz: “ by nett proceeds of cotton per Kennebeck to Boston his proportion” $243,47. I know no reason why this amount should not be credited on the draft of 16 September, 1840, at least enough of it to pay the balance due on said draft. That balance as we have seen was $176,14 on 6th January, 1842. Add interest $6,36 and it makes $182,50 due on 24th June, 1842, on which day $243,47 were paid, which paid the whole balance of principal and interest due on said draft of 16 September, 1840, and left $60,90 over-plus.
'It is true there is no direct testimony in the record of the specific application of this last payment, to the balance due on the draft of $2723.49. The only application as shown by the record, is to the joint amount of the two drafts, viz : the one for $2723.49, and the one for $2336.26.
According to this application, one half of the payment of $243.47 belongs to the balance due on the draft viz : $182.50 which would leave due only $60.
But we maintain that the whole of the $243 or so much *205thereof as was sufficient should be applied to extinguish the balance of $182.50, due on the draft of $2723.49, according to the principle admitted by this Court, in the case of Smith and Paramore vs. Randall, 1 Florida, 428, and cases there cited. In the case of Devane vs. Noble, cited by the Court, 1 Merivale, 606, the master of the Rolls says: The debtor has first the right to apply. If he does not then the creditor. If neither apply the payment, the law makes the appropriation; and the rule of law, is to apply to the most burdensome debt,—one that carries interest rather than one that does not. And if the debts are equal, then to that which has been first contracted. And if there are other parties interested, the justice of the case requires that the application should be made for the benefit of such other parties. So that in whatever light this last payment is viewed, the conclusion must be that it extinguished the whole of the draft for $2723.49, for which the Lunn notes were transferred as collateral security.
It thus seems most incontrovertibly that the claim of Wilson and Herr on the Lunn notes, ceased before they instituted their suit for a foreclosure, and they ought to have returned those notes to West according to the agreement of Wilson in the record.
Hayward had no opportunity in the suit of Wilson and Herr, vs. D. C. Wilson, administrator of Lunn, to show these facts, as he was not made a party. Wilson who conducted the whole affair for both parties, was interested in the whole business, and if Hayward is not permitted to claim that the foreclosure decree is all wrong, in a proceeding in which he makes all persons concerned, parties, then there is no remedy left him, and no means allowed to *206show that when the foreclosure was obtained, Wilson and Herr had not a particle of interest in the mortgage; for let it always be remembered, that the Lunn notes were not assigned out and out in payment of Wilson and Herr, but only as collateral security, and by agreement, they were to be returned when the draft of $2723.49 was paid.
We are not left to the Ldeductions I have made from the whole evidence to show that nothing was due on the draft of $2723.49. West in his evidence says, that that draft was fully paid by him. Is this statement of West a simple wanton assertion ? The facts in the record distinct ly show that his statement is correct. This statement of West goes further, and shows [that he intended the last payment of $243.47, to be applied to pay off the final balance due on that draft. West says that the draft was paid. This is his testimony, as positive as any declaration made by him, and the other separate facts in this record prove the same thing, notwithstanding the statement of D. C. Wilson, who is so deeply interested in this cause.
Counsel for appellee, begs leave to present another point not presented in the argument, viz: That if he is right in the position that the foreclosure at law, was not warranted by law, even if there was any balanee due on the draft, then we say that Wilson and Herr having taken possession of the mortgage property, have been paid more than was due them, and more than the value of the improvements by the receipts of rents and hires.
Let us next enquire whether Wilson and Herr, had really any interest in the Lunn notes. The draft for $2723.49, was in favor of D. C. Wilson individually. The acceptance of said draft by West made it a debtto D. C. Wilson, *207and to D. C. Wilson did West assign the Lunn notes as collaterals. This being so, D. C. Wilson, and not Wilson and Herr, could foreclose the mortgage. But D. C. Wilson could not sue himself, as adm’r of Lunn, and he procured a lawyer to bring suit against himself, in favor of Wilson and Herr. Here is the anomaly of a person holding a debt against himself, procuring a suit to be brought in the name of a third person, without making anybody parties, or giving them an opportunity to show that really there was nothing due.
If I have succeeded in showing that the draft for which the Lunn notes were collateral security, had been fully -paid before the foreclosure suit, then I maintain that Richard Hayward has in this proceeding the right to have the decree of foreclosure aforesaid, set aside and a decree in his favor to foreclose the mortgage. Any other result under such a state of things, would be grossly unjust, and would be a premium to men to act wrongfully.
For these reasons, Counsel for. appellee, respectfully prays the Court for a rehearing in this case.
The rehearing being granted, and after argument, BALTZELL, C. J., delivered the following opinion of the Court on the matters presented in the petition: