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![handle is hein.slavery/ssactsengr0149 and id is 1 raw text is: CAMPBELL V. DENT [1838]
have been paid to the Respondents, must be ordered to be refunded and distributed,
as if the first mortgage was paid off.
[Mews' Dig. tit. BILLS OF EXCHANGE, 0. APPROPRIATION OF SECURITIES, 3. other
Securities; also tit. COLONY, II. PARTICULAR COLONIES, 3 British Guiana.
See Allen v. De Lisle, 1857, 5 W.R. 158; and, as to assignment of securities,
Mercantile Land Amendment Act, 1856 (19 and 20 Vict. c. 97), s. 5. As to lex
loci contractus and contract of suretyship (2 Moo. P.C. 283, 287), cf. Sirdar
Sujan Singh v. Ganja Ram, 1881, L.R. 9 Ind. App. 58.]
[292] ON APPEAL FROM THE SUPREME COURT OF BRITISH GUIANA.
JOHN CAMPBELL, Senior, and Co.,-Appellants; WILKINSON DENT, JAMES
M'PHERSON, and Another,-Respondents; and on Cross-Appeal, WILKIN-
SON DENT, JAMES M'PHERSON, and Another,-Appellants; JOHN CAMP-
BELL, Senior, and Co.,-Respondents * [Dec. 15, 1838].
An agreement made in Scotland for the discharge of a mortgage of lands in
Demerara, by bills payable in Scotland, is a Scotch contract, and to be inter-
preted according to the law of that country [2 Moo. P.C. 307].
By the Scotch law, a creditor having several debts due from the same debtor, has
a right to ascribe a payment made indefinitely and without appropriation, to
whichever debt he may see fit, and is entitled to make his election even at the
last hour [2 Moo. P.C. 308].
A. Being resident in Demerara, mortgaged a plantation in the colony to B.,
for £6000, and such further sums not exceeding £50,000, as B. might ad-
vance: such mortgage to have proportionate rank and preference with one
for which A. had given an obligatory bond of prior date (and which was
afterwards made) to C., a merchant at Glasgow, for £14,000, and such fur-
ther sums not exceeding. £50,000 as C. might advance. By an account sub-
sequently stated between A. and C., it appeared that A. was indebted to C.
in the sum of £30,000, inclusive of the original mortgage of £14,000; in
payment of which A. gave C. ten bills or promissory notes, upon which C.
ultimately received £15,000 and interest. No further advances were made
by B. ; but A. being indebted to D., also a merchant at Glasgow, an agree-
ment was entered into for the payment of B.'s mortgage by D., to whom a
transfer thereof was made. The estates of A. having been sold pursuant to
an order of the Supreme Court, and all claimants advertised to come in,
C. put in his claim for £15,000, the balance due on his mortgage with interest;
the representatives of D. also put in their claim for £59,766, the amount
of advances made by D. to the mortgagor inclusive of the £6000 and in-
terest.-Held by the Judicial Committee, overruling the decision of the
Court below, that the representatives of 1). were only entitled under the
security assigned to him, to the amount of £6000, and interest: and that
B. was entitled to rank pari passu with that security to the amount of
£14,000, there being no evidence of appropriation by A. of the sums already
paid, which were therefore indefinite payments.
This was an appeal and cross-appeal consolidated by an order in council, and
directed to be heard upon one printed case on each side.
[293] The question at issue between the parties in both appeals respected their
priority as mortgagees and incumbrancers upon certain plantations in the Island
of Demerara.
* Present: Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, the Chief
Judge of the Court of Bankruptcy [Sir Thomas Erskine], and the Right Honourable
Dr. Lushington.
1016
II MOORE, 292](ViewImageLocal?handle=hein.slavery/ssactsengr0149&div=1&collection=&method=preview&ext=.png&size=3)