The Civil law differs from the common law in its rules concerning the application or imputation of payments, especially

44 In Cory Bros. & Co. v. The Mecca, [1897] A. C. 286, there were two debts in question and the Court of Appeal had held that on the authority of Clayton's Case, 1 Mer. 585, the payment must be appropriated to the earlier debt. In reversing this opinion Lord Herschell said: "I do not think the present case is governed by Clayton's Case, 1 Mer. 585, 608. It was there decided that where there is a current account between parties, and payments are made without appropriation of them, they are to be attributed in point of law to the earliest items in the account. In the present case, at the time the payment was made no account had been delivered by the appellants to the respondents. The debts in respect of the two vessels arose from transactions which were entirely distinct; they had never been brought into a common account." Lord Macnaughten said (pages 295, 296), "It is, I think, important to observe that even in cases prima facie falling within the doctrine of Clayton's Case, 1 Mer. 585, 608, the account between the parties, however it may be kept and rendered, is not conclusive on the question of appropriation. In a case in the Exchequer Chamber in 1874 (City Discount Co. v. McLean, L. R.

9 C. P. 692), where there was a current and unbroken account between the parties, Clayton's Case, 1 Mer. 585, 608, was pressed upon the court. 'I quite agree,' said Bramwell, B., 'with the principle of the cases cited, such as Clayton's Case, 1 Mer. 585, 608, and Bodenham v. Purchas, 2 B. & Aid. 39, and I think we ought to follow them when applicable. . . . But we must decide every case according to its own circumstances.' 'The true rule,' added Blackburn, J., 'is laid down in Henniker v. Wigg, 4 Q. B. 792, which is that accounts rendered are evidence of the appropriation of payments to the earlier items, but that they may be rebutted by evidence to the contrary.' The rule in Clayton's Case, 1 Mer. 585, 608, was very much considered in Hallett's Case in 1880,13 Ch. D. at pp. 728, 738, by the Court of Appeal, consisting of Sir George Jessel, M. R., and Baggallay and Thesiger, L. J. 'It is a very convenient rule' said the Master of the Rolls, 'and I have nothing to say against it unless there is evidence either of agreement to the contrary or of circumstances from which a contrary intention must be presumed, and then of course that which is a mere presumption of law gives way to those other considerations.'" in the case where neither debtor or creditor have made an appropriation. In the Civil law in such a case the debtor is favored, while the tendency, in most jurisdictions where the common law prevails, is to favor the creditor. The rules derived from the Digest as stated by Pothier 45 were adopted in substance by the French Civil Code, the provisions of which have in turn been copied in Louisiana and Quebec.46