priated to the note sued on. Taylor v. Jones, 1 Ind. 17.

1. Byrnes v. Claffey, 69 Cal. 120; Bobe v. Stickney, 36 Ala. 482; McCurdy v. Middleton, 82 Ala. 131; Heard v. Pulaski, So Ala. 502; Bacon v. Brown, 1 Bibb (Ky.) 334; s. C., 4 Am. Dec. 640; Heintz v. Cahn, 29 Ill. 308; Richardson v. Coddington, 49 Mich. 1; Cloney v. Richardson, 34 Mo. 370; Hammersly v. Knowlys, 2 Esp. 666; Dawe v. Holdsworth, Peake 64. And it cannot be made to a debt arising subsequently to the payment, uniess the debtor assent thereto. Law v. Sutherland, 5 Gratt. (Va.) 357

Where an officer who has served two successive terms, with different sureties for each term, makes a payment which the county treasurer in good faith applies to a deficit arising during the first term, such application is good, though the money was derived from collections made during his second term. State v. Smith, 26 Mo. 226; s. c., 72 Am. Dec. 204. See Draffen v. Boonville, 8 Mo, 395; Speck v. Commonwealth, 3 W. & S. (Pa.) 324; Helen v. Commonwealth, 79 Ky. 67. And compare Myers v. United States, 1 McLean (U.S.) 493.

2. Shortridge v. Pardee, 2 Mo. App. 363; Niagara Bank v. Rosevel, 9 Cow. (N. Y.) 409; Willis v. McIntyre, 70

Tex. 34.

Provided the rights of third parties have not intervened before he exercises the right. If such rights have intervened, the right of the creditor to appropriate the payment as his own interests may dictate is gone as against such third persons. Harrison v. Johnson, 27 Ala. 445; Pattison v. Hull, 9 Cow. (N. Y.) 747; Berghans v. Alter, 9 Watts (Pa.) 386; Harker v. Conrad, 12 S. & R. (Pa.) 301; s. c., 14 Am. Dec. 691; Crompton v. Pratt, 105 Mass. 257; Willis v. McIntyre, 70 Tex. 34.

Even though the party whose right

is affected holds under a conveyance fraudulent as to creditors. Miller v. Miller, 23 Me. 24; s. c., 39 Am. Dec. 597.

The provision of the civil law that the creditor must make the application which is most for the debtor's interest has not been adopted as a part of the common law. Logan v. Mason, 6 W. & S. (Pa.) 9. See Spiller v. Creditors, 16 La. Ann. 292; Miller v. Trabue, 16 La. Ann. 375. But some courts follow the rule of the civil law. Those where one debt bears interest and the other does not, payments made generally by the debtor have been applied to the interest bearing debt, in preference to the other. Bussey v. Gant, 10 Humph. (Tenn.) 238; Blanton v. Rice, 5 T. B. Mon. (Ky.) 253; Gass v. Stinson, 3 Sumn. (U. S.) 98. See also Scott v. Fisher, 4 T. B. Mon. (Ky.) 387.

The holder of two notes made by the same person brought an action on one of them. After the second note became due sufficient money was received from the maker to pay the note in suit, but no specific appropriation of it was made by the debtor. Held, that the creditor had the right to apply it

to the note not in suit. Allen v. Kimball, 23 Pick. (Mass.) 473. See also Washington Bank v. Prescott, 20 Pick. (Mass.) 339.

The creditor may appropriate the payment to the discharge of a prior and purely equitable debt, and sue at law for a subsequent legal demand. Bosanquet v. Wray, 6 Taunt. 599; 2 Marsh. 319.

Where there are several notes secured by the same deed of trust, the holder may apply the entire proceeds of sale to those last maturing, and will not thereby be precluded from recovering against a surety on the note first falling due. Mathews v. Switzler, 46 Mo. 301. As to the application which the law will make in such cases, see infra.

v.

1. Driver v. Fortner, 5 Port. (Ala. 9; Soluble Pac. Guano Co. v. Harris, 78 Ga. 20; Hanson v. Manley, 72 Iowa, 48; Burks v. Albert, 4 J. J. Marsh. (Ky.) 97; s. c., 20 Am. Dec. 209; Capron Strout, 11 Nev. 304; Paterson Sav. Institution v. Brush, 29 N. J. Eq. 119; Wilson v. Allen, 11 Oreg. 154; Pelzer v. Steadman, 22 S. Car. 279. See Donally v. Wilson, 5 Leigh (Va.) 329.

The rule applies whether the security on one of the debts is personal or otherwise. Harding v. Tifft, 75 N. Y. 461; Poulson v. Collier, 18 Mo. App. 583; Gaetz v. Piel, 26 Mo. App. 634; Kirby v. Marlborough, 2 M. & Sel. 18.

Where both debts are secured, the creditor may apply it to either. Brown v. Davenport, 76 Ga. 799.

Payments made generally to the creditor on the account of a person for whom a guaranty is given, may be applied by the creditor in liquidation of a balance existing against him before the execution of the guaranty; and the guarantor cannot insist upon their being applied in exoneration of his liability, though at the time he executed the guaranty he had no notice of the balance. Kirby v. Marlborough, 2 M. & Selw. 18.

Where the party making the payment is indebted both on a judgment and a simple contract debt, the creditor may apply the payment in liquidation of either. Chitty v. Naish, 2 Dowl. Pr. Cas. 511. See also Brazier v. Bryant, 2 Dowl. Pr. Cas. 477.

Where A held for collection a claim against B individually on book account and also on note and mortgage, and at the same time held claims against a firm of which B was a member, and B paid A a sum in excess of the book account to be applied on his individual indebtedness, without further direction, A was bound to apply the whole amount to the individual indebtedness of B then existing, and could not divert any part thereof to the firm indebtedness, or to debts thereafter contracted by B. Miles v. Ogden, 54 Wis. 573.

A was a creditor of a firm and also of the surviving member thereof individually. The surviving partner made a payment out of the firm assets without designating on which debt it should apply. It was held that the application must be made by the creditor to the firm debt. Wiesenfeld v. Byrd, 17 S. Car. 106. To same effect, Thompson v. Brown, Mood. & M. 40.

And generally if the creditor have an account against a firm, and also one against an individual member thereof, a payment by the individual must be appropriated to his individual account, unless his consent to the appropriation to the firm account be shown. Johnson v. Boone, 2 Harr. (Del.) 172. See Sneed v. Weister, 2 A. K. Marsh. (Ky.) 277; Schuylkill Co. v. Commonwealth, 36 Pa. Št. 524. And compare Van Rensselaer v. Roberts, 5 Den. (N. Y.) 470; Brown v. Brabham, 3 Ohio 277; Smith v. Wigley, 3 M. & Scott 174.

Where a firm indebted to B on running account took in a new member, and continued to run up an account with B, payments made by the new firm could not be applied by B to the indebtedness of the old firm. St. Louis Type Foundry Co. v. Wisdom, 4 Lea (Tenn.) 695.

2. Philpott v. Jones, 2 Ad. & El. 41; Crookshank v. Rose, 5 Car. & P. 19. Treadwell v. Moore, 34 Me. 112; Reid v. Duncan, 1 La. Am. 265. See Livermore v. Rand, 26 N. H. 85. And compare Adams v. Mahnken, 41 N. J. Eq. 332; Kidder v. Morris, 18 N. H. 532; Bancroft v. Dumas, 21 Vt. 456; Burland v. Nash, 2 Fest. & Fin, 687. And see infra under 5. As to a debt barred by limitations, Armistead v. Brooke, 18 Ark. 521; Mills v. Fowkes, 7 Scott 444; 5 Bing. N. C., 3 Jur. 406.

Compare Nash v. Hodgson, 5 De. G. M. & G. 474; 25 L. J., Ch. 186.

It seems that the payment cannot be distributed to several notes so as to take them all out of the statute. Ayer v. Hawkins, 19 Vt. 26.

But compare Jackson v. Burke, I Dill. (U. Ś.) 311. It may be applied

so as to prevent the bar of the statute. Williams v. Griffith, 5 Mees. & W. 300. So the payment may be applied to a debt within the Statute of Frauds. Haynes v. Nice, 100 Mass. 327; s. C., I Am. Rep. 109.

But the following cases hold with more or less positiveness that the creditor cannot apply it to a demand which is positively unlawful; as, for instance, a claim for usurious interest. Phillips v. Moses, 65 Me. 70; Rohan v. Hanson, 11 Cush. (Mass.) 44; McCausland v. Ralston, 12 Nev. 195; s. c., 28 Am. Rep. 781; Greene v. Tyler, 39 Pa. St. 361; Pickett v. Merchants' Nat. Bank, 32 Ark. 346.

And in a Louisiana case, where B held the note of a third party secured by mortgage as collateral for an open account due from A, and the mortgage notes were paid, it was held that B could not, by crediting the payment on another account due from A, prevent prescription as to such other account. In this case the debtor had himself indicated the application. Walmsley v. Morse, 34 La. Ann. 262.

On this point the court of appeals of Virginia says: "There is this well recognized exception to the rule, that the creditor may apply where the debtor does not, that the creditor has no right to apply the money paid to him to the satisfaction of what does not, nor ever did, constitute any legal or equitable demand against the party making the payment." Turner v. Turner, 80 Va. 379. And this was a case where the defense of usury was interposed. The language used by the court is quoted from Chitty (Contract, 11, 14). The same view is taken by the Supreme Court of Texas in a case involving a usurious contract. (Stanley v. Westrop, 16 Tex. 200), and by the Wisconsin courts (Gill v. Rice, 13 Wis. 549). A creditor held two notes against the same debtor, one usurious and the other not. The debtor having made a payment greater than the usurious note without any specific application, the creditor applied it to discharge the usurious note, and credited the excess on the other note. action on the latter note, it was held that defendant could not set up the usury in the paid note as a defense, 18 C. of L.-16

In an

but that it might be pleaded as a setoff. Rackley v. Pearce, 1 Ga. 241.

The creditor may apply the payment on a bill of exchange which is void for want of a stamp. Biggs v. Dwight, 5 Man. & Ry. 308.

An attorney had an account against a municipal corporation, and money had been paid him on general account. The attorney applied the payment in discharge of two bills for business done, in respect of which he had no sufficient retainer, and in part discharge of a third bill for extra costs incurred by him in his capacity of town clerk. The appropriation was sustained by the court, though he could not have recovered on the first two bills. Arnold v. Poole, 4 Man. & Gr. 860; 2 Dowl., N. S. 574; 5 Scott N. R. 741; 7 Jur. 653.

Where the debtor is indebted on two accounts, one illegal because for spirituous liquors sold in quantities not amounting to 20s. at a time, and the other legal, being for board and lodging, the creditor may apply payments made generally to the account for the liquors. Cruickshanks v. Rose, 1 M. & Rob. 100.

Where the debtor makes payments generally upon a running account, part of the items of which were made before, and part after, his discharge in bankruptcy, of which proceeding the creditor had no notice, the creditor may apply the payments to the items first due. Hill v. Robbins, 22 Mich.

475.

1. Mayor etc. of Alexandria v. Patten, 4 Cranch (U.S.) 317; Brady v. Hill, 1 Mo. 315; s. c., 13 Am. Dec. 503; Heilbron v. Bissel, 1 Bailey Eq. (S. Car.) 430.

Compare Hill v.Southerland, 1 Wash. (Va.) 128; Logan v. Mason, 6 W. & S. (Pa.) 9.

Says COLTMAN, J., in Mills v. Fowkes, (5 Bing., N. C. 455): "The creditor is not imited in point of time." p. 464.

The creditor may make the application "not only at the instant of payment, but up to the very last moment." City Discount Co. v. McLean, 9 L. R.. C. P. 692. "At the time of payment or at any subsequent time." Howard v. McCall, 21. Gratt. (Va.) 205; Plummer v. Erskine, 58 Me. 59.

Some cases hold that it should be

made within a reasonable time. Allen v. Culver, 3 Den. (N. Y.) 284; Pattison v. Hull, 9 Cow. (N. Y.) 749; Harker v. Conrad, 12 S. & R. (Pa.) 301; S. C., 14 Am. Dec. 691; Briggs v. Williams, 2 Vt. 283.

The application cannot be made by the creditor after a controversy has arisen between the parties in reference thereto. United States v. Kirkpatrick, 9 Wheat. (U. S.) 920; Applegate v, Koons, 74 Ind. 247. Nor, it seems, can either party then make such application. Lazarus v. Friedheim, 51 Ark. 371.

See Robinson v. Doolittle, 12 Vt. 246, 249; Milliken v. Tuffts, 31 Me. 497; Fairchild v. Holly, 10 Conn. 176, 184. See also Gass v. Stinson, 2 Sumn. (U.S.) 98.

1. Bosanquet v. Wray, 6 Taunt. 597; Philpot v. Jones (per TAUNTON, J.), 21 Ad. & Ell. 41; Johnson v. Thomas, 77 Ala. 367; Haynes v. Waite, 14 Cal. 446; Larrabee v. Lumbert, 32 Me. 98. In South Carolina it has has been held that it may be made at any time before judgment or verdict. Brice v. Hamilton, 12 S. Car. 32. And in New York an application was allowed to be made even after judgment. Marsh v. Oneida Central Bank, 34 Barb. (N. Y.) 298.

2. Shortridge v. Pardee, 2 Mo. App. 363; Poulson v. Collier, 18 Mo. App. 583, 607; Moss v. Adams, 4 Ired. Eq. (N. Car.) 42, 51; Callahan v. Boazman, 21 Ala. 246; Richards v. Columbia, 55 N. H. 96; Whetmore v. Murdock, 3 Woodb &. M. (U. S.) 390; Simson v. Ingham, 2 B. & Cres. 65.

Where one who owes two debts to the same creditor pays a sum of money in gross, without directing its applica tion, and the creditor omits to apply it to either debt, the debtor may, when sued on one of the debts, apply the payment in discharge of the debt sued on, though the creditor has delayed action on both debts, it not being shown that both were extended by reason of such payment. Dent v. State Bank, 12 Ala, 275.

The institution of suit is of itself a

sufficient appropriation. Haynes v. Waite, 14 Cal. 446; Starrett v. Barber, 20 Me. 457; Peters v. Anderson, 5 Taunt. 596.

3. Johnson v. Thomas, 77 Ala. 367; Jones v. United States, 7 How. (U. S.) 681; Truscott v. King, 6 N. Y. 147.

But

The entries made by the creditor in his own books are competent evidence of the application. Van Rensselaer v. Roberts, 5 Den. (N. Y.) 470. this is not conclusive till it has been communicated to the debtor. Seymour v. Marion, 11 Barb. (N. Y.) 80; Allen v. Culver, 3 Den. (N. Y.) 284. See Dulles v. De Forest, 19 Conn. 190.

It may be manifested by the institution of suit on the debt to which the appropriation was not made. Peters v. Anderson, 5 Taunt. 596; Haynes v. Waite, 14 Cal. 446; Starrett v. Barber, 20 Me. 457.

Where the creditor holds two notes against the same debtor, and a payment is made sufficient to extinguish one of them, bringing suit upon one is an election to appropriate such payment to the other. Starrett v. Barber, 20 Me. 457. See also Haynes v. Waite, 14 Cal. 446.

A landlord who had business transactions with his tenant charged the latter on his ledger rent as it fell due monthly, and also cash advances made him from time to time. The landlord received from time to time the proceeds of the sale of iron belonging to the tenant, and credited such proceeds generally on the account. Finally the landlord distrained for rent, and it was held that his action in distraining constituted an election to appropriate the moneys received to the items of the account outside of the rent. Garrett's Appeal, 100 Pa. St. 597.

A being indebted to B and to B& Co., paid to B a sum less than the aggregate of the two debts, and took from him a receipt in full signed B & Co., B at the time voluntarily promising to receive the part payment as a satisfaction of both demands. Held, that the receipt indicated an application of the payment first to the firm

account, and that B might recover from A the unpaid balance of his individual account. Otto v. Klauber, 23 Wis. 471.

The following additional cases illustrate the rule governing the creditor's right to apply payments made by the debtor, where the debtor has not himself made the application: Alabama.-Driver v. Fortner, 5 Port. (Ala.) 9.

Arkansas.-Gates v. Burkett, 44 Ark. 90; Lazarus v. Friedheim, 51 Ark. 371.

California. Byrnes v. Claffey, 69 Cal. 120; Molaskey v. Peery, 76 Cal. 84. Connecticut.-Lewis v. Hartford Silk Mfg. Co., 56 Conn. 215. Delaware-McCartney (Del. 1887), 12 Atl. Rep. 717.

v. Buck,

Georgia.-Pritchard v. Comer, 71 Ga. 18; Simmons v. Cates, 56 Ga. 609; Greer v. Burnam, 71 Ga. 31; Holley v. Hardeman, 76 Ga. 328; Cox v. Wall (Ga. 1890), 11 S. E. Rep. 137. Illinois.-Scheik υ. Trustees of Schools, 24 Ill. App. 369; Plain v. Roth, 107 İ11. 588. Indiana.-Applegate v. Koons, 74

Ind. 247.

Iowa.-Blair Town Lot and Land Co. v. Hillis, 76 Iowa 246.

Kentucky.-Burks v. Albert, 4 J. J. Marsh. (Ky.) 97; s. c., 20 Am. Dec. 209; Darling v. Brown, (Ky. 1888) 7 S. W. Rep. 565.

Louisiana.-Standifer v. Covington, 35 La. Ann. 896; Walmsley v. Morse, 34 La. Ann. 262.

Maine.-Lambert v. Winslow, 48 Me. 196.

Massachusetts.-Barrett v. Lewis, 2 Pick. (Mass.) 123; Cole v. Trull, 9 Pick. (Mass.) 325.

Michigan-Wood v. Callaghan, 61 Mich. 402; Blair v. Carpenter, 75 Mich. 167.

Missouri.-Beck v. Haas, 31 Mo. App. 180.

New Hampshire.-Livermore Rand, 26 N. H. 85.

v.

New Jersey-Keyser v. Burd, 43 N. J. Eq. 697; Adams v. Mahnken, 41 N. J. Eq. 332.

New York.-Long Island Bank v. Townsend, Hill & D. Supp. (N. Y.) 204; Jones v. Benedict, 83 N. Y. 79; Calfornia Bank v. Webb, 94 N. Y. 467; White Sewing Machine Co. V. Fargo (Supreme Ct.), 3 N. Y. Supp. 494.

North Carolina.-State Bank 2. Armstrong, 4 Dev. L. (N. Car.) 519; State Bank v. Locke, 4 Dev. L. (N. Car.) 529; Wittakowski v. Reid, 84 N. Car. 21.

Pennsylvania-Wagner's

Appeal, 103 Pa. St. 185; Schuylkill Co. v. Commonwealth, 36 Pa. Št. 524.

South Carolina.-Thatcher v. Massey, 20 S. Car. 542; Ellis v. Mason (S. Car. 1889), 10 S. E. Rep. 1069. Tennessee. Harding v. Wormley, 8 Baxt. (Tenn.) 578.

Vermont.-Cass v. McDonald, 39 Vt. 65.

Virginia. Donally v. Wilson, 5 Leigh (Va.) 329.

Wisconsin. Mendel v. Paepke, 69 Wis. 527; North Wisconsin Lumber Co. v. American Express Co. 73 Wis., 656.

Sanborn v. Stark, 31 Fed. Rep. 18; Phillips v. Bossard, 35 Fed. Rep. 99; L'Hommedieu v. The H. L. Dayton 38 Fed. Rep. 926.

1. Askers v. Steiner, 76 Ala. 218; Taylor v. Cockrell, So Ala. 236; Streckland v. Harde, 82 Ala. 412, and cases there cited; Caldwell v. Hall, 49 Ark. 508; s. c., 4 Am. St. Rep. 64; Marzion v. Pioche, 8 Cal. 522; Merrimack Bank v. Brown, 12 N. H. 320; Avera v. McNeil, 77 N. Car. 50; Hicks v. Bingham, II Mass. 390; Parker v. Mercer, 6 How. (Miss.) 320; s. c., 38 Am. Dec. 438.

Compare Whilden v. Pearce, 27 S. Car. 44; White v. Beem, 80 Ind. 239.

A principal cannot require his factor to apply the proceeds of cotton, on which the latter has a lien for advances to another debt, after having surrendered personal property to him under a mortgage of the same given to secure the debt. Baldwin v. Flesh, 59 Miss. 61.