Va. 379; Burrows v. Cook, 17 Iowa 436; Parchman v. McKinney, 12 Smed. & M. (Miss.) 631; Stanley v. Westrop, 16 Tex. 200; Bank of Cadiz v. Slemmons, 34 Ohio St. 142; s. c., 32 Am. Rep. 364; Moore v. Holland, 16 S. Car. 15.

And legal interest; Bartholomew v. Yaw, 9 Paige (N. Y.) 165.

If one debt becomes barred by the statute of limitations after the payment has been made, the law will apply it to that debt. Robinson v. Allison, 36 Ala. 525.

Where the payor was indebted in four different demands, only one of which was lawful, payments made by him will be applied to the single valid debt, irrespective of its order in the account. Backman v. Wright, 27 Vt. 187; s. c., 65 Am. Dec. 187.

If an account is made up partly of legal and partly of illegal sales payments made generally are to be applied to the charges for the legal sales. Solomon v. Dreschler, 4 Minn. 278; Hall v. Clement, 41 N. H. 166. But if at any time the aggregate payments exceed the amount due for legal sales, the excess will be applied to the charges for illegal sales; it will not be presumed that payments were made in advance to apply on future legal sales. Hall v. Clement, 41 N. H. 166.

1. See supra, this title, Part Payments; People v. New York Co., 5 Cow. (N. Y.) 331; Eberlin v. Palmer, (Supreme Ct.), 10 N. Y. Supp. 660; Steele v. Taylor, 4 Dana (Ky.) 445; Anderson v. Perkins (Mont. 1890), 25 Pac. Rep. 92.

The rule applies even though no part of the principal is due. But if neither is due, the payment is applied to the extinguishment of principal and interest ratably. Jencks v. Alexander, II Paige (N. Y.) 619.

In Michigan, the rule for computing interest is the Massachusetts, and not the Connecticut, rule; that is, partial

payments, instead of being applied directly to the discharge of the principal, are first applied to the payment of the interest then due. Wallace v. Glaser, (Mich. 1890), 46 N. W. Rep. 227.

Monthly payments by a debtor, in excess of interest payable on the debt, will be applied to the principal of the debt, and will not be treated as compensation for extensions of time, though they were so denominated by the parties when made. Bateman v. Blake, 81 Mich. 227.

Interest paid on a note in excess of the rate allowed by law will not be applied in payment of the principal until the maker so requests. Peterborough Sav. Bank v. Hodgdon, 62 N. H. 300.

2. 3 Phil. Evid. (Hill & Cowen's notes) *442; Devaynes v. Noble (Clyton's Case), 1 Mer. 572; Pemberton v. Oakes, 4 Russ. 154; Bodenham v. Purchas, 2 B. & Ald. 39; Field v. Farr, 5 Bing. 13, where it is said that the rule laid down in Clayton's Case has received the sanction of every court in Westminster Hall.

United States v. Kirkpatrick, 9 Wheat. (U. S.) 720; Leef v. Goodwin, Taney Dec. (U. S.) 460; Postmaster General v. Furber, 4 Mason (U.S.) 332; Harrison v. Johnston, 27 Ala. 445; Wendt v. Ross, 33 Cal. 650; Fairchild v. Holly, 10 Conn. 175; Sanford v. Clark, 29 Conn. 457; Pickering v. Day, 2 Del. Ch. 333; s. c., on appeal, 4 Houst. (Del.) 474; s. c., 95 Am.-Dec. 291; Horne v. Planters' Bank, 32 Ga. 1; Sprague v. Hazenwinkle, 53 Ill. 419.

McKenzie v. Nevins, 22 Me, 138; s. c., 38 Am. Dec. 291; Hammett v. Dudley, 62 Md. 154; Hersey v. Bennett, 28 Minn. 86; s. c., 41 Am. Rep. 271; Goetz v. Piel, 26 Mo. App. 634; Warren v. Maloney, 29 Mo. App. 101; Dows v. Morewood, 10 Barb. (N. Y.) 183; Berrian v. Mayor etc. of N. Y., 4 Robt. (N. Y.) 538; Wheeler v. Cropsey, 5 How. Pr. (N. Y.) 288; McKee 7. Commonwealth, 2 Grant's Cas. (Pa.) 23;

Pierce v. Sweet, 33 Pa. St. 151; Souder v. Schechterly, 91 Pa. St. 83; Willis v. McIntyre, 70 Tex. 34, Shedd v. Wilson, 27 Vt. 478; Thompson v. Davenport, Wash. (Va.) 125.

This rule may be varied by the circumstances of the case. Wilson v. Hirst, Nev. & M. 746.

A general payment must be applied to that part of the account which is due at the time. Effinger v. Henderson, 33 Miss. 449.

The rule does not apply to cases where an appropriation has been made by the party entitled to make it, nor to cases in which, in the absence of such appropriation, the law makes it upon the relation of the parties to do justice between them. Upham v. Lefavour, 11 Met. (Mass.) 174.

Nor to cases where it can be gathered from the dealings of the parties that they intended the rule should not apply. City Discount Co. v. M'Lean, 9 L. R., C. P. 692; 43 L. J., C. P. 344; 30 L. T., N. S. § 883; Dulles v. De Forrest, 19 Conn. 190.

The rule will be applied though the earlier items of the account are barred by the statute of limitations, and the later ones are not. Fletcher v. Gillan, 62 Miss. 8.

So, too, though the earlier items accrued during the infancy of the debtor. Thurlow v. Gilmore, 40 Me 378.

Where, in the course of trade dealings between A and B, the accounts between them are periodically made up in such a manner as to show that sums paid to the credit of A have, at the termination of each periodical account, been allowed for, so as to diminish A's indebtedness on that account, the parties have applied the rule of Clayton's Case for themselves. Ex parte Smith, 25 W. R. 760.

The rule will be applied, though one item is better secured than another. Hersey v. Bennett, 28 Minn. 86; s. c., 41 Am. Rep. 271; Cushing v. Wyman, 44 Me. 121; Truscott v. King, 6 N. Y. 147. See also Berghans v. Alter, 9 Watts (Pa.) 386 and next head, "Appropriation to Secure Debts."

Where a husband has a general account with a merchant for supplies furnished and goods sold and delivered, some of which are chargeable against the wife's separate estate, payments made by the husband must be credited on the account generally, without regard to the question whether a part of the money was derived

from the wife's estate Lee v. Fannenbaum, 62 Ala. 401, Lewis v. Dillard, 66 Ala. t. See also May v. Taylor, 62 Miss. 500.

And the same principle applies where a sole debtor takes a partner, and the account continues to run with the firm. Lake v. Gaines, 75 Ala. 143.

Where a partnership is dissolved and one or more of the partners con tinue the business, and a creditor of the firm continues the credit and blends together his accounts with the old firm and the new, payments made by the new firm with specific application will be appropriated to the debts of the old firm. Hooper v. Keay, 1 L. R., Q. B. Div. 178; 34 L. T., N. Š. 574; 24 W. R. 485.

The creditor of a firm took partnership notes in settlement, and after the dissolution of the firm opened a running account with the continuing partner, by whose consent the amount paid by the creditor to take up the firm-notes upon their dishonor was charged in such account. The continuing partner made general payments after the amount of the notes was so charged. Held, that such payments must be applied to the earliest items of the account, and if they were sufficient to extinguish the notes and all earlier items in the account, the notes must be considered as paid. Allcott v. Strong, 9 Cush. (Mass.) 323.

To same effect, Laing v. Campbell,36

Beav. 3.

A factor agreed to make advances to a firm to be paid at a future day, and took the firm's mortgage to secure the same. Other debts to the factor for advances not secured were afterwards contracted by the firm. Payments made on the general account before the mortgage debt became due, without any special application, were held properly carried into the general account of debts assumed and advances made, leaving the balance at the foot of the account to constitute the mortgage debt. Williams v. Vance, 9 S. Car. 344; s. c., 30 Am. Rep. 26.

But where services were rendered upon a special promise of the party requesting them to pay for them in cash, payments will be applied to such services, though the debtor had an account against the person rendering the services. Sanford v. Clark, 29 Conn.

457.

The rule obtains even in cases where

the goods were sold on condition that they should not become the property of the purchaser till paid for. Crompton v. Pratt, 105 Mass. 255.

A bought goods under such a contract, to be paid for by instalments. Subsequently he bought other goods from time to time on like terms. He made payments from time to time for which he took general receipts, but never paid the entire amount due. It was held that the successive purchases were several contracts, and that the payments should be applied to the earliest items, and whenever enough was paid to amount to the price of the goods embraced in any one purchase, the title to such goods vested in A. Sweet v. Boyce, 134 Mass. 381.

The rule of the text has been applied even to cases where the creditor had the right of appropriation. Morgan v. Tarbell, 28 Vt. 498.

ΙΟ

1. 1 Am. Lead Cas. (3rd ed.) 292, 296; Field v. Holland, 6 Cranch (U. S.) 8; Gordon v. Hobart, 2 Story (U. S.) 243; The Antarctic, 1 Sprague (U. S.) 206; Williams v. Rawlinson, Moore 362; 3 Bing. 71, Ry. & Mood. 233; Johnson's Appeal, 37 Pa. St. 268; McCurdy v. Middleton, 82 Ala. 131; Chester v. Wheelright, 15 Conn. 562; Bowen v. Fridley, 8 Ill. App. 595; Bosley v. Porter, 4 J. J. Marsh. (Ky.) 621; Burks v. Albert, 4 J. J. Marsh. (Ky.) 97; s. c., 20 Am. Dec. 209; Thiac v. Jumonville, 32 La. Ann. 142; Gwinn v. Whitaker, 1 Har. & J. (Md.) 754; Dedham Bank v. Chickering, 4 Pick. (Mass.) 314; Wood v. Callaghan, 61 Mich. 402; Hersey v. Bennet, 28 Minn. 86; s. c., 41 Am. Rep. 271; Poulson v. Collier, 18 Mo. App. 583; Goetz v. Piel, 26 Mo. App. 634; Planters' Bank v. Stockman, I Freem. Ch. (Miss.) 502; Baine v. Williams, 10 Smed. & M. (Miss.) 113; Hilton v. Burley, 2 N. H. 193; Smith v. Wood, 1 N. J. Eq. 74; Leeds v. Gifford, 41 N. J. Eq. 464; Pattison v. Hull, 9 Cow. (N. Y.) 747; Thomas v. Kelsey, 30 Barb. (N. Y.) 268; Trullinger v. Kofoed, 7 Oregon 228; s. c.,

33 Am. Rep. 708; Pierce v. Sweet, 33 Pa. St. 151; McQuaide v. Stewart, 48 Pa. St. 198; Garrett's Appeal, 100 Pa. St. 597; Sager v. Warley, Rice Eq. (S. Car.) 26; Heilbron v. Bissell, i Bailey Eq. (S. Car.) 430; Gregory v. Forrester, 1 McCord Eq. (S. Car.) 318; Jones v. Kilgore, 2 Rich. Eq. (S. Car.) 63; Briggs v. Williams, 2 Vt. 283; Langdon v. Bowen, 46 Vt. 512. See Casey v. Weaver, 141 Mass. 280; and compare New Orleans Ins. Co. v. Tio, 15 La Ann. 174; McTarish v. Carroll, 1 Md. Ch. 160; Dorsey v. Garraway, 2 Har. & J. (Md.) 402; S. C., 3 Am. Dec. 557; Hollister v. Davis, 54 Pa. St. 508; Worthley v. Emerson, 116 Mass. 374; Neal v. Allison, 50 Miss. 175; Windsor v. Kennedy, 52 Miss. 164; Moore v. Kiff, 78 Pa. St. 96; Schuelenburg v. Martin, 1 McCrary (U. S.) 348; Ross v. McLauchlan, 7 Gratt. (Va.) 86.

It would seem that the law in England is that the money is to be first applied to the secured debt. Kinnaird v. Webster, L. R., 10 Ch. Div. 139. Compare Taylor v. Kymer, 3 B. & Ad. 320.

A mortgage was given to secure a note upon which there was a surety, and afterwards another mortgage on other property was executed by the same mortgagor to the same mortgagee to secure said note, and also another note given by the mortgagor to the same person. The latter mortgage was foreclosed first, and it was held that the proceeds should be applied pro rata to both notes.

Graham v. Jones, 24 S. Car. 241. See Orleans Co., Nat. Bank v.Morse, 3 L. Rep., Ann. 302; 21 N. Y. St. Rep. 609.

Where real and personal property were sold in one transaction, and one note given for the purchase-money, payments made by the grantee with any specific appropriation will be appropriated by the court to discharge the price of the personalty, and a vendor's lien will be decreed against the realty for the balance due.

Mc

Cauley v. Holtz, 62 Ind. 205. White v. Blakemore, Lea (Tenn.) 49.

A material man had an account against a vessel, some of the items of which were maritime and others not. Held, that payments made on general account should be first applied to the items which were not maritime. The D. B. Steelman, 5 Hughes (U. S.) 210.

A having a legal claim on B on drafts accepted by B, and having also possession of a mortgage executed by B to a third person, of which he might compel an assignment in equity, B paid money to A on account, without prejudice to his claim on any securities. It was held that the payment must be applied to the bills. Birch v. Tebbutt, 2 Stark 74.

A being indebted to B to the amount of $10,000 gave him a mortgage to secure $3,000 thereof. A subsequently made several payments to B, none of which were specifically applied by either party. A creditor of A then levied on his equity of redemption in the mortgaged land and bid it in at $1. B subsequently filed a bill for foreclosure of the mortgage, when the purchaser of the equity of redemption claimed that the payments made should be applied to the mortgage debt. Held, that such application would not be made, but that the payments would be applied to the unsecured part of the debt. Chester v. Wheelright, 15 Conn. 562.

A executed two notes to B who indorsed and delivered them to C. At the maturity of the first note C sued both A and B, obtaining judgment against A's administrators, but being nonsuited as to B. A having died insolvent, C had the amount of his judgment and the remaining note both allowed against his estate, and received a dividend of 72 per cent. on the whole demand. Held, that this dividend should be credited pro rata on judgment and the note, and that it was not proper to appropriate it first to the satisfaction of the judgment, and the balance only on the note. Stamps v. Brown, Walk. Ch. (Miss.) 526.

So, where the payment is made by one who is under a several, as well as a joint liability to the creditor, the law will apply it to the several liability, unless there are circumstances showing that a different appropriation was intended, or that such

Where the debtor is indebted on his own account and also as to surety for another, a payment made without any designation by him will be applied to his own debt. Newman v. Meek, 1 Smed. & M., Ch. (Miss.) 331.

If the money paid were derived from the fund from which the joint liability was to be met, the rule would be different. Livermore v. Claridge, 33 Me. 428; Brander v. Phillips, 16 Pet. (U. S.) 121.

Thus where a farm lease is signed by two as lessees, grain raised on the farm and delivered to the lessor cannot be applied to the individual debt of one lessee, leaving the rent unpaid, without the consent of both, no matter whether they are co-tenants, or one is surety for the other. Kahler v. Hanson, 53 Iowa 698.

Where several claims against the same party are placed in an officer's hands for collection, money collected by him should be first applied to those claims whose security is most precarious. Ramsour v. Thomas, 10 Ired. L. (N. Car.) 165; State v. Thomas, 11 Ired. (N. Car.) 251.

Where an assignment is made for the benefit of such creditors as become parties thereto and release their claims, a creditor who has several claims against the debtor must apply any dividends received pro rata to all the claims, whether secured or unsecured. Commercial Bank v. Cunningham, 24 Pick. (Mass.) 270; s. C., 35 Am. Dec. 322; Scott v. Ray, 18 Pick. (Mass.) 360.

The following additional cases illustrate the rules governing courts in applying payments, where neither the debtor nor the creditor has exercised the right to make the application:

Alabama.-Robinson v. Allison, 36 Ala. 525; Bradley v. Murray, 66 Ala. 269; Moses v. Noble, 85 Ala. 407.

Arkansas.-Byers v. Fowler, 14 Ark. 86; Kline v. Ragland, 47 Ark. 111; Lazarus v. Friedheim, 51 Ark. 371; Rogers v. Yarnell, 51 Ark. 198.

California.-Duncan v. Thomas, 81

Cal. 56.

Colorado-Mackey v. Fullerton, 7 Colo. 556.

Connecticut.-Selleck v. Sugar Hollow Turnpike Co., 13 Conn. 453; Fairchild v. Holly, 10 Čonn. 175; Welch

v. Wadsworth, 30 Conn. 149; s. c., 79. Am. Dec. 239; Tomlinson Carriage Co. v. Kinsella, 31 Conn. 268.

Georgia.-Price v. Cutts, 29 Ga. 142; s. C., 74 Am. Dec. 52; Mercer v. Tift, 79 Ga. 174; Lawton v. Blitch, 83 Ga. 663.

Illinois.―Bowen v. Fridley, 8 Ill. App. 595; Dehner v. Helmbacher Forge etc. Mills, 7 Ill. App. 47; M'Farland v. Lewis, 3 Ill. 344; Stanwood v. Smith, 3 Ill. App. 647.

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

Kentucky.-Lansdale v. Mitchell, 14 B. Mon. (Ky.) 281; Apperson v. Exchange Bank (Ky. 1888), 10 S. W. Rep. 801.

Louisiana.-Moore v. Gray, 22 La. Ann. 289; Duncan v. Helm, 22 La. Ann. 418; Byrne v. Grayson, 15 La. Ann. 457.

Maine. Bangor Boom Corp. v. Whiting, 29 Me. 123; Starrett v. Barber, 20 Me. 457; Cushing v. Wyman, 44 Me. 121.

Maryland.-Suter v. Ives, 47 Md. 520; Frazier v. Lanahan, 71 Md. 131. Massachusetts.-Stanwood 'v. Owen, 14 Gray (Mass.) 195; Shaw v. Pratt, 22 Pick. (Mass.) 305.

Minnesota.-Scheffer v. Tozier, 25 Minn. 478; Jefferson v. Church of St. Matthew, 41 Minn. 392.

Mississippi-Miller v. Leflore, 32 Miss. 634; Clark v. Clark, 58 Miss. 68; Windsor v. Kennedy, 52 Miss. 164; Cage v. Iler, 5 Smed. & M. (Miss.) 410; S. C., 43 Am. Dec. 521.

Missouri.-St. Joseph v. Merlatt, 26 Mo. 233; 8. C., 72 Am. Dec. 207.

Nebraska.-Ashby v. Washburn, 23 Neb. 571.

New Hampshire.-Bancroft v. Holton, 59 N. H. 141; Price v. Dearborn, 34 N. H. 481.

New Jersey-Ayers v. Staley (N. J. 1889), 18 Atl. Rep. 1046; Oliver v. Phelps, 20 N. J. L. 180; White v. Trumbull, 15 N. J. L. 314; s. c., 29 Am. Dec. 687.

New York. - Righter v. Stall, 3 Sandf. Ch. (N. Y.) 608; Griswold v. Onondaga Co. Sav. Bank, 93 N. Y. 301; Camp v. Smith, 1 N. Y. Supp. 375; Thompson v. St. 'Nicholas Nat.

But pay

Bank, 113 N. Y. 325; Truscott v. King, 6 N. Y. 147; National Park Bank v. Seaboard Bank, 114 N. Y. 28. North Carolina.-Johnson v. Johnson, 5 Jones Eq. (N. Čar.) 167. Oregon. Oregon 423.

-

State v. Chadwick, 10

Pennsylvania. Chancellor v. Schott, 23 Pa. St. 68; Pardee v. Markle, 111 Pa. St. 548; s. c., 56 Am. Rep. 299; Johnson's Appeal, 37 Pa. St. 268; Smith v. Brooke, 49 Pa. St. 147; Bell's Appeal (Pa. 1887), 8 Atl. Rep. 927; Appeal of Pennsylvania Co. etc. (Pa. 1886), 7 Atl. Rep. 70.

South Carolina.-Ordinary v. McCollum, 3 Strobh. (S. Car.) 494; Smith v. Macon, I Hill Eq. (S. Car.) 339; Carson v. Hill, 1 McMull. (S. Car.) 76; Huger v. Boucquet, 1 Bay (S. Car.) 497.

Texas.-Tucker v. Brackett, 25 Tex. Supp. 199; Lazarus v. Henrietta Nat. Bank, 72 Tex. 354.

Vermont.-Rosseau v. Cull, 14 Vt. 83; Robinson v. Doolittle, 12 Vt. 246; Backman v. Wright, 27 Vt. 187; s. c., 65 Am. Dec. 187.

Virginia.-Ross v. McLauchlan, 7 Gratt. (Va.) 86; Pitzer v. Logan, 85 Va. 374.

West Virginia.-Buster v. Holland, 27 W. Va. 510.

Wisconsin.-Robbins v. Lincoln, 12 Wis. 1; Fay v. Lovejoy, 20 Wis. 403.

United States.-McNamara v. Condon, 2 MacArthur (D. C.) 365; The Antarctic, 1 Sprague (U. S.) 206; Schulenburg v. Martin, 1 McCrary (U. S.) 348; The D. B. Steelman, 5 Hughes (U. S.) 210; Postmaster-General v. Norvell, Gilp. (U. S.) 106; Bennett v. McGillan, 28 Fed. Rep. 411; The Martha, 29 Fed. Rep. 708; Mack v. Adler, 22 Fed. Rep. 570.

1. 2 Greenl. Evid. (10th ed.), § 516; Wolffe v. Nall, 62 Ala. 24; Lerche v. Brasher, 104 N. Y. 157; Clark v. Mullen, 16 Neb. 481; Savage v. Aiken, 21 Neb. 605; Tootle v. Maben, 21 Neb. 617.

Payment should be pleaded by confession and avoidance. Goodchild v. Pledge, 1 Mees. & W. 363; 5 Dowl. Pr. Cas. 89; 2 Gale 7.

Though plaintiff in his pleading