Sec 925

When a creditor holds several claims against an insolvent debtor, and when a specific sum is sent to him on account of these debts, the object being to effect a composition for debts, there must be equality of appropriation, and the creditor cannot apply the money to the reduction of debts for which he holds security, leaving others unreduced.6 - Where a surety has paid the debt in full, the creditor "will be trustee for him as to the claim to the composition upon that debt.7 The same rule applies with dividends in bankruptcy; they are appropriated ratably in payment of all the debts."3

Sec 926

The right of appropriation cannot be exercised by any but debtor and creditor. No third party can be heard for the purpose of compelling any specific appropriations.1 And a surety cannot compel such an application of payments by the creditor as would most relieve him.2 If, however, such may be inferred to be the intention of the debtor, the payment will be appropriated to relieve the surety.3

Insolvent distribution must be equal.

1 Marryatts V. White, 2 Stark. 102; and see Shaw V. Picton, 4 B. & C. 715; Kirby V. Marlborough, 2 M. & S. 18; Roberts V. Garnie, 3 Caines, 14; see Tayloe V. Sandiford, 7 Wheat. 14; Stone V. Seymour, 15 Wend. 19; Mitchell V. Dall, 2 H. & Gill, 160; Scott V. Fisher, 4 T. B. Mon. 387.

2 Goddard V. Cox, 2 Strange, 1194; Sawyer V. Tappan, 14 N. H. 352; Fowke V. Bowie, 4 Har. & J. 566.

3 Thompson V. Brown, M. & M. 40.

4 Simson V. Ingham, 2 B. & C. 65;.

Williams V. Rawlinson, 3 Bing. 71; 2 Parsons, 633; citing Smith V. Wigley, 3 Moore & S. 174; Livermore V. Rand, 6 Fost. 85.

5 Mitchell V. Dall, 4 Gill & J. 361.

6 Bardwell V. Lydall, 7 Bing. 489; Thompson V. Hudson, L. R. 6 Ch. 320; see Merrimack Bk. V. Brown, 12 N. H. 320; Com. Bk. V. Cunningham, 24 Pick. 270.

7 Paley V. Field, 12 Ves. 435.

8 Leake, 2d ed. 916, citing Raikes V. Todd, 8 A. & E. 846.

Sec 927

If the debtor does not expressly appropriate, and if there are no circumstances from which an implied appropriation on his part may be inferred, the right of designation, according to the weight of authority in England and the United States, is with the Hence, if there be no designation by the debtor, express or implied, no matter what may be the grade of the debt, the creditor may select it for payment, in preference to other debts of higher sanction. Thus he may prefer a simple contract debt to a specialty.4 If the debtor's intent is ascertainable, however, that of the creditor must yield.5 And where a creditor holds two claims against a debtor who pays in money without designation, one of those claims being on the creditor's individual account, and the other on his account as trustee, the creditor cannot absorb the payment in his own debt, to the exclusion of the debt due his cestui que trust.6

Right is one which third parties cannot exercise.

If debtor do not appropriate, creditor may do so.

creditor.

1 Gordon V. Hobart, 2 Story, 264.

2 Wright V. Hickling, L. R. 2 C. P. 199; see Plomer V. Long, 1 Stark. 122.

3 Marryatts V. White, 2 Stark. 101; but see Postmaster-General V. Norvell, Gilpin, 106.

4 Infra, sec 930 et seq.; Peters V. Anderson, 5 Taunt. 596; Bosangust V. Wray, 6 Taunt. 597; Cremer V. Hig-ginson, 1 Mason, 338; Commonwealth Nat. Bank V. Mech. Nat. Bank, 94 U. S. 437; Mayor of Alexandria V. Patton, 4 Cranch, 317; Franklin Bank V. Cooper, 36 Me. 222; Pierce V. Knight, 31 Vt. 701; Harding V. Tefft, 75 N. Y. 461; Smuller V. Union Canal Co., 37 Penn. St. 68; Lewis V. Pease, 85 111.

35; Davis Sewing Machine V. Buchlis, 89 111. 237; Hamilton V. Benbury, 2 Hayw. 385; Brice V. Hamilton, 12 S. C. 32; Hargroves V. Cooke, 15 Ga. 321; Allen V. Mining Co., 73 Mo. 688; Trul-linger V. Kofoed, 7 Oregon, 228; see other cases cited infra.

5 Supra, sec 924; Reed V. Boardman, 20 Pick. 441.

6 Cole V. Trull, 9 Pick. 325; Scott V. Ray, 18 Pick. 361; see Mahaiwe Bank V. Peck, 127 Mass. 298. That a creditor may appropriate by our law at his election, in all cases where the debtor does not appropriate, see infra, sec 929; and. see Harding V. Wormley, 8 Baxt. 578; Hyatt V. Clements, 65 Ind. 12.