There are many cases relating to the appropriation of a payment, where the creditor has distinct accounts against the debtor. In Cremer v. Higginson, (j) l Mr. Justice Story lays down with much precision the general rules governing these cases. First, a debtor who owes his creditor money on distinct accounts, may direct his payments to be applied to either, as he pleases.2 Second, if the debtor makes no appropriation, the creditor may apply the money as he pleases. (i) 3 Third, if neither party makes a specific appropriation of the money, the law will appropriate it as the justice and equity of the case may require.4 These rules seem to apply, although one of the debts be due on specialty and the other on simple contract. (l) 5 If one owe money in respect * of a debt contracted by his wife before marriage, and also a debt of his own, and pay money generally, the creditor may apply the payment to either demand. (m) And if one of the debts be

(j) 1 Mason, 338. And see Franklin Bank v. Hooper, 36 Me. 222; Smaller v. Union Canal Co. 37 Penn. St. 68.

(k) Blackman v. Leonard, 15 La. An. 59.

(l) Brazier v. Bryant, 2 Dowl. P. C. 477; Chitty v. Naish, id. 511; Mayor, etc., of Alexandria v. Patten, 4 Cranch, 317;

Peters v. Anderson, 5 Taunt. 596; Hamilton v. Benbury, 2 Hayw. 385; Hargroves v. Cooke, 15 Ga. 221; Pierce, Clark, & Co. v. Knight, 31 Vt. 701; Heints v. Cahn, 29 Ill. 308. And see Pennypacker v. Umberger, 22 Penn. St. 492.

(m) Goddard v. Cox, 2 Stra. 1194. In this case the defendant was indebted to barred by the statute of limitations, and the other not, and the money be paid generally, the creditor may apply the payment to the debt that is barred; (n) l but, by the weight of authority, he may not make use of this payment to revive the debt, and remove the bar of the statute. (o)

1 See also Bennett v. Austin, 81 N. Y. 308.

2 Lee v. Early, 44 Md. 80; Champenois v. Fort, 45 Miss. 355, Levystein v. Whitman, 59 Ala. 345 ; Trullinger v. Kofoed, 7 Oreg. 228. But one who as part consideration of a conveyance has agreed to discharge a mortgage and has made payments to the mortgagee, must be deemed to have made the payments on the mortgage, and cannot convert them into the consideration for a transfer of the mortgage debt, which he has induced the mortgagee to make. Burnham v. Dorr, 72 Me. 198.

3 Commonwealth Bank v. Mechanics' Bank, 94 U. S. 437, 439; Harding v. Tift, 75 N. Y. 461 ; Davis, etc. Co. v. Buckles, 89 Ill. 237; Coxwell v. De Vaughn, 55 Ga. 643.

4 Where a note was given which both covered a debt secured by a mortgage and certain prior unsecured debts, payments made generally on the note must be applied pro rata to the secured and unsecured indebtedness. Shelden v. Bennett, 44 Mich. 634. And where several debts were secured by a mortgage, and an indorsed promissory note was given in extension of one of them at its maturity, the mortgagor is not bound to apply to the debt secured by the note the proceeds of a foreclosure sale, they being less than the entire sum secured. West Coal Co. v. Kilderhouse, 87 N. Y. 430. When the holder of a note is a bank at which the maker has an account, and the maker after maturity deposits a sum sufficient to cover it, but gives no directions to apply it in payment, this is not payment, nor does the bank discharge the indorsers by failing to so apply it Newburgh Bank v. Smith, 66 N. Y. 271. Where the defence to a note was payment by a joint maker, the entry of a credit on a separate account of the joint-maker with the plaintiff is inadmissible to prove that the payment was applied to the account and not to the note. Craig v. Miller, 103 Ill. 605.

5 Funds arising from a security for a particular debt should be applied in its satisfaction. Sanders v. Knox, 57 Ala. 80.

It is not necessary that the appropriation of the payment should be made by an express declaration of the debtor; for if his intention and purpose can be clearly gathered from the circumstances of the case, the creditor is bound by it. (p) 2 If the debtor, at the time of making a payment, makes also an entry in his own book, stating the payment to be on a particular * account, the plaintiff on account of debts contracted by his wife dum sola, and also on account of debts contracted by himself. His wife was also indebted to the plaintiff, as executrix. The defendant made payments to the plaintiff on account generally, without directing what debts they should be applied to. Held, that the plaintiff might elect whether to apply the payments to discharge the debts contracted by his wife dum sola, but could not apply them to discharge the debts due from the wife as executrix.

(n) Mills v. Fowkes. 5 Bing. N. C. 455. In this case Tindal, C. J., said: "The civil law, it is said, applies the payment to the more burdensome of two debts, where one is more burdensome than the other; but 1 do not think that such is the rule of our law. According to the law of England, the debtor may, in the first instance, appropriate the payment; solvitur in modum solventis; if he omit to do so, the creditor may make the appropriation; recipitur in modum recipientis; but if neither make any appropriation, the law appropriates the payment to the earlier debt. See also Williams v. Griffith, 5 M. & W. 300; Logan v. Mason, 6 Watts & S. 9; Livermore v. Rand, 6 Foster, 85; Watt v. Hoch, 25 Penn. St. 411. But if a creditor has several claims, some of which are illegal, and so not by law recoverable, he cannot appropriate a general payment to such illegal claims. Caldwell v. Wentworth, 14 NT H. 431; Wright v. Laing, 3 B. & C. J65; Arnold v. The

Mayor, etc. of Poole, 4 Man. & G. 860; Ex parte Randleson, 2 Deacon & Ch. 534. But see, contra, Philpott v. Jones, 2 A. & E. 41; Cruickshanks v. Rose, 1 Moody & R. 100; Treadwell v. Moore, 34 Me. 112.

(o) Mills v. Fowkes, 5 Bing. N. C. 455 ; Nash v. Hodgson, 6 De G., M. & G. 474, 31 Eng. L. & Eq. 555 ; Pond v. Williams,