If a partner in a firm owe a private debt to one who is also a creditor of the firm, and make to this creditor a general payment, but of money belonging to the firm, the payment must be appropriated to the discharge of the partnership debt. (b) 3

(w) Waller v. Lacy, I Man. & G. 54. Here an attorney, having several demands against his client, some of which were barred by the statute of limitations, and some not, received from a third person a sum of money on behalf of his client, and claimed the right to apply such sum to the payment of the earliest items in his own account against the client; but the court held that he had no such right.

(x) See Field v. Holland, 6 Cranch, 8; Plomer v. Lone, 1 Stark. 153; Smith v. Lloyd, 11 Leigh, 512, Stamford Bank v. Benedict, 15 Conn. 437; Vance v. Monroe, 4 Gratt. 53.

(y) Pattison v. Hall, 9 Cowen, 747, 765. And see Dorsey v. Gassaway, 2 Harris & J. 402; Gwinn v. Whitaker, 1 id. 754; Robinson v. Doolittle, 12 Vt. 246; Anonymous, 12 Mod. 559. But see, contra, Anonymous, 8 Mod. 236; Chitty v. Naish, 2 Dowl. 511; Field v. Holland, supra;

Planters Bank v. Stockman, 1 Freem. Ch. 502; Hilton v. Burley, 2 N. H. 193; Jones v. Kilgore, 2 Rich. Eq. 64; Moss v. Adams, 4 Ired. Eq. 42; Ramsour v. Thomas, 10 Ired. 165.

(z) Robert v. Garnie, 3 Caines, 14.

(a) Niagara Bank v. Rosevelt, 9 Cowen, 409; Newman v. Meek, 1 Smedes & M. Ch. 431; Portland Bank v. Brown, 22 Me. 295. So a general payment is to be referred to a debt due, rather than to one not yet due. Seymour v. Sexton, 10 Watts, 255; Hammersley v. Knowlys, 2 Esp. 666; Bacon v. Brown, 1 Bibb, 334; Stone v. Seymour, 15 Wend. 19; Baker v. Stackpoole, 9 Cowen, 420; McDowell v. Blackstone Canal Co. 5 Mason, 11. But by express agreement, a payment may be applied to a debt not yet due. Shaw v. Pratt, 22 Pick. 305.

(b) Thompson c. Brown, Moody & M. 40. And per Abbott, C. J.: "The general

1 Foster v. McGraw, 64 Penn. 8t. 464.

2 Early v. Flannery, 47 Vt. 253.

3 Where a partner was individually indebted to the creditor on a store account and a note and mortgage, and with his copartner on firm account, a general payment to be applied to the indebtedness will authorise the creditor to apply it as he pleases to either individual liability, but not to the partnership liability. Miles v. Ogden, 54 Wis. 57a rule certainly is, that when money is paid generally, without any appropriation, it ought to be applied to the first items in the account; but the rule is subject to this qualification, that when there are distinct demands, one against persons in partnership, and another against one only of the partners, if the money paid be the money of the partners, the creditor is not at liberty to apply it to the payment of the debt of the individual; that would be allowing the creditor to pay the debt of one person with the money of others." And see Fairchild v. Holly, 10 Conn. 175; Johnson v. Boone, 2 Harring. 172; Sneed v. Wiester, 2 A. K. Marsh. 277.

It seems to be settled, that where one of several partners dies, the firm being in debt, and the surviving partners continue their dealings with a particular creditor, and the latter blends his transactions with the firm before and after such death * together, the payments made from time to time by the surviving partners must be applied to the old debt. (c)1 It will be presumed that all the parties have agreed, and intend to consider the whole transaction as continuous, and the entire account as one account. (d) And, in general, the doctrine of appropriation, and the right of election, apply only where the debts or accounts are distinct in themselves, and are so regarded and treated by the parties. Where the whole may be taken as one continuous account, payments are, generally, but not universally, applied to the earlier items of the account. (e)2

The due exercise of the right of appropriation by the creditor may often be of great importance to the surety of the debtor.

(c) Per Bayley, J., in Simson v. Ingham, 2 B. & C. 60. And see, to the same effect, Clayton's case (Devaynes v. Noble), 1 Meriv. 529, 604; Simson v. Cooke, 1 Bing. 452; Williams v. Rawlinson, 3 id. 71; Bodenham v. Purchas, 2 B. & Ald. 39; Toulmin v. Copland, 3 Younge & C. 625, 1 West, 164; Smith v. Wigley, 3 Moore & S. 174; Livermore v. Rand, 6 Foster, 85. But if a new account is opened with the new firm, the creditor may apply a general payment to the new account. Logan v. Mason, 6 Watts & S. 9.

(d) Per Bayley, J., in Simson v. Ingham, 2 B. & C. 65.

(e) Clayton's case (Devaynes v. Noble), 1 Meriv. 529, 609. This is the leading case upon this point. See also Brooke v. Enderby, 2 Brod. & B. 70; United States v. Kirkpatrick, 9 Wheat. 720; Jones v. United States, 7 How. 681; Postmaster-General v. Furber, 4 Mason, 332; United States v. Wardwell, 5 id. 82; Gass v. Stinson, 3 Sumner, 98; Fairchild v. Holly, 10 Conn. 175; McKenzie v. Nevius, 22 Me. 138; United States v. Bradbury, Daveis, 146. See also cases cited in preceding note. But payment will not be applied to the earliest items in an account, if a different intention is clearly expressed by the debtor, or by both parties, or where such intention can be gathered from the particular circumstances of the case. See Taylor v. Kymer, 3 B. & Ad. 320; Henniker v. Wigg, 4 Q. B. 792; Capen v. Alden, 5 Met. 268; Dulles v. De Forest, 19 Conn. 190; Wilson v. Hirst, 1 Nev. & M. 742; Pierce v. Knight, 31 Vt. 701.

Where money is due to a firm and to an individual member, and the latter has assigned his claim to the firm, it is immaterial to which account payments are applied. Badger v. Daenicke, 56 Wis. 678.

1 Hooper v. Keay, 1 Q. B. D. 178; Coleman v. Lansing, 65 Barb. 54. See Dawson v.Wilson, 55 Ind. 216.

2 Jackson v. Johnson, 74 N. Y. 607; German Lutheran Trustees v. Heise, 44 Md. 453; Sprague v. Hazenwinkle, 53 Ill. 419; Hill v. Bobbins, 22 Mich. 475. See City Discount Co. v. McLean, L. R. 9 C. P. 692. This presumption will not be rebutted by the fact that the earliest items are for goods, the title to which is not to vest in the purchaser until they are paid for, although the seller enters a memorandum to that effect on his books. Crompton v. Pratt, 105 Mass. 255.