§ 114. To authorize a presumption of payment of a bond, twenty years must have elapsed, exclusive of the period of the disability of the holder to sue for the same. Dunlop v. Ball, 2 Cr., 180.

§ 115. There is no presumption of payment of a bond held by an alien enemy during a war. But it is not so clear that upon a bond dated in 1773, and on which suit was not brought until 1802, the same length of time after the removal of the disability is necessary to raise the presumption of payment as would be required if the bond had borne date at the time of such removal. Ibid.

§ 116.

against the government.- Presumption of payment from lapse of time cannot be raised against the government. United States v. Williams, 4 McL., 567.

§ 117. The statute of limitations does not run against the government, nor is it chargeable with delays so as to raise a presumption of payment. United States v. Williams, 5 McL., 133. § 118. in admiralty. A forbearance to sue for nine months, even if the libelant was on the spot and the vessel within the power of the court during that time, does not raise a presumption of payment, either in the admiralty or any other court. Holmes v. The Lodemia, Crabbe, 434.

§ 119. Payment by deed. If a creditor accepts a deed of land in payment of a debt it is a bar to an action for the debt, and if the title be defective the creditor must look to his warranty. Miller v. Young, 2 Cr. C. C., 53.

§ 120. Where judgment has been rendered against a defendant who has subsequently conveyed real estate to the plaintiff, he is entitled, under a plea of payment to a sci. fa. issued to revive the original judgment, to a credit for the value of the property at the date of the conveyance. United States v. Thompson, Gilp., 614.

§ 121. By devise. It is a general rule that a devise of land is not a satisfaction or part performance of an agreement to pay money. Bryant . Hunter, 3 Wash., 48.

§ 122. By chattels. In action for breach of contract the court cannot, unless empowered by statutory provision, compel the plaintiff to accept as part payment, or in mitigation of damages, the property the non-delivery of which occasioned the suit, if tendered in open court by the defendant. Colby v. Reed, 9 Otto, 560.

§ 123. Where the defendant sets up as a defense that certain collaterals assigned to the plaintiff were accepted by the latter in satisfaction of the debt, and not as collateral security, he must clearly establish the truth of his allegation. Where the written assignment states that the property was assigned “as collateral security," and the face value of the collaterals is less than the amount of the debt, such facts tend strongly to show the intrinsic improbability that any agreement was made that the collaterals were to be taken in satisfaction of the debt, and will control in the absence of direct proof that they were so taken. Brown v. Hiatt, 1 Dill., 372.

§ 124. Where a creditor wrongfully takes and carries away personal property belonging to his debtor, no part of the debt due him is thereby extinguished, for a debt cannot be extinguished by a credit or set-off arising from unliquidated damages for a trespass. Palmer v. Burnside, 1 Woods, 179.

§ 125. Miscellaneous.- A court of equity will not appropriate a sum of money paid for the extension and renewal of a note as a payment on the indebtedness of the maker, unless the complainant's bill shows a case of usury and prays relief on that ground. McNamara ť. Condon, 2 McAl., 364.

§ 126. A payment made to the mortgagee, after an assignment of the mortgage, but before the mortgagor has notice of it, is good against the assignee. Hubbard v. Turner, 2 McL.,

519.

§ 127. Where a suit may be prosecuted by the drawer of a bill of exchange, in the name of the payees for the benefit of the drawer, payment of the bill by the drawer to the payees is no bar. Davis v. McConnell, 3 McL., 331.

§ 128. If money is to be paid, or any other act to be done, on a certain day and at a certain place, the legal time of performance is the last convenient hour of the day for transacting business. But if the parties meet at any part of the day, a tender and refusal at the time of the meeting are sufficient. Savary v. Goe, 3 Wash., 140.

§ 129. Where a suit was brought for a balance of account for advances made at Boston, upon goods consigned to the plaintiffs at Trieste, and sold by them at a great loss, it was held that the balance was not payable at Trieste but at Boston, and, therefore, the balance was to be estimated in damages at the par and not at the rate of exchange. Grant v. Healey, 3 Sumn., 523; 2 L. Rep., 113.

§ 130. The comptroller of the treasury has a right to direct the marshal to whom he shall pay money received upon execution, and a payment according to such directions is good; and it seems he may avail himself of it upon the trial, without having submitted it as a claim to the accounting officers of the treasury. United States v. Giles, 9 Cr., 212.

§ 131. A promissory note, given as collateral or counter security for a note borrowed, is not discharged or vacated by the borrower's discharging or taking up the borrowed note with funds furnished by the lender. Smith v. Johuson, 2 Cr. C. C., 645.

$132. Where, by a contract between American citizens, a payment is to be made in a foreign country, the intention of the parties must govern the form of payment. Searight v. Calbraith, 4 Dall., 325.

§ 133. A citizen of North Carolina, being indebted to a citizen of Pennsylvania at the time of the breaking out of the late rebellion, was compelled to pay, by proceedings under an act of the self-styled Confederate congress for the sequestration of the estates of alien enemies, the amount of such indebtedness to the receiver appointed under the sequestration act. Held, that such payment was in no sense a payment and satisfaction of the debt due the citizen of the loyal state. Shortridge v. Macon, 1 Abb., 58; Chase's Dec., 136.

§ 134. Legal and equitable assets were in the hands of an administrator, he being also commissioner to sell the real estate of a deceased person; and by a decree of the court of chancery he was directed to make payment of debts due by the intestate out of the funds in his hands, without directing in what manner the two funds should be applied. Payments were made under this decree to the creditors by the administrator and commissioner, without his stating, or in any way making known, whether the same were made from the legal or equitable assets. A balance remaining in his hands, unpaid to those entitled to the same, the sureties of the administrator, after his decease, claimed to have the whole of the payments made under the decree credited to the legal assets, in order to obtain a discharge from their liability for the due administration of the legal assets. It was held that their principal having failed to designate the fund out of which the payments were made, they could not do so. Backhouse v. Patton, 5 Pet., 160.

$ 135. The proceeds of certain property seized under the confiscation act were by order of the court turned over to the clerk of the court, who in turn deposited them to his credit, as clerk, in the bank of S., having been notified by the interior department that such bank had been designated by the secretary of the treasury as a depository of public money. Judgment in the condemnation suit was rendered in favor of the owner of the property, but in the meantime the bank had failed. Upon suit by the owner against the United States, held, that the depositing of the proceeds in the above manner was not a payment into the treasury, and hence the government was not liable for the amount lost by the failure of the bank. Branch v. United States,* 12 Ct. Cl., 281.

§ 136. A. and B. shipped a cargo of goods for C., but consigned them to D., the partner of E. Before the arrival of the goods, D. died, C. became bankrupt, and the defendant, under a power of attorney from E., took possession of them, sold them and remitted part of the proceeds to E., at the same time informing A. and B. of his having taken possession of the goods; and when he remitted in part their proceeds to E. he advised A. and B. of such remittances, who approved of the whole of his proceedings. Held, that the defendant did not become the agent of the shippers, but was the agent of E.; and that any remittances made to E., of which advice was not given by the defendant to A. and B. that they were for the proceeds of the goods, were not payments to A. and B. Holt v. Dorsey, 1 Wash., 396.

SUMMARY

II. APPLICATION OF PAYMENTS.

General rule, SS 137, 147.--When the law will apply, § 138.- By a receipt, § 139.Voluntary payments, § 140, 141.— Proceeds of a judicial sale, §§ 142, 143.— Payment by administrator, § 144.- Running accounts, §§ 138, 145, 146, 149–153.— Payment to treasury department, § 148.

§ 137. When a debtor makes payment to a creditor to whom he is indebted in several sums and on various accounts, as by note, bond, and book account, he has a right to direct to what account or what debt the payment shall be appropriated. If the debtor pays generally on account, the creditor may make the appropriation. But the application, whether made by the debtor or creditor, must be made at the time of the payment. United States v. Bradbury, 154-158.

§ 138. If no appropriation is made by either party at the time the payment is made, neither debtor nor creditor is permitted to go back afterwards and apply the payment, but the law intervenes and makes the application according to its own notions of justice between the parties. In cases of open running accounts, where there have been a number of successive charges and payments, the law applies these payments to the extinguishment of the debits in the order of time in which they stand in the account, each payment being appropriated to the extinguishment of the oldest charge on the debtor side of the account. Ibid.

§ 139. When the appropriation of a payment is made by a receipt, it is by the creditor and not by the debtor that it is made. He executes the instrument and the words are his; and if the debtor takes the receipt without objection, he will be considered as consenting to the application thus made by the creditor, and it will be binding upon him unless he has been overreached by fraud or surprise. Ibid.

§ 140. The rule as to voluntary payments is that the debtor may direct the application of such payments upon one of several debts due from him to the creditor. Nichols v. Knowles, $159.

§ 141. A voluntary payment within the meaning of this rule is one made by the debtor on his own motion and without any compulsory process. A payment made upon execution does not fall within the rule. Ibid.

§ 142. Where, under the statute of Minnesota, a chattel mortgage is placed in the hands of the sheriff with orders to seize and sell the mortgaged property for the purpose of paying the mortgage debt, the sale is made by virtue of legal proceedings, and the proceeds of the sale are in no sense voluntary payments, the application of which the debtor is authorized to direct; but inasmuch as the mortgage does not direct how the proceeds shall be applied, the creditor has the right to apply them to the payment of any of the debts secured by the mortgage. Ibid.

§ 143. Where some of the notes secured by chattel mortgage were also secured by the indorsement of a third party, it may be inferred that the parties intended to apply the proceeds of the sale of mortgaged property first to the notes not otherwise secured, so as to give the creditor the full benefit of all of his security. Ibid.

§ 144. In case of payments made by an administrator of an insolvent estate, all such payments must be deemed to be made on general account, and pro rata towards the extinguishment of all the debts due to the creditor. The United States, as creditor, having priority by law in such cases does not change the rule. The duty of the administrator is the same. United States v. Wardwell, §§ 160-163.

§ 145. In cases of running accounts, where debits and credits are made at different times, the payments are to be deemed as made towards items antecedently due, in the order of time in which they stand in the account. Ibid.

§ 146. The case of the United States furnishes no exception to this rule in cases of running` accounts. All payments are deemed to be made on general account. Ibid.

§ 147. In case of payments by a debtor to a creditor the debtor has a right to direct the application of them, and if he does not the creditor may apply them as he pleases. Ibid.

§ 148. In case of payments to the treasury department of the United States, the officers of that department have not a right to make any application of such payments against the will of the debtor or of his administrator. Ibid.

§ 149. In an action on a long running account between the parties, of notes, acceptances, etc., if the debtor transfer a note or draft to the plaintiff, which is due at a future day, and give no direction on what claim the money when collected shall be applied, the creditor may apply it before action, and in case of his failure so to do the court may at the trial. Whetmore v. Murdock, §§ 164-167.

§ 150. The true application of such money is to such of the claims as seem most proper under all the circumstances; as, to one not bearing interest if others do; one not secured if others are; one owned in his own right if others are not; and finally, if none of these exist, to the oldest demand. Ibid.

§ 151. But if one of the claims is not due when the draft is received, or is supposed to be otherwise secured before the money is collected on this draft, or if the creditor, when it is collected, credits it generally and informs the assignees beforehand that when received it will reduce their general balance so much, the money should be applied to the oldest demand, or be considered as applied generally to the whole account by the creditor when he received it. Ibid.

§ 152. If notes are given, as in the other case between these parties, to secure acceptances, and are found against by a jury for want of consideration or fraud, the money, when actually paid on the acceptance before the suit, may be recovered as not merged by those notes. But the sum received by the creditor on the draft cannot be applied first to such demand, when the debtor did not so direct, nor the creditor so enter it, but both resorted to what they considered other security for the payment of what might be so advanced on those acceptances. Ibid.

§ 153. Money not paid for a principal before action brought cannot be recovered by the surety as money paid, unless on a special promise to pay it previously; and if that promise is found to be fraudulent, the money actually paid after the suit may be recovered, but only in a separate, subsequent action. Ibid.

[NOTES.-See §§ 168-223.]

UNITED STATES v. BRADBURY.

(District Court for Maine: Daveis, 146-154. 1841.)

STATEMENT OF FACTS.- This was an action upon the official bond of Bradbury as postmaster. He had held the office from 1831, and in January, 1838, gave a new bond, which is the one in question. When he gave the new bond he owed $465.60, and paid on the same day $227.91, and took a receipt therefor, which stated the amount paid to include all previous dues back to October 1, 1836. He ceased to be postmaster on the 30th of September, 1838, and it appeared that he had paid in three payments amounts corresponding with the sums for which he was debited. There was a verdict for the penalty, and now a motion is made for a new trial.

ន

§ 154. The rule as to appropriation of payments when a debtor owes several sums and on various accounts.

Opinion by WARE, J.

The instruction to the jury was, that when a debtor makes payment to a creditor, to whom he is indebted in several sums and on various accounts, as by note, bond, and book account, he has a right to direct to what account or what debt the payment shall be appropriated. This is a rule which arises out of the nature of the act. The payment is the act of the debtor, and he has a natural right to determine the quality of his own act, that is, to make the appropriation of his own money. If the debtor pays generally on account, this right results to the creditor; he may then make the appropriation, and apply it to the payment of which debt he chooses. But the imputation, whether made by the debtor or creditor, must be made at the time of payment; in re presenti, hoc est statim, atque solutum est. Dig., 46, 3, 1.

$155. When the law will intervene and apply the payments.

If not then made, it is not permitted to either party to go back afterwards and apply the payment, but the law intervenes, and makes the application according to its own notions of justice, between the parties.

§ 156. The rule of open and running accounts.

In cases of open, running accounts, where there have been a number of successive charges and payments, from time to time, if neither of the parties has imputed these payments to extinguish any particular charges in the account, the law applies them to the payment of the debits in the order of time in which they stand in the account, each payment being appropriated to the extinguishment of the oldest charge on the debtor side of the account. Such was the direction to the jury, and, as a general rule, this is too well established to be brought into doubt. United States v. Kirkpatrick, 9 Wheat., 720 (BONDS, $ 419-22); Postmaster-General v. Furber, 4 Mason, 333; United States v. Wardwell, 5 Mason, 82 (§§ 160–63, infra); Clayton's Case, 1 Merivale, 572.

$157. The rule of the Roman law.

The Roman law, from which our rules for the imputation of general and unappropriated payments are in part derived, looks generally to the interest of the debtor, and is governed by what may be presumed to have been the will of a prudent and discreet man, if his attention had been particularly called to the subject; quod verisimile videretur diligentem debitorem admonitu ita suum negotium gesturum fuisse. Dig., 46, 3, 97.

When there were several debts, and the payments were general, the law imputed it to a debt which the debtor owed on his own account rather than

to one for which he was liable as surety; to one which bore interest before one which did not; to a debt secured by mortgage, or by sureties, rather than to one which was not; to one having a penalty attached to it rather than to one which had none; and, generally, to extinguish the debt which was most onerous to the debtor. It proceeded upon this principle, that, as the right of making the appropriation belongs of right to the debtor in the first instance, when none is made by either party and it is left to be made by the law, that ought to look to the supposed will of the debtor rather than that of the creditor. But, if the debts were all of the same character, this preference was abandoned, for, though the debtor, on some accounts, may have an interest in extinguishing the more recent rather than the more ancient debts, the law adopted the more equitable rule between the parties, and applied the payment to the oldest. Si nihil eorum interveniat, vetustior contractus ante solvitur. Digest, 46, 3, 97 and 5; Pothier des Obligations, Nos. 565, 571; Toullier, Droit Civil, Vol. 7, Nos. 173, 186. In this rule, therefore, the common and civil law agree, and the rule itself has its foundation in principles of natural justice. There was then no error in the instruction given to the jury in laying down the principles of law applicable to the general question, independent of the specialties belonging to the particular case.

The only question which can be considered as fairly open is, whether there is in this case such an appropriation of the payments made by the debtor as will take it out of the common rule. It is coutended that there was, and that this, as a fact, may be justly inferred from the circumstances under which the payments were made and from the receipts which were taken.

The bond bears date January 26, 1838. Bradbury remained postmaster for three quarters after, and, at the end of each quarter, paid the amount of postage which had accrued during the quarter and took a receipt for the sum, which described it as "being the amount due from him to the United States for the quarter ending," etc., "as shown by his account current, including all previous dues." It is argued that this receipt makes an appropriation of the payment first to extinguish the debt which accrued the past quarter, and that the excess only, if any there were, was to be applied towards paying the old balance; and that such was the intention of the debtor is a just inference from the fact that each payment was the precise amount of postage which had accrued during the preceding quarter. Undoubtedly it was the right of the defendant to have the money so applied if he chose to make the application. But, to carry this intention into effect, it must be made known in a clear and intelligible manner, either by positive directions or by circumstances equivalent to a direct order. The fact that the payments were in each case precisely equal to the postage of the preceding quarters does, undoubtedly, raise a strong presumption that they were intended to be applied to the extinguishment of that part of the debt. In the case of Marryatt v. White, 2 Starkie, 101, Lord Ellenborough seemed to consider this circumstance as conclusive in a case which in its leading features resembles the present. That was an action on a promissory note, against the surety, given to secure the payment for flour to be afterwards delivered to the principal on the note. He was, at the time, indebted to the plaintiff for goods previously delivered. There was, therefore, an open running account. By the usage of trade a credit was allowed of three months, and if payment was sooner made the debtor was entitled to a discount. Lord Ellenborough observed "that the payment of the exact amount. of goods previously delivered is irrefragable evidence to show that the sum