1 Gray, 630. But the case of Ayer v. Hawkins, 19 Vt. 26, shows that a creditor having several notes against his debtor, all of which are barred by the statute of limitations, may appropriate a general payment of such debtor to any one of the notes, even the largest, and revive that particular note, but he cannot distribute such general payment upon all his claims and thus avoid the statute as to all.

(p) The question is always one of intent, which is a question for the jury under all the circumstances of the case. As to what circumstances will be held sufficient to warrant a finding of such appropriation by the debtor, see Tayloe v. Sandiford, 7 Wheat. 14; Mitchell v. Dall, and shows the entry to the creditor, this is a sufficient appropriation by the debtor. (q) But the right of election of appropriation is not conclusively exercised by entries in the books of either party, until those entries are communicated to the other party. (r)

2 Harris & G. 159,4 Gill & J. 361; Fowke v. Bowie, 4 Harris & J. 566; Robert v. Garnie, 3 Caines, 14; West Branch Bank v. Moorehead, 5 Watts & S. 542; Scott v. Fisher, 4 T. B. Mon. 387; Stone v. Seymour, 15 Wend. 19; Newmarch v. Clay, 14 East, 239; Shaw v. Picton, 4 B. & C. 715. If the debtor pay with one intent, and the creditor receive with another, the intent of the debtor shall govern. Reed v. Boardman, 20 Pick. 441.

1 And this, too, without the consent of the debtor. Phillips v. Moses, 65 Me. 70; Brown v. Burns, 67 Me. 535. Where payments were made from time to time, without application, by a discharged bankrupt, upon a running account for goods sold partly before and partly after his discharge, the creditor who received no notice of the Bankruptcy proceedings and was not named in the bankrupt's schedules, may, if the payments made after the discharge exceed the price of the goods purchased after that time, apply them to the first items in the account Hill v. Bobbins, 22 Mich. 475.

2 Pickett v. Memphis Bank, 32 Ark. 346.

Although the payment be general, the creditor is not allowed in all cases to appropriate the same. As where he has an account against the debtor in his own right, and another against him as executor, and money is paid by the debtor without appropriation, the creditor must apply it to the personal debt of the debtor, and not to his debt as executor. (s) Nor can the creditor apply the payment to a debt not due when there is another which is due. (ss) Nor can he apply it to items for which he cannot maintain an action if there be those on which an action may be maintained. (st) But he may apply it to a debt on which the statute of frauds does not sustain an action. (su) 1

A general payment must be applied to a prior legal debt, in preference to a subsequent equitable claim. (t) 2 If the equitable claim be prior, it has been said that it may be preferred by the creditor; (u) but this does not seem to be certain. (v)

In general, the creditor's right of appropriation, springing from the neglect or refusal of the debtor to make such appropriation, exists only where the debtor has in fact an opportunity of making it; and not where the payment was made on his account by an(q) Frazer v. Bunn, 8 C. & P. 704. (r) Simpson v. Ingham, 2 B. & C. 65. (t) Goddard v. Cox, 2 Stra. 1194. And see Fowke v. Bowie, 4 Harris & J. 566; Sawyer v. Tappan, 14 N. H. 352. But where one debt is due to the creditor in his own right, and another to him as trustee or agent for another, and neither is secured, the creditor cannot apply the whole of a general payment to his own debt, but must apply it pro rata to both debts; for this is a part of his duty as trustee, to take the same care of the debts of his cestui que trust as of his own. See Scott v. Ray, 18 Pick. 361; Barrett v. Lewis, 2 id. 123; Cole v. Trull, 9 id. 325. (ss) Bode's Heirs v. Stickney, 36 Ala. 482.

(st) Kidder v. Norris, 18 N. H. 532.

(su) Haynes v. Nice, 100 Mass. 327.

(t) Goddard v. Hodges, 1 Cromp. & M. 33.

(u) Bosanquet v. Wray, 6 Taunt. 497.

(v) In Birch v. Tebbutt, 2 Stark. 74, A had certain bills of exchange accepted by B, and also a mortgage executed by B to a third person, but of which A might compel an assignment in equity to himself. B paid A money on account, which A received without prejudice to the claim he might have upon any securities. Lord Ellenborough held, that the money should be applied wholly towards the* bills of exchange, and none on the equitable claims.

1 Murphy v. Webber, 61 Me. 478; Mueller v. Wiebracht, 47 Mo. 468.

2 So of two debts, one legal and one illegal, payment will be applied to the legal in absence of appropriation. Dunbar v. Garrity, 58 N. H. 575; Albert v. Lindsn, 46 Md. 334; Wilhelm v. Schmidt, 84 Ill. 183. See McKelvey v. Jarvis, 87 Penn. St 414. Where usurious interest has been paid without objection on certain notes, the excess of legal interest cannot be applied in payment of another note, although all the notes are secured by the same collateral. Riddle v. Rosenfeld, 103 Ill. 600.

other, or in any way which prevents or impedes his exercise of the right of election. (w)

Several rules may be gathered from the cases, by which courts are guided where the appropriation or application of payments is made by the law. Thus, the money is applied to the case of * the most precarious security, where there is nothing to control this application, (x) 1 but if one debt be a mortgage debt, and the other a simple account, it has been said the court will apply the money to the mortgage debt in preference, on the ground that it will be more for the interest of the debtor to have this debt discharged. (y) And if there be two demands, of different amounts, and the sum paid will exactly satisfy one of them, it will be considered as intended to discharge that one. (z) If one of the debtor's liabilities be contingent, as where the creditor is his indorser or surety but has not yet paid money for him, the court will apply a general payment to the certain debt, and will not permit the creditor to apply it to the contingent debt. (a) 2