§ 1350. When payments of debts are made, a question often arises as to the manner in which they are to be appropriated when there are different debts due to the person to whom payment is made. Where a person owes money upon several distinct accounts, he may direct his payments to be applied to either.4 If he make a payment without giving any direction as to its appropriation, the creditor may (as we have already seen5) apply it; but the authorities are not agreed whether the creditor can in such case appropriate the payment to items of an account not then recoverable by law.6 But a debtor who has directed payments made by him to his creditor to be applied to the satisfaction of an illegal claim, cannot afterwards require them to be otherwise appropriated.7 If neither party make a specific appropriation, the law will appropriate it according to the justice and equity of the case.1 Where there is one entire account with many items, payments made without appropriation are generally to be applied to extinguish the debts according to priority of time.2 No express appropriation is, however, necessary; but the acts of the parties and the circumstances of the payment may afford sufficient evidence of the intention to create an appropriation.3
1 But see Davis v. Miss. Cent. R. Co., 46 Miss. 552.
2 Holleman v. Dewey, 7 Nat. Bank. Reg. 269; Caruthers v. Corbin, 38 Ga. 75; Green v. Jones, Ib. 347; Jones v. Thomas, 5 Cold. 465; Cross v. Sells, 1 Heisk. 83 (1870); Jordan v. Cobb, 47 Ala. 132; Sands v. New York Life Ins. Co., 50 N. Y. 626; Van der Hoven v. Nette, 32 Tex. 183; Ritchie v. Sweet, Ib. 333; Washington v. Burnett, 4 W. Ya. 84. See, also, Harvey v. Walden, 23 La. An. 162; Wynn v. Patrick, Ib. 204; Voinche v. Villemarette, Ib. 227; Dunklin v. Horrell, Ib. 394; Baldwin v. Sewell, Ib. 444; Martin v. Singleton, Ib. 551; Irvine v. Short, lb. 721.
3 Sirrine v. Griffin, 40 Ga. 169 (1869).
4 See Mitchell v. Cullen, 1 McQueen, 190 (1852); Sherwood v. Haight, 26 Conn. 432; Wetherell v. Joy, 40 Me. 325.
5 See ante, § 1153; Ramsay v. Warner, 97 Mass. 8; Haynes v. Nice, 100 Mass. 327; Hall v. Clement, 41 N. H. 166.
6 See Treadwell v. Moore, 34 Me. 112; Caldwell v. Wentworth, 14 N. H. 431; Ayer v. Hawkins, 19 Vt. 26; Rohan v. Hanson, 11 Cush. 44; Young v. Woodward, 44 N. H. 230.
7 Hubbell v. Flint, 15 Gray, 550 (1860).
§ 1351. Where a remittance of payment is made by post, the debtor must show that it was properly sealed and directed, and delivered at the post-office. And it must also appear that he was either directly authorized by the creditor to take this course, or that such had been the previous course of dealing between the parties,1 from which an authorization may be presumed.2 There is a distinction, however, between the relation of creditor and debtor and that of principal and agent. A debtor is bound to pay his creditor in person, or his authorized agent, and does not fulfil his obligation by making all reasonable efforts to transmit to the creditor the amount of the debt, as by the use of the mail without express direction or assent; but an agent employed to collect a debt and remit the proceeds is bound only to use ordinary and reasonable skill and diligence in collecting or remitting to his principal in the absence of positive instructions.3 A payment by sending a bank-note in halves, by successive mails, does not take effect until the second half is also sent; and the sender may revoke and recover back the half first sent.4
1 Per Mr. Justice Story, in Cremer v. Higginson, 1 Mason, 323; U. S. v. Wardwell, 5 Mason, 85; Pattison v. Hull, 9 Cow. 747; Niagara Bank v. Rosevelt, 9 Cow. 409; Reed v. Boardman, 20 Pick. 446; 1 Story, Eq. Jur. § 459 a to § 459 g; ante, §1153, for a full statement of the rules of law as to appropriations of payment.
2 U. S. v. Kirkpatrick, 9 Wheat. 720; Gass v. Stinson, 3 Sumner, 101; Pattison v. Hull, 9 Cow. 747, 765; Clayton's Case, 1 Meriv. 572; Boden-ham v. Purchas, 2 B. & Ald. 47; Field v. Carr, 2 M. & P. 46; s. c 5 Bing. 13; Thurlow v. Gilmore, 40 Me. 378; Briggs v. Titus, 7 R. I. 441; Cushing v. Wyman, 44 Me. 121.
3 Tayloe v. Sandiford, 7 Wheat. 20; Stone v. Seymour, 15 Wend. 31; Bodenham v. Purchas, 2 B. & Ald. 39. In Dulles v. De Forest, 19 Conn. 190, it appeared that C, D., and E., having received the goods of A. for sale on commission, and having advanced to A. the sum of $2,000, to aid him in a branch of manufacture distinct from his general business, by accepting his drafts on time, and afterwards paying them, blended, in one general account upon their books, the amount so advanced to A. with the avails of the goods of A. sold by them; such acceptances being charged when they were given, and not when paid; and such account was from time to time rendered by them to A. Neither party having, made any specific application of the moneys arising from the sale of A.'s goods to the payment of the sum so advanced, it was held, 1. That the presumption of law from the mode of keeping the account was that the payments were to be applied to the oldest items on the opposite side; but 2. That this rule, being founded on the presumed intention of the parties, is applicable only where there is no evidence sufficient to show a different intention, and, where there is, that intention, when ascertained, must govern the application; 3. That in this case the intention of the parties might be gathered, not only from the mode of keeping the account, but from the course of dealing between the parties, the object for which the note was given, and suffered to remain in the hands of the holders, and from all the circumstances of the case.
§ 1352. Money paid on the Lord's day, and retained afterwards, is a good payment, and discharges a debt.5
1 Morgan v. Richardson, 13 Allen, 410; Gurney v. Howe, 9 Gray, 404; Buell v. Chapin, 99 Mass. 594.
2 Warwick v. Noakes, Peake, 67; Hawkins v. Rutt, Peake, 186; 2 Greenleaf on Evid. § 525; Walter v. Haynes, Ryan & Mood. 149. See Gordon v. Strange, 1 Exch. 477; Gurney v. Howe, 9 Gray, 404; Crane v. Pratt, 12 Gray, 348; Buell v. Chapin, 99 Mass. 596.
3 Gray, J., in Buell v. Chapin, 99 Mass. 594, 596 (1868).
4 Smith v. Mundy, 3 El. & E. 22 (1860). 5 Johnson v. Willis, 7 Gray, 164 (1856).