Sec 933

According to Sir W. Grant, "there is no room [in accounts] for any other appropriation than that which arises from the order in which the receipts and pay ments take place and are carried into the account; presumably it is the sum first paid in that is first drawn out; it is the first item on the debit side of the account which is discharged or reduced by the first item on the credit side; the appropriation is made by the very act of setting the two items against each other. Upon that principle all accounts are settled, and particularly cash accounts."6 Even when payments are made on a banker's account, deposits against drafts, the items paid in go to balance those paid out, though some of the items paid in turn out to be trust moneys.7 This view has been accepted in the United States.8 This, however, In accounts when there is no designation, first debt is to be paid.

1 Simson V. Ingham, ut supra; Seymour V. Marvin, 11 Barb. 80; Dorsey V. Wagman, 6 Gill, 59.

2 Bosanqnet V. Wray, 6 Taunt. 597; Mayor, etc. V. Patten, 4 Cranch, 317.

3 See cases cited supra, Hilton V. Bur-ley, 2 N. H. 193; Seymour V. Marvin, 11 Barb. 80; McMaster V. Merrick, 41 Mich. 505; see generally Portland Bk. V. Brown, 22 Me. 295; Emery V. Tick-out, 13 Vt. 15; Stamford Bk. V. Benedict, 15 Conn. 438.

4 McLear V. Hunsicker, 30 La. An. Pt. II. 1225.

5 Waller V. Lacy, 1 M. & G. 54.

6 Clayton's case, 1 Mer. 608; adopted Leake, 2d ed. 917; Benj. on Sales, 3d Am. ed. sec 748; Bodenham V. Purchas, 2 B. & Ald. 39; Williams V. Griffith,.

5 M. & W. 300; Brown V. Adams, L. R. 4 Ch. 764; Thompson V. Hudson, L. R.

6 Ch. Ap. 320; Simson V. Cooke, 1 Bing. 452; Bloom V. Kern, 30 La. An. Part II. 1263. See Cabada V. De Jongh, 10 Phila. 422.

7 Brown V. Adams, L. R. 4 Ch. 764.

8 1 Chitty on Cont. 11th Am. ed. 1116; Benj. on Sales, 3d Am. ed. sec 748; Story Eq. Jur. 12th ed. sec 459 b; Story on Cont. sec 1154; U. S. V. Wardwell, 5 is on the supposition that there is no specific designation by either debtor or creditor.1 Nor does the fact that the earlier debts are barred by the statute of limitations preclude the application of items in a general account to such earlier debts.2 But the presumption of appropriation in order of date may be overcome by proof of an understanding to the contrary, which understanding may be inferred from all the facts.3 The presumption, however, is not rebutted by proof that the earlier items are for goods sold on condition that they are not to become the property of the purchaser till paid for, although the seller made a memorandum of this condition in the book in which the account was entered.4 - When some of the makers of a joint and several note make payment of their shares of the principal and interest due from them at the date of pay-.

Mason, 82; U. S. V. Kirkpatrick, 9 Wheat. 720: Jones V. U. S., 7 How. 681; Gass V. Stinson, 3 Sumn. 99; Mil-liken V. Tafts, 31 Me. 497; Caldwell V. Wentworth, 14 N. H. 431; Upham V. Lefavour, 11 Met. 184; Crompton V. Pratt, 105 Mass. 255; Fairchild V. Holby, 10 Conn. 175; Jackson V. Johnson, 74 N. Y. 607; Truscott V. King, 2 Seld. 147; Germ. Luth. Ch. V. Heise, 44 Md. 453; Sprague V. Hazenwinkle, 53 111. 419; Hill V. Robbins, 22 Mich. 475; Smith V. Lloyd, 11 Leigh, 518; Price V. Dowdy, 34 Ark. 285; and see generally Postmaster-General V.Furber, 4 Mason, 336; McKenzie V. Nevius, 22 Me. 138; Miller V. Miller, 23 Me. 24; Dows V. Morewood, 10 Barb. 183; Baker V. Stackpoole, 9 Cow. 435.

1 Supra, sec 923. In Field V. Holland, 6 Cranch, 8, it was held that the most precarious security should be paid first. This, however, is inconsistent with the general current of authority.

When a firm changes its member ship, but continues to deal with a particular creditor whose claims continue to run on unextinguished, payments made by the firm, as reconstituted, go on this principle, to extinguish debts due by the original firm. Bodenham V. Purchas, 2 B. & Ald. 39; Hooper V. Keay, L. R. 1 Q. B. D. 178.

2 Williams V. Griffith, 5 M. & W. 300; Ashby V. James, 11 M. & W. 542; and cases cited supra, sec 930.

3 Leake, 2d ed. 917; Benj. on Sales, 3d Am. ed. sec 748; Henniker V. Wigg, 4 Q. B. 792; Boys in re, L. R. 10 Eq. 467; City Discount Co. V. McLean, L. R. 9 C. P. 692.

4 Crompton V. Pratt, 105 Mass. 255. "The money paid beyond lawful interest on account of a debt is in legal effect a payment upon the debt. In this case the fact was well stated as constituting payment, and the objection to relief on that account cannot be sustained. Each debt was a continuous thing, and the last notes given in renewal of each debt repaid only what was justly remaining due upon that debt. Upham V. Brimhall, 11 Met. 526; Auburn Bank V. Lewis, 75 N. Y. 516; Hiatt V. Griswold, 5 Fed. Rep. 573." Wheeler, J., Loveridge V. Lar-ned, U. S. Cir. Ct. N. Y. 1881, 12 Rep. 324.

ment, the payment is to be applied to the pro rata payment of principal as well as of interest due by the parties so paying.1