The opinion of the court was delivered by
Redfield, J.
— There is, perhaps, no rule of law of more universal application, than that the person paying money, *249may, at the time of payment, direct such application of it as he sees fit. The term, payment, ex'vi termini, implies that the act is voluntary on the part of the debtor, and, if so, he may annex such conditions to the act, as he sees fit. He must, of course, have the right absolutely and unconditionally of making his own application. 2 Starkie’s Ev. (6 Ed.) 598, and cases cited, note b. 2 English C. L. 334. 3 Ib. 201. Hall v. Wood, 4 East, 243, in note. 1 Eng. C. L. 494. But if a payment is made generally, the creditor may, at any time before a controversy arises, I apprehend, make such application as he sees fit. Mayor of Alexandria v. Patton, 4 Cranch, 317. United States v. Kirkpatrick et al. 9 Wheaton, 720. But theré are many cases where no express application is directed by the debtor, and still the circumstances in the case show,most conclusively, what must have been his intention. Where this intention is so evidenced, it must always prevail. Mayor of Alexandria v. Patton, ubi supra. Tayloe v. Standiford, 7 Wheaton, 13. Hicks v. Bingham, 11 Mass. 300. Peters v. Anderson, 5 Taunton, 596, S. C. 1 Eng. C. L 201. Marryatts v. White, 3 Eng. C. L. 265. The last case cited, was tried at nisiprius, before Lord Ellenborough, and, in principle, is much like the present case,but far less favorable for the defendants. See, also, Newmarch v. Clay, 14 East, 239.
There is still another case, which not unfrequently occurs, where neither party makes any application of payments until a controversy arises. In cases of this character, the law will make such application as it deems equitable. Cremer v. Higginson, 1 Mason, 323. In equity, it is said, the application will, in such cases, be made to those debts where the security is most precarious. United States v. January et al., 7 Cranch, 572. Field et al. v. Holland et al., 6 Cranch, 8. In the case of Gwinn v. Whitaker, Har. & Johnson, 754, it is said, the law will make such application of money paid, and not appropriated by either party, as will be most beneficial to the debtor. I should consider this latter rule more in accordance with the principles of natural justice and equity, and more correspondent with other established principles upon the samé subject, than the doctrine of the cases from the *250gtja and 7th Cranch, just alluded to. From what has been ... said, it will appear very obvious that the present case was correctly decided.
Judgment affirmed.