
    BRESLIN vs. BOYLE.
    In the absence of an appropriation of a payment by the debtor, it «annot be applied to a cla'im not enforceable at law or equity.
    Error to Common Pleas No. 2, of Philadelphia County. No. 131, January Term, 1884.
    The charge of the Court was as follows:
    The plaintiff, Mr. Breslin, is engaged in the wholesale business. Edward Boyle, during his lifetime, and afterwards his wife, the defendant, were retail liquor dealers.
    The plaintiff sold to Edward Boyle, after March 17, 1877, the date from which this account starts, goods amounting to.....................................$ 705 57
    •And to Mrs. Boyle, before her husband’s death, goods amounting to........................ 359 23
    Making in all.............................$1,064 80
    He received on account....................... 498 00
    Leaving due him........................... 566 80
    He sold to Mrs. Boyle, after her husband’s death goods to the amount of..................... 841 36
    Making on all accounts.....................$1,408 16
    He received from Mrs. Boyle, after her husband’s death.................................. 753 00
    Leaving due on all accounts..................$ 655 16
    To recover which, this suit is brought.
    The defendant admits as being due the difference between the amounts of purchases by her when a widow.....$841 36
    And the payments made by her.................. 753 00
    Which is............................ $ 88 36
    But resists the rest of the plaintiff’s claim.
    
      When a debtor makes a payment he has the right to appropriate to any item of his indebtedness.
    If the debtor fails to appropriate the payment the creditor may appropriate to which item of indebtedness he pleases.
    On failure of either party to make an appropriation, the law will apply it in the interest of the creditor to the debt which is the least secure. [In the absence of an appropriation of the payment by the debtor, the law will not apply it or permit the creditor to apply it to a claim not enforceable at law or equity.] (ist Error.)
    [Neither Mrs. Boyle’s purchases before her husband’s death; or her promise to pay his debts could be enforced.
    The plaintiff could not apply payments made by her to either of these without her consent.] (2nd Error.)
    If she agreed, he could apply them in this way, and such an agreement is binding upon her.
    Did Mrs. Boyle agree to have the payments which she made credited on these accounts ? The plaintiff says she did. She denies it, and it is for you to determine which statement is correct. [If after her husband’s death she agreed that the payments should be appropriated to the old account, and they were so appropriated, the plaintiff should recover what he claims, $655.16, with interest. If she did not so agree, he can recover only what is due on her account, $88.36.] (3rd Error.)
    The Court refused to affirm plaintiff’s point, which was as follows:
    “That, although the plaintiff could not have recovered from the defendant the debts contracted in her husband’s lifetime, nevertheless she was in honor bound to pay them, and the payments not applied by the defendant will be applied to those debts, and if the jury believe the defendant promised to pay her husband’s indebtedness in the lifetime of said husband, then their verdict should be for the plaintiff in the amount of $615.16, with interest from October 3, 1879.
    January 22nd, 1883, verdict for plaintiff for $106.03. \
    
      The plaintiff, Breslin, then took this writ of error, complaining of the portions of the charge of the Court in brackets and the answer to the point.
    
      Messrs. V. Guillou and R. D. Maxwell, Esqs., for plaintiff in error,
    argued that as Mrs. Boyle had not appropriated the payments she made, Breslin had a right to apply them to the indebtedness accrued prior to her husband’s death; Pierce vs. Sweet, 33 Pa., 157; Borland vs. Murphy, 92 Pa., 91; Hemphill vs. M’Climans, 24 Pa., 367; Bosanquet vs. Wray, 6 Taunton, 597; Souder vs. Schechterly, 91 Pa., 83.
   The Supreme Court affirmed the judgment of the Common Pleas on April 14th, 1884, in the following opinion:

Per Curiam.

This case was properly and correctly submitted to the jury. The defendant was under no legal or moral obligation to pay for the liquor procured during her coverture. As a claim therefor could not be enforced against her, either at law or in equity, the plaintiff could not appropriate thereto, without her consent, payments made after coverture was removed, at a time when he had another legal and valid debt against her. The jury has found that she did not agree that the payments should be appropriated on the former claim. They were therefore under the instructions of the Court, correctly applied on the latter indebtedness of the defendant.

Judgment affirmed.  