
    Pulaski Cage, Executor of George E. Frazier, deceased, vs. William Iler et al.
    Where several notes, maturing at different periods, are secured by a deed of trust, and have past maturity, and a sale takes place under the trust of the trust property, the proceeds of the sale are to he applied ratably to the several notes.
    C. being sued on an injunction bond, given to enjoin a judgment at law upon a note, plead payment of the whole amount of the judgment enjoined before action brought, and offered to prove that the note sued on was the second of three given for equal sums each, maturing in three consecutive years, and secured by a deed of trust; that a sale of the trust property, after all the notes had matured, had been had, and the proceeds applied by the trustee solely to the t5ird note, which was thereby discharged ; C. claiming that the proceeds should have gone to pay the second note, instead of the third; the court below refused to permit the proof to be made : held, that the proof was admissible, but that the proceeds of sale should be distributed equally among the three notes.
    Where a plea of payment of the whole sum demanded is filed, and the defendant proves payment of part only, he is entitled to a credit of that part which he proves to be paid.
    In error, from the circuit court of Wilkinson county. Hon. Tan Tromp Crawford, judge.
    William Iler and Phereby Iler sued Pulaski Cage, executor of George E. Frazier, deceased, in the circuit court, upon an injunction bond, executed jointly, by Daniel H. Prosser, Preston W. Farrar, and George E. Frazier, executed on the 28th of October, 1839, in the penalty of ten thousand seven hundred and eleven dollars. The substance of the condition of the bond was, that whereas Prosser had sued out an injunction from the superior court of chancery against a judgment at law in favor of the plaintiffs, if he should prosecute his injunction with effect, or failing therein, should pay the judgment, with costs and damages, the bond' should be void; otherwise, in force. The declaration for breaches averred a dissolution of the injunction, and a non-payment of the judgment at Jaw, and of the costs and damages.
    To this declaration Cage plead, — l.The statute of limitations for non-presentation in eighteen months. 2. The same plea, with the averment of due publication of notice of his appointment as executor. 3. A similar plea, with the verbiage changed. 4. That the injunction was prosecuted with effect. 5. That the injunction was never dissolved. And, 6. The following plea ; “And for further plea in this behalf, the said defendant says actio non, because he says that before the commencement of said suit, to wit, on the 1st day of January, 1842, in said county, the said Daniel H. Prosser, well and truly paid said plaintiffs the amount of said judgment, to wit, the sum of five thousand three hundred and forty dollars and sixty-seven cents, together with interest and costs legally due théreon, in said declaration specified, and this hé is ready to verify; wherefore he. prays judgment, &c. Gordan and Posey, for defendant.”
    Annexed to this plea was this account:
    “ ffm. & P. Iler to Daniel H. Prosser, Dr.
    This amount paid, 1842, $5,340 67.”
    Before the trial the defendant withdrew the first, second and fourth pleas; replications and issues thereon were respectively filed to the other pleas, and the cause was submitted to a jury, who found a verdict for the plaintiff, for the full amount sued for.
    At the trial a bill of exceptions was signed, exhibiting the following facts: After the plaintiff had proved the dissolution of the injunction the defendant below offered the record of the judgment enjoined, and to prove that the note upon which that judgment was founded, and two others, were secured by a deed of trust, made on the 17th day of January, A. D. 1837, between Daniel H. Prosser of the first part, and C. S. Kellogg, of the second part, in which deed it was recited, that Prosser had that day bought of William and Phereby Iler, administrator and administratrix of Abram Her, deceased, a tract of land, for the sum of $15,656 75, to secure the payment of which, in three notes of $5,218 91 each, with interest at the rate of eight per cent., made by Daniel H. and Thomas Prosser, payable to William and Phereby Her. Daniel H. Prosser by the deed conveyed to Kellogg the same land he purchased of the Hers, upon the following trusts and conditions, as described and set forth in the deed: “That is to say, if the said Daniel H. Prosser shall well and truly pay, or cause to be paid, each and all of the above-described promissory notes, when they and each of them become due and payable, together with the interest thereon, then this obligation to be void; but in case the said Daniel H. Prosser shall fail to pay, or cause to be paid, all or any of the above-described promissory notes, together with the interest when they and each of them become due and payable, according to their and each of their tenor and date, that then it shall be the duty of the said C. S. Kellogg to seize the above-described property, and, after giving thirty days’ notice in some public newspaper, printed in the town of Wood-ville, in Wilkinson county, of the time and place of sale, to sell the same to the highest bidder, for cash, and to make good and sufficient title to purchaser or purchasers of the same, and, out of the proceeds of said sale, to pay over to the said William and Phereby Iler, all such sums of money as shall be due and unpaid on any of the said promissory notes, and the balance of the proceeds of said sale, after deducting the expenses of executing this trust, to pay over to the said Daniel H. Prosser, his executors or administrators.” The deed further contained a power for the substitution of another trustee, in case Kellogg should be unable to act.
    The defendant further offered to prove that the property, conveyed by this deed of trust, was sold bythe trustee named in it, after the injunction obtained against the judgment at law had been dissolved, and that the entire proceeds of sale were appropriated by the trustee to the payment of the note last mentioned in the deed of trust, and which matured after the note on which the judgment was founded; and that no part had been applied to the note sued on.
    The circuit judge rejected all this evidence, and the bill of exceptions was filed, and this writ of error prosecuted.
    
      George H. Gordon, for plaintiff in error.
    The bill of exceptions in this case presents only one principal ground of error, and that is in the opinion of the court below in refusing to admit the evidence offered by the defendant, to establish the payment set up by him. The court ought to have admitted the testimony thus offered, for it plainly appears, from the bill of exceptions, that the injunction bond sued on was given on obtaining an injunction of a judgment rendered on the second of three several promissory notes, made by one Daniel H. Prosser, in favor of defendants in error, and secured by the deed of trust set. out in said bill of exceptions, and that the trustee in the deed, by virtue thereof, had sold the property specified therein, and appropriated the whole amount of money received by him from such sale, towards the payment of the last one of said three notes. The law, in reference to the appropriation of payments, is too well settled- at this late day to remain in doubt and uncertainty. The general rule upon the subject rve conceive to be this, that if a debtor owes his creditor on two or three several distinct accounts Avhich are due, and makes a voluntary payment, he has the clear right, at the time of making the payment, to direct on which account it shall be applied. If he fails to direct the application, the creditor may make the appropriation on whichever account he pleases ; and if neither shall appropriate it, then the law will apply it, according to the equity and justice of the case. See note at the end of the case of Barret v. Lewis, 2 Pick. 123; Patterson v. Hill, 9 Cowen, 747, and note (6) to that case, in which the subject is fully examined, and all the authorities collected and reviewed. But whilst we fully admit the general rule of law as thus laid doAvn in cases where it can be properly applied, we contend that it has place only in cases of voluntary payment. It cannot be applied to a payment by process of law, or in in-
      
      vitum. ■ The reason given for this is, tjiat it is not in the power of the debtor to make the appropriation, and that it would be unjust to allow the creditor the power of making it, without a corresponding power on the part of the debtor. Blaclcstone Bank v. Hill, 10 Pick. 129, and note at the end of the case of Barrel v. Lewis, 2 Pick. 123, quoted supra. Now we think, upon this view of the question, it is clear that the money raised from the sale of the property specified in the deed of trust referred to, ought to have been appropriated, at least pro rata, to each of the notes secured by said deed. Because we presume it will be conceded that Prosser, the maker of the notes, had not the power to direct the appropriation of the money raised by the sale of the property specified in the deed of trust thus given to secure them, but that it rested alone with the trustee appointed to execute the trust. It was, therefore, a sale made in invilum, and comes directly within the rule laid down by the court in the case of the Blackstone Bank v. Hill, referred to above, and 'thus, being a case where the debtor had not the power to direct the appropriation, and 'the creditor not having the right to apply it on account of the want of a corresponding right on the part of the debtor, it necessarily follows that the law will then come in, and appropriate it according to the equity and justice of the case. Furthermore, this court have expressly decided, in a case similar in principle to the case at bar, (Barker v. Mercer, 6 How. R. 320,) that where a mortgage has been given to secure the payment of several promissory notes which have become due, and a bill is filed to foreclose the mortgage, the money raised from the sale of the property mortgaged, shall be appropriated pro rata, towards the payment of all the notes. The defendants in error have raised a question as to the manner of pleading the payment relied on by the defendant below, which we conceive to be altogether groundless. The payment is pleaded under the aúthority allowed by the statute H. & H. Digest, 589, § 4, and the plea is a general plea of payment, in the usual form, with an account filed with it, and although Prosser, (the maker of the notes in question, and the principal in the. injunction bond sued on) is not sued in this action, on account of the death of his co-obligor, the plaintiff’s testator, yet we apprehend that any payment which he is entitled to have allowed on said notes, would be as good and effectual in an action against his security, on account thereof, as if the -suit were against him. The plea of payment, allowed in all cases under our statute, (although it assumes the form of special plea in bar,) is substantially a general plea, so far as it relates to any legitimate payment that may have been made on the claim sued upon; for under the statute in reference to this general plea of payment, the defendant may file an account with his plea, specifying distinctly a payment made in specie, and no one will deny that at the trial he may prove a payment, or a part payment, made before action- brought, in the promissory notes of a third person, which were accepted as such by the plaintiff, or that the debt, or a part thereof, had been paid or discharged by a sale of property, under a mortgage given to secure it. 4 Monroe, 173, 174.
    
      Simratt, for defendants in error.
    The rule, upon the subject of the payment of money, where there are several debts due, is, that the debtor has a right to designate to what debt it shall be applied, and, in the absence of such direction, that then the creditor has a right to apply the money to which debt he pleases. Goddard v. Cox, 2 Strange, 1194; Bosanquet v. Roy, 6 Taunt. 18; 1 Harris & John. 754; 4 Cranch, 320 ; 7 Wheat. 20 ; 1 Pick. 332 ; 9 Cow. 409, This principle is so familiar that I will not enlarge upon it.
    But it is said that this was a forced payment, a payment “ in invitwn" and that in such case the rule is different. Before I examine this point I will ask the attention of the court to a preliminary point, and that is, whether such proof can be offered under the pleadings.
    The plea is, in substance, that after the dissolution of the injunction, &c. Prosser had paid to the plaintiffs the principal and interest of the judgment enjoined, &c. The proof offered, in effect, was, that the trustee had sold the property, and had paid the money on the last note, negativing the idea at once that it was paid on the debt enjoined; in other words, Cage proposed to prove, under this plea, that the money was, in point of fact, paid upon another and distinct debt than the one on which the plea averred it was paid.. The proof of facts, negative of those set up in the plea, is certainly not a proof of the plea. 1
    
      Where a defendant pleads specially he should be confined in his proof to the substantial matter relied upon. He is not permitted to depart from his plea, and prove other facts, which might be a good defence to the action if they had been embodied in the plea, so as to put the plaintiffs upon their guard, and advise them of what issue they must be prepared to meet.
    The great object supposed to be obtained by special pleading is lost sight of, if such departures from the facts pleaded are permitted in the proofs.
    Under this general plea of payment, were the plaintiffs advised that a misappropriation of money, as is contended, arising from the sale under the deed in trust, would be relied upon 1 Did not such a proposition open up inquiry into a set of collateral facts, of which the plea gave no intimation 1
    The proposed evidence is no defence for Cage, in this form of action, and under this state of pleadings. If it be true, that the money raised by the trust sale ought to have been applied to the judgment, and not to the last note, then the proper course of the surety would be’ to seek redress against the trustee for an abuse of his trust, or to have filed his bill against the trustee and theTlers, and have had the proper appropriation of this money made by the chancellor. But for the intervention of the injunction, the judgment might have been made out of Prosser, or the surety on the note, and therefore Cage cannot complain of any hardship that his testator may have brought upon himself.
    The case in 10 Pick. 133, is relied upon by counsel for the appellant, as sustaining the admissibility of the rejected testimony, and as directing a pro rata distribution of the money.
    In that case the Blackstone Bank had recovered one judgment on several notes; $6000 was raised by execution. The bank afterwards sued one of the sureties, on two of the notes included in the judgment, and opposed crediting any part of the $6000 in the two notes. It was held by the court, that inasmuch as all the notes had been consolidated into one judgment, and a payment had been made upon this judgment, that the surety, in a separate suit on the notes included in the judgment, was entitled to a pro rata credit.
    When the $6000 was paid, on execution, there was but one debt, the judgment. The constituents of that judgment, however they may have differed in age, in the interest severally due, or in their character, were made homogeneous by the judgment. The money was madé by process of law.
    The whole argument in the case in 10 Pick, is based upon the premises, that, in the case before the court, the debtor could not direct, and without such direction the creditor could not elect upon which notes, included in the judgment, the credit should be given. The deed in trust is given to secure all of the notes, alike.' At the time of sale all the notes were past due, and therefore they were all upon the same footing. If the last note had not matured at the time of sale, then it might have been contended that the credit should have been placed upon the judgment.
    The following is the 4th section, H. & H. 589: “ In an action of debt on a single or penal bill, or in debt or scire facias on a judgment, or in debt upon a bond, if before action brought, the defendant have paid the principal and interest due by the defeasance or • condition, he may plead payment in bar.” Under this statute the plea was filed in this case.
    Would the rejected evidence prove, that the money said to have been paid, was paid upon the debt mentioned in the de-feasance of the bond. I take it that the statute evidently contemplated that the payment should be made directly upon the debt set forth in the condition, and'that it must be a pure and simple payment of money. Barnes's Administrator v. Floyd, 1 How. 588. Unless the payment was made by agreement, or by direction, on the debt secured by the bond, then a plea of payment, either under the statute, or at common law, is improper. It is true that our statute makes a plea of payment, with a bill of items, equivalent to a plea of offset. But in no rother regard is it changed. If the testator Frazier had, before his death, loaned or advanced money to the Hers, could proof of that fact be received, under this plea, without a special item, stating distinctly the loan or advancement, filed.as an offset with the plea?
    The authorities cited by the counsel for plaintiff in error, are to the effect, that where money is raised by process of law, or in invilum, in cases where the debtor cannot direct, or the creditor cannot elect how it shall be applied, that then the law directs a pro rata distribution.
    I think we have shown that this case does not come under the operation of the rule.
    2d. That if it did, the plaintiff in error cannot avail himself of it under the pleadings.
    But I further insist, that the testimony offered was properly rejected, for another ground.
    If the proof would show anything, it would only be a partial payment, for the exception shows that the whole fund raised by the trust sale was paid on the last note which was equal in amount to the judgment enjoined.
    In H. &H. 589, sect. 4, is this language: “In any action of debt, on a single or penal bill, or in debt or scire facias upon a judgment, or in debt upon a bond, if before action brought the defendant hath paid the principal and interest due by the defeasance, or condition, he may plead payment in bar.” This is the statute to which the counsel for plaintiff in error refers, as authorizing his plea.
    The statute is enabling; it changes the common law, which did not allow a plea of payment after the day the bond was due, or the condition was to be performed. The plea must specify that the payment was made on the day, otherwise it was bad on 'demurrer. But if rightly pleaded, and the proof should turn out that payment was made after the day, it would be no defence. And the only remedy of the party would be by bill in chancery for relief, or it may be, if the payment wás accepted, it might sustain the plea of accord and satisfaction. At any rate, such matter was admissible under the plea. To provide for this supposed hardship the above statute was framed. Statutes in derogation of common law must be construed strictly. By recurrence, then, to the words of the statute, it will be seen that it allows the plea of payment in bar of the action on the injunction bond, “if at any time before suit brought the defendant has paid the principal and interest due by the defeasance, or condition.” This statute does not authorize a plea of partial payment, and proof of partial payment is inadmissible under it.
    A bill of particulars constitutes no part of the record, and can only be made so by being incorporated into the bill of exceptions. No bill of particulars was included in the bill of exceptions. It is true that there is a recital of an account in page' 6 of record, but it is not legitimately a part of the record. In support of this position, see Rankin v. Butler, 2 S. & M. 475.
    What was the undertaking of Frazier 7 It was that Prosser would prosecute his injunction with effect; and in case he failed therein, that he would pay the judgment. A breach of both conditions is alleged. This bond was a security for the judgment, distinct and independent of the deed in trust. The law secured to the Hers this indemnity for their debt, before it would suspend their rights under the judgment.
    The case of Parker v. Mercer, 6 How. 323, is relied upon by counsel for plaintiff in error. What was the question in that case? Gwin was an accommodation indorser on one of the notes secured by mortgage; and it was insisted that this note should be paid out of the mortgage money. It was held that there should be a fro rata distribution among all the notes.
    Gwin was a personal security upon one of the notes. The testator of the plaintiff in error was not a surety on one of the notes in the trust deed, and, in addition, the rights of all the parties was- settled in the case in Howard, before the trust property was sold. Whereas the obligation of Frazier, at law, was to pay, absolutely, the judgment, if Prosser failed in his-equity. Nothing, short of a payment of the judgment, will satisfy.his obligation: There was no payment made by Prosser upon the judgment; but the trustee paid on a different debt. And we are authorized to infer that the payment was made on the last note with the consent of the principal and surety in that and the other notes, since neither of them have objected to it in the space of three years.
    The case cited by opposite counsel from Monroe is equally inapplicable.
   Mr. Justice ThacheR

delivered the opinion of the court.

Writ of error to Wilkinson county circuit court.

This is an action of debt against Cage, executor of Frazier, who was surety for one Prosser, upon an injunction bond. The defence is payment, before action brought, by Prosser, of the judgment enjoined. The ground claimed for error was the action of the court below in refusing to allow the introduction of proof, in behalf of the defence, that Prosser had executed a deed of trust on certain property to secure the payment of three promissory notes of about $5000 each, one of which, being the second described in the deed of trust, was the foundation of the judgment enjoined; and, that after the dissolution of the injunction, the trustee in the deed sold the trust property, and applied the whole of the proceeds of the sale to the payment of the last note mentioned in the deed of trust.

The trustee in the deed of trust did not effect a sale of the trust property until all the notes secured thereby had arrived at maturity. In the case of proceeds arising from the sale of mortgaged premises, it has been decided in this state, that they should be applied ratably to the several notes secured by such an instrument. Parker v. Mercer, 6 How. 320. A similar rule would hold good respecting the proceeds of a sale under a deed of trust, where all the notes sought to be secured had become due and payable. By virtue of the statute H. & H. 615, s. 5, it is made lawful for a defendant, in cases of this kind, to plead payment of all, or part of the debt demanded, and give any account in evidence, and if it shall appear that any part of the sum demanded has been paid, then so much as is found to have been paid, shall be defalcated and deducted out of the plaintiff’s demand. In this action the plaintiff filed a plea of payment, and an account of the paymeut of the whole amount demanded. Upon adducing the proper proof, he was entitled to a credit upon the bond of one-third of the amount of the proceeds of the sale of the trust property, or whatever the ratable proportion might be in point of fact.

Judgment reversed and new trial awarded.  