
    VAN SICKLE v. AYRES.
    If, when a payment is made by one to another to whom he is indebted on bond and mortgage, and on other accounts, the debtor makes no special appropriation of the payment to the bond and mortgage, the creditor may apply it to the other account.
    The bill in this ease is for the foreclosure of a mortgage, dated June 17th, 1843, given by the defendant to the complainant, for $1000, payable April 1st, 1844, with interest. The answer admits the giving the bond and mortgage, and sets up that on or about January 25th, 1845, he gave the complainant an order on Jonas Roloson, for about $19.44, on which the complainant received the money ; and that it was understood between him and the complainant, when the order was given, that the said sum was to be applied by the complainant as a payment on the said bond and mortgage. That on or about April 2d, 1845, he sold and delivered to the complainant 10 sheep, for $22.50, which was to be applied by the complainant- as a payment ou the bond aud mortgage. That on or about April 14th, 1845, he, at the request of the complainant, assumed and paid for him to Britton Ayres about $21.38, which the complainant promised to apply as a payment on the bond and mortgage. That on or about March 29th, 1845, he, at the request of the complainant, gave the complainant his, the defendants’ note, for about $60, which was given by the defendant and received by the complainant to be applied as a payment on the bond and mortgage; and that after-wards he, the defendant, paid the note. And he says he was informed by' the complainant, and believes it to be true, and therefore charges, that the said note was afterwards transferred .and delivered by the complainant to Azariah Lewis, in payment for a wagon bought by the complainant of Lewis. That on or about May 15th, 1845, he, at the request of complainant, assumed and paid for him to Henry Fountain about $25, which the complainant promised to apply as a payment on the bond aud mortgage. That the complainant is indebted to him $3 forgateuge, for the passage through a gate belonging to the defendant, on the Paterson and Hamburgh turnpike, from April 1st, 1842, to April 1st, 1845.
    The defendant exhibited interrogatories to the complainant, inquiring as to the several matters set up as payments, and whether it was not the understanding between them that the several items should be applied by the complainant as payments on the bond and mortgage. The complainant admits the receipt of the several amounts as stated in the answer, except that the sum which he requested the defendant to pay to Britton Ayres for him was but $20, instead of $21.20, as stated in the answer ; and except his gateage, which he denies owing to the defendant; but the complainant answers to the interrogatories, that the said several payments were made by the defendant to be applied on other unsettled accounts which the complainant had against him ; and that it was so understood between them, when the payments, respectively, were made; and that neither of them was directed by the defendant, or received by the complainant, to be applied as' payments on the bond and mortgage. No testimony was produced on the part of the defendant.
    The case was submitted without argument.
   The Chancellor.

If, at the time of the making of the several payments claimed by the defendant to have been made, he was indebted to the complainant on other accounts, there being no proof that the defendant made any special appropriation of the payments to the bond, the complainant had the option to appropriate them towards the payment of his other account against the defendant.

Let it be referred to a master, to inquire and report whether, at the time of the several payments, the defendant was indebted to the complainant on other accounts; and whether the payments made by the defendant are more or less than sufficient to pay such other indebtedness ; and to ascertain what is due the complainant on the bond and mortgage, after crediting thereon thesurplus, if any, which shall be found to remain of the payments, after discharging such other indebtedness; the defendant to be permitted to make any other proof of the said payments-which he may think necessary.

Order accordingly.  