
    
      The Ordinary of Marlborough district v. John McCollum.
    
    Voluntary payments, made by an administrator to a guardian, and received by him on account of debts due to his ward as a distributee of both real and personal estate, were appropriated pro rata to both' debts-.
    If there be several debts, the debtor has a right to appropriate a payment to the discharge of any one of them. But if no specific appropriation be made, and none can be inferred, then the right belongs to the creditor receiving the money: If there be none by either party, then the law will apply it.
    
      Before Evans, J. at Marlborough, Extra Courts July, 1848.
    Debt on bond. This was an action by the ordinary, against the defendant, as surety to one William L. Adams, administrator of one Shochley Adams. Shoehley Adams left a widow and several children, all of whom had been paid off except Caroline, his youngest daughter, who had married one Alexander Mc&ueen; and this action was to recover her share of the estate. She was an infant at her father’s death, and for many years afterwards. The estate consisted of land and personal estate. It did not appear in what way it been done, but the land was allotted to the widow and one of the sons at a valuation, and the personal estate had been in some sort divided by allotting to some of the children ne-groes. It appeared there had been an accounting before the ordinary. It was stated by one of the witnesses, and as appeared from papers exhibited, and which were copied in the ordinary’s book, that the whole estate was computed, the widow’s share was deducted, and the balance, divided by 7, (the number of children,) shewed the share of each one, of the real and personal estate. The share of each child, thus ascertained, was §2,208. To this was added interest and negro hire, and credit given for negroes, allotted to Caroline at division, and payment made to her guardian in negroes and notes to the amount of §1049 09, leaving a balance of §1069 59 due to her, for which the ordinary gave a decree. It was very clear that this decree included an indebtedness of W. L. Adams for land, as well as personal estate, and according to our decisions, the security to the administration bond is only liable for the personalty. There was no difficulty in separating them in the account — the difficulty arose in applying the payments which W. L. Adams had made tp the guardian of Caroline Adams. The receipt expressed that the payments were made on account of Caroline’s share of the real and personal estate of Shochley Adams. The plaintiff contended that the payment should be applied to extinguish the debt for the land, as for that he had no security, whilst the defendant argued that it should be applied to extinguish that demand for which W. L. Adams was liable as administrator. But the receipt was for so much on account of both real and personal estate — it was paid and received in discharge of both demands. His Honor, therefore, charged the jury that the payment was to be applied to each debt pro rata. The verdict was made up accordingly. This presents the point made by the grounds of appeal.
    The defendant moved the Court of Appeals for a new trial, on the following grounds :
    1st. Because the Court charged the jury, that the payment by Wm. L. Adams, of §800, in negroes, and §249 09 otherwise, on the 1st December, 1834, should be applied propor-tionably to the distributee’s share of the real and personal estate — whereas it is submitted that such payments should have been applied to the personal estate only.
    2nd. Because the decree of the ordinary was illegal in this — that the first item of the account, made up by him, against the administrator, contained a charge against him of $732 25, with interest from the first day of October, 1826, for the share of the real estate belonging to the distributee, and the account being made up on- this basis, should be re-jn favor 0f the surety, by striking that amount from such item, and then proceeding in it with the personal estate alone, and his Honor should have so instructed the jury.
    3d. Because the decree of the ordinary charges the administrator with the share of real estate to which the distributee was entitled; and the Court should have instructed the jury that the decree, in this respect, was void as to the surety, notwithstanding the assent of the administrator himself to such decree.
    4th. Because, in an accounting by an administrator, before the ordinary, when payments appear to have been made by him, as administrator, the surety has a right to claim they should be applied to his liabilities as administrator, and the charge of his Honor, that such payments might be applied to the real estate, because the guardian of the distributee agreed so to apply them, is erroneous, as operating a fraud upon the surety. ■
    5th. Because the surety has a right to claim that all payments made by the administrator to the distributee, on account of the distributee’s share, should be applied to that portion of the estate for which the administrator is in law liable, and his Honor should have so instructed the jury.
    6th. Because the verdict of the jury does not conform, in amount, to the principles laid down by the Court.
    7th. Because the verdict, in other respects, was contrary to law and evidence.
    
      Dudley, for the motion.
    
      Hanna & McQueen, contra.
   Evans, .1.

delivered the opinion of the Court.

There is no doubt the surety is not bound by a decree of the ordinary against an administrator. As to him the decree is not res judicata. It is, however, prima facie evidence against him, and he must discharge himself by proof. In this case, although it did not appear on the face of the decree, it was clear from the evidence, that- the share of Caroline Adams, of the land which had been allotted in the partition to W. L. Adams, the administrator, had been brought into the account. With this the defendant, as surety, could not be charged, for the obvious reason that it was not in his bond. It was, therefore, properly excluded in the verdict.— But the idea of the defendant’s counsel, and for which he insisted in his argument, seemed to be, that the account was to be expurgated on one side only, and that the credits were not examinable. But this cannot be. If the surety be entitled to have the amount charged for land, excluded from the account, he cannot have the benefit of a payment made on account of the same land. The only question, therefore, in case is, how the payment made on account of the debt, for both the real and personal estate, is to be applied. The rule of appropriation seems to be that, if there be several debts, the debtor has a right to appropriate a payment to the discharge of any one of them. But if no specific appropriation be made, and none can be inferred, then the right belongs to the creditor receiving the money. If there be none by either party, then the law will apply it. (See C. J. Tindall, in the case of Mills v. Fowkes, 5 Bing. N. P. 435.)

14Law.Lib.

3 Dev. 265.

In Pitman on Principal and Surety, 113, it is said “if the creditor receive the payment, it must be on such terms as the debtor will pay it, however improper the application may be, and the payment will bind the security; the latter having no control whatever as to the way in which the principal thinks proper to make the payment.” This seems to be clearly the established rule. The only apparent exception is the case of Hill and Natt v. Childs. In that case the sheriff had two writs of fieri facias, in favor of the same plaintiff; one against the principal debtor alone, and the other against the same debtor and his surety. Money was raised by sale of defendant’s property, under both fi. fa’s.— It was decided it should be applied pro rata to both, and the defendant had no right to control its application.

In that case the payment was not voluntarily, but raised by legal process. In voluntary payments the debtor may withhold the payment, unless the creditor will accept it on his terms; but where money is raised under a fi. fa. the debtor has no control over it. It must be applied according to law. In this case Adams, the debtor, made a voluntary payment. It was paid and received on account of both debts, as the receipt abundantly shews. If he had applied it all to the land, as it was competent for him to do, the surety would have had no legal right to complain. But he applied it equally to both debts, as he should have done, and there was no other mode of appropriation but to apply it pro rata, as was done by the Circuit Court.

The motion is dismissed.

Richardson, J. — O’Neall, J. — Wardlaw, J. — and Frost, J. — concurred.

Motion refused.  