10. Priority. When no other rules of ap propriation intervene, the law applies part, payments to debts in the order of time, dis charging the oldest first. 3 Woodb. & M. C. C. 150, 390 ; 1 Bay, So. C. 497 ; 40 Me. 378 ; 10 Barb. N. Y. 183 ; 4 Harr. & J. Md. 351 ; 7 Gratt. Va. 86 ; 27 Vt. 478 ; 9 Watts, Penn. 386 ; 27 Ala. N. s. 445. So strong is this priority rule that it has been said that equity will apply payments to the earliest items even where the creditor has security for these items and none for later ones. 6 N. Y. 147. But this is opposed to the prevailing rule.
Sureties. The general rule is that neither debtor nor creditor can so apply a payment as to affect the liabilities of sureties, without their consent. 12 N. H. 320; 1 McLean, C. C. 493 ; 16 Pet. 121 ; Gilp. Dist. Ct. 106. Where a principal makes general payments, the law presumes them, prima facie, to be made upon debts guaranteed by a surety, rather than upon others ; though circum stances and intent will control this rule of surety, as they do other rules of appropria tion. 2 Maule & S. 18, 39 ; 2 Stark. 101 ; 1 Carr. & P. 600 ; 8 Ad. & E. 855 ' • 10 J. B.
, Moore, 362 • 4 Gill & J. Md. 361; 5Leigh Va. 329.
11. Continuous Accounts. In these, pay , ments are applied to the earliest items of ac count, unless a different intent can be in ferred. 1 Mer. Ch. 529, 609 ; 4 Russ. 154 ; 2 Brod. & B. 70 ; 3 Moore & S. 174 ; 5 Bingh. 13 ; 4 Barnew. & Ad. 766 ; 2 Barnew. & Ald. 45 ; 1 Nev. & M. 742 ; 4 Q. B. 792 ; 9 Wheat. 720 ; 3 Sumn. C. C. 98 ; 23 Me. 24 ; 28 Vt. 498 ; 4 Mas. C. C. 336 ; 5 Mete. Mass. 268 ; 19 Conn. 191.
Partners. Where a creditor of the old firm continues his account with the new firm, payments by the latter will be applied to the old debt, prima facie, the preceding rule of continuous accounts guiding the appropria tions. As above, however, a different intent, clearly proved, will prevail. 3 Nev. & M. 167 ; 5 Barnew. & Ad. 925 ; 2 Barnew. & C. 65 ; 3 Bingh. 71 ; 2 Barnew. & Ald. 39 ; 10
J. B. Moore, 362 ; 3 Younge & C. Exch. 625 ; 3 Dowl. & R. 252 ; 3 Moore & S. 174 ; 6 Watts & S. Penn. 9. When a creditor of the firm is also the creditor of one partner, a payment by the latter of partnership funds must be applied to the partnership debts. Yet cir cumstances may allow a different application.
1 Mood. & M. 40 ; 10 Conn. 175 ; 1 Rice, So. C. 291; 2 A. K. Marsh. Ky. 277; 28 Me. 91; 2 Harr. Del. 172. And so unappropriated payments made by a party indebted severally and also jointly with another to the same creditor, for items of book-charges, are to be applied upon the several debts. 33 Me. 428.
12. The rules of appropriation, it has now been seen, apply equally well whether the debts are of the same or of different orders, and though some are specialties while others are simple contracts. 2 Vt. 60G ; 4 Cranch, 317 ; 15 Ga. 221 ; 22 Penn. St. 492 ; 2 Hayw. No. C. 385. As to the time during which the application must be made in order to be valid, there is much discrepancy among the authorities. But perhaps a correct rule is that any time will be good as between debtor and creditor, but a reasonable time only when third parties are affected. 6 Taunt. 597 ; 9 Mod. 427 ; 3 Green. N. J. 314 ; 20 Me. 457 ; 1 Bail. So. C. 89 ; 1 Bail. Eq. So. C. 430 ; 1 Overt. Tenn. 488 ; 4 Ired. Eq. No. C. 42 ; 12 Vt. 249 ; 10 Conn. 184.
When once made, the appropriation cannot he changed but by common consent ; and rendering an account, or bringing suit and declaring in a particular way, is evidence of an appropriation. 1 Wash. Va. 128 ; 12 Serg. & R. Penn. 305 ; 2 Rawle, Penn. 316 ; 2 Wash. C. C. 47 ; 12 Ill. 159 ; 28 Me. 91. Consult Burge, Suretyship, 126-128 ; 2 Par sons, Contr. Payment; 1 hare & W. Sel. Dec. 123-158 ; 11 East, 36 ; 1 Ale. & N. 196 ; 7 Bowl. & R. 201 ; 2 Dowl. Bail, 511; 8 id. 573 ; 6 Ves. Ch. 94 ; 1 Tyrwh. & G. 137 ; 2 Crompt. M. & R. Exch. 723; 2 Sumn. C. C. 99 ; 2 Stor. C. C. 243 ; 22 Me. 138, 295; 31 id. 497 ;