The evidence, relied upon by the defendants, to show that a credit of six months was given to them, is in letters of the plaintiffs, and also in a receipt for certain notes as collateral security; upon a proper construction of this evidence, such a credit is to be inferred. Consequently if their import should have been determined by the court, instead of being submitted to the jury, the result would be the same, and the verdict should not be disturbed for this cause.
In the appropriation of indefinite payments made by a debtor to his creditor, holding different claims, when none has been made by either party, modern decisions seem to have been in many respects uniform; although formerly it *500was otherwise. The doctrine has been borrowed from the Roman law; and under its rules payments have been applied to the discharge of debts, which have been secured by mortgage, or in other ways, rather than to those,- which are not; to claims which had long been payable, in preference to those which had more recently arrived at maturity. United States v. Kirkpatrick, 9 Wheat. 720; Pattison v. Hall, 9 Cowen, 747, and notes. “ The whole of this doctrine of the Roman law,” as expressed by the court in Goss v. Stinson, 3 Sum. 98, “ turns upon the intention of the debtor, either express, implied, or presumed ; express, when he has directed the application of the payment, as in all cases, he has the right to do; implied, when he knowingly has allowed the creditor to make a particular application at the time of the payment without objection; presumed, when in the absence of any special appropriation, it is most for his benefit to apply it to a particular debt.” The general instruction to the jury in the case at bar was not inconsistent with these principles.
But it is insisted, that there was evidence in the case, that the creditor actually appropriated the payment made by the debtor to the note dated on March 23, 1848, and to other claims than that of the first item on the plaintiffs’ account, in suit, in such a manner as to bind the defendants ; and that the jury were misled by the remark of the Judge, that, “ he did not see any evidence of appropriation.” The case of Allen v. Kimball, 23 Pick. 473, cited by the plaintiffs upon this point, is unlike the one before us. One note of hand was the only cause of action in that suit, and it was held, that the prosecution thereof after the payment, was evidence, that the appropriation was made by the creditor to another note, which became subsequently payable. In the case before us, the prosecution after the payment may have been for the recovery of the last item of the account, after the other might have been paid. But the jury were instructed to find for the defendants, if there had been no appropriation. They could not have understood, that the evidence, which was before them, was intended to be withdrawn from their *501consideration ; and it was clearly implied, that they were to find a verdict for the defendants only in the event, they were not satisfied of an appropriation.
The notice given by the plaintiffs to the defendants, that they claimed to appropriate the amount received to other demands, than the first item of the account in suit, was without effect. The creditor cannot make the appropriation of an indefinite payment at a time when a controversy has arisen between the parties thereon. Goss v. Stinson, 3 Sum. 98.
Exceptions overruled.