The only question in this case is, whether the auditors were correct in crediting to the defendants the payment of $804.72. made by one of them, (Haight,) to the plaintiff.
But for the effect of the proceedings in the supreme court of New York, in the suit in favor of the plaintiff against that defendant, it would not admit of a doubt that that credit was properly allowed. It was found by the auditors that it was agreed between th'e plaintiff and defendants in this suit, that all the money which Haight should pay to the plaintiff *435thereafter-, should be applied by the latter in payment of the debt for which the present suit was brought, until it should be fully paid and discharged, and that subsequently, in pursuance of that agreement, the amount so credited was .delivered by Haight to the plaintiff, to be by him applied on that debt. Under those circumstances the law would, on the most obvious principles, apply that payment in reduction of that debt. But if there had been no such agreement, the same application of it should have been made in this case, because when the payment was made by Haight, he had a right to determine whether it should be applied to that or the other debt due by him to the plaintiff, and the auditors found that he delivered the money to the plaintiff to be by him applied on the former. The well settled rule therefore fully applies, that a person indebted to another on different accounts or demands, making a payment, may apply that payment to whichever of the demands he pleases, provided he declares at the time of payment the purpose for which it is made. See Baker v. Stackpoole, 9 Cow., 420, Pattison v. Hull, id., 747, and cases there cited.
We come then to consider the effect of the proceedings in the suit in New York. The plaintiff, before the auditors, proved, that before the commencement of the present suit, he brought a suit against the defendant Haight, in that state, for the recovery of a private debt due to him by the latter which accrued subsequently to that on which the present suit is brought, in which he recovered judgment by default against Haight for the balance of that private debt, after deducting the payment of $804.72 which was credited to the defendants in the present suit; and he claims that, as the amount of that payment was thus deducted in that suit, it ought not to have been credited to the defendants by the auditors in this. Against Redfield, one of the present defendants, as he was not a party to the suit in New York, the record of the judgment there was evidence only of the fact of the recovery against Haight in that suit. It was not admissible to prove that the amount deducted in that case was originally paid to apply on the debt to recover which that suit was brought. *436Nor, if the admissions of Haight were admissible'to show that it was paid on that account, would that judgment constitute any evidence, in the nature of such an admission, because it was rendered only by default, which is at most evidence, even against a defendant suffering it, that something is due to the plaintiff, but not of the particular amount. Nor, if it were competent for Haight to waive the agreement under which the payment in question was made and to assent to the appropriation made by the plaintiff, so as to affect Redfield, was that record any evidence of such waiver or assent. That appropriation was the sole act of the plaintiff, and was presumably made without the knowledge of Haight, as it was made after he had ceased to appear in the suit. A question of waiver, moreover, is one of fact, of which the plaintiff’ has had the benefit before the auditors, if any such point was raised by him. The only question then is, whether the plaintiff could deprive the present defendants of the benefit of a payment made by them expressly on the debt now in question in this'suit, in pursuance of an agreement between the parties that it should be applied thereon, by voluntarily deducting, without the assent of those defendants, or either of them, the amount of that payment from another debt for which he had brought a suit, and in which he had taken judgment only for the balance. It requires no argument to show that he could not.
There is, therefore, no error in the judgment complained of.
In this opinion the other judges concurred.
Judgment affirmed.