Page:Federal Reporter, 1st Series, Volume 2.djvu/756

 BCHUELEKBUKS V. MARTIN. 749 �Ins. Co. 1 Peters, 386. This doctrine is now well eettled, and it is not necessary to cite the numerous authorities in its support. It i^ not disputed by counsel for defendants. �2. The payments made after the expiration of the year covered by the mortgage should, under the circumstances, be applied to the liquidation of the unsecured portion of the account. There is some confiict of authority upon the ques- tion of the appropriation of payments in such a case. It is clear that the debtor may direct the application of money paid by him to a crediter having several claims against him, and it is also clear that if the debtor gives no direction he is presumed to leave the question to the discretion of the cred- iter, who may make the application. But there are cases •which hold that where the debtor bas given no direction, and the crediter bas made no particular application, the court should presume, in favor of the debtor, that he intended to extinguish that debt which would bear most heavily upon him; as, for example, a mortgage or judgment. Patterson et al. V. Hull et al. 9 Conn. 747 ; The Anta/rctic, 1 Sprague, 206. But a different rule bas been adopted by the supreme court of the United States. In Field et al. v. Holland et al., 6 Cranch, 8, Chief Justice Marshall, in delivering the opinion of the court, said : "It is contended by the plaintiffs that if the payments bave been applied by neither the crediter nor the debtor they ought to be applied in the manner most advantageous to the debtor, because it must be presumed that such was his intention. The correctness of this con- clusion cannot be conceded. When a debtor fails to avail himself of the power which he possesses, in consequence of ■which that power devolves upon the crediter, it does not appear unreasonable to suppose that he is content with the manner in which the crediter will exercise it. If neither party avails himself of his power, in consequence of which it devolves upon the court, it would seem reasonable that an equitable application should be made. It being equitable that the whole debt should be paid, it cannot be inequitable to extinguish first those debts for which the security is most precarious." And see Mayor, etc., v. Patten, 4 Cranch, 317; �10* ����