Page:Federal Reporter, 1st Series, Volume 2.djvu/757

 750 FEDERAL EBPORTEE. �The U. s, Y. Jantuiry et al. 7 Cranch, 572. This rule has been applied by the supreme court of Kansas. Shellaharger v, Binns, 18 Kan. 345. <> �3. It is insisted by counsel for defendants that this rule is only applicable to a case where there are several separate and distinct debts, and that it is, therefore, not a proper guide for the determination of the present case, which is one of a continuons or running account. In such a case it is insisted that the payments must be applied to the extinguish- ment of the first or oldest items of the account. The general rule, that payments made on an open running account are presumably to be applied to the extinguishment of the items thereof in the order of their dates, is well settied. Postmaster General v. Farlen, 4 Mason, 333; The U. S. v. Wardwell, 5 Mason, 82; The U. S. v. Kirkpatrick, 9 Wheat. 738; Jones V. The U. S. 7 How. 681. But a different rule must prevail, under the authority of Field et al. v. Holland et al., in a case where the earlier items of the account are secured, and the later items unsecured. Besides, the question of the applica- tion of the payments, in such a case, rests largely in the dis- cretion of the chancelier, and in this case the proof shows, as already suggested, that the parties intended to preserve the security of the plaintiffs' mortgage to the extent of $5,000 of the indebtedness, and it is clearly equitable to apply the payments so as to carry out that intention. It may be added that we have here two separate contracts : first, the mortgage aôd the indebtedness secured thereby; and, secondly, the open account not connected with, or secured by, the mortgage. Viewed in this light, we may, for the purpose of applying the payments, separate the secured from the unsecured portion of the account, and treat them as separate debts. �4. The fact that plaintiffs proved their entire debt as against the estate of KuUak, and received two dividends thereon from the assets of said estate, does not extinguish their rights under the mortgage, The sum coUected from the estate upon that portion of the debt which is secured by the mortgage must, however, be credited thereon. It appears from the stipulation of the parties that the plaintiffs have ����