Blake v. Sawyer

Walton, J.

The right of a debtor to determine to which of several debts a payment made by him shall be applied is unquestionable. But if he omits to exercise the right, the law allows the creditor to make the appropriation. And the latter may apply it to a debt already barred by the statute of limitations. But such an application of it will not remove the statutory bar with respect to the balance of the debt. To have that effect, the appropriation must be made by the debtor himself.

But tbe creditor may apply tbe payment to any debt not already barred by the statute of limitations, and thereby prolong tbe running of tbe statute for six years from tbe time 'when tbe payment is made.

Apparently this distinction between a debt already barred and one not already barred was overlooked by tbe presiding judge in tbe trial of this cause ; for tbe indorsement in question was made on tbe note declared on long before it would have become barred by the statute of limitations ; and yet tbe presiding judge Instructed tbe jury that, to take tbe case out of tbe operation of the statute, tbe plaintiff must show that tbe party making tbe payment made it, and applied it, or made it to be applied, upon ífche particular contract in suit. This would have been correct if tbe indorsement bad been made upon a note then barred by tbe statute. But tbe instruction being given with reference to a payment made before tbe note on which it was indorsed bad become barred, was clearly erroneous.

This distinction between debts barred by the statute at tbe time when tbe payment is made, and those not then barred, is recognized in Pond v. Williams, 1 Gray, 630, and expressly sanctioned in Ramsey v. Warner, 97 Mass. 8. And tbe law is so stated in Buswell on Limitations, § 81.

Exceptions sustained.

Peters, C. J., Virgin, Emery, Poster and Haskell, JJ., concurred.