and estate is not competent to defend, by virtue of his office.(1) If the infant does not apply within a certain *time to have a guar*266] dian ad litem appointed for himself, the complainant may apply to have one appointed; (2) as to the manner of appointment, see Bank of the U. S. v. Ritchie et al., 8 Peters, 129, 144. The order of appointment must be of record, for it is not enough that one answering for the infant calls himself his guardian;(3) but it seems that there may be a binding recognition of one acting for the infant, as guardian ad litem, by orders and proceedings of the court, though no direct order of appointment has been made.(4) And the guardian must not only be appointed, but must accept the appointment, by appearing, or otherwise;(5) and a decree against an infant without a guardian is erroneous. A decree against infant heirs defendants must give day, which in practice is six months, after age, to show cause against it; and a decree which does not give day will be reversed on appeal for that error alone;(6) or is ground for bill of review without leave of the court.(7) If the infant afterwards succeeds in showing that the decree ought not to have been made, the court will place him, so far as is conveniently practicable, in the situation in which he was before the decree was made.(8) A distinction as to the extent to which the proceeding may be overhauled, exists between decrees of foreclosure and other decrees: In cases of foreclosure, whether with or without sale, the infant, on arriving at full age, and showing cause, can only allege error on the face of the decree; whereas, in other cases, he will be permitted to file a new answer, and litigate the merits of the case.(9) A decree need not give day to infant complainants, as they have no right to overhaul the decree.(10)

(1) Shield's Heirs v. Bryant, 3 Bibb, 525.

(2) Anonymous, 10 Paige, 41.

(3) Irons, Ex'x, v. Crist, 3 Marshall, 143; Letcher's Heirs v. Letcher, 2 Id. 158; Searcey's Heirs v. Morgan, 4 Bibb, 96; Shields, &c., v. Craig, 1 Monroe, 72; Ewing's Heirs. Armstrong, 4 J. J. Marshall, 68; Robertson v. Robertson, 2 Swan, 197.

(4) Cato v. Easley, 2 Stewart, 214, 220.

(5) Carneal et al. v. Sthreshley, 1 Marshall, 471; Daniel, &c., v. Hannagan, 5 J. J. Marshall, 48; Heirs, &c., of St. Clair v. Smith & Milliken, 3 Ohio, 355, 364.

(6) Beeler, &c., v. Bullitt, 4 Bibb, 11; Collard's Heirs v. Groom, 2 J. J. Marshall, 487, 488; Jones's Heirs v. Adair, 4 Id. 220; Arnold's Admr'x v. Voorhies, Id. 507, 508; Passmore's Heirs v. Moore, 1 Id. 591, 593; Harlan, &c., v. Barnes' Adm❜rs, 5 Dana, 219, 223; Mills v. Dennis, 3 Johnson's Chancery, 367; Harris and others v. Youman and others, 1 Hoffman's Chancery, 178; Wright v. Miller, 1 Sandford, 104, 120; Coffin v. Heath and another, 6 Metcalf, 77, 81.

(7) Lee v. Braxton, 5 Call, 459.

(8) Pope, &c., v. Lemaster, &c., 5 Littell, 76, 80; Prutzman. Pitesell, 3 Harris & Johnson, 77, 82.

(9) McClay, Adm'r et al. v. Norris, 4 Gilman, 370, 381.

(10) Williamson's Heirs v. Johnson's and Nash's Heirs, 4 Monroe, 253, 255; Jameson, &c., v. Moseley, Id., 414, 416; McClay, Adm'r et al. v. Norris, 4 Gilman, 370, 383;

An infant plaintiff or complainant is not liable for costs, but the prochein ami is;(1) but in Massachusetts, upon the construction of a statute, an infant plaintiff is liable;(2) and a prochein ami is not.(3) If the prochein ami is not a responsible man, the court may order security for costs, or appoint another who is responsible.(4)

*As to the time and manner of avoiding judicial proceeding on [*267 account of infancy; the general rule is, that a voidable act by matter of record can be avoided only by matter of record. A fine, common recovery, or recognizance, are to be avoided during infancy, by audita querela, and the fact of infancy is determined by inspection ;(5) but in the last case, it is intimated that a recognizance might be avoided upon suit, by plea, like other obligations. A judgment against an infant without guardian, may be reversed by writ of error after full age, and the trial is per pais:(6) and whenever a writ of error lies, such a judgment cannot be impeached collaterally, for it is a rule, that where a party to an erroneous judgment is entitled to a writ of error to reverse it, it cannot be avoided in any other way: but a party to an erroneous judgment, who is not entitled to a writ of error to reverse it, may avoid it on motion, or by plea, in a court of competent jurisdiction;(7) accordingly, it was decided in Etter v. Curtis, 7 Watts & Sergeant, 170, in perfect accordance with settled principles, that in debt on a judgment of a justice of the peace, against an infant, infancy might be pleaded, because no writ of error lay to remove the judgment, and a certiorari would correct no more than errors apparent on the face of it. As to setting aside judgments or executions by audita querela, see Chase v. Scott, 14 Vermont, 77; Starbird et al. v. Moore, 21 Vermont, 530; and Mason v. Denison, 15 Wendell, 64, 68.

There are some judicial acts of the Court of Chancery, which, being performed under an authority not derived from the infants, are binding upon them; as, decrees of sale under mortgage, or under a power in a will to sell;(8) any other power which that court may have to decree sales of the land of infants must be derived from statutes, as it has no

Brown v. Armistead, 6 Randolph, 594, 602; Hanna v. Spott's Heirs, 5 B. Monroe, 362, 367.

(1) Sproule, &c., v. Botts, 5 J. J. Marshall, 162; Waring v. Crane, 2 Paige, 80. (2) Smith v. Floyd, 1 Pickering, 275.

(3) Crandall v. Slaid and Wife, 11 Metcalf, 288.

(4) Cotheal et al. v. Moorehouse et al., 1 Zabriskie, 336.

(5) Phillips et ux. v. Green, 3 Marshall, 7, 11; Prewit v. Graves, &c., 5 J. J. Marshall, 114, 120; Bool v. Mix, 17 Wendell, 120, 132; Chase v. Scott, 14 Vermont, 77; Patchin v. Cromach, 13 Id. 330.

(6) Sliver ». Shelback, 1 Dallas, 165; Trapnall's Ad'x v. The State Bank, 18 Arkansas, 62.

(7) Austin v. Charleston Female Seminary, 8 Metcalf, 196, 204.

(8) Mills v. Dennis, 3 Johnson's Chancery, 367, 369; Brown v. Armistead, 6 Randolph, 594, 602.

such power inherently;(1) unless it may be merely for the purpose of changing a fund.(2)

[The preceding note as given in earlier editions, is approved generally in Mustard v. Wohlford's Heirs, 15 Grattan, 337, and in Cole v. Pennoyer, 18 Illinois, 160.]

*268]

*APPLICATION OF PAYMENT.

THE MAYOR AND COMMONALTY OF ALEXANDRIA v. PATTEN AND OTHERS.

In the Supreme Court of the United States.

FEBRUARY TERM, 1808.

[REPORTED, 4 CRANCH, 317-321.]

If the debtor at the time of payment does not direct to which account the payment shall be applied, the creditor may at any time apply it to which account he pleases.

ERROR to the Circuit Court of the District of Columbia, sitting at Alexandria, in an action of debt brought by the mayor and commonalty of Alexandria, for the use of one Ladd, against Thomas Patten and his sureties, on a bond given for the performance of his duty as vendue-master.

The object of the suit was to recover a sum of money alleged to remain in his hands as vendue-master on account of goods sold for Ladd. Patten was also the debtor of Ladd for goods sold by him to Patten, who gave in evidence payments which exceeded the amount due upon the latter account, and which, if applied to the former account, would nearly, if not entirely, discharge that debt. The payments were attended by circumstances which the defendants considered as evidence of a clear intention to apply them to the debt due from Patten as vendue-master; "whereupon. the counsel for the plaintiffs prayed the opinion of the court whether, from the manner in which the payment were made as aforesaid, the said Ladd had not a right to apply so much of the money, paid to him as aforesaid, as would discharge the debt due

(1) Rogers v. Dill, Hill's N. Y., 415; McKee's Heirs v. Hann, &c., and McKee, &c., 9 Dana, 526; Pierce's Adm'r, &c., v. Trigg's Heirs, 10 Leigh, 404, 421.

(2) Huger and others v. Huger and others, 3 Desaussure, 18, 21.

to him as aforesaid, for goods sold as aforesaid, to the said Patten. to the discharge of the same. Whereupon the court instructed. the jury, that if they should be satisfied by the evidence that the payments of the money by the defendant Patten were made on account of the goods sold at vendue, and so understood by both parties at the time of the payments, they must be applied to that

account.

"If Mr. Patten, at the time of paying the money, did not direct to which account it should be applied, and if it was not understood by the parties at the time of the payment, on which account it was made, the *plaintiff had a right immediately [*269 to make the application to which account he pleased; but such application must have been recent, and before any alteration had taken place in the circumstances of Mr. Patten.

"If neither of the parties made the application as aforesaid, and if the parties did not then understand on which account it was made, then the payments ought in law to be applied to the discharge of the vendue account, the non-payment of which is alleged as the breach of the bond upon which the present suit is brought."

To this opinion the plaintiffs accepted, and the verdict and judgment being against them, brought their writ of error.

Swann, for the plaintiffs in error, contended, that where there are different debts due by a debtor to his creditor, and a payment be made generally on account, the creditor has a right to apply the payment, whenever he pleases, to which account he pleases, and cited the case of Goddard v. Cox, 2 Strange, 1194.

Youngs, contra.

It is admitted that the defendant had the right at the time of payment to direct its application, and that if he did not then exercise that right, it devolved upon the plaintiff. But the ques

tion is, when is the plaintiff to exercise the right? Can he, at any definite period after the payment, and under any change of circumstances, apply the payment as he pleases? Can he, at the moment of trial, when the defendant produces evidence of payments, say, I choose to apply these payments to the other account? The rules of law are all founded in reason. Some reasonable limit must be supposed to the exercise of this right In the present case the interests of third persons are involved. The

sureties may have been lulled into security by the evidence of these payments.

The court below was bound to decide according to the laws of Virginia, which have been adopted by Congress for the government of the county of Alexandria.

The law is conclusively settled in Virginia, by the highest tribunal in that State, in the case of Braxton v. Southerland, 1 Washington, 133, where the president of the Court of Appeals, in delivering the opinion of the court says, "although, if the debtor neglect to make the application at the time of payment, the election is then cast upon the creditor, yet it is incumbent upon the latter, in such a case, to make a recent application, by entries in books or papers, and not to keep parties and securities *in *270] suspense, changing their situation from time to time, as his interest, governed by events, might dictate." And upon this principle, the decree of the court in that case was founded. It was not a mere dictum but the very ground of the court's decision. This, then, being the law of Virginia, the court below was bound by it.

If the opinion of the Court of Appeals of Virginia needed support, it would be found in 2 Pothier on Obligations, 45, who gives it as a rule of the civil law, "that when the debtor in paying makes no application, the creditor to whom money is due for different causes, may apply it to the discharge of which he pleases." But he goes on to say, "It is necessary, 1st. That this application should have been made at the time; and 2d. That the application which the creditor makes should be equitable." Another rule in p. 49, is, that "when the application has not been made either by the debtor or the creditor, the application ought to be made to that debt which the debtor had, at the time, most interest to discharge." And as a corollary, he says, "The application is made rather to the debt, for which the debtor has given a surety, than to those which he owes alone. The reason is, that in paying the former he discharges himself towards to creditors his principal creditor, and his surety whom he is bound to indemnify." These principles are confirmed by Domat, vol. 1, 287, tit. De Solutione.

The case of Goddard v. Cox, cited for the plaintiffs, is a mere nisi prius case before Chief Justice Lee, in Middlesex; and it only decides the principle, that where a defendant is indebted to the plaintiff on two simple contracts of equal dignity and of the same