of such an agreement, they could assert such a right against an actual appropriation made by the appellants, in the absence of an appropriation by McIntyre, need not be considered.

It appears that the note of date March 1, 1880, was carried with the general account by appellants, and that the judgment obtained on it was only for the balance due on the general account; and it does not appear that payments made by McIntyre were appropriated to any particular parts of the general account, except as this may have been done by bringing suit on February 22, 1881, on the note executed March 1, 1880. It appears from the statement of account made by the appellants that McIntyre was indebted to them $5,078.30 on January 1, 1878. From January 1, 1878, to December 1, 1878, McIntyre paid $6,230.74, and in same time bought $5,950.65, leaving a credit of $280.09. From December 1, 1878, to June 7, 1879, McIntyre paid $4,191.91, and bought $5,459.09 (but of this only $853.86 was bought before the last gift was made), increasing his account $1,267.18. From June 1, 1879, to January, 1880, McIntire paid $5,044.40, nearly all which was offset by purchases. From January 1, 1880, to January 1, 1881, he paid $2,065.97, and received $1,447.44 cents, and between January 1, 1881, and January 1, 1882, he paid $2,367.73, which was passed to his credit on the general account, as were all payments made.

From this statement it will be seen that more money was paid by McIntyre on the general account, if his statement as to the agreement as to appropriation of proceeds of cotton is true, than was necessary to extinguish all indebtedness accruing prior to the time the gifts were made. The account as presented must be deemed one continuous account, and as there is no claim that payments were credited to specific items of the account by the appellants prior to February 22, 1881, we see no reason why the ordinary rule for the appropriation of payments should not be enforced in this case. It would have been the right of McIntyre to have the payments appropriated as he desired, and in the absence of an appropriation by him it was the right of the appellants to make the appropriation as they thought most to their interest, provided the right of no third person had intervened before they exercised this right.

When there is a continuous account, consisting of many items, if no appropriation of payments is made by either party, they will be applied according to the priority of time.

The first item on the debit will be discharged, or so far satisfied as the first payment may extend, and in this order will every payment be appropriated. This is the rule asserted by all the authorities. It has been given application in cases much like the present: Bodenham v. Purchas, 2 Barn. & Ald. 46; Truscott v. King, 6 N. Y. 147; Harrison v. Johnston, 27 Ala. 452; Crompton v. Pratt, 105 Mass. 255.

Not having appropriated the payments made until the rights of the persons holding under McIntyre were such as might be enforced against him, could the appellants thereafter make the appropriation in such manner as to affect their rights? The court below, in effect, held not.

The right of a creditor as between him and the debtor, who has not appropriated a payment at any time to make the appropriation has been recognized; but this right has been denied, even when its exercise would only affect the right of one holding through the debtor by a conveyance fraudulent as to creditors existing at the time the conveyance was made.

This was held in Miller v. Miller, 23 Me. 24, 39 Am. Dec. 597, upon the ground that, as between the grantor and such a grantee, the conveyance is binding; and as no one other than a creditor holding a prior debt can assert its invalidity, even such a grantee may show that on proper appropriation of payments the creditor had no debt at the time the conveyance to himself took effect.

In Harker v. Conrad, 12 Serg. & R. 304, it appeared that a lumber merchant had separate liens for lumber furnished for two houses, and received a payment from the debtor of which no actual appropriation was made by the debtor or creditor until after a purchaser without notice of the lien had acquired title to the property upon which one of the liens existed, when the creditor attempted to appropriate the payment made on the debt, to secure which a lien might have been perpetuated by filing his lien, which, however, was not done. It was held that his right time so to appropriate the payment was lost, and the payment made was appropriated on the debt that first accrued.

In Berghaus v. Alter, 9 Watts, 386, it appeared that Berghaus purchased at different times several bills of goods on a credit, and gave note therefor with security, which was payable in twelve months, and subsequently he made other purchases on the same terms before the note became due, after which he made payments which were credited generally on

the books of Alter, without any specific appropriation. The seller subsequently attempted, with the consent of the buyer, to appropriate the payments to the payment of the debts last created, but the court said: "It is true, however, that a different appropriation was made afterwards, between the plaintiff and George H. Berghaus, but this was some time after the law had interposed itself and made the appropriation which would go in discharge of the debt for which the note was given. And had no one been interested in the appropriation made by law of the moneys previously received, it would have been perfectly competent for them, by their subsequent agreement, to have changed the appropriation so made by law as they pleased. But then the previous appropriation made by law must, to discharge the defendant below, who, being a mere surety, derived no benefit whatever from the debt, and being once discharged from his liability as such, his obligation could not be received." Many other cases assert the same principles: Harrison v. Johnston, 27 Ala. 452; Crompton v. Pratt, 105 Mass. 257.

Those cases deny the right of the creditor at all times, and against all persons, to appropriate when the debtor has not done so; and if the law forbids this on account of equities arising between a principal and surety, and in such cases, in the absence of an actual appropriation by the debtor or creditor at the time the payment is made, appropriates it on the oldest items of a general account consisting of items bought at different times, we see no reason why the same protection should not be given to one having equities against his debtor, such as would authorize against him a decree for specific performance of a verbal gift of land.

In the one, the security a person is discharged by the appropriation the law makes; in the other, the property ought to be relieved from liability-discharged from suretyshipby the operation of the same law whenever equities calling for this have existence between the debtor and a third person.

The court found that the verbal gifts were not made with an intention to defraud, and the mere fact that McIntyre may have been in debt at the time he made them will not invalidate them, but it is claimed that, exclusive of the property given to his children, he had not sufficient subject to execution and openly held to pay all the debts he then owed. The court found to the contrary, and an examination of all the evidence would not justify our holding that the finding was incorrect.

In fact, if the evidence introduced by the appellees is to be believed, McIntyre had ample means to pay all his debts until 1881, when, by a misfortune not to be anticipated, he suffered a loss which deprived him of capacity to do so. For nearly two years after the gifts were made, and while the facts were transpiring on which the equities of the appellees are based, with notice of them, the appellants continued to extend large credit to McIntyre, as is evidenced by the account they render.

The court also held that the facts shown were such as, between McIntyre and his daughters and their husbands, would entitle the latter to specific performance of the verbal gifts, and we are not prepared to hold, looking to all the evidence, that this holding was erroneous: Curlin v. Hendricks, 35 Tex. 225; Murphy v. Stell, 43 Id. 123; Willis v. Matthews, 46 Id. 478; Van Bibber v. Mathis, 52 Id. 409.

From this it follows, even if we could hold that the judg ment through which the appellants claim was rendered on a debt created before the verbal gifts were made, that the judgment must be affirmed, and it is so ordered.

DEED IS NOT FRAUDULENT AS TO CREDITORS WHEN MADE TO PERFECT TITLE TO LAND, of which an oral gift had been made to a son by his father, at a time when he was solvent, and when the former, relying upon the consummation of such oral gift, had entered and made permanent and lasting improvements: Dozier v. Matson, 94 Mo. 328; 4 Am. St. Rep. 388, and cases collected in note 391.

PAYMENTS, RULE AS TO APPLICATION OF: Pickering v. Day, 3 Houst. 474; 95 Am. Dec. 291, and note 313; Hersey v. Bennett, 28 Minn. 86; 41 Am. Rep. 271; Ross v. Crane, 74 Iowa, 375; Skiles v. Watson, 124 Ill. 384. The holder of several unpaid notes, some of which are secured and others unsecured, may, in the absence of any agreement or direction as to the application of payment, apply the money exclusively to the payment of any one of the notes, and is not bound to a pro rata application of it: Wood v. Callaghan, 61 Mich. 402; 1 Am. St. Rep. 597.

Gulf, Colorado, AND SANTA FE RAILWAY COMPANY V. WALKER.

[70 TEXAS, 126.]

RAILROAD COMPANIES - ADOPTION OF NEW APPLIANCES. -It is not the duty of a railroad company to discard reasonably safe machinery, and to adopt a new device for the safety of its employees, until by its general and continued use, or otherwise, its superiority has been established. RAILROAD COMPANIES ADMISSIBILITY OF EVIDENCE AS TO NEW APPLIANCES TO SECURE SAFETY OF PERSONS ON RAILROAD TRACK. A boy, while walking along a railroad track, which was laid in a public street where pedestrians were accustomed to pass, had his foot caught between the rails of a switch, and was run over by a train of the company. In an action against the company to recover damages for the injury thereby sustained, evidence that a simple appliance by which the danger of being thus caught and injured was obviated had been in use on a few railroads in a distant part of the country for four or five years is admissible, in connection with other evidence in the case, that at the place where the accident occurred there were no sidewalks, that no safeguards were used by the defendant, and that without some guard the track was dangerous to brakemen and also to pedestrians passing over it.

RAILROAD COMPANY IS BOUND TO USE A DEGREE OF CAUTION CORRE

SPONDING to the danger of operating its trains over the street of a city, when, by reason of the absence of sidewalks, persons might be expected to walk along and across the tracks.

Jones and Garnett, for the appellant.

Brady and Ring, for the appellee.

GAINES, A. J. Appellee, while walking along the track of a railroad in the city of Houston, upon which the appellant ran its trains, had his foot caught between the rails of the switch, and run over by a train of the company. The accident resulted in the loss of his foot. He was but a boy at the time of injury, and brought suit by his father as his next friend, and obtained a verdict and judgment against the appellant for two thousand dollars.

The deposition of three witnesses residing in Davenport, Iowa, were taken on behalf of plaintiff, who testified that a certain device consisting of a block of wood fastened between the rails at the frogs of the switches was in use upon certain railroads in the Northwest, and had been so used for four or five years; that it prevented the danger to persons employed upon or walking over the track of catching a foot in the switch; and that without some similar contrivance, the switches were not safe. To the reading of this testimony the defendant objected, but the objection was overruled by the court. The objections were, in substance, that the answers of the witnesses