1. When the law is called upon to make the application of payments by a debtor to a creditor, who has various demands against him, and no application has been made by the parties, the application can only embrace debts or demands for certain sums, or such as can be made certain, as accounts for work and labor, or for goods sold, or the like, but not uncertain and unliquidated damages.
2. There is another rule in this applications by the law, that it is to be first made to the debt for which the security is the most precarious.
RUFFIN, C.J.
No judgment can be rendered on the verdict. There must necessarily be a venire de novo. The application of payments by the law is only when the demands (168) to which it is applied are debts, or for certain sums, or such as can be rendered certain, as accounts for work and labor, or goods sold, or the like, and not for uncertain and unliquidated damages. Therefore, no more can be said here than that the money paid ought to be applied in satisfaction of the particular debts which had been collected by the deputy sheriff anterior to the time or times of the several payments, and that it cannot be applied to such of the claims as remain uncollected. For, in respect to the latter, the deputy did not make them his own, as upon a purchase, for not collecting them, and, therefore, he cannot be charged with the amount of them as a debt, but he can only be made liable for the damages the plaintiff sustains by his delay and laches. If, however, the deputy had collected anything on the bond of Brittain and Johnson, then, to the extent of the money so collected, the payments ought to be first applied to that demand, because it is the rule in this country to apply payments to the debt for which the security is the most precarious. Moss v. Adams, 39 N.C. 42. And that is the case with that demand, because the deputy alone is bound for that, while the sheriff and his sureties are also bound for the others. S. v. Long, 29 N.C. 379. But, as the verdict does not find that the debts were collected, but only that they were collected or might have been, no such case appears as yet as will enable the Court to make specific applications of the sums paid; but the case must go to another jury.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: S.c., 33 N.C. 253; Sprinkle v. Martin, 72 N.C. 93; Lester v. Houston, 101 N.C. 609.
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