#### JACOB RAMSOUR vs. ROBERT THOMAS.

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.

There is another rule iu this application by the law, that it is to be first made to the debt, for which the.security is the most precarious.

The cases of Moss v. Adams, 4 Ire. Eq. 42, and State y. Long, 7 Ire. 379, cited and approved.

Appeal from the Superior Court of Law of Henderson County, at the Fall Term, 1818, his Honor Judge Manly presiding.

This was an action of debt ou the bond of the defendant, as sheriff, for the default of his deputy,' in not collecting certain debts for the relators, and in collecting them and not paying over the money', and a special verdict was found, on which a judgment was rendered for the plaintiff. The special verdict was as follows: “The jury find that the defendant, Robert Thomas, was duly appointed sheriff of Henderson County, and served as such during the years 1S42, lS43and 1S44, and that the bond declared on is the act and deed of the defendants duly executed and delivered for the' purpose therein recited : That he appointed one J. J. Summey, in February 1842, his lawful deputy, for and in his name to do and perform all acts, which he, the said Thomas, might lawfully do and perform as sheriff of the said County, and, by and with the consent of the said Thomas, lie continued so to *166act as his deputy, up to the 1st of October 1814. On the 2nd day of November 1842, the relators placed in the hands of the said J. J. Summey, for collection, notes on divers individuals, residing in Henderson County, which he received, and undertook to collect, in his official char acter of deputy sheriff, all of which were due and payable to the relators on the 27th day of October, 1842, amounting in the aggregate, when due, to $1114 70 cents. All of the said notes were for a less sum than $100, except one note on William Brittain and John Johnson for the sum of $566. The said J. J. Summey paid the relators, on the 28th of June, 1843, fifty dollars ; on the 2d day of November, 1843, $437 43 cents ; on the 2d day of June, 1844, $100; on the 7th of July. 1844, $87 ; on the 25th of December, 1845. $40, and on the second day of November 1846, $20. At no time did the said J. J. Summey, or either of the defendants, direct the relators to make any specific appropriation of the money so paid, or inform them or either of them, upon what claim or from whom the same had been received, but the said payments were made generally for moneys received by the said J. J. Summey for the relators, upon the notes put into his hands for collection, as aforesaid. Nor had the relators, previous to the commencement of this suit, applied the same to the payment of any specific debt or note, placed in the hands of the said Summey for collection. The jury further find, that the money upon all the aforesaid notes was, or by ordinary diligence might have been, collected by the said J. J. Summey, within the official year of the said Thomas, covered by the bond declared on, and that, previous to the commencement of this suit, a demand was made by the relators on the said J. J. Summey for all the money collected by him, upon the claims or notes so placed in his hands, and no further payments were made, than those before stated. Whether the payments, made as aforesaid, ought in law to be applied, first, to the payment of the *167note on William Brittain and John Johnson for $566, or upon the other notes less in amount than one hundred dollars, or, pro rata, upon all the notes so placed in the hands of the said Summry for collection, the jury are ignorant and pray the advice of the Court. If the Court be of opinion, upon the foregoing facts, that the payments made, as aforesaid, should be applied to the payment of the note of $566, then the jury find all the issues for the plaintiff and assess the relators’ damages at $603 74 cents, with interest on $529 68 cents from the 2d day of October 1848, till paid ; but, if the Court be of opinion, that the payments made ought to be applied to the extinguishment of the notes, so placed in the hands of the said Summey, for a less sum than $100 each, they find in favor of the defendants ; but, if the Court should be of opinion, that the payments made ought in law to be applied, pro rata, upon all in the hands of the said Summey for collection, as aforesaid, then they find all the issues in favor of the plaintiff, and assess the relators’ damages to $293 74 and interest thereon from 2d day of October, 1848, till paid.”

The Court, beiug of opinion, upon the foregoing verdict, that the payments should be applied, first, to the ex-tinguishment of the note of William Brittain and Johnson, so advised, and it is accordingly adjudged, that the plaintiff do recover of the defendants the sum of $10,000, tobe remitted upon the payment of $603 74 with interest on $529 68 cents, from the 2nd day of October 1848, and costs to be taxed by'the clerk. From which judgment the defendants appealed.

Baxter and Thomas, for the plaintiff.

J. W. Woodjin, for the defendants.

Ruffin, C. J.

No judgment can be rendered on the verdict. There must necessarily bo a venire de novo *168The application of payments by the law is only, when the demands, 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 scld, 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 any thing, 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, 4 Ire. Eq. 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. State v. Long, 7 Ire. 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 jur}'.

Per Curiam.

Judgment reversed and venire de novo.