Both partios concede the rule, that a debtor, when paying money where several debts are owing, has the right to direct its application to either, and if he omits the direction, the right devolves on the creditor ; but the defendants contend that as the creditor has made no application of the payment to either debt, they now have the right to assert it, in discharge of the present suit. We think they were entitled to have the law so declared upon the facts in proof before the jury, inasmuch as there were no circumstances, from which it could be lawfully inferred the several debts were extended by reason of this payment.
If the bank was prepared to show the money was paid for the purpose of extending both debts, and that in point of fact, both were extended, or delayed, in consequence of the payment, it is possible the acceptance of the money under such circumstances, of itself, would be an appropriation by the debtor, and they might have been left to the jury, as sufficient to warrant them in the conclusion that such was the intention of the parties. There was, however, no evidence of the circumstances under which the payment was made, or indeed, that the debts were extended in consequence of the payment.
We think the court erred in refusing the charge requested.
Judgment reversed, and cause remanded.