after stating the case, delivered the opinion of the court, as follows :—

It is a clear principle of law, that a person owing money on two several accounts, as upon bond and simple contract, may elect to apply his pay*192ments to which account he pleases; but if he fails to make the application, the election passes from him to the creditor. No principle is recollected, which obliges the creditor to make this election immediately. After having made it, he is bound by it; but until he makes it, he is free to credit eithejr the bond or simple contract.

Unquestionably, circumstances may occur, and perhaps did occur in this case, which would be equivalent to the declaration of his election on the part of the debtor, and therefore, the court was correct in instructing the jury, that if they should be satisfied, that the payments were understood to be made on account of the goods sold at vendue, they ought to apply them to the discharge of that account; but in declaring that the election, which they supposed to devolve on the plaintiff, if the application of the money was not understood, at the time, by the parties, was lost, if not immediately exercised, that court erred.

Their judgment, therefore, must be reversed, and the cause remanded for a new trial.