Tbe plaintiff testified, in part: “Asked for settlement but Sheriff Sharpe would not give me one. I asked him for $146.00. He would not give it to- me. Said I owed it to him on back account. I bad never said anything about paying bis back account.” On cross-examination : “Q. What was said to you, if anything, about paying tbe account of 1931? There wasn’t anything said about it. I never mentioned it. He never mentioned it to me. Did not say anything about it. . . . Q. Did you specify on which account it was to be applied? Yes, I think I notified him. Told him I wanted it put on this last gone year. Told him along about the first tobacco I sold sometime in September. That was tbe only time I said anything to him about it. I didn’t say anything to him about it until I got through paying this year’s, last year’s, expenses.”
Tbe defendant testified, in part: “I said 'What do you want done with it?’ He says, 'I want so much money and pay tbe other on my account.’ Tbe first time I bad notice that there was no settlemebt was when I got tbe summons. Baker never said anything about applying tbe money on any particular account.”
Tbe principle of law is thus stated in Stone v. Rich, 160 N. C., 161 (163-4) : “There is no rule in tbe law better settled than tbe one in regard to tbe application of payments: (1) A debtor owing two or more debts to tbe same creditor and making a payment, may, at tbe time, *198direct its application to any one of tbe debts. The right is lost if the particular application is not directed at the time of the payment. (2) If the debtor fails to make the application at the time of the payment, the right to apply it belongs to the creditor. (3) If neither debtor nor creditor makes it, the law will apply it to the unsecured debt or the one for which the creditor’s security is most precarious, or, as sometimes expressed, according to its own view of the intrinsic justice and equity of the case,” citing numerous authorities. Supply Co. v. Plumbing Co., 195 N. C., 629.
We think the exception and assignment of error made to the charge of the court below by defendant, must be sustained. We think that there was conflicting testimony as to the application of the money, and it was a question for the jury to determine. For the reasons given, there must be a