By the Court,
Parker, J.Two points are made by the defendant. The first is, that the acceptance of rent in October and November, 1845, was a waiver of the forfeiture. The rent fell due annually, on the first day of June, and the lease reserved the right of re-entry if the rent was not paid in four months thereafter. The forfeiture did not therefore happen till the first day of October, and the last forfeiture that had occurred before this suit was commenced was on the first day of October, 1845. Subsequent to that day, and in October and November of the same year, two payments were made, “ on account of rent” of the farm, as is stated in both of the receipts. It is important to ascertain whether these payments were to be applied on the rent then due, or on the rent of the then current year. No directions were given by the debtor, as to the application of the payments, nor was any agreement on the subject made by the parties, except generally, as above stated. The rule is that if the debtor does not direct the application, the creditor may apply the payment as he pleases. (Mayor v. Patten, 4 Cranch, 317. Stone v. Seymour, 15 Wend. 19. Allen v. Pulver, 3 Denio, 284.) If the creditor does not make the application, the law will apply it towards the extinguishment of the debt first due; (United States v. Kirkpatrick, 9 Wheat. 720. Allen v Culver, 3 Denio, 284. Seymour v. Van Slyck, 8 Wend. 403. Webb v. Dickinson, 11 Id. 62. Huger v. Bocquet, 1 Bay, 407 ;) and to interest in preference to principal; (Fruzier v. Hyland, 1 Har. & John. 98. French v. Kennedy, 1 Barb. Sup. C. Rep. 455;) and such application must be made on an indebtedness then existing. (Baker v. Stackpoole, 9 Cowen, 420. Law's Ex'rs v. Sutherland, 5 Grattan's Va. Rep. 357.)
It is plain, under these rules, that the payments thus generally made as the rent, will, in the absence of any direction of the defendant. and any agreement of the parties, be applied by the law on the rent then due, and not on the rent then accruing.
*35[Albany General Term, May 5, 1851.Harris, Watson and Parker, Justices.]
That question being settled, the payments were no waiver of the forfeiture. It is only where rent is paid which accrued after the forfeiture that such payment is considered an affirmance of the lease and a waiver of the forfeiture. Payment of rent which accrued prior to the fight of entry is not a waiver of the forfeiture. The reason for this distinction is obvious, and the distinction itself is well established (1 Coke’s Rep. 64. 6 Term Rep. 220. Woodfall’s Land. and Ten. 203, 496. Cowper’s Rep. 243,803. Coke Litt. 211, 215. Cro. Eliz. 3. 1 Saund. 237, note 16. Adams on Eject. 160. 2 Term Rep. 430. 4 Taunt. 735. Jackson v. Allen, 3 Cowen, 230. Jackson v. Sheldon, 5 Id. 448. Bleecker v. Smith, 13 Wend. 530. Conway v. Starkweather, 1 Denio, 114. Smith v. Saratoga Co. Mu. Fire Ins. Co., 3 Hill, 508.)
The other point made by the defendant is that it should have been submitted to the jury to say whether the payments were a waiver of the forfeiture. It is a sufficient answer to this objection that no such ground was taken at the trial. The only objection made by the defendant rested entirely on legal grounds, which were overruled by the judge, on a motion for a nonsuit. The judge then charged that the plaintiff had established a right to recover. No exception was taken to the charge, nor was the judge requested to submit any question to the jury. Both parties evidently regarded the case as turning upon questions of law, and the defendant is not at liberty now to assume a different ground.
The motion for a new trial must be denied.