Hubbard, J.
This was a writ of entry to foreclose a mortgage made by Charles Green to Jeremiah Green, deceased, of whose estate the demandant is administrator. The said Charles [142]*142Green, one of the tenants, disclaimed all title to the land de manded, and filed a declaration that he should make no defence to the suit. Charles W. Green, the other tenant, pleaded the general issue, and filed a statement of his defence, that tie note secured by the mortgaged premises was paid. The issue being joined, the case went to trial between the demandant and the said Charles W. Green. The said Charles W. claimed the land demanded in the writ through the said Charles Green. The demandant joined them as tenants in the writ by virtue of the provision in the Rev. Sts. c. 107, <§> 8, that “ the action may be brought, in the same manner as a writ of entry, against whoever is tenant of the freehold, and the mortgagor may, in all cases, be joined as a defendant, whether he then has any estate in the premises or not.”
A question arose, whether the declarations of Charles Green could be given in evidence; it being objected by the said Charles W., that he had no interest in the suit, and that he might be called upon as a witness. But the presiding judge, ruled that his declarations were admissible on the fact submitted to the jury, viz. whether the note, which the mortgage was given to secure had been paid by him ; it being proved that in a previous suit between the same parties, in which the said Charles W. was plaintiff in equity, and the said Parker defendant, the said Charles, as witness for said Charles W., had sworn that he paid a prior mortgage on the same premises, called the Patten mortgage, out of his personal estate, and consequently, if moneys, proceeding from sales of a part of the estate mortgaged, could be appropriated to the payment of the note secured by the mortgage now in suit, he would be relieved from the payment of the note upon which the conditional judgment would be founded in case the demandant prevailed, and to which note the said Charles was a party.
It is not necessary to consider the correctness of this ruling, because we are satisfied, on the report of the evidence, that the declarations of said Charles, of which the demandant offered evidence, were made when he was acting as the agent of said Charles W., and are to be received as a part of the res gesta" [143]*143Greenl. on Ev. <§.113. This, however, does not apply to the conversation between Prescott, the witness, and the said Charles. In that interview he was not acting as the agent of his son. The fact appears to have been that Prescott, who had drawn some of the deeds for Jeremiah Green, went at his request" to see Charles Green, to demand payment of him of the interest due on the sum in dispute in the present action. This demand the plaintiff in this case had a right to prove, and what Prescott said, when he made the demand, in relation to it, was clearly admissible; and the answer of Charles Green, that he would see Jeremiah, was a part of the same transaction. But if it were otherwise, the words spoken were immaterial; and therefore, it they had been erroneously admitted, it would be no cause for a new trial.
In answer to the evidence offered by the tenant tending to show that the sales of parts of the mortgaged property were insufficient to pay the note secured by the deed "set forth in the declaration, the demandant offered evidence of a mortgage, made by one Isaac Green to William Patten, of the same premises, and of the title of said Jeremiah to the same by as signment, for the purpose of showing that the moneys arising from the sales of parts of the mortgaged property were applied to the payment of that mortgage. To the admission of this evidence the tenant, Charles W. Green, objected, on the ground that he was surprised by the introduction of it, and that no notice had been previously given of an intention to offer it; which the counsel contended was required by the 57th rule for the regulation of the practice in this court. 24 Pick. 401. But the objection was overruled, and the evidence was admitted. And we are of opinion that the evidence was properly admitted. It was offered by way of rebutting the testimony introduced by the tenant, and, as such, was not required, by the rule referred to, to be previously stated, upon any construction to be given to it; and as to the surprise alleged, it would seem, from the previous case between these same parties in relation to these mortgages, in which the present tenant was plaintiff in equity, and the demandant was defendant, that no such surprise [144]*144could have taken place by the offer of such testimony. But, as to this, it was a question resting upon the discretion of the judge on the trial of the issue, and is not matter of law for the consideration of the court.
The point principally relied upon, by the counsel, for the tenant, was that raised by him as to the appropriation of the payments. The facts upon which the point arose were these : The mortgage to Patten, and that to Jeremiah Green, which covered the same premises, contained a number of parcels of estate ; and after Jeremiah purchased the Patten mortgage, some of the parcels of land, at the request of Charles, were sold by Jeremiah, who received the purchase money. Some wood also was cut from three of the lots, and was sold; the proceeds of which he received. At the times when the money was re ceived by Jeremiah, Charles gave no direction as to the appropriation of it. And it appears that afterwards Jeremiah did apply it to the discharge of the Patten mortgage, as he acknowledged that it was paid, and demanded payment of the money lent by him on the mortgage now in suit, or the interest upon it.
Tt is not necessary to discuss here the general principles which regulate the appropriation of money received by a credit- or who holds different demands against his debtor. But the law, as received in this Commonwealth, authorizes the person paying to make the appropriation, if he pleases. If he does not do it, the creditor may make it, if done within a reasonable time, and before the relations of the parties have been changed in any material matter. And where no appropriation is made by either party, the law makes the appropriation, upon such principles as justice and equity between the parties may require; leaning, however, in the absence of any controlling circumstances, to the application of the money, which is paid, to the discharge of a debt unsecured, rather than to one which is secured. But in the present case the money was not paid by the debtor from sources independent of the security held by the creditor. The money arose from the sale of a part of the mortgaged premises; and in the absence of any agreement between the parties, or [145]*145request at the time by the debtor, how the money should be applied, we think the creditor had a perfect right, at any time, to apply it to the discharge of the preexisting incumbrance on the estate mortgaged to him, and which he had been compelled to purchase in order to secure himself from loss by entry and foreclosure against him. Nor could the debtor be prejudiced by it; for, admitting both debts to be justly due, and secured by the same property, it was a matter of indifference to which notes the payments were applied.
As to the motion for a new trial, on the ground that the verdict is against evidence, we are not satisfied in regard to the note given by Charles W.
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Hubbard, J.
This was a writ of entry to foreclose a mortgage made by Charles Green to Jeremiah Green, deceased, of whose estate the demandant is administrator. The said Charles [142]*142Green, one of the tenants, disclaimed all title to the land de manded, and filed a declaration that he should make no defence to the suit. Charles W. Green, the other tenant, pleaded the general issue, and filed a statement of his defence, that tie note secured by the mortgaged premises was paid. The issue being joined, the case went to trial between the demandant and the said Charles W. Green. The said Charles W. claimed the land demanded in the writ through the said Charles Green. The demandant joined them as tenants in the writ by virtue of the provision in the Rev. Sts. c. 107, <§> 8, that “ the action may be brought, in the same manner as a writ of entry, against whoever is tenant of the freehold, and the mortgagor may, in all cases, be joined as a defendant, whether he then has any estate in the premises or not.”
A question arose, whether the declarations of Charles Green could be given in evidence; it being objected by the said Charles W., that he had no interest in the suit, and that he might be called upon as a witness. But the presiding judge, ruled that his declarations were admissible on the fact submitted to the jury, viz. whether the note, which the mortgage was given to secure had been paid by him ; it being proved that in a previous suit between the same parties, in which the said Charles W. was plaintiff in equity, and the said Parker defendant, the said Charles, as witness for said Charles W., had sworn that he paid a prior mortgage on the same premises, called the Patten mortgage, out of his personal estate, and consequently, if moneys, proceeding from sales of a part of the estate mortgaged, could be appropriated to the payment of the note secured by the mortgage now in suit, he would be relieved from the payment of the note upon which the conditional judgment would be founded in case the demandant prevailed, and to which note the said Charles was a party.
It is not necessary to consider the correctness of this ruling, because we are satisfied, on the report of the evidence, that the declarations of said Charles, of which the demandant offered evidence, were made when he was acting as the agent of said Charles W., and are to be received as a part of the res gesta" [143]*143Greenl. on Ev. <§.113. This, however, does not apply to the conversation between Prescott, the witness, and the said Charles. In that interview he was not acting as the agent of his son. The fact appears to have been that Prescott, who had drawn some of the deeds for Jeremiah Green, went at his request" to see Charles Green, to demand payment of him of the interest due on the sum in dispute in the present action. This demand the plaintiff in this case had a right to prove, and what Prescott said, when he made the demand, in relation to it, was clearly admissible; and the answer of Charles Green, that he would see Jeremiah, was a part of the same transaction. But if it were otherwise, the words spoken were immaterial; and therefore, it they had been erroneously admitted, it would be no cause for a new trial.
In answer to the evidence offered by the tenant tending to show that the sales of parts of the mortgaged property were insufficient to pay the note secured by the deed "set forth in the declaration, the demandant offered evidence of a mortgage, made by one Isaac Green to William Patten, of the same premises, and of the title of said Jeremiah to the same by as signment, for the purpose of showing that the moneys arising from the sales of parts of the mortgaged property were applied to the payment of that mortgage. To the admission of this evidence the tenant, Charles W. Green, objected, on the ground that he was surprised by the introduction of it, and that no notice had been previously given of an intention to offer it; which the counsel contended was required by the 57th rule for the regulation of the practice in this court. 24 Pick. 401. But the objection was overruled, and the evidence was admitted. And we are of opinion that the evidence was properly admitted. It was offered by way of rebutting the testimony introduced by the tenant, and, as such, was not required, by the rule referred to, to be previously stated, upon any construction to be given to it; and as to the surprise alleged, it would seem, from the previous case between these same parties in relation to these mortgages, in which the present tenant was plaintiff in equity, and the demandant was defendant, that no such surprise [144]*144could have taken place by the offer of such testimony. But, as to this, it was a question resting upon the discretion of the judge on the trial of the issue, and is not matter of law for the consideration of the court.
The point principally relied upon, by the counsel, for the tenant, was that raised by him as to the appropriation of the payments. The facts upon which the point arose were these : The mortgage to Patten, and that to Jeremiah Green, which covered the same premises, contained a number of parcels of estate ; and after Jeremiah purchased the Patten mortgage, some of the parcels of land, at the request of Charles, were sold by Jeremiah, who received the purchase money. Some wood also was cut from three of the lots, and was sold; the proceeds of which he received. At the times when the money was re ceived by Jeremiah, Charles gave no direction as to the appropriation of it. And it appears that afterwards Jeremiah did apply it to the discharge of the Patten mortgage, as he acknowledged that it was paid, and demanded payment of the money lent by him on the mortgage now in suit, or the interest upon it.
Tt is not necessary to discuss here the general principles which regulate the appropriation of money received by a credit- or who holds different demands against his debtor. But the law, as received in this Commonwealth, authorizes the person paying to make the appropriation, if he pleases. If he does not do it, the creditor may make it, if done within a reasonable time, and before the relations of the parties have been changed in any material matter. And where no appropriation is made by either party, the law makes the appropriation, upon such principles as justice and equity between the parties may require; leaning, however, in the absence of any controlling circumstances, to the application of the money, which is paid, to the discharge of a debt unsecured, rather than to one which is secured. But in the present case the money was not paid by the debtor from sources independent of the security held by the creditor. The money arose from the sale of a part of the mortgaged premises; and in the absence of any agreement between the parties, or [145]*145request at the time by the debtor, how the money should be applied, we think the creditor had a perfect right, at any time, to apply it to the discharge of the preexisting incumbrance on the estate mortgaged to him, and which he had been compelled to purchase in order to secure himself from loss by entry and foreclosure against him. Nor could the debtor be prejudiced by it; for, admitting both debts to be justly due, and secured by the same property, it was a matter of indifference to which notes the payments were applied.
As to the motion for a new trial, on the ground that the verdict is against evidence, we are not satisfied in regard to the note given by Charles W. Green to Jeremiah Green on the 7 th of November 1839, and finally taken up by him September 11th 1841, whether any part of it has been applied to the payment of the money secured by the existing mortgage; we therefore are of opinion that a new trial should be granted, upon condition that the tenant admits that no part of the principal of said note signed by the said Charles Green, bearing date September 16th 1831, for $2000, has been paid, nor any interest thereon, since September 16th 1839, unless the sum of $500 and the interest thereon, being the amount of Charles W. Green’s note to Jeremiah Green, bearing date November 7th 1839, and which was paid to his administrator, September 11th 1841, should be applied towards the discharge of it; and the jury are to determine whether the amount of said note of $500, or any part thereof, was accounted for by said Jeremiah Green in his life time, and if not, then the amount of such note and interest, or such part thereof as has not been accounted for, shall be deducted from said note of $2000 and interest, and a conditional judgment be rendered accordingly; and the demandant has liberty to amend the verdict, as prayed for, that it may conform to the declaration; and the verdict is to be set aside for the above purpose, unless the demandant agrees to allow the said note of $ 500 in part payment of the said note of $2000.