delivered the opinion of the Court. The first question is whether the book produced by the plaintiffs was admissible as evidence tending to prove the notice. It is objected, that it was not verified , by the suppletory oath of any one, as was done in North Bank v. Abbot, 13 Pick. 471. But it was proved that the assistant discount clerk and messenger, whose duty it was to make, and who did make the entries, was dead. That evidence, we think, was sufficient for the admission of the book, for the inspection and consideration of the jury. It is all the evidence touching that point, which could be reasonably expected. But upon the production of the book it appears to be labelled “ Washington Bank. Notices to Indorsers,” and an argument is drawn from that circumstance, that it does not purport to be a record of notices to makers or promisors, but merely to indorsers. It would not do to stop at the labelling, but the book should be opened and the contents examined. And there it is found, that there was no designation given of the character of the individuals, whether they were indorsers or makers. This circumstance is certainly objectionable, and has given rise to an able argument ; which however we think more ingenious than solid. For there are found entries which have reference to certain notes, which the plaintiffs contended were those in question, and to two other notes which are not now in suit ; and the entries show "that the parties to those notes, which were produced, were named. The instruction to the jury was, that it being proved that the messenger was dead, and that the book was in his handwriting, it was competent evidence, and if they believed the entries in the book had reference to the notes in question, and that the notices were given conformably, they would in that part of the case find for the plaintiffs.
The memorandums in the book are described by the counsel for the defendant, as unintelligible, but upon inspection we think the jury might well understand them. Indeed, taking the notes, and: the book together into comparison, we think that *343it would be difficult to find any two intelligent and competent jurors to understand them differently, or to come to a different result upon the questions -proposed, viz. whether a demand and notice had been made and given to the parties as the plaintiffs alleged. Taken into consideration together, all the uncertainty who was promisor and who indorser, disappeared. No other notes were produced at the trial than those which were produced by the plaintiffs.
It was a question to be settled upon the evidence. The jury examined the book and compared the entries with the notes in question, and on the whole matter, upon this part of the case, found for the plaintiffs. From the facts which were proved the jury might reasonably believe that the demand was made upon the promisor and notice of non-payment given to the indorser, as was alleged by the plaintiffs.
It appears that at the time when the order in the case was drawn by the defendant and accepted by the assignees of Bax ter, the plaintiffs held four notes against Baxter, which were indorsed by the defendant. These notes were overdue when the plaintiffs received $4326'36 upon the order. And it is contended for the defendant, that this transaction was an accord and satisfaction of the two notes now sued. It is said that the amount received was an extinguishment of those two notes at any rate, and should have been applied to the payment of the eldest notes. Whereas the plaintiffs have apportioned the whole sum received, upon all the notes which they held.
There are two answers, either of which we think is sufficient, to this argument.
1. Here was no particular appropriation by the debtor, the payer of the money, and the creditor in such case might, by the general rule, appropriate the money towards the extinguishment tf such demands as he pleased, which he held against the debtor and which were due.
And 2. by the terms of the assignment, to which the defendant was a party, the money collected by the assignees was to be applied in payment and discharge of the debts of the party of the first part (the debtor) to the persons named in the schedule (the creditors) in proportion to the demands named *344in the schedule, without preference or priority, until all the claims should be paid in full.
And the jury found that the money was not paid in satisfaction of the notes now sued.
It was contended for the defendant, that the two notes which are not sued ought not to have been introduced on the trial. But we think they were properly in evidence, to show the whole claim of the plaintiffs, and to explain the manner in which the plaintiffs had appropriated the money which they had received upon the defendant’s order.
It was argued for the defendant, that as there would be another dividend of about $865, this amount should be deducted. That money has not been received by the plaintiffs. They will be accountable for it whenever it comes to Hand ; but we see no reason why they should allow or give credit for it before they actually receive it.
On the whole, the Court are all of opinion, that the motion for a new trial be overruled, and judgment be rendered upon the verdict.