Sanford Gay, not being a party to the record, was a competent witness. All disqualification on account of interest is removed by the statute. Bigelow v. Heyer, 3 Allen, 243. The death of Fisher Gay would have excluded his testimony if he had been plaintiff of record, but not otherwise Gen. Sts. c. 131, § 14.
The declarations of Zilpah Shaw, accompanying the act of paying money to Sanford Gay to be applied on the notes, were competent as part of the res gestee. It appears by her deposition, which is referred to in the bill of exceptions, that Fisher Gay sent money by her to be paid to Sanford Gay, but it does not appear that he expressly directed that it should be paid on these notes. Yet this is not material, nor is her declaration to Sanford Gay material; because the money was at least sent by Fisher to be paid to him, without directions to apply it on any other debt. In the absence of such directions, the creditor would have a right to apply it on these notes. If a debtor pays money without appropriating it, the creditor has a right to appropriate it on such debt as he pleases. Brewer v. Knapp, 1 Pick. 332. Washington Bank v. Prescott, 20 Pick. 339. Indeed it does not appear that Sanford Gay had any other claims upon which it could have been applied. Exceptions overruled.