The opinion of the Court, Shepley J. concurring in the result thereof, was drawn up by
Whitman C. J.■— The first question raised by the counsel for the defendant seems to be disposed of by the case of Whitwell v. Johnson, 17 Mass. R. 440. It is there decided, that such a demand as is obligatory upon the makers of notes is sufficient, in reference to the liability of indorsers. It is also said, in the Bank of Washington v. Triplett, 1 Peters, 34, that it is fairly to be presumed, that the maker of negotiable paper is acquainted with the customary law of the place in which he lives. The maker of the note in question was not only resident in the place at which the plaintiffs did their business, but was proved to have been conusant of the usage of *298the plaintiffs at their banking house; and the mode of making the demand upon him was in conformity to that usage. This usage by banks has, moreover, been so often proved, and recognized as sufficient, in the cases reported, that perhaps it may now well be regarded as matter of public notoriety, and obligatory upon all in any manner connected with negotiable paper.
The other question presented is one of more difficulty. Certain rules have been laid down as to the appropriation of payments, which seem to be plain and explicit; but it still becomes difficult, in many cases, to determine, whether a case which may be presented comes within one or another, or either of them. The cases in which adjudications have been had are, mostly, if not all, those of payments made by the debtor himself from his own funds. The case here is of an involuntary payment, obtained by a levy of an execution upon the property of another. The debtor here, therefore, could have had no right to direct, as to how the payment should be applied. It was exclusively with the creditors to make the application. If they have done it, and have applied it to so much of their judgment against Greenwood, as was recovered upon the four thousand dollar note, there is an end of the defence upon this point. They contend that they have done so by bringing this action. It has been said, that the intention of the parties is to govern, in such cases. In this case the defendant cannot be said to have had any intention about it. He was not privy to the payment; and does not appear to have had the slightest knowledge of it. We have, therefore, the intention of the plaintiffs to look to solely. In Chitty v. Naish, 2 Dowl. P. C. 511, and Brazier v. Bryant, 3 ib. 477, it is said that, if there be no appropriation of payments made by the parties, they will be appropriated according to the presumed intention of the parties, to be collected from all the facts. Are there any facts in this case from which we can infer what must have been the intention of the plaintiffs, as to the application of the payment obtained by them ? The four thousand dollar note was due to the plaintiffs absolutely. The *299two thousand and eighty dollar note, indorsed by the defendant, and on which this action is brought, was held by them as collateral security merely. Now other considerations being equal, and it does not appear that they were not, it would seem to be presumable that the plaintiffs would apply the payment, in the first instance, to a debt absolutely due to them, rather than to one transferred to them as collateral security only. We are, therefore, led to the conclusion that the plaintiffs are entitled to recover. But the amount satisfied by the levy was more than sufficient to pay the amount due on the four thousand dollar note. According to the agreement of the parties therefore, the verdict may be so amended as to correspond with the balance remaining due to the plaintiffs.