The first question to be determined is, the amount which, independently of payments, should be recovered *45in this suit. When the action was commenced, the sum of §100 had become due, but the balance of the principal was not due. As to the interest, by the terms of the note it was payable on the whole note, including the §100, from November 1, 1857. But it was not to be paid annually, and therefore no interest became due on the balance of the principal until the principal itself became due; so that the amount to be recovered in this action, disregarding payments, is the sum of §100, with interest thereon from November 1, 1857.

The second question relates to the admissibility in evidence of certain admissions alleged to have been made by the plaintiff’s attorney. The admissions did not relate to the suit, and therefore are unlike those which are referred to in Lewis v. Sumner, 13 Met. 269. The Gen. Sts. c. 129, § 60, require that all such agreements of attorneys shall be in writing, otherwise they shall be of no validity. The admissions in this case were mere matters of conversation, and though they related to the facts in controversy, they cannot be received in evidence against the plaintiff. The attorney was not the agent of bis client to make such admissions. 1 Greenl. Ev. § 186. If they had been in writing they would not have been admissible.

The remaining question relates to the payments, and the proper application of them. As the whole note was due at the date of the indorsement, the plaintiff had a right to appropriate the amount he received to either instalment, at his option. Allen v. Kimball, 23 Pick. 473. It cannot be considered as a payment by process of law or in invitum, like payment by levy of an execution, as was the case in Blackstone Bank v. Hill, 10 Pick. 129. But it was paid by the sale of property under an agreement with the defendant, in which the defendant reserved no right to make the appropriation. And the rights of sureties are not concerned in the present case, if that be a material fact.

But the defendant contends that the plaintiff received a larger sum than that which he has indorsed, more than enough, in fact, to have paid the whole amount due on the note. He offered certain evidence which the presiding judge held to be insufficient in law to establish the fact. It seems to us that *46there was evidence to be submitted to the jury. It was in evidence that the plaintiff, while in company with his brother Frank, said to the defendant, “We have sold part of the wood to Mr. Pueed.” This apparently referred to Frank as well as himself. A Mr. Reed was called, who testified to having purchased wood of Frank Saunders. The evidence does not appear to be fully reported; but, taking the whole report, it seems to us that the question of the identity of this sale with that admitted by the plaintiff should have been left to the jury.

But the defendant offered other evidence which was excluded. He offered to show how much wood there was on the lot at the time of the sale to him. This was at the time the mortgage was given. He also offered to prove that there was, besides the wood sold to Reed, a large quantity of other wood, and to show the quality and value thereof. It was already in evidence that the defendant had never taken or received any of said wood. The court are of opinion that the evidence offered was admissible, as having some tendency to show that the sale to Reed was in fact the same sale admitted by the plaintiff to have been made. It might not be sufficient to convince the jury, but it was at least admissible. The exception on this point is therefore sustained.

It is contended that the plaintiff proceeded according to the laws of New Hampshire. But he offered no evidence on this point, and it is not before us.

The facts in regard to the second action of the plaintiff are not material to any of the questions which we have decided.

Exceptions sustained.