Randall v. Parramore, 1 Fla. 409 (Fla. 1847)

Randall v. Parramore, 1 Fla. 409 (Fla. 1847).

Supreme Court of Florida

January, 1847

THOMAS RANDALL vs. REDDING W. PARRAMORE & SIMEON ALEXANDER SMITH.

ERROR from Jefferson County.

Judge Hawkins, before whom this case was tried at Fall Term, 1846, of Jefferson Circuit Court, did not sit at the hearing in this Court.

The facts of the case are recited in the opinion of the Court.

The following instructions, asked for by defendant, were given the jury by the Court:

1st. That when a debtor, indebted on several amounts, makes payment, it is his legal right to direct their application; and that such application is considered as made when such payment is made, and is to be determined by the facts and circumstances attending the payment.

2d. That the mere giving of the debtor's individual check or order on a Bank, is not a payment and discharge of a mortgage lien, but that an actual payment and receipt of the money is necessary to constitute such discharge.

5th. That when an answer in Chancery is given in evidence in a Court of Law, the whole answer is to be taken as prima facie evidence of the truth of the facts stated in it; and that the party who reads it, makes the whole of it evidence, and that it is not competent for the petitioners here to take such parts of the answer of the defendant as suits their purposes and reject such parts as make against them.

6th. That a debtor owing money secured by mortgage and money due on simple contract not secured by mortgage, has the legal right to direct any payment he may make to the satisfaction exclusively of mortgage debt; and that if the jury believe that Thomas Randall the defendant in this case, made payment to the petitioners on account of mortgage debt, and to be applied to the extinguishment of the mortgage lien which petitioners then held, of a sum of money adequate to the satisfaction of all the debt then due by him on said mortgage to petitioners, and the said sum of money was received by petitioners as pavement, then that the defendant did, in contemplation of law, pay and satisfy the notes embraced in the mortgage, no matter what notes the said defendant, through error or mistake, took up and cancelled.

7th. That if the jury believe that the defendant, accounting with said petitioners, paid them in satisfaction of mortgage debt, a sum of money adequate to discharge the lien held by such mortgage, and if the jury further believe that the petitioners yet permitted defendant to take up notes not embraced in the mortgage, although said petitioners were aware of his error in so doing, yet that in law the application of the money to mortgage debt is full and complete, and the covenants in the mortgage are satisfied and fulfilled.

8th. That a subsequent mortgagee advancing and paying money to a prior mortgagee, with the purpose of discharging such prior mortgage, has a right to direct the application of such payment to the satisfaction and extinguishment of the mortgage lien.

12th. That a person owing money on several accounts, some secured by mortgage and some not, has undoubtedly a right to apply his payments to whichever debt he may choose; and that even though no express direction of the application of his payment at the time of their being made had been given, yet the power may be completely exercised without any express direction given at the time; that such direction may be evidenced by circumstances as well as by words, and a payment may be attended by circumstances which demonstrate its application as completely as words could demonstrate it.

13th. That if the jury believe from the evidence that Thomas Randall, the defendant, being indebted to the petitioners upon the mortgage sued on, and upon simple contract not secured by mortgage, he, the said defendant, did, on the 12th December, 1828, direct the payment of a sum adequate to the purpose to be applied in extinguishment of the mortgage debt, and the said sum was afterwards paid to petitioners, then that these circumstances demonstrate the application of the money to the satisfaction of the whole mortgage debt.

To which instructions so given, petitioners, by their counsel, except, &c.

Defendant, by his counsel, further moved the following instructions to be given by the Court to the jury, which the Court refused to give:

3d. That if the jury believe from the evidence, that on the 12th December, 1838, defendant Randall did direct the application of a sum adequate to that purpose, to the payment of the mortgage debt now sued on, both principal and interest, and such sum was actually paid by his agent to the petitioners, and by them received, then such payment enured to the satisfaction and extinguishment of said mortgage debt and lien, although one of the notes secured by said mortgage may, by mistake of said defendant, have been left outstanding in petitioner's possession, and other debts not secured by mortgage taken up in its stead.

4th. That in this proceeding the cause is tried on principles of equity, and that if the intention of the defendant to apply the money paid to mortgage securities is proved to the satisfaction of the jury, and the jury further believe petitioners well knew such to be defendant's intention, and thereupon received a sum sufficient to discharge the mortgage sued on, then that the same is fully paid, satisfied and discharged, notwithstanding any mistake, error, or misapprehension under which defendant acted by taking up notes not secured by the said mortgage.

9th. That if the jury believe from the evidence that the sum of $ 11,866.09-100, or the check of defendant Randall, was paid by the Union Bank of Florida to petitioners, and when paid was intended by said Bank to be applied to the payment and discharge of the whole amount secured by the prior mortgage of said petitioners, then the receipt of such sum by petitioners enured to discharge and extinguish such mortgage lien, and this whether or not such intended application of the money was made by said petitioners, and in such last case, it is not competent for the petitioners, or defendant Randall, to make any other application.

10th. That if the jury believe from the evidence that when the petitioners presented to the Union Bank of Florida the check of defendant Randall, and received payment of the same, if such payment was designed by defendant Randall and by said Union Bank to be applied to the discharge of their prior mortgage lien, and was paid with such design, then the receipt of such payment in itself constituted a discharge of such mortgage lien.

11th. That the verdict of the jury and the judgment of the Court, if in favor of the defendant in the present action, will not prevent or bar the petitioners from recovering from defendant in another and suitable action, any amount actually due them by defendant as a simple contract debt.

To which last ruling of the Court and refusal to grant the instructions prayed, the defendant, by his counsel, excepted, &c.

Petitioners then offered the following instructions, which they prayed the Court to give to the jury, defendant objecting thereto, but the Court overruled the objection, and did give the instructions as prayed for by petitioners:

Petitioners, by counsel, moved the Court to instruct the jury that if they believe the defendant appropriated the payment by calculation of the amount due on the notes then due and by receiving the same from the petitioners, that it was a valid appropriation, and the petitioners had no right to appropriate the payment to a note not then due, whether a mistake was made by defendant or not in so doing.

2d. That the Union Bank had no right to appropriate the payment of the check to any different note, and especially a note not due, than the notes to which Randall had appropriated it, whether by mistake or not.

To which last ruling of the Court and granting the said last mentioned instructions, the defendant by his counsel, excepted, &c.

And his Honor the Judge further instructed the jury--That the mortgage was an incident to the note--if the note was paid, the mortgage was discharged, and if the money was applied to the mortgage, the note was discharged; and that while the debt on the note was subsisting, the mortgage was not discharged.

That the application of payment must have been either by the act or agent of parties, or by the act of law--that the party paying had a right to direct the application of payment, and if he did not, the law would apply it--that circumstances may indicate appropriation of payment as well as words themselves, and when thus a mortgage, application would be made to it, as most beneficial to the party paying; and when a payment is made generally, without application of it, the law would apply it to a subsisting debt or note due, if there were other demands--That any transactions between the defendant and the Union Bank and will not be regarded by the jury unless a knowledge of them is directly brought home to the petitioners.

Headnotes

Where a debtor indebted on several accounts makes a payment, he may apply it to either account; if he does not, the creditor may do so. It neither does, the law will appropriate it according to the justice of the case, provided there are no other parties interested.

Where a party has sustained no injury from the rejection of admissible testimony, he cannot avail himself of the mistake to reverse the judgment.

The identity of the answer and party who made it being shown, an answer of a party to a Bill in Chancery, which is depending and before the Court, may be read in evidence in a Court of Law to the jury, without the reading of the Bill; and if the name and description of the defendant in law agree with the name and description of the party answering in Equity, it is prima facie evidence of identity.

The Bill, as a general rule, is not read; but an exception to the rule is, that where the answer is an answer to articular interrogatories in the Bill, it also must be read; so, if the answer is obscure and needs any portion of the Bill to be read to explain it, then it may be read.

If a verdict be conformable to the law and evidence, it will not be set aside merely because the Court refused to give instructions which might have been properly given.

The refusal of the Court to give an instruction which would not benefit the party asking it, is not error; nor is an erroneous instruction upon an abstract question of law, which is not involved in the decision of the Court, a ground for reversing the judgment.

After a verdict in favor of either party, he has a right to demand of a Court of Errors that it look to the evidence for only one purpose and with a single eye, to ascertain whether it was competent in law to authorize the jury to find the facts which make out the rights of the party on a part or the whole of his case. If in his judgment, the Appellate Court shall hold the evidence was competent, then they must found their judgment on all such facts as were legally inferable therefrom in such manner and with the same legal results as if they had been found and definitely set out in a special verdict. So, on the other hand, the finding of a jury on the whole evidence in a cause, must be taken as negativing all facts which the party against whom their verdict is given has attempted to infer from or establish by evidence.

Counsel

T. H. Hagner, (with whom was L. A. Thompson), for Plaintiff, said:

This was a petition for the foreclosure of mortgage. The controversy turned upon the appropriation of payments. It was clearly shown, that while defendant had appropriated moneys more than adequate "to the extinguishment of the mortgage lien," distinctly so termed, that other notes than mortgage notes had been taken up and cancelled.

For the defendant it was contended, that the appropriation was made by him to the mortgage debt; and that the character and description of payment, as upon "mortgage lien," was the distinctive and determining feature, while the mistake or misapprehension in taking up one note for the other, might be corrected, and the payment considered as made in extinguishment of mortgage lien, as had been the declared purpose.

The principles of construction and of the application of the statute approved 11 Dec., 1824, entitled, "An act to regulate the foreclosure of mortgages by the courts of the common law," come under discussion.

The petitioners insisted on the strict rules of the common law, and the Court concurred with them.

The defendant urged that he was to be debarred of no equitable defence in this proceeding.

Upon the admissibility of the answer in Chancery of defendant to the Bill of the Union Bank against him and said petitioners, without the production of the Bill, a question arose.

Upon the application and appropriation of payments, defendant's counsel will cite: Clayton's case, in 1 Merivale, 604, 607. Brett vs. March, 1 Vernon, 468. Sutton the Marshal's case, 12 Modern, 559. Chase vs. Box, 2 Freeman, 261. Croke Elizabeth, 68. Taylor vs. Sandeford, 7 Wheaton, 13. Cremer vs. Higginson, 1 Mason, 323. Guinn vs. Whitaker's Admr., 1 Har. & John., 754. Patterson vs. Hull, 9 Cowan R., 747, 773. Gass vs. Stinson, 3 Sumner's Ct. Ct. R., 110. Harker vs. Conrad, 12 Sergt. & Rawle, 305. Dorsey vs. Gassaway, 2 Har. & John, 402. Shaw vs. Picton, 4 Barn. & Cress., 715. Hall vs. Wood, 14 East, R., 243-4. Marratt vs. White, 2 Starkie, 101. Hicks vs. Bingham, 11 Mass., 301. Reed vs. Boardman, 12 Pickg., 441.

As to the construction and principles of application of the statute of 1824, regulating foreclosure of mortgages, we cite: Decision of Robt. Raymond Reid, Judge of the Teritorial Court of Appeals of Fla., 1833, Hunter vs. Shelton. Parkhill's Adms. vs. Union Bank, Florida 1st Rep., 129.

Upon the admissibility of the answer of defendant to the Bill of Complaint of the U. Bank, exhibited against him and petitioners, without the production of the Bill itself, we cite to the Court the following authorities: Chitty's Archbold's Practice, 219. 1 Starkie on Evid., 293. 1 Gilbert on Evid., 58. 3 Bac. Ab., 558. Roscoe on Evid., 57. 3 Philips on Evid., 929.

Also the following English cases ruling this point: Lady Dartmouth vs. Roberts, 16 East. Rep., 336. Hodgkinson vs. Willis, 3 Camp. R., 401. Henzell vs. Lyons, Admr., 1 aBrn. & Ald., 182. Howitt vs. Pigott, 5 Car. & Payne, 75.

Also the following American cases, to same effect: Doughton vs. 4 Blackford's Rep., 433. Hunter vs. Jones, 6 Rand. Rep., 543. Cort vs. Tracy, 8 Cowan, 268. McGowan vs. Young, 2 Stewart, 296.

Upon the specific instructions given and refused by the Court, we shall also offer argument.

1st. The instructions given at the instance of defendant below, if not opposed or taken back by other instructions subsequently refused or given, would have been exceptionable and some favorable to defendant. But the refusal of others asked by defendant, operated by way of negative pregnant, to deefat and nullify those first granted.

This refusal gives rise to a contradiction on the part of the Court. 1st. Instruction 3, asked by defendant, results as a corrollary, or necessary inference from 12, granted; and its refusal is in opposition to 6 and 7. No. 3 merely applies the facts proved or admitted--facts undeniable--to the principles laid down in Nos. 6, 7 and 12; yet this was refused.

No. 9, refused, also contains an undeniable fact and an inference fairly deducible therefrom, a conclusion of law which it was competent for the Court, and the Court only, to apply; and is directly contradicted by No. 8, granted.

No. 10 is subject to all these remarks and principles.

The refusing these additional instructions, deprived the defendant of all benefit of those before given, and precluded the jury from finding in his favor, although they may have fully believed all the facts on which they were founded.

The refusal of Instruction No. 4, is clearly error. The first part has been sustained by argument and prior adjudication in Florida, as a settled rule of construction of the act in question. The second part, founded on intention of petitioners, and on facts properly indicative of that intention, should have been left to the jury as prayed for. It was carefully worded, and was fully within the principles previously laid down by the Court in 7th, 8th, 12th and 13th. Its refusal by the Court must have destroyed, in the minds of the jury, all the favorable effect of the prior instructions. This refusal is error. 3 Cranch Rep., 298. 3 Blackford, 433.

Instruction 9, refused. The first part of this instruction is subject to the same remarks as apply to the 4th, down to the two last lines in the printed record. It merely applies to the facts referred to the jury, and on the supposition of their being by them believed, to the principles already laid down by Instructions No. 7, 8, 12 and 13, granted. The concluding part of it, that it was not competent for the petitioners or defendant Randall to make any other application, results necessarily from the principle of No. 8, granted by the Court. The refusing this last, was in direct contradiction to and subversive in the minds of the jury, of said 8th instruction.

No. 10, refused, should have been granted.

There were facts enough proved or admitted, from which the jury might have inferred the design of the payment made on the part of Randall and the Bank, and the legal conclusion necessarily resulted from the principles already laid down by the Court.

11th Instruction. This should have been granted. The debt of defendant on the note outstanding, more especially, after defendant's assumpsit written on it as proved by Seward, constituted, per se, a debt independent of the mortgage, or even of the original note.

The question before the jury was not a mere question of debt, but of mortgage debt--the last issue might be found for defendant, without barring the debt. Plowder, 173. 5 Coke, 114. Co. Litt, 209. 7 Bacon's Abridg., 60.

Defendant in his answer in Chancery, admitted a debt, and in his plea only desired a mortgage lien for that debt. The two questions are separable, and should have been separated. 1 Caine's cases, 60. 5 Wendell, 572. 18 Johnson, 110. 5 New Hamp., 252. 14 Mass., 101. 5 Maddock's Rep., 351.

Nothing prejudiced so much the cause of defendant as refusing this instruction. Then compare this instruction asked with the first paragraph of his Honor's general instruction, and its importance is manifest. The last clause of that general charge, "that while the debt on the note was subsisting the mortgage was not discharged," of itself prevented the possibility of the jury finding for defendant, although they may have been ready to find every other issue in every other instruction favorably for defendant. It covered the whole of the petitioner's case with an impenetrable shield, and left no opening for the facts and legal inferences favorable to defendant. It repudiated and nullified every favorable instruction and construction applicable to his side of the case.

The two instructions given at the instance of petitioners, are humbly submitted to be manifestly wrong. They, in a word, prostrated the whole defense of defendant, and left him nothing to stand on.

And 1st. Both instructions make Randall's alleged calculation (exhibited in his answer) of the amount due on the notes "then due." and his receiving the same (notes given) from petitioners as a valid appropriation, &c., in spite of mistake, &c. Now, there is no proof that Randall made any calculation whatever. He admits in his answer a conjectural caluculation, the supposed basis of the then settlement; but by whom made, does not appear.

2d. It assumes as a fact what is contradicted by all the proofs on both sides--that such "calculations" was based on notes "then due," whereas, it is undeniable, that one of the notes taken up, was not "then due," but was paid before due and interest abated. This false fact assumed in the instruction would alone, if there was no other error in the cause, justify a reversal.

The fact was all-important in itself, as going to show the primary intention of all the parties. For if one note "not due" was paid, why not another? And yet the second instruction on this point precluded the Bank the "second mortgagee" from applying the payment to the note in question because "not due," in contravention of their legal right as established in instruction No. 8, granted.

3d. It contradicts the 8th instruction given; for while that instruction admits the right of the Bank as second mortgagee, to make the appropriation of its own funds in extinguishment of the mortgage lien, (a duty which law also enjoined), that right is, by the last instruction in question, by anticipation precluded and barred.

4th. While the 8th instruction admits the right of the second mortgagee to make the appropriation, the instruction given at instance of petitioners gives the right to defendant Randall. On the whole, the charge of the Court is so contradictory, that the jury could not know what the law was. For this, the case ought to be reversed. Selim vs. Snyder, 11 Serg. & Rawle., 319.

A. E. Maxwell, for defendant.

The first error assigned relates to the refusal of the Court to admit in evidence papers marked B. & C. The correctness of this refusal depends upon the relevancy of said papers to the issue before the jury. What were those issues? The action was brought to foreclose the mortgage given by defendant to the plaintiffs to secure the payment of three notes. Two of the notes had ben paid and taken up. The third was outstanding, and its alleged non-payment was the cause of the action. The defendant pleaded payment, and thereby the satisfaction and extinguishment of the mortgage. The testimony of H. L. Rutgers was taken to prove that defendant, with the knowledge of plaintiffs, had mortgaged his lands to the U. Bank, which under its charter, he could not have done, except upon condition that he would appropriate the first moneys drawn on the faith of his stock to the extinguishment of the prior mortgage; and also that he made a payment sufficient to cover his mortgage indebtedness, with circumstances intended to show an appropriation for that purpose. The papers B. & C., which were exhibits annexed to his deposition, were a statement by Randall and a certificate of the Clerk of Jefferson County, showing, as was required by the charter, before any one could mortgage lands to the Bank, the extent and nature of the liens upon his lands. It is evident that such papers were not pertinent to the issues. On their face there is nothing which could have been used as evidence. The circumstances that they were presented to the Bank only proves that one of the necessary steps towards making a mortgage to the Bank was taken; but this cannot affect the mortgage in this suit. Nothing that the Bank and defendant did will be permitted to destroy plaintiff's rights. Nothing but the acts of the parties themselves can affect these rights. If the papers were designed to show that a mortgage had been made to the Bank, they were inadmissible because better evidence of that fact could have been had. They were mere private papers relating to transactions between defendant and the Bank, and there is no evidence to show any privity of plaintiffs, or that they had knowledge of the existence of the papers. They were therefore properly excluded as being res inter alios acta. To allow such papers to go to the jury would be to permit a party to make evidence for himself.

But if they were admissible, the error of the Court in rejecting them was of such slight consequence, that it is not good ground for reversal. "Where a party has sustained no injury by the rejection of admissible testimony, he cannot avail himself of the mistake to reverse the judgment." Smith vs. Ruecastle, 2 Halst., 357. 3 J. J. Marsh., 717. These papers are unimportant for any purpose. They supply no link in a chain of evidence, and tend to prove no fact which there was not better evidence to prove. Their rejection, then, could cause no prejudice to the defendant.

The next error to be considered, is the refusal of the Court to admit the bill with the answer. A bill cannot be used as evidence. 7 Durn. & East., 2. The bill in this case certainly cannot, for it is the bill of a third party. The authorities which hold that the bill should be admitted, give as the reason, that otherwise it will not appear that there was a suit in which the answer was filed. In other words, that the bill is necessary to prove the answer. This reason though it may have been good in England, where the Chancery and common law Courts are separate and distinct, will not apply here, where they are blended in one court. Courts take judicial notice of their own records. 2 Bac. Abr. Ev., 642-3. There could be no occasion to introduce the bill to establish the fact of the existence of the Chancery suit. The Court knew it judicially, and could so instruct the jury. The reason ceasing, the authorities no longer apply. The answer was used to show the admissions of defendant, and was sufficiently proved by the certificate of the judge before whom it was sworn. There could be no higher proof that it was what it purported to be.

Here, also, the remark may be repeated which was made in reference to papers B. & C. No injury can result from the rejection of the bill. It contained no evidence internally, and could prove nothing which could possibly affect the merits of the case. Its admision could not have had the slightest influence upon the jury. 2 Halst., 357. 3 Marsh, 717.

The 3d instruction asked for by defendant, was properly refused. It supposes a state of facts which there was no evidence to support, the evidence being directly the reverse and uncontradicted. 2 Peters, 625. Besides, this instruction was but a repetition of the 5th which was granted, and which the Court might have given in preference to the other, because its phraseology better suited its view. 6 Peters, 628. One or the other of these grounds must prevail to sustain the Court.

The 4th instruction, like the 3d, supposed a state of facts not warranted by the evidence.

The 9th instruction could not have been given upon any principle of law or justice. The intention of the Bank cannot be so controlling as is implied in that instruction. It had no right to make the appropriation of payment. In all the conflict of doctrine on the subject of appropriation of payments, I imagine that no author or judge will be found holding that a third party, other than the debtor or creditor, has, under any circumstances, a right to direct the appropriation. Yet the instruction claims that right for the Bank.

The 10th instruction was also properly refused. The mere design of defendant and the Bank, could not affect the appropriation. The debt to which it was contended the appropriation was made not being due at the time, the appropriation to it cannot be established without showing a positive direction to the creditor, indicated either expressly or by conclusive circumstances, and his action in conformity thereto. How easy would it be for parties to allege such design as an afterthought, when they found it to their interest to do so. This consideration is enough to show the evil and error embodied in this instruction.

The 11th instruction is but an abstract proposition, and as such, properly refused. 1 Scammon, 407.

The 8th and 9th errors are badly taken. The instructions to which they refer asserted nothing more than the right of the debtor to make appropriation of his payment, and that his mistake in making the appropriation shall not enure to the disadvantage of the plaintiffs, they not having done anything to cause the mistake and being ignorant of it. The defendant can derive no aid from the law relating to the appropriation of payments. His answer shows that he made the appropriation to another debt than the one sued on. Can he get rid of the consequences of that appropriation by saying it was made under a mistake? Even if this proceeding were in a Court of Equity, which is not the case, I cannot see the slightest ground for the relief which those Courts sometimes give on account of mistakes. So far as the mistake affects the defendant himself, there is certainly nothing entitling him to relief. He has sustained no injury, nor lost any valuable right. He has paid no debt which he did not owe. The Court would not interfere, except upon condition that defendant should do equity, by paying or tendering in Court what he acknowledged to be due. The mistake of one party, unless caused by the misconduct of the other, is not a good ground for relief. 1 Story's Eq., 160. There is no pretence here that plaintiffs did anything to cause the alleged mistake. Another reason why this mistake should not avail is, that it does appear that defendant would have been better off if no mistake had been made. If plaintiffs had been asked to accept the money in payment of the mortgage lien, (though one note was not due by twelve months), probably they would not have done so. The presumption is, that they would not; for it would have been giving up their best security without any consideration. It would be a most summary way of setting aside a creditor's rights to allow the debtor's mistake to destroy the highest security for the debt.

Courts will no relieve against mistakes, where they might have been avoided by due diligence, nor unless the macts are material. 1 Story's Eq., 159-60; 163-4. The mistake here set up might have been a ground of relief for the Bank from its contract with defendant, but certainly cannot affect the contracts between the parties to this suit.

The instructions given by the Court of its own motion, which are assigned for the 10th error, were correct. They embody the plainest principles of the law applicable to this case, and nothing more. If there can be anything wrong in them it is favorable to defendant, and he cannot object to it. 15 Wendell, 24. 1 Story's Com. Eq., 159, 163-4.

Opinion

[*422] DOUGLAS, Ch. J., delivered the following opinion:

This case was brought up by writ of error from the Jefferson Circuit Court.

The suit was commenced by petitioner to foreclose a mortgage under the Act of Decr. 11th, 1824, "To regulate the foreclosure of mortgages at Common Law," &c. Duval's Comp., page 38.

The record shews that the mortgage was given on the 19th day of Decr., 1836, by the said Thomas Randall to the said Smith & Parramore, the petitioners in the Court below, upon certain lands in the mortgage described, to secure the payment of three certain promissory note of the same date, amounting in the whole to nine thousand seven hundred and fifty-four dollars and ninety-two cents, one of which said notes was payable one year after the date thereof for the sum of $ 3027.39; one other of said notes was payable two years after the date thereof for the sum of $ 3251.64, and the other was payable three years after the date thereof for the sum of $ 3475.89. The two notes first mentioned were paid before the institution of this suit. The foreclosure is sought, therefore, for the alleged non-payment of the last mentioned note. To this petition the defendant Randall put in three pleas. The first and second are pleas of payment. In the third plea, the defendant alleged that after the execution of the said deed of mortgage, he did by deed of mortgage duly [*423] executed, of which the said Randall and Parramore had notice, mortgage and pledge the lands and property in the mortgage first referred to contained, and conveyed to the Union Bank of Florida, to secure a certain amount of stock of said Bank, then subscribed in the name and behalf of said Thomas; and by the terms of the charter of said Bank it was provided and conditioned, that all money to be borrowed on the pledge of the stock of said Bank, where the property so secured was subject to a former mortgage, was first to be applied to the payment and extinguishment of said prior lien, of which provision and condition in said charter and law aforesaid the said Smith and Parramore had notice; and further, that on the 12th day of December, 1838, he being then indebted to the said Smith and Parramore as well on the three notes in the first recited mortgage, and in the said petition referred to, as also other promissory notes not secured and provided for in said mortgage, did then by check on the Union Bank of Florida to said Smith and Parramore delivered, order and direct the payment of the sum of eleven thousand eight hundred and sixty-six 9-100 dollars to said Smith and Parramore, in full payment and satisfaction of said three notes in the said petition referred to, and in extinguishment of the lien in said mortgage, and that the said Smith and Parramore did then and there accept the same on said terms, and did on the 14th day of December, 1838, present the said check at the said Union Bank, and did then and there receive payment in full of the same. To each of these pleas a general replication was filed by the petitioners, upon which issue was joined. The payment relied upon by the plaintiff in error was the check for $ 11,866.09 upon the said Bank, given by him to Smith and Parramore, on the 12th day of December, 1838. It appears from the testimony of Hy. L. Rutgers, Cashier, set out in the bill of exceptions which constitutes part of the record in this case, that the plaintiff in error was at that time a stockholder in that Bank to the amount of 581 shares, which he had procured at different times by mortgages upon slaves and land; and that he was entitled to draw two thirds of the amount of his shares, say $ 38,733.34-100, and that he had drawn at various times before the 14th of December, 1838, $ 18,450.76-100, leaving a balance at the time when the above mentioned check of $ 11,866.09 was drawn, of $ 26,282.58 against which he could drawn, being $ 8,619.49 over and above the amount of the check, [*424] and $ 5,140.60 more than sufficient to pay the note on which this suit was brought. At the time when the check was drawn, viz., the 12th December, 1838, upon his complying with the requisitions of the charter, the lands mortgaged by the plaintiff in error to the Union Bank, as appears by other evidence in the case, included certain tracts which he had purchased of Smith and Parramore, and one Jesse H. Willis, which he (Randall) called his Ocilla lands, and also other land which he had bought of the United States. His indebtedness to Smith and Parramore was for the purchase money of the lands which he had purchased of them and of said Willis, who had transferred to them some of Randall's notes. This check of Randall for $ 11,866.09, Rutgers, the witness before mentioned, says was presented to him by Reddin W. Parramore, one of the parties, on the 14th of December, 1838, and paid; and that Reddin W. Parramore, at the time when he presented the check for payment, delivered to John Parkhill, Esq., who was then Cashier of the Union Bank, (Rutgers being at that time Teller), a letter bearing date on the same day that the check was drawn, in which the plaintiff in error said to Parkhill, "I have this day drawn a check in favor of Smith and Parramore for the sum of 11,866.9-100 dollars, to be paid at your Bank, as a loan on my stock, the whole of this amount goes to extinguish so far the sum due to them on my Ocilla lands pledged to the Bank." It does not appear from the proofs in the cause, that Parramore was expressly informed of the contents of the letter, or whether it was opened or sealed. The plaintiff in error, however, in his answer to a bill in Chancery, which it appears had been filed by said Bank against himself and others, and which was offered in evidence by the defendants in error and permitted to be read to the jury, states that from the nature of the transaction and the perfectly frank and open manner of dealing between the parties, he is fully satisfied that the contents of the letter must have been communicated to Parramore. It further appears by the bill of exceptions, that the said Jesse H. Willis, and Smith and Parramore, were appraisers of the lands so mortgaged by the plaintiff in error to the Union Bank; and the plaintiff in error in his said answer in the Chancery suit says that "as well from the fact of said appraisement so by them made as also from personal communications made to them by him and Jesse H. Willis, in his presence, he fully believes that said Smith and Parramore [*425] were advised and well knew that his said lands were proposed to be placed in said Bank by him, and also that from the proceeds of the loan to be made on the stock so secured on their pledge, defendants (Smith and Parramore) were to be paid the amount of their lien on said land. Randall, in his letter to Parkhill before mentioned, says, "I left with you a power of attorney to sign my stock notes for me in my absence, under which you can still act for the purpose of making a stock note to cover the amount, and also the further sum of 3,000 dollars, for which I have given them a check on your Bank of this date. To avoid trouble, however, I have signed my name on the opposite page to a note in blank, to be filled up as a stock note, if needful;" said Rutgers, in his testimony, says the notes in the mortgage of Smith and Parramore amounted to $ 9,704 on the 12th of December, 1838, and that the sum of $ 11,866.9-100 was paid to Smith and Parramore, as directed by letter of Thomas Randall, to extinguish the sum due to them on the Ocilla lands. There was, he says, no actual cancellation that he is aware of. It also further appears from Randall's answer in the Chancery suit that he, with his proposals to the Bank for stock, exhibited an abstract of title to the lands proposed to be mortgaged to secure it, which contain 1,175 acres, including the lands purchased by him of Smith and Parramore and said Willis, and that he (Randall) stated to the Bank that Smith and Parramore had a mortgage on part of it purchased from them and Willis to secure the sum of 12,695.9-100 dollars, which he proposed to pay off from the money first to be loaned on the stock. This sum, it also appears from another part of the answer, included a note for $ 2,940.18, which he (Randall) calls a cash note by him as part consideration of land. This note, it seems, was included in the settlement of the 12th July, 1838, hereafter referred to, together with the first note included in the mortgage to Smith and Parramore, both of which, including interest, amounted to the sum of $ 6,350.16, for which Randall gave a check of that date which was returned at the time of the settlement which took place between himself and Smith and Parramore on the 12th of December, 1838, and constituted part of the amount of $ 11,866.09, for which the check of that date was given, which check it was understood by and between the parties, was (it is stated by Randall in his answer in the Chancery suit) to cover the following, viz: "This check, dated 12th July, 1838, payable [*426] 1st of August, 1838, $ 6,356.76, add interest four months $ 169.35; not to Smith and Parramore payable 19th December, 1838, $ 3,251.64--Jesse H. Willis' note payable same date, $ 2,094.34;" which several sums added together make the precise amount of $ 11,866.09, for which the check of that date was given. This cash note of $ 2,940.18, and the Jesse H. Willis' note of $ 2,094.34, making together the sum of $ 5,034.52, were not included in the mortgage; both of them, however, appear to have been given as part of the price of the lands purchased by Randall, either of Willis or Smith and Parramore. The note of $ 2,094.34, given by Randall to Willis, was transferred by him, together with other notes, to Smith and Parramore. It appears, too, that Willis at one period held a mortgage on some of these lands, given by Randall to secure the payment of these notes, which as an act of kindness and accommodation to Randall, he (Willis) had given up to Randall, to be cancelled before the notes were transferred to Smith and Paramore; and that Smith and Parramore were aware of this fact when they took them. Randall, however, insists that when he made his statement to the Bank as to the amount of the mortgage to Smith and Parramore, and when he made the settlement above stated, he acted under the belief that the note of $ 2,940.18, was included in the mortgage of Smith and Parramore; and we are now asked to correct this mistake of his by applying the amount paid on it to the note now sued upon. But with every disposition to render to the appellant the most ample justice, we find ourselves upon this subject, in this case, without authority to comply with such request. If this alleged mistake can be corrected at all, a Court of Chancery, where all the parties interested can be brought in and have an opportunity to be heard, and where the respective rights and interests of each and all can be adjusted and protected, is the proper forum. We can only decide the case upon the issues before us. It has been urged that this action is in the nature of a suit in Chancery, and that the equitable rights and interests of the parties can be taken into consideration, but it is to be remarked that this is a proceeding under a statute regulating the foreclosure of mortgages by the courts of common law. It is true, as suggested by the counsel for the plaintiff in error that in the case of Manly and Moseley, Adms., &c., against the Union Bank of Florida, decided at the last term of this Court, held, "that a defendant to a petition for [*427] foreclosure under this act, was not in making his defence, required to conform to all the strict technical rules of special pleading, but that if he sets out his objections or defence substantially, so that the petitioner can readily see and understand the grounds of his objections; or, in other words, if he sets them out as specifically as he would be obliged to do the matter of his defence in an answer in Chancery, or in a notice of special matter under the general issue in a suit at law, verified by oath agreeably to the provisions of the statute relating to that subject, it is sufficient." Reps. S. C. of Florida, p. 182. but this decision was founded upon the peculiar structure and provisions of the act, and we still entertain the same view of the matter. It was not however intended to be understood by that decision, nor is it inferable from the language used, that he could put in such a defence as would enable the Court to go into an enquiry as to all the equitable matters connected with the transaction. The question, whether he could do so or not, did not arise in that case; and what equitable powers the Court might exercise in such a case upon an issue properly presenting such equitable matters to the consideration of the Court, it is not necessary now to decide; because such an issue in this case has not been made. The issue here, is payment; and if the defendant in a suit in Chancery were to put his defence solely on the ground of payment, it is apprehended that he would fail, unless by his proofs he established that defence. And besides, before the plaintiff in error could have a right to invoke the aid of any Court to correct this alleged mistake, it would be incumbent on him to put (or at least to offer to place) all the parties to the transaction in "statu quo" in relation to it; for "he that will have equity done to him must do it to the same person." Francis' Maxims, p. 1. 2 Chan. Cases, 194-5. And when a party goes into a Court of Equity for relief he will be compelled to do equity to others. Read vs. Long, 4 Yerger's Reps., 68-9. Thomas vs. Bush, Admr., 1 Bibb 506. McDonald vs. Neilson, 2 Cow. 139. Lipscomb vs. Littlepage, 1 Hen. and Mumf., 454. This Court, upon the issues here presented, is incapable of enforcing this principle, and there is no voluntary offer to comply with it. And were the Court to undertake to correct the alleged mistake by applying the amount paid on the note for $ 2,940.18 to the note now sued upon, we should leave the defendants in error with a claim on the plaintiff in error for the [*428] amount of the sum of $ 2,940.18, with all the interest that has accrued thereon, without any evidence of the debt, and with this debt barred by the statute of limitations. And, moreover, if the Court had the power to correct such a mistake in such a case, there is nothing in this record to show that if Randall was laboring under such a misapprehension as is alleged, Smith and Parramore, or either of them, did anything to cause it, or that either of them was aware of the fact when the check for $ 11,866.09 was given, or when it was paid by the Union Bank.

Whether the note for $ 3,475.89, included in the mortgage now sought to be foreclosed, has been paid or not, depends upon the manner in which the proceeds of that check were appropriated. The general rule as to the appropriation of payments, was correctly laid down by the counsel for the plaintiffs in error, and was not understood to have been controverted by the counsel on the other side.--Indeed, it is too well settled for controversy, that where a debtor indebted on several accounts, makes a payment, he may apply it to either account. If he does not, the creditor may do so. If neither does, the law will appropriate it according to the justice of the case, provided there are no other parties interested. The United States vs. Kirkpatrick, 22 U.S. 720, 9 Wheat. 720. 5 Cond. Reps., S. C., 740, 6 L. Ed. 199. Gass vs. Stinson, 3 Mason 110. Postmaster General vs. Novell, Gilpin's C. C. R., 134. Cremer vs. Higginson and others, 1 Mason 337; and Devaynes vs. Noble, Baring vs. Noble, 1 Merivale R., 605-6.

It was contended, in the argument of this cause, by the counsel for the plaintiff in error, that this case comes within the exception above stated, viz., that there are other parties interested, and that the law applied the funds of Randall in the Union Bank to the payment of the note secured by the mortgage now sought to be foreclosed, and that he had no right to make a different application of them and leave this note unpaid. To sustain this proposition they referred to and relied upon the 8th section of the charter of that Bank. By the 1st section of that charter, (Duval's Comp., 442), it was provided, that a Bank should be established in the city of Tallahassee under the title of "The Union Bank of Florida," with a capital of one million of dollars, and with the privilege of increasing it to three millions of dollars; which capital was to be raised by means of a loan on the [*429] faith of the Territory, by the Directors of the Bank; and by the 8th section, (ibid, 444), it was enacted, that to secure the payment of the principal and interest of bonds to be issued by the Territory for the purpose of raising the capital of the Bank, the subscribers should give a bond and mortgage to the satisfaction of the Directors, on property to be in all cases equal to the amount of their respective stock, &c.; and it is also provided, that property already mortgaged may be received as a guarantee. "Provided," that there be first deducted from the whole appraised value of the property, at least twice the amount of said mortgages and stock to be given only to the amount of the surplus after such deduction. "Provided, however, that such existing mortgage on said property shall not prevent the Board of Directors or Commissioners from receiving it, at its full value, if the subscriber shall actually employ the money to be borrowed from the Bank in the extinguishment of the said mortgage, and its extinguishment shall take place in the presence of the officers of the Bank or their appointed agents." Duval's Comp., 445.

Under this provision of the charter, there is no doubt but that the Union Bank might, if such deduction were not made, have applied so much of the money loaned to the plaintiff in error on his stock, as would have extinguished the lien of his mortgage to Smith and Parramore, or that it was its duty to have done so. But the parties injured by the misapplication of the funds, if indeed any injury has been sustained, or any misapplication has taken place, are not before the Court; and for the reasons above stated, we have no power, as this case is situated, to bring them here. No one is here complaining of this matter, but the plaintiff in error himself; and it will appear, we think, for reasons hereafter to be stated, that he cannot avail himself in this case of that provision of the charter. But has any injury been sustained by any one, in consequence of the non-application of any portion of the proceeds of the check of $ 11,866.09 to the payment of the note which is the foundation of this suit? Was there any imperative rule of law requiring such application? It is to be recollected that the whole amount of the loan of the Bank to the plaintiff in error, was $ 38,733.34. This was raised, as appears by the testimony of Rutgers, the Cashier of the Bank, upon the mortgage of land and negroes. Considerably less than one half of the sum of $ 38,733.34, it would appear from the testimony before us, [*430] was raised on the lands mortgaged to Smith and Parramore. Even if the deduction provided for in the charter were not made, (and we are unable to determine from the record whether it was made or not), those lands having been mixed up with other lands and with negroes in the transactions of Randall with the Union Bank, it is impossible to say from an inspection of the record in this case, whether the note now sued on should have been paid out of the $ 18,450.66, which Rutgers says Randall had drawn from the Bank before the 12th of December, 1838, or out of the proceeds of the check, or whether it should have been paid out of the sum of $ 6,584.76 which remained to his credit after the check was paid. We cannot say, therefore, even if the deduction above mentioned were not made, that the law (as the case is now presented to us)) could have made an application of any portion of the proceeds of the check to the payment of this note.

It was insisted in argument that the charter of the Union Bank is a public act, and that consequently Smith and Parramore were bound to take notice of it; and that, they having appraised the lands which Randall proposed to mortgage to the Union Bank, under an appointment from that institution for that purpose, they were apprised of the intention of Randall to mortgage to the Bank the same lands on which they had this mortgage, and were therefore bound to see that their mortgage was paid out of the first money loaned to Randall on his stock. Without stopping to determine whether the position in relation to the charter is well assumed or not, it is deemed sufficient to say that if it be, Smith and Parramore had the same right to notice the provision in the 8th section in relation to the deduction above mentioned, and also the provision in the 29th section of the charter, "that each and every stockholder shall be entitled to a credit or loan equal to two-thirds of the total amount of his shares, (Duval's Comp., 451), by which they would have seen that Randall would be entitled to draw from the Bank on the lands they had appraised, a sum more than equal to the amount of their mortgage and the check together. So that there seems to be nothing in the provision of the 8th section of the charter relied upon, to affect them in this matter so far as now appears.

It is alleged, further, on behalf of the plaintiff in error, and in support of the issue in this case, that he appropriated so much of the [*431] proceeds of the check to the payment of this note as was sufficient to satisfy it and extinguish the mortgage given to secure its payment; and reliance is placed upon the letter of Randall to Parkhill of the 12th Decr., 1838, and the statement respecting it in Randall's answer in Chancery, to sustain this position. In the letter, however, he did not say that the proceeds of the check were to extinguish so far the mortgage to Smith and Parramore, but that it was to extinguish so far the sum due to Smith and Parramore on his Ocilla lands, mortgaged to the Bank. It does not clearly appear whether all of the four notes taken up by Randall in his settlements with Smith and Parramore of 12th July and 12th December, 1838, all of which were included in the amount for which the check of the latter date, were given in part consideration of the Ocilla lands or not. It is pretty evident that three of them were, and if the fourth (which was given as part consideration of land) was also, then the whole amount of the proceeds of the check, did go to extinguish so far the debt due them (Smith and Parramore) on his Ocilla lands, and the terms of the letter to Parkhill, were literally satisfied. But whether this be so or not, it does not satisfactorily appear that Smith and Parramore knew the contents of that letter, or whether the above mentioned deduction had been made from the appraisement of the lands mortgaged to them, and afterwards mortgaged to the Bank, or not. And if they even knew that this deduction had not been made, and were also aware of the contents of the letter, the facts, that its contents were not specific as to the mortgage, that it spoke of extinguishing so far he debt due them, instead of the mortgage which was less than the amount of the check; that they had just given up to Randall the four notes above mentioned, which amounted, with the interest agreed, to just the sum for which the check was given, and that it did not amount to a sum sufficient to cover the three notes exclusive of the note of $ 2,940.18, and the note now in controversy, and the silence of the officers of the Bank respecting this note and mortgage, were calculated to induce them to believe that it was intended both by Randall and the Bank, that this note which was not then due, should run to maturity. And the renewal of this note by Randall, on the 20th of December, 1844, as shewn by the proof, is pretty conclusive evidence that up to that period neither party had considered it paid. It is true that Randall in his answer in Chancery, alleges that in making [*432] the settlement of 12th July, 1838, he acted under his original error to which he had before adverted, that the item of $ 2,940.18 was included in the mortgage to Smith and Parramor; but there is nothing in the proofs of the case to lead one to suppose that they had any knowledge of this misapprehension. But if it were otherwise, it is difficult to perceive how it could affect them. It was further argued that the request of Smith and Parramore for a renewal of this note, from a fear that it was liable to be defeated by a lapse of five years, tends of itself to exclude the idea of its being still secured by a deed of mortgage. But we do not see how such a conclusion necessarily follows. It is true that a deed of mortgage would not be barred by such lapse of time. Suppose, however, that the mortgaged premises, upon a sale under a decree of foreclosure, were not to bring the amount of the debt. Then their remedy would be upon the note for the residue, and it is not reasonable to suppose, that while they were indulging the plaintiff in error with further time, they might wish to guard against the contingency of the note being barred by the statute of limitations? It would seem so. Seward, the witness, who acted as agent of Smith and Parramore in procuring that renewal, however, says that he made the application for it of his own mere motion. He also further said that he told said Randall that he had a mortgage; but he did not shew it. He said it was a correct debt. Being cross-examined, he said Judge Randall looked at the note, said it was a just debt, meant to pay it. This conversation took place on the day of the endorsement. Taking, then, all these circumstances into consideration with the lights we now have before us, we cannot resist the conclusion that in the settlement made on the 12th day of December, 1838, between Smith and Parramore and the plaintiff in error, he specifically appropriated the amount of the check of $ 11,866.09 of that date to the payment of the notes which he then took up, and left the note now in suit unpaid.

From the view we have taken of this case we might, perhaps with propriety, spare ourselves the trouble of examining the several errors assigned; but as some of them seemed so strongly relied upon by the counsel for the plaintiff in error, we proceed briefly to consider such of them as appear to be deserving of special attention. The first is, that the Court erred in refusing to let exhibits B. and C. to the deposition of H. L. Rutgers, offered in evidence in the Court below, [*433] to be read in evidence. By reference to the bill of exceptions, it appears that exhibit B. was a list, or statement, made out by the plaintiff in error and handed to the Union Bank, of the lands which he proposed to mortgage to that institution, to which was annexed the following remark by him: "Smith and Parramore have a mortgage on part of it, purchased from them and Willis, to secure the sum of $ 12,695.09, which I propose to pay off from the first money loaned on the stock. There is nothing, however, to shew that Smith & Parramore had any knowledge of this paper, and it appears to have no bearing upon the issue in this case. The same remark too, is applicable to exhibit (C.) If they were admissible we can see no injury that the party has sustained by their rejection; and where the party has sustained no injury from the rejection of admissible testimony, he cannot avail himself of the mistake to reverse the judgment. Smith & Ruecastle, 2 Halstead 357. But we do not consider them admissible. To allow such papers to go to the jury would be to permit a party to make evidence for himself. We think therefore, that they were properly rejected.

The second error assigned is, that the Court erred in allowing the answer of Thomas Randall to the bill of complaint of the Union Bank, exhibited against said Randall and Smith & Parramore, to be read in evidence to the jury without the bill of complaint, to which the same was an answer.

In order to a correct determination of the question here presented, it becomes important to ascertain the purpose for which a bill should be before the Court, when the answer is offered in evidence. It is not as proof, because a bill cannot be used as evidence. Doe on the demise--Bowerman vs. Sybourn, 7 Durnf. and East, 2. The bill, in this case, most certainly could not; for it was the bill of a third party. The reason given in the books why an answer cannot be given in evidence without the bill, is, "because without the bill there does not appear to be a cause depending." 3 Bac. ab. Title Ev. 559, Archd. Pr. 219. An answer is proved by shewing the allegations in the Court, by shewing the bill which is the charge, and the answer which is, as it were, the defence of the bill. 1 Starkie Ev. 287, 288. An answer in Chancery is proved by the production of the bill and answer, or of examined copies of them; but no proof of the proper officer that the bill has been searched for in the office and [*434] cannot be found, the answer may be read without the bill. Roscoe on Ev. 57--Gilb. Ev. 55. From these authorities it would appear that the object of having the bill before the Court is, to show a cause is depending and to identify the answer. There is much force in the suggestion made, arguendo, by counsel for the defendants in error upon this point, that "this reason, although it may have been good in England where the Chancery and Common Law Courts are separate and distinct, will not apply here, where they are blended in one and the same Court; and especially when applied to a case like the present, where the Chancery and Common Law suits were pending in the same Court, and the record of both suits were kept in the same office by the same clerk. It is a well established principle that Courts take judicial notice of their own records. 2 Bac. ab. Title Evidence, 643, 644. But in this case the objection is not that the answer was permitted to be read without that proof of identity. There is no complaint that the bill was not before the Court, but that the answer was permitted to be read to the jury, without the bill. The entry in the record of the Court below is, "And petitioners further offered to read in evidence to the jury, the answer of said defendant to the bill of complaint of the Union Bank of Florida, now pending in this Jefferson Circuit Court, to which evidence defendant, by his counsel, objects, unless the bill of complaint to which it is an answer, be also read to the jury." Here the pendency of the Chancery suit is distinctly shown, and we have in this entry record evidence that the bill was before the Court, and that the answer read to the jury was the answer to that bill. It is said in the books that some proof of identity of the parties is requisite. Roscoe on Ev. 57--Gilbert Ev. 55. Darbuall vs. Howard, R. and M., 169. No objection appears to have been taken for want of such proof in this case, and could not well be, for the answer contains intrinsic proof of identity. If the name and description of the defendant at law, agreed with the name and description of the party answering in equity, it is prima facie evidence of identity. Hennell vs. Lyon, 1 B. and A., 182. cited in Roscoe on Ev. 57. That is the case here; and, the answer relating to the same subject matter embraced in this suit, the proof of identity would seem to be complete. The pendency of the suit being shewn, the bill being before the Court, the identity of the answer and the party who made it being shown, there was no valid objection [*435] to allowing the answer to be read to the jury, without the bill's being also read to the jury. The bill, as a general rule, is not read; but an exception to the rule is, that where an answer is an answer to particular interrogatories in the bill, that also must be read. 3 Phil. Ev., 929, per Bailey, Justice, in Rowe vs. Brenton, 3 Mann. and Rye, 271, 273, and Lord Tenterden, Chief Justice, ibid. So, if the answer is obscure, and needs any portion of the bill to be read to explain it, then it may be read--ibid. It does not appear that the Court below refused to permit the defendant to read the bill. If the answer was obscure, or was to particular interrogatories, so that without reading the bill it could not be understood, the proper course, we think, would have been (if he deemed it essential to his interest,) to have moved the reading of it, or such parts of it as were necessary to his case; and if the Court then refused to permit it to be read, he should have excepted, and brought up such part of the bill as he had offered to read, that this Court might be able to judge of its materiality. In the absence of interrogatories, (said Bailey, Justice, in Rowe vs. Brenton, 3 Mann. and Rye, 271,) we shall see from the document itself, whether it be, or be not fairly and distinctly intelligible; and as no part of this bill is brought up, this duty would seem now to devolve on us, in relation to the answer in question. No principle of law appears to have been violated in allowing this answer to be read to the jury, without the bill having been at the same time read to the jury.

We do not deem it necessary to remark upon the other errors assigned, all of which are founded either upon instructions given, or asked and refused to be given to the jury, further than to say that we have examined them all, and do not find that the Court below erred either in the one or the other.

But if it had, the verdict in this case is conformable to the law and the evidence, and should not be set aside, merely because the Court refused to give instructions which might have been properly given. Thomas et us, 6 Monroe's Rep. 61--Breckenridge vs. Anderson--such as the facts authorized, will the judgment be disturbed, merely because the opinion of the Court (in his instructions to the jury,) was given in an improper form, or was founded on a misconception of the law. Lee vs. Chambers, 26 Ky. 506, 3 J.J. Marsh. 506. So the refusal of [*436] a Court to give instructions which would not benefit the party asking it, is not error-- 4 J.J. Marsh. 398--or an erroneous instruction upon an abstract question of law, which is not involved in the decision of the Court, is not a ground for reversing the judgment. Reed vs. McGrew, 5 Hamm. 375--Jordice vs. James, ibid, 88.

After a verdict in favor of either party, he has a right to demand of a Court of Equity that they look to the evidence for only one purpose, and with a single eye to ascertain whether it was competent in law to authorize the jury to find the facts which make out the right of the party on a part, or the whole of his case. If, in its judgment, the Appellate Court shall hold that the evidence was competent, then they must found their judgment on all such facts as were legally inferable therefrom, in such manner and with the same legal results as if they had been found, and definitely set out in a special verdict. So, on the other hand, the finding of a jury on the whole evidence in a cause, must be taken as negativing all facts which the party, against whom their verdict is given, has attempted to infer from, or establish by the evidence. Hepburn vs. Dubois, 12 Peters 376.

Testing this case by the principles here laid down, we think the law is for defendants in error, upon the facts found by the jury.

The judgment of the Court below is therefore affirmed with costs. Per curiam.