#### JOSEPH AREY vs DAVID STEPHENSON.

An *omission*by a Judge to instruct the jury upon a particular point, is not error. If the party, deeming them material, ask for instructions, and they are improperly granted or refused, the question may be brought before the Supreme Court for review.

The cases of *Torrence*v *Graham,*1 Dev. and Bat. 288, and *State*v *O'Neal,*7 Ire. 253, cited and approved.

• Appeal from the Superior Court of Law of Cumberland County, at the Spring Term, 1851, his Honor Judge Manly presiding.

This was an action of assumpsit, brought to recover the sum of seventy dollars, alleged to have been paid by the plaintiff for the defendant’s use.

Pleas, general issue, and the statute of limitations.

The plaintiff proved by one Murphy, that the plaintiff had paid to him, in the years L829 and 1830, two sums of money amounting to seventy dollars, on a debt which he, *35Murphy, held against the defendant, and which was among the debts mentioned in the deed of trust hereinafter mentioned, and which was intended to be paid out of the property conveyed by the defendant to the plaintiff.

One Stephenson, the brother of the defendant, introduced by the plaintiff, testified that on the 22d of September, 1837, he was present at a settlement between the plaintiff and the defendant, that the plaintiff had been acting as the trustee of the defendant in selling property and paying his debts under a deed, (a copy of which forms a part of this case,) that the plaintiff exhibited an account of his trusteeship, and among the items charged was one for the said sum of seventy dollars paid by him to Murphy.

To this item the defendant objected} alleging that he had paid to one Gordon, of Mobile, the whole amount of his debt to Murphy, the said Gordon being his Attorney.

It was then proposed by the witness that the parties should1 proceed in their settlement, leaving out the said sum of seventy dollars, and that, if the plaintiff could show that the defendant had not paid the said sum to Gordon, then the defendant should pay it to the plaintiff.

This was agreed to by both the parties, and the plaintiff' surrendered to the defendant the trust estate.

The plaintiff then proved by Murphy that he had received from Gordon the amount of his claim against the defendant, except seventy dollars. The plaintiff introduced the deposition of one Sebastian L. Jennings, which forms a part of this case.

The defendant contended that he was not liable upon the original payment of the seventy dollars by the plaintiff to Murphy. First; because it was paid without authority.

Secondly, because the balance due by the trustor to the trustee or by the trustee to the trustor, could only be recovered in Equity, without an express promise. And, therefore, the plaintiff was driven to rely upon the express promise, ’ *36and insisted that it had not been proven by the plaintiff, that the defendant had not paid the whole amount due to Murphy, to his agent Gordon.

His Honor instructed the jury, that the plaintiff’s right to recover'depended upon the fact, whether they were satisfied that the defendant had not paid the whole amount of Murphy’s debt to Gordon, and if they were so satisfied, the plaintiff was entitled to recover, and, if not, the plaintiff was not entitled to recover.

, Yerdict for defendant, and a rule for a new trial being discharged, the plaintiff1 appealed.

*W. Winslow,*for the plaintiff.

*Strange,*for the defendant.

Nash, J.

This case is here for the second time. When before us on the former occasion, the only question, presented by the bill of exceptions, arose under the plea of the statute of Limitations. The case now before us presents a different question. The defendant, being largely indebted, conveyed to the plaintiff a quantity of property in trust to sell, and pay the debts enumerated. Among them, was one due to a Mr. Murphy. Upon this debt the plaintiff paid to Mr. Murphy seventy dollars, the balance having been paid to him, by a Mr. Gordon, his Attorney, who had received it from the defendant. In a «settlement *between the*plaintiff and the defendant, this payment of $70 by him was claimed as a charge against the defendant, as money paid for, and'on his account. The defendant refused to allow it, on the ground that *he*had paid the whole of the Murphy debt, to Gordon. The parties finally agreed to settle the trustee’s account, except this item, and, as respected it, it was' agreed, l< that if the plaintiff could show that the defendant had not paid the said sum to Gordon, then the defendant should pay it to the plaintiff.” Upon entering into this agreement, the trust property was delivered up to the *37defendant. In his charge his Honor instructed the jury that the plaintiff’s right to recover depended on the fact, whether they were satisfied that the defendant had *not*paid the whole of the Murphy debt to Gordon : if they were so satisfied, the plaintiff was entitled to recover; if not, he was not entitled to recover. We 'are not sensible of any error in law, in the charge, of which the plaintiff had a right to complain. The debt to oMurphy, its payment of all but seventy dollars by Gordon, his Attorney, and the payment of that amount by the plaintiff1, are all admitted in the case. The defendant, however, alleged, he ought not to pay to the plaintiff that’ seventy dollars, because *he*had paid to Gordon the whole of the Murphy debt. Like any other plea of payment, for it was not denied that the payment to Gordon, if made, was legal and proper, it would have been the duty of the defendant to sustain it by proper proof of the fact. But the plaintiff voluntarily released him from that obligation, and took upon himself to prove he had not paid it to Gordon, and makes that proof a condition precedent to his right of recovery, as it was the condition upon which the plaintiff’s new promise rested. The charge in its first branch is-in the language of the agreement. The second upon the general liability of the defendant. Gordon was the authorized agent of Murphy to receive the debt. If the Jury were satisfied the defendant had paid the whole of it to him, then the payment of the seventy dollars by the plaintiff was unauthorized, and he had no right to claim it from the defendant; he must look to Murphy.

In the course of the argument here, it was insisted that the Judge ought to have instructed the jury, that the deposition of Jennings, which constitutes a part of the case, if believed by them, proved an acknowledgmént of the debt by the defendant. No such instructions were asked for by the plaintiff on the trial, and it has been several times decided by this Court, that an *omission*by a Judge to instruct the jury upon a particular point., is not error. If a *38party deem it material to his case, he must ask for instruction upon it, more especially when the party complaining does not show that the jury were probably misled by the' charge. *Torrence*v Graham, 1 Dev. and Bat. 288, *State*v *O'Neal, 7*Ire. 253.

Per Curiam. Judgment affirmed.