
    Able v. Lee.
    Where several instructions taken together present the law of the case fairly to the jury, the judgment will not be reversed on the ground that one or more of the instructions taken separately were improper, unless it appears from the statement of facts that the jury may have been misled; and not even then if a remittitur as to the particular m which they have been misled be entered.
    To constitute a valid plea of payment, it ismot necessary that a bill of particulars showing the “items ” of payment be filed with the plea, for the defendant may not propose to prove “items” of payment. Proof of payment of the debt in money is admissible under a general plea of payment, but proof oL payment in land or any other commodity than money cannot be received, if objected to, under such a plea. (Note 7G.)
    - Appeal from Cherokee. The appellee sued the appellant upon a promissory note for the payment of six hundred and forty-four dollars. There was a general denial and a plea of payment, alleging' that “since the institution of this suit they (the defendants) have paid the sum above demanded of them by the said plaintiff.” The plaintiff excepted to this plea because not accompanied by “a bill of particulars of the payment of the debt;” which exception the court overruled.
    At the trial, the plaintiff having-given in evidence the note sued on, the defendants introduced a witness who testified in substance that he was employed by the plaintiff after the bringing of the suit to settle with the defendant the note sued on, and also another note for one thousand dollars; that the plaintifi delivered to him the attorney’s receipt, given for the note for collection, and directed him to settle with the defendant the amount of the notes in any manner lie thought best; that he accordingly did settle with the defendant Able, and that he took in payment of the two notes two tracts of land, one for about six hundred and forty acres, and the other for about eight hundred acres; that there was some dispute about the amount of the two notes, but they finally agreed upon a compromise of the amount at one thousand three hundred and fifty or one thousand four hundred and fifty dollars, which ivas fully paid by the defendant Able to the witness, as agent for the plaintifi', in lauds received in full payment and satisfaction of the notes; that at the time of the payment something was said about the attorney’s fee, the witness did not distinctly recollect what, but ivas under the impression that the defendant ivas lo pay tíie attorney for what lie had done; that the defendant started to go I o see the attorney; the witness afterwards informed the attorney of what had been clone, who said it was all light; he was under the impression that He told the attorney that the defendant would settle bis fee; the-land was taken and received in full satisfaction, so far as the plaintiff ivas concerned, pxcept as to the attorney’s fee, which, it was the witness’s impression, was to be paid by the defendant Able, to whom he then delivered the attorney’s receipt.
    The court instructed tlie jury, in effect, that if the defendant had paid to the plaintiff the amount of the note sued on they would find for the defendant.
    But if they believed the agreement to have been that the defendant was to pay the plaintiff’s attorney any part of the amount which lie had failed to pay they would find for the plaintiff the amount still due upon the note, after deducting whatever amount the defendant had proved he had paid upon the note.
    If the defendant had not proved the payment of any amount the jury could not ascertain it for him, but must find for the plaintiff.
    The defendant’s attorney asked the court further to instruct the jury “that if they are satisfied that the whole amount clue to the plaintiff had been paid, either to the plaintiff .or his agent, and had been so accepted and received by the plaintifi’or his agent, the jury can only find the costs against the defendant; ” which instruction the court gave with the qualification contained in the general charge previously given.
    
      The defendant then asked the following instruction: “That the jury are to allow to the defendant all amounts that have been proven to have been paid and accepted as payment, whether the'same was paid in cash or property;” which instruction the court refused.
    At the request of tiie plaintiff the court instructed the jury “that an attorney’s fee is a lieu upon the amount and evidence of indebtedness in his hands until paid.”
    The jury retired, and after some time returned into court, not having agreed upon their verdict, when, “in answer to some remarks from the defendant’s attorney, the court replied, in hearing and presence of the jury, that tiie jury had nothing to do with the lands paid by the defendant, if tiie defendant had not proved their va'ne or that he had fully complied with his agreement by paying tiie attorney’s fee.” The jury retired, and after having spent some time longer in consultation, returned a verdict for the plaintiff for live hundred and forty-one dollars and fifty-one cents. Whereupon the plaintiff’s attorney, under the direction of the court, remitted tiie excess above sixty-two dollars, and f6r that sum tiie court- gave judgment. There was a motion for a new trial, which the court overruled, and the defendant appealed.
    The errors assigned were the rulings of the court in tiie instructions to the jury.
    Davis. and G. A. Everts, for appellant.
    
      S. P. Donley, for appellee.
   Wheeler, J.

It is objected that the court attached to the first instruction aslced by the defendant a qualification.

Tiie proposition embraced in this instruction had been distinctly given by tiie court in tiie first branch of tiie general charge. The court, however, gave it as asked, but added the qualification embraced in the general charge; that is, tiie judge in effect said to tiie jury tiie instruction asked is true, and you are so to receive it, hut you are to consider .it in connection with tiie charge previously given you oil this subject. In this there was no error. It was in accordance witli every day’s practice. It is true that it is tiie duty of the court to respond directly to the questions of law propounded by tiie parties, and so the court did in this instance. Tiie judge gave the instruction as asked. It surely requires no argument to show that he liad the right to give such other instructions as might be proper to qualify or explain those given and to present tiie law of tiie case clearly and truly to the apprehension of tiie jury. Undoubtedly the counsel for the defendant had the right to have their proposition laid before tiie jury; but they had not tiie right t,o restrict the instructions of the court to that proposition, nor can they object that the court gave it with such qualifications and further instructions as were necessary to prevent the jury from being misled by tiie terms and form of the proposition. Otherwise it. would be in tiie power of counsel constantly to mislead by placing before tiie jury propositions which, though true in tiie abstract, may iiave but a partial application to the case, and, unaccompanied by snub qualifications or explanations as might he necessary to their proper application to the facts, would be calculated to give the minds of the jury a wrong bias and direction.

The remaining instruction asked by the defendant had also been given in substance in tiie general charge, and in a form quite as favorable to the defend-as under the evidence lie had a right to ask. And when it was repeated, in such terms as implied that there was evidence before the jury from which they might find that certain “amounts” had been paid “in cash or property,” tiie court did not err in refusing the instruction. There was no evidence of tiie payment of any particular “amounts,” either in cash or property. The de-fondant having pleaded payment, the burden of proof rested with him to establish the truth of his plea by evidence of payment. lie had no right to ¡i<k the jury to baso a finding in his favor on conjecture ; and tiiis was what was meant by tile last part of the general charge given by the court. If the jury did believe, as well they might and as the fact doubtless was, that it was a puit of the agreement of the parties that the defendant should pay the attorney’s fee, there being no evidence respecting the amount of the fee, it was ieft uncertain what amount was discharged in land. It was the debt less the attorney’s fee; but without proof of what that was, there was no evidence before*the jury from which they could ascertain the credit to whicli the defendant was entitled. It was left to rest in conjecture. And it is very clear that the jury were not. at liberty to supply by conjecture the absence of proof. A party can only recover according to his allegations and his proofs.

In respect to the instruction given at the instance of the plaintiff, it will suffice to say that an attorney has a general lien for his professional dues upon the papers of his client in his hands, and moneys collected in his possession ; and if this was what was meant by the instruction given, it was true as a legal proposition. But if it was intended to say that, except as to costs, an attorney has alien for professional services generally on the debt in the hands of the debtor before the money has been recovered by him, it was a mistake, (note 77,) hut one which could scarcely have influenced the verdict in this ease. That verdict, evidently, was occasioned by the evidence of an express agreement bj the defendant to pay for the services of the attorney, and the absence of any evidence to show what amount of the debt had been otherwise satisfied.

The remark of the judge, made in answer to the defendant’s counsel and in hearing of the jury, as it is presented by the record, does seem objectionable, as indicating an opinion upon the weight of evidence. And had there been evidence from which the jury could have ascertained with certainty the payment of any particular amount, it would perhaps, unexplained, have authorized a reversal of the judgment. The judge, however, had previously submitted to the jury the question of fact in his general charge, which seems to have been correct, and to have embraced all the points upon which it was material that the jury should have been instructed. And if the observations of counsel, to which the remark in question was an .answer, liad been presented by the record in their connection with it, the propriety of the remark might appear in a very different light.

The plaintiff excepted to the plea of payment, hut his exception was overruled, and rightly. To constitute a valid plea of payment it was not necessary that tliero should have been filed with the plea a bill of particulars, showing “items” of payment. (Wells v. Fairbank, decided at Galveston, 1831, 5 Tex. R., 582.) Proof of the payment of the debt in money would have been admissible under the plea; and would certainly have constituted a valid defense. But when evidence was offered of payment in lands, if the plaintiff had objected to its introduction his objection most have beensustained and the evidence excluded, for that was not the character of the payment pleaded. The testimony however was permitted to go to the jury without.objection.

Upon the whole we conclude that the defendant did not establish the truth of his plea by evidence which, in strictness, entitled him to a verdict, however the court might have ruled upon the questions of law presented. The amount now in controversy is very inconsiderable. There is no reason to apprehend that substantial justice has not been done between the parties. It is by no means clear that any principle of law lias been violated to the Injury of the appellant. If a now trial was directed it is not probable that it would be attended with a materially different result, or that any benefit would thereby accrue to either party. And finally, it is perhaps better that an end be put to litigation respecting- so very small matters than that trivial and unimportant errors should he made the subject of revision with critical severity, where no material benefit nan reasonably be expected to result, and there is no essential principle of justice or law involved to be vindicated.

Note 76.—Holliman v. Rogers, arte, 91.

Kote 77.—Casey v. March, 30 T., 180; Whittaker v. Clarke, 33 T., 647; Randolph v. Randolph, 84 T., 181.

We are of opinion that the judgment be affirmed.

Judgment affirmed.  