TERM, 1861.] Hill et al. vs. Wright, Williams & Co. Hill alone; that they refused to become bound for James Vaughan, or to enter into a bond for Hill till Vaughan should also procure security for himself. Frellson also became security in the New Orleans suits at the request of Vaughan, and refused to undertake that responsibility till it was ascertained that Wright, Williams & Co. would assume and discharge the liabilities of Hill. And in pursuance of this condition of things when the end of the litigation resulted in fastening upon the securities the responsibilities of the D. S. Stacy, Wright, Williams & Co. discharged one half of them for Hill, and Frellson the other half for Vaughan. It was Frellson's good fortune that his principal paid him all that he was obliged to pay upon the different judgments mentioned in the record; but the ill fortune of Wright, Williams & Co. in not being repaid by Hill, does not maintain their claim for satisfaction of their payments for him from Vaughan, for whom Wright, on behalf of the firm, refused to assume any responsibility, although this was never asked of Wright, Williams & Co. by Vaughan, so far as the record shows. Wright, Williams & Co. may recover of Hill for their advances for him, but cannot recover them from Vaughan. The instructions given for the plaintiffs, or refused to the defendant Vaughan, inconsistent with the foregoing declaration of the law of this case, were injurious to Vaughan and erroneous against him, for which the judgment must be reversed. It follows that the court erred in giving the first instruction asked by the plaintiffs, and in refusing to give the principle of the fifth instruction asked by Vaughan. Conceding that the form of Vaughan's fifth instruction was subject to the criticism which this court gave in Floyd vs. Ricks, 14 Ark. 295, in The State Bank vs. McGuire, lb. 537, and Burr vs. Williams, 20 Ark. 188, to instructions not hypothetically stated, which is hardly required of us, the additional instruction asked by the defendants as its substitute was unobjectionable in form, and Hill et al. vs. Wright, Williams & Co. [DECEMBER in accordance with the law as herein declared. This does not seem to have been denied by the court; but the instruction was refused because it was tendered after the time fixed by the court for the presentation of instructions. This instruction was asked for soon after the court had refused the instruction containing the same legal principle, but deemed deficient in form, and the court should have used its discretion so as to give the parties the benefit of a legal instruction to the jury. Giving it could not injure the opposite party, refusing it was to deprive Vaughan of the application of a legal principle to which he was entitled by the facts of the case. We have not overlooked the fact that the court refused to give the 9th, 10th and 11th instructions of the plaintiffs which announced a contrary doctrine, and that in giving the third instruction of Vaughan a principle was announced directing the jury towards the same conclusion reached in the additional instruction, but in the probable confusion of mind which might fall upon the jury from the numerous and conflicting instructions asked for by the parties, we must perceive that the refusal of the court to give the clear and pointed additional instruction would tend to mislead the jury and prejudice the interest of Vaughan. TERM, 1861.] Harris, Wormley & Co. vs. Redman, surv. HARRIS, WORMLEY & Co. vs. REDMAN, SURV. Action of assumpsit for money had and received-proof of receipt of the money, and detailed statement of facts showing its payment-verdict approved and judgment affirmed. Error to Jackson Circuit Court. Hon. Wм. R. CAIN Circuit Judge. ROSE, for the appellant. STILLWELL & WOODRUFF, for appellee. Mr. Chief Justice ENGLISH delivered the opinion of the court. This was assumpsit for money had and received, etc., brought by Harris, Wormley & Co., of Memphis, Tennessee, against Parmenius H. Redman, surviving partner of the late firm of P. H. Redman & Co., of Jacksonport, in this State, composed of Redman and Daniel P. Wilbanks. The bill of particulars filed by the plaintiffs is as follows: "P. H. REDMAN, as surviving partner, etc., To HARRIS, WORMLEY & Co., Dr. To amount of money received by P. H. Redman & Co., in or about December, 1853, from us, which you were to have invested in cotton for us, which was not done by you, and for which you have not made any account to us, and which still remains due, which sum is..... $500." The suit was commenced 7th November, 1854. The defendant pleaded non-assumpsit, payment, limitation and set-off. Harris, Wormley & Co. vs. Redman, surv. [DECEMBER The verdict was against the plaintiffs, they moved for a new trial on the grounds that the court erred in the admission of certain papers offered in evidence by the defendant, and that the verdict was contrary to evidence. The plaintiffs proved that they had made an agreement with P. H. Redman & Co., by which they were to furnish them with money, and they were to purchase cotton and ship it to the plaintiffs, for a commission of 50 cents per bale. The plaintiffs also proved by W. P. Brooks that, on the 21st December, 1853, they delivered to P. H. Redman & Co., by the hands of Silas Daugherty, $500 in gold, and that, on the same day, S. S. Carey deposited with them $300, on account of plaintiffs, and took a receipt there for. The plaintiffs did not prove that they ever furnished them with any more money. The defendant, after reading in evidence several letters of plaintiffs acknowledging shipments of cotton, etc., read also in evidence the following letter: Mr. P. H. REDMAN, Jacksonport, Ark., Dear Sir: "MEMPHIS, May 23d, 1854. We enclose you sales of the 2 bls. cotton you sent us; the quality was very bad; net proceeds to your credit $51 66. We also enclose account current, balance due us $438 24. This sum includes the $300 which we wrote you about. Mr. Carey gave us your receipt for $300, as received of him for our act. and we did not know how you had disposed of it. We are now closing our old business, and wish all of our accounts adjusted as early as we can. We will be obliged to you to send us by packet the 138 24, and advise us how the $300 was disposed of, that you gave us the receipt for. Very respectfully, HARRIS, WORMLEY & CO." Defendant having proved that in the spring of the year 1854, J. H. McManus was a steamboat captain on White river, acting as a common carrier between Jacksonport and Memphis, and TERM, 1861] Harris, Wormley & Co. vs. Redman, surv. that the following receipt was in his hand writing, was permitted to read it as evidence, against the objection of the plaintiffs: "Received of P. H. Redman for acc. Messrs. Harris, Wormley & Co., of Memphis, one hundred and thirty eight 24-100 dollars ($138 24). May 30, 1854. J. H. McMANUS." The defendant also read in evidence the following receipt, after proving it to be in the hand-writing of the plaintiffs: "Harris, Wormley & Co. received of J. C. McManus the following described money, belonging to the late firm of P. H. Redman & Co., as payment on the note of P. H. Redman & Co. of $309, viz: The defendant also produced the following note, and, after proving it to be in his hand-writing, was permitted to read it as evidence against the objection of the plaintiffs: "MEMPHIS, June the 19th, 1854. One day after date I promise to pay to Harris, Wormley & Co., or order, three hundred and nine dollars for value received. P. H. REDMAN & CO."' The defendant also produced the following receipt, and, after proving it to be in the hand-writing of his deceased partner, was permitted by the court to read it in evidence, against the objection of the plaintiffs: "$300. Received of S. S. Carey three hundred dollars, to be |