#### Edward Humphreys, Appellant, v. Collier and Powell, Appellees.

APPEAL FROM RANDOLPH.

On a note made in Missouri and assigned there the lex loci of Missouri as to the liability of the assignor, is to govern.

The deposition of a witness, .stating the contents of a record or written instrument, will be rejected upon the general principle that such things can not be proved by parol, if they are in the power of the party to be produced.

It is irregular for the court to instruct the jury as to the weight of evidence.

Opinion of the Court by

Justice Smith.

It does not become important to examine critically more than one of the grounds relied on as error, to arrive at. a correct determination of the present cause. The action is on an assigned note made in Missouri on the third of April, 1822, and payable five months after date. The declaration contains the usual counts on a promissory note, and avers the assignment to have been made on the first day of June, 1825. It also contains a count for goods, wares and merchandize, and the money counts. The defendant plead the general issue. It is conceded that the lex loci of Missouri is to determine the liability of the assignor. (1)

By the laws of the state of Missouri, to show due diligence, it is rendered unnecessary to prosecute the maker of a promissory note to insolvency, “ if it shall appear to the court or jury that the institution of such a suit would be unavailing; ” see Laws of Missouri, vol. 1, p. 143. Under the provisions of this law, the plaintiff in the court below attempted to show that such suit would have been unavailing, because of the insolvency of the maker of the note, after the assignment thereof, and before the institution of the present action. From the bill of exceptions it appears, that for such purpose the deposition of a witness taken in Missouri was offered in evidence, and to a part of the interrogatories and answers of the witness, on his direct examination, the defendant, on the trial, objected to their being read in evidence to the jury. The answers of the witness speak of the maker of the note having, in the year 1823, been discharged under the insolvent laws of the state of Missouri, of the schedule of his property, and the incumbrances' on the same as stated by the insolvent, according to the witness’ recollection, in the schedule.

The court refused to suppress the interrogatories and *298answers objected to, and permitted them to be read in evidence. The exception on the trial to the admission of this testimony, I think well taken. No part of the rules of evidence is better settled than the one that parol evidence can not be given, of the contents of a written instrument or record in the power of the party to produce, because it is neither the highest nor best of which the case is susceptible. The evidence of insolvency, or of the uselessness of a prosecution against the maker of the note, might no doubt have been proved by facts tending to show such insolvency connected with general reputation as to that point; or it might have been proved by the introduction of the record of his discharge under the insolvent laws of Missouri, and his subsequent poverty and inability to discharge the note in question, but the witness ought not to have been permitted to speak of the contents of a record which must necessarily have involved the correctness of his own recollection.

The application to suppress such portions of the deposition was correctly made, and ought, I think, to have been granted. Under the count for goods, wares and merchandize, the evidence offered, so far from sustaining that count, directly negatives the indebtedness of Humphreys in the character of purchaser. The testimony is clear, that the note was received, at least, in payment for the goods, with the usual recourse against the indorser or assignor, and if any inference is to be drawn from the statement of the witness, that it was given and received at a discount, as he understood from both the parties, of ten per cent., it would seem to authorize not only that presumption, but that it was intended to have been in full, without recourse to the assignor afterwards. The instructions of the judge to the jury as to the weight of evidence, was perhaps unnecessary and irregular, but as he subsequently instructed them that they were the sole judges of the testimony and its character, it does not become necessary to decide on that point. (2) The judgment of the circuit court must *299be reversed, the case remanded to the court below with instructions to cause a venire de novo to be issued, (a)

Hall, for appellant.

Breese, for appellee.

Judgment reversed.

(1)

l) See note to Bradshaw v. Newman, ante, p. 133.

(2)

The act of February, 1847, provides that “ hereafter, no judge of the circuit court shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing.” Purple’s Statutes, p. 829, sec. 60. Scates’ Comp., 261.

Under this statute it is held that the court is not prohibited from giving instructions of its own accord, such as are applicable to the case, provided they are given in writing. Brown v. The People, 4 Gilm., 441. Bloomer v. Sherill, 11 Ill., 484. Galena and Chicago Union Railroad v. Jacobs, 20 Ill., 478.

A judge has no authority on the trial of a cause, to affect or change the law as stated in the written instructions, by any expression not in writing. Ray v. Wooters, 19 Ill., 82.

An instruction asked for, which has no application to the case proved, is abstract and should not be given. Riley v. Dickens, 19 Ill., 29.

*299Instructions not based on evidence should not be given. Chicago, Burlington & Quincey R. R. v. George, 19 Ill., 510. Hosley v. Brooks, et ux., 20 Ill., 115. Coughlin v. The People, 18 Ill., 266.

Where substantial justice has been done, even if improper instructions have been given, a judgment will not be disturbed. Newkirk v. Cone, 18 Ill., 449. Dishon et al., v. Schorr, 19 Ill., 59. Elam v. Badger, 23 Ill., 498. Howard Ins. Co. v. Cornick, 24 Ill., 455.

The right of a party to ask instructions must have some limit, and the supreme court will not sanction the abuse of it. Fisher v. Stevens, 16 Ill., 397.

A judge may, of his own motion, instruct the jury, and it may often be his duty to do so. Stumps v. Kelly, 22 Ill., 140.

The practice of instructing a jury to find for the defendant, as in case of a non-suit, is not adopted in this state. Ibid.

It is objectionable that instructions be drawn at great length, and have “ injected ” into them an argument of the case. They should be concise, and briefly present the points of law on which the party relies. Merritt v. Merritt, 20 Ill., 65.

Instructions should be as few and simple as possible, otherwise they are more likely lo mislead the jury. Springdale Cemetery Association, v. Smith, 24 Ill., 480.

We have cited above the case of Ray v. Wooters, 19 Ill., 82, but with all due respect to the opinions of the court, we can come to no other conclusion than that the case was improperly decided. It was admitted that the qualifications made by the judge were immaterial. The cases of Newkirk v. Cone, 18 Ill., 449, and Dishon et al. v. Schorr, 19 Ill., 59, expressly assert, that although errors may have been committed in the evidence or instructions, yet if substantial justice has been done, a case will not be reversed. It is said the statute provides that a judge shall give no instructions except in writing. So the statute also provides a judge shall do many other things, the not doing of which will not, unless a party has been prejudiced thereby, be grounds of error. A negro or Indian is called by a plaintiff as a witness. Instead of testifying for the plaintiff, his testimony is entirely for the defendant. The statute says he shall not be a witness; but the defendant can not assign as error that he was allowed to be called as a witness, because he is not injured by it. Suppose in this case the qualifications of the judge, if material, were wholly in favor of Kay, and still the jury found against him. He could not complain, and why? Because it was an error in his own favor, and it has always been held that a party can not except to an error in his own favor. Smith v. Williams, 22 Ill., 357. We can not but think that the point on which this case ought to have turned was overlooked by the court.

(a)

The court may give an opinion to the jury upon the weight of evidence, or may decline so to do; and if the evidence is doubtful, it is most proper to leave it to the jury. Consequa v. Willings et al., 1 Peter’s C. C. R., 225.