Thompson's Adm'r v. Christian et al. self, without any evidence whatever in writing of his purchase, for more than three years, when, according to the bill, he discovered the trustees' want of title. This he found out in the spring of 1843. 2. In the next place, the bill avoids any direct allegation, as to whether the promised conveyance was executed. At least, its allegations may be literally true, and yet a deed may have been executed as agreed upon, and afterwards lost or destroyed, or put out of the complainant's possession. It is averred that no such titles as were promised by the trustees can be had by them,-that their warranty would be utterly valueless by reason of their insolvency; that complainant never had the actual possession of said lot, "nor has he had the constructive possession thereof, at any time since he learned the state and difficulty of the title, but has abandoned all right to the same"; that "neither said Christian nor Carr ever complied with the promise made by said Carr, in relation to the title to said land, when said notes were executed as aforesaid; and that he has no deed for said land, nor any instrument in writing whatever for the same." It is not averred that the trustees failed to execute a deed with warranty of title, but that they failed to comply with their promise, it may be in failing, in the opinion of complainant, to convey a good title as promised, or in procuring a relinquishment of dower on the part of Mrs. Pollard, or in failing to do this in a "very short time." In either event, the bill might be literally true, and yet a deed have been executed; and, although the complainant may not have had such deed in his possession when he filed his bill, and was enabled to say, in the present tense, "he has no deed for said land," &c., it does not follow that he did not, at some previous time, have a deed for the same. This criticism might appear too rigid, but for the fact that it is strongly fortified by other facts developed by the record; as, 3. It appears that Thompson executed a mortgage, with power of sale, of even date with the notes, to one D. M. Russell, on the same lot, to secure the payment of the notes given for the purchase-money, in which mortgage he recited that a deed was executed to him for the lot thus purchased; and,4. Christian, one of the trustees, is examined as a witness, Gliddon v. McKinstry. and testifies that he thinks a deed was made to Thompson; . and, 5. In the last place, the register reports that Thompson was in the constructive possession, by reason of the conveyance of the title to him; and to this report no exception was taken. In view of all these considerations, we do not think the facts relied upon by the appellant sufficient to repel the conclusion that a deed was executed by the trustees to Thompson. An effort was made to exclude Christian's deposition, on the ground that he was interested. The objection may be conceded to be valid, yet it does not affect the result, as the record amply sustains the conclusion at which we have arrived without this proof. Having arrived at the conclusion that a deed was executed by the trustees to the complainant, Thompson, he could not file his bill as upon an executory contract, wholly disregarding the deed. Whether he has any remedy, except upon the covenants contained in his deed, is not a question which we need now decide. Let the decree of the chancellor, dismissing the bill, be affirmed. GLIDDON vs. McKINSTRY. [ACTION AGAINST ACCEPTOR OF WRITTEN ORDER FOR NEGLIGENCE IN COLLECTING AND FAILURE TO PAY WHEN COLLECTED.] 1. Order payable out of particular fund, when collected, not bill of exchange.-A written order, requesting the person to whom it is addressed to pay a specified sum out of the proceeds of a certain judgment, when collected, is not a bill of exchange. 2. Consideration of acceptance of such order may be proved, and how.-The acceptor of such an order, when sued for negligence in collecting and failure to pay when collected, may prove the consideration on which his acceptance was based; and for this purpose may show that the money collected on the judgment was paid to other persons who had prior claims on the fund, and that the balance was not collected. Gliddon v. McKinstry. 3. Abstract charge properly refused.-A charge upon a question which is not shown, either by the pleadings or the bill of exceptions, to have been raised in the case, is abstract, and may be refused for that reason. 4. Burthen of proving diligence or negligence.-Where the payee of a written order, requesting the defendant to pay out of the proceeds of a certain judgment when collected, brings suit after acceptance, for the defendant's negligence in collecting and failure to pay when collected, the burthen of proving negligence is on the plaintiff, and not on the defendant to prove diligence. APPEAL from the Circuit Court of Mobile. Tried before the Hon. C. W. RAPIER. This action was brought by John S. Gliddon against Alexander McKinstry, and the complaint was as follows: "The plaintiff claims of the defendant $225, due on an order drawn by John A. Cuthbert, on the 27th day of June, 1846, as follows: 'Alex. McKinstry, Esq.-Please pay to John Gliddon $225 out of the proceeds of the judgments from the county court of Mobile county, in your favor, against A. C. Hollinger and A. Hollinger, when collected; this sum to be credited on your acceptance of an order in my favor for money to be collected on said judgments;' which said order was accepted by said McKinstry, payable to John Gliddon; and though money sufficient to pay said order has been received from said judgments, it is still due and unpaid. And plaintiff further claims of defendant $225, for that the said defendant did accept a certain order, drawn by John A. Cuthbert, on the 27th day of June, 1846, as follows:" (setting it out as above;)" which said order was signed by John A. Cuthbert, and accepted by said McKinstry, payable to John Gliddon; and plaintiff further avers that, by the exercise of due diligence, the said judgments, or a sufficient amount thereof to satisfy said order, might have been collected by defendant, but that he negligently, and of his own wrong, failed and refused to collect said judgments, and has never paid said order, or any part thereof. And plaintiff further claims of the defendant $225, on an order, drawn by John A. Cuthbert, on the 27th day of June, 1846, as follows:" (setting it out as above;) "which said order was accepted by McKinstry, acting as trustee for John A Cuthbert and others, and the interest of said Cuthbert being for a greater amount than is called for in said order; and though defendant has collect Gliddon v. McKinstry. ed sufficient money out of said judgments to satisfy said order, it is still due and unpaid." The defendant pleaded, in short by consent, "the general issue, with leave to give any special matter in evidence." On the trial, as appears from the bill of exceptions, the plaintiff read in evidence the order described in his complaint, which was endorsed "accepted," and the defendant's name signed to the endorsement. "He further proved by a witness, that defendant admitted to him that he had collected $450 out of said judgments, and that this admission was made about two years since; but the witness stated, on cross-examination, that defendant said, at the same time, that he had paid over all the money to other persons than the plaintiff, to whom it belonged; and witness said, that defendant named the persons to whom he had paid the money, but that he had forgotten who they were. To this answer the plaintiff objected, because it was illegal; which objection the court overruled, and the plaintiff excepted. Plaintiff here closed his case." "The defendant then introduced in evidence a deed of trust, made by Thomas A. Carr, dated February 9th, 1844, transferring a note for $692 42, dated April 1st, 1844, payable twelve months after date, made by Adam C. Hollinger, in favor of, and endorsed by Alex. Hollinger, then in the possession of C. A. Gilbert, upon which said judgments were founded; in which said deed it is specified that said Carr's interest in said note amounts to $400, more or less; and said deed provides that said defendant should, out of the proceeds of said note when collected, pay a debt of $130 due to S. Mordecai, and a debt of $280 due to C. A. Gilbert. The plaintiff objected to the introduction of said deed, because the same was illegal testimony; which objection was overruled by the court, and plaintiff excepted." The defendant then offered the deposition of said Cuthbert, who testified, that Thomas A Carr, being indebted to him in about the sum of $500, assigned to him his (Carr's) interest in the judgments which McKinstry had obtained against A. C. Hollinger and Alex. Hollinger; that this assignment, which has since been lost, gave him power to call on McKinstry for payment of the money collected on said judgment; Gliddon v. McKinstry. that McKinstry was not indebted to him at the time he gave said order to Gliddon, and that said order was founded entirely on the interest acquired by witness through the assignment of said Carr; that it was his understanding that a debt to C. A. Gilbert was to be first paid by McKinstry, but he did not so inform Gliddon at the time said order was given, the order having been sent to him by the hands of a third person. The plaintiff objected to the introduction of this deposition, "because the same was both illegal and irrelevant"; but the court overruled the objection, and the plaintiff excepted. The defendant then proved the payment of the debts to said Mordecai and Gilbert, under said deed of trust, and their receipts for the same. The plaintiff also objected to this evidence, as irrelevant and illegal; but the court overruled the objection, and the plaintiff excepted. "This was all the evidence in the cause; and the plaintiff thereupon requested the court to charge the jury as follows: 1. That the question of consideration cannot arise between the parties to this case. 2. That the statute of limitations does not commence until the plaintiff knew that the defendant had collected the money. 3. That the defendant was bound to collect the money due upon said judgments, or to use due diligence in collecting it; and that it is for him (the defendant) to show due diligence. 4. That if the defendant did collect more than the plaintiff's claim, or did not use due diligence to collect, then the question of consideration does not arise. All these charges the court refused to give, and the plaintiff excepted to each refusal.” The rulings on the evidence, and the refusals to charge as asked, are now assigned as error. E. S. DARGAN, for appellant. The GOLDTHWAITE, C. J.-We are unable to perceive any error in the rulings of the primary court in this case. instrument executed by Cuthbert, in favor of the appellant, requesting McKinstry to pay appellant two hundred and twenty-five dollars, "out of the proceeds of the judgments from the county court of Mobile county against A. C. & A. |