concurring.
I concur in the judgment of reversal solely because the court said to the jury that if they could not decide between the two witnesses in this case the law ivould apply the payment to the oldest debt; he should have told them that in such a case “the law will direct the application in such manner as is reasonable and equitable, both as to parties and third persons,” and that, “as a general rule, the oldest lien and the oldest item in an account will be first paid, the presumption of law being that such would be the fair intention of the parties.” In this case a security or accommodation indorser may have been interested, and therefore the jury might have found that it was more reasonable and equitable not to apply it to the oldest debt: See Code, section 2869. I do not concur in *500the opinion that the court should have forced the jury to find one way or the other on the question of how the parties directed the application of the payment to be made when one swore one way and the other another, both being equally entitled to credit, and no other fact or circumstance in the case turning the scale. In such a case, 1 think, as the verdict of a jury under our practice is general, and not special — for the plaintiff or for the defendant — that it was the duty of the court to tell the jury that if they could not decide between the two witnesses, then the law applied the payment to that debt which was more reasonably and equitably entitled to it, in looking at all the circumstances affecting not only the parties but third persons; and that if they saw nothing in the case to satisfy them that it would be more equitable to apply the payment to the younger debt, then it should be applied to the'older, as the presumption of law is that, in the absence of some controlling equitable fact, it was thé'intention of the parties to pay the oldest debt first. I think the court below erred, not in telling the jury that if they could not decide between the two witnesses, that is, if they could not fiud the fact that the parties had directed the application of the payment and how it was to be applied, then the law directed its application, but in telling them that the law directed it to go then to the oldest debt without regard to any equities which might control the general rule, thus disregarding or not noticing the statute: Code, section 2869. This was a plea of payment; it devolved on the defendant to prove he paid it, if at all, by directing this money to go on this draft sued on; he swore he did so direct, the other party swore he did not; if the jury could not decide btween them, that is, if they could not find that the direction was given, then, of course, the law directed to what debt it should go; that law should c mtrol the verdict, and the court should tell the jury what that law was. It will be remembered that this court, at the last term, held that under our system a verdict was made up of law as well as of fact.
I cannot agree with a majority of the court that the jury *501must decide between two opposing witnesses, or there ean be no verdict; and mistrial after mistrial thus ensue, absolutely stopping the wheels of justice. On the contrary, I think, in such a case, the law' will be applied by that logic which in the case last cited, it is said was also an ingredient of a verdict, to the remaining undisputed facts, and the verdict will be according to its mandate. What is not proven does not exist in law, and the oath of one witness, contradicted by that of another equally respectable, with no circumstance to turn the scale, proves nothing, and the fact alleged does not exist, and the jury should find without regarding it, and the court should fully instruct them what the law required them to do under such circumstances.