There are two fatal objections to the first charge asked by the defendant in the court below, either of which justifies the qualification given by the judge: first, the acceptor of the bills, himself, passed the papers to the Bank, (Saltmarsh v. P. & M. Bank, 14 Ala. 668); and, secondly, the bills were^pot sold to the Bank in payment, but placed there as collateral security to a pre-existing debt. — Boyd & Macon v. McIver, 11 Ala. 822; Thompson v. Armstrong, 7 Ala. 256; Maraton v. Forward, 5 Ala. 347; Bank of Mobile v. Hall, 6 Ala. 639; Wardell v. Howell, 9 Wend. 170; Andrews v. McCoy, 8 Ala. 920. The endorser, Farley, could make the same defense to the bills thus placed in the Bank, as if they still remained in the hands of Robert Harwell, the acceptor; and any charge which assumes the contrary, does not assert a correct legal principle. This charge, as asked, was properly refused. See, also, Wallace v. Br. Bank of Mobile, 1 Ala. 565.
The second charge asked and refused, is somewhat involved. Certainly it was the duty of the Bank, which had assumed to apply a part of the proceeds of the collateral paper to another debt, to furnish to the jury a basis, to enable that body to determine the share to which defendant was entitled. If the charge had asked this instruction, unclogged by other *611and illegal propositions, we would feel constrained to reverse the case. But in asking the charge, the counsel embarrassed it with other terms, which, taken as a whole, justified its refusal. It sets out with the assumption, -that defendant had shown certain facts to exist. The language employed is, “ When the defendant McKenzie shows,” &c. This language, when used in reference to conflicting testimony before a jury, is always improper. The court cannot predicate, or assume, that any fact, embraced in the issue, has been shown or proven. The jury, under our system, is the' only tribunal which passes on controverted facts in courts of law; and until the verdict is rendered, no such fact is established, or shown to exist. — Ward v. The State, at the present term.
There is another objection to the second charge asked. It was not necessary that the plaintiff should prove both the amount of the debt on which Powell was surety, and the pro rata share, to which it was entitled. Proving the amount of the debt, would have given the jury a basis, from which they could ascertain the pro rata share; or, the testimony might have shown the pro rata share, as direct and primary evidence. That such form of inquiry was permissible, see Douge v. Pearce, 13 Ala. 127; Stanley & Elliott v. The State, 26 Ala. 26; Massey v. Walker, 10 Ala. 288.
The legal correctness of the affirmative charge found ■ in the bill of exceptions, is too clear to admit of elucidation.
There is no error in the record, and the judgment of the circuit court is affirmed.