On Petition eor a Rehearing.
Bicknell, C. C.The appellee claims that the facts assumed by the court as proved, in its instruction No. 4, were not disputed; but they were material facts not admitted, and the jury were to determine whether they were proved or not. Instead of leaving these facts to the jury, the court told the jury they were proved. In this the court was clearly wrong. Killian v. Eigenmann, 57 Ind. 480. In Matthews v. Story, 54 Ind. 417, this court said: “ It is very clear that a court has no power to state to a jury what facts are proved, nor to so state what facts are admitted by the parties, unless they are so admitted as facts to go to the jury as proof.”
The sixth instruction laid down, as a rule governing all settlements, a rule applicable only to settlements of all the dealings between the parties, if that instruction had been preceded by this, “ if you find that the settlement between these parties was a general settlement of all their dealings, then the following rule applies,” it would have been unobjectionable; as it stood it was clearly erroneous.
The fifth instruction misstated the law as to the application of payments, by telling the jury that a direction by the debtor as to the application of a payment, in order to be effectual, must be made at the time of the payment; whereas the law is, *602that such a direction will bind the creditor, if it be given at any time before an application of the payment has actually been made. This is not denied by the appellee in his petition for a rehearing, but he says that the question of application of payments was really not in the case, and that therefore the instruction could do no harm.
In this the appellee is in error; the claim of the defendants was, that $565 had been paid by them and had been directed by them to be applied upon the note in suit. It therefore became the duty of the court to state to the jury the law upon the application of payments, and it was stated incorrectly.
The petition for a rehearing ought to be overruled.
Per-Curiam. — The petition for a rehearing is overruled.