The above statement is so full and complete that nothing remains for this court but to see if the instructions given and refused were properly given and refused by the court below. There was no jury in this case ; the facts were submitted to the court, and from the evidence before the *423court and tlie general principles of tlie law in tlie instructions given, I am inclined to agree with the court below, that the law of the case upon the facts was with the plaintiff below.
The instructions refused on the part of the defendants were refused on the ground of their being mere abstract legal propositions, not arising necessarily from the facts in the case and not necessary to be declared by the court, in order to a proper adjudication of the merits of the case before it.
The first instruction given by the court for tlie plaintiff declared the law properly, and brought the whole merits of the controversy before the court. I find no fault with this instruction; and the verdict and judgment are in accordance with the facts under this instruction.
The other instructions are mainly of the same character. The defendants below, plaintiffs in error, find fault with the last instruction, because the court is required to declare that the money so placed in the hands of the defendant below became fixed for the payment of the note in controversy.
We think this instruction might as well have been omitted. The merits of the case were properly under the law as declared before the court without this instruction. As there can be but little doubt that this instruction operated slightly if any to the defendant’s prejudice, I feel unwilling to reverse the judgment.
The practice incumbering the record with a string of instructions all alike in substance, differing in phraseology only, is to be reprehended ; no good can arise from such a practice, and evil may.
Upon the whole record of this case, I find the merits were fairly placed under the law before the mind of the judge who was trying it as a jury ; and I feel that justice has been done, and am unwilling to disturb the judgment below.(a)
Judge Napton concurring, the judgment below is affirmed.(a) See Coleman v. Roberts, 1 Mo. R. 101, and note a.