After the evidence was in, the following instructions were given by the Court:

If the jury believe from the evidence aforesaid that the •defendant, on or about the 23d day of December, 1848, sent the sum of $200 to the Bank of Washington to pay the note of J. E. Addison for $200, endorsed by the defendant, and on which the suit is brought; and that the agent of the defendant accordingly went to the said bank and demanded the note aforesaid of which the said bank was then the holder and owner; and that the said agent then and there paid to the said bank the said sum of $200, and the officer of the bank delivered to him, and he received through mistake, another note of said Addison for $200, on which the defendant was not liable or endorser, instead of the note on which the said suit is brought; and that upon discovering the mistake the defendant offered to return the said last mentioned note to said bank, which the said bank refused, then the said payment of $200 was a payment and satisfaction of the note on which this suit is brought, and the plaintiff’cannot recover in this action.

But if from the evidence aforesaid the jury shall find that when the said agent of defendant demanded the said note as set out in said defendant’s prayer he did not describe it in a voice so loud that the officer of the bank to whom the application was made heard or ought to have heard the said description, that there was a note of said Addison for the same amount due on the said 23d December, and the note endorsed by defendant was not due until the 7th of January next, and the agent of the bank understood the said agent of the defendant to apply for the note of said Addison due *402on the 23d December, and received the money from him, and applied to that note, and gave that note to said agent, and the said agent on the same day delivered the said note to said defendant, and defendant did not offer to return the-same until after the 7th of January, 1849, then said payment of $200 is not to be applied by the jury to the note now in suit, and plaintiff is entitled to recover.

Verdict for the defendant.