¶1dissenting.
¶2This was an application to open a judgment under the provisions of the second section of the Relief Act of 1868, and, upon the trial of an issue between the parties, the Court charged the jury, “that if Camp agreed with Phillips to receive bank bills in payment of the debt, and Phillips went forward and sold property at a less price than he could have got for it in the common currency of the country, and Phillips tendered him the bank bills in a reasonable time, then it amounts to a payment, and that the jury should find for Mrs. Phillips.” The charge of the Court assumes that there was evidence that Camp agreed with Phillips to receive bank bills in payment of his debt before Phillips sold his property; whereas, there is no evidence in the record of any such agreement between the parties. The charge of the Court *300also assumes that there was evidence that Phillips, in pursuance of that agreement, went forward and sold his property at a less price in bank bills than he could have got for it in the common currency of the country; whereas, there is no evidence in the record that Phillips went forward and sold his property at a less price in bank bills, in pursuance of that or any other agreement made with Camp.
¶3This charge of the Court to the jury, in view of the facts disclosed by the record, was, in my judgment, erroneous, and being in relation to a vital point in the case for the consideration of the jury in adjusting the equities between the parties, I am of the opinion the judgment of the Court below should be reversed.