Collins v. Loyal's Adm'r

BBXCKELL, C. J. The record discloses that this cause was submitted for final decree, “on the original and amended bill and exhibits, decrees pro confesso against the parties who had not appeared and pleaded, and the agreement of counsel.” This agreement, the only matter of evidence affecting the parties appearing and pleading, introduced on the hearing, is not incorporated in the record, and, consequently, we are uninformed of its character and extent. Shall the presumption be made, if error is found in the record as it now stands, that it was not cured, and the decree authorized by the agreement? Or shall the presumption be indulged, that the court conformed the decree to the agreement submitted to it, by which the errors apparent on the record were waived ? It is the last presumption which the unvarying practice of this court compels us to indulge. Error must be shown affirmatively ; and all reasonable intendments, consistent with the record, must be made in support of the decrees or judgments of primary courts. If we were to proceed, in the present state of the record, to consider the assignment of errors, and a reversal should follow, it might be for errors cured by the agreement, and into which the Chancery Court would not have fallen; or it might be of a decree to which the parties deliberately yielded assent. The decree must be affirmed.