Donohoe v. Glasgow

M’Girk, C. J., delivered the opinion of the Court. The record shows this case to he, that the plaintiffs in the Court below recovered judgment against Donohoe, on a joint contract made by him to them. To reverse this judgment, it is contended that the Court erred in refusing to instruct the jury, that if they believed all the parties to the contracts on the one part, had not joined in the action, that they must find for the defendant. The record shows no state of facts to warrant this instruction; and for aught appearing to this Court, an abstract point of law was only proposed. The record is no doubt defective, but it must remain so, we cannot help the party here; there is a good judgment, and it must stand. The law is, that when any party complains that instructions were refused, he must show that he had a proper state of facts to warrant the instruction, It is not sufficient that there might, under the pleadings, have existed such a case. The rule, that that which does not exist, and that which does not appear, will equal!;: he disregarded by the Court, applies in this case. The judgment is affirmed, with costs.