Barnes vs. Blackiston, et al., 2 H. & J. 376

Chase, Ch. J. In every case where the court are called, upon to give a direction to the jury, the facts should appear, and the opinion of the court will depend upon the mature of the evidence, and unless it does appear what the fapts are, it cannot be said-the court erred in their opinion by refusing to give the opinion asked for. If a contrary practice prevailed,, the court might be called upon to decide upon questions not arising in the case. I am of opinion, that the bill of exceptions in this case ought hot to be retained by this court. Buchanan, J.

As the- court below has, not stated that they refused1 the prayer, because the facts were not stated or-proved, this court are bound-to,decide on thé law in. the case. The most regular way- would, be to. state the facts,, or that there were-.no such facts, if nolle existed in the case. If in this- case there had: been no facts to. justify the-opinion being given, the plaintiffs should-not have stated: in the-bill of exceptions, that the facts did not exist. As.a matter of practice,, the evidence áhétüd be-stated.,- It N my opinion, that the bill of exceptions taken in the case ought to be retained.

Nicholson, J. concurred with Bugiunak, J. JUDGMENT REVERSE»,