Fitzgerald v. Jerolaman

10 Ind. 338

• Court: Indiana Supreme Court
• Decided: June 1, 1858
• Status: Published

Opinion

Per Curiam.

Suit upon promissory notes. Answer and reply. Trial by jury, judgment for plaintiff.

We are not able to discover any error in the case.

The Court was asked to give a legal instruction in the cause. The instruction was refused, and an exception entered. But the reason of the refusal of the instruction is not given, nor does the record exclude the presumption that it may have been refused for a sufficient reason. It should do so.

An instruction asserting a correct legal principle may be rightly refused for any one of at least three reasons—

1. That it is not pertinent to the particular case, as made by the evidence.

2. That it was not handed up to the judge for his examination at a proper time.

3. That it was clearly embraced in instructions given.

It is shown, in this case, that the instruction in question was pertinent to the case made by the evidence.

It is not shown that it was handed up to the judge a sufficient time before the jury, according to the usual practice in causes, were to be instructed.

It is not shown that the instruction was not included in the instructions given, as the record does not purport to contain them all, and there is no allegation that it was not so included.

L. Chamberlin, for the appellant.

The judgment is affirmed with 2 per cent, damages and costs.