The first, second, third and fourth assignments of error relate to the admission of certain evidence offered by the plaintiff, under objection by the defendant, and the fifth to the rejection of certain evidence offered by the defendant.
We are of the opinion that the evidence received by the court was properly admitted, and that rejected, properly rejected.
The seventh and eighth assignments relate to the withdrawing from the consideration of the jury the evidence introduced on the part of the defendant, and the instructions of the court directing the jury to disregard it. If the evidence withdrawn tended to establish any valid defense to the action, it was error to withdraw it from the consideration of the jury; but if such was not its tendency, then there is no error in withdrawing it, and instructing the jury to disregard it. We are unable to see any tendency in the evidence withdrawn, to establish any defense to the action ; admit it, and it does not show any authority in Minch to sell the whisky, and it was therefore properly withdrawn, and the jury properly instructed to disregard it.
The ninth assignment relates to the refusal of the court to give the instructions requested.
The instructions asked presuppose that there is some evidence before the jury which they have a right to consider. If there is no evidence for the jury to consider, instructions ought always to be withheld. Correct instructions, if applicable to the case, the court, as a general rule, is required to give, unless the same are in substance and effect embodied in those previously given by the court to the jury ; but the court is never required by law to give an instraction to the jury, which is not applicable to the case, even though it be correct as an abstract principle or rule of law, and no prayer for instructions can *703be regarded as applicable to the case when it is wholly unsupported by the evidence introduced to the jury. Where there is no legal evidence of any kind to support the theory embodied in a prayer for instructions, whether presented by the plaintiff or the defendant, the instruction should always be refused, and such a ruling can never become a good cause for reversing the judgment.
It is clearly error in a court to charge a jury upon a sup posed or conjectural state of facts of which no evidence has been offered, as the instruction presupposes that there is some evidence before the jury which they think sufficient to establish the fact hypothetically assumed in that way by the court, and if there is no evidence which they have a right to consider, then the charge does not aid them incoming to a correct conclusion, but its tendency is to embarrass and mislead them, as it may induce them to indulge in conjectures, instead of weighing the testimony. When a prayer for instruction is presented to the court, and there is no evidence upon the subject in the case for the consideration of the jury, it ought always to be withheld. The true rule, if there be no evidence to support the theory of fact assumed in the prayer, is to reject it, as it is error to leave a question to a jury in respect to which there is no evidence. Insurance Company v. Baring, 20 Wall. 161.
We find no error in the record, and that the motion for a new trial was properly refused.
Judgment affirmed.