delivered the opinion of the Court:
The plaintiff below sued the defendant upon two promissory notes for 2,300 each. The defendant pleaded, first, that the plaintiff in consideration of a promise by J. Duncan to pay the notes, discharged and acquitted the defendant of all liability ; secondly, a plea of nil debet; and thirdly, a plea, puis darrein continuance, that in consideration of certain promises made by J. Duncan, after the commencement of the suit, the plaintiff promised and agreed to dismiss it, and did then and there release the defendant from all liability on account of said notes sued on.
It does not appear that any evidence was introduced by the defendant, but before the jury retired, the counsel moved the Court to give the jury the following instructions: First, That if in consideration of a promise by J. Duncan to pay additional interest on the notes, the plaintiff agreed to extend the time of payment to a period subsequent to the commencement of this suit, they should find for the defendant; Secondly, That if in consideration of Duncan’s promise to pay the notes, the plaintiff verbally released the defendant, they must find a verdict for him, These instructions, the Court said, were contrary to law, but as the counsel for the plaintiff consented that the jury might consider them as law, in this case, they might so consider them. To these instructions, thus qualified by the Court, and the refusal to give them as prayed for, the counsel for the defendant excepted, and after verdict for the plaintiff, moved in arrest of judgment, which was overruled by the Court.
When the Court has given improper instructions to the jury, or withheld such as are legal and appropriate, when aslted for, the proper course to adopt to enable the Court to correct the error, and do justice to the parties, is for counsel to apply for a new trial. The Court will never arrest a judgment except for some intrinsic cause apparent upon the face of the record; such, for example, as the want of an issue upon which the merits of the case may be tried. When there is enough apparent upon the face of it, to enable the Court to give judgment upon the whole record, it will never arrest the judgment, nor will an application for that purpose be entertained, if made by the party committing the error. Upon these principles, then, the Court very properly overruled the defendant’s motion, not only because the only error apparent upon the record was the result of the defendant’s own act, in pleading insufficient pleas, but because there was in addition to the first and third pleas, which were immaterial, the plea of nil debet, to which the verdict was responsive, and upon which the judgment was properly rendered.
In reference to the instructions alleged to have been applied for, and refused by the Court, it is manifest from the bill of exceptions, that the assignment of errors is not strictly in accordance with the facts of the case. The Court decided that the instructions were not according to law, but, by consent of the plaintiff’s counsel, the jury might consider them so in this case.
The Court refused to give the instructions asked for, upon its own judgment, but gave them upon the consent of the plaintiff’s counsel.
A party may certainly waive a legal right, and without determining that the plaintiff did so in this case, the defendant having obtained the full benefit of the instructions he required, we are not satisfied that the judgment of the Court below ought to be reversed. Abstractedly considered, the opinion of the Court in reference to the instructions was correct. Both branches of these instructions are alike in principle, and may be considered together. If, therefore, the affirmative of both propositions were admitted, by the plaintiff, they would not constitute a defence to his right of recovery, because they would impose no legal obligation on any of the parties. Duncan was no party to the contract upon which suit was brought, his promise, therefore, without any consideration, to pay to the plaintiff the principal or interest of his debt, was void, inasmuch as it was to answer for the debt or default of another.
As Duncan’s undertaking to the plaintiff was void, and as that was the only consideration upon which the plaintiff’s agreement in reference to time, or the discharge of the defendant’s liability, is founded, it necessarily follows, that these promises, imputed to the plaintiff, are also void, and cannot be set up in bar of his recovery.
It is undoubtedly the rule, that although the issue made by the parties in a cause, may be immaterial, yet the Court is bound, if called on by the defendant, to instruct the jury that if the evidence supports the issue, if any tending to do so was offered, they must find for the defendant. But it is not the province of a court to moot points of law, nor can it be required to give opinions upon abstract propositions. The bill of exceptions ought, therefore, to contain enough of the case to show the materiality or the application of the instructions asked for. This however has not been done in this case. The bill of exceptions neither contains the testimony, nor states that any was given, nor is there any thing from which it can be fairly inferred that any was offered.
But inasmuch as the Court gave the instructions, although it did so at the instance of the plaintiff, and on his concession, and as the jury, notwithstanding, found for the plaintiff, the presumption is against the defendant’s having made out his defence by testimony.
It was, at all events, incumbent upon the defendant to show the application of the instructions asked for, to his case. If he adduced any testimony, he ought to have shown that fact; and having failed to do so, we cannot supply the omission by inference, and in so doing pronounce the decision of the Court erroneous.
This would be a violation of a well established rule, that the decision of the Court below is presumed to be correct, unless the contrary is made to appear.
The judgment is therefore affirmed with costs.
Judgment affirmed.