
    Freeze v. DePuy.
    
      Pbactice.—New Trial.—Assignment' of Error.—Instruction to Jwry.—Supreme Court.—Error in refusing to give an instruction asked to the jury is cause for a ne;w trial, but is not a proper assignment of error on appeal to the Supreme Court.
    Same.—Record.—Evidence.—Where, on appeal to the Supreme Court, neither the evidence, nor the instructions given to the jury, are in the record, the refusal of the court below to give to the jury an instruction asked is not available as error.
    From the Wabash Circuit Court.
    
      A. Taylor, for appellant.
    
      J. D. Conner, for appellee.
   Howk, J.

The only alleged error of the court below, assigned by the appellant in this court, is thus stated:

“ The court erred in refusing charges asked to be given by the plaintiff to the jury.”

This alleged error presents no question whatever for our consideration. The matter stated therein was a proper cause for a new trial, in a motion therefor addressed to the court below; but it can not be assigned as an independent error in this court. This rule of practice has long prevailed in this court, and is so well established that it needs no citation of authorities to support it. “ The assignment of the causes for a new trial as error is not the proper mode of raising any question embraced in the motion for a new trial.” Buskirk Prac., p. 126, and the authorities there cited.

But, if this objection to the assignment of error was waived, it would be of no avail to the appellant in this •ease. The record of this cause does.not contain either the evidence on the trial or the instructions of the court below to the jury trying the cause. It may well have been, therefore, and we will so presume in favor of the •decision of the court below, that the instructions asked for by the appellant were properly excluded by the court, upon the ground either that the instructions were not .applicable to the case made by the evidence, or that they had been substantially given by the court, of its own motion and in its own language. In either of these events, the court below would not have erred in refusing the charges asked for.

We find no available error in the record.

The judgment of the court below is affirmed, at the appellant’s costs.  