
    Barnes vs. Blackiston, et al.
    
    B and J sold and delivered toHBa quantity of sugar, undo.* a parol afavement with J l, that J R, would pay for the sugar if H B did not. J K paid B and J for the sugar; and an ' action of assumpsit was brought in the names of ‘B ami .T fov the use of J IX — Held* that it could not be sustained.
    As a matter of ¡ practice, the evidence offered to i thejury. on which the opinion of the c-mrt is prayed, ought to he stated in the bill of exceptions- The court of appeals, however, will retain a bill of exceptions where the court below wa* called <m and did give a direction ro the jury, although no facts are itattd therein*
    Appeal from diaries County Court. This was an action of assumpsit, brought by the appellees, and' entered for the use of James Robertson, against the appellant. The declaration contained a count for goods, wares' and merchandizes, properly chargeable in account, as by a particular account, &c. a count for money paid, laid out and expended, and a count on a quantum meruit for goods, &c. property chargeable in account, sold and delivered. An account was filed witli the declaration, in which the defendant was- charged as debtor to the plaintiffs, on the 3d of December 1799, “to 1 hhd. sugar, p. bill p. Mr. James ' ¡ i 
      Robertson, on 90 days credit, §174 53.” At the trial of the cause, the defendant moved the court to direct the jury, that if they find from the evidence that the plaintiffs sold and delivered to the defendant the sugar mentioned in the declaration, under a parol agreement with James Robertson, (for whose use the suit is endorsed on the record,) that lie Robertson would pay for the sugar if the defendant did not, and that Robertson did pay the plaintiffs for the sugar, in virtue of his agreement, at the request of the plaintiffs, that then the action cannot be maintained in the names of the plaintiff's, for the use of Robertson, but that Robertson should have brought an action in his own name for money advanced, or laid out and expended, for the defendant. Which opinion and direction the county court, £Sprigg, Ch. J.] refused to give to the. jury. The defendant excepted; and the verdict and judgment being for the plaintiffs, the defendant prosecuted this appeal.
    The cause was argued before Chase, Ch. 2, Buoiiaxanv and Nicholson, J.
    
      r. Buchanan, for the Appellant,
    contended, that the judgment of the court below must be reversed. That it was too plain a case to require an argument.
    
      Skaaff, for the Appellees.
    The claim is a proper one against the appellant, yet the action may have been misconceived. This court can only look at the declaration and the bill of exceptions. The court below were right In re,fusing to give the opinion prayed for, if there was no evidence in the case. There are no facts stated in the bill of exceptions, but a hypothetical opinion prayed to be given by the court, which the court very properly refused to give. No evidence was offered that the money was. paid by Robertson, or any agreement that he would pay it, if the defendant did not; and this court cannot say that the court below erred in refusing to give an opinion where no facts were proved to justify such opinion being given. It is not stated that the defendant offered to prove the fact of payment by Robertson, flor that the plaintiffs had been paid. If the judgment is reversed, this court will say that the opinion ought to have been given by the court below, although founded on no facts. It cannot bo inferred by this court judicially, that there wag any evidence offered Ut all. This court cannot travel out of the record. It is important that facts should be stated; and this court cannot reverse this .judgment, as there was no statement of facts upon which thé Opinion and direction, Us prayed, could be given.
    
      T. Buchanaii■, ill rfcply.
    Hypothetical opinions hfeVé been often given iri thé late general court,, and courts do so when they do not require the whole facts spread upoh the record. It is done to prevent the drawing up thé facts, and crowding the recoi’d, and to save expense to the parties. Such was the practice in the cases of Lawrence vs. Devalt, (October term 1794. J Muhony vs. Ashton, 4 Harr. & M'Hen. 296, 305, Newman vs. Morris, 4 Harr. & M‘Hen. 421. Queen vs. Ashton, 3 Harr. & M'Hen. 339, Worthington vs. Filthy, (October term 1791;) and Reeves vs. Middleton, (May term 1793.) Will it be said, that because no facts are stated, this court will not review the decision of the.cétírt below? It may be inferred that the evidence was offered, or the court below would not liave been called on to give the opinion and direction aé prayed.
   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»,  