
    Cannovan v. Thompson.
    Notwithstanding an instruction be given to the jury, which is pertinent to an issue made by the pleadings, and which is “ utterly erroneous and subversive of the law of the land,” yet if there be no statement of facts, the judgment must be . affirmed. (In this case there were other issues.)
    The note sued on was executed as a forfeit in the event of a failure to run a horse race. Several defences were pleaded, and on trial verdict was for defendant.
    The Court charged the jury that “ should the jury believe “ from the evidence, that the note sued on, was executed for “ the purpose of, and put up as, a forfeiture, to accrue in the “event of not running a contemplated horse race, and they “ should believe from the testimony, that such racing is or was “an inducement to immorality, breaches of the peace, or “ against public policy and the good order of society, then in “ such case the note is invalid, and you should find for the de- “ fendant.”
    
      Henderson & Jones, for appellant.
    A statement of facts is not necessary to show the relevancy and materiality of this charge, to the issue, since these appear from the pleadings, and therefore do not come within the rule of Holman v. Britton, and Chandler v. The State, 2 Tex. R. 297, 305.
    
      For error in the charge, see 1 Tex. R. 89 ; 6 Id. 454; 8 Id. 10; 9 Id.260.
    
      B. J. Lewis, for appellee.
    There is no statement of facts agreed upon by counsel or certified to by the Judge, consequently the errors, if any, as made by the Judge in his charge, •cannot be heard and determined in this Court. (9 Tex. R. 490 ; 4 Tex. R. 120.)
   Hemphill, Ch. J.

As no statement of facts has been sent up with the record, the judgment must be presumed to be correct, and must be sustained. Some of the charges of the Court,1 it is true, are utterly erroneous and subversive of the law of' the land, as repeatedly declared by this Court, but there were substantial grounds of defence, as pleaded, and if these or any of them were supported by evidence, the jury were authorized to find their verdict. Without a statement of facts we have-no evidence that the note sued upon was adduced in evidence, or that there was any proof which would have entitled the plaintiff to judgment.

Judgment affirmed.  