#### Robert Fisher v. A. J. Ham.

Negotiable Instruments—Action on Note—Execution—Evidence—Instructions—Practice.

1. In an action on a promissory note, it is held: That the evidence sustains the verdict, and that there was no error in giving and refusing instructions.

2. This court ma,y decline to consider whether the court below improperly refused instructions asked, where the abstract does not contain those given.

*602[Opinion filed February 17, 1887.]

Appeal from the Circuit Court of Champaign County; the Hon. James F. Hughes, Judge, presiding.

Messrs. J. S. Wolf and M. W. Mathews, for appellant.

Messrs. J. L. Ray and F. M. Wright, for appellee.

Wall, J.

The substantial issue in this case was whether the appellant executed the note sued on, and the point mainly pressed upon our consideration is that the evidence did not support the verdict.

We have carefully read the evidence as it" appears in the record, and find it fully sustains the conclusion of the jury. We can not interfere on this ground. Appellant complains of the refusal to give certain instructions. The abstract does not contain the instructions which were given, and for this reason we might well decline to consider the point, but on referring to the record, we think there is no occasion for the complaint-Two of the instructions so refused, so far as they were important, were sufficiently embraced in those that were given. The third was refused no doubt because there was no evidence upon which to base it. The main and indeed the only issue of fact before the jury was as to the execution of the note. Of course, if the note was paid or settled, there could be no recovery upon it, and this is a proposition no jury would need instruction upon; but we can not say there was such evidence as made it the duty of the court to call attention to the point. It would be unduly technical to reverse the case on this ground alone. We are satisfied that upon the merits the judgment is right, and that it should be affirmed.

Judgment affirmed.