¶1delivered the opinion of the court.
¶2As there is a difference between the record as it appears before us and the statement of the case as made by counsel, we must of course be governed by the record as it is written. The instruction of which most complaint is made by the defendants it appears was given on motion of the defendants themselves. It is numbered five, and is to the effect that the declarations of Jacob Helm are to be regarded by the jury as evidence against himself only, unless the jury *325find that he and the other defendants were partners; and if they were partners, then such declarations were, to be regarded as evidence against the other partners so far as they related to the partnership transactions. This instruction is too loose, as it fails to require that the declarations should have been made during the existence of the partnership. But how can its effect be obviated, when it appears to have been given at the instance of those who are now complaining of it ?
¶3There were two theories of this case; one, that each of the parties sold or authorized the sale of his share separately ; the other, that there was a joint sale for the benefit of all. Taking into consideration the pleadings and the evidence in the cause, we can not say that the court below exercised its discretion improperly in refusing to permit the jury to pass on the case of two of the defendants in order that they might be made witnesses.
¶4With the concurrence of the other judges, the judgment will be affirmed.