James M. Borah, Pl'ff in Error vs. Elizabeth Martin, Def't in Error

James M. Borah, Pl'ff in Error vs. Elizabeth Martin, Def’t in Error. Where it does not appear that exceptions to the charge of $ Judge, at the Circuit are taken at the time such charge is made, this Court will not regard such exceptions as made in time. There is no presumption arising from the fact that exceptions are taken, that they were taken, at the time when the alleged fault, occurred, unless the bill so alleges, or it so appears upon the papers. An exception taken to the ruling of a Judge, on a motion for- a new trial, denying the motion, cannot prevail, in a case, where the Jury who sat in the cause had a discretion, under the evidence, to decide the rights of the parties, and no sufficient legal pbjection appears, upon the face of their finding. Error to the Circuit Court of Gr^nt County. This was an action of assumpsit brought by the defend* ant in Error against the plaintiff in error, as administrator of Joseph Martin, deceased, for the recovery of a .debt doe fronq Martin in his life tipae, for work, labor, and services done and performed by the defendant in error for him. The, plaintiff'in ei'ror pleaded non-assumpsit and gave, notice of set-off. On the trial of the cause the Jury found a verdict in favor of the plaintiff b.elow, and assessed the damages at two hundred dollars. The defendant below, at the same term of the trial fib ed a motion for a new trial on the ground that the charge pf the Judge to the Jury, was erroneous and calculated^ ip mislead the Jury in this: “ that if the Jury found, irons, the evidence, that the services charged for and performed, were rendered gratuitously by the plaintiff, and were nothing more than the ordinary services rendered by a parent while living with a child, and no more than ordinarily flow from the relations of parent and child, and were not intended oi* designed to be charged for, on the one hand or paid for on the other, and were so rendered, and so received, such being the mutual understanding of the parties, then, and in that cáse the plaintiff could not recover.” 2d. That inasmuch as it was in evidence that the plaintiff, a widow, performed the services, while living with her son, defendant’s intestate, the Court should have instructed the Jury they could not find for Plaintiff, unless the Jury found it was the understanding of plaintiff and intestate, that the former should be paid.” 3. The finding of the Jury was against the charge of the Court, and the evidence in the case. On the argument the Judge overruled the motion, and judgment was rendered for the plaintiff below. To the decision of the Judge the counsel for the defendant below took an exception, as follows: “ To which ruling of his honor, defendant by his counsel, excepts, 'and prays that this, his bill of exceptions, may be signed and sealed and made a part of the record in this cause.1* The Judge, in settling this exception, appended thereto, the following note, to-wit: “ The instruction quoted in the motion for a new trial was given, together with other instructions, and no exception was taken to any instructions given by the Court, at the time it was given.” Upon this state of the case, it came before this Court. 'Mills, for Pl’ff in Error. Eastman, for. Def’t in Error.. [MAJORITY — LaRrabee, J.] By the Court. LaRrabee, J. We, cannot ascertain from the record,, whether an exception, was taken to the charge given to the Jury, before, or after, verdict. The memorandum of the Judge shows that no exception was taken at the time the charge was given; and the plaintiff in error .contends that the presumption lies in his favor, that the exception was made before verdict, because the coutrary does not appear.. This is not so. We cannot thus presume in favor of the plaintiff in error; he should have taken his exceptions at the proper time, and had them, appear seriatim in his bill of exceptions. The only source from which we can infer an objection to the charge, much less a legal exception, is the motion for a new trial; which was of course after verdict. , Hence we are not at liberty to pass upon this assignment of error. We see no ground for reversal in the second error assigned. There was a simple question as to the character of the service rendered; and this was to be determined from weighing all the evidence in the cause. This was exclusively the province of the Jury; and this Court will not, upon slight grounds, interfere with that decision. Judgment affirmed.