4. A note payable "with current rate of exchange" is not negotiable.

Appeal from circuit court, Rush county; John D. Miller, Judge.

Action by the John Church Company against John A. Spurrier and others. Judgment for defendants, and plaintiff appeals. Affirmed.

John Q. Thomas, for appellant. Smith & Camborn and F. J. Hall, for appellees.

WILEY, J. This action originated before a justice of the peace. The appellees appeared and answered, and also filed a counterclaim or set-off, the amount claimed therein exceeding the jurisdiction of the justice of the peace. Thereupon the case was certified to the circuit court, where it was tried by the court, resulting in a judgment for appellees in the sum of $240.25. Appellant moved for a new trial, basing his motion on the following reasons: (1) That the decision of the court was not sustained by sufficient evidence; (2) that the decision of the court was contrary to law; and (3) that the decision of the court was contrary to the law and the evidence. This motion was overruled. Appellant has assigned error: (1) That the fifth paragraph of appellees' answer to the complaint does not state facts sufficient to constitute a defense to appellant's cause of action; (2) that the court erred in overruling the demurrer to the fifth paragraph of answer; and (3) that the court erred in overruling plaintiff's motion for a new trial.

As the record comes to us, the last assignment of error does not present any question for review in this court, for the reason that the evidence is not in the record. The record does not show that the longhand manuscript of the evidence was filed in the clerk's office before it was incorporated in the bill of exceptions and before the bill itself was filed therein. Under the repeated decisions of the supreme and this court, this is a fatal omission. But counsel for appellant and appellees have filed an agreement waiving that irregularity. This agreement does not supply the omission in the record, and we cannot consider it. This question is no longer an open one in this jurisdiction, for it is put to rest by the adjudicated cases. In Davis v. Trust Co. (decided by the supreme court, March 15, 1898), reported in 49 N. E. 817, a stipulation was filed similar to the one in the case now before us. Jordan, J., speaking for the court, said: "It certainly must be evident, in the light of the fundamental rules of appellate procedure, that parties to an appeal in this court cannot, by a mere agreement of the character of the one in question, inject into, or bring proceedings of the lower court into, the record in this court, when otherwise, under the law, they are no part of said record. Section 661, Burns' Rev. St. 1894 (section 649, Horner's Rev. St. 1897), provides as follows: 'Upon the request of

the appellant, or upon being served with notice as aforesaid, and in either case, upon the payment of the proper fee, the clerk shall forthwith make out and deliver to the party, at his request, or transmit to the clerk of the supreme court, a transcript of the record in the cause, or so much thereof as the appellant, in writing, directs, certified and sealed, to which shall be appended the written directions of the appellant above contemplated, if any.' As a general rule, this tribunal derives its powers or rights to consider and determine a case according to methods prescribed by the law, and not by virtue or reason of any agreement of the parties to the appeal. All cases in this court are tried by the record. It furnishes the only evidence to sustain the alleged errors of the trial court of which a party complains. Appeals are heard by the record as legitimately constituted, and by such record all questions are tried and determined, and no deficiency therein, as is the one in the case at bar, can be supplied by the agreement of parties, Campbell v. State (Ind. Sup.) 47 N. E. 221; Elliott, App. Proc. 186, 187; Blair v. Curry (Ind. Sup.) 46 N. E. 672, and cases there cited; Weeks, Attys. at Law (2d Ed.) § 236a. It was the duty of appellants to furnish this court with a correct, complete, and orderly arranged and properly authenticated transcript of the record or proceedings of the lower court, except as otherwise provided by law, or, at least, so much thereof as was necessary to present the questions which they desired reviewed or considered. Such a transcript constitutes the record in this court, and it is important that it be made by the method provided by law, and be correct in every respect, as we must accept it as importing absolute verity." After discussing the principle involved, and citing some authorities, the learned judge, continuing, said: "It is manifest that appellee, under the circumstances, was not invested with any power, neither by agreement nor waiver, to relieve appellants of what the law exacted, nor to give this court jurisdiction to hear and determine the questions sought to be presented by this appeal. If it could relieve appellants of that which the law required to be done, in order to make the evidence a part of the record, why not further extend such relief, and thereby exempt them from procuring any part of the proceedings of the lower court to be transcribed and certified to this court, as the law exacts?" See, also, Blair v. Curry, 46 N. E. 472; Id., 49 N. E. 908, on petition for a rehearing.

This leaves but one question,-the sufficiency of the fifth paragraph of answer. The answer or counterclaim, in brief, is that appellees, as agents of Pafflin & Co., sold a piano to a Mrs. Fitzgerald for $575, which amount was to be paid as follows: Cash, $25, and $10 a month for 55 months, the deferred payments being evidenced by notes; that appellees were to receive a commission

on such sale of $243.20; that by agreement the notes were to be made payable to Pafflin & Co., but that appellees were to have an interest therein equal to their said commission; that said cash payment and all of said notes were to be turned over to Pafflin & Co., and when they had collected a sufficient sum on said notes to pay them the wholesale price of said piano, which was $331.80, then the balance of said notes should be turned back to appellees; that said notes were assigned or transferred to appellant, before maturity, but when said notes passed to appellant it knew and had full knowledge of all the facts. The record shows that said notes were payable at a bank in this state, and that they were payable with current rate of exchange. It is contended by appellant that the notes were negotiable by the law merchant, and that it was not affected by the agreement between appellees and Pafflin & Co. This contention cannot prevail. From the facts charged in the answer, appellees had an interest in the notes to the extent of their commission, and the demurrer admits that all the facts charged are true. This makes the answer good. Another which is discussed by counsel is that the notes were not negotiable, and hence appellant took them subject to any right appellees may have had. That the notes were not negotiable there seems to be no doubt. They were payable with "current rate of exchange," and this provision in them destroys their negotiability. This exact question has been decided by this court in two recent cases, and the doctrine there disclosed is unquestionably in harmony with the great weight of authorities. We cite the cases without comment, as we cannot add anything to what was there said. Nicely v. Bank (Ind. App.) 47 N. E. 476; Nicely v. Bank, 15 Ind. App. 563, 44 N. E. 572. There is no available error in the record. ment affirmed.

Judg.

HENLEY, J., took no part in the decision of this case.

STEWART v. STRONG.

(Appellate Court of Indiana. April 22, 1898.) PARENT AND CHILD-ENTICING AWAY Child-SeDUCTION-DAMAGES-PROXIMATE CAUSE.

1. Where one wrongfully entices away and employs a minor daughter without her parents' consent, damages arising from his son's debauching the daughter while she is thus employed are remote, and the employer is not liable therefor. in the absence of knowledge on his part of his son's conduct, or of connivance therein, or of negligence in his duty towards the girl.

2. A judgment will not be reversed for failure to assess nominal damages.

Appeal from circuit court, Greene county; William W. Moffett, Judge.

Action by Solomon Stewart against Henry R. Strong. Judgment for defendant, and plaintiff appeals. Affirmed.

John S. Bays, for appellant. Davis & Moffett, for appellee.

HENLEY, J. This action was begun by appellant against appellee to recover damages alleged to have been sustained by appellant on account of the wrongful employment of appellant's minor daughter by appellee, which employment was in opposition to the will of the parent. It is alleged in the complaint that appellant is a widower, and has a large family of children, the most of them being small, and requiring care and attention; that appellant's wife has been dead several years, and that, since her said death, he, desiring to keep his said family together, has relied upon his daughter, Lauretta Stewart, who was a girl of 18 years, to manage his said home, and to care for his said children and himself; that on the 17th day of November, 1893, with full knowledge of all the facts, and intending and contriving to injure appellant, and to deprive him of the comfort, assistance, society, and services of his said minor child, and for the purpose of inducing the said Lauretta Stewart to work for him, the said appellee did, at said time, wrongfully, and over the objection and protest of this appellant, and against his will, and without his consent, persuade and entice the said minor daughter from appellant's home, where she was living and performing the services aforesaid, and took her to his (appellee's) home, and kept her for a period of five months, and did thereby deprive appellant of the society, comfort, and assistance of said minor child during said period. The complaint then continues in these words: "And said plaintiff further says that said defendant, at the time of the grievances herein mentioned, had a certain son and servant, nineteen years of age, who was at said time residing at the home of said defendant. And plaintiff further avers that after the said defendant had so wrongfully taken said plaintiff's said minor child away from his (said plaintiff's) home, and to the home of said defendant, she was then and there and thereby, carelessly and needlessly, by said defendant, exposed to the wicked influences and unscrupulous designs of said defendant's said son, which facts said defendant well knew, or might have known by the exercise of reasonable care and caution. And now said plaintiff says that by reason of said wrongful persuasion and enticing away of said plaintiff's said minor daughter from his said home, and by so carelessly and needlessly exposing her to the wicked influence and unscrupulous designs of said defendant's said son, she was seduced by said defendant's said son, who then and there and at said defendant's home, and in said house debauched and carnally knew said plaintiff's said minor daughter, whereby said plaintiff's said minor daughter became pregnant and sick with child, and so continued for a period of near nine months, and that she is now pregnant and sick with

Judg

child, and will continue to be sick from the result of said pregnancy for a long time, to wit, six months." It is further averred in said complaint that on the 17th day of April, 1894, the appellee brought appellant's said child back to appellant's home, from whence he had taken her, sick and pregnant with a bastard child; that, by reason of all the facts as herein detailed, the appellant has been deprived of the services of said minor daughter, and she has been rendered sick and unable to attend to the necessary affairs of appellant; and that he will be deprived of her services for 12 months yet to come, and has already lost her said services for 12 months past, and will be compelled to lay out and expend large sums of money in nursing and taking care of his said child, all on account of the wrongs of appellee as hereinbefore detailed. ment in the sum of $5,000 is demanded. Appellee moved to strike out of the complaint all that part which is set out above in the language of the pleader. The lower court sustained the motion, to which ruling the appellant excepted, and has assigned such ruling as error to this court. A demurrer addressed to the complaint, assigning as cause that the complaint did not state facts sufficient to constitute a cause of action, was overruled. Appellee answered in two paragraphs. The first paragraph was a general denial. The second alleged facts sufficient to show that the appellant had, prior to the time appellee employed his said minor child, fully emancipated her. There was a reply in denial, and, upon the issue thus joined, there was a trial by jury, and a special verdict returned by way of answers to interrogatories. The court sustained the motion of appellee for judg ment upon the verdict, and overruled a similar motion made by appellant.

The principal question in the case arose upon the action of the lower court in sustaining appellee's motion to strike out the part of the complaint heretofore set out in this opinion. It is a question not altogether free from doubt, and, in this jurisdiction, one upon which the authorities are not uniform. Stated in the language of the learned counsel for appellant: "The theory of the complaint was that appellee, by wrongfully depriving the father of the services and society of his minor child against the will of the parent, was liable to respond in damages for all injury which might and did befall the daughter while in charge of the appellee, as well as for loss of services and expenses for sickness, medical aid," etc. Would the debauching of appellant's daughter by the son of appellee, as charged in the complaint, be such an injury to appeliant as that damages would be recoverable by appellant from the appellee? It is not claimed by appellant in his complaint that appellee conspired with his son to debauch appellant's infant daughter; neither is it claimed that he connived at or in any way knew of the alleged fact that the girl was

being ruined while in his employ; nor does appellant's counsel contend, as a matter of law, that appellee was negligent in his duty towards appellant's daughter, nor that the debauching of appellant's daughter was the proximate result of the wrongful employment of her by appellee. But it is contended by counsel for appellant that the question of proximate cause cannot arise in this case, and can in no way influence the proceedings, because the wrong consisted in enticing and inducing the minor child to leave the parent's roof against the will of the parent, and that the wrongdoer will be liable to the parent for any injury which may befall the child while under the control of the wrongdoer, and that the questions of negligence and proximate cause cannot arise. The following Indiana cases are cited to sustain appellant's contention: Railroad Co. v. Beyerle, 110 Ind. 100, 11 N. E. 6; Railroad Co. v. Trimble, 8 Ind. App. 333, 35 N. E. 716. The facts in the case of Railroad Co. v. Beyerle, supra, were these: The railway company enticed the minor son of the plaintiff to enter its service as a brakeman; and while engaged in that service, in the discharge of his duties, he was killed. The father brought suit against the company for loss of the services of his minor son. Elliott, J., in pronouncing the opinion of the court, said: "The answers returned by the jury to the interrogatories very clearly show that the appellee's son was guilty of contributory negligence, and that there was no negligence on the part of the appellant. There can therefore be no recovery upon the ground that the negligence of the appellant was the cause of George Beyerle's death. If the recovery can be sustained, it must be upon the ground that the appellant was guilty of an actionable wrong in enticing the appellee's minor son to enter its employment." It is further said in the same opinion that, "where the child of the plaintiff is employed by. the defendant against the parents' consent, an action will undoubtedly lie to recover the value of his service. This is an old and familiar principle of the common law. Schouler, Dom. Rel. § 260; Bundy v. Dodson, 28 Ind. 295. This settled principle will certainly sustain a recovery for the value of the services of appellee's son from the time he entered the service of the appellant until his death, and, probably, when carried to its logical extent, it goes much further." And in the case of Railroad Co. v. Trimble, supra, this court, speaking by Lotz, J., said: "If one knowingly hire a minor, and require him to perform dangerous service in opposition to the parents' will, he will be liable to the parent if injury be fall such minor while engaged in such service. In such a case it is not a question of negligence that gives rise to the liability, but the wrong consists in opposing the will of the parent." The case of Railroad Co. v. Showers, 71 Ind. 451, is also cited by appel

lant in support of his contention that the question of negligence and proximate cause do not arise in such a case as this. In none of these cases can we find that the court has held that the question of proximate cause was eliminated by the fact that the minor was employed against the known wishes of the parent; but, on the contrary, the rule, as stated by Greenleaf (2 Greenl. Ev. § 256), that "the damage to be recovered must always be the natural and proximate consequence of the act complained of," has been followed uniformly in all courts of this state. Telegraph Co. v. Briscoe, 18 Ind. App. 22, 47 N. E. 473; Fuller v. Curtis, 100 Ind. 237; Cline v. Myers, 64 Ind. 304. The supreme court, in the case of Railroad Co. v. Showers, supra, in holding the complaint good which averred the wrongful employment over the objection of the complainant of his minor son, the death of the minor son while engaged in the service in which he was so employed, and the loss of the services of the said son, say: "We do not, of course, mean to say that any other damages than such as naturally and proximately result from the act complained of can be recovered, but what we do say is that a good statement of facts is not made bad by an improper claim for damages." The law is well stated as to how far a wrongdoer is responsible for his faults, in the case of City of Allegheny V. Zimmerman, 95 Pa. St. 295, where it is said: "One is responsible in damage for the consequences of his faults only so far as they are natural and proximate, and may therefore have been foreseen by ordinary forecast, and not for those arising from a conjunction of his own faults with circumstances of an extraordinary nature." We think the damages sustained by the appellant as the result of the debauchment of his daughter by appellee's son were remote, and were not the proximate result of the wrongful employment of appellant's daughter, and the lower court committed no error in striking from the complaint all that part of it which we have heretofore set out in this opinion.

The question of negligence not being involved in the cause, we are not called upon to approve or criticise the opinions from which we have quoted upon this question.

It is next contended by appellant's counsel that the lower court erred in sustaining appellee's motion for judgment on the special verdict. Several items of damages, amounting to the sum of $101.50, are found by the jury to have been suffered by appellant. One of these is shown by the following questions and answers: "Question 9. What was the value of the services of said Lauretta Stewart for the entire time she remained at the home of the defendant, Strong, as set out in your previous answers? Answer. $30. Question 10. State what, if anything, remains unpaid to plaintiff by reason of the services of said Lauretta Stewart while at 50 N.E.-7

the home of said defendant. Answer. Nothing." All the other items which go to make up the total as above stated grow out of the wrong done by the son of appellee, and were the direct result of the confinement and pregnancy of appellant's daughter, and cannot be considered. The item of $30, assessed by the jury in answer to question numbered 9, above set out, is found by the answer to the question numbered 10 to have been fully paid to appellant. The jury having failed to find that appellant was entitled to any damage by reason of his being deprived of the society and comfort of his minor daughter over his objection, the court could not have assessed more than nominal damages against appellee. This court will not reverse a judgment for failure to assess nominal damages. We find no error in the record. Judgment affirmed.

WARDER, BUSHNELL & GLESSNER CO. v. JACOBS.

(Supreme Court of Ohio. March 1, 1898.) APPEAL-IMPROPER REMARKS TO JURY-PRESUMP

TION.

1. It is an established rule of reviewing courts that the error for which a judgment may be reversed must affirmatively appear on the face of the record.

2. Where a record shows that improper remarks were made in his argument to the jury by the attorney of the prevailing party, but does not show whether the court reproved the attorney or directed the jury to disregard the remarks, nor is the evidence presented to the court for review, in such case a reviewing court is not warranted in reversing the judgment entered upon the verdict, however improper the remarks may have been. The presumption in such case is that the court performed its duty and that the evidence sustained the verdict. (Syllabus by the Court.)

Error to circuit court, Hardin county.

Action by Treca A. Jacobs against the Warder, Bushnell & Glessner Company. A judgment for plaintiff was affirmed on appeal in the circuit court, and defendant brings erAffirmed.

ror.

Johnson & Johnson, for plaintiff in error. George Jameson, for defendant in error.

MINSHALL, J. The action below was a suit brought by Treca A. Jacobs against the defendant, Warder, Bushnell & Glessner Company, to recover the possession of certain personal property that had been taken in execution on a judgment that had been rendered in their favor against the husband of the plaintiff, the wife claiming to be the owner of the property. The attorney for the plaintiff, in the course of his argument to the jury as shown by the record, used the following language: "Gentlemen: The plaintiff is a poor woman. Your verdict against her will mean much, very much; but to the defendants, with all their wealth, residing in their magnificent castles in the city of Sprinfield, a verdict against them does not hurt

them,"-to which remarks, as the record says, the defendants "then and there objected and excepted." This is all the record discloses in regard to the matter, other than that, after a verdict for the plaintiff, a motion for a new trial was made on this among other grounds, which was overruled by the court, and judgment rendered on the verdict. A bill of exceptions was taken and made a part of the record, showing the matters above stated. It also contained the evidence given at the trial; but, as nothing is claimed from the evidence, it has been omitted in the printing of the record. The judgment was affirmed on error by the circuit court. The only ground for a reversal relied on in this court is the misconduct of plaintiff's counsel in using the words to the jury above stated. Certainly these remarks were of the most reprehensible character, and it is a matter of some surprise that counsel should so far forget himself in argument to the jury as to commit such a breach of his privilege as is shown by the words used in this case. No heat of argument nor zeal for his client, can be admitted as a palliation of such an offense against the fair administration of justice. But the question arises whether, upon this record, anything appears from which this court can say there is error in the judgment for which it should be reversed. It is a settled principle of practice in all reviewing courts that the error for which a judgment may be reversed must affirmatively appear on the face of the record. From the record before us it simply appears that these observations were made by counsel for the plaintiff to the jury. and that counsel for the defendant then and there "objected and excepted." From this we readily infer that counsel "objected" to the remarks of the opposing counsel, as he had an undoubted right to do. But to what did he "except." An exception is not to the act of a party, but to that of a court in ruling on an objection. What the court did in this matter is not disclosed by the record. The court may at once have reproved the counsel and instructed the jury, in the most positive terms, not to regard the remarks of counsel in arriving at their verdict. To this the defendant could not have excepted, or, if he did, the exception would be unreasonable and of no avail. the court took no notice of the objection, or overruled it, then the defendant might reasonably have excepted, and such action of the court would have been a clear ground of error, for which the judgment should be reversed. But, inasmuch as the record is silent as to what the court did, we are not permitted to assume that it did what it should not have done. On the contrary, the only presumption we are permitted to make, in such case, is that the court performed its duty in the premises,-reproved the counsel and properly instructed the jury at the time. If he did not, and a review of its action is desired, the party excepting must cause the

If

record to show what the ruling of the court was; otherwise it cannot be said to affirmatively appear that the court committed error.

But it is argued that, the language used being in the nature of misconduct of the prevailing party, no objection or exception was required at the time the offense was committed. Admit this to be true, it does not dispense with the necessity of the record showing what was done at the time or afterwards by the court. If no notice was taken of the remarks by the court on objection of the defeated party, to make a case for review, the record should show this fact to constitute error.

The evidence is not before us, so that the question presented is whether, where a record shows that improper remarks were made by counsel of the prevailing party, to which objection was made at the time, but does not show the ruling of the court, should the verdict and judgment thereon be set aside and reversed as a matter of course? We think not; for, in such case, for aught that appears, the court severely reproved the remarks of counsel, directed the jury not to regard them, and the evidence may show a clear case for a recovery on the part of the prevailing party, notwithstanding the offense of his counsel. As much as we reprehend such practice in counsel, we are not prepared to say that the use of such language may not be so far corrected by the court by the reproof of counsel and instruction to the jury, as, in a clear case upon the evidence, to warrant the court trying the case to sustain the verdict rendered. A number of cases have been cited by counsel for plaintiff in error; but none of them, nor do we know of any that would, warrant the court in reversing the judgment in this case on the state of the record. We will notice those most confidently relied on. In Tucker v. Henniker, 41 N. H. 317, the court had permitted counsel for the plaintiff to comment on facts not in evidence. This was shown by the record, and the judgment was properly reversed by the supreme court. In Coble v. Coble, 79 N. C. 589, counsel for the plaintiff had severely denounced the character of the defendant without any evidence having been introduced with respect to his character. The judge delivering the opinion says: "The defendant's counsel interposed his objection in apt time and upon the instant, but they met with no response from the court;" and for this reason the judgment was reversed and a new trial awarded. In Willis v. McNeill, 57 Tex. 465, the court permitted defendant's attorney to discuss the wealth of the plaintiff as relevant to the damages that should be awarded, and this was held to be error. In Kinnaman v. Kinnaman, 71 Ind. 417, the court trying the case granted a new trial for remarks made by counsel in his closing argument, though no objection was interposed by opposite counsel at the time. This was assigned for er