being, at the time of such allowance, a member and the presiding officer of such board. An appeal was duly perfected to the circuit court from the order of allowance. In the circuit court a motion was made to dismiss the appeal. This was overruled. Such further proceedings were had as resulted in the dismissal of the claimant's suit by the circuit court, at the appellant's costs. From this an appeal is prosecuted. The case is in no way distinguishable from Waymire v. Powell, ante, 886, (decided at the present term,) and upon the authority of that case the judgment of the circuit court is affirmed, with costs.

NOTE.

In the case of Waymire v. Powell, referred to in the principal opinion, and since reported, ante, 886, it was held that a board of county commissioners cannot lawfully make an allowance to one of its members for extra services, voluntarily performed, even though of an official character, if no right to compensation therefor is given by statute. It was also held that an appeal would lie from such allowance.

The rule seems to be that when legal rights are involved, or the decision of the board is of a judicial nature, and not concerning a matter left by law entirely to their discretion, an appeal will lie from their action. See Grusenmeyer v. City of Logansport, 76 Ind. 549; Sims v. Board, etc., 39 Ind. 40; Platter v. Board, (Ind.) 2 N. E. Rep. 544. So mandamus will lie against a board of county commissioners, in proper cases, to compel them to act, but not to control their legal discretion. State v. County Board, (Neb.)‍25 N. W. Rep. 587. See, also, Brown v. Kramer, Id. 356.

It is well settled that county boards can, as a rule, only exercise such powers as are given them by statute, State v. Commissioners, etc., (Neb.) 25 N. W. Rep. 91; Walsh v. Rogers, (Neb.) 18 N. W. Rep. 135; and that where the duties and compensation of a public officer are fixed by statute he is, as a general rule, entitled to no other compensation for services incident to his office, Freeholders of Morris Co. v. Freeman, 44 Ñ. J. Law, 631; Board of Com'rs v. Gresham, 101 Ind. 53; Atchison Co. v. Tomlinson, 9 Kan. 167; and one claiming compensation for services rendered to a county must show a legal contract, or a statutory provision for such services. Moon v. Board of Com'rs, 97 Ind. 176.

It is said in Bayha v. Webster Co., (Neb.) 24 N. W. Rep. 457, that a public officer must discharge all the duties pertaining to his office for the compensation allowed by law, and will not be allowed compensation for extra work unless it is authorized by statute. By the provisions of the Indiana statute compensation may be allowed for services voluntarily performed in certain cases; but public policy forbids that a board of county commissioners should allow one of its own members therefor. See Stropes v. Board of Com'rs, 72 Ind. 42; Kinyon v. Duchene, 21 Mich. 498; People v. Overyssel, 11 Mich. 222. But it is held that a county commissioner is entitled to be reimbursed for expenses incurred by him for the county in the sale of shoes manufactured in the county house of correction. County of Bristol v. Gray, (Mass.) 2 N. E. Rep. 789.

It is said in Vandercook v. Williams, Treasurer, etc., (Ind.) 1 N. E. Rep. 619, that the law will not tolerate the employment of a public officer to discharge his plain official duty at a compensation other or different from or in addition to the compensation given him by law for his official services, especially so where the amount of such additional compensation is by contract made to depend upon the exercise of his individual judgment in the discharge of his official duty.

(105 Ind. 109)

HOUSE v. ALEXANDER. 1

1. INFANTS-CONTRACT.

Filed February 12, 1886.

An infant may avoid a contract entered into by him, and, upon restoration of the property received, recover the consideration paid for it

2. SAME-NECESSARIES.

Articles purchased for business purposes, agricultural or commercial, are not necessaries.

8. SAME-HORSES.

The general rule is that horses are not necessaries

Rehearing denied

In a case where the infant tenders back the property received by him, and, upon refusal of his tender, brings suit, the mere retention of the property after arrival at majority cannot be deemed a ratification.

5. TENDER-REFUSAL SUBSEQUENT TENDER.

Where property is tendered to a party on the highway, and he refuses it, assigning for the refusal a reason which shows that a tender at his house would be fruitless, no further tender is required.

Appeal from Decatur circuit court.

J. S. Scobey, for appellant.

Miller & Gavin, for appellee.

ELLIOTT, J. The first paragraph of the appellee's complaint alleges that he is an infant; that he bought of the defendant a horse, for which he paid $150; that he tendered back the horse to the defendant, and demanded the return of his money; that the purchase of the horse was not for his benefit. Prayer for a rescission of the contract, and the recovery of the money paid.

In support of the attack upon this paragraph of the complaint, appellant's counsel quote from 1 Pars. Cont. 322, the following:

"If an infant advances money on a voidable contract which he afterwards rescinds, he cannot recover the money back, because it is lost to him by his own act, and the privilege of infancy does not extend so far as to restore this money, unless it was obtained by fraud."

This is not and never was the law. In Shurtleff v. Millard, 12 R. I. 272, S. C. 34 Amer. Rep. 640, the court expressly repudiated Mr. Parson's statement, saying:

"He cites no authority. The doctrine so broadly laid down has been over uled by later authorities, and this passage has been condemned in Robinson v. Weeks, 56 Me. 102-104. Still the last edition of the text-book takes no notice of the fact." 1 Whart. Cont. § 47; Sparman v. Keim, 83 N. Y. 245; Cooper v. Allport, 10 Daly, 352; Carpenter v. Carpenter, 45 Ind. 142; White v. Branch, 51 Ind. 210; Dill v. Bowen, 54 Ind. 206; Indianapolis, etc., Co. v. Wilcox, 59 Ind. 429; Ayers v. Burns, 87 Ind. 245.

There is some conflict in the authorities as to whether an infant may avoid a contract, and recover the money paid upon it, without returning the property received by him, but there is no substantial difference upon the proposition that where he tenders back ail that he receives, and seeks a recovery of the money paid by him, he is entitled to recover it. Our cases, beginning as far back at least as Miles v. Lingerman, 24 Ind. 385, hold that there may be a recovery, although the property received is not restored; but in this instance our decision stops far short of that, for here the contract was not for the infant's benefit, and he offers to restore the property received.

The theory of the third paragraph of the appellant's answer is that the horse bought of him was a necessary, for the reason that the appellee was engaged in farming, and needed the horse in order to successfully carry on his business. This theory is unsound. The law does not encourage persons to engage in business during nonage, but, on the contrary, its policy is to keep infants from engaging in business until they

have attained full age, and upon this ground it is uniformly held that articles purchased for business purposes, whether that of agriculture or commerce, cannot be deemed necessaries. This is the law, as the courts declare, even though the infant depends upon his business for support. Lowe v. Griffith, 1 Scott, 458; Latt v. Booth, 3 C. & K. 292; Mason v. Wright, 13 Metc. 308; Merriam v. Cunningham, 11 Cush. 40; Decell v. Lewenthal, 57 Miss. 331; Grace v. Hale, 21 Tenn. 28; 1 Rol. Abr. 729; 2 Cro. 494. Horses are not necessaries. The court affirmed this general rule in Price v. Sanders, 60 Ind. 30, saying: "But it has been pithily and happily said that necessaries do not include horses, saddles, liquors, bridles, pistols, powder, whips, and fiddles." A verdict awarding compensation against an infant for the hire of horses and gigs was set aside, in Harrison v. Fane, 1 Man. & G. 550, as perverse. In Wharton v. MacKenzie, 5 Q. B. 606, COLERIDGE, J., very strongly declares that horses are not necessaries. The case of Hart v. Prater, 1 Jur. 623, cannot be justly considered as an exception to the general rule, for, although it was there held that a horse was a necessary, it was so because the infant had been directed to use one by his medical adviser, Sir Benjamin Budie. In such a case as that, it may well be that a horse is a necessary, in the same sense that medicine and medical services are necessaries.

We need not discuss the fourth, fifth, and sixth paragraphs of the answer in detail, for what we have said disposes of the legal questions arising upon them.

The seventh paragraph of the answer alleges that the appellee ratified the contract after he became of age, but the facts stated do not sustain the conclusion of the pleader, and it is by the facts, and not upon the conclusion, that the sufficiency of the answer must be determined. The complaint avers that the appellee had disaffirmed the contract, had offered to restore the property, and had demanded the consideration paid for it, so that a mere retention and use of it after he attained majority cannot be deemed a ratification. We think it perfectly clear that, after an infant has done all in his power to secure a rescission, and has brought suit to rescind the contract, he cannot be held to have ratified the contract because the property is still retained by him. What more he could do to evidence his repudiation of the contract, or what more he could legally do towards putting it into the possession of the seller, we are at a loss to conjecture. No objections to the testimony condemned by a general assertion are pointed out, and well-settled rules forbid us from searching for them. If counsel expect to have objections considered, they must specifically state in their brief what they are. Sixteen days after the purchase of the horse, the appellee took it, and started to the appellant's house, but met the latter on the highway some distance from his house. What occurred at that time is thus described by the appellee:

"I told Mr. House I had brought the horse back. He was not what I bought him for, nor what he represented him to be. I told him I wanted my money back. He said he would not give it. I got out and held the horse. Mr. House looked at the horse. He was a-foot, driving hogs. He said he would not take him. He said something about the horse being abused. "

This evidence shows that the acts of the defendant excused a further tender, for it is settled law that where a tender is made, and a reason is given for its rejection which shows that a further tender would be fruitless, none other need be made. Hanna v. Phelps, 7 Ind. 21; Etna Ins. Co. v. Shryer, 85 Ind. 362, see page 368.

Conceding, but not deciding, that a tender was necessary, the evidence shows that a sufficient one was made. Judgment affirmed.

(105 Ind. 324)

MCNEELY and others v. HOLLIDAY.

Filed February 12, 1886.

1. APPEAL-MUST BE FROM SPECIAL TO GENERAL TERM OF SUPERIOR COURT, THEN TO SUPREME COURT.

No appeal lies directly from the Marion superior court in special term to the supreme court, unless for some reason the judges of the general term are shown to be incompetent to sit in the case.

2. SAME-BILL OF EXCEPTIONS-EVIDENCE MISSING.

Where a bill of exceptions shows affirmatively on its face that it does not contain all the evidence, the supreme court will not consider any question that depends, for its proper decision, on the sufficiency of the evidence.

Appeal from Marion superior court.

R. D. Logan, for appellant.

Sullivan & Jones, for appellee.

Howk, J. It is shown by the record of this cause that on the eighteenth day of October, 1884, in the court below, at special term, in an action then and there pending, the appellee, Lucy R. Holliday, as sole plaintiff, recovered a judgment and decree against Catherine D. McNeely, James H. McNeely, and John H. McNeely, as defendants, for the amount due on certain notes, and for the foreclosure of a mortgage on real estate given to secure such notes. It is further shown that on the same day Catherine D. McNeely alone filed a motion for a new trial, which was then and there overruled by the court, and that she alone, on the seventeenth day of November, 1884, appealed from the judgment at special term, and assigned errors in general term. The record further shows that on the eighth day of January, 1885, the judgment of the court at special term was affirmed by the court in general term. On the seventh day of January, 1886, on the last day of the year in which an appeal could be taken from the judgment herein of the court below in general term to this court, the defendants, Catherine D. McNeely, John H. McNeely, and James H. McNeely, jointly filed a certified transcript of the record and proceedings in such suit, in the office of the clerk of the supreme court, as and for an appeal herein, and on such transcript they separately assigned, as error, that the court in general term erred in affirming the judgment of the court at special term.

It is clear, we think, that appellants, James H. McNeely and John H. McNeely, have no standing in this court. They did not appeal from

the judgment of the court below at special term to the general term of such court. Therefore they were not parties to the judgment of the court in general term, and of course cannot prosecute an appeal from that judgment to or in this court. They cannot prosecute this appeal as an appeal from the judgment of the court at special term, because, under section 1362, Rev. St. 1881, no appeal will lie from the judgment of the court at special term directly to this court, except where some of the judges of the general term are shown to be incompetent, which is not shown in this case. Beineke v. Wurgler, 77 Ind. 468; Leary v. Smith, 81 Ind. 90. Even if the case in hand were one in which an appeal might have been taken from the judgment of the court at special term directly to this court, it is clear that the pending appeal could not be maintained by appellants James H. and John H. McNeely, because, as we have seen, this appeal was not perfected by them within one year after the rendition of that judgment. As to them, therefore, this appeal must be and is dismissed, at their costs.

Catherine D. McNeely had the right, of course, to appeal from the judgment of the general term against her to this court, at any time within one year from the rendition of the judgment, and she perfected her appeal within the year. By a proper assignment of error here, she has brought before us the same errors of which she complained in general term. The questions discussed by her learned counsel, in his brief of this cause, are such only as arise under the alleged error of the trial court in overruling her motion for a new trial. The other errors assigned by her in general term must therefore be considered as waived. The only question discussed by her counsel is the alleged insufficiency of the evidence to sustain the finding of the trial court. The bill of exceptions appearing in the record shows affirmatively on its face that it does not, and never did, contain all the evidence given on the trial or hearing of this cause. It is certified by the learned judge who heard the cause that the evidence in the bill of exceptions, and certain other evidence attached to the bill, was all the evidence given on the trial of the cause. This other evidence, which was manifestly material to the questions discussed by counsel, has become detached from the bill of exceptions in some way not accounted for, and is not to be found in the record before us. In this state of the record, we must decline, as we have often held, to consider or decide any question which depends for its proper decision upon the weight or sufficiency of the evidence. French v. State, 81 Ind. 151; Fellenzer v. Van Valzah, 95 Ind. 128; Collins v. Collins, 100 Ind. 266.

Besides, upon the questions discussed by appellant's counsel, the evidence appearing in the record is conflicting; and of course, in such a case, this court will not disturb the finding, or reverse the judgment, upon what might seem to be the weight of evidence. Cornelius v. Coughlin, 86 Ind. 461; Fitzgerald v. Goff, 99 Ind. 28, and cases cited. The judgment, as to Catherine D. McNeely, is affirmed, with costs.