
    Elizabeth Gutzwilder v. Adam Wagner.
    [Abstract Kentucky Law Reporter, Vol. 3-470.]
    Error in Instruction a Ground for New Trial.
    The error of the court in giving an erroneous instruction to the jury, not assigned as a ground for a new trial, can not be raised for the first time on appeal. The Court of Appeals will not pass upon such error.
    APPEAL FROM CAMPBELL CIRCUIT COURT.
    
      E. W. Hawkins, for appellant.
    
    
      F. M. Webster, for appellee.
    
    December 8, 1881.
   Opinion by

Judge Lewis :

We think the notice given by the surety in this case sufficiently explicit and definite, and service upon the plaintiff, or the delivery of it to her at the place and under the circumstances, was sufficient.

We perceive no error except the instructions given by the court. It is not sufficient to give the notice more than ten days before the court begins. Such is not the language nor meaning of the law. The notice should be given in time to enable the plaintiff to obtain judgment at the next term after notice is given. But the error of the court below in giving the improper instruction was not made a ground of the motion for a new1 trial, and hence can not be passed upon by this court.

The judgment therefore must be affirmed.  