ABSTRACTS OF CASES

IN THE

COURT OF APPEALS AND SUPERIOR COURT

Not to be reported in full-Alphabetically arranged according to their subject-matters, with brief references to the foregoing Cases reported in full, making an In

dex to the whole number.

Advancements

1. A father made advancements by deed to all his children, reserving to himself the use of the lands conveyed during his natural life, and providing that upon his death the portion conveyed to each child should be appraised, and those of the grantees “receiving more than an equal part to pay to those not receiving so much as much as will make them equal." The grantor by his will, subsequently executed, directed an equal division of his property among his children, and provided that no gift of money or property to any of his children should be charged as an advancement.

Held-That the testator intended by his will to direct an equal division of only such property as he might own at his death, and could not have had reference to the property previously conveyed to his children, which they took under the deed upon the terms and conditions specified therein, and neither the property so conveyed nor the money required by the deed to be paid to equalize the grantees can be charged as advancePalmer's Ex'or v. Turner, &c. June 5, 1884. Bourbon Cir. Ct. Opin. by Hargis, Ch. J., Ct. Ap., rev., Lewis, J., dissenting. Chas. Offutt for appellant; Brent & McMillan for appellees. Criminal Law-See Evidence, 1, 2

ments.

1. Homicide-Surgical operation -Where a wound is calculated to produce death and a surgical operation is performed at the instance of competent physicians, when in their opinion it becomes necessary and the patient dies, the party inflicting the wound is responsible criminally for the act, although the operation may have been the immediate cause of the death.

2. Instruction as to self-defense-The court erred in this case in failing to give an instruction as to self-defense, to which the defendant was entitled under the proof, and for that error the judgment is reversed. Osborn v. Commonwealth. June 7, 1884. Menifee Cir. Ct. Opin. by Pryor, J.. Ct. Ap., rev. Tom Turner & Son and A. T. Wood for appellant; P. W. Hardin for appellee.

Devises

1. Death of devisee before testator-Indebtedness to estate-A testator, after making specific devises of real estate to his children by his will, directed an equal division of his personalty among his three children. A codicil made after the death of one of the devisees provided that his children should take the same interest their father would have taken.

Held-That the children of the deceased devisee, taking under the will, occupy no better attitude than their father would have occupied, and in the distribution of the personalty should be charged with the indebtedness of their father to the estate. Hummer, Gd'n v. Orndorff's Ex'or. June 3, 1884. Logan Cir. Ct. Opin. by Hines, J., Ct. Ap., aff. W. F. Browder and Geo. B. Edwards for appellant; A. G. Rhea for appellee.

Dogs-See Master and Servant, 1.

Evidence-See Pleading, etc., in Crim. Cases, 7, 8, 9

1. Manslaughter-While it was competent to show upon the trial of appellant for manslaughter that the difficulty was avoided instead of being sought by him, the court properly refused to allow a witness to say what he thought as to the movements of the deceased just before the latter and appellant met at the moment the killing occurred, as his thoughts were not communicated to appellant and could not have influenced his movements.

2. It was not improper to allow the Commonwealth to show that the person of the deceased was examined while he was asleep just before the killing, and just after a difficulty between him and appellant, and that he had no deadly weapon. Mays v. Commonwealth. June 19, 1884. Whitley Cir. Ct. Opinion by Lewis, J., Ct. Ap., aff. S. Golden and James D. Black for appellant; P. W. Hardin for appellee.

Experts-See Pleading, etc., in Crim. Cases, 5.

Frauds, Statute of

1. Parol contract for right of way-The mere evidence of a parol contract giving a right of way over land will not authorize its enforcement, and where there is no consideration for such a contract equity does not require that the owner of the land, upon revoking the grant, should restore to the party claiming the easement the amount expended by him in erecting fences and gates for his own convenience. Goodwin v. Crider. June 5, 1884. Oldham Cir. Ct. Opin. by Pryor, J., Ct. Ap., aff. W. Lindsay, Rodman & Brown, Carroll & Barbour and Joseph Clore for appellant; Robbins & McIntyre and J. S. Morris for appellee. Instruction-See Pleading, etc., in Crim. Cases, 2, 3, 6.

Insurance

1. Application-False statement-No statement, whether true or false, contained in the application for life insurance in this case can operate to avoid the policy unless it was material to the risk, the terms of the application and policy being similar to those of the application and policy in the case of the German Insurance Co. v. Rudwig, &c., 80 Ky., 223.

2. The court properly refused to submit to the jury the question as to whether the applicant had a certain disease prior to the date of the application, and properly limited the question to the time of the application, the disease not being inheritable or transmissible.

3. Evidence of disease-The opinion of a party that he has a certain disease is of no more value than the opinion of any other unskilled witness, and does not belong to that class of exclamations and complaints which ac company and describe present pain and malady, and for this reason the court properly excluded evidence of such expressions of opinion by the applicant, as well as for the reason that they were made long prior to the application, when the company had no interest in their subject

matter.

4. Judgment for interest - The prayer of the petition for judgment for the amount of the policy and interest thereon authorized a judgment for the aggregate sum of the principal and interest to the date of the judgment, with interest on the whole from that date. Conn. Mut. Life Ins. Co. Moss, &c. June 7, 1884. Jeff. Ct. Com. Pleas. Opin. by Hargis, Ch. J., Ct. Ap., aff. Bullock & Anderson for appellant; Isaac Caldwell and Jno. Russell for appellees.

Interest-See Insurance, 4.

Judgments

1.. Infancy as a ground to vacate-Where the right to have a judgment vacated is based primarily upon the fact that the parties seeking to have it vacated were infants at the time the judgment was rendered, the action to vacate must be commenced within twelve months after the plaintiff has attained the age of 21 years, and the fact that some of the plaintiffs are still within the statutory limit will be no protection to those who have allowed the time to elap se. The petition itself must show the right of the plaintiff to prosecute the action by alleging facts showing that the action is brought within the time prescribed.

2. Appeal-Where the error in a judgment against an infant appears on the face of the record it can be corrected only by an appeal. Figg, &c. Richardson, &c. May 30, 1884. Louisville Chancery Ct. Opin. Burnett & Burnett, Jno. Williams and

V

by Richards, J., Sup. Ct., aff.

Jno. Stites for appella nts; S. B. Richardson for appellees.

Limitatio n-See Judgments, 1

1. Guardian and Ward-The statute of limitation rurs against a guardian as to a cause of action upon a contract made with him for the benefit of his wards just as against any other person, and he is not protected by the infancy of his wards. Hummer, Gd'n v Orndorff's Ex'or. June 3, 1884. Logan Cir. Ct. Opin. by Hines, J.. Ct. Ap.. aff. W. F. Browder and Geo. B. Edwards for appellant; A. G. Rhea for appellee.

Master and Servant

1. Injuries done by dog of servant-Under the statute which provides that "every person owning, having or keeping any dog shall be liable to the party injured for all damages done by such dog provided,” etc., only the person who has the dog in his possession, whether rightfully or wrongJuly, 1884-4

fully, is liable therefor; the owner of premises can not be held liable for injuries done by a dog, over which he had no personal control, merely because his servant, owning and controlling the dog, brought it with him to remain, for his convenience or company, during his hours of work. The appellee was bit at appellant's theater by a dog owned and kept there with appellant's knowledge, and without objection on his part, by a person employed by him to watch his theater. Held - That appellant, having no actual control over the dog, is not liable for the injuries to appellee. Whallen V Wetzell. June 16, 1854. Louisville Chancery Ct. Opin. by Bowden, J., Sup. Ct., rev. Kohn & Barker, and A. Duvall for appellant; O Neal & Chatterson for appellee.

Pleading and Practice in Criminal Cases

1. Misconduct in argument - Alleged misconduct of the Commonwealth's attorney in his argument to the jury can not be considered, as there was no objection at the time the argument was being made.

2. Instructions-All the instructions given should be considered together, as an omission in one may be supplied by another.

3. Instruction as to self-defense-Upon the trial of appellant for manslaughter his right to stand and defend himself, if he believed the deceased struck him with intent to take his life or inflict great bodily harm, was secured by an instruction to the jury to find him guilty if they believed he "had a safe way of retreat and escape, and there was not any immediate impending danger, real or apparent, to his life or great bodily harm, at the hands of the deceased." Sugg v. Commonwealth. May 31, 1881. Henderson Cir. Ct. Opin. by Lewis, J., Ct. Ap., aff. C. C. Ball and Yeaman & Lockett for appellant. P. W. Hardin for appellee.

4. Erroneous instruction It was error to instruct the jury that if they believed any witness had testified to that which he knew to be untrue they had a right to disregard his entire testimony. Jump v. Commonwealth. May 31, 1884. Grant Cir. Ct. Opin. by Pryor, J., Ct. Ap., rev. W. W. Dickerson for appellant; P. W. Hardin for appellee. 5. Continuance -The court did not abuse its discretion in refusing to grant the defendant a continuance because of the absence of two physicians, who were summoned to testify as experts in surgery, but left the State before the trial and before the defendant had an opportunity to have their depositions taken, as it was not shown that other physicians of equal skill and experience in surgery might not have been summoned in time to have witnessed the trial and testified as experts, and as two other physicians did in fact testify as experts on behalf of the defendant, so that at most the evidence of the absent witnesses would have been cumulative only.

6. Objections and exceptions-A reversal can not be had because of an instruction to which there was no objection or exception.

7. Contradiction of witness-Evidence is not admissible to contradict a witness as to a collateral fact to which he has testified on cross-examination.

8. Res gestae-A statement made by the mother of the deceased in the afternoon of the day of the shooting and "a short time after the shooting.' was not near enough in time to be admissible as a part of the res gestae.

9. Contradiction of witness-A witness being dead at the time her deposi

tion was offered evidence of statements made by her contradictory of the statements in her deposition was not competent, as he had not been inquired of concerning the contradictory statements. Bush v. Commonwealth. June 3, 1884. Fayette Cir.Ct. Opin. by Hines, J., Ct. Ap., aff W. P. Tarleton and Jno. R. Allen for appellant; P. W. Hardin for appellee. Practice in Civil Cases

1. Plea of former adjudication - Absence of evidence-As the schedule orders a complete transcript of the record and the clerk's certificate is that the record is complete, and there is nothing in it even tending to sustain the defendant's plea of former adjudication, which the plaintiff traversed, the judgment is reversed. Kirtley, &c. v. Higdon, June 4, 1884. Edmonson Cir. Ct. Opin. by Bowden, J., Sup. Ct., rev P. F. Edwards for appellants; D. W. Wright for appellees.

&c.

Self-defense-See Crim. Law, 2; Evidence, 1, 2; Pleading, etc., in Crim. Cases, 2, 3.

1. The accused having stabbed the deceased, not in self-defense, had no right, when knocked down by him, to take his life simply because the deceased was upon him pounding him with his fists, and. the court properly refused to instruct the jury to that effect. Middleton v. Commonwealth. June 7, 1884. Jeff. Cir Ct. Opin. by Pryor, J., Ct. Ap., aff Whittaker & Parsons for appellant; P. W. Hardin for appellee.