bond was executed, as the record is silent DIXON v. MELTON, Sheriff. 1910.) upon the subject. There might be some merit in this contention if the bond were required (Court of Appeals of Kentucky. March 18, to be executed to the defendant without any action being taken thereon by the court. The Code, however, provides for the execution of such bond, with good surety approved by the court. We, therefore, conclude that it should affirmatively appear from the record that such bond was given and approved by the court. As there is nothing in the petition going to show that appellant indicated, by writing, his intention to be bound in any other capacity, we conclude that he was bound on the note in question as an indorser. Negotiable Instruments Act (Laws 1904, c. 102) § 63. As no facts are alleged in the petition going to show that appellant falls within any of the exceptions to the rule requiring presentment and notice of dishonor, we conclude that he was entitled to presentment and notice of dishonor. That being true, the question arises: Is the allegation of the petition sufficient upon this point? It will be observed that the allegation of the petition is as follows: "Plaintiff states that upon the maturity of the said note, same was duly presented for payment, and payment thereof demanded but refused, and the defendant, R. Hoyland, duly notified of the nonpayment of the same, and payment demanded of him, which has been refused." The allegation that upon the maturity of the said note same was duly presented for payment might apply to any other time than the day of the maturity of the note. There is nothing in the petition showing when the notice of dishonor was given to appellant; the allegation, that it was duly given, is simply a conclusion of the pleader. While it is true that, as to the obligor or promisor in ordinary contracts, or the maker of a promissory note, or acceptor of a bill of exchange, time seldom becomes a material question in considering their liability, such is not the rule in regard to the drawer of a bill, or the indorser of a note. In the latter case it becomes material to show, not only the demand and notice, but the precise day when made and given; in other words, the allegation and the evidence must show the demand and notice to have been upon such a day as will charge the defendant. Bliss on Code Pleading, § 283. The allegation, that presentment was duly made, or that notice of dishonor was duly given, was not sufficient. We therefore conclude that the petition is defective in these particulars. Being of the opinion that the court erred in overruling appellant's demurrer to the petition, and in giving judgment against him before the indemnifying bond required by section 7 of the Civil Code of Practice was furnished and approved by the court, the judgment is reversed and cause remanded for proceedings consistent herewith. 1. JUDGMENT (§ 246*)-SUFFICIENCY OF SUMMONS TO SUPPORT-VARIANCE IN NAME. sufficient to support a judgment against "Sue A summons against "Miss Sue Dixon" is R. Dixon"; it having been served, and there being no showing that the one was not the same person as the other, or that any prejudice result ed from the variance. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 432; Dec. Dig. § 246.*] 2. JUDGMENT (§ 521*)-COLLATERAL ATTACK— DISQUALIFICATION OF JUDGE. One desiring to attack in a suit for injunc- Cent. Dig. § 964; Dec. Dig. § 521.*] 3. APPEAL AND ERROR (§ 909*)-PRESUMPTION. In the absence of the records of the county court in assessment proceedings, it will be assumed on appeal, in a suit to enjoin collection, that its reduction of an assessment made by it was regularly and properly made. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 909.*] 4. APPEAL AND ERROR (§ 934*)-PRESUMPTION. It will be assumed, on appeal in a suit to enjoin an assessment made by the county court, that had all its record been brought up it would uphold the assessment against "Susie" Dixon as one against "Miss Sue" Dixon, in which name the summons issued. CARROLL, J. This action was brought by the appellant to enjoin the appellee sheriff from collecting an assessment of $128.70, levied against her land in a proceeding under chapter 76, art. 8, of the Kentucky Statutes (Russell's St. §§ 4455-4511), relating to the drainage of lands. The petition avers that the appellant was never served with process and had no notice of the assessment against her, and, further, that the court making the assessment had no jurisdiction over appellant or her property. In the answer the defendant averred, in substance: That in April, 1901, a petition was filed in the Henderson county court asking that court to establish a public ditch. That viewers were appointed to assess the property that would be benefited by the ditch and to report an estimate of the cost and an apportionment of the work among those whose lands were benefited by it. That after the viewers made their re port to the county court a summons was is- some of the remonstrators from liability sued directing the sheriff to summon all per- therefor. This judgment was certified to the sons whose lands were assessed for the con- county court, and a judgment entered by struction of the ditch, and among the per- Hart, judge, in compliance with the judgment sons so summoned was the appellant, Sue R. of the circuit court. The judgment in the Dixon. That certain persons filed remon- county court reads: "This cause coming on strances and had reviewers appointed to re- to be heard upon the final report of the review the work of the viewers who made viewers, and the court, being sufficiently ad- " their report to the county court, but that ap-vised, does adjudge that same be, and it pellant, although duly summoned, made no is hereby, approved and confirmed. It is remonstrance against the reviewer's report further ordered that the persons whose propor objection to its confirmation. That the erty was assessed for the construction shall court, having the parties in interest before pay their proportion of the costs of the proit, entered a judgment establishing the ditch | ceedings on or before July 1, 1907." The appellant, who was the only witness introduced, merely testified that no summons had been executed upon her in the ditch proceedings, and that she did not know anything about them. and apportioning the cost among the landowners benefited thereby, and entered an order directing the cost to be paid by the 1st day of August, 1907. That among the persons so ordered to pay was the appellant, and, upon her failure to pay, a warrant for The argument that no summons was ex$128.70 was placed in the hands of the sher- ecuted upon appellant is rested upon the iff for collection. To this answer a reply proposition that as the full name of appelwas filed controverting its material allega-lant as given by her in her deposition is "Sue tions. Reeve Dixon," and the summonses were issued against and executed upon "Miss Sue Dixon" and "Susie Dixon," therefore it should be determined that no summons was executed upon her. It is not denied that there was a A very imperfect and partial transcript of the proceedings in the county court appears as a part of the record; but we find from it that an order was entered on April 22, 1901, in ditch book No. 2 of the Hender-proceeding in the county court for the purson county court, in what is known as the pose of assessing the land of Miss Sue DixSellars' Ditch Case, "reciting the fact that on, or that she was a party to this proceedHenry Korff, Joseph C. Dixon, and others ing, or that there was a judgment establishfiled their petition praying for the appoint-ing the ditch, or that her land was in fact ment of viewers of the line of a proposed ditch known as Sellars' ditch, and reciting the course of said ditch and the acres of land affected thereby, and that said petition was ordered filed, and it was adjudged by the court that the construction of the ditch would conduce to the public health, convenience, and welfare, and would be a public benefit and utility, and appointed viewers to view and report thereon as provided by the statute for the drainage of lands." It further appears that on this petition a summons in regular form was issued on March 8, 1904, against "Miss Sue Dixon" and other defendants, and was executed March 26, 1904, on the several defendants, including "Miss Sue Dixon," by delivering to each of them a true copy. Again on May 25, 1905, another summons, regular in form, was issued against "Susie Dixon" and others, which was executed in full on May 31, 1905. The record also as Sue Dixon. In American & English Enshows that J. H. Hart, judge of the Hender-cyclopædia of Pleading & Practice, vol. 14, son county court, presided when the petition | p. 301, the editor states: "The weight of auwas filed and the order before mentioned thority, however, is that if a party who is entered. But it appears that on March 26, intended to be sued is served with process 1906, Hart retired as county judge because in which he is incorrectly designated, he he was interested in the proceeding, and must appear and object to the misnomer; thereupon M. C. Givens was elected by the otherwise the judgment is good and he will parties special judge to hear the exceptions be bound by it." In Newman's Pleading & and determine them as by law provided. Af- Practice, p. 288, in speaking of errors in ter this an appeal was taken from the judg- the name of a party to a suit, it is said: ment entered by Givens to the circuit court, "If the mistake be merely in omitting the and on a trial there a verdict was returned middle or one of the Christian names of the assessed, and, in the absence of any showing to the contrary, we will assume that all the proceedings taken and had in the county court were regular. So that the only question in issue is: Was the summons issued against and executed upon "Miss Sue Dixon" sufficient to bind the estate of "Sue Reeve Dixon," or "Sue R. Dixon," as her name is given in the petition. It is perfectly manifest that Miss Sue Dixon and the appellant are the same person. There is no pretense of fraud or mistake on the part of the officer, nor any intimation that there was any other person in Henderson county except the appellant whose name was Sue Dixon. We have no doubt that a proceeding and summons against Sue Dixon would be amply sufficient to sustain a judgment entered against Sue R. Dixon, unless it were made to appear that Sue R. Dixon was not the same person general be a wholly immaterial variance." .county court record would uphold the assessTo the same effect is Anderson v. Rogers, 1 Bush, 200; Commonwealth v. Hughes, 10 B. Mon. 160. An error in the name of a party will not invalidate the proceeding against him, unless it appears that he has been prejudiced thereby; and there is no showing whatever that the appellant has been in any wise prejudiced by the judgment from which she prosecutes this appeal. ment against "Susie" as an assessment against Miss Sue Dixon, especially as there is no attempt to show that the "Susie" is not "Miss Sue Dixon." If the appellant desired us to pass understandingly on these technical questions, the whole record of the county court should have been brought here. In view of the fact that learned counsel did not do this, we take it for granted that the only question they desired to make on the appeal was that the summons against "Miss Sue Dixon" was not sufficient to support a judgment against "Sue R. Dixon," as appellant is styled in her petition filed by counsel, or "Sue Reeve Dixon" as she is styled in the statement filed by the same counsel. | 1. CRIMINAL LAW (§ 422*)-MANSLAUGHTEREVIDENCE. It is further insisted that, as J. H. Hart at the inception of the proceeding in the county court retired from the bench, because he was a party in interest, he was also interested when the judgment was entered upon a return of the case from the circuit court, and, being interested, was disqualified to sign the orders in the case; and so all orders signed by him, including the one finally adjudging the appellant liable for the assessment, were void. There is no evidence that J. H. Hart had any interest in the proceedings when the final judgment was entered. Whether or not he was then interested, we do not know. True, in the assessment made after the return of the case from the circuit court, the name of J. H. Hart appears, but whether this J. H. Hart was J. H. Hart the county judge is not shown. If appellant desired to attack the validity of the orders assessing her property upon the ground that they were made and entered by a judge who was interested in the proceeding, and consequently disqualified to act, she should have shown this fact by averment and proof. Aside from this, the precise question here presented was made in Coquillard Wagon Works v. Ed Melton, Sheriff, 125 S. W. 291, decided February 15, 1910, and it was there held that the county judge, Hart, was not dis-reaching accused and another, "Now, I have got you," and that immediately the shooting began, it was error to fail to admonish the jury that they could not take the statement made by told him that it was accused who said, "Now, I another witness that the first-named witness have got you," as substantive evidence against accused, and that they could consider it only as affecting the credibility of the witness. for manslaughter did not charge a conspiracy, Where the indictment of accused and one G. but only charged accused with the killing, and G. with being present, aiding, and abetting therein, and there was no evidence of a conspiracy, testimony that shortly before the killing G. stated in defendant's absence that some one was going to be killed was not competent against ac cused. Law, Cent. Dig. 88 984-988; Dec. Dig. § 422.*] [Ed. Note.-For other cases, see Criminal 2. CRIMINAL LAW (§ 673*) INSTRUCTIONS LIMITING EVIDENCE. In a trial for manslaughter, where a witness for accused testified that deceased stated on qualified to enter orders and judgments similar to those entered by him in this case after its return from the circuit court to the county court. The reasons for thus ruling are well stated in the opinion, and we do not deem it necessary to reiterate them here. Law, Cent. Dig. §§ 1874-1876; Dec. Dig. § [Ed. Note. For other cases, see Criminal 673.*1 It is also argued that as the record of the county court does not show that the assessment was made against the property of Sue R. Dixon or Sue Reeve Dixon, but against "Susie," it is void, and assigned as error that the assessment attempted to be collected is $128.70, when the judgment at one time was for $252.85 and at another $295.18. Why the assessment was increased from $252.85 to $295.18, or how it came to be reduced to $128.70, does not appear, and, in the absence of the records of the county court showing why this reduction was made, we assume that it was regularly and properly done. The record, in our opinion, does not furnish any reason why the judgment should be disturbed, and it is affirmed. BOWLING v. COMMONWEALTH. March 16, 3. HOMICIDE (§ 300*) · SELF-DEFENSE - IN STRUCTIONS. In a trial for manslaughter, where the evidence tended to show that deceased and his son were making a joint assault on accused, it was prejudicial error to limit accused's right to act in self-defense only on threatened danger or bodily harm at the hands of deceased. [Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 614-652; Dec. Dig. $ 300.*] Appeal from Circuit Court, Logan County. "Not to be officially reported." Manual Bowling was convicted of manslaughter, and he appeals. Reversed and remanded. It appears from the orders of the county court that Alvis and Susle are the children of J. C. Dixon, and that the land of J. C. Dixon, as well as that of Alvis and Susie, was assessed for this ditch. We will therefore assume that the omitted parts of the S. R. Crewdson and A. R. De Witt, for appellant. Jas. Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen., for the Commonwealth. NUNN, C. J. The conviction of appellant | McCarley who fell near where he was shot. for manslaughter and his sentence of nine McCarley's pistol was found under him with years in the penitentiary were had under the all the loads in it, showing that it had not following indictment: "The grand jury of been fired. The witnesses for both the comthe county of Logan, in the name and by the monwealth and appellant testified that there authority of the commonwealth of Kentucky, were from five to eight shots fired; most of accuse Manual Bowling and John Gibbs of them said six or eight. Two or three witthe crime of willful murder, committed as nesses testified that some of the shots were follows, to wit: That said Bowling and fired towards Bowling and some towards McGibbs, heretofore before the finding of this Carley, and that the reports indicated that indictment in the county aforesaid, did, act- the shots were not fired from the same ing jointly together, and each aiding and weapon. One witness testified that John abetting the other, unlawfully, willfully, felo- Gibbs fired a shot, but it was shown that niously and with malice aforethought, kill, this witness was under the influence of liqmurder and slay Phill McCarley, by shoot- uor at the time the shooting took place. All ing and wounding said McCarley upon his the other testimony shows that Gibbs had body and person, with a pistol, and with pis-nothing to do with the shooting; that he tols, deadly weapons, loaded with leaden was not armed with a pistol or other weapball or balls or ball or balls of other hard on. It is true, a dying statement by McCarsubstance, from the effect of which shooting ley was proved in which he stated that he and wounding the said McCarley died within was shot by both Bowling and Gibbs, but it a day and a year thereafter." Gibbs was was shown by several witnesses that he said tried at the same time, by the same jury, and immediately after the shooting and while on acquitted. the ground, that Gibbs did not shoot him. It appears that Gibbs had but one leg and used a crutch, and in the excitement, while the shooting was going on, some one stepped upon his foot and caused him to fall to the pavement by the side of Cooper's store. He thought he was shot in the foot and so announced it. He was helped up and searched for a pistol, but none was found. It is pretty evident from the evidence that Gibbs had nothing to do with the difficulty; that he took no part in it, and that he had no weapon to shoot with. Bowling and Gibbs both testified that when Phill McCarley came up to them he had a pistol in his hand and had presented it at Bowling, when he (Bowling) drew his pistol and began to fire at Phill McCarley, and that at the same time Henry McCarley began to fire at Bowling, and fired two or three shots and ran away. Bowling presented a coat to the jury and showed two holes in it made by the shots fired by Henry McCarley. Henry denies that he shot, in positive terms. It is reasonably certain, from the evidence, that appellant did not fire all the shots made upon the occasion, and that Phill McCarley's pistol failed to go off. That leaves Gibbs and Henry McCarley the only ones present who could have fired the other shots, and, from the evidence, the inference is stronger that Henry McCarley fired the shots than it is that Gibbs fired them. The testimony tended to show that there had been some ill feeling between appellant and McCarley for several months prior to the killing; that McCarley had made repeated threats to do violence to appellant; that they had had some trouble, about one hour before the killing, at the house of McCarley during which McCarley drew a double barrel shotgun on appellant, but was prevented from shooting by other persons who were present, and disarmed him. Appellant left the house and went up town, and McCarley and his son, Henry, soon followed, armed. Appellant went to Robertson's store and was engaged in a conversation with the marshal and deputy sheriff. He was telling them about the trouble which occurred at the home of McCarley a few minutes before. While appellant was standing there McCarley, with his son Henry following him, passed up the street to about the third or fourth business house from the corner, and at that time appellant walked across the street to Cooper's store on the opposite corner to where John Gibbs was, and asked him for a match with which to light his cigar. Gibbs had no match, but handed him his cigar from which to get a light. In the meantime McCarley and his son returned, and upon reaching Robertson's store walked across the street to where Bowling and Gibbs were, reaching there about the time Bowling got his cigar lighted. From this on, there is a conflict in the evidence. Henry McCarley testified that when they reached Bowling and Gibts, appellant remarked, "I have got you, now," and began to shoot at his father, and that he (Henry) ran away about the time the second shot was fired. Bowling and one other witness testified that it was Phill McCarley that made the remark, "I have got you, now," and drew his pistol on Bowling as though he was going to shoot. Bowling Appellant's counsel contend that the court erred in its instructions to the jury, and permitted incompetent evidence to be introduced against him. It will be observed that a conspiracy was not charged in the indictment as existing between Bowling and Gibbs. It only charged appellant with the killing and Gibbs with being present, aiding, and abetting therein; nor was there any evidence introduced showing a conspiracy to commit the crime or any other crime. One C. O. Bradshaw was introduced by the 30 minutes before the killing John Gibbs was at his livery stable and made the statement that "there is going to be somebody killed." Appellant was not present when this state ment is claimed to have been made, and, therefore, while it was competent as against Gibbs, it should not have been perm ed to go to the jury as against appellant, and the court should have so admonished the jury. One Edgar Vaughn, a clerk in Robertson's store, testified for appellant to the effect that it was Phill McCarley who made the statement when he reached appellant and Gibbs, "Now, we have got you," and immediately the shooting began. He was asked if he did not tell one Duke Proctor that it was Manual Bowling who made that statement, and he said, "No." The commonwealth then introduced Proctor, and he testified that Vaughn did say to him that it was appellant who said "Now, we have got you." The court erred in failing to admonish the jury that they could not take the statement made by Proctor as substantive evidence against Bowling, but that they could er it only as affecting the credibility of doctors to make, to show the nature and extent Vaughn, if it did so. of his injury, and the possibility or probability of his recovery. Defendant through its negligence having caused plaintiff's injury, and therefore being liable for all pain and suffering endured by him as the direct and proximate result of such injury, including that from the efforts of his doctors to locate the injury and the extent thereof,, provided they possessed the degree of skill and proficiency usually possessed by the average practitioner in their locality, even though the methods employed by them were not the most approved or the tests applied not the latest, by them to determine the extent of his injury or plaintiff could testify as to the tests applied the seat of the trouble producing his partial paralysis, but only so far as necessary to properly bring before the jury the effects of such consid-fering; any further description being for the treatment on him as to producing pain and suf The only error committed by the court in the instructions was in the self-defense instruction, which we copy in so far as it applied to Bowling, to wit: "Although the jury may believe from the evidence beyond a reasonable doubt that Manual Bowling shot and killed the deceased, yet if the jury shall further believe from the evidence that at the time he did so said Manual Bowling believed and had reasonable grounds to believe that he was then and there in danger of death or great bodily harm at the hands of the deceased, and that it was necessary or was believed by the said Manual Bowling in the exercise of a reasonable judgment to be necessary to shoot and kill the deceased in order to protect himself from the infliction of death or great bodily harm at the hands of the deceased, then and in that event the jury should find the defendant, Manual Bowling, not guilty on the ground of self-defense and apparent necessity thereof." The court erred to appellant's prejudice in limitin his right to act in his defense only upon threatened danger or bodily harm at the hands of Phill McCarley, when, under the facts as presented in the record, appellant had as much reason to believe that he was in danger of death or great bodily harm at the hands of Henry McCarley, Phill's son. The evidence tended to show that the father and son were making a joint assault upon him, and if he believed that, and had reasons to believe it, he had a right, in defending himself against this joint assault to shoot either or both of them. For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith. LOUISVILLE & N. R. CO. v. LYNCH. (Court of Appeals of Kentucky. March 18, 1910.) 1. EVIDENCE (§ 317*)-HEARSAY. One suing for personal injuries may not testify to what his doctor said to him relative to his condition. Cent. Dig. 88 1174, 1176; Dec. Dig. § 317.*] DENCE. Cent. Dig. 88 478, 479; Dec. Dig. § 166.*] -"GREATLY." The use of the word "greatly," in instructions in a personal injury case, by calling attention to the injury by the repeated expressions "greatly injured," "greatly wounded," and "suffered greatly," is error, either to mislead the jury to understand there could be no recovery unless the injury was great, or to give them the impression that the trial judge considered the injury great. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 577, 578; Dec. Dig. 8 244.* For other definitions, see Words and Phrases, vol. 4, p. 3162.] 4. DAMAGES (§ 210*)-PERSONAL INJURY-IN STRUCTIONS. The use of the word "wrongs," in an instruction in a personal injury case authorizing the jury to award such sum as will compensate plaintiff for "the injury and wrongs above described," is error, as tending only to confuse; compensation being allowed only for injury sustained by reason of some breach of duty, whereas, wrongs are punished by imposition of some penalty not intended to compensate the party wronged, but to punish the wrongdoer, and even punitive damages, when recoverable, being imposed by way of punishment, and not as part of the compensation. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 537, 538; Dec. Dig. § 210.*] 5. DAMAGES (§ 2*) PUNITIVE DAMAGES "GROSS NEGLIGENCE"-LAW GOVERNING. The personal injury on which the action is based having occurred in Tennessee, the definition of gross negligence, authorizing punitive damages, approved by its Supreme Court, "such entire want of care as would raise a presumption of a conscious indifference to consequences," and not that approved by the Supreme Court of Kentucky, "the failure to take such able skill in like business, but of careless habits, care as a person of common sense and reasonwould observe in avoiding injury to his own per |