Gregory v. Traylor

3 Ky. Op. 503, 1869 Ky. LEXIS 502

• Court: Court of Appeals of Kentucky
• Decided: December 3, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Peters:

From the proof appellant was the credited agent of the Government of the United States to take the surrender of Confederate soldiers, and receive horses, etc., surrendered with them which had been used in carrying on hostilities against said Government, and in that capacity, took the horse in controversy, given up to him by Elliott when he surrendered to and was parolled by appellant.

And having turned the horse over to his principal, as the proof shows, before he was notified by a demand of the horse, or otherwise, by appellee that he had any claim to him, the ground upon which he can be made afterwards responsible for the horse, or his value, is not perceived.

No objection was made to the instruction asked by appellee, nor exception taken when it was given, nor was any exception taken to the opinion of the court overruling the one asked by appellant, so that whether there was any error committed in giving, or refusing, instructions cannot be considered by this court. But we think there is a failure in the evidenec to make out a cause of action against appellant. And the court erred to his prejudice in overruling his motion for a new trial.

Wherefore, the judgment is reversed, and the cause remanded for a new trial, and for further proceedings consistent with this opinion.