State, McCulloh v. (Tex. Cr. App.).
State, McFadden v. (Tex. Cr. App.).
State, McKinney v. (Tex. Cr. App.).
State, McMillan v. (Tex. Cr. App.).
State, Manuel v. (Tex. Cr. App.).
State, Miller v. (Tex. Cr. App.)..
State, Minter v. (Ark.).....
State, Morton v. (Tex. Cr. App.).
State, Nicholson v. (Tex. Cr. App.)..
State, O'Connor v. (Tex. Civ. App.)
State, Odell v. (Tex. Cr. App.)..
State, Orta v. (Tex. Cr. App.).
State, Page v. (Tex. Cr. App.).
State, Peoples v. (Tex. Cr. App.)..
State, Price v. (Ark.).

State, Risien v. (Tex. Cr. App.).
State, Rodriquez v. (Tex. Cr. App.).
State, Rogers v. (Tex. Cr. App.).
State, Sausier v. (Tex. Cr. App.).
State, Scott v. (Tenn.).

State, Shutt v. (Tex. Cr. App.).
State, Spradling v. (Tex. Cr. App.).
State, Stokes v. (Ark.)..

State, Tarrango v. (Tex. Cr. App.).
State, Terry v. (Tex. Cr. App.).
State, Travina v. (Tex. Cr. App.).
State, Truelove v. (Tex. Cr. App.)..
State, Valles v. (Tex. Cr. App.).
State, Valles v. (Tex. Cr. App.).
State, West v. (Ark.)...
State, West v. (Tex. Cr. App.).

State, Whitesides v. (Tex. Cr. App.)... State, Wilson v. (Tex. Cr. App.).

970

596 Thompson v. Dutton (Tex. Sup.). 598 Thompson, Riggins v. (Tex. Sup.).. 483 Thompson, Rountree v. (Tex. Civ. App.).. 967 Thompson, Southern R. Co. v. (Tenn.). 969 Thompson Sav. Bank, Gregory v. (Tex. Civ. App.)

544

14

574

820

988

State ex rel. Anheuser-Busch Brewing Ass'n v. Eby (Mo. Sup.)..

52

State ex rel. Columbia Brewing Ass'n v. Eby (Mo. Sup.)..

Thrasher, Heard v. (Tex. Civ. App.) Thweatt v. Houston, E. & W. T. R. Co. (Tex. Civ. App.).

803

976

T. J. Moss Tie Co., Patterson v. (Ky.).
T. J. Moss Tie Co., Roach v. (Ky.).....
Tobler v. Austin (Tex. Civ. App.).
Toomey, Baumeister v. (Mo. App.).
Tomkies, Home Mut. Ins. Co. v. (Tex.
Civ. App.)

930

2

407

.1070

812

State ex rel. Kerby v. Cusenberry (Mo. App.)

Tomkies, Home Mut. Ins. Co. v. Sup.)

(Tex.

814

Travelers' Ins. Co. v. Brookover (Ark.). Travina v. State (Tex. Cr. App.).. Troutman, Maraman v. (Ky.).

246

1134

861

Truelove v. State (Tex. Cr. App.). Turney v. Ewins (Mo. App.). Tyson, Clary v. (Mo. App.).

601

543

710

State ex rel. Waggoner v. Seibert (Mo. App.)

95

State ex rel. Wm. J. Lemp Brewing Ass'n v. Eby (Mo. Sup.).

Valles v. State (Tex. Cr. App.).

598

Stein v. Hill (Mo. App.).

Van Bach v. Missouri Pac. R. Co. (Mo. (Sup.)

358

1. The common-law rule that statutes in derogation thereof are to be strictly construed does not apply to the revision of the Kentucky Statutes, which is to be liberally construed, with a view to promote its object.

2. Ky. St. § 68, provides that every person keeping any dog shall be liable to the party injured for all damages done by such dog, but that no recovery shall be had if the person injured is at the time on the premises of the owner of the dog after night, or engaged in some unlawful act in the daytime. Held, that such statute changed the common-law rule, which exempted the owner from liability where the plaintiff was on the owner's premises unlawfully, and, where plaintiff was bitten by defendant's dog while going to defendant's stable to speak to defendant socially, plaintiff was not engaged in an unlawful act, within the statute, and was entitled to recover for the injuries sustained.

"Not to be officially reported."
On rehearing. Petition overruled.
For former opinion, see 69 S. W 1095.

HOBSON, J. It is earnestly insisted in the petition for rehearing that the plaintiff, for her own convenience, and not in the discharge of any duty to the defendant, or on any business, went on the defendant's premises, knowing that the dog was dangerous, and that she thus by her own act placed herself outside of the legal pale of remedy. In support of this contention, we are referred to section 51 of Beach on Contributory Negligence, and to the case of Marble v Ross, 124 Mass. 44. These authorities rest on common-law principles. But our statute has changed the rule of the common law as to the liability of the owner of a dog to a person bitten by him. It provides: "Every person owning, having or keeping any dog shall be liable to the party injured for all damages done by such dog. But no recovery shall be had in case the person injured is at the time upon the premises of the owner of the dog after night, or engaged in some unlawful act in the day time." Ky. St. § 68. The rule of the common law that statutes in derogation thereof are to be strictly construed does not apply 71 S.W.-1

to this revision. On the contrary, its provisions are to be liberally construed, with a view to promote its object. Common words and phrases are to be understood according to their ordinary sense. Ky. St. § 460. The injury in this case did not occur after night, and, in determining the meaning of the words "engaged in some unlawful act in the day time," we must give the words their proper force, according to the common and approved usage of language. There is a material difference in these words and the words "shall be on the premises unlawfully in the day time." The contention of appellant, if adopted, would amount, in substance, to making the statute so read. This was not the purpose of the legislature. It exempted the owner from liability where the person injured was upon the premises after night, or where he was engaged in some unlawful act in the daytime. Appellee's purpose on the premises of appellant was entirely innocent. She went there to get her milk, according to custom, and, not finding appellant at the house, went down to the stable to speak to her socially, and was not engaged in doing an unlawful act, within the meaning of the statute. The question of contributory negligence on the part of appellee was, by proper instruction, aptly submitted to the jury. Petition overruled.

CRATE et al. v. STRONG et al. (Court of Appeals of Kentucky. Dec. 17, 1902.)

"Not to be officially reported." On petition for rehearing. Mandate modified, and petition otherwise denied.

For former opinion, see 69 S. W. 957.

HOBSON, J. The mandate in this case is modified so as to direct the circuit court to perpetuate plaintiffs' injunction as to all the land within their boundary, with the exception of the 100 acres patented to S. L. Stacy upon the survey bearing date January 16, 1871; and to adjudge to the plaintiffs the proceeds of the timber cut from their 3,600acre boundary outside of the Stacy 100-acre

patent above mentioned. The record is not so presented as to enable us to satisfactorily fix the amount of this timber, and on the return of the case the parties may be allowed to take further proof on the question. In other respects the petition for rehearing is overruled. The authorities relied on are not applicable where the defendant is a trespasser without title. What is said in the opinion is intended only to apply to the parties before the court. The rights of the other parties are, of course, not defined.

Rehearing refused.

ROACH v. T. J. MOSS TIE CO. et al. (Court of Appeals of Kentucky. Dec. 17, 1902.)

TRESPASS - AMENDED ANSWER- CONTINUANCE APPEAL - BILL OF EXCEPTIONS HASTENING THE JURY-DISCRETION-JURISDICTION-ISSUES.

1. Where a ruling and exception thereto do not appear in the bill of exceptions, such ruling cannot be reviewed, even though they appear in other papers certified by the clerk, but not authenticated by the judge.

2. Where an amended answer, substantially the same as the original, was filed on the day of the trial, and no atidavit was filed showing a reason for continuing the case, the denial of plaintiff's motion to continue because such answer was so filed was not error.

3. The action of a court in directing a jury to hasten their verdict is within the court's discretion, and is not ground for reversal, unless it otherwise appears that probably such conduct was prejudicial to the complaining party.

4. Where, in an action to recover for timber cut on land which plaintiff claims to own, such ownership is denied, and the land is alleged to belong to one of the defendants, the title to real estate is involved in the action, and an appeal lies to the court of appeals from the judgment, though the amount claimed for the timber is less than the jurisdictional amount. Appeal from circuit court, Ohio county. "Not to be officially reported."

Action by L. M. Roach against the T. J. Moss Tie Company and another. From a judgment determining the title to the premises in controversy in the defendant Eliza J. Taylor, plaintiff appeals. Affirmed.

Taylor. A jury trial resulted in a verdict and judgment in favor of the defendants. Plaintiff's motion for a new trial having been overruled, he prosecutes this appeal.

The grounds relied on are, in substance: First, the verdict of the jury is contrary to the law and evidence; second, error of the court in ruling that the burden of proof is on the defendant; third, error of the court in overruling plaintiff's motion to continue at the cost of defendants upon their filing an amended answer on the day of the trial; fourth, in allowing the amended petition to be filed; fifth, the verdict of the jury is palpably against the evidence, and clearly the result of passion and prejudice; sixth, the court erred in admonishing the jury to remain out only 30 minutes on Saturday evening, and repeatedly sending to and for them Monday morning to hasten in their finding of a verdict.

are

It may be said that the evidence in this case is somewhat conflicting, but we clearly of the opinion that there was abundant evidence to sustain the verdict of the jury.

The second ground for a new trial complains of the court's ruling that the burden of proof was on the defendants. We fail to find in the bill of exceptions that the court ever made a distinct ruling as to the burden of proof, or that any exception was taken to the introduction of defendants' testimony first. It is true that certain papers, purporting to be copies of judgment, and some orders attested by the circuit clerk, and filed by appellant at the time he sued out his appeal, show that such an order was made, and that the plaintiff excepted thereto; but that paper is simply signed by the clerk, and, for the purpose of this appeal, the bill of exceptions signed by the judge constitutes the entire record upon which this appeal must be tried. We doubt if plaintiff suffered any injury by the defendant's taking the burden of proof, but, be it as it may, the propriety of that ruling is not before us for revision, for the reason aforesaid.

We do not think the court erred in permit

GUFFY, C. J. The appellant, Roach, instituted this action against the T. J. Moss Tie Company and Eliza J. Taylor, seeking to recover judgment for $195 for the taking and cutting of timber on land, as plaintiff alleges, owned by him, and in his possession. Defendants deny plaintiff's title, and Mrs. Taylor asserted ownership of the land. The Moss Tie Company is not before the court on this appeal; hence its rights will be in no manner affected by the opinion and judgment rendered upon this appeal. Nor is it necessary to notice the defense relied on by it. The plaintiff traversed the answer of Mrs.

2. See Continuance, vol. 10, Cent. Dig. § 100.

refusing to continue the case on that account. No affidavit was filed showing any reason for continuing it. Moreover, the amended answer was substantially the same as the original answer.

There is nothing in the bill of exceptions showing that the court admonished the jury on Saturday to remain out only 30 minutes, nor does the bill show that the jury were directed to hasten their finding on Monday morning. Moreover, such matters are largely within the discretion of the court, and, if it did appear that the statements in the motion for a new trial are true, the same would not be ground for reversal, unless it otherwise appeared that probably such conduct was prejudicial to the plaintiff.

There is nothing in this case to indicate