Page:The Green Bag (1889–1914), Volume 16.pdf/557

 5 об

Tke Green Bag.

be by a verdict of a jury, and hence that such retraction, if not due course of law. is an ample substitute for it,—is one which the court cannot entertain. LOSS OFJ SERVICES. (COMMON LAW RIGHT OF ACTION.) COURT OF APPEALS OF KENTUCKY.

In Gregory r. Illinois Central R. Co., 80 Southwestern Reporter 795, an action was instituted by the father of a i6-year-old in fant, who had been killed by a railroad train, for damages resulting from the loss of his son's services from the time of his death until he would have reached the age of 21 years. The attorneys conceded that the action was not based upon any statute authorizing it, but on the common law right of the father to his infant son's services. The court points out that the common law allowed no such remedy by way of a civil action in the case of an injury causing the death of a human being. As such injury must necessarily precede the death, the law did not allow any cause of action for the in jury to survive the person who was killed. The husband or master of the deceased was not allowed to sue because the only damage recognized by the law was the loss of ser vices during the life of the servant, and the death of the infant, therefore, worked no in jury to the master of which the law could take notice. And if the act causing the death amounted to a felony, the general rule of the common law forbidding- any civil suit upon a felony would alone have -sufficed to exclude a claim for damages. The court cites Shearman & Redfield on Negligence; Eden v. L. & F. R. R. Co.. 14 B. Mon. 204: Covington Street Ry. Co. v Parker, 72 Ky. 455; Louisville & Nashville R. R. Co. v. McElwin, 98 Ky. 700, 34 S. W. 236: and Harris v. Kentucky Timber & Lumber Co.. 43 S. W. 462, 45 S. W. 94. and distinguishes the cases of Gregg's Adm'r v. Lee, 14 B. Mon. 119, Gray v. Coons, 7 J. J. Marsh. 478, and Smith v. Hancock, 4 Bibb. 222, on the ground that they were actions for the 'value of slaves killed or injured by negligence or malice. It is pointed out that while the

master was entitled to the services of the slave, the latter was a mere chattel, and the right to recover was based upon the same principle as would be the right to recover for the injury or destruction of a horse or other kind of property. LOTTERIES. (ESTIMATES OF NUMBER OF CIGARS TAXED.) NEW YORK SUPREME COURT, APPEL LATE DIVISION, FIRST DEPARTMENT.

In the case of People ex rel. Ellison v. Lavin, 87 New York Supplement 776, the question was raised as to whether a guessing contest as to the number of cigars upon which the United States tax would be paid during a certain month was within the sec tion of the Penal Code of New York pro hibiting the advertising of lotteries. The contest was conducted by the Florodora Tag Company of Jersey City, and contemplated the distribution of over $140,000 in prizes, to be distributed among those persons who estimated nearest to the number of cigars on which $3.00 tax per thousand would be paid during the month of November. 1903, as shown by the sales made by the United States Internal Revenue Department. The prizes ranged from $5000 to a box of cigars, valued at $2.50. The amount to be given away was to be distributed among over 35,ooo people, and in order to be entitled to estimate, it was only necessary that the estimate should be accompanied by too bands from certain designated cigars. The statute provides that any person who adver tises or publishes an account of a lottery, whether within or without the State, stating how, when or where the same is to be, or has been, drawn, or what are the prizes therein, or any of them, or the price of a ticket, or any share or interest therein, or where or how it may be obtained, is guilty of a mis demeanor. The Penal Code further defines a lottery as a scheme for the distribution of money by chance among persons who have paid or agreed to pay a valuable consider ation for the chance, whether called a lot tery, raffle', or gift enterprise, or by some other name. The contention, of course, was