IN

NOTES OF CASES.

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source of discomfort to the immediate neighborhood, but because its probable and natural conse 'N Anderson v. Doty, 33 Hun, 160, it was held that quence is harmful to the social and moral welfare in the absence of proof of offensive sights or of the public. It is a nuisance because it is a sounds, an action will not lie to enjoin the main- crime, and it can only cease to be a nuisance when taining of a bawdy house near the plaintiff's house, it is abated. I do not think that courts of equity by means whereof the selling and rental value of are the proper tribunals in which to do this. The the latter is liable to be diminished. The court, usual and customary means, and those always hereRumsey, J., said: "There is no allegation of any tofore employed, are set in motion by the courts noise, or any physical discomfort or tangible injury which administer the criminal law, whose machinto the persons of the occupants of plaintiff's houses, ery is sufficient to give to the community full relief or to the property, but the injury complained of is in a case of this kind, and at the same time to adentirely consequential in its nature, arising from minister such punishment as will prevent the rethe fact that decent people will avoid such places, currence of the evil. It is the duty of the plaintiff however quietly conducted, because of the inconve- to apply to those tribunals to which the law has niences which they apprehend may occur, although given the power not only to punish the guilty persuch apprehensions may never be realized. The sons, but to abate the nuisance (Code Crim. Proc., defendant's counsel bases his motion upon the 953), and to execute its judgment to that effect. ground that a private action will not lie to restrain I cannot doubt that if the plaintiff, and all persons a public nuisance, unless the plaintiff suffers an in- aggrieved by the existence of such places would jury by it to his person or property different in resort to the criminal courts, the law would be character from that common to all citizens, and promptly and rigorously enforced. At all events that this particular injury must be some sensible the duty of dealing with offenses of the kind physical discomfort, or visible injury to property. charged against the defendant is confined to the The general rule is well settled that a private indi- criminal courts, and should not be assumed by nor vidual cannot restrain a public nuisance by his pri-imposed upon courts of equity." Barker, J., vate action unless he suffers damage different in kind from that which the nuisance causes all other people. Coke, 56a; Stetson v. Faxon, 19 Pick. 147. But this private injury must be physical, that is, it must be offensive to the senses, or endanger health, or render the use of property uncomfortable, or actually interfere with its use. Wood Nuis. 4; Catlin v. Valentine, 9 Paige, 575; Brayton v. Fall River, 113 Mass. 219-229; St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. Mere liability to injury is not suffi cient. Blackwell v. Old Colony R. Co., 122 Mass. 1-3; Milarkey v. Foster, 25 Am. Rep. 531, and note; Stetson v. Faxon, 31 Am. Dec. 123, and note. Nor is mere consequential injury, because plaintiff's premises are rendered less desirable or less valuable, where no physical damage has been done to the property, or no personal discomfort sustained by the occupants, a ground for private action. Lansing v. Smith, 8 Cow. 146, 167; Ricket v. Metro. Ry. Co., 5 B. & S. 149. It may be quite difficult to lay down any general rule. But I think it is safe to say, as is said by Wood, it is not enough that it diminishes the value of surrounding property. It is not enough that it renders other property less salable, or that it prevents one from letting his premises for as large a rent as before, or to as responsible or respectable tenants. Wood Nuis. 4; Big. Lead. Cas. on Torts, 467, et seq. In this case there are alleged no offensive sights or sounds from defendant's house, but the injury is caused because the existence of the nuisance gives the neighborhood a bad name. I do not think this is sufficient injury to plaintiff to enable him to maintain this action. But there are reasons of public policy and propriety why in my judgment this action should not be maintained by the plaintiff. The house kept by defendant is a nuisance, not because it is a

In Schwander v. Birge, 33 Hun, 186, an action of damages for the death of the plaintiff's intestate, employed in the defendant's factory, by reason of the defendant's neglect to provide means of escape in case of fire, it was held that the questions of negligence and contributory negligence were for the jury. The deceased was nineteen years old, and the particular negligence alleged consisted in not providing a ladder or staircase leading to a scuttle in the roof. The court, Smith, P. J., said: "It is contended by the respondents that the deceased entered the employment of the defendants with full knowledge of the condition of the building, and he must therefore be presumed to have taken the risks arising from such condition, and for that reason cannot recover. Doubtless the general rule is that the employee loses the right of action when he voluntarily and unnecessarily puts himself in a place of danger. Whart Neg., § 215. So too it has been held that if a servant accepts service with knowledge of the character and position of structures from which employees might be liable to re ceive injuries, he cannot call upon the master to make alterations, or in case of injury hold him liable. Gibson v. Erie R. Co., 63 N. Y. 449; Owen v. N. Y. C. R. Co., 1 Lans. 108. But those rules apply only to the natural and ordinary risks incident to the work in which the servant engages, and the perils which in legal contemplation are presumed to be adjusted in the stipulated compensation. The fact that the intestate knew that there was no staircase or ladder leading to the scuttle was not, under the circumstances and as matter of law, conclusive of want of due care on his part. As was said by Mr. Justice Byles, in Clarke v. Holmes, 7 Hurlst, &

Nor. 937, 'a servant knowing the facts may be utterly ignorant of the risks.' It was held in Coombs v. New Bedford Cordage Company, 102 Mass. 572, that the fact that very near where a workman is voluntarily employed in a manufactory, machinery not connected with his work is in motion, the dangerous nature of which is visible and constant, is not conclusive that he has taken on himself the risk of being injured by it, in modification of the implied contract of his employer to provide for him a reasonably safe place in which to do his work; and if through inattention to the danger he meets with such an injury while doing his work, and sues his employer therefor, the questions whether he met it with due care on his own part, and whether by reason of the neglect of his employer to give him suitable notice of the danger, are for the jury.' In this case the danger from which the injury to the intestate resulted was not a natural and ordinary risk incident to the work in which he engaged. His employment did not require him to be at all times on the fifth floor, but it took him into all parts of the building. Assuming that he was in the fifth story when the fire broke out, the fact that he was there at that time was, in a measure, accidental. Nor can it be presumed, as matter of law, that this lad, nineteen years old when he entered the employment of the defendants, took into consideration the risk of the fatal disaster that afterward befell him, and that his compensation was measured accordingly. We think that under the circumstances the question whether the intestate took the risk of the danger referred to was one of fact to be decided by the jury." We agree with the judge that "the question is not free from doubt." We do not see that the employer was bound to provide any means of escape. This was held in Jones v. Granite Mills, 126 Mass. 84; S. C., 30 Am. Rep. 661, where the court said: "It is no part of the contract of employment between master and servant so to construct the building or place where the servants work that all can escape in case of fire with safety, notwithstanding the panic and confusion attending such a catastrophe. No case has been cited where an employer has been held responsible for not providing such means of escape."

In Waterhouse v. Spreckels, Hawaiian Supreme Court, July, 1884, the action was for libel in publishing a private letter written by the plaintiff to a person other than the defendant, apologizing for a slander and inclosing money to compromise a suit therefor, and authorizing the receiver to print and circulate one hundred copies of the letter. Judd, C. J., citing authorities, upholds the action, saying: "Un

der these authorities the receiver of the letter in question would not be authorized to make publication of it to any extent greater than authorized by the writer. A fortiori third parties, as these defendants are, have no such authority. Even Judge Story, though finding that courts of equity would not exercise the injunctive power of the court un

less the letters were of literary value, says that these matters are "cognizable in a civil or criminal action at law.' Story Eq. Jur., § 948a. In Brandreth v. Lane, 8 Paige, 23, Chancellor Walworth refused to restrain the publication of a libellous work, but left the plaintiff to his action at law. In Woolsey v. Judd, 4 Duer, 379, it is held that a court of equity cannot prevent the publication of private letters merely on the ground that such publication is injurious to the interests of society. It must stand on the ground that the writer has an exclusive property remaining in him, and the right to an injunction does not depend upon the question whether the letter possesses value as a literary composition. But Chancellor Kent, 2 Com. 381, says: 'The publication of private letters ought to be restrained when it would be a breach of confidence and trust, as letters of courtship, or when injurious to the character or happiness of others.' In Hopkinson v. Lord Burghley, 2 L. R. 448, Lord Cairns says: 'The question in all these cases is, what was the purpose or object in the mind of the person sending the letter. The writer is supposed to intend that the receiver can use the letter for any lawful purpose, and it has been held that publication is not such a lawful purpose.' It seems to me, that as the complaint avers, not only was an injury intended to plaintiff by defendants, but that one was done to the feelings, character and reputation of the plaintiff by the wrongful and injurious publication of this letter; this injury is not one that is without redress. Upon principle, and I think upon cient authority, to wit: Mr. Justice Story, Lord Cairns and Judge Cooley, the plaintiff ought to have the remedy for the wrong done him. Where there is a right there is a remedy. As Lord Holt has said: 'It is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.' Ashley v. White, Ld. Raym. 938; 1 Smith Lead. Cas. 105. Here the plaintiffs had been denied the right to vote for members of Parliament. 'No such case' says Cooley, 'had ever been adjudged, and there was no precedent for the suit. But in the opinion of Lord Holt & precedent was not important, the material question was, had they a right to vote? When the facts were found in their favor the legal conclusion must follow: 'Having a right, the remedy was of course.' In the case before me the wrong has been done, the letter has been published; it cannot now be restrained by injunction. To sustain this demurrer would be to hold that the defendants may continue to publish this letter from year to year, indefinitely, in all parts of the world, wherever the defendants may think it would damage the plaintiff. It would be a reproach to justice to say that such conduct

is remediless." See 2 ALB. LAW JOUR. 131.

F

suffi

COMMON WORDS AND PHRASES. AMILY.— An old man and a young woman, not relatives, but living together like father and

guess the correct number would be a matter of the merest chance, because there are no means of attaining to a certainty. Whether the enterprise set out in the publication be called a scheme of chance, a gift enterprise or a lottery, it is still a scheme of chance, and in that sense a lottery or gift enterprise. The watch was to be given to the person who should come nearest guessing the correct number of the beans. Who that might be would be purely a matter of chance. Whether that person might guess the correct number would be a matter of chance. Chance was to settle the ownership of the watch. And thus the enterprise was to be a lottery." The London Law Journal of Sept. 27, 1884, says: "A seller of 'lucky balls' at Manchester seems to have had a lucky escape. The children who bought them were told that by the investment of twopence they had a chance of finding a half-crown, shilling, and so on down to a farthing, inside.

On being opened, none of the balls appeared to contain more than a halfpenny, and on this ground, apparently, the magistrate decided that there was no lottery. The balls with money inside are exactly analogous to the packets of tea with trinkets inside, decided in Taylor v. Smetten, 52 L. J. Rep. M. C. 101, to amount to a lottery. The absence of proof that there were prizes in the balls could not weigh against the statement that there were. A lottery is none the less a lottery because it is also a fraud. The stipendiary compromised matters by making the defendant pay the cost of the summons, which was Cadi justice. However the juvenile mind of Manchester will probably not in future be taught gambling by a system so irresistible that the blanks are sweetmeats."

COMMIT, MAKE.-" Commit an assault" is equivalent to "make an assault." State v. Murphy, 35 La. Ann. 622. The court said: "In common parlance, the words 'commit an assault' convey as clear a meaning as 'make an assault.' In ordinary acceptation, and in the connection shown, the words would be held as synonymous, and not without authority, since one of the definitions of the word 'commit,' and its most usual meaning is, to 'perpetrate or enact. Worcester, verbo 'commit.'' MANUFACTURE.- A saw mill is not a "manufactory of articles of wood." Jones v. Raines, 35 La. Aun. 996.

SALE-VESTING OF TITLE.

MICHIGAN SUPREME COURT, JUNE 4, 1884.*

BYLES V. COLIER.*

The presumption that title does not pass upon a sale so long as any thing remains to be done to determine the sum to be paid, is not conclusive, but may be overcome by such facts and circumstances as indicate a contrary intent in the parties, and the intent is a question of fact and not of law.

Where money has been paid upon a sale of personalty that

has been set apart for the purchaser by examination and estimate of its quantity, the fact that it must be further *S. C., 19 N. W. Rep. 565.

Fletcher & Wanty, for plaintiff and appellant.

Peter Doran, for defendant.

COOLEY, C. J. Replevin for a quantity of lumber. The plaintiff claimed title to the lumber under a contract made between S. B. Farnsworth, Charles Farnsworth, Addie P. Farnsworth, William Farnsworth and Fanny Whittington, of the first part, and A. W. Byrne, of the second part, dated October 28, 1880, whereby the parties of the first part agreed to cut, haul, and saw in their mill at Mears, the timber on certain lands owned by them in Oceana county, and sell the lumber to the party of the second part at certain rates specified for eight separate classes, ranging from $4 per thousand feet for culls, to $22 and $23 per thousand feet for the three grades of uppers. The terms of payment were to be one-half as soon as the lumber was piled in the yard, and the balance in ninety days after shipment. The following, among others not necessary to be recited, were special clauses of the contract: "And it is further agreed that all lumber at all time shall be cut to the order of the party of the second part, in agreed that the parties of the first part shall not sell or whatsoever shape he may direct. And it is further dispose of to any parties any of the above-mentioned grades of lumber, excepting orders that are on the books of the firm on the day of the date of these presents. The parties of the first part reserve the right to remove and dispose of not to exceed two hundred trees suitable for spars. It is agreed that the parties of the second part shall not require the parties of the first part to cut lumber or timbers longer than twenty feet. The inspection that shall govern shall be what is known as the Michigan inspection. Each party may furnish an inspector, and in case they disagree then an uninterested party shall be called upon any question that may arise."

November 5, 1880, the party of the second part as signed his interest in the contract to the plaintiff, and in the following July the parties of the first part entered into a contract with George Murphy, whereby he acquired an interest in the first-mentioned contract. the particulars of which it is not necessary to give now. The lumber was cut by Murphy after July, 1881, and piled in the mill-yard, where it was attached by the defendant, who is sheriff of the county of Oceana, by virtue of attachments against Murphy and William Farnsworth, and as their property. The attachment was made February 2, 1882.

The Circuit judge who tried the case finds "that said lumber had never been measured, but plaintiff, under said contracts, had advanced one-half of the estimated value, as provided for in said contracts, from time to time, on an estimate made by counting piles on yard each month; that it was the practice of the parties to said contract to measure and inspect the lumber as it was loaded upon the cars for shipment, and this measurement and inspection was recognized and acquiesced in by all parties, and the lumber was paid for in accordance therewith, the plaintiff rendering to second parties in said contract statements of number of cars, quantity and quality of lumber on each, and prices provided for, and making payment of the amount to be paid ninety days from time of shipment, as stated in said contract; this inspection being made by a person satisfactory to both parties. This particular lumber