residence of a person unhealthful, the market value of the property or of some interest therein suffers. If the property is in the possession of a tenant and the nuisance is of such a temporary nature as not to be likely to affect the premises after the expiration of the lease, the whole loss is to the tenant's leasehold interest, and not also to the landlord's reversion. The evidence in this case did not disclose more than a temporary nuisance. Where a temporary nuisance makes premises undesirable by reason of the likelihood of those living there to be made sick, the property suffers a natural diminution in rental value for the time being, and, if the premises be held by a tenant, the value of the leasehold interest is the thing affected; and, by examining the matter critically, it may be seen that this damage results not so much because of the actual occurrence of the illness, but because of its liability to occur. The damage to the market value of the lease is just as great where the tenant has to move out on account of a reasonable fear of illness, as it is where he remains and he or his family actually become sick. The ensuing illness, where it does occur, the seriousness of it, the generality with which it is suffered by the family or other occupants of the premises is evidentiary of damage to the real estate, but is not part of that damage. In those cases, where from the nature of the subject-matter or the state of the pleadings only damages to property are recoverable, proof of illness suffered by the occupants of the premises may be heard for the purpose of showing how much the particular interest in the realty has been damaged, but, except in so far as it reflects itself in diminution of the value of the property, the damage directly resulting from the illness itself cannot enter into the recovery. But, where the plaintiff is entitled to recover all the direct damages resulting to him from the nuisance, the rule is different. In the latter class of cases the person injured may sue for and recover not only any loss occasioned to his interest in the realty by reason of the premises being rendered undesirable through their unhealthful condition, but, if he has suffered illness, he may recover separate and additional damages for that. As to illness suffered by himself personally, the plaintiff may claim damages for pain and suffering, physicians', druggists', and nurses' bills, and for loss of time from his usual labor. As to illness suffered by those members of his family for whose support and maintenance he is legally liable and to whose services he is entitled, he may recover in like manner, except as to the element of pain and suffering. The present plaintiff was the owner of a crop. He sought to recover damages, not only for the time he lost from the crop through illness, but also for the amount he paid to hands hired by him to take his place in the crop. This would have been a reduplication of the damage, and therefore not permissible. He also claimed to have lost a portion of his crop because he could not harvest it on account of the time he lost from sickness. He could not recover both of these. If he could have hired hands and have saved the crop, he should have done this and the measure of damage would have been the sums expended in paying the hired men. A close reading of the case of Swift v. Broyles, 115 Ga. 885, 42 S. E. 277, 58 L. R. A. 390, and especially of the summary of the pleadings given prefatory to the opinion, will show that what we have said above is in harmony with the decision in that case. In many States following the common law the measure is narrower, but in this State, as the Supreme Court said in the case of Langley v. Augusta, 118 Ga. 599, 45 S. E. 490 (98 Am. St. Rep. 133): "The plaintiff is, however, entitled to recover for all legitimate damages of every kind he has sustained. He can recover for the increased expense to which he has been put in the building of bridges, etc., by reason of the construction and maintenance of the diteh. He can recover whatever actual damages he has sustained by reason of sickness, or by reason of injury to his property growing out of the maintenance of the ditch in such a way as to make the same a nuisance. In a word, the plaintiff can recover all the actual damages he has sustained by reason of the wrong complained of on the theory that the ditch as maintained is a nuisance." In Savannah Ry. Co. v. Parish, 117 Ga. 893, 45 S. E. 280, the plaintiff sued for $1,000 damages to the market value of his property, and for $1,000 additional damages on account of his having been made ill as a result of the nuisance. The verdict was for the full amount of $2,000, and this was sustained by the Supreme Court. In G., F. & A. Ry. Co. v. Jernigan, 128 Ga. 501, 57 S. E. 791, though only $200 damages to property was alleged, a verdict of $400 was sustained, there having been an allegation that the plaintiff was further damaged by the sickness of himself and family. See, also, Jones v. Royster Guano Co., 6 Ga. App. —, 65 S. E. 361. 12. Since the damages incurred by the plaintiff under his pleadings and testimony consisted of an injury to the value of a tenancy at will to his person through sickness, and to his purse through loss of services of his wife and minor children, it was not necessary that he should submit figures in dollars and cents, so as to show his loss with arithmetical accuracy. As to such matters the enlightened conscience of the jury is the guide. The Court properly instructed the jury, in substance, that the plaintiff was entitled to recover the actual damages inflicted by the injury, and that they should estimate the amount by their enlightened consciences from the facts submitted. Hayes v. Atlanta, 1 Ga. App. 26 (4), 30, 57 S. E. 1087; Jones v. Royster Guano Co., 6 Ga. App. -, 65 S. E. 361; Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 746. 13. We have given the record much careful consideration. The result of our study is that, while we gravely doubt that the jury reached the right result, we find no reversible error in the record; and the jurors, and not we, of course, are the sole judges of the facts. The charge of the Court was eminently fair and followed in general outline the opinion given above. It is our duty, therefore, to affirm the judgment refusing a new trial. Judgment affirmed.1 SUB-TITLE (II): VEXATION BY LITIGATION 331. SAVILE v. ROBERTS KING'S BENCH. 1697 1 Ld. Raym. 374 THE single question of this case was, if A procures B falsely and maliciously to be indicted of a riot, upon which indictment B is acquitted; whether B have an action against A for so falsely and maliciously procuring him to be indicted? And after verdict for the plaintiff, this was moved in arrest of judgment by Serjeant Lutwyche for the defendant. And it was argued by Serjeant Wright for the plaintiff in Michaelmas term, 8 Will. 3, C. B. And after having been argued 1 [ILLUSTRATIONS: Instance of annoyance to sense of smell alleged to be a nuisance; pig-stye (1611, Aldred's Case, 9 Co. 57). Instances of annoyance to sense of feeling alleged to be a nuisance; cookstove (1871, Grady v. Wolsner, 46 Ala. 381); Chinese laundry (1874, Warwick v. Wah Lee, 10 Phila. 160). Instances of annoyance to sense of hearing alleged to be a nuisance: circus (1869, Inchbald v. Barrington, L. R. 4 Ch. App. 396); dog's barking (1840, Brill v. Flagler, 23 Wend. 354); railroad trains disturbing a church service (1867, Sparhawk v. U. P. R. Co., 54 Pa. 401); pestle and mortar (1878, Sturges v. Bridgman, L. R. 11 Ch. D. 852); church-bells (1851, Soltan v. DeHeld, 2 Sim. N. s. 132); disturbing a church-service by loud talking, singing, and reading (1841, Owen v. Henman, 1 W. & S. 548); dog's barking (1906, Herring v. Wilton, 106 Va. 171, 55 S. E. 547). Instance of annoyance to sense of taste alleged to be a nuisance (1872, Savill v. Kelner, 26 Law Times, N. s. 277). Instances of annoyance to sight alleged to be a nuisance (1611, Aldred's Case, 9 Co. 57; 1866, Barnes v. Hathorn, 54 Me. 124; 1881, Hawkins v. Sanders, 45 Mich. 491). Instances of mixed annoyances alleged to be a nuisance: cemetery (1899, Lowe v. Prospect Hill Cem. Ass'n, 58 Nebr. 94, 78 N. W. 488); pesthouse (1899, Paducah v. Allen, Ky., 49 S. W. 343); stable (1902, Albany Christ Church v. Wilborn, 112 Ky. 507, 66 S. W. 285); hospital (1904, Deaconess Hospital v. Bontjes, 207 Ill. 553, 69 N. E. 748); house of ill-fame (1899, Blagen v. Smith, 34 Or. 394, 56 Pac. 292); concert-saloon (1895, Koehl v. Schoenhausen, 47 La. An. 1316, 17 So. 809). NOTES: "Stove tending to heat wine-cellar as nuisance." (H. L. R., IV, 185.) "Stable as nuisance per se." (H. L. R., XIV, 391.) "Recovery by lessee of premises affected." (H. L. R., XIV, 547; XVI, 145.) CHAPTERS ON THE JURAL NATURE AND ETHICAL BASIS OF THIS RIGHT: Henry T. Terry, "Some Leading Principles of Anglo-American Law," c. XIII, § 434, p. 431.] two or three times at the bar of the Court of Common Pleas, the judges in Hilary term, 8 Will. 3, pronounced their opinions in solemn arguments. And NEVILL and POWELL, Justices, held, that the action would well lie. But TREBY, Chief Justice, was of opinion against the action. Whereupon judgment was entered for the plaintiff. Upon which error was brought for the defendant in B. R. And it was argued by Sir Bartholomew Shower for the plaintiff in error, and by myself [Raymond] for the defendant, Hil. 9 Will. 3, B. R., and by Mr. Hall for the plaintiff, and Mr. Northey for the defendant, Pasch. 10 Will. 3, B. R. And now in this term HOLT, Chief Justice, pronounced the resolution of the Court, that the action would well lie; and therefore all the Court was of opinion, that the judgment ought to be affirmed. And HOLT, Chief Justice, said, that this point is not primae impressionis, but that it has been much unsettled in Westminster Hall, and therefore to set it at rest is at this time very necessary. And first, he said, that there are three sorts of damages, any of which would be of sufficient ground to support this action. 1. The damage to a man's fame, as if the matter whereof he is accused be scandalous. And this was the ground of the case between Sir Andrew Henley and Dr. Burstall, Raym. 180. But there is no scandal in the crime for which the plaintiff in the original action was indicted. 2. The second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty, which has always been allowed a good foundation of such an action. . . . 3. The third sort of damages, which will support such an action, is damage to a man's property, as where he is forced to expend his money in necessary charges, to acquit himself of the crime of which he is accused, which is the present charge. That a man in such case is put to expenses is without doubt, which is an injury to his property; and if that injury is done to him maliciously, it is reasonable that he shall have an action to repair himself. And though this doctrine has been questioned lately, it was always received in ancient times. 3 Ed. 3, 19; 3 Assi. pl. 13; 7 Hen. 4, 31 a; 11 Hen. 7, 25, 26; F. N. B. 116; Stile, 379; Atwood v. Monger. But it was objected at the bar against these old cases, that they were grounded upon a conspiracy, which is of an odious nature, and therefore sufficient ground for an action by itself. But to this objection he answered, that conspiracy is not the ground of these actions, but the damages done to the party; for an action will not lie for the greatest conspiracy imaginable, if nothing be put in execution; but if the party be damaged, the action will lie. Objection: Such actions will discourage prosecutions and there is no more reason that an action should be maintainable in this case, than where a civil action is sued without cause, for which no action will lie; if a man slanders another by suing of an action in a proper court, no action will lie for it. 2 R. 3, 9, 10; Keilw. 26. Answer: 1. There is a great difference between the suing of an action maliciously, and the indicting of a man maliciously. When a man sues an action, he claims a right to himself, or complains of an injury done to him; and if a man fancies he has a right, he may sue an action. 2. The common law has made provision, to hinder malicious and frivolous and vexatious suits, that every plaintiff should find pledges, who were amerced, if the claim was false; which judgment the Court heretofore always gave, and then a writ issued to the coroners, and they affeered them according to the proportion of the vexation. See 8 Co. 39 b; F. N. B. 76 a. But that method became disused, and then to supply it, the statutes gave costs to the defendants. 332. SMITH v. MICHIGAN BUGGY COMPANY 175 Ill. 619, 51 N. E. 569 ERROR to Appellate Court, First District. Trespass on the case by Alfred A. Smith against the Michigan Buggy Company. From a judgment of the Appellate Court (66 Ill. App. 516) affirming a judgment for defendant, plaintiff brings error. Affirmed. This is an action of trespass on the case, begun by the plaintiff in error against the defendant in error in the Circuit Court of Cook County on March 3, 1893. The action is brought for the purpose of recovering damages for the alleged malicious prosecution of an ordinary civil action without probable cause by the defendant in error against the plaintiff in error. The defendant below (the defendant in error here) filed a general demurrer to the declaration. This demurrer was overruled, and a plea of not guilty was filed to the plaintiff's declaration. A trial was had before the Court and a jury. After the introduction by the plaintiff in error (who was the plaintiff below) of all his testimony, the defendant in error moved the Court to take the case from the jury, without introducing any evidence whatever on its behalf. This motion was based upon two grounds: First, that such cases as the present are not maintainable in the State of Illinois; second, upon the ground that the evidence did not show a want of probable cause, or, in other words, did show that there was probable cause. After hearing the arguments of counsel, the Court instructed the jury that the evidence did not establish a case on which the plaintiff was entitled to recover, and that their verdict should be in favor of the defendant. The action of the Court in giving this instruction was duly excepted to by the plaintiff. Thereupon the jury returned a verdict of not guilty, and, after overruling a motion for new trial made by the plaintiff, judgment was rendered in favor of the defendant and against the plaintiff for costs. The plaintiff |