N. Y., the biography of John Van Buren, which was to appear in the present number of the LAW JOURNAL, will be deferred until Saturday, May 7. The death of his son is a heavy blow to Mr. Proctor. He was a young man of great promise, with many surroundings that made his life happy for himself and his friends. In this his sudden bereavement Mr. Proctor has the deep sympathy of his many friends.

NOTES OF CASES.

IN Kavanagh v. Barber, Court of Appeals of New

title and possession of premises damaged by a private nuisance are in the wife, an action will not lie therefor by the husband, although he also lives on the premises, and supports the family. The court said: "The case, in its legal aspects, is novel. The house was owned by the plaintiff's wife, and had been occupied for fourteen years by the plaintiff and his family, and was so occupied when the manufactory of the defendant was built. The plaintiff, so far as appears, had no lease or other interest in the realty. The family, as is to be inferred, lived in the house by sufferance of the wife. The possession of the house followed the legal title. Both the occupation and the possession, in a legal sense, was that of the wife, and not of the husband. Martin v. Rector, 101 N. Y. 77. The husband supported the family. The question presented is whether, under these circumstances, a private action can be maintained by the husband for the discomfort caused by the offensive vapors. We find no precedent for such an action by a person so situated. Mr. Justice Blackstone defines a private nuisance to be any thing done to the hurt and annoyance of the lands, tenements or hereditaments of another' (3 Comm. 215), which definition, as said by Judge Cooley (Cooley Torts, p. 565), embraces not a mere physical injury to the realty, but any injury to the owner or possessor as respects his dealing with, possessing or enjoying it. Interference with public and common rights creating a public nuisance, when accompanied with special damage to the owner of lands, also gives a right of private action. The public nuisance as to the person who is specially injured thereby in the employment or value of his lands becomes a private nuisance also. Upon the evidence in this case on the part of the plaintiff, the defendant maintained a public nuisance. The air of the neighborhood was, for a long distance, infected with the disagreeable odor of the asphalt, and rendered residence within the area uncomfortable, and life therein less enjoyable. Upon these facts, the plaintiff's wife, who owned and lived in the premises, sustained an actionable injury. Mills v. Hall, 9 Wend. 315; Francis v. Schollkopf, 53 N. Y. 152. The trial judge charged the jury that the plaintiff could not recover for any injury to the premises, or for diminished rental value, for the reason that the title was in the wife. But the wife, who both owned and occupied

ious trade, producing offensive and noisome odors, smoke or noises, but, from the case of Morley v. Pragnell, Cro. Car. 510, down, they have been brought and maintained (so far as we can discover) by the owner or lessee of the realty affected by them. See Wood Nuis., p. 577. We perceive no legal distinction between the plaintiff's situation and that of a lodger or guest in the house, or why, if the plaintiff can maintain an action, each member of the household cannot maintain one likewise for her or his separate injury of the same kind. The plaintiff's situation appeals more strongly perhaps than the others for an extension of the rule as heretofore understood. But there was a public remedy open to him by public prosecution, and we think the public interests would not be subserved by opening the door to actions of this character, where the claimant has no property right to be protected from infringement. The language of Chief Justice Shaw in Quincy Canal v. Newcomb, 7 Metc. (Mass.) 276, is appropriate here: He cannot have an action, because it would lead to such a multiplicity of suits as to be itself an intolerable evil.'"

In Euler v. Sullivan, Court of Appeals of Maryland, March 17, 1892, an action for damages to property caused by the smoke, steam and cinders from defendant's chimney, the court instructed the jury, on the part of plaintiff, that if defendant erected a boiler and engine near to the house and lot of plaintiff, and smoke, steam and cinders escaped from the chimneys of defendant and entered the premises of plaintiff so as to render her house and premises less comfortable, enjoyable or useful than they otherwise would have been, then plaintiff is entitled to their verdict." Held, that such instruction was too broad, and was misleading. court said: "In the recent case of Fertilizer Co. v. Malone, 73 Md. 276, this court said that no principle is better settled than that where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner for which an action will lie.' Vide cases there cited. But all of the authorities hold that the injury must be of a character to dimin1sh materially the value of the property, or seriously

The

interfere with the ordinary comfort and enjoyment of it, such as would entitle the party injured to substantial damages. Adams v. Michael, 38 Md. 123. And in the case of Dittman v. Repp, 50 id. 522, this court held, that in determining the question of nuisance from smoke or noxious vapor, reference must always be had to the locality, the nature of the trade, the character of the machinery, and the manner of using the property producing the annoyance and injury complained of. A party dwelling in the midst of a crowded commercial and manufacturing city cannot claim to have the same quiet and freedom from annoyance that he might rightfully claim if he were dwelliug in the country. Every one taking up his abode in the city must expect to encounter the inconveniences and annoyances incident to such community, and he must be taken to have consented to endure such annoyances, to a certain extent. Applying these well-settled legal principles to the facts of this case, we are of opinion that there was error in the general legal proposition asserted in the appellee's prayer, that the jury must find for the plaintiff if the injury complained of rendered her premises less comfortable, enjoyable or useful than they otherwise would have been. The prayer was entirely too general, and was misleading. As was said in the case of Dittman v. Repp: The question is whether the nuisance complained of will or does produce such a condition of things as, in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and as, in view of the circumstances of the case, is unreasonable and in derogation of the rights of the complainant.' The law in these cases does not regard trifling inconveniences and annoyances. We find no error in the court's refusal to grant the defendant's first and second prayers. They both proceed upon the erroneous assumption that the plaintiff could not recover if the wrong complained of was committed by another jointly with the defendant. The first prayer directs that if the dwelling of the plaintiff is situate in a locality where there are other factories, in addition to the factory of the defendant, which use steam power, emit smoke and steam, which intermingles with the smoke and cinders from the defendant's factory, fills the air of the locality of the dwelling of the plaintiff, and that the plaintiff's dwelling is not injured by vibration or noise caused by the working of the engine or machinery on the premises of the defendant, then the jury must find for the defendant. And the third prayer directs that if the defendant conducted his paper-box factory in a fair, reasonable way, and erected it in a locality where there are other factories using machinery and steam power similar to the factory operated by the defendant, then the plaintiff is not entitled to recover damages for any discomfort or annoyance which may arise from the ordinary use and operation of the engine and machinery on the premises of the defendIt will at once be seen that the theory of these two prayers is entirely at variance with the law laid

ant.

down by the court in Woodyear v. Schaefer, 57 Md. 9-11, and in Fertilizer Co. v. Malone, 73 id. 268. In the former of these cases, the court said: 'It is no answer to a complaint of nuisance that a great many others are committing similar acts of nuisance upon the same property. Each and every one is liable to a separate action. Each element of contributive injury is a part of one common whole, and, to stop the mischief of the whole, each part in detail must be arrested and removed.' And in the latter case it is held 'that in the eye of the law no place can be convenient for the carrying on of a business which is a nuisance, and which causes substantial injury to the property of another, nor can any use of one's own land be said to be reasonable which deprives an adjoining owner of the lawful use and enjoyment of his property; and this, too, without regard to the locality where such business is carried on,' and although the business may be lawful, and useful to the public, and the best and most approved appliances and methods may be used in its conduct and management."

In Rosenkranz v. Lindell Ry. Co., Supreme Court of Missouri, December 22, 1891, an action for personal injuries to a child four years old, it was held that the jury may take into consideration, as an element of damages, loss of earnings after he shall have obtained majority, though he has never earned anything, and though no one can tell with any certainty what his earning capacity will be. The court said: "The chief objection to this instruction is made to the damage authorized for loss of earnings after he shall have attained the age of twenty-one years.' It is urged that there was no evidence from which the jury could have inferred what physical capacity for labor plaintiff would have possessed, if he had not been injured, or what capacity he will have with his disability, if any, resulting from the injury. The injuries to plaintiff were very serious. One arm was broken, and the elbow dislocated, leaving the arm somewhat crooked; the scalp was torn from one side of the head; the skull was fractured and a piece as large as a half dollar removed; and the facial nerve was divided, causing paralysis of the face, which drew the mouth round to one side, greatly disfiguring him. The doctor who treated plaintiff was not certain that the injuries to the head would not cause apoplexy or epilepsy, or that the arm would be permanently restored. It is well settled that prospective damages to adults, on account of impairment of earning capacity in the future, is a proper element of damages in cases of personal injuries. Whalen v. Railroad Co., 60 Mo. 323; Pry v. Railroad Co., 73 id. 124; 2 Sedgw. Dam. (8th ed.), § 485. Ordinarily damages will not be awarded to compensate for losses not yet experienced, on mere conjectural possibility that such loss will occur. In the case of an adult, proof should be made of previous physical condition and ability to labor or follow his usual avocations, as well as his condition since the injury, to enable the jury to properly find the pecuniary damage,' 5 Am. & Eng. Enc. Law, 41, and au

Greenleaf says (1 Ev., § 364): "And whatever difference of opinion may once have existed on this point, it seems now to be agreed that the same person cannot be both witness and judge in a cause which is on trial before him. If he is the sole judge he cannot be sworn, and if he sits with others, he can hardly be

ment of the earning capacity of one in his infancy is as great a damage to him as though he had not been injured until the day he reached his majority. That he would have an equal right to compensation logically follows. This plaintiff had never earned anything, and what his ability to labor or his capacity for earning money in business pursuits will be in the future no one can tell with any certainty. It is properly held, in such case, in the absence of the existence of direct evidence, that much must be left to the judgment, common experience and 'enlightened conscience of the jurors, guided by the facts and circumstances in the case.' Grogan v. Foundry, 87 Mo. 326; Nagel v. Railroad Co., 75 id. 658; Davis v. Railroad Co., 60 Ga. 329; Fisher v. Jansen, 128 Ill. 551; City of Chicago v. Major 18 id. 349; Railroad Co. v. Miller, 51 Tex. 275."

IT

JURORS AS WITNESSES.

will probably be news to most lawyers that a juror is ever competent as a witness on the trial of a case which he is impanelled and sworn to hear. That was the original function of the juror or compurgator, but that any trace of it had survived to this day, will come to many of the profession as a surprise. But in State v. Vari, Supreme Court of North Carolina, January 23, 1892, an indictment for larceny of money from a mining camp, one of the jurors sitting in the case was allowed to testify that the mining camp was within the county alleged, and then take part in the verdict, and this was held no error. The court said: "It is certainly not to be commended as a general practice to call a juror from the box to testify in the trial of a case then being heard; but it seems that there are certain cases where that will not be regarded as sufficient to set aside a verdict, and notably in those cases where the juror is not called to testify as to the general facts and circumstances which constitute the alleged offense, but only as to some isolated, particular matter, such as 'value' or 'venue.' In Rex v. Rosser, 7 Car. & P. 648, it was held that where, in a criminal prosecution, it is essential to prove the particular value of an article, the jury may use the general knowledge which any man can bring to the subject; but if any of the jurors have a particular knowledge on the subject, arising from his being in the trade, he ought to be sworn and examined as a witness.' See Greenl. Ev., § 384n. Mr. Wharton says that a juror who has knowledge of any particular fact, must give notice, so that he may be sworn and examined. ** * Although each juryman may apply to the subject before him that general knowledge which any man may be supposed to have, yet if he be personally acquainted with any particular material fact, he is not permitted to mention the circumstances privately to his fellows, but he must submit to be publicly sworn and examined, though there is no necessity for his leaving the box, or declining to interfere in the verdict.' 1 Whart. Ev., § 602, and authorities." And the court add, that it cannot alter the result in this case that there was an order excluding the witnesses from the court-room during the hearing of the testimony."

sibility of his own testimony, or of weighing it against that of another. Whether his knowledge of common notoriety is admissible proof of that fact is not so clearly agreed." In a note to this paragraph in the thirteenth edition it is said: "This principle has not been extended to jurors. Though the jury may use their general knowledge on the subject of any question before them, yet if any juror has a particular knowledge as to which he can testify, he must be sworn as a witness." Citing Rex v. Rosser, 7 Car. & P. 648; Stones v. Byron, 4 Dowl. & L. 393. The head-note in the former substantiates the remark in the note, but the decision does not. The case was an indictment for larceny, and the jury asked the court "if they were at liberty to put a value on the property themselves?" To which Vaughan, J., answered that if they doubted the evidence of value, they might, and added, some of you may perhaps be in the trade." But Parke, B., said, "If a gentlemen is in the trade, he must be sworn as a witness." No juror was sworn, and it is evident that it was not held that a juror could be sworn, but only that a "gentleman in the trade" might be. The latter case simply held that an attorney in a cause may not act both as advocate and witness. Not a word about jurors.

Wharton goes into the subject more fully (1 Ev., § 602). He says a juror "cannot be permitted to give evidence to his fellow-jurors without being so sworn." Citing several cases which we shall examine. The Rosser Case, supra, has been explained. In Manley v. Shaw, Carr. & Marsh. 361, an action on a bill of exchange, a juror stated to the court that the stamp was forged, and Tindal, C. J., said "he should be sworn as a witness to give evidence to his brother jurors, before they can act upon his opinion." "His lordship then told the juror that if he thought proper, he might be sworn and examined as a witness to prove the forgery. But the juror declined. Rex v. Sutton, 4 M. & S. 532, is not at all in point. In Dunbar v. Parks, 2 Tyler (Vt.), 217, trover for a horse, a juror was sworn in his place "to a material fact," but the court would not suffer him to testify in a way to indicate his opinion on the merits. In State v. Powell, 2 Halst. 244, it was simply held that one who was a juror on the coroner's inquest might testify on the trial to facts which came to his knowledge from personal observation. In Howser v. Commonwealth, 51 Penn. St. 332, the court said: "Jurors are not incompetent witnesses in either civil or criminal issues. They have no interest that disqualifies, and there is no rule of public policy that excludes them." But in that State the matter is regulated by statute, "which requires every juror to disclose his knowledge of any thing relative to the matter in controversy in open court, before the jury retires to make a verdict." To the objection that such a practice prevented an impartial trial, the court answered that counsel could have examined the juror and challenged him. As to the constitutional right to confront the witnesses, the court held that this does not mean impeaching their character, but means cross-examination in the presence of the accused." In McKain v. Love, 2 Hill (S. C.), 506, there was a motion for a new trial because a juror had stated in the jury-room that he had heard that one of the witnesses for the plaintiff was his kept mistress. The motion was denied, but the court, obiter, referred to "an anonymous case in Salkeld, 405," where "it is said that if a juror know of his own knowledge any thing material to the matter in

issue, the fair way is to tell the court, so that he may be sworn as a witness." In Sam v. State, 1 Swan, 64, a new trial was granted because a juror disclosed in the jury-room facts not in evidence. The court remarked: "The rule was established, at an early day, that if a juror possessed any knowledge in respect to a matter in issue, as to which he might testify, he must be sworn as a witness, and give his testimony openly in court as other witnesses. 3 Bl. Com. 375.” In Anshicks v. State, 6 Tex. App. 524, a new trial was granted because a juror in the jury-room disclosed facts not in evidence and bearing against the credibility of a witness. The Code of Criminal Procedure of that State requires the jurors to make known their knowledge of any fact before final submission, and in case of failure to do so, allows them to come in with the others, after retiring, and to be sworn and testify. In Foster's Will, 34 Mich. 21, the court said, obiter, "Where a juror is to give testimony he must do it in open court."

The ancient cases of Bennet v. Hartford, Styles, 233, and Fitz-James v. Moys, Sid. 133, support the text. In Heath's Case, 18 How. State Tr. 123, a trial for perjury, a juror was sworn and gave very material testimony against a witness tending to show that he was an unwilling witness.

By the California Code of Civil Procedure the judge or a juror may be called as a witness by either party, but the court has power to order the trial to be postponed or suspended, and to take place before another judge or jury. The provision of the New York Code of Criminal Procedure is similar to that of the Texas Code of Criminal Procedure, stated above.

We are inclined to believe that in the absence of statutory provision, it would not be held at this day, certainly in a case of felony, that a juror may testify as a witness in the cause which he is sworn to decide impartially on the evidence. Such a proceeding would become absurd if, for example, the party should give evidence of contradictory statements made by the juror-witness. Or suppose the juror had got on the panel by swearing that he knew nothing of the case, and his recollection was afterward refreshed, and he desired to testify this would leave the party in a singular plight. If it should be urged that the juror should be allowed to testify only to matters of common notoriety or observation, then the necessity for calling him disappears, for he is not an indispensable witness to such matters.

STATUTES-ALIEN CONTRACT LABOR

LAW.

UNITED STATES SUPREME COURT, FEB. 29, 1892.

ing in England. In that month the plaintiff in error made a contract with him, by which he was to remove to the city of New York and enter into its service as rector and pastor, and in pursuance of such contract Warren did so remove and enter upon such service. It is claimed by the United States that this contract on the part of the plaintiff in error was forbidden by chapter 164, 23 Statutes, page 332, and an action was commenced to recover the penalty prescribed by that act. The Circuit Court held that the contract was within the prohibition of the statute, and rendered judgment accordingly (36 Fed. Rep. 303), and the single question presented for our determination is whether it erred in that conclusion.

The first section describes the act forbidden, and is in these words:

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that from and after the passage of this act it shall be unlawful for any person, company, partnership or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States, its Territories or the District of Columbia, under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its Territories or the District of Columbia."

It must be conceded that the act of the corporation is within the letter of this section, for the relation of rector to his church is one of service, and implies labor ou the one side with compensation on the other. Not only are the general words "labor" and "service" both used, but also, as it were to guard against any nar row interpretation and emphasize a breadth of meaning, to them is added "of any kind," and further, as noticed by the Circuit judge in his opinion, the fifth section, which makes specific exceptions, among them professional actors, artists, lecturers, singers and domestic servants, strengthens the idea that every other kind of labor and service was intended to be reached by the first section. While there is great force to this reasoning, we cannot think Congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers. This has been often asserted and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances

STATES.*

The Alien Contract Labor Law (23 Stat., p. 332) prohibits the importation of "any " foreigners under contract to perform labor or service of any kind." Held, that it does not apply to one who comes to this country under contract to enter the service of a church as its rector.

Nerror to the Circuit Courtown En

N error to the Circuit Court of the United States for

Seaman Miller, for plaintiff in error.

Asst. Atty.-Gen. Maury, for the United States. BREWER, J. Plaintiff in error is a corporation duly organized and incorporated as a religious society under the laws of the State of New York. E. Walpole Warren was, prior to September, 1887, an alien resid*36 Fed Rep. 303, reversed.

which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act. As said in Stradling v. Morgan, Plow. 205: From which cases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have expounded to extend to but some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the Legisla ture, which they have collected sometimes by consid ering the cause and necessity of making the act, sometimes by comparing one part of the act with another, and sometimes by foreign circumstances."