things that must be borne with by the owners and occupants of estates, because, although offensive to the eye or cultivated tastes of people, they do not trench upon any recognized legal right; and this is the case even though the thing complained of materially lessens the value of surrounding property." Wood Nuis. 6. To constitute the thing a nuisance, it must "create an annoyance to such an extent as to to render the house uncomfortable as a dwelling-house, and unfitted for the proper uses for which it was designed." Aldrich v. Howard, 8 R. I. 246. The principle common to all cases of nuisance to dwellings is the injury to the health, comfort or convenience of the residents. 2 Story Eq. Jur., § 926. If in the future it should prove that the stable in its use comes within this rule, it should then be pronounced against. Fla. Sup. Ct., March 8, 1888. Shivery v. Shreeper. Opinion by Maxwell, J. [See note, 32 Am. Rep. 141.-ED.] MAUD MULLER. E. W. SANDYS (Nomad). All that year from spring to fall And the judge, like the close-cropped turf, was green bent on him to find some other place to do that act where it will be less offensive." Bl. Com., bk. 3, 218. While this is true, it is not to be inferred that a court of equity will necessarily interpose in the matter. "It is not every case which will furnish a right of action against a party for a nuisance which will justify the interposition of courts of equity to redress the injury, or to remove the annoyance." The jurisdiction of equity is "founded upon the ground of restraining ir-render life uncomfortable in a neighboring house, or reparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits." 2 Story Eq. Jur., § 925. The place may be sufficient ground for restraint in advance where the thing or business is necessarily noxious, but not other wise. When not necessarily noxious, the injunction will await proof at the hearing, or in a trial at law. Counsel for appellants argue the case as if a livery stable, closely adjoining an hotel, cannot be otherwise regarded than as prima facie a nuisance. We do not find this view in accordance with the authorities. See Kirkman v. Handy, 11 Humph. 406; 54 Am. Dec. 45; Burditt v. Swenson, 17 Tex. 489; 67 Am. Dec. 665; Shiras v. Olinger, 50 Iowa, 571; Dargan v. Waddell, 9 Ired. 244: Keiser v. Lovett, 85 Ind. 240-in all of which the contrary view is held. The only case we find different is that of Coker v. Birge, 9 Ga. 425, and 10 id. 336. But this case is virtually overruled in Harrison v. Brooks, 20 Ga. 537, in which the court held the true rule to be "that injunctions will only be granted to restrain nuisances in cases of absolute necessity, in which the evil sought to be prevented is not only probable, but certain and inevitable; and that it will be less disposed to interfere where the apprehended mischief is to follow from such establishments and erections as have a tendency to promote the public convenience." An hotel proprietor sought to enjoin the building of a livery stable within fifty-four feet of the hotel, just as in Coker v. Birge it was sought to enjoin a similar building within sixty-five feet of the hotel; but the court, notwithstanding the previous decisions in the latter case, dissolved the injunction which had been granted by the lower court, giving the rule above quoted as the basis of its action. It will be found that the cases in which livery stables have been held to be nuisances, either in equity or at law, are cases where the proofs established the fact; in some instances the court withholding their final decision till the fact could be tested by actual experience. Even in the case of Coker v. Birge the Supreme Court, on the second appeal, left the final adjudication to be determined upon the opinion of a jury on the facts. The conclusion at which we have arrived is that in the case before us the court did not err in dissolving the injunction; but it is not to be understood that this conclusion involves a decision that the stable may not become a nuisance. The complaint as to noise from the stamping of horses, if the wooden floor is taken out, as the answer states will be done, is removed; and there remains only the question whether, from noisome smells or other discomforts produced by the use of the stable, there will arise a case for the interposition of equity. While it is easy to anticipate disagreeable results, it cannot be said, as a matter of fact, that these will necessarily follow to the extent of a nuisance. Cousidering the improved methods of the day in dealing with various offensive appurtenances in and about dwelling-houses and hotels, so that little discomfort is experienced, it is not unreasonable to suppose that proper appliances in the management of a livery stable may produce similar good results. Conceiving that practicable, there should be no interference until it is shown that the management fails to attain it. What is merely unpleasant from the character of the building or of the business adjoining dwellings or hotels is not a nuisance of which the law will take cognizance. "There are many unpleasant, and indeed offensive, When His Lordship ruled that the plaintiff's claim For the judgment he'd got was not the kind Alas! for maiden, alas! for judge, "Till the stronger spirits closed a bout By finally knocking his spirit out. One morning the judge and a bottle lay With both of their spirits passed away. And the coroner said that they smelled of gin, And his jury decided it might have been. -Toronto (Can.) Saturday Night. CORRESPONDENCE. STENOGRAPHERS' FEES. Editor of the Albany Law Journal: The excessive fees occasionally charged by lawyers have been a subject of frequent comment, and it has often been urged that their extortionate charges tend to prevent litigation by discouraging suitors. There is another abuse connected with the administration of the law which has received less attention, but which is nevertheless equally deserving of notice. By the provisions of section 3311 of the Code of Civil Procedure the fees of an official stenographer for reporting a case in court are fixed at six and ten cents a folio. The concluding clause of the section-"in any other court or case ten cents "-seems to be broad enough to include a case where a stenographer is employed to report proceedings in an action pending before a ref eree; but in practice stenographers do not so construe this provision, and the usual experience is that the fees of the stenographer are far in excess of those of the referee. In the absence of a special agreement, the referee can charge but $6 a day, but usually his fees are stipulated at a greater sum, but no attention is paid to the stenographer. A case recently decided in this city illustrates this practice. It involved several thousand dollars, and was referred to a gentleman of large experience as a referee. At the commencement his fees were stipulated at $12 a day. A stenographer was present, and it was orally stipulated that he should be employed, and should furnish one copy of his minutes to the ref eree and one copy to each party, and that his fees should be taxed as a disbursement by the successful party. The stenographer was engaged before the referee on eight different days, and he reported 771 pages of testimony. The referee wrote an extended opinion, dismissing the complaint. His fees were $275. Before the decision of the referee the stenographer presented his bill, charging fifty cents per page for the first copy of his minutes, and five cents per page for the second and third copies, making his bill in the aggregate $462.60, which was paid by the plaintiffs. This is a fair illustration of the numerous cases which might be mentioned. There is no apparent justice in such excessive charges. It can hardly be contended that the services of a stenographer are more valuable than the services of a referce. A stenographer is usually engaged only during actual hearings, and then hands his notes to employees, who for small compensation copy his notes with the aid of type-❘ writers, making as many copies as are desired. This is a practice that makes the trial of references extremely expensive. Plenty of competent stenographers would be ready to attend any reference for the fees prescribed in section 3311 of the Code, provided they were prohibited from charging more. The proper administration of the law would be furthered if the provisions of that section were amended to include such cases; but at every session of the Legislature MARRIED WOMEN AS PARTIES IN SUITS FOR TORTS. Editor of the Albany Law Journal: The decision of the Court of Appeals in the case of Fitzgerald v. Quann, 16 N. Y. St. Rep'r, 395, is one which most of those who have carefully studied the question of the manner of appearance of married women in actions must have anticipated. Ever since the repeal of section 7 of chapter 90 of the Laws of 1860, together with the amendment thereof made by chapter 172 of the Laws of 1862, it has been clear that a married woman could not sue alone for personal injuries, except in the single instance mentioned in section 1906 of the Code of Civil Procedure. The reason is obvious. Under the common law damages for injuries to the wife belonged to the husband if he chose to reduce them to possession. Mann v. Marsh, 21 How. 372, 375. Section 7 of the "Married Woman's Act" gave these damages to the wife, and she therefore sued alone. On the repeal of that section the rule of the common law was re-established, and the husband again became a necessary party. Section 450 of the Code-a stumbling-block in the way of many-has no application. It does not confer, and does not attempt to confer, property rights. It does not authorize the wife to recover money which belongs to the husband, and since in this class of cases the money does belong to the husband, he must be a party to the action. So much for actions for personal injuries to the wife. The case of Fitzgerald v. Quann shows that the rule of the common law also holds in actions for torts committed by the wife. One curious feature of this case is the space devoted by Judge Peckham to the consideration of section 7 of chapter 90 of the Laws of 1860, as amended by section 3 of chapter 172 of the Laws of 1862. Apparently the judge has overlooked the fact that these sections were repealed in 1880 (Laws of 1880, chap. 245, § 1, subds. 36, 38), and have remained dead ever since. ROCHESTER, N. Y., August 21, 1888. NOTES. J. H. H. THE argument of the question whether dogs are within the meaning of a statute giving a magistrate jurisdiction to order the delivery of goods, which held so dignified a place in the reports of a contemporary last week, as a specimen of forensic wit stimulated by the view of Long Vacation, seems to have lost itself in a confusion about feræ naturæ. Dogs, bears, cats, monkeys and parrots are domita naturæ, and they are not the subject of larceny, not because, like partridges and pheasants, they are feræ naturæ, or that they savor of the land, but because of the contempt our ancestors had for them as subjects of property. This did not always or altogether extend to cats, as our British ancestors, fruges consumere nati, made the killing or stealing of a cat a high misdemeanor, and the killing of the king's cat punishable by a fine of as much corn as would cover her hung up from tip of tail to nose; nor to hawks answering to the call, to steal which, by the law of our Norman ancestors, was felony by common law and statute. If the phrase had been "goods and chattels," horses and oxen would clearly be included, and by parity of reasoning, dogs, and as they are more than ordinarily within the mischief at which the act is directed, they may well be pronounced goods. Mr. Justice Hawkins' illustration of the horse with a bangle on its leg was only the old form of indictment for stealing a collar on a dog over again.-Law Journal. the plaything of an hour; struggling and rising The Albany Law Journal. and falling again, to lay down the gifts of genius ALBANY, SEPTEMBER 8, 1888. CURRENT TOPICS. HE Scotch took Holland last week decidedly. men, drawn hither by the dedication of a statue to Burns in our park. The munificence of a good Scotch lady, now deceased, has enabled our city to obtain a first-rate work of art and a worthy monument to one of the world's most touching singers. When will any of our native-born folk do as much for the adornment of the capital and the perpetuation of any of the representative men of our State and city? The sight was a fair one, of plaids, and kilts, and brooches, and caps, and eagle feathers, and skeen dhus, and dags, and claymores, marching to the inspiriting sounds of the slogan, calling to mind the historic triumphs of the hardy northerners on many a glorious field where they have shown their legs but never their backs. The monument too recalls the glories of the Scotch in literature of prose and poetry, distinguished by such names as Scott and Carlyle. To the lawyer it suggests the merit of their race in furnishing to her southern neighbor such lawyers, orators and magistrates as Mansfield, Lougborough and Brougham. To us it points the smallness of the lawyer's fame in comparison with that of the poet. Contrast for example the career of Mansfield with that of Burns. The one, the greatest judge who has ever adorned the bench of our mother-country; creator of a large branch of jurisprudence; rich, learned, cultivated; companion and defender of kings, friend of poets; persuasive orator, influential statesman; chief justice of a great realm; living to a ripe and revered age. But what is there to commemorate this grand personage and lofty character to the world? Scarcely any thing but his tomb in Westminster Abbey. What utterance of his does the world cherish? Nothing save a few immortal words in the case of a poor negro: "The air of England has long been too pure for a slave, and every man is free who breathes it." Two poets have done something to save his memory from oblivion. Cowper laments the destruction of his library by the Gordon riots; and Pope sings: "How sweet an Ovid was in Murray lost!" at the age of thirty-seven years. But a few songs of his are cherished with smiles and tears and the glow of patriotism, in every clime, and will be, so long as the language lasts and men are capable of happiness, or prey to misery, or love their country. His statue is now raised in a new world, across three thousand miles of ocean, where many of his country people have found a home and asyhis songs. He had few of the good things of this life, but who shall say that he has not had a richer reward than the great lawyer? These contrasted careers are but another proof that he who writes the songs of a nation need not care who makes its laws. This spell and potency of the poet is a mysterious thing, but it is what all acknowledge, from highest to lowest. The beggar Homer is a greater power in this world to-day than Solon or Lycurgus; Dante is greater than Justinian; Burns is greater than Mansfield. All those laborious judgments and polished orations are comparatively unknown; but the patriotism of "Scots wha hae," the laughter of "Tam O'Shanter," the faith of the "Cotter's Saturday Night," the love of "Highland Mary," the woe of "Bonnie Doon," the humanity of the "Field Mouse," the manliness of "A Man's a Man for a' that," the friendliness of "Auld Lang Syne," are the world's familiar and blessed heritage, brave, tender, sincere, the touch of nature that makes the whole world kin, in the light of which the glory of chief justices grows dim and is but faintly heeded. The moral of all this preachment is not that lawyers should turn poets, but that lawyers must not expect the good things of this life and the statues and monuments of poets, and that as the lawyer is certainly the Dives here, the lot of the poet Lazarus may prove the better hereafter. the first "American State Reports," edited by Mr. Probably however had Murray tried to be a poet he 61 Michigan, 36 Minnesota, 92 Missouri, 107 New would have proved but one of "The mob of gentlemen who write with ease." But he had the good things of life in plenty, like Dives. The other was an uneducated peasant, born to the dreadful bane of poverty and some of the most ignoble passions of human nature; to whom as he ploughed the stony fields the muse came and touched his brow with her sacred but chary lips; flattered for a time by the great, and dropped like VOL. 38-No. 10. York. Our familiarity with most of these volumes enables us to express the opinion that the selections are judiciously made. One hundred and seventyfour cases are reported. Multiplying this by six gives ten hundred and forty-four for the year, which certainly is not above ten per cent of the total number of yearly decisions - perhaps not more than eight per cent. Nor is it very much in excess of the average number reported by Mr. Browne in the American Reports. The last four volumes of that series reported six hundred and fifty-six cases, or an average of one hundred and sixty-four to the volume. The volume before us selects from thirteen volumes of State reports, which is at the rate of seventy-eight a year. The last four volumes of the American Reports selected from exactly the same number-seventy-eight. It is evident that the work accomplished by the new series will not be very much in excess of the old. But we believe that the new will give and that the old gave all that the profession generally need have. Mr. Freeman selects very liberally, and if he errs at all errs on the side of liberality. He reports cases of practice now and then which we should not have reported, but if he gives at the same time, as we are inclined to believe he does, all the cases of general and permanent interest and importance, that is not a fault. He has room for it in six volumes; Mr. Browne had not in four. We have always thought Mr. Freeman's head-notes too detailed, dealing too much in legal conclusions and logical steps, and not sufficiently disclosing what the case is about; and we have always thought his foot-notes too monographical and general, and not sufficiently specific. But these are points in regard to which editors and practitioners differ. For example, in the head-note to Callahan v. Gilman, 107 N. Y. 360, the skids case, there are thirty-six lines, containing all sorts of general rules of law about obstructions of streets, derived from the opinion, but no clear statement that this case was about an obstruction by skids across a sidewalk. That such was the case might be suspected from the head-note, but the exact gist of the case might be well stated in six lines, as we think was done in 37 ALB. LAW JOUR. 49. In other words, we think these head-notes refine too much. If we were called on to express an unbiased opinion we should say that Mr. Freeman's head-notes were the better for a beginning student and Mr. Browne's for the practitioner; but as to the foot-notes we should say that for both the plan of specific annotation is the better. In studying a particular principle or searching for a precedent neither student nor practitioner, in consulting case-law, wants to be told of other cases not in point, although on the general subject. For example, in a note on a case of obstructing a street by skids, we should not include cases on obstruction by trees, or crowds, or funerals, or railroads, or ditches, or areas; but we should attach the precedents on those subjects to their appropriate cases. The great collections of leading cases have always vexed us, because their notes compel us to search toilsomely for our grain of wheat in what is to us for the time a great mass of chaff. There is something speciously attractive about a monographic note exhausting the entire general subject, but why should one be compelled to search for the point in question among ninetynine other points not in question, and in which for the time he has no interest? In our judgment it is better to divide the note, and attach its various parts to as many cases exactly to the particular points. In other words, a note should not attempt to supply or supersede a text-book. But if practitioners prefer the other way they can find nothing better than Mr. Freeman's extensive notes, exhaustive, methodical, discriminating, and well fortified by authorities. We observe that Mr. Freeman does not put in the arguments of counsel, nor even an abstract of them. We suspected that he could not, and we think he is right. His notes are a hundredfold better than citations of counsel, two-thirds of which have nothing to do with the case, and the rest are generally in the opinion. There is no table of cases cited, and this we deem a serious omission. It does not occupy much room, and it is a great convenience to a case hunter. This the American Reports always gave. There can be no question however that this series is infinitely superior to any other current series in every respect, and that it will be not only extremely valuable to the practitioner but quite indispensable to the intelligent and successful pursuit of his business. The profession owe a debt of gratitude to Isaac Grant Thompson, who first proposed and executed this scheme twenty years ago. IN NOTES OF CASES. N State v. Wordin, Connecticut Supreme Court of Errors, Dec. 1, 1887, it was held that the ordinance of the city of Bridgeport requiring every physician having any patient within the city limits sick with small-pox or varioloid, or other infectious or pestilential disease, to report the fact to the mayor or clerk of the board of health, together with the patient's name and the street and number where treated, and imposing a fine of fifty dollars for each violation of the ordinance, is not unconstitutional. The court said: "The purpose of assembling in communities being the promotion of the welfare of all, the Legislature is under obligation to place the resulting burdens as equally as possible. It is not to subject one to requirements so much more burdensome than those placed upon others as to violate the great principles of common rights, the fundamental principles and purposes of the social compact, or shock the sense of justice. To this test all laws may be subjected. Tried by this, is an ordinance which requires one to lose a small portion of his time that the lives of many may be saved, offensive to the Constitution? An ordinance requiring the person who, in the night season, should first discover a dwelling-house in the city to be on fire, to turn aside and arouse the inmates and sound the alarm, without compensation, would not shock any one. Nor, we think, does one requiring the person who first discovers in a crowded street the presence of a contagious, fatal disease, to notify, without compensation, the official charged with the duty of preserving health and protecting life therein. If to compel this gratuitous service is to violate the principles of the In his concession that the ordinance would be valid in the ravages of pestilence, under presence of an overwhelming necessity to prevent public calamity, the defendant concedes the whole case. An ordinance of this character must be intensely practical. A proper regard for human life demands that a contagious, fatal disease shall be barred rather than driven out. The inequality of burden of which the defendant complains is only in seeming. Persons offering their services to the public as healers of disease, and requiring pecuniary compensation therefor, thereby assert their ability to detect the presence of it when the great mass of the people cannot. The people accede to the truth of their assertion, and in the matter of life surrender themselves to their keeping. Of course an ordinance in the interest of life must detect the presence of a fatal contagious disease at the earliest possible moment. Therefore with impartial action it compels that member of the community who is the first to have sight and knowledge of it to give note of warning to others from whom its presence is hidden. It would be idle to require indeed there would be danger in accepting-this service from those who cannot see or do not know. The burden is made to rest upon every member of the only class which is in a condition to contribute any thing to the accomplishment of the purpose of the ordinance." social compact, it would be better to dissolve and reorganize. The Constitution of the United States protects the individual from the taking of his property without due process of law, from the taking for public use without just compensation, from slavery or involuntary servitude, and secures to him the equal protection of the law. In effect, that neither life, liberty nor property may be taken except upon judicial determination, made upon hearing according to established rules of justice and precedents of courts, applied equally to all; that neither service nor property may be taken from any one for the pecuniary advantage of the public except upon just compensation, ascertained upon hearing in due process of law; that no one may be compelled to render service to another; and that the eye of the law shall not see any distinction of race or color. But these provisions place no limitation upon the power of the Legislature of this State to require gratuitous service from one member of the community in the protection of the lives of all, other than that which would have been equally upon it in their absence, namely, that it shall not violate the fundamental principles and purposes of the social compact. These provisions and our legislative enactments for protection of life from fatal pestilence are on different planes. They move upon parallel lines; they never conflict. Courts in many instances have approved of laws forbidding the use of buildings for specific purposes, forbidding individuals from exercising cer- In Little v. White, South Carolina Supreme Court, tain trades within specified limits, restricting them July 13, 1888, it was held that the two subscribing as to the manner in which they shall carry on cerwitnesses to a deed need not sign in the presence tain kinds of business; all this upon the principle of each other and of the grantor, nor need the granthat no one may be permitted so to use his prop- tor sign in the presence of both witnesses; but it is erty as to injure the health or peril the life of sufficient if the grantor signs, seals and delivers the another. In case of fires in cities the public au- instrument in the presence of one subscribing witthorities have been protected in the destruction of ness, and afterward acknowledges the signing, seala building for the purpose of breaking the combus- ing and delivery in the presence of another witness, tible chain of communication, without compensa- who then subscribes his name. The court said: tion to the owner, because his property had be- "There can be no doubt that two subscribing witcome a source of danger to that of others, although nesses are necessary to the validity of a deed dewithout fault of his. Individuals are compelled to signed to convey real estate (Craig v. Pinson, suffer a modified imprisonment because some per- Cheves, 272), but we know of no law which reson afflicted with a contagious, fatal disease, has quires that these two witnesses should be together without their knowledge come into their presence, when they witness the signing by, or acknowledgand made them possible means of communicating ment of signature by the grantor. it to others. The State may compel a citizen to re- such authorities as we have been able to find show sist invasion; to assist the sheriff in the protection that there is no such requirement. In Parke v. of life, in the enforcement of process, and in the Mears, 2 Bos. & P. 217, a bond having been exepreservation of public peace. Under these circum- cuted by A. and attested by one witness, was carstances the constitutional right to compensation for ried into an adjoining room and shown to B., who service stands in abeyance. Equally so when the was desired to attest it also, which he accordingly matter in hand is the defense of the public from a did in the presence of A., and it was held that the coming fatal pestilence. In these several instances, bond was duly executed, although the other attestnot because the individual is using either his prop-ing witness was not present when B. signed as a erty or his time to the injury of any other, nor because he is a source of danger to any other, but for this equally well-grounded reason, namely, that he alone happens to be in a position where he could serve the community in an emergency involving life; and in such case it is the duty of the State to make use of him as its most effective instrument. On the contrary, witness, nor was B. present when the other attesting witness witnessed the signature. This case is cited with approval in 2 Stark. Ev. 375, when discussing the requisites necessary to a due execution of a deed. So in 2 Greenl. Ev., § 295, it is said: 'In the proof of signing and sealing it is not necessary that the witnesses should have seen this actu |