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sisting debt; and will a mere entry of credit by the creditor revive a barred debt, and take the entire account out of the statute? We think not. Entries in books of account are admissible in evidence under certain circumstances (Civil Code, § 387), and an entry of charge or credit in a current mutual account that was within the period of limitation would be evidence tending to take the entire account out of the statute; but, where the statute has run, it is no longer an open account or a present or subsisting debt, and the creditor cannot manufacture evidence for himself by making an entry of credit upon an account on which the debtor was not liable when the entry was made. When a claim is barred, it is the act of the debtor, and not of the creditor, that will take it out of the statutory bar.

An indorsement upon a note or other written obligation is the usual proof of a partial payment. Notwithstanding this, it is held that an indorsement of credit by a creditor upon a note after the statute has run, affords no evidence of payment in favor of the payee, "for the reason that it is an ex parte declaration made by a party in his own favor; and no one is allowed to make evidence for himself." Easter v. Easter, 44 Kan. 151, 24 Pac. Rep. 57. The Supreme Court of Ohio, in determining a similar question to the one presented here, held that "the items of credit in the accountbook of the deceased, given after the statute had barred the action, constitute no evidence that it was the intention of the parties that the articles thus credited should be applied on the barred account as payment." Kaufman v. Broughton, 31 Ohio St. 424. See also, Oberg v. Breen (N. J.), 12 Atl. Rep. 203; Acklen's Ex'r v. Hickman, 60 Ala. 568.

Some

CURTESY CHILD BORN ALIVE. what of a technical question in the law of curtesy arose in Goff v. Anderson, 15 S. W. Rep. 866, decided by the Supreme Court of Kentucky where it was held that under the statute giving the husband a right as tenant by the curtesy in his wife's lands, where there is issue of the marriage born alive, a child is born alive within the meaning of the statute, which after being delivered of its mother, makes a distinct effort to breathe, while the umbilical cord is yet uncut, though no effort is made thereafter. Lewis, J., says:

If, as all know, breathing by a child first born is a true sign of life, an effort to breathe, or in the language of Dr. Combs, a gasping or struggling to get a full inspiration, is equally convincing that life is not yet extinct, just as a cry of pain, though ever so feeble, shows as conclusively that death, however near, has not actually come, as would the voice of a stentor. But it is argued that because the child may not have been living when the naval cord was cut it was not within the meaning of the statute, born alive. "Born" as ordinarily understood, and in fact means, "brought forth," and a child is completely born when delivered, or expelled from and becomes external of the mother, whether the placenta has been separated or the cord cut or not (see 2 Tidy Leg. Med. 154; Ewell Med. Jur. 111); and if not at that instant dead, it is to be regarded as born alive for every legal purpose whatever. To give the word as used in the statute a different meaning, would be simply a perversion, without reason or excuse. Counsel has cited the

case of Doe v. Killen, 5 Houst. 14, where the judge, upon trial of an action of ejectment between the surviving husband and heirs at law, charged the jury that to find for the former they must believe the child was born alive, having an independent circulation and existence of its own, apart from the mother, and by force of the child's own inherent vitality, and, though not directly so stated, it may be inferred the judge intended such independent circulation should exist after the naval cord was cut. We have been referred to no other authority for such view, and we cannot sanction it; for a child when delivered is either alive or dead for all purposes, and to make its legal exist. ence date from the time a physician may in his wisdom see proper to cut the naval cord is without reason, and contrary to the plain meaning and intent of our statute. We think the court properly found the child in question was born alive, and that the appellee was entitled as tenant by curtesy to the land owned by his wife.

MUNICIPAL ASSEMBLY-POWERS OF PRESIDING OFFICER-PARLIAMENTARY LAW-FALSE IMPRISONMENT.-In Thompson v. Whipple, 15 S. W. Rep. 604, the Supreme Court of Arkansas decide an important question of parliamentary law. It is held that the power of a mayor, as the presiding officer of a city council, extends no further upon the occurrence of indecorum on the part of any member, than to bring the fact to the attention of the assembly, which may, if it sees fit, after the member has been heard, order him to withdraw, pending its consideration and action, and it is the duty of the president to enforce that order; but he has no power, in the absence of threatened violence to other members, to order the offender into the custody of the executive officer of the assembly, and exclude him from its deliberations, and, if he assumes to do so, both he and the executive officer who carries out his orders are liable in damage for false imprisonment. Hemingway, J., says:

What, then, are such duties and powers according to the general usages of deliberative bodies? They comprise the duty and power to preserve order and decorum during the deliberations of the body. It is said to be the privilege of any member, and the special duty of the presiding officer, to take notice of any offense during deliberation, and to call the attention of the assembly to it. In such cases the president declares to the assembly that a member named is guilty of irregular or improper conduct, and specifies it. When it has been stated by the president, the member is entitled to be heard in exculpation. The matter is thus fairly presented to the house for its consideration and action, pending which the member should withdraw. Delicacy and custom require that he withdraw, in order that the matter may be fully discussed and considered, free from any restraints of his presence. If a sense of propriety does not constrain him to withdraw, the house may order that he do so, but his failure to do it is a matter for the action of the

house. If the member disregards its order, the president may enforce it. Thus far and no further can we find that the president is authorized to order that a member be excluded. Cushing's Rules of Pro. & Deb. §§ 40, 41; Cush. Law & Pr. Leg. Assem. § 604. When the president has called an offending member to order, and stated the matter of the offense to the house, it seems that he has fully discharged his duty and exhausted his powers in the premises. He thereby transmits the further disposition of the matter to the house. The power to punish is not among his prerogatives; that belongs exclusively to the house, and he can never exercise it save as it is expressly ordered by the house. If he has other powers, the fact has escaped the recognition of writers. They treat him as the servant of the house, vested with powers to act in ordinary cases, but authorized only to execute the will of the house in unusual or extraordinary cases.

It is said that the powers of the speaker is well expressed by Mr. Speaker Lenthall, who, when Charles I. came into the house of commons, and asked him whether any of five members that he came to apprehend were in the house, whether he saw them, and where they were, replied: "May it please your majesty, I have neither eyes to see, nor tongue to speak, in this place, but as the house is pleased to direct me, whose servant I am." But it is argued that the presi dent may enforce the exclusion of an offending member, not by way of punishment, but for the purpose of putting an end to existing disorder. To sustain this view, we are cited to the case of Parsons v. Brainard, 17 Wend. 522. The decision in that case was controlled by a statute of New York, and no reliance is placed by the opinion upon any principle of force out of that State. Mr. Cushing says that when, in the course of proceedings, a quarrel arises between members, which the speaker sees may lead to injurious results, it is his duty to interfere at once, without waiting for the previous order of the house, and, by reason of retraction or apology, compel such members to settle their quarrel immediately, or, by ordering them into the custody of the sergeant at arms, prevent them from leaving the same until they pledge themselves

of proceeding in deliberative bodies would furnish no instance of the assumption of such power. Such history furnishes many instances of such offenses at times when feeling was more potent in the assembly than reason, and when the president, partially at least, under its sway, did not decline the exercise of all his conceded powers; but if any president has ever thus sought to check raging disorder, or command respect for his person, the instance is not called to our attention. As occasions for the exercise of such authority, if justified by usage, have often arisen, under circumstances favorable to its exercise, and as it does not appear to have been exercised on such occasions, we conclude that it does not exist.

THE RIGHT OF AN INDIVIDUAL TO ABATE A PUBLIC NUISANCE.

There is a tendency among a certain class of cases, and among text-writers generally, to limit the right of an individual to abate a public nuisance, to cases where an action could be maintained by him, notwithstanding the unanimous agreement of the common law authorities that anybody may abate a public nuisance. This limitation seems to have been taken without any logical justification, growing out of any natural relation or connection between the two remedies. Indeed, upon a close examination, it seems impossible to find any such relation or con

nection.

To enable an individual to maintain an action for the erection or continuance of a

that the quarrel shall go no further; that the propriety public nuisance, he must show an injury tc

of this course is more manifest where the members resort to violence; and that the speaker may, instead of proceeding at once, wait for the house to indicate such course as it may think proper; that in such cases immediate action by the speaker has been the rule in England, while the rule in this country has been to await the action of the house. Cush. Law & Pr. Leg. Assem. § 666. It will be observed that the arrest is made in such cases to prevent the impending commis sion of personal violence, and to detain the offending member in the house to be dealt with by it after it has heard a statement of his offense and his statement in exculpation. Both reasons would be without force in a case of forcible exclusion for disorderly and indecorous behavior, not threatening personal injury; for there is no threatened violence to be prevented, and the exclusion of the member precludes a hearing and order of the house as to offensive matter. Besides, when the president orders an arrest to prevent an injury being done to another member, he does more than any other person would be justified in doing any. where. We find no authority for the arrest of a member by order of the president, except as we have stated. If noise or tumult in the house-breaches of good order and decorum in the course of proceeding -or an exhibition of disrespect and contempt for the president, would justify a forcible exclusion by him of an offending member, it cannot be that the history

himself as distinguished from an injury to the public. This has been called showing a special injury or inconvenience, sometimes required to be different in kind from that suffered by the community at large, and

1 Horne v. Wildlake, Yelv. 142; James v. Howard, Cro. Ch. 184; Lodie v. Arnold, Salk. 458; Dewey v. White, Mood. & Malk. 56; Hawk. P. C. 695, § 12; Ld. Hale, Harg. L. T. 87; Rex v. Wilcox, 2 Salk. 458; 2 Roll. 31; Vin. Abr. tit. Nuis. W. & V.; 3 Burn's Justice, 224. Mr. Wood (Nuis. 2d ed. p. 805), commenting upon the case of Dewey v. White, says: "It was an action for trespass against the defendants, who were firemen, for pulling down a stack of chimneys in the vicinity of a conflagration, whose condition was such as to endanger the safety of those engaged in extinguishing the fire, the defendants among the rest." The words italicised by me show the anxiety of the learned author to find some special injury to justify the abatement, but an examination of the case will show no foundation for the idea of a conflagration in progress. On the contrary it says the chimneys were part of a house then recently damaged and consumed by fire, and that they were torn down because they endangered adjoining property and the lives of his majesty's subjects.

sometimes required to be greater in degree.2 The only possible theory upon which these conflicting decisions can be reconciled, is that which regards them as struggling to find whether the individual is injured in his private capacity, or merely in his capacity as one of the public, and this having been determined, it makes no difference what may be its kind, or how many others may be suffering the like injury, if it is of the former character, the action lies; if of the latter, it does not.

This special injury has been treated by some of the later decisions as not only necessary to support an action for a public nuisance, but also as indispensable in the justification of an abatement by an individual: but it has in every instance failed to afford any real basis for such justification.

3

Since the case of Butterfield v. Forrester, which was the case of a man negligently running against an obstruction in a highway, it has been held that no man can be heard to complain of an injury which he could have prevented by the exercise of ordinary care; and since the case of Davies v. Mann,1 which was the case of an injury to an ass, fettered and turned upon the highway by its owner, by negligently driving against it, it has been held that every man is liable for a negligent injury, even to a wrong-doer. Both cases require the traveler upon the highway to take upon himself a certain amount of inconvenience, rendered necessary by the acts of wrong-doers, the one to prevent injury to himself, and the other to prevent injury to the wrong doer. In each case the act of the wrong-doer, in the one the obstructing of the highway, and in the other the turning of the fettered ass upon the highway, is held not to relieve the traveler from the duty of due care, and in the latter, that duty is required for the benefit of the wrong-doer himself.

A public nuisance, affecting only the public, cannot, it is said, be abated by a private

2 See note by Judge Bennett in 19 Am. Law Reg. 624, for a masterly review of the authorities. 3 11 East, 60.

4 10 M. & W. 546. Although the theory of special injury originated with this case, it is curious to note that its principle seems to have been entirely forgotten. Goldsmith v. Jones, 43 How. Pr. 415, which was trespass for painting out a sign from an unauthorized structure on a sidewalk, says that defendant was not specially injured by the sign, and is therefore liable, but if it had been merely injured by the negligence of defendant he might not have been liable.

individual, but if the private individual suffers some special injury peculiar to himself, he may abate it. We have just seen, however, that notwithstanding the wrongful act of another injuriously affecting us, we must take due care not to injure him, and this injunction would be of little consequence indeed, if, by reason of the injury we suffer, we may do a willful act, which without the injury would be a willful wrong.

A class of cases has arisen where property was destroyed, under the pretense of abating a public nuisance. Oyster-beds were placed in the navigable portion of a navigable river, interfering with, but not impeding navigation, and the oysters were destroyed." Liquor shops, bawdy houses and gambling dens were set up in violation of law, and liquors, furniture and houses were destroyed. In some of these cases it was held that, inasmuch as the parties committing the acts in question, were no otherwise injured by the nuisances than the rest of the public, they could not abate." In others, however, it is held that the destruction of property is never authorized, and that in cases like those of the liquor houses, bawdy and gambling houses, the nuisance consists in the doing of certain acts, and can only be discontinued by taking hold on the wills of the parties committing them, and that this can only be done by proceedings in a court of justice.7

The reason given by the former class seems weak and puerile, and wholly unsatisfactory. It assumes in the first place that in the cases of nuisances by the erection of liquor houses, etc., no private action by the individual will lie; but it may now be taken as pretty well settled that where the indi

5 Mayor of Colchester y. Brooks, 7 Q. B. 339.

6 Mayor of Colchester v. Brooks, 7 Q. B. 339; Brown v. Perkins, 12 Gray, 89; State v. Paul, 5 R. I. 185; State v. Keeran, Ib. 497; Earp v. Lee, 71 Ill. 193.

7 Gray v. Ayres, 7 Dana, 375; Ely v. Supervisors, 36 N. Y. 297; Moody v. Supervisors, 46 Barb. 665; Brightman v. Bristol, 65 Me. 426; Moody v. Supervisors, 46 Barb. 659; Barclay v. Commonwealth, 25 Pa. St. 503; Miller v. Burch, 32 Tex. 208; Welch v. Stowell, 2 Doug. (Mich.) 332; Rex v. Pappineau, 1 Str. 688. In Gray v. Ayres the court says: "The right is limited to the abatement of that which is a nuisance, or of that which necessarily causes the nuisance, and which cannot exist in its present location and condition without being and producing a nuisance. A house or other substantial impediment erected in a public highway is a nuisance which individuals may abate by pulling down or removing the - ubstance which constitutes or causes the nuisance."

vidual suffers a specific injury from nuisances of this kind, such as loss of a tenant, depreciation in the value of property, disturbance of the comfort and quiet of his home, he may have his action as in other cases.8 The reason given, assumes in the next place that if the action would lie, it would authorize the individual to abate in these cases as in others. If the presence of the right of action would not justify, its absence would be no reason for denying the right to abate. Yet no court would hold that, since there is a special injury, and a right of action by the individual in these cases, the same acts of abatement by destruction of the property would be justified."

The importance of the question, however, lies chiefly in its bearing upon the right of an individual to remove an obstruction from a highway, 10 and in the first place it is of importance to distinguish between a mere encroachment, not interfering with the freedom of passage, and an obstruction hindering or materially interfering with the passage. The former is not a nuisance, and it has even

8 Givens v. Van Studdiford, 86 Mo. 149; s., C., 72 Mo. 129, 4 Mo. App. 498; Francis v. Schoelkopf, 53 N. Y. 152; Baltimore & Pot. R. Co. v. Baptist Church, 108 U. S. 317; Wesson v. Washburn Iron Co., 13 Allen, 95; Peck v. Elder, 3 Sandf. 126; Farrell v. Cook, 16 Neb. 483; Corley v. Lancaster, 81 Ky. 171.

9 In abating a private nuisance, the destruction of that which is not a nuisance is not permitted. Finley v. Herhy, 41 Iowa, 389; Moffett v. Brewer, 1 Gr. 348 Cooper v. Marshall, 1 Burr. 259.

10 That an individual can only remove an obstruction when he is specially injured is beld in Clark v. Lake St. Clair Ice Co., 24 Mich. 508; Harrower v. Ritson, 37 Barb. 301; Larson v. Furlong, 50 Wis. 681; Godsell v. Fleming, 59 Wis. 52; Bidinger v. Bishop, 76 Ind. 244; Bowden v. Lewis, 13 R. I. 189; Griffith v. McCullom, 46 Barb. 561; Goldsmith v. Jones, 43 How. Pr. 415; Brown v. DeGroff, 50 N. J. L. 409. Dicta, to the same effect can be found in the following cases also: Fort Plains Bridge Co. v. Smith, 30 N. Y. 44; Owens v. Sttate, 52 Ala. 400; Field v. Stokely, 99 Pa. St. 306; Hopkins v. Crombie, 4 N. H. 520. In the case of Hopkins v. Crombie, which was the case of an encroachment not interfering with travel, only nominal damages for the removal were allowed. The court says: "This was clearly an illegal encroachment, which rendered plaintiffs liable to be indicted and punished, and which might upon a conviction have been legally taken down, demolished and removed. This encroachment defendants removed, doing no unnecessary damage. The only injury plaintiffs have sustained is that they have been unlawfully deprived of an illegal use of the highway." If the use was illegal and the deprivation was without injury to a legal right, and without a breach of the peace, it is not clear upon what ground defendants are liable, even for nominal damages.

11 Howard v. Robbins, 1 Lans. 63; Clark v. Lake St. Clair Ice Co., 24 Mich. 508; Hopkins v. Crombie, 4 N.

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A right to pass along a highway is probably the clearest instance that can be found of a pure public right, for interference with which only the public officers can institute proceedings in a court of justice. For any injury to this right the individual cannot sue; but the same act which interferes with this right may interfere also with some private right of the individual, and for this he may

sue.

An example of an action of this kind is where an obstruction of a highway injures the trade, business or property of an individual by diverting travel, and the right of action, either by injunction or for damages is well established.14 There is controversy, confusion and contradiction among the authorities as to when a private right is infringed by such an injury, but as to the principle involved, there is no question. On the other hand, for the mere deprivation of the right to pass along the highway by obstructing it, no action for damages will lie, though in consequence the traveler is compelled to go a more circuitous route, and is thereby put to great inconvenience and loss. 15

H. 520; Graves v. Shattuck, 35 N. H. 257; Peckham v. Henderson, 27 Barb. 207; Griffith v. McCullom, 46 Barb. 561; Burnham v. Hotchkiss, 14 Conn. 311; People v. Horton, 5 Hun, 516; Lord Hale De Jur. Mar. 11.

12 City of Big Rapids v. Comstock, 65 Mich. 78. 13 Wood on Nuis. (2d ed.) p. 807; Harrower v. Ritson, 37 Barb. 301.

14 Callanan v. Gilman, 107 N. Y. 360; Town of Sullivan v. Phillips, 110 Ind. 320; Palmer v. Waddill, 22 Kan. 352; Atchison St. Ry. Co. v. Nave, 38 Kan. 744; Miller v. Schenck, 78 Iowa, 372; Jackson v. Kiel, 13 Colo. 378; Shephard v. Barnett, 52 Tex. 638; Wilder v. DeCou, 26 Minn. 10; Georgetown v. Alexandria Canal Co., 12 Pet. 91; Corning v. Lowerre, 6 Johns. 439; Platt v. C., B. & Q. R. Co., 74 Iowa, 127.

15 Powell v. Bunger, 91 Ind. 64; Sohn v. Camborn, 106 Ind. 302; Clark v. Chicago & N. W. Ry. Co., 70 Wis. 593; Shero v. Carey, 35 Minn. 423; Barnum v. Minn. Tr. Co., 33 Minn. 365; Billard v. Erhart, 35 Kan. 611; Bigley v. Numan, 53 Cal. 403. Ir Holmes v. Corthell, 80 Me. 31, plaintiff was traveling along the

seems to be equally well settled, not only that no injunction will be granted to remove such an obstruction, but that unless some consequential injury, such as that to his adjoining property, is caused by the obstruction, no action for damages will lie. It thus seems that Bowden v. Lewis holds that the only special injury for which defendant could have sued, was insufficient to justify the abate

not suffer the very injury which it is unanimously agreed will not support a private

action.

The case of Larson v. Furlong 16 holds that, unless an action to abate or remove a nuisance could be maintained by a private person, he cannot abate it without such action. By an action to abate or remove, we can only understand that the court means an injunction to restrain the erection or to compel the removal of the nuisance. It has been repeatedly determined by the very highest authority that an obstruction of a highwayment, and held him liable, because he did cannot be enjoined, but the only remedy in court is by indictment or information; yet it is held by all the cases and admitted by those which adopt the doctrine of special injury, that an obstruction of a highway actually hindering the passage may be removed by the person desiring to pass.18 On this subject, the case of Bowden v. Lewis 19 presents some very interesting and peculiar complications. A villa fronted upon a bay, in which a structure was erected which obstructed the view of the bay from the villa, and interfered with the approach to it up the bay. The structure was erected without authority, in the navigable portion of the bay. The owner of the villa tore it down. peared that the market value of the villa had been considerably depreciated by the erection of the structure. The court held the owner liable, though it was admitted he had suffered a special injury, but held that the injury which he must suffer, to entitle him to abate, must be an injury to him in his right as one of the public to navigate the bay.

It ap

We have seen above, and it seems to be perfectly well settled by the recent cases, that an injury to adjoining property, caused by an obstruction of a highway, is a special injury for which the owner may sue, while it

highway and encountered a wall across it, and was put to inconvenience and delay in climbing over it, and his workmen were prevented from passing, whereby he lost their services, yet it was held that he could not recover.

16 50 Wis. 681.

17 Georgetown v. Alexandria Canal Co., 12 Pet. 91; Bigelow v. Hartford Bridge Co., 14 Conn. 565; O'Brien v. Norwich & W. R. Co., 17 Conn. 372; Spooner v. McConnell, 1 McLean, 337; Willburn v. Davies, 40 Ark. 83; Schall v. Nusbaum, 56 Md. 512; School Dist. v. Neil, 36 Kan. 617; Hartshorn v. South Reading, 3 Allen, 501; Talbot v. King, 36 W. Va. 6.

18 James v. Howard, Cro. Ch. 184; State v. Flannagan, 97 Ind. 140; Turner v. Holtzman, 54 Md. 148; Larson v. Furlong, 63 Wis. 323; Harrower v. Ritson, 37 Barb. 301; Dimes v. Petley, 15 Ad. & E'. (N. S.) 276; Arundel v. McCulloch, 10 Mass. 70.

19 13 R. I. 189.

Another leading case, Harrower v. Ritson,20 adopts the doctrine that a special injury must he suffered by an individual to enable him to abate, but upon an idea different from either of the cases before examined. That was an action for removing a fence which encroached upon the highway. The fence went some distance into the road, but there was room enough left for one wagon to pass, and without the fence there was not room enough for two. The court held that the removal of the fence not being necessary to enable defendant to pass, he suffered no special injury, and was therefore liable, and that the justification of defendant was limited by the necessity of the case.

That an act is necessary to enable one to enjoy an undisputed right will be no excuse for doing it unless it can be justified upon some ground other than such necessity. If to enable one to enjoy a right, it is necessary to infringe the right of another, though brought about by the wrongful act of the latter, such necessity cannot excuse the infringement. The removal of an obstruction. in a road, then, cannot be justified merely upon the ground that the removal is necessary to enable the party removing to enjoy a right. The real justification, if there is any, must come from some higher principle. An act done by one person may render necessary an act on the part of another to save himself from some injury, but no act of the former, whether rightful or wrongful, can render necessary a wrongful act on the part of the latter, and any act which is not wrongful may be done by the latter, whether necessary or

not.

20 37 Barb. 301. The idea of necessity is also the foundation of Dimes v. Petlev, 15 Ad. & El. (N. S.) 276; Bateman v. Bluck, 18 Ad. & El. (N. S.) 870.

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