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court can compel a reluctant husband to cohabit with his desirous spouse, in the ordinary legal sense of that verb. The process seems rather inquisitorial. And yet those Boers think themselves a free people!
pellant happy to waste natural gas, for the want of which others are made to suffer and be unhappy, as the direct result of such wqste, then the pursuit of such happiness is not an inalienable right, but a positive wrong."
EXEMPLARY DAMAGES. — In a recent number of NOTES OF CASES.
NUISANCE. — In the modern system of apartment houses tenants must make up their minds to endure some discomfort from unavoidable noise made by other tenants and by the necessary machinery in the buildings. Many years ago a New York court refused to restrain a tenant from trundling his baby carriage over the heads of the plaintiff and his family who lived on the floor next below. In McLaughlin v. Bohm, 20 Misc. 338, the New York Supreme Court held the defendant liable to pay his rent, although he claimed an eviction by reason of the noise made by a pump on the premises. The defendant's testi mony was that " the vibration caused the chandeliers to rattle, crockery and glassware to fall from shelves, plaster to fall, and produced an illness akin to sea sickness in defendant's wife." But the court thought that " in view of the fact that the house was not much more than a year old and that the first floor was constructed with iron beams with concrete and double flooring and sixteen-inch walls, the testimony seems hardly credible."
WASTE OF NATURAL GAS. — Has not a man a right to waste his own property? (For example, the Bradley-Martin ball.) But the Indiana Supreme Court say that lie has no right to waste his own when the waste may injure others. In Townsend 7'. State, that court held that an act declaring it a misdemeanor to burn natural gas in flambeau lights is constitutional. The court liken the case to legisla tive measures for preserving game and fish, and in answer to the argument that the act infringes the citizen's right to " pursue his own happiness," very acutely observe : — "While our republican government guarantees the right to pursue one's own happiness, yet that government is charged with the duty of protecting others than appellant in the pursuit of their happiness, and hence the inalienable right to pursue one's own happiness must necessarily be subject to the same right in all others. Hence, when that right is asserted in such a manner as to conflict with the equal right to the same thing in others, it is not an inalien able right, nor a right at all, but a wrong. This demonstrates the wisdom of the maxim that true liberty must be regu lated and restrained by law. If, therefore, it makes ap
the '• American Law Review " Judge Thompson takes the ground that " exemplary damages cannot be bottomed on nominal damages." Of this the •' New York Law Journal " remarks that it amounts to little more than a dogmatic personal opinion. Vell, how much more? We think Judge Thompson is clearly right. The notion that a man shall be punished in damages for an act that produced no injury seems to us extremely illogical. The " Journal " says : — fi On one side of the controversy may be cited Stacy г*. Portland Pub. Co., 68 Me. 279, and Girard -•. Moore, 86 Texas, 675, holding that where no actual damage is shown there can be no recovery of exemplary damages; and on the other, Railway Co. -,: Sellers, 93 Ala. 9, Hefley v. Baker, 19 Kan. 9-12, and Wilson -'. Vaughn, 23 Fed. Rep. 220, holding to the contrary."
The "Journal " might have added to the former class Kulm v. Chic. etc. R. Co., 74 Iowa. 137; Kennedy ?'. Woodrow. 6 Houston, $2; and to the latter probably Bergmann v. Jones, 94 N. . 54.
CRUELTY то WIFE. — A husband may not have a divorce when his wife left him because he suffered his mother falsely to accuse her of larceny and beat her till the blood ran. So say the Virginia court in Hutchins v. Hutchins, 93 Virginia, 68. The court observe that the husband is still entitled to "be obeyed and respected as long as he deserves respect and obedience." Respected, yes; obeyed.no! And although the husband still has the right to dictate the place of their joint residence, we deny that he has any right to compel the wife to live with his mother, apart from him, while he is permanently absent in another State, carrying on business, as was the fact in this case.
CHILD. — A minor as large and strong as his father is not a " child" within the statute of cruelty to children. Collins v. State, 97 Ga. 433. Л child prematurely born of a mother four or five months pregnant is not a " person " within a statute giving a cause of action for negligent death to the administration. Dietrich тл Northampton, 138 Mass. 14; 52 Am. Rep. 242.
