der the Constitution, is to be deemed as being" among the several States?" The Constitution, as interpreted by the court, whose decisions upon this subject are final, has placed under the exclusive regulation of Congress the subject of transportation among the States, so far, among other things, as relates to the matter of charges, in order that it may be protected from conflicting and adversely discriminating State legislation. | See authorities above cited. Is not a case such as we have supposed, or the case now before us, transportation among the States, within this purpose of the Constitution, as really as would be a shipment and trans and out of the limits of the State. The court recog nized the fact that Congress had no power to thus interfere with the exclusively internal commerce of a State, and that the law of Congress (restricting the common-law liability of carriers) could be sustained in its application to this case, only in case the transportation in question should be deemed to be within the clause of the Constitution empowering Congress "to regulate commerce with foreign nations and among the several States." It was decided that such trausportation was included in "commerce with foreign nations," a matter of "external concern," as reportation of goods from New York, Chicago or Mil-spected the State of California, and subject to the waukee to Minnesota, as to which unquestionably, un- regulating power of Congress. If such transportation der the decisions above cited, Congress, and not the | from San Francisco to San Diego, in the same State, several States, would have the power to regulate? We was "foreign commerce (transportation) within the are unable to state any principle which supports the meaning of the Constitution, because the voyage was relator's claim of jurisdiction to determine what for the most part upon the high seas, the common charges may be made for the transportation of freight highway of nations, is not the transportation from Duthrough the State of Wisconsin. Whether the result luth to Mankato, by a route which for the most part would have been different if the order had prescribed is wholly within the territory of Wisconsin, commerce rates only with respect to so much of the route as is (transportation) "among the several States?" Has within our own State we do not decide. The mere fact not the State of Wisconsin at least as much interest that Duluth and Mankato are both in this State, and and as large a jurisdiction concerning the transit of that a part of the line of road of this respondent is also goods by carrier across its territory as have the na here, and operated under our law, cannot authorize tions of the world, including our own, in the voyage our State authorities to regulate the operations of the merely from port to port in the State of California? 148 miles of road which is wholly within the State of How can the one be deemed foreign and the other exWisconsin, and which there exists, and is managed, of clusively internal, as respects the State of Minnesota? course, under the laws of that State, subject to such We are unable to make any distinction, and it seems limitations as the national Constitution may impose. to us that our decisions must be controlled by that The order in question applies to all freight transported above cited. Steamship Co. v. Board, 9 Sawy. 253, was over this route from Duluth to Mankato. But it ap- like that last cited, except that the question related to pears that in the usual course of business the respond- the power of the State authorities of California to ent receives freight at the docks in Duluth destined regulate rates of transportation upon steam vessels befor the several points on its road, both in Wisconsin tween various ports in that State. That authority was and in this State, which had been received there from denied for the reason that it was not domestic comvessels navigating the great lakes, and which, as is to merce, the vessels in the course of the voyage going be inferred, must be classed as inter-State commerce out to sea more than a league from land. Field, J., in any meaning of that term. Of course, as to such wrote the opinion of the Circuit Court. transportation our commission has not authority to prescribe rates under the decisions above cited. There might perhaps be distinguished from this case the case of a Minnesota carrier engaged only in carrying between points within this State, but whose route incidentally at some point, and for an inconsiderable distance, should cross the line of the State. Whether or not the transportation in such a case might be deemed to be substantially domestic, and not embracing an important element of foreign transit, we do not decide. This is not such a case. This line within Wisconsin, to which this order is applicable, was operated not merely for transportation between points in Minnesota, but was doing the ordinary business of a common carrier within the State of Wisconsin. The question under consideration has not come before the Supreme Court of the United States in the form here presented; but it seems to us that that court has so determined the construction and effect of the commerce clause in the Constitution that, following its decisions, as we are bound to do in such cases, the result already indicated cannot be avoided. We need not again refer to the many decisions, some of which have been cited, which leave no doubt that transportation is commerce within the meaning of the Constitution, and that the authority of Congress is exclusive as respects the regulation of rates for inter-State com A case closely analogous to that under consideration was very recently decided by the Supreme Court of South Carolina, in Sternberger v. Railroad Co., 7 S. E. Rep. 836. The defendant was charged with violating the statute of that State which forbids a higher charge for a shorter than for a longer oarriage. The property had been shipped from Charleston to Tatum-both places being within that State. The course of transit from Charleston was, first, over two railroads wholly within the State; then to a point in North Carolina over a road operated in both States; then for some distance within North Carolina, over a road wholly within that State; then it was received in North Carolina by the defendant road, which was operated in both States, and transported to its destination at Tatum. The charge exacted for the entire distance was $4.40, while the freight to a point six miles further would have been only $4. It was held that the railroad commission of South Carolina had no jurisdiction to fix rates for such transportation; nor does the decis ion seem to rest entirely upon the fact that one of the roads in this route was wholly in North Carolina. That fact, as we think, should not have affected the result. The inter-State commerce commission has recently (November, 1888) ruled upon the question here presented, holding that commerce between points in the same State, but which, in being carried from one place to the other, passes through another State, is interState commerce, subject to congressional regulation. Cotton Exchange v. Railway Co., 2 Inter-St. Com. R. 375. We are aware that the Supreme Court of Pennsylvania has held to the contrary. Com. v. Railroad Co., 17 Atl. Rep. 179. If those cases were wholly analo gous to that before us, that court has not regarded the decision of the court of last resort in such cases, in Lord v. Steamship Co., supra, as having the effect which we think must be accorded to it. tenant of No. 6 Gloucester terrace and the statement of claim alleged as follows: Our conclusion is that the commission had no juris-hospital called "The Queen's Jubilee Hospital" and INJUNCTION-LEASE-RESTRICTIVE COVE NANT-ANNOYANCE-HOSPITAL-INFEC TION. ENGLISH COURT OF APPEAL, OCT. 27, 1888. TOD-HEATLEY V. BENHAM.* The lease of a dwelling-house contained a covenant by the leasee not to carry on certain specified trades on the premises, nor do any act which should, or might be, orgrow to the annoyance, nuisance, grievance or damage of the lessor, his heirs and assigns, or the inhabitants of the neighboring or adjoining houses. The lessee established a hospital at the house for the treatment of out-door patients suffering fron diseases of the throat, nose, ear, skin, eye, fistula, and diseases of the rectum. The lessor and two of his tenants having brought an action against the lessee for an injunction restraining him from using the house for this purpose, held, that there had been a breach of the latter part of the covenant, and an injunction must be granted, as the plaintiffs had a reasonable apprehension of risk of infection, which was an "annoyance within the covenant, and it was not necessary for them to prove pecuniary damage. " Held also that the covenant would be broken by any thing which was an annoyance to the inhabitants of the neighboring or adjoining houses which were not on the lessor's estate. APPEAL from the Chancery Division. By a lease, Par. 7. The defendant has promoted and got up a surgical appliance department for the treatment of diseases of the throat, nose and ear, skiu, eye, fistula and other diseases of the rectum, and various deformities of the human frame, and he carries on or permits to be carried on the business of the said hospital at No. 6 Gloucester terrace aforesaid. Par. 8. The business of the said hospital as carried on or permitted to be carried on by the defendant is a noisome, obnoxious and offensive business. Par. 9. The user of No. 6 Gloucester terrace aforesaid, for the purposes of the said hospital, is an annoyance, nuisance, grievance and damage of or to the plaintiff Grant-Heatley Tod-Heatley, and of or to the inhabitants of the neighboring or adjoining houses, and particularly to the plaintiffs Joseph John Elliott and Clarence Edward Fry, and will grow to greater annoyance, nuisance, grievance and damage. The plaintiffs claimed an injunction to restrain the defendant from using No. 6 Gloucester terrace as a hospital and surgical appliance department, for the treatment of the above-mentioned diseases, or of any other diseases, or from in any manner carrying on any noisome, obnoxious or offensive trade or business on the said premises, or from doing or suffering to be done any act on or about the demised premises which should or might be, or grow to the annoyance, nuisance, grievance or damage of the lessor or the inhabitants of the neighboring or adjoining houses, contrary to the covenants of the lease and also damages. The evidence for the plaintiffs went to show that the hospital attracted numerous poor people as out-patients suffering from infectious diseases, and that it dated the 12th of November, 1821, Catherine Lee depreciated the value of the house property in the demised to Harriet Loyd a piece of land at Old Bromp-neighborhood. ton, together with the dwelling-house and buildings erected thereon, which dwelling-house was intended The evidence for the defendant was to the effect that there was not the slightest risk of infection; that, in ous diseases had attended the hospital; that there was no crowding or loitering about of patients; that the hospital supplied a want long felt in the district; that it was well conducted and was not a nuisance or annoyance within the meaning of the covenant; and that it had not depreciated the value of the house property in the neighborhood, as the houses were not of a highclass character. The case was heard by Kekewich, J., who granted the injunction claimed (59 L. T. Rep. [N. S.] 25), and the defendant appealed. to form part of certain new buildings to be called Glou-fact, no patients suffering from infectious or contagicester terrace, to hold the same from the 25th of March then last past for the term of ninety-eight and onequarter years, and Harriet Loyd covenanted (inter alia) that she, the said Harriet Loyd, her executors, administrators or assigns would not during the term thereby granted, use, exercise or carry on, or permit or suffer any other person or persons whomsoever to inhabit, dwell in, use or occupy the said messuage or premises, or any part thereof, who should use or exercise therein or thereupon the trades or businesses of a tallow-chandler or melter of tallow, soap boiler, slaughterman, distiller, brewer, lamp-black maker, sal ammoniac manufacturer, or any other noisome, obnoxious or offensive trade or business, without the express license and consent of the said Catherine Lee, her heirs or assigns, nor do, or wittingly or willingly cause or suffer to be done, any act, matter or thing, in, upon or about the said premises, which should or might be, or grow to the annoyance, nuisance, grievance or damage of the said Catherine Lee, her heirs or assigns, or the inhabitants of the neighboring or adjoining houses. At the date of this action the dwelling-house so demised was known as No. 6 Gloucester terrace, Old Brompton, and certain adjoining premises, being part of the same estate, were known as Nos. 7 and 8 Gloucester terrace. The plaintiff Tod-Heatley was now the owner of the reversion of the said estate, and the plaintiffs, Messrs. Elliott and Fry, were the lessees and occupiers of Nos. 7 and 8 Gloucester terrace aforesaid. Shortly before the commencement of this action the defendant, who was a medical man, became *60 L. T. Rep. (N. S.) 241. Barber, Q. C., Farwell and Gross, for appellant. Rigby, Q. C. (Alexander Young with him), for plain tiffs. Kekewich, J., who granted an injunction restraining property in consequence of it. It has been very properly and fairly admitted on behalf of the defendant that, although he did not personally know of this covenant, as unfortunately he did not, yet he must be taken to have known of it, and he must not use the property in any way in violation of the covenant. Now, as I said during the course of the argument, there is no doubt that the defendant and those associated with him are doing what they think is very beneficial for the poor people residing round about the place, and, as far as we can judge, it will be a great benefit to them to have this house used in this way; but we have nothing to do with that. We have only to put the true construction upon the covenant under which the defendant is bound. Now let us look at the construction of the covenant. It divides itself into two parts. The first part is a covenant to restrain the lessee from carrying on certain trades, which I need not go into, "or any other noxious or offensive trade or business" without the license of the lessor. That does not cover the present case, and I only refer to it because it was contended that what was being done by the defendant was a trade, and that as it did not come within the express provision with regard to a trade or business, the defendant ought not to be restrained from doing it, although it did come within the words of the latter part of the covenant, aud was "an annoyance, nuisance, grievance or damage." But, in my opinion, that is wrong. The latter part of the covenant applies to everything which can be in any sense "an annoyance, nuisance, grievance or damage," even though it be a trade which is not one of the noxious or annoying trades. What we have to consider then is whether what is done by the defendant comes within the latter part of the covenant. By it the defendant is not to do or cause, or suffer to be done, any act, matter or thing which shall be, or may be, or grow to the "annoyance, grievance or damage of the said Catherine Lee, her heirs and assigns, or to the inhabitants of the neighboring or adjoining houses." Now I first of all strike out the word "nuisance." It was argued that that would give a color to the whole clause, and reliance was placed, as I understand, on the decision of Bacon, V. C., in the case of Harrison v. Good; but there the only word which Bacon, V. C., had to deal with in the covenant was the word "nuisance," and he expressly decided the case upon that ground. I can only say that I express no opinion on the construction he put on the covenant before him, and I say that because it might be otherwise said that Cotton, L. J., referred to it in this case, and did not express disapproval, and therefore he approved of it. I give no opin. ion. I neither express approval nor disapproval of that decision. But there are other words which we have to construe; the words are, "may grow to the annoyance, nuisance, grievance or damage of the said Catherine Lee, her heirs or assigus." I stop there for I shall have to refer to the clause agaiu a moment. presently. It has been contended that nothing can come within the words "annoyance or grievance," unless it involves a money loss which has been proved and shown on the part of the plaintiffs. I must express my dissent from that. The damage may require in some degree to be measured by pecuniary loss, but "annoyance or grievance" are words added, not simply with reference to nuisance or to damage, and in my opinion many things may be within the meaning of this clause an annoyance or grievance to the owner of this property, or the inhabitants of the neighboring or adjoining houses, although no pecuniary loss can be shown as resulting from the acts complained of. If it were necessary to enter into the question, I do not think I should agree with Kekewich, J., in the view he took, that on the evidence there was no pecuniary loss whatever sustained, because the difficulty in let ting houses is a pecuniary loss, and the difficulty in selling houses is a pecuniary loss. But I do not enter into that question-it is unnecessary, in my opinion, to do so; and I go to the question whether there was annoyance or grievance within the meaning of the covenant, taking the latter part of it, "to Catherine Lee, her heirs and assigns, or to the inhabitants of the neighboring or adjoining houses." I will not give any opinion on how far without those words the covenant may have protected the whole of the property, which apparently at the time was let out in building lots, and had been let to various builders. I do not express any opinion against the covenant affecting the whole estate, but the added words "or to the inhabitants of the neighboring or adjoining houses' "not only apply to any houses on the remainder of the property belonging to her as reversioner, but, in my opinion, apply to other property too; and if any act done by the defendant really amounts to a griev ance to the inhabitants of houses in the adjoining property, in my opinion, that is prohibited by this covenant. To my mind it must be so. What did the lessor do? She put in a covenant in order to protect her building estate. Now it must be obvious that, if any thing is done so as to interfere with or be a grievance to the inhabitants of the adjoining houses, so as to depreciate the property aud cause it to be held and occupied by an inferior set of tenants, that must react upon her property. As to any adjoining houses which there may be a difficulty in letting, or which may remain unoccupied or in any way be affected by a griev auce or annoyance, that will react upon her property, and therefore I differ from Kekewich, J., in saying that such damage, annoyauce or grievance only can be regarded as is caused to the inhabitants of the houses on the plaintiff's property. Well, then, we come to the question whether there is an annoyance or grievance either to the adjoining houses or to the houses on the property in question? Now" annoyance or grievance are words which have no definite legal meaning, but we must consider what they mean. It has been pressed upon us that we cannot say that the meaning was that which was an aunoyance or grievance to reasonable people, because the judges in speaking of what would be an annoyance to reasonable people are only speaking of that which they themselves really think would be an annoyance or grievance. That is the difficulty that judges very often have to deal with, and they must not take that as an annoyance or grievance which would be only to some sensitive persons an annoyance or grievance. They must not decide upon what their individual thoughts are, but on what in their opinion, and upon the evidence before them, would be an annoyance or griev ance to reasonable, sensible people. That, I think, is in accordance with the opinion expressed by KnightBruce, V. C., in Walter v. Selfe. I think an act which is an interference with the pleasurable enjoyment in reason of a house is an annoyance or grievance. It is not sufficient, in order to bring the case within the words, that the plaintiff should show that any particu lar man may object to it, but we must be satisfied by argument, and by evidence, that reasonable people, having regard to the ordinary use of a house for pleas urable enjoyment, would be annoyed or aggrieved by what is being done there. It is not necessary, in order to show that there has been reasonable ground for annoyance or grievance, to show that in fact there is danger or risk of infection. A reasonable apprehension of nuisance from acts done by the defendants will produce such interference with the pleasurable and reasonable enjoyment of the adjoining houses as to come within the words "annoyance and grievance' not that any particular person is annoyed or aggrieved, but that there is annoyance or grievance to persons who entertain reasonable views. Now, what has been done here? There have been brought to this hospital a large number of people who have had, some of them certainly, contagious diseases, but who are said not to have had infectious diseases. Diseases may be communicated by contagion, and I see nothing to prevent the servant of a family coming against some one going to this hospital who has a contagious disease, and possibly taking it into the house of his or her employer in the neighborhood. Certainly I think it cannot be said that there is no reasonable fear, no reasonable apprehension of risk from a hospital like this, surrounded as it is by houses, from other people meeting the suffering people there. I do not go into and criticise the evidence of the doctors. There are some called on behalf of the plaintiffs who give their view and point out what they think may be a case of nuisance. Even if they do not make out that there is really risk, yet in my opinion the expression of their opinions shows that persons residing in the neighborhood of these houses or those who go to Elliott and Fry's, or those who are prevented, or may be prevented, from having their photographs taken there, and inhabitants of adjoining houses in Gloucester terrace, might reasonably apprehend risk in consequence of these suffering persons being brought there. It is said that when we walk along the Strand we run just as much risk as the people do here. Possibly one.may do so. I do not kuow, when one is in London (speaking for myself), that one thinks so much of the risk as the people who live in the country do; but this is bringing to a centre in the immediate neighborhood of these houses people, some of whom are diseased, some of whom have contagious diseases, some of whom there is reason to believe have diseases that are possibly infectious. In my opinion, having regard to the evidence of the doctors on both sides, it cannot be said that the apprehension of risk from this hospital being carried on there, in the way it is carried on, is unreasonable. In my opinion therefore there is a violation of the covenant here, and in my opinion this appeal must be dismissed. LINDLEY, L. J. This appeal turns entirely on the true construction of the covenant, and upon that I shall have to say very little. The covenant is divided into two parts. The first part is the covenant by the lessee that he will not carry on what is popularly described as an "offensive" business without the license of the lessor. The case is not brought within that. No one could contend it is. The second part of the covenant is: "That the lessee will not do or suffer any thing which shall, or may be, or grow to the annoyance, nuisance, grievance or damage of the lessor, her heirs and assigns, or the inhabitants of the neighboring houses." Now, the question which arises is this, what is the meaning of the expression, "shall, or may be, or grow to the annoyance, nuisance or damage" of the persons named? Certainly that string of words is introduced in order to give to the covenantee a greater protection than the covenantee would have had without any such words at all. These words are also used in order to give the covenantee a greater protection than he would have had if only one of those words were used. It is of no use putting in the words "any grievance or damage" in addition to "nuisance," except for the very purpose of giving him greater protection than he would have had if the word "nuisance were alone in. When Bacon, V. C., held, as he did, in Harrison v. Good, that the word 'nuisance" in the covenant meant only that which would be a legal nuisance without the covenant, I doubt whether he gave sufficient weight to the consideration that the whole object of having a covenant as to nuisance is to give the covenantee some protection in addition to what he would otherwise have had. I am not by any means sure that the vice-chancellor did not put on the word "nuisance" in that covenant too restrictive an interpretation; but, be that as it may, I cannot at all agree with the contention that these words annoyance or grievance to the inbabitauts" mean that which would be according to law a nuisance, or that the covenant is as to such acts as would produce pecuniary damage. If it were necessary to consider this question of damage, I confess the inference I should draw from the evidence is that pecuniary damage is made out. I think that is the legitimate inference from the evidence, but I do not rely upon that at all. I will assume that Kekewich, J., who saw the witnesses, is correct in that, and his opinion clearly was that there was no pecuniary damage whatever. I will assume that to be so. Still, we come back to the question whether that which has been done is not within those words "such as shall cause, or may be, or grow to the annoyance or grievance of the lessor." Now, what is the meaning of "annoyance?" The meaning is, that which annoys, that which raises objections in the mind of anybody, and unpleasant feelings; but it would be absurd to suppose that this covenant was intended to include any thing which would annoy anybody; there is no language which justifies such a ridiculous and unreasonable interpretation. It must be something which annoys the lessor, her heirs or assigns, or the inhabitants, something or other which raises an objection in the minds of reasonable men. Any thing which does that must be an annoyance. That must be the meaning of the expression-any thing which really does bring an objection to the mind of a reasonable being may be an "aunoyance" within the meaning of the covenant. Now, let us see to whom it is to be an annoyance. It must be " to the lessor, her heirs or assigns," or the inhabitants of the adjoining houses. Mr. Tod-Heatley, who in this case represents the owners of the reversion of this property, says: "It is an annoyance, not because I live there, but because my tenants come to me and complain, and it gives me trouble and vexation, because what annoys them is a trouble and vexation to me." But let us look at the under-tenants-are they not annoyed? Is there nothing done here which raises an objection on their part looking at them as reasonable beings? Is it a fanciful feeling of distaste? I must say at one time I thought that Mr. Barber might succeed in showing that there was really nothing to complain of here except the personal annoyance of the proprietor, and of the inhabitants of the adjoining houses. It struck me there might be some doubt whether there was annoyance to the neighboring or adjoining houses-that which would be an annoyance within the meaning of these words, but only some fanciful distaste, which would not be sufficient. But when I come to the evidence and look at it, I am satisfied that this does really annoy a great many people on this estate. Whether the doctors ou the defendant's side are right in saying that there is nothing to be afraid of, or whether the evidence on the other side is right, that something is to be feared, it appears to me to be unnecessary to decide. It is quite enough, as it appears to me, to establish that reason able men are satisfied that serious risk is incurred, and that they reasonably believe there is serious risk. That annoys the neighbors, and the case is, that it is that annoyance against which the lessor has taken the precaution to protect herself by a special bargain. I do not mean to say or to intimate in the slightest degree that this hospital is a nuisance; I do not mean to say I do not think it is. The question is, what extra protection this lessor is entitled to, and has he been deprived of that extra protection? Looking at it in that point of view, I think the case is made out, and that this appeal ought to be dismissed. BOWEN, L. J. I am of the same opinion. It is quite clear that we have not to decide the question whether has said, it seems to me that the very opinions of doctors called on behalf of the plaintiff to the effect that there may be a risk, even if they are wrong in thinking there is risk, shows that it is not at all events unrea so. The measure is what is reasonable enjoyment of a man's premises-not according to the estimate given by skilled doctors as to the effect of a hospital, but according to what ordinary people who are not skilled doctors may think it. Now, the strong part of the evidence, as it seems to me, is that which comes to this, that in this place are collected during every afternoon for two or three hours a number of poor people more or less suffering from disease. It is said that nobody ever has gone there who has had an infectious disease. That may be true. If so, the hospital has been very fortunate. But although it has not happened, is it not unreasonable to suppose that poor people who cannot read, and are dependent upon directions given to them, may wander about here and find their way to the hos this hospital is a nuisance at common law. If it had been placed or put down in any particular neighborhood unfettered by any contractural obligations, I very much doubt whether on this evidence it could be said to be a nuisance at common law; I think there is noth-souable for less skilled and competent persons to think ing to justify us in so thinking. But that is not the question. Here there has been a special bargain by the terms of which the gentlemen who founded this hospital now discover that they are fettered. That bargain is that on that particular plot of ground there shall be nothing done upon the premises which is to lead or grow to the annoyance of the lessor or the inhabitants of the neighboring or adjoining houses. Now, all we have to consider, on the evidence before us, is whether this hospital is a thing which is an annoyance to the lessor or to the inhabitants of the neighboring or adjoining houses. What is the meaning of the term “aunoyauce?" It is more, as it seems to me, than "nuisance." The language of the cove. nant is, that nothing is to be done "which shall, or may be, or grow to the annoyance, nuisance, griev-pital without knowing exactly whether they are going ance or damage of Catherine Lee, or the inhabitants to the proper place for the treatment of the particular of the neighboring or adjoining houses." Now, if disease from which they are suffering? They are poor "annoyance" meant the same thing as "nuisance," it ignorant people who are collected there, and who are would not have been put in. It means something dif- suffering from certain diseases. It appears to me it is ferent from nuisance. What does nuisance mean? If not unreasonable that the neighborhood should be apone were to be guided strictly by the common law, we prehensive as to the consequences; and if the neighknow what nuisance is. In the covenant, whether the borhood is reasonably apprehensive as to the conseterm is employed in the exact sense of the common quences, the matter, I think, comes within the covelaw or not is a matter that may be doubted, but I will nant. I agree with what Cotton, L. J., said as to the assume, as a matter of argument only, that "ui- construction to be put on the terms "inhabitants of sauce " in this covenant means only nuisance at com- the neighborhood" and "adjoining houses," that the mon law. What does nuisauce at common law mean? application of these words cannot be confined to the What would be called a nuisance in that sense? I take lessor's own property. Of course, in every case it is a the language of Knight-Bruce, V. C., in Walter v. question of construction of the particular document. Selfe, that it would be "an inconvenience materially It might appear from the context that "adjoining interfering with the ordinary comfort physically of houses" only applied to houses which belonged to the human existence, not merely according to elegant or lessor; but if there is nothing in the context to show dainty modes and habits of living, but according to it, why should we read the words in such a way? That plain and sober simple notions among the English peo- which, according to the reasonable view of the thing, ple." A material interference with the ordinary com- depreciates the neighborhood depreciates the house itfort of existence-that would be a nuisance. The law self. I agree with the words in their ordinary English in defining “nuisance" in that way has stopped short construction, giving them a sense which is not at all -I will not say of protecting the fancies of people, be- unreasonable from what one clearly sees as to the value cause the mere fancies of people I do not think can in of the particular property. I ought to add that I enany view be an element in the definition-but has stop-tirely agree with what Lindley, L. J., said; and in this ped short, according to what was said by Lord Coke in Aldred's Case, 9 Coke's Reps. 58b, of giving an action in respect of that which is a matter ouly of delight and not of necessity. The expression "annoyance" how ever is wider than nuisance, and if you find a thing that reasonably troubles the mind and pleasure, not of a fauciful person, or of a skilled person who knows the truth, but of the ordinary sensible English inhabitant of a house, if there is any thing which disturbs his reasonable piece of mind, that seems to me to be au annoyance, although it may not appear to amount to physical detriment to comfort. You must not take fanciful people on the one side, or skilled people on the other, and that is the key, as it seems to me, of this case. Doctors may be able to say, and for any thing I know may be able to say with certainty that there is no sort of danger from this hospital to the surrounding neighborhood; but the fact that some doctors think there is makes it certain at all events that it is not an unreasonable thing for persons of ordinary apprehension to be troubled in their minds about it, and if it is not an unreasonable thing for an ordinary person who lives in the neighborhood to be troubled in his mind by the apprehension of such risk, it seems to me there is danger of annoyance, though it may not be a nuisance. There is interference with the reasonable pleasure and mental peace of the neighborhood, although there may not be actual interference which may be restrained by the covenant. As Cotton, L. J., particular case, though it is not necessary to show pecuniary damage, I doubt very much whether I should draw the inference which Kekewich, J., has drawn, that no pecuniary damage has been shown. NEW YORK COURT OF APPEALS ABSTRACT. ASSIGNMENT FOR CREDITORS ASSIGNEE-ADOPTION OF CONTRACTS-SET-OFF. -- - Plaintiff's assignor contracted to furnish defendant all the boxes it should require, and on failure to do so, agreed that defendant might supply itself in open market and charge the assignor with the excess of the cost over the contract price. There was evidence that after the assignment plaintiff adopted the contract. Plaintiff performed for a time, and then gave notice of inability longer to do 80, and defendant thereafter supplied itself in the market. In an action for the price of the boxes so delivered by plaintiff, held, that defendant was entitled to recoup the stipulated damages for failure to continue performance. Thompson v. Whitmarsh, 100 N. Y. 35; Buckland v. Gallup, 105 id. 453. Second Division, March 19, 1889. Patton v. Royal Baking Powder Co. Opinion by Bradley, J. BANKS-COLLECTIONS--ALTERED DRAFT-PAYMENT -APPLICATION.-(1) A draft on plaintiff bank, which had been fraudulently altered, was received by the E. |