nal bosom of a church, which claims the safe keeping of our bodies and our souls, our liberties and civil government. We mean the Holy Roman Catholic

All communications intended for publication in the Law JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication. Communications on business matters should be ad- Church; and not the Holy Catholic Church of the dressed to the publishers.

The Albany Law Journal.

ALBANY, NOVEMBER 14, 1874.

SOME IDEAS ABOUT JURY TRIAL. A good deal of debate has sprung np of late years in respect to the jury system. It is quite possible that the system is susceptible of improvement, but we do not quite agree with those enthusiasts who propose to improve it by abolishing it. King James' translation of the Scriptures might perhaps be improved in some instances, but we never yet met anybody in favor of abolishing the Bible because some passages are imperfectly translated. When we meet such opponents of the jury system, we always ask them two questions: first, how many wrong verdicts they can recall; and second, what they propose as a substitute. And we generally find the answers very vague and indefinite.

ancient and old-fashioned creeds. For Mr. Meyrick, in his deft little book about The Working of the Church in Spain,' has effectually enlightened us upon. this subject. They have done there with a Church which is plain Catholic, and insist upon the Roman prefix. This is exactly as it should be; and now, at last, we have jury trials under their proper parentage. We will only add, that such a personage as Tomas de Torquemada was a juryman of incredible industry. To say nothing of lighter performances, he actually converted ten thousand two hundred and twenty human subjects into a pile of ashes, and could have manured all Granada with bone-dust."

We commend the idea to the excellent reformers who are proposing to ameliorate the administration of justice by abrogating or ignoring the jury. Certainly, if Don José is right, the sooner we get rid of the system the better. Let us abolish the name of the parent monster even when we inquire concerning our lunatics!

Just about the time that the foregoing interesting information came to our notice, we also read that after the disagreement of the first jury in the recent case of Phelps, the defaulting clerk in the office of the State treasurer, when the jury stood | eleven for conviction and one for acquittal, the eleven came out in a public announcement disclosing how they voted; and the obstinate twelfth juror being thus discovered, and proving to be a workman em

But we did not purpose to write in defense of the jury system, but to bring to the attention of our readers some things in regard to it which we have lately met in our reading. The first of these will probably prove a great shock to the sensibilities of those who have been accustomed to regard the jury as the 'palladium of our liberties," etc. The idea is that the jury system owes its origin to the Holy Inquisi-ployed in the erection of the new State capitol, he

แ

tion.

It would seem almost incredible that any one could ever seriously have put forward such an idea. As well might one argue that universal suffrage owes its rise to absolute monarchy, republicanisin to human slavery, or endless future retribution to the love and grace of God. But the idea was gravely advanced and enthusiastically argued by Don José Ramon Saavedra, an ecclesiastic of Santiago, in Chili, cited by a recent historian of the Holy Office in South America. We find an account of this ingenious gentleman's peculiar views in the current number of the American Church Review. The reviewer says:

"As if he had just swallowed a tumbler of sherbet, iced with mountain snow, he does not hesitate to tell us that the trial by jury was a suggestion of, and a derivation from, the Holy Office! Remember ye this, O our dull and inconsiderate North American countrymen, the next time you enter a court-room, and see twelve thoughtful men in a jury-box, with lawyers doing their very prettiest to persuade them to accredit their statements, the Inquisition is the bright and blessed author of the interesting scene! Such a form of trial is no modern invention, like steamships, telegraphs and railways. It was long, long ago evolved, to speak as do the scientists, from the mater

was speedily discharged from employment in that work. We saw no allegation of misconduct on the part of the obstinate juror. He was simply in the minority, and the majority against him happened to be very large. We infer that he was probably wrong, because the next jury were speedily and unanimously for conviction. Now two things are perfectly clear to our mind: Either that juror was guilty of misconduct for which he should have been punished by the court, or he was honest in his opinion and did not deserve the censure of the community and the dismissal from employment by the State. We take it for granted that he was honestly, although very possibly, stupidly mistaken, for if not, the energetic district attorney of this county, who impaneled the second jury and procured the conviction instantly after the disagreement of the first jury, would have attended to his case in short order. This being so, he was guilty of no offense. He would have been blameworthy if he had acted otherwise. The eleven might have been wrong and he right. We have known such cases. We recollect one in particular, a number of years ago, where a man was tried on a criminal charge in the United States court, in Albany, and the jury stood eleven for conviction and one for

acquittal. A great noise was made by the officials about the one man's conduct. Some were for mobbing him, we believe, and the rest of the jury denounced him roundly. At all events, the irate district attorney dragged the offender out to Utica for the second trial, and then the jury stood twelve for acquittal! Probably after that the eleven mistaken jurors did not maintain such high ground, and consented to let their children play again with the obstinate man's. Now no juror ought to be tolerated in disclosing the votes of the jury in case of disagreement. It is against public policy to permit it. It tends to deter men from the honest and proper discharge of their duty as jurors. It subjects them to persecution and abuse. It renders jury duty, thankless at best, perfectly intolerable. We think the judge who held the court at which Phelps was tried would have done well to punish those eleven jurors for their conduct, and teach them to keep secret their own counsel and their fellows'. As a matter of course, the action of the authorities in turning the juror out of their employment, although as petty a piece of malice and pig-headed despotism as could well be conceived, is properly amenable to legal criticism only as a result of the abuse of the rights and privileges of the juror to which we have adverted. The fact is a potent argument for our position. If the practice is allowed to prevail, an honest man may easily be ruined, and it is not impossible that he may be ruined because he is right and the others are wrong.

matter how great the damage of his neighbor's buildings.*

In Panton v. Holland, ante, the question of negligence was considered. In that case, it appeared that the plaintiff was the owner of a house and lot on Warren street, in the city of New York, and the defendant, in erecting a house on a lot contiguous to the plaintiff's, in order to lay the foundation, dug some distance below the foundation of the plaintiff's house, in consequence of which one of the corners of the plaintiff's house settled, the walls cracked, and the house in other respects was injured. The plaintiff introduced evidence to show a want of proper skill and care in the persons employed by the defendant to lay his foundation. Woodworth, J., said: "I am of opinion that no man is answerable in damages for the reasonable exercise of a right, when it is accompanied by a cautious regard for the rights of others, when there is no just ground for the charge of negligence and unskillfulness, and when the act is not done maliciously." A verdict having been rendered for the plaintiff upon a charge of the court that withdrew the question of negligence from the jury, a new trial was granted, the judge saying: "The result of my opinion is, that the plaintiff has not shown a right to recover in this case, unless it be on the ground of negligence, in not taking all reasonable care to prevent the injury." In Thurston v. Hancock, 12 Mass. 220, the plaintiff was the owner of a lot on Beacon street, in the city of Boston, adjoining lands of the defendant, and erected a costly dwelling-house upon the confines of his lot, laying the foundation very deep. The defendant, a short time after the defendant's house was completed, commenced excavating upon his lot, and excavated to the depth of As has been before observed, this right of lateral several feet below the lower line of the foundation of support only extends to the soil itself, hence if one the defendant's house, and sold the earth so taken owner sees fit to excavate up to the limits of his line, out. As a consequence, the plaintiff's house being and replace the soil with a wall or other artificial deprived of the support of the defendant's land, began structure, the right ceases to exist as to the wall or to settle, and he was obliged to take it down. The structure placed thereon, and the adjoining owner court held, that, in the absence of negligence or malice, may, in the exercise of ordinary care, excavate to any no recovery could be had for the injury to the builddepth on his own land, even though, by so doing, he ing. In La Sala v. Holbrook, 4 Paige's Ch. (N. Y.) withdraws the support from such wall or structure, 169, the plaintiffs were the owners of certain lots on and causes it to fall into his pit.* For, in the lanAnn street, in the city of New York, upon which was guage of Lord Tenterden in Wyatt v. Harrison, “I a church called Christ's Church, which had been cannot, by laying an additional weight upon my land, erected some thirty-eight years. The defendant was deprive my neighbor of digging in his soil." The the owner of an adjoining lot on the west side of the reason for this rule is, that if one land owner sees fit church, and extending to within some six feet of the to erect a house at the confines of his own land, it is church. The defendant began the erection of a buildhis own folly, and he cannot, by being prior in pointing upon his lot, covering the entire space, and was of time, prevent his neighbor from building there also, excavating for the foundation of the building, intendand the only restriction imposed upon the adjacenting to sink it some fifteen feet lower than the foundaowner is, that he must not negligently and carelessly excavate upon his own land; but, if he proceeds with ordinary care, he will be excused from liability, no

LATERAL AND SUBJACENT SUPPORT OF
LANDS.

III.

*Thurston v. Hancock, 12 Mass. 220; La Sala v. Holbrook, 4 Paige's Ch. (N. Y.) 169; Tarrand v. Marshall, 19 Barb. (N. Y. Sup Ct.) 409; Shrieve v. Stokes, 8 B. Monr. (Ky.) 453; McGuire v. McGuire, 1 Dutch. (N. J.) 356.

*Thurston v. Hancock, supra; Panton v. Holland, 17 Johns. (N. Y.) 92; Trower v. Chadwick, 6 Bing. (N. C.) 1; Rockwood v. Wilson, 11 Cush. (Mass.) 221. In Pickard v. Collins, 23 Barb. (N. Y. Sup. Ct.) 444, the court say, that the motive with which one does a lawful act is of no consequence in determining the question of liability. Smith v. Kenrick, 7 C. B. 515; Gayford v. Nichols, 9 Exch. 702; Walters v. Pfiel, Moody & M. 362; Dodd v. Holme, 1 Ad. & El. 493; Massey v. Gadyer, 4 C. & P. 161; Charles v. Rankin, 22 Mo. 556.

tion of the church. The plaintiffs brought their bill for an injunction. A temporary injunction was granted upon the filing of the bill, but the defendant having answered and set up in his answer that he was proceeding with the work in a careful and skillful manner, and that his purpose in making the excavation to the depth named in the bill, was to erect thereon a substantial building. Upon hearing on appeal the injunction was dissolved, the court holding that the defendant was in the exercise of a legal right, and that the damage, if any, to the plaintiff would be "damnum absque injuria."

the plaintiff, contributing to the injury, relieves the defendant from liability. In Partridge v. Scott, 3 M. & W. 220, it was held that, where the plaintiff had excavated under his own land, making it require more support than it otherwise would, he cannot recover of an adjoining owner who removes the minerals from his lands, if the injury would not have happened except for the excavation made by the plaintiff in his lands. In Farrands v. Marshall, 21 Barb. (N. Y. Sup Ct.) 409, the rule was laid down that there can be a recovery for all such injuries, 'provided the plaintiff has done nothing with his own The degree of care required on the part of a person land contributing to produce the injury, and in hosexcavating upon his own premises, near the founda-tility to the legitimate and proper exercise of the

tion of another's building, cannot be accurately defined, but must necessarily depend upon the circumstances of each case. The character of the soil, the condition of the wall and building, the depth of the excavation, and all those conditions that a man of ordinary prudence would observe.* The better criterion by which to determine the question of liability would seem to be, that if the mere exercise of a lawful right to remove the soil upon his own premises occasioned the fall of the structure, no liability exists, but if the fall is occasioned by the manner in which it is removed, then liability attaches for all the consequences of the act.t

As to the degree of care required of a person excavating upon his own land, where there is an erection upon the adjoining land, it seems that no more than ordinary care is required. There must be an absence of negligence or unskillfulness and of improper motive. There can be no negligence imputed, except as to structures, that are visible or known to the party causing the excavation to be made, and the degree of care to be used is in view of the circumstances known to him.§ The test is not whether a party has used such care as a prudent man would use if all the loss and damage was his own, neither is that degree of care required which a prudent man, skilled in such business, would use, nor, on the other hand, can he excuse himself from liability upon the ground that he has followed the directions of a skillful and careful person; but the decisive question is, was there negligence in view of the circumstances of the case? Was the work managed and executed with such care and caution as men of common prudence usually exercise in the management of their own business? T

The question sometimes arises as to what acts of *Panton v. Holland, 17 Johns. 92; McGuire v. Grant, 1 Dutch. (N. J.) 356; Rockwood v. Wilson, 11 Cush. (Mass.) 221; Charles v. Rankin, 21 Mo. 568; Foley v. Wyeth,2 Allen (Mass.), 131; Shrieve v. Stokes, 8 B. Monr. (Ky.) 453; Massey v. Gadyer, 4 C. & P. 161; Smith v, Kendrick, 7 Č. B. 575.

Dodd v. Holme, 1 Ad. & El. 493; Trower v. Chadwick, 3 Bing. (N. C.) 334; Smith v. Kendrick, 7 C. B. 515; Thurston v. Hancock, 12 Mass. 220; La Sala v. Holbrook, 4 Paige's Ch. (N. Y.) 169; Gale on Easements (3d Lond. ed.) 349; Walters v. Pfiel, Moody & M. 364.

McGuire v. Grant, 1 Dutch. (N. J.) 361. $ Chadwick v. Trower, 3 Bing. (N. C.) 334. Charles v. Rankin, 22 Mo. 556.

Rockwood v. Wilson, 11 Cush. (Mass.) 221.

|

*

Neither

other's paramount right to improve his own premises."
The rule may be stated broadly, that if the damages
would have resulted if there had been no contributory
act on the part of the plaintiff there can be a re-
covery; and the fact that the act of a third person
has contributed to the injury, is no defense.
does the fact that the house is of faulty construction
or out of repair, shield the defendant from liability, if
the injury results from the defendant's negligence.
Where the defendant causes the injury in the prose-
cution of an improvement upon his own land, for his
own benefit, according to his best skill and judgment,
not foreseeing that it will produce injury to his neigh-
bor, yet, if damages actually result to his neighbor
therefrom, the fact that they were unwittingly in-
flicted will afford no protection from the conse-
quences. 3

It is probable that all the amendments to the State Constitution have been carried. .If this result is assured it is a great triumph, in spite of the apathy and opposition of certain legal and political associations. It is a great advance in the cause of reform and good government. The apprehensions raised in some quarters that the amendments have not been constitutionally adopted seem to us not well founded.

*Smith v, Hardesty, 31 Miss. 411; Walters v. Pfiel, Moody & M. 362; Richart v. Scott, 7 Watts (Penn.), 460; Dodd v. Holme, 1 Ad. & El. 493; Hamer v. Knowles, 4 H. & N. 459. +Foley v. Wyeth, 2 Allen (Mass.), 121, in which it was held that, where buildings erected upon adjoining premises increased the pressure and promote the injury, that furnished no defense in an action for damages resulting from the defendant excavating his lands. The court said, "The defendant cannot exonerate himself by showing that the particular injury complained of would not have occurred if other persons had never made alterations or improvements upon their respective closes.'

"

Richart v. Scott, 7 Watts (Penn.), 460; Dodd v. Holmes, 3 Ad. & El. 493; Walters v. Pfiel, M. & M. 362; Smith v. Hirdesty, 31 Miss. 411.

§ Sutton v. Clark, 6 Tau it. 29; Trower v. Chadwick, 6 Bing. (N. C.) 1, is sometimes cited as establishing a different doctrine, but an examination of that case will show that the judgment turned upon the question of negligence, the court holding that, where there was no reason to apprehend damage, a less degree of care would be required than where the injurious results were obvious. In Shrieve v. Stokes, 8 B. Monr. 433, there is a dictum to the effect that one excavating in his own lands would not be liable for damages that resulted when he had no just cause to apprehend them, and they resulted from an unforeseen cause. Washburn. in his valuable work on Easements, p. 439, lays down the same doctrine, citing the two last-named cases as authority therefor; but I apprehend that the cases do not really sustain the doctrine, and that the rule as laid down by Gibbs, C. J., in Sutton v. Clark, really embodies the true rule of liability.