fought against a generation ago. But how many of us can fill the part indicated in the well-known words: "And then the justice, In fair round belly with good capon lined, Permit me, then, to "appear in character," and suggest for our consideration, and that after discussion which the committees religiously keep upon the programmes, but which for the most part has proven to be "a legal fiction," some "modern instances" of that "wise saw": "Sic utere tuo ut alienum non ledas" (9th Rep., 59); or—if I may be permitted to translate for the benefit of those who are neither lawyers nor Latinists: "So use thine own as not to injure another's." Government, as we know, originated from the necessity of regulating and adjusting the constantly recurring conflicts between the rights of the individual members of society, and in our maxim will be recognized an amplification of our “duty to our neighbor," and an attempt to lay down the principle upon which as bed-rock may be built up a lasting structure of jurisprudence. Of the well-known definition of law, to quote only a part of it as "commanding what is right and prohibiting what is wrong,' it will be seen that our maxim relates to both of its branches; but rather, it would seem, to the prohibition of what is wrong than the injunction of what is right; for its evident intent is to guard against such use by a man of his rights as would injure those of his neighbor. And while in the treatises upon this maxim we not infrequently find cases of unlawful acts, yet it is evident that this is a confusion of the distinction between this maxim and those others which prohibit acts done without right. For both in the letter and the spirit of our maxim it is contemplated that he to whom its injunction is addressed is in the exercise of his lawful and undoubted rights; and yet he is reminded that he must MODERN INSTANCES OF A so use even these as not to trench upon the co-existing rights of his neighbor, recognized by the law to be entitled to equal consideration with himself. Accordingly, in Broom's Legal Maxims, in illustration of this maxim, the author cites cases, laying down the principle that though a man do a lawful thing, yet if any damage thereby befalls another, he shall be answerable if he could have avoided it; and as illustration to the application of this principle, if one lops a tree on his own ground—his right to do which act would seem to be unquestionable—yet if the boughs fall upon another, ipso invito; if one shoot at a butt and hurt another; if the owner of land through which runs a river to turn a neighbor's mill, lops trees on the bank and the loppings accidentally impede the flow of the water so as to hinder the mill from working-in all these instances an action lies against one, though he was doing a lawful thing; and the reason of all these cases is that he that is damaged ought to be recompensed by the one who damages him. And our author points out that in these civil actions differing essentially in that from the criminal proceedings growing out of the same acts, "that the law does not so much regard the intent of the actor as the loss and damage of the person suffering." Before proceeding further, it may be well to calm the apprehensions that may have been suggested by the well-known scope of this subject and the multitudious cases that have arisen under it, by emphasizing here what the title to this paper may have already indicated-namely, that in it no attempt will be made to brief the subject nor to write a treatise upon it. The proprieties of the time and place to say nothing of the writer's inclination would seem to limit it to some of the "modern instances" of this "wise saw"; instances selected from many as illustrating, it is thought, the gist of this maxim and the point and pith of its true meaning--viz., that it is one who is in the exercise of his lawful rights-aye more-in such exercise of them as in itself is proper-whom it cautions to consider, lest he be so circumstanced that such exercise injure his neighbor. Let us take, first, as illustrative of the meaning contended for, as instances of cases excluded from being classed under this maxim by this rule of exclusion, the following: In Chalkley v. City of Richmond, 88 Va., 402, the city, although in the exercise if its lawful right to construct or control sewers within its limits, was held liable for damages resulting to an individual from one of its public sewers, because of its defective construction or bad condition; the principle upon which the court proceeded appearing to be that while the city in that case was in the exercise of an undoubted right, it became liable because the injury complained of "was the result of the negligent execution of the plan adopted for the construction of sewers, or the negligent failure to keep the same in repair, &c." In other words, it would seem because it violated one of the essential conditions of its rights. In the Town of Suffolk v. Parker, 79 Va., 670, it was held— to quote from the opinion of the Court: "In conclusion, it need only be said that while the town of Suffolk, a municipal corporation, had authority to erect the market-house in question, yet the law requires it to be maintained and managed in a reasonably proper manner and with a just regard for the rights of the owners of the adjacent property. So far from having performed this plain and reasonable duty, so essential to the health and comfort of others, it has so negligently and wrongfully used and conducted its market place as to render it ån intolerable nuisance to defendant in error, and render it impossible to live in the house with any sort of comfort. This being so, the well-settled law is that said corporation is liable in damages."-The People v. The Corporation of Albany, Wendell, 539; Smith v. The City Council of Alexandria, 33 Gratt., 208; The People v. Cunningham, 1st Denio, 524; Pruner & Hubble v. Pendleton and others, 75 Va., 516. But again, it is thought, that the distinction pointed out applies here, in that it is not the mere presence of a market-house conducted in a proper manner which gives cause of action, but because it was conducted negligently and improperly. To illus trate and justify this statement, as well as to clear the respectable plaintiff, if living, or her memory, if dead, from the imputation that the suspicious have as to these suits against corporations that they are prompted by a desire to profit by the disinclination to deal kindly with corporations of any description, that seems to be one of the legal qualifications of the intelligent juror of these days-pardon me if I call your attention to the woes which drove the plaintiff in this case to sue the defendant, as detailed on page 666 of the report, where, in speaking of the evidence of the plaintiff herself, the opinion reads as follows: "She testifies in substance that she was the owner in fee of the house and lot described in the declaration and immediately adjoining the market-house in the town of Suffolk; that she had owned her lot about seven years, and that it cost her one thousand dollars, with a mere shell of a house upon it; that she weatherboarded and painted the house and plastered the whole inside of the building, and had fenced and repaired the building generally at a very considerable outlay; that at the time she purchased and improved her lot there was no markethouse near her lot, nor any talk about erecting one there; that since the erection of said market-house up to the commencement of this suit she had been subjected to a great and continuing nuisance; that the stench on her lot from the dead carcasses of fowls which had been brought to market and died and had been thrown over the fence on to her premises was very offensive to her; that these dead carcasses and garbage generally had even attracted buzzards, and that she had seen there nearly or quite a dozen at one time; that she saw on one occasion on her lot one dead dog, one dead goose, one dead chicken, and one joint of spoiled beef”; * * * and to check the current of eloquence of the plaintiff, to do justice to her conscientiousness of statement, note in resuming that she proceeds as follows: "That she could not say that they came from the market, but she believed they did; that they were not there before the market was erected; that on Sundays and when the market was * closed flies swarmed into her house; that crab hulls, crab shells, and cabbage leaves were thrown in great quantities about her front door, before which market carts were drawn up to the sidewalk." In the presence of this catalogue of Mrs. Parker's woes, who can say that the Court was not justified in its conclusions and its comments already given? And I shall pass from this case with the expression of hope that the town of Suffolk in its corporate capacity and any of its citizens who may be present on this occasion will, I trust, pardon me for having used this "ower true tale," tale "ower true" of the past before the town bloomed into the thriving city it now is, to point a moral and adorn a tale on this occasion. While it may not have been the privilege of any of us to have witnessed the scene in court when Mrs. Parker testified, it will be no great draft on our powers of imagination, recalling from the treasure-house of our experience all the eloquence of the female tongue when justly provoked, in court or out of court, to imagine the eloquence both of word and of that action which the great orator has said to constitute eloquence, with which Mrs. Parker testified on that occasion. In the case of the Masonic Temple Association v Banks, the defendant in doing certain work, for which he had contracted with the city, erected a dam across a stream flowing past complainant's building, and thereby obstructed its natural flow and overflowed the cellar of said building. An injunction to restrain him from doing this was perpetuated on the ground that his act was unlawful and constituted a nuisance. From the opinion of the Court it is evident that the ground on which it rested its decision was not that the erection of this dam by the defendant in the course of his lawful work for which he had contracted with the city itself and therefore for the public benefit, was guilty necessarily of an unlawful act and a nuisance, but rather because "it was shown that the work could be done without obstructing the stream, by the adoption of a different |