excess will not invalidate the levy.1

course, be disregarded. A literal application of the maxim would authorize the court to disregard also, in the estimate of value, one of the least of the current coins."

1. What Excess Held Not to Invalidate Levy. - Where two executions were levied on land, one for the sum of seventy-nine dollars and thirty-nine cents, the other for thirty-eight dollars and thirty-four cents; and on the former land to the amount of seventy-nine dollars and forty-nine cents, and on the latter to the amount of thirty-eight dollars and fiftyone cents, was set off; it was held that such levies were valid, the excess being within the maxim. Huntington v. Winchell, 8 Conn. 45, 20 Am. Dec. 84.

Where the appraised value of land set off on execution was one hundred and thirty-four dollars and forty-four cents, and the amount of the execution and officers' fees was one hundred and thirty-four dollars and thirty cents, it was held that the case was within the maxim, and the levy was not, therefore, rendered void. Spencer v. Champion, 9 Conn. 536.

2. Where Contracts Are Substantially Similar There Is No Variance. Dissenting opinion of Littledale, J., in Whitcher v. Hall, 5 B. & C. 269, 11 E. C. L. 224, citing Hands v. Burton, 9 East 349. and Barbe v. Parker, 1 H. Bl. 283.

3. Maxim Applied to Accretions. - 2 Black. Com. 262; Pollock, C. B., in New River Co. v. Land Tax Com'rs, 2 H. & N. 138.

But on this question the opinions are not unanimous. Atty.-Gen. v. Chambers, 4 De G. & J. 55, per Lord Chelmsford, citing Baron Alderson and Lord Abinger in Matter of Hull, etc., R. Co., 5 M. & W. 327. See the title ACCRETION, vol. I, p. 476.

4. An Action Will Not Lie for Trifling Injuries. -Broom's Legal Maxims, 142 et seq. Ashby 2. White, per Powys, J., Ld. Raym. 938, I Smith L. Cas. 273; Young v. Spencer, 10 B. & C. 145, 21 E. C. L. 47; Knight v. Abert, 6 Pa. St. 472, 47 Am. Dec. 478; Paul v. Slason, 22 Vt. 231, 54 Am. Dec. 75.

No action lies for a waste but to the value of a penny, for de minimis non curat lex, and if the jury find the waste but to the value of a penny, the plaintiff shall not have judgment. 22 Vin. Abr., tit. Waste, (N.)

Actions for Injuries to Incorporeal Rights.Says Chancellor Kent in his Commentaries, vol. 3, p. 439: Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in

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the stream adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. Streams of water are intended for the use and comfort of man, and it would be unreasonable, and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned [without causing material injury or annoyance to his neighbor below him]; and there will, no doubt, inevitably be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of it, and some variations in the weight and velocity of the current. But de minimis non curat lex, and a right of action by the proprietor below would not necessarily flow from such consequences, but would depend upon the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of the party by or over whose land a stream passes is that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish or affect, the application of the water by the proprietors above or below on the stream.' See also Embrey v. Owen, 6 Exch. 363: Webb v. Portland Mfg. Co., 3 Sumn. (U. S.) 189.

"The same law will be found to be applicable to the corresponding rights to air and light. These also are bestowed by Providence for the common benefit of man; and so long as the reasonable use by one man of this common property does not do actual and perceptible damage to the right of another to the similar use of it, no action will lie. A man cannot occupy a dwelling and consume fuel in it for domestic purposes, without its in some degree impairing the natural purity of the air; he cannot erect a building, or plant a tree, near the house of another, without in some degree diminishing the quantity of light he enjoys: but such small interruptions give no right of action; for they are necessary incidents to the common enjoyment by all." Embrey v. Owen, 6 Exch. 353.

5. When the Maxim Does Not Apply. — Lord Holt in Ashby v. White, Ld. Raym. 938, I Smith's L. Cas. 264, on appeal 1 Bro. P. C. 45; Williams v. Mostyn, 4 M. & W. 144; Story,

J., in Webb v. Portland Mfg. Co., 3 Sumn. (U. S.) 189; Paul v. Slason, 22 Vt. 231, 54 Am. Dec. 75.

In the great case of Ashby v. White, 1 Bro. P. C. 45, the House of Lords, reversing the King's Bench, held that to hinder a burgess from voting for a member of the House of Commons is a good ground of action. In the lower court Powys, J., said: "If this refusal of the plaintiff's vote be an injury, it is of so small and little consideration in the law that no action will lie for it; it is one of those things [to] which the maxim de minimis non curat lex" applies. But Lord Holt, in his dissenting opinion, said: Every man that is to give his vote on the election of members to serve in Parliament has a several and a particular right in his private capacity as a citizen or burgess. And surely it cannot be said that this is so inconsiderable a right as to apply that maxim to it, de minimis non curat lex.

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* *If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. * Every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his rights. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no, not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage, for it is an invasion of his property. * A man * * shall have an action against any one who enters and invades his franchise, though he lose nothing by it."

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In Seneca Road Co. v. Auburn, etc., R. Co., 5 Hill (N. Y.) 170, an incorporated company acting under a charter from the state had constructed a turnpike. Subsequently a railroad corporation built their road across the turnpike without making or tendering any compensation therefor. It was held that as this was a wrongful invasion of the property of the turnpike company, the maxim did not apply, and consequently that recovery might be had regardless of the amount of damage actually sustained. The court, by Cowen, J., said: "This maxim is never applied to the positive and wrongful invasion of another's property. To warrant an action in such case, says a learned writer, 'some temporal damage, be it more or less, must actually have resulted or must be likely to ensue. The degree is wholly immaterial; nor does the law, upon every occasion, require distinct proof that an inconvenience has been sustained. For example, if the hand of A touch the person of B, who shall declare that pain has or has not ensued?

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The only mode to render B secure is to infer that an inconvenience has actually resulted.' Hamm, N. P. 39 Am. ed. (1823). 'Where a new market is erected near an ancient one, the owner of the ancient market may have an action; and yet perhaps the cattle that would have come to the old market might not have been sold, and so no toll would have been gained, and consequently there would have been no real damage; but there is a possibility of damage.' 2 Ld. Raym. 948. The owner of a horse might be benefited by a skilful rider taking the horse from the pasture and using him, yet the law would give damages, and, under circumstances, very serious damages, for such an act. The owner of a franchise, as well as of other property, has a right to exclude all persons from doing anything by which it may possibly be injured. The rule is necessary for the general protection of property, and a greater evil could scarcely befall a country than the rule being frittered away or relaxed in the least, under the idea that though an exclusive right be violated, the injury is trifling, or indeed nothing at all."

In Paul v. Slason, 22 Vt. 231, 54 Am. Dec. 75, an officer who had attached certain hay and grain made use of a pitchfork belonging to the debtor in removing the same, and when he had completed the removal, left it where he found it, and it was received by the debtor and was in no way injured. It was held that the officer was not liable in trespass for such use of the pitchfork. But the court said: "It is true that, by the theory of the law, whenever an invasion of a right is established, though no actual damage be shown, the law infers a damage to the owner of the property and gives nominal damages. This goes upon the ground either that some damage is the probable result of the defendant's act, or that his act would have effect to injure the other's right, and would be evidence in future in favor of the wrongdoer. This last applies more particularly to unlawful entries upon real property, and to disturbance of incorporeal rights when the unlawful act might have an effect upon the right of the party and be evidence in favor of the wrongdoer, if his right ever came in question. In these cases an action may be supported though there be no actual damage done, because otherwise the party might lose his right. So, too, whenever any one wantonly invades another's rights for the purpose of injury an action will lie, though no actual damage be done; the law presumes damage on account of the unlawful intent. But it is believed that no case can be found where damages have been given for a trespass to personal property when no unlawful intent, or disturbance of a right or possession, is shown, and when not only all probable but all possible damage is expressly disproved. Mr. Broom, in his recent work on Legal Maxims, lays down the law in the following language: Farther, there are some injuries of so small and little consideration in the law that no action will lie for them; for instance, in respect to the payment of tithes, the principle which

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may be extracted from the cases appears to be that for small quantities of corn, involuntarily left in the process of raking, tithe shall not be payable, unless there be any particular fraud, or intention to deprive the parson of his full right.' If any farther authority is deemed necessary in support of the ruling of the County Court on this point, we have only to refer to that ancient and well-established maxim, de minimis non curat lex, which seems peculiarly applicable in this case, and would alone have been ample authority upon this part of the case; for we fully agree with Mr. Sedgwick that the law should hold out no inducement to useless or vindictive litigation. Sedgwick on Damages 62."

1. New Trial Refused When Matter in Dispute Is Inconsiderable. Broom's Legal Maxims, 156; Burton v. Thompson, 2 Burr. 665; Lce v. Evans, 12 C. B. N. S. 368, 104 E. C. L. 368; Farewell v. Chaffey, I Burr. 54: Marsh v. Bower, 2 W. Bl. 851; Wilson v. Rastall, 4 T. R. 758; Macrow v. Hull, I Burr. 11; Mostyn v. Coles, 7 H. & N. 872; Fisher v. Haggerty, 36 Ill. 128; McNutt v. Dicks, 42 Ill. 498; Boyden v. Moore, 5 Mass. 371; Brewer v. Tyringham, 12 Pick. (Mass.) 547; Feeter v. Whipple, 8 Johns. (N. Y.) 369.

Omission to Assess Nominal Damages Is No Ground for a New Trial. - The omission to assess nominal damages when substantial justice has been done, or where there is a mere naked technical right to recover, is no cause for a new trial. Willson v. McEvoy, 25 Cal. 169; Bustamente v. Stewart, 55 Cal. 115; Jennings v. Loring, 5 Ind. 250; Tillotson v. Miller, 5 Blackf. (Ind.) 381.

In McConihe v. New York, etc., R. Co., 20 N. Y. 495, 75 Am. Dec. 420, it was found that the defendant had violated its contract, but no specific damages were proved, and a verdict was rendered subject to the opinion of the court. Upon this verdict the court rendered a judgment for the defendant. It was held that this judgment ought to have been affirmed, for though it ought to have been for the plaintiff for nominal damages, yet it was a proper case for the application of the maxim that the law does not regard trifles.

Cases Where the Maxim Was Held Not to Apply. - In Merrill 2. Hurlburt, 63 Cal. 494, the evidence showed that the value of the property replevied did not exceed three hundred and sixty dollars, but the court found the value at

3. I Bl. Com. 456. Pretended or Alleged Pregnancy. The uncertainty in point of fact, of the precise period of gestation, gives occasion to a proceeding at common law, when a widow is suspected to feign herself with child in order to produce a supposititious heir to the estate. In this case at common law, the heir, or other person interested immediately or contingently, may have a writ de ventre inspiciendo, to examine whether she be with child or not; and if she be, to keep her under proper restraint till delivered; which is also entirely conformable to the practice of the civil law; but if the widow be proved not pregnant, the presumptive heir or successor to the estate shall be admitted to the inheritance, though liable to lose it again on the birth of a child within the legal period. The writ de ventre inspiciendo, which is said to be of common right, and not in the discretion of the court, directs the sheriff or sergeant to summon a jury of twelve men, and as many women, by whom the female is to be examined (tractari per ubera et ventrem), in the presence of the men, the exigency of the case dispensing at once with common decency and respectful deference to the sex. If this mandate were strictly observed, according to its terms, it would be, as Mr. Hargreave justly observes, an intolerable grievance. It seems, however, that the courts have, sometimes at least, winked at the men's withdrawing themselves

during the search. It appears from

some

of the reports that it was so managed in Willoughbie's Case, Cro. Eliz. 566; although, according to Croke, the writ was literally complied with. At all events, for more than a century past, the courts have been accustomed to make a previous order that the writ should issue unless by a designated time, and from time to time afterwards, the female shall submit to a satisfactory examination by women of skill, who may report her condition to the court; and thus the actual employment of the writ seems to have been avoided. I Minor's Inst. 409, citing Reg. Brev. Orig. 227 a; I Th. Co. Lit. 143, 144, and note (7); Vin. Abr., Ventre Inspiciendo (A); Willoughbie's Case, Cro. Eliz. 566; Theaker's Case, Cro. Jac. 685; Ex p. Aiscough, 2 P. Wms. 591; Ex p. Wallop, 4 Bro. C. C. 90.

There is yet another instance at common law which occasions an examination as to a woman's alleged pregnancy. When capitally convicted a woman might plead her pregnancy. The judge directed that a jury of twelve matrons should inquire into the fact; and if she was found to be pregnant execution was stayed until she was delivered. 4 Bl. Com. 394. In State v. Arden, 1 Bay. (S. Car.) 489, the jury found the prisoner not pregnant. The plea was held inadmissible in Holeman v. State, 13 Ark. 105, where the prisoner had been sentenced to the penitentiary for a year. In Spooner's Case, Chandler's Cr. Tr. (Mass.) 55, an application was made for respite on the ground of the pregnancy of the condemned. A jury of matrons was empaneled, and a verdict of not pregnant returned. This verdict was shown to be incorrect by an examination of the prisoner's body after her execution. For an interesting account of such an examination see 9 Cent. L. J. 94.

- An ordinance which makes

it the duty of an inspector to cause the immediate removal of "all putrid and unsound beef, pork, fish, hides, or skins, all dead animals, and every putrid, offensive, unsound, unwholesome substance found in any street or other place in the city,

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so as most

effectually to secure the public health," does not justify the removal from a railroad car of hogs that have suffocated on the passage. The owner of such hogs may in case of such removal recover damages from the inspector. The court said: "A dead hog is not per se a nuisance, even though it died of suffocation, and is not necessarily dangerous to public health. The owner may still put it to a useful and innocent purpose. This ordinance, so far as it relates to dead animals,' cannot be literally construed, because, if it should be, a city inspector might with impunity remove dead animals provided for food. The connection in which the terms are used, and the object of the ordinance, render it quite manifest that only such dead animals were meant as were nuisances or dangerous or deleterious to public health." Underwood v. Green, 42 N. Y. 140. See generally the titles BOARDS OF

HEALTH, Vol. 4, p. 596; MUNICIPAL CORPORATIONS; NUISANCES.

Dead Weight. Under the provisions of the Louisiana Act of Feb. 5, 1842, reviving the charters of the banks of the city of New Orleans, only the debts due to those institutions at the time of the passage of that act can be considered as forming a part of their dead weight. Debts subsequently contracted, though between the date of the passage of the act, and its promulgation, or acceptance by the banks, are not included in the dead weight. City Bank v. Barbarin, 6 Rob. (La.) 289.

Dead Weight Charter Party. See the title CONTRACTS OF AFFREIGHTMENT AND CHARTER PARTIES, vol. 7, p. 276. And see Cunningham v. Dunn, 3 C. P. Div. 443.

Dead Stock. (See also LIVE STOCK; STOCK.) - The testator bequeathed all his live and dead stock, household furniture and effects, to trustees. It was held that by this bequest the emblements or crops growing at the time of the testator's death passed. Rudge z. Winnall, 12 Beav. 357; Blake v. Gibbs, 5 Russ. 13, note. See also the titles CROPS, ante; WILLS. Live and Dead Stock. - Where a testator bequeathed his furniture, and stock of carriages and horses, and other live and dead stock," the latter phrase, taken together with

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carriages and horses," was held to be antithetical to "furniture," and to refer only to out-of-door stock; Arden, M. R., saying: "I do not mean to say what live and dead stock' might mean if it stood independent of everything else; but upon the whole of this will taken together I cannot by any fair inference deduce that the testator did intend under the words live and dead stock,' as they stand here, his books and wine." Porter v. Tournay, 3 Ves. Jr. 311.

2. Coupling Cars. (See also the title COUPLING CARS, Vol. 7, p. 1046.) - The plaintiff, employed as brakeman by the defendant, had his hand crushed between the dead blocks while coupling cars. The court said: "The accident which resulted in the injury was the immediate result of the plaintiff's own act in putting his hand awkwardly between the dead blocks. These blocks are, as their name indicates, dangerous. They are to be avoided in all couplings, and are upon all cars. They are not in a line with nor in close proximity to the drawheads, but they are on each side and above the drawheads, and while they are dangerous in themselves, they are necessary to preserve the life of the brakeman by protecting his body from the cars, and they are a necessary precaution against danger. They are open, obvious, and notorious, and all brakemen understand, doubtless, that they must keep their hands from between them, for if they were to touch ever so gently the touch would crush all that came between. The plaintiff distinctly admits that he knew the situation of these dead blocks; that their situation, use, and the danger surrounding them were known to him, is clearly proved." Norfolk, etc., R. Co. v. Cottrell, 83 Va. 522.