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Opinion of the Court.

and discomfort to have been occasioned, thus tending necessarily to destroy the use of the building for the purposes for which it was erected and dedicated. The congregation had the same right to the comfortable enjoymeni of its house for church purposes, that a private gentleman has to the comfortable enjoyment of his own house; and it is the discomfort and annoyance in its use for those purposes for the three years covered by this suit which is the primary consideration in allowing damages. There may be no arithmetical rule for the estimate of damages. There is, however, an injury, the extent of which the jury may measure.”

It is objected to these instructions, that the evidence did not warrant the assumption that the use of the defendant's engine house and repair shop rendered it "impossible” for the plaintiff to occupy its building with comfort; or that the noise, smoke and cinders created a “constant” disturbance; or that the voice of the preacher, while praying and preaching, “ could not be heard ;” or that the smoke and cinders were thrown into the church in such quantities as to “cover the seats with soot;" or that there had been inconvenience and discomfort caused to the congregation, “tending necessarily to destroy ” the use of the building for the purposes for which it was erected and dedicated.

But all the expressions objected to were taken from the opinion of this court in the former case, and are open to no just exception in matter of law. 108 U. S. 329, 335. And if they can be construed as expressing an opinion upon the facts, the expression of such an opinion is within the discretion of the judge presiding at a trial by jury in any court of the United States, and, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on writ of error. Vicksburg & Meridian Railroad v. Putnam, 118 U. S. 545; United States v. Philadelphia & Reading Railroad, 123 U. S. 113; Lovejoy v. United States, 128 U. S. 171.

The only other point relied on arises upon the defendant's request for an instruction to the jury, in the second of the present actions, that if they should be satisfied from the evi.

Opinion of the Court.

dence that the plaintiff was entitled to a verdict, then in estimating damages they might take into consideration the payment by the defendant to the plaintiff of the judgment in the former action, and the judgment against the defendant in the first of the present actions. The court refused so to instruct the jury, except with this qualification : “But the fact of such previous recoveries against the defendant is not admissible for the purpose of reducing the amount of damages, if any, to which the jury may find the plaintiff is justly entitled in the present action.” The defendant excepted to this instruction, as well as to the refusal to give the instruction requested.

The instruction, as given, was quite favorable enough to the defendant. The design of the request, as avowed in the brief of its counsel, “was to give the jury an opportunity to equalize the verdicts, should they deem either of the other two either too high or too low, and to do justice according to their notions.”

But the jury in the last case had nothing to do with the assessment of damages in either of the earlier cases. The three actions were brought to recover damages for injuries during distinct and successive periods of three years each. The former action was not for damages which were the necessary or natural effect of the erection of the defendant's structures, which might be recovered once for all ; but it was for the injury suffered before the commencement of that action by reason of the wrongful use of those structures. And each of the present actions was brought, not for damages consequential upon the injury for which the plaintiff had already recovered judgment, but for damages caused by the new injury from the continuance of the nuisance, which could only be recovered in each action for the three years before its commencement. The judgments recovered in the former action and in the first of the present actions could not therefore have any effect to bar the last action, or to diminish the measure of the damages to be recovered by it. Troy v. Cheshire Railroad, 3 Foster, 83, 102; Warner v. Bacon, 8 Gray, 397, 402, 405, 406; Fowle v. New Haven & Northampton Co., 107 Mass. 352, 355, and 112 Mass. 334.

Counsel for Parties.

The cases at bar afford a good illustration of the rule of law, and of its application, as stated by Blackstone: “Indeed every continuance of a nuisance is held to be a fresh one; and there fore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the de fendant has the hardiness to continue it." 3 Bl. Com. 220.

If the damages assessed by the jury in either of these two actions were thought excessive, the defendant's only remedy was by motion for a new trial in the court below, and that has already been resorted to without success. 5 Mackey, 269.

Judgments affirmed.

LLOYD v. MOWILLIAMS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

DISTRICT OF RHODE ISLAND.

No. 109. Argued and submitted December 10, 1890. – Decided December 15, 1890.

When a trial by jury in a Circuit Court is waived by agreement, and the

case is tried by the court, no questions are open for revision here, unless the record shows & finding of facts in accordance with the provisions of Rev. Stat. $$ 649, 700; and in such case, when brought here, the judg. ment of the Circuit Court will be presumed to be right and will be affirmed, if it appears that that court had jurisdiction of the subject matter and of the parties.

This was an action to recover duties alleged to have been illegally exacted. When the cause was reached on the docket, argument was begun on the part of the plaintiff in error; but the court interrupted the counsel and declined to hear further argument. The case is stated in the opinion.

Mr. Charles Levi

Mr. J. P. Tucker for plaintiff in error. Woodbury was with him.

Mr. Assistant Attorney General Maury for defendant in error.

Argument for the Motion.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

In this cause, trial by jury was waived by agreement of the parties in writing, duly filed, and the case was tried by the court. But the record discloses no finding upon the facts, either general or special, in accordance with the statute, (Rev. Stat. SS 649, 700,) and no questions are therefore open to our revision as an appellate tribunal.

As the Circuit Court had jurisdiction of the subject matter and the parties, its judgment must be presumed to be right, and on that ground

Affirmed.

SMITH v. GALE.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

DAKOTA.

No. 580. Submitted December 22, 1890. – Decided January 6, 1891.

The day of the entry of judgment or decree must be excluded in computing

the time for taking an appeal or bringing a writ of error to review it.

This was a motion to dismiss an appeal, on the ground that it “was not taken within the time prescribed by law.” It appeared that the final decree was entered of record by the Supreme Court of the Territory of Dakota, on the 25th of May, 1886. The appeal from this decision was allowed, the supersedeas bond was offered and the citation was signed on the 25th day of May, 1888, by the chief justice of that court, and these papers were all filed on that day in the clerk's office of that court.

Mr. A. G. Safford and Mr. Park Davis (with whom was Mr. Melvin Grigsby) for the motion.

Final judgment was entered in this action on the 25th day of May, 1886, and the appeal to this court was allowed on the 25th day of May, 1888. This motion is made upon the ground that the appeal was not taken within the prescribed time.

VOL. CXXXVII-37

Opinion of the Court.

It is a general rule that where the computation is to be made from an act done, the day on which the act is done is to be included. Arnold v. United States, 9 Cranch, 104. In common and popular usage the day a quo has always been included, and such has been the rule both of the Roman and the common law. Griffith v. Bogert, 18 How. 158. These cases were cited with approval in Dutcher v. Wright, 94. U. S. 553. ·

The foregoing cases are distinguishable from another class of cases wherein the computation is to be made from a particular day, and not from an act done. The general current of the latter authorities is that the day thus designated is excluded. Sheets v. Selden, 2 Wall. 177; Best v. Polk, 18 Wall. 112.

The case falls within the rule laid down in the former class of decisions. The entry of judgment was an act done on the 25th day of May, 1886, and inasmuch as no fraction of a day can be considered, it must be referred to the earliest moment of that day, and the day should be counted. By counting that day the two years within which the appeal could be taken expired on the 24th day of May, 1888, and the appeal was allowed one day too late.

Mr. Enoch Totten opposing.

MR. CHIEF JUSTICE Fuller delivered the opinion of the court.

In computing the two years after the entry of a final judgment, decree or order, sought to be reviewed in this court, within which the writ of error must be brought or the appeal taken, the day of the entry of such judgment, decree or order should be excluded. Credit Co. v. Arkansas Central Railway Co., 128 U. S. 258. The motion to dismiss the appeal in this cause is therefore

Denied.

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