opinion of United States Judge Morrow, we clip the following: The general rule is thus summarized in 19 Am. & Eng. Enc. Law, p. 486: "It may be laid down as a general rule that a judicial officer acting within his jurisdiction is not liable, in an action for damages, for any judgment he may deliver. And for the purpose of exemption under this rule an officer who acts judicially for the time being is considered a judicial officer, although he may also perform ministerial duties. In order to be entitled to this protection, however, the officer must act within his jurisdiction, and in good faith, without fraud or malice; and the burden of proof is on the plaintiff to show that the officer acted maliciously and in bad faith." The following cases recognize the general rule referred to: Gould v. Hammond, 1 McAll. 235, Fed. Cas. No. 5638; Gregory v. Brooks, 37 Conn. 365; Porter v. Haight, 45 Cal. 631; Green v. Swift, 47 Cal. 536; McCormick v. Burt, 95 Ill. 263; Elmore v. Overton, 104 Ind. 548, 4 N. E. Rep. 197; Gregory v. Small, 39 Ohio St. 346; Burton v. Fulton, 49 Pa. St. 151; Morgan v. Dudley, 18 B. Mon. 693; Chrisman v. Bruce, 1 Duv. 63; Ballerino v. Mason, 83 Cal. 447, 23 Pac. Rep. 530; Keenan v. Cook, 12 R. I. 52; Parkinson v. Parker, 48 Iowa, 667; Williams v. Weaver, 75 N. Y. 30; Apgar v. Hayward, 110 N. Y. 225, 18 N. E. Rep. 85. See, also, cases cited in the above citation from 19 Am. & Eng. Enc. Law, p. 489. It may be observed, further, that there is another líne of cases which makes a distinction between public officials who are judges and justices of the peace (that is, those who act in a distinctively and exclusively judicial capacity) and those other public officials who act merely in a quasi judicial capacity, such as assessors and the like. Pike v. Megoun, 44 Mo. 491; Elmore v. Overton, 104 Ind. 548, 4 N. E. Rep. 197; Upshur Co. v. Rich, 135 U. S. 467, 10 Sup. Ct. Rep. 651; Cooley, Torts (2d Ed.), p. 480, and cases there cited. In Pike v. Megoun, supra, it was said: "An action, then, does not lie against judges or magistrates, or persons acting judicially, in a matter within the scope of their jurisdiction, however erroneous their judg ment, or corrupt and malicious their motives. But there is a limit to this judicial immunity. The civil remedy depends exclusively upon the nature of the duty which has been violated. When duties which are purely ministerial are cast upon officers whose chief functions are judicial, and the ministerial duty is violated, the officer, although for most purposes a judge, is still civilly responsible for such misconduct. And the same rule obtains where judicial functions are cast upon a ministerial officer. But to render a judge acting in a ministerial capacity, or a ministerial officer acting in a capacity in its nature judicial, liable, it must be shown that his decisions were not merely erroneous, but that he acted from a spirit of willfulness, corruption, and malice; in other words, that his action was knowingly wrongful, and not according to his honest convictions in respect of his duty." The distinction made appears to me to be a correct and logical one. It certainly tends to remove much of the perplexity that would otherwise attend the subject. The reasons why a judge, justice of the peace, or a juror should be completely exempted from private suits for their judicial acts are much stronger, from the standpoint of public policy, than apply to a public officer discharging quasi-judicial functions, such as an assessor. As was well said in Scott v. Stansfield, L. R. 3 Exch. 220: "This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exer cise their functions with independence, and without fear of consequences." Many of the cases cited by counsel for defendants involved suits where it was attempted to sue judges, justices of the peace, and jurors. These cases are therefore to be distinguished from the case at bar. The authorities in this Statekeeping in mind the distinction heretofore made between judicial officers and those acting in a quasi judicial capacity in connection with their ministerial duties accord with the rule that where malice is expressly alleged, as in the case at bar, a suit can be maintained against an assessor for an excessive assessment. In Ballerino v. Mason, 83 Cal. 447, 23 Pac. Rep. 530, a suit was brought against a county assessor and the sureties upon his official bond, as in the case at bar, alleging that the assessor willfully and against law assessed a tract of land belonging to plaintiff at an unlawful and false valuation, which was largely in excess of a sum alleged to be its highest actual value for agricultural purposes. It was held that the averment of the value of the property, to wit, "highest actual value for agricultural purposes," was insuffi cient, and, further, that the averment that the assess ment was willful and against law, without an aver ment that he acted maliciously and with intent to wrong or injure the owner of the property, did not negative the presumption that he simply erred in judgment, for which he was not liable to an action. In other words, it was there held that as the complaint did not aver, among other things, that the 3 sessor had been actuated by malice, the demurrer should be sustained. The effect of this decision, so far as it is applicable to the present case, is to hold "that, had there been an averment of malice in the complaint, the demurrer would have been overruled, and the suit could have been maintained; assuming, of course, that the complaint was sufficient in other respects. In Porter v. Haight, 45 Cal. 631, it was held that the board of State prison directors, in annulling a contract they had made for the employment of con vict labor, acted in a judicial, and not a ministerial, capacity, for which, if they acted without fraud or malice, they did not incur any personal liability. In Green v. Swift, 47 Cal. 536, it was held that a board of commissioners appointed by an act of the legislature, with power to turn or straighten the channel of a river in order to protect a populous portion of the country from threatened inundation, are not liable for dam ages to others caused by the work, resulting from mere errors of judgment in the commissioners, provided they keep within the scope of their powers, and exercise their judgment honestly, and do not act ma liciously, oppressively, or arbitrarily. Mr. Justice Wallace, in rendering the opinion of the court, said "They (the commissioners) were to exercise their judgment honestly, and to do the work, of course, with proper care and caution, and not maliciously, oppressively, or arbitrarily, to the injury of the rights of other persons. But, keeping within the scope of these powers, they are not to be held liable for mere errors of judgment, nor for injuries to others result ing from the work itself, if properly performed and with due care. Otherwise, as remarked by Lord Kenyon, every statute of this character 'would g rise to an infinity of actions,'" citing Governor, etc v. Meredith, 4 Term R. 796. N. W. Rep. 841, decided by the Supreme Court of Michigan, it was held that one claiming under a deed cannot testify as to facts equally within the knowledge of his deceased grantor as against those claiming under a second deed, and who set up that the first deed had been revoked in view of 3 How. Ann. St. sec. 7545, which provides that where a suit is defended by the assigns of a deceased person the opposite party shall not be permitted to testify as to matters which must have been equally within the knowledge of the deceased person. The court said in part: 88 Mich., at page 189, 50 N. W. Rep. 145, Mr. Justice Champlin said: "The word 'assigns' is used here in its legal sense, and signifies a person to whom any property or right is transferred by a deceased person in his life-time. The statute is broad enough to cover successive transfers, or where the controversy depends upon the acts or dealings with the property of the deceased in his life-time; and any one who is called upon to prosecute or defend some interest which is affected by the act or agreement of the deceased party through whom he claims may invoke the protection of the statute to shield his interest from the testimony of the opposite party to matters which, if true, were equally within the knowledge of the deceased person through whom he claims." In Schuffert v. Grote, 88 Mich. 650, 50 N. W. Rep. 657, a son filed a bill to set aside a deed executed by his father, since deceased, to the defendant, and confirm the title to the land in the complainant under a prior deed executed to complainant by the father. It was held that the testimony of the complainant as to the execution of the first deed, as to what took place between his father and himself, was excluded by the statute. The case is on all fours with the present. In Lloyd v. Hollenback, 98 Mich. 203, 57 N. W. Rep. 110, a daughter of her deceased father filed a bill alleging an agreement to give complainant certain property in consideration of a life support, and to set aside a deed executed by her father in his life-time to defendant. The statute was held to exclude her testimony. See, also, Connolly v. Keating, 102 Mich. 1, 60 N. W. Rep. 289. The original bill was filed by the complainant to remove a cloud from the title to lands claimed to be owned by him. The bill alleges that the complainant acquired his title through a conveyance made on the 21st of November, 1893, to him by his wife, Mary; that he went into actual possession of the land, and has remained in possession ever since; and that on the 10th of November, 1894, his wife, Mary, died intestate, and without issue. The bill avers that the defendant, John Holden, on the day of the death of complainant's wife, caused a conveyance of the premises in question from Mary Bailey to defendants Carrie F. Holden, Frank H. Holden, Pearl G. Holden and Bernice N. Holden, purporting to have been executed on the 29th of October, 1894, to be placed on record. The defendant John Holden is a brother of Mary Bailey, deceased, and the other defendants are his minor children. Defendants, by their answer and crossbill, aver that the conveyance under which complaining to be the assignee of the deceased payee. No rep ant claims was procured by means of influence which complainant had over his wife, and was executed with the express understanding that it was to operate and be considered as a will of Mary Bailey, and to take effect only at her death, and that she reserved the full power of revocation. The case turned below, and must turn here, upon the determination of the question as to whether the conveyance was made as an absolute conveyance, or with the purpose that it be delivered and take effect after the death of Mary Bailey; and this is mainly a question of fact. Three persons besides the deceased were present when the deed to complainant was signed. They were complainant himself, an attorney named Lowden, who had driven out to the residence of deceased and complainant for the purpose of taking the acknowledg ment of the deed, and who had in advance prepared the deed for execution, and a domestic, Miss Hazel. A preliminary question is made as to whether complainant is a competent witness to testify to facts equally within the knowledge of his deceased wife. The statute (section 7545, 3 How. Ann. St.) provides that "when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all to matters, which, if true, must have been equally within the knowledge of such deceased person." Defendants are the assigns of Mary Bailey. They claim under a deed executed by her in due form, to defeat which it is necessary to show that she had parted with title prior to the date of the deed to defendants, and the testimony which complainant offered was for the purpose of establishing this fact. In Ripley v. Seligman, Complainant cites, to sustain the admissibility of the testimony, the case of Latourette v. McKeon, 104 Mich. 156, 62 N. W. Rep. 153. In that case the action was brought against the maker of a note by one claim resentative of such deceased payee was prosecutor or defendant in the suit. But in the case of Hillman v. Schwenck, 68 Mich. 297, 36 N. W. Rep. 670, cited in Latourette v. McKeon, it was said: "If the executor had indemnified the defendants, or had taken upon himself the defense of the suit, the statute excluding the plaintiff from testifying to matters which were equally within the knowledge of the deceased would have applied." So, in the case of Brown v. Bell, 58 Mich. 58, 24 N. W. Rep. 824, and Schofield v. Walker, 58 Mich. 96, 24 N. W. Rep. 624, it was held that the testimony of the proponent of a will is not excluded, for the reason that there is no "opposite party" representing the estate of the deceased. If the case of Lautenshlager, 80 Mich. 285, 45 N. W. Rep. 147, is to be deemed a misapplication of the doctrine of Brown v. Bell, the distinction has since been made in the later cases above referred to, and the rule firmly es tablished. We think the testimony of the complainant was not competent. limits of any city or town, a misdemeanor. It was held that one who keeps gunpowder in violation of such statute is liable to a person intended to be protected by it for injuries to property caused by an explosion of the powder. The following is from the opinion of the court: The question of care and diligence does not arise in a case of damages resulting from a nuisance per se, because the thing itself was unlawful. Courts have not always been careful to maintain the difference in cases where suit was brought to recover damages resulting from a cause that is a nuisance per se and damages resulting from the manner of the use of the thing. The rule of "sic utere" requires a person to so use his own as not to injure another, and he is responsible for the failure to do so whether the "thing" used be a nuisance per se or made so by its use. The reasoning is not sound that concludes "a thing" to be a nuisance per se because in its use injury has resulted. The blasting of rocks is not per se unlawful. But when a person undertakes to blast rocks, whether in a city or in the country, he may become responsible for the damage inflicted upon the person or property of others; this not solely because of the explosive material used to effect the blasting, but because of the damage resulting from the means used and place and manner of using. A person who would cut a tree down with an ax, standing on his own right of way, so as to fall upon the house of another, would be responsible, and equally liable as if a huge rock had been thrown by blasting upon the house. So a city or person may be liable in damages for a nuisance by causing water to leave its natural course, and overflow the lands of another; but this does not argue that water per se is a nuisance, but only that the manner of its use may become such. The result does not conclusively determine that the means or instrument used was dangerous, but may show that on account of the place and the manner of the use it was such. It has been frequently held that the law as to explosives is the same as that which applies to keeping dangerous and vicious animals. A dog, however vicious, may be secured so as to render it absolutely harmless. A dog thus kept on one's own premises is not a nuisance per se, because it cannot work a hurt to another. If, however, the dog escapes, and upon the highway or upon the private premises of another commits an injury, the owner is liable. Every menagerie or zoo having dangerous and wild animals for exhibition, however securely caged, would be guilty of a nuisance per se if the mere having such animals in cities or on the highway constituted a nuisance. Steam is dangerous, and at times, suddenly, without warning, there are explosions from steam, causing destruction of property and death. If the fact that explosions do occur, causing damage, was conclusive that steam power was a nuisance per se, manufacturing in towns and near other people's premises must Under such a rule, all steamboating and railroading would be nuisances per se. Is gunpowder kept in large quantities in public places dangerous, and per se a nuisance, without regard to the manner of its use or keeping? When we consider the vast number of government magazines in this country and throughout the world, its daily transportation by every known power of conveyance, its daily use by millions of persons in war, or for blasting, or for rease. amusement, with scarcely a single well-authenticated instance of spontaneous combustion, it cannot be said that gunpowder per se is dangerous. The difference between a public nuisance and a private nuisance does not consist in any difference in the nature or character of the thing itself. It is public because of the danger to the public. It is private only because the individual, as distinguished from the public, has been or may be injured. Public nuisances are indictable. Private nuisances are actionable, either for their abatement, or for damages, or both. If the storing of gunpowder so near another's dwelling in the country, where there is no other building, that an explosion would damage the owner, be not a private nuisance per se, the storing of the powder in a city will not be a public nuisance per se. The decisions of the supreme or appellate courts of different States are not uniform in their statements of the law. We will refer to a few of the leading cases. The case of Laflin v. Tearney, 131 Ill. 322, 23 N. E. Rep. 389, 19 Am. St. Rep. 34, 7 Lawy. Rep. Anu. 262, at first reversed, and on rehearing affirmed, shows that the complaint was not demurred to, and it was held that the first count, which averred the keeping of the powder magazine, its explosion, and conse quent damages, contained a sufficient cause of action to support a judgment. The court held that this count showed that the defendant kept a powder magazine "upon its premises, so situated with refer ence to the dwelling house of the plaintiff that it was liable to inflict serious injury upon her person of property in case of explosion. It was a private nui. sance, and therefore the defendant was liable whether the powder was carefully kept or not." The second count charged that the pcwder was kept in violation of a city ordinance. The court held that the keeping of the powder was an illegal act, and "the defendant was responsible for all consequences resulting from the act." The case of McAndrews v. Collerd, 42 N. J. Law, 189, 36 Am. Rep. 508, was a case where the defendant had collected a magazine of explosives to be used for blasting within the city limits of Jersey City. A statute of the State had declared the keeping of ex plosives within the limits of a city in larger quantities than a specified amount to be a misdemeanor. In discussing the question generally, the court stated that the keeping of gunpowder in large quantities in the vicinity of a dwelling house is a nuisance per se. The case of Cheatham v. Shearon, 1 Swan, 213, 55 Am. Dec. 734, was a case where a powder house was erected in a populous part of the city, and which was exploded by lightning. The court held "that the erection of a powder magazine in a populous part of a city, and keeping stored therein large quantities of gunpowder, is per se a nuisance." The court uses the following argument: "The fact that it is liable to explode by means of lightning, against which no human agency could guard, is decisive of the question. If the explosion could only be produced by human agency, there would be much force in the reasoning of the majority of the court (in People v. Sands, 1 Johns. 78) that the question whether it was s nuisance or not depends upon the manner in which it is kept, because there might be a building so secure, and a method of keeping it so careful, as that danger would not be apprehended," etc. If the conclusion of the court had been that the powder house in question was so constructed that it was liable to be ex ploded by lightning, and the fact that it was so ex-· ploded was conclusive that it was not properly con structed, there would be "much more force in the reasoning of the court." But when the court undertakes to declare that it is impossible to protect a pow der house from lightning, and bases its conclusion that a powder house in a populous city is a nuisance per se from such a premise, we are not prepared to assent, w thout some further reason. We do not know judicially that a powder magazine may not be constructed and so provided as to insure absolute security from lightning. We do not think the criticism upon the argument of Chief Justice Kent is well maintained. In the case of Wilson v. Powder Co., 40 W. Va. 413, 21 S. E. Rep. 1035, 52 Am. St. Rep. 890, it was declared that "the manufacture and keeping of quantities of gunpowder, nitroglycerin, and other explosives in or dangerously near to public places, such as towns or highways, is a public nuisance, and indictable as such. Negligence is no material element," etc. It will be observed that "manufacturing and keeping of large quantities of gunpowder" was declared to be a nuisance. It was a manufacturing of powder as well as the keeping of powder that exploded in this case. We will not discuss the question of the manufacture of explosives, and refer to the case for the purpose of considering some of the statements and propositions of the court. It is said: "Now, if this mill were located in a secluded place, and removed from highways, being in itself a lawful business, the case would be different. It would not be a public nuisance; and to recover injury from an explosion I apprehend the plaintiff must show negligence on the defendant's part." If the thing be a nuisance per se, and injury results to another's prem ises, no rule of law requires evidence of negligence. A private nuisance per se is actionable, as much so as a public nuisance. The only difference is that, in order to maintain an action in his individual name, he must show an injury not common to others. Whatever constitutes a public nuisance as to the public will constitute a private nuisance, if established so as to have the same effect upon the premises or health of a private person as it would have upon the public if established in a city or highway. The constituents and definitions of a nuisance, whether public or pri vate, are the same. It becomes a public or private nuisance as it affects the public or the individual only; but we do not see how the fact that the "place" is public can determine the "thing" to be a nuisance per se. Certainly, the place does not bring it within the common-law definition. The opinion, referring to the case of People v. Sands, 1 Johns. 78, supra, says later New York cases have overruled it. We presume the court referred to the cases of Heeg v. Licht, 80 N. Y. 579, and Myers v. Malcolm, 6 Hill, 292, as these are the only New York cases cited. The case of Heeg v. Licht, supra, 36 Am. Rep. 654, has been cited in most of the decisions which hold that a powder magazine erected in a public place, or near the premises of another, in which powder is kept, is a nuisance per se, as supporting that proposition. We do not fully and clearly apprehend all the principles intended to be laid down as applicable to the facts in the case of Heeg v. Licht. It was admitted that the defendant had gunpowder stored in his magazine, that it exploded, and caused the damage to the buildings of the plaintiff. The trial court instructed the jury that plaintiff could not recover unless they found that the defendant "carelessly and negligently kept the gunpowder on his premises." It was held on appeal that "this charge was not warranted by the facts." The trial court refused to instruct the jury "that the powder magazine was dangerous in itself to plaintiff and his property, and was a private nuisance," etc. On appeal it was held that this charge was properly refused. The fcase, then, is this: The defendant stored gunpowder and other explosives in a magazine in such quantities and close contiguity to the building of the plaintiff that an explosion was liable to damage and did damage the plaintiff and his property. On these undisputed facts it was held on the one hand that the facts did not warrant the court to charge the jury that plaintiff "could not recover unless he showed negligence;" and on the other, that these facts did not show that "the powder magazine was dangerous in itself to plaintiff and his property, and was a pri vate nuisance," etc. As we read the case, it was disposed of in the following proposition: "The keeping or manufacturing of gunpowder or of fireworks does not necessarily constitute a nuisance per se. That depends upon the locality, the quantity, and the surrounding circumstances, and not entirely upon the degree of care used. In the case at bar it should have been left for the jury to determine whether, from the dangerous character of the defendant's business, the proximity to other buildings, and all the facts proved upon the trial, the defendant was chargeable with maintaining a private nuisance," etc. Certainly nothing can be found here which authorizes, as a legal conclusion, from locality and quantity only, that storing of gunpowder is a nuisance per se. There must be "other surrounding circumstances," and it depends upon the facts of the case whether the party is guilty of maintaining a nuisance. In the case of Cosulich v. Oil Co., 122 N. Y. 118, 25 N. E. Rep. 259, 19 Am. St. Rep. 475, the damages resulted from an explosion of petroleum. The court held that the business of the defendant was lawful, and that it was incumbent upon the plaintiff to show a want of due care. In the case of Walker v. Railway Co., 71 Iowa, 658, 33 N. W. Rep. 224, the damages resulted from an explosion of dynamite then on a car in defendant's yard. The evidence showed that the dynamite exploded, and injured the property of plaintiff. It was held that the burden was on plaintiff to show that the place where stored was an improper place. The case of Judson v. Powder Co., 107 Cal. 549, 40 Pac. Rep. 1020, 29 Lawy. Rep. Ann. 718, was for the recovery of damages resulting from an explosion of dynamite and nitroglycerin stored in a magazine. The complaint averred negligence, and upon the issue thus made the trial was had. There was expert evidence tending to show that by the exercise of proper precaution an explosion could be avoided. An important rule laid down by the court is that proof of the explosion raises prima facie a presumption of negligence, and places the burden upon the defendant to overcome it. There are many citations in the notes to the report of the case in Lawy. Rep. Ann. supra. In the case of People v. Sands, 1 Johns. 78, 3 Am. Dec. 296, the defendant was indicted for a nuisance for keeping 50 barrels of gunpowder near the dwelling houses of divers good citizens, and near a certain public street in the city of Brooklyn, etc. The indictment was held bad, for the reason that it failed to charge that the gunpowder was negligently or improvidently kept. All the authorities which have referred to this case expressly or impliedly concede that it decides that the keeping of gunpowder in large quantities in a pub ic place in a city is not a nuisance per se. The West Virginia case cited above says it was overruled by later New York cases, We have been unable to find the cases overruling it. The Tennessee case, supra, criticises the opinion of Chief Jus tice Kent, holding that the indictment was bad. In referring to the case decided by Holt, C. J., while stating that it had been loosely reported, Chief Justice Kent first quoted the principles decided, and then used the following language: "This case, as far as it is any authority, goes in confirmation of the principle that the time, place, and manner are all important and essential in determining whether a power house amounts to a nuisance." The case of Myers v. Malcolm, 6 Hill, 292, 41 Am. Dec. 744, has been cited as not sustaining the case of People v. Sands, 1 Johns. 78, supra. Our reading of the case is different. We think it not only approves of the principles announced, but cites it as authority. In the case of Myers v. Malcolm the action was for damages resulting from an explosion of 600 pounds of powder in kegs in the upper story of a wooden building, near several wooden buildings, some of which were inhabited. On the trial it was left to the jury to determine "whether the conduct of the defendants in regard to the manner of depositing the powder was such as to render them guilty of a public nuisance." And, further commenting, it was the opinion of the court that, "the most satisfactory position for the plaintiff, and the one most difficult to be answered by the defendants, is the ground that the depositing and keeping of the powder in the exposed situation (we italicize) described by the witnesses amounted to a public nuisance." Says the court: "Upon the facts disclosed in this case, it cannot be doubted that the gunpowder was deposited in a building insufficiently secured and protected, and altogether unfit for the safe keeping of so large a quantity of the article." This opinion certainly gives no support to the position that the storing of gunpowder in a public place is per se a public nuisance. The case is directly in support of the principle that the "time, place, and manner," are important and essential in determining whether a powder house amounts to a nuisance, and accords with the rule declared in Heeg v. Licht, 80 N. Y. supra. The case of Bradley v. People, 56 Barb. 72, referred to in some of the decisions as supporting the proposition that the keeping of gunpowder in large quantities in populous places is a nuisance per se, to our understanding of the decision is an authority to the contrary. This decision not only cites People v. Sands, supra, and Meyers v. Malcolm, supra, as authority, but the decision itself is rested upon these two cases. Says the court: "The careless and improper manner of building and continuing the powder house and keeping the powder therein are fully charged," and that was the real issue tried. This case was reversed, because the trial court admitted testimony for the prosecution to show in what manner the government magazines were constructed. In commenting on this testimony the court used the following language: "And if it was intended to show that it was the duty of the defendants to build theirs in the same way, it was incompetent, for to hold that all dealers in gunpowder who have occasion to keep it in quantities are bound to construct their store houses for that purpose in the same way that it is deemed necessary in forts and arsenals would virtually interdict the traffic in the article by private persons, who could not afford the expense necessary to comply with any such require. ment. With the selection of a suitable location I think a much less expensive warehouse would be sufficient. The court below doubtless admitted the testimony because it was thought to be material, and that it would aid the jury in determining the ques tion of negligence on the part of the defendants; and it may have had that effect. At all events, I cannot see that it did not affect the result." It seems clear that in New York the case of People v. Sands is adhered to as sound law. In the case of Reg. v. Lister (decided in 1857), Dears. & B. Cr. Cas. 209, the question is discussed at some length. The defendant was indicted for a public nuisance. The indictment charged that the defendant "unlawfully, knowingly, and willfully, did deposit in a warehouse near to divers streets and highways and dwelling houses, etc., large and exces sive quantities of a dangerous ignitible and explosive fluid, called 'wood naphtha,' and did keep the said fluid in such large, excessive, and dangerous quantities, whereby the queen's subjects passing along the said streets and highways and residing in said dwelling houses were in great danger of their lives and property," etc. This indictment was held good. It was shown that wood naphtha was more dangerous and explosive than gunpowder. This case more directly supports the proposition that the keeping of gunpowder in large quantities in a populous place is a nuisance per se than any other English au thority we have been able to find. The court used the following language: "Upon the trial of such indict ments we consider that it is a question of fact for the jury whether the keeping and depositing or the manufacturing of such substances really does create dan ger to life and property as alleged; and this must be a question of degree, depending on the circumstances of each particular case. No general rule of law can be laid down beyond this: that the substantial allega. tions in the indictment must be substantially proved. In the present case we think that sufficient, although not necessarily conclusive, evidence was adduced, and that, although the judge would not have been justified in directing a verdict of guilty to be entered with. out taking the opinion of the jury upon it, he was fully justified in telling the jury (which he appears to have done) that if the depositing and keeping the naphtha in the manner described, coupled with its liability to ignition, ab extra, created a danger to life and property to the degree alleged, they might find a verdict of guilty." The predominant principle de clared in the opinion is that "the substance must be of such a nature, and kept in such large quantities and under such local circumstances, as to create real danger to life and property." In the older edition of Russell, Crimes, § 321, the following language is used: "It seems (we italicize) that erecting gunpowder mills or keeping gunpowder magazines near a town is a nuisance by the common law, for which an indictment or information will lie." In the International Edition of Russell on Crimes, the phraseology is changed, and the author is made to say: "Erecting gunpowder mills or keeping gun. powder magazines near a town is a nuisance by the common law, for which an indictment or informstion will lie." We are of opinion that the author himself knew and weighed the effect of words, and used those which conveyed his exact meaning. An examination of the cases cited to the text shows that the principle was recognized that trades which were necessary and lawful of themselves were not to be interfered with by indictment or information, unless they come within the definition of a public nuisance. Dealing in gunpowder was a law. ful business. Being a lawful business, the question was whether the keeping of gunpowder in populous places, or near highways was an indictable offense under any circumstances. One of the earliest cases re |