homicide, on the train on which the prisoner was an employee, in the course of continuous travel to the station at which the homicide occurred. It was a natural, instinc tive response to the direction of his attention by the wit ness to the falling of the gun, intended to allay the appre hension of danger he reasonably supposed had been excited in the mind of the witness. The declaration may not, strictly speaking, form part of the res gesttr; but it is con nected with, and cannot be disconnected from, the inquiry, what was the state of the prisoner's mind at the time of the homicide — did he then believe the gun was unloaded? The evidence, without conflict, shows that he saw the gun unloaded on the night before, and did not know, and had no opportunity of knowing, that it was subsequently re loaded, when the declaration was uttered. The truth and spontaneity of the declaration are apparent, and it is cor roboratory of the evidence of the prisoner that at the time of the homicide he did not believe the gun was loaded. We have no purpose to relax the general rule that declara tions made by defendant in his own favor, not forming part of the res gestic — self-serving declarations, as they are termed — are inadmissible as evidence for him. But when, as in the present case, the inquiry is as to the state or con dition of the mind of the defendant, his declarations uttered instinctively, with no purpose of producing a particular effect in the future, and which have a tendency to elucidate or illustrate his mental condition, are admissible." Nu1sance. — Offens1ve Trade.— In Rowland v. Miller, 139 New York, 93; 22 L. R. A. 182, it was held that an undertaking establishment in which hu man dead bodies are prepared for burial or other sep ulture, and sometimes subjected to embalming and post-mortem examination, is a business " injurious or offensive to the neighboring inhabitants," within the terms of a restrictive agreement, although it may not constitute a legal nuisance. The Court observed : — "The business carried on by the Taylor Company is not among those kinds particularly specified in the agreement. But the claim of the plaintiff is that it is prohibited by the general clause in the agreement, as ' injurious or offen sive to the neighboring inhabitants.' This clause enlarges the scope of the agreement. It is a too narrow construc tion to hold that it prohibits only trades or kinds of bus iness which are nuisances per se for reasons already given, and for the further reasons that nearly, if not quite, all the trades and business specially named are not such nuisances. Any kind of business may become a nuisance by the man ner in which it is carried on, from its location, and a bus iness may be offensive to neighboring inhabitants, and yet fall far short of being a legal nuisance, which a court of equity will abate as such. This clause in the agreement must have a reasonable construction. We cannot suppose that the parties had in mind any business which might be offensive to a person of a supersensitive organization, or to one of a peculiar and abnormal temperament, or to the small class of persons who are generally annoyed by sights, sounds, and objects not offensive to other people. They undoubtedly had in mind ordinary, normal people, and meant to prohibit trades and business which would be offensive to people generally, and would thus render the neighborhood
to such people undesirable as a place of residence. It can not be doubted that the business of the Taylor Company was, within this definition, offensive to the neighboring res idents. People of ordinary sensibilities would not willingly live next to a lot upen which such a business is carried on. An ordinary person, desiring to rent such a house as plain tiff's, would not take her house, if he could get one just like it, at the same rent, at some other suitable and convenient place. Indeed her house would be shunned by people gen erally who could afford to live in such an expensive house. The courts can take judicial notice of the offensive character of such a business. Judges must be supposed to be ac quainted with the ordinary sentiments, feelings, and sen sibilities of the people among whom they live : and hence, in this case, the learned judge, after the character of the business carried on by the Taylor Company had been proved, could have found, as matter of law, that it was in violation of the restriction agreement, without any further proof." Vox et Pr*:terea N1h1l. — In Murpry- Jack, New York Court of Appeals, April, 1894, it was held that an attachment may not issue on an affidavit made by the attorney, upon information and belief, and based solely upon a communication made to him by the plaintiff by telephone, without proof of the identity of the plaintiff, as by recognition of his voice. The Court said : — "There would he no objection to the information having been conveyed through the medium of the telephone, if it had been made to appear that the affiant was acquainted with the plaintiff, and recognized his voice, or if it had appeared in some satisfactory way that he knew it was the plaintiff who was speaking with him. None of these facts however were averred. There was absolutely nothing upon which the judge could pass to show that it was the plaintiff who was speaking, and not some undisclosed person who, in the plaintiff's name, furnished to the attorney the infor mation made use of. The perfection to which the inven tion of the telephone has been brought, has immensely facilitated the inter-communication of individuals at distant points, and inasmuch as the voice of the speaker is heard, in most if not in all cases, the identification of the speaker should be possible. The very facility of communication and of identification permits, and therefore imposes a duty upon the party who invokes judicial action upon the strength of information so received, to state his knowledge or his grounds for believing that it actually came from the party required to furnish it. To authorize an attachment to issue upon the affidavit furnished here was in disregard of the rule which requires that the source of information shall be disclosed in such a way as to enable the court to decide upon the probable truth of the statements, and the authenticity of the jurisdictional facts. Judicial action upon such a source of information as was here disclosed was justified below by analogy with telegraphic communi cation. The analogy is incomplete. If the information comes through the telephone it is quite possible to identify the speaker. Then, too, there is not in the case of a telephonic communication any record, like the message which, in the case of the use of the telegraph, remains for reference and verification."
