sarily or naturally resulted from the act of the defendant. Nor would the court have been warranted in giving instructions which assumed that the disease was open and apparent to the observation of the plaintiff. The proof was that a part of the stock was not seen by the plaintiff, but was taken on the defendant's representation; and there was nothing in the evidence to warrant the supposition that by ordinary care the plaintiff might have been apprised of the character of the disease, if even that would exonerate the defendant in a case of fraud: Story on Sales, secs. 354 et. seq. Nor would the court have been warranted in giving the charge which assumed that the disease was not, or may not have been, contagious; since, from the evidence, there could be no doubt that it was so. Where there is no conflict in the testimony, and no room to doubt or hesitate as to a matter of fact in issue, the judge, in his charge, ought not to assume that it is or may be doubtful. Such a course is calculated either to confound the jury, by causing them to doubt the justice of their own clear convictions, or to mislead by inducing them to suppose they may find the fact either way, when the evidence warrants but one conclusion; and to find contrawise would be to find manifestly against the evidence. The rule which forbids the judge to charge upon the weight of evidence does not require or authorize him to assume as doubtful that which is clear and indisputable; or to assume hypotheses at variance with the certain fact. Where the evidence to a fact is positive and not disputed or questioned, it is to be taken as an established fact; and the charge of the court should proceed upon that basis. It is only where there may be doubt that the jury are required to weigh the evidence, and it is then only that the rule applies that the court shall not charge upon the weight of evidence. It is not the meaning of the rule that the judge shall ignore the indisputable facts of the case; or distrust the evidence of his senses; or that he shall assume that the jury may doubt where there is no room for doubt; or find contrary to the evidence and manifest truth and justice of the case.

It is unnecessary to review the evidence on which the verdict was found. The question of fact as to the character of the disease, the knowledge, concealment, and misrepresentations of the defendant, the fraud practiced, the value of the property, and the damages actually sustained, were questions for the jury, on which they have passed; and their verdict is well supported by the evidence.

It is objected that there was no tender of the horses to the defendant at his place of residence. Such tender was not necessary to entitle the plaintiff to recover his damages; nor was it necessary to entitle him to a rescission of the contract that he should have offered to restore the property, it having been proved and found by the jury to be utterly worthless. But if such offer was necessary, it was made; the defendant did not object to the manner of it, but positively refused to take back the property. More could not be required of the plaintiff.

The assignment of errors does not question the correctness of the judgment; and the appellant has nothing to complain of in the manner of its rendition. The petition prayed the delivery up and cancellation of the notes given the defendant for a part of the price of the purchase. But the answer of the defendant disclosed that he had already assigned and transferred the notes to a third person. They were transferred out of the power of the party and the court. The court could not act upon them. The only alternative relief which the court could award was granted, and rightly, under the prayer for general relief. We are of opinion that there is no error in the judgment, and it is affirmed.

Judgment affirmed.

FRAUD OR MISREPRESENTATION BY VENDOR OF CHATTEL, EFFECT OF, and remedies for: Sce Connersville v. Wadleigh, 41 Am. Dec. 214; Johnson v. MeLane, 43 Id. 102; Harmon v. Sanderson, 45 Id. 272; Price v. Lewis, 55 Id. 536; Trice v. Cockran, 56 Id. 15; McCulloch v. Scott, Id. 561; Cunningham v. Smith, 60 Id. 333; Kingsbury v. Taylor, 50 Id. 607; Mahurin v. Harding, 59 Id. 401, and cases cited in notes thereto.

SELLING DISEASED ANIMALS AS SOUND, LIABILITY FOR: See George v. Johnson, 44 Am. Dec. 288; Staines v. Shore, 55 Id. 492; Mahurin v. Ilarding, 59 Id. 401, and cases cited in notes thereto. As to the measure of damages in such cases, see Jeffrey v. Bigelow, 28 Id. 476; Stiles v. While, 45 Id. 214; Woodward v. Thacher, 52 Id. 73, and notes thereto.

RETURN OF CHATTEL ON RESCISSION FOR FRAUD IN SALE, NECESSITY OF: See Johnson v. McLane, 43 Am. Dec. 102; McCulloch v. Scott, 56 Id. 561, and notes.

PARTY CANNOT COMPLAIN OF ERROR IN HIS FAVOR: See McGowen v. West, 38 Am. Dec. 468; People v. Call, 43 Id. 655; Seabury v. Stewart, 58 Id. 254, and notes thereto; Hale v. Crowell, 50 Id. 301.

INSTRUCTION UPON WEIGHT OF EVIDENCE: See Trovillo v. Tilford, 31 Am. Dec. 484; Phillips v. Kingfield, 36 Id. 760; Whiteford v. Burckmyer, 39 Id. 640; Potts v. House, 50 Id. 329; Crozier v. Kirker, 51 Id. 724; Wilson v. Hus ton, 53 Id. 138; Beverly v. Burke, 54 Id. 351; Rushin v. Shields, 56 Id. 436; Woolfork v. Sullivan, 58 Id. 305; Tibeau v. Tibeau, 59 Id. 529; Houghtaling v. Ball, Id. 331; Jones v. State, 62 Id. 550; Porter v. Seiler, Id. 341; Melvin v. Easly, Id. 171.

BURDITT v. SWENSON.

[17 TEXAS, 489.]

PRIVATE NUISANCE IS ANYTHING WHICH DOES HURT OR ANNOYANCE to the lands, tenements, or hereditaments of another. The annoyance need not be such as to endanger health, but it is sufficient if it is offensive to the senses, and renders the enjoyment of life and property uncomfortable, or even causes a well-founded apprehension of danger. LIVERY-STABLE IN TOWN IS NOT NUISANCE prima facie, but becomes so if kept or used so as to destroy the comfort of owners and occupants of adjacent premises, and so as to impair the value of their property. PERPETUAL INJUNCTION AGAINST KEEPING LIVERY-STABLE upon a lot adjacent to plaintiff's store in a town will be awarded where it appears that it is kept in a filthy and unsafe condition, so as to be offensive and dangerous to the plaintiff, and the owners thereof insist that it is well kept, and do not propose to keep it differently; and the injunction will not be limited to restraining the manner of keeping it.

APPEAL from a decree awarding an injunction against the manner of keeping the defendants' livery-stable. The petition of the plaintiff set out with great particularity that he was the proprietor and keeper of a certain store for the sale of general merchandise upon a certain lot in the city of Austin, and was carrying on a valuable business therein; that the defendants had erected upon an adjoining lot a large livery-stable, notwithstanding the remonstrances of the plaintiff; that the livery-stable was kept in such a filthy condition as to be very offensive to the plaintiff and his customers; that the keeping of animals and vehicles standing in front of the said stable, and the passing of animals into and out of the same, obstructed the passage of customers to the plaintiff's store; that the dust generated by the tamping of said animals was of great damage to his goods; that there was no fire-place in said stable, but fires were built on the dirt floor, and that from the accumulation of combustibles there there was great danger from fire, etc. The answer was a complete denial of the allegations of the petition as to the injurious character of the defendants' stable, and a justification of their mode of conducting it. A preliminary injunction was awarded, which was afterwards reformed so as to allow the defendants to continue to use their stable by means of a side entrance. At the hearing there was a general verdict for the plaintiff. The court awarded a perpetual injunction against the use of the front entrance of said stable, and the obstruction of the sidewalk with animals and vehicles, and against keeping the stable in a filthy condition or allowing accumulations of manure longer than one day at a time, and also against making

any fires in said stable except in a stove or fire-place. Defendants' motion for a new trial overruled. The defendants then appealed, assigning various errors. The plaintiff also appealed, on the ground that the defendants should have been perpetually enjoined from keeping a livery-stable in that place.

Hamilton, Oldham, and Sneed, for the defendants.

T. H. Du Val, and Paschals and Stribling, for the plaintiff.

By Court, WHEELER, J. It is not questioned that the allega tions of the petition were sufficient to entitle the plaintiff to an injunction. And the revelations of fact which the record contains show that the plaintiff's case was well supported by the proof. We cannot hesitate in coming to the conclusion, from the evidence, that the stable of the defendants was a nuisance.

What constitutes a nuisance is well defined. The word means, literally, annoyance; in law it signifies, according to Blackstone, 'anything that worketh hurt, inconvenience, or damage:" 3 Ela. Com. 216. A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another: Id. 215; as, if I have a way annexed to my estate across another man's land, and he obstruct me in the use of it by plowing it up, or laying logs across it, and the like; or if a man should erect his building, without right, so as to obstruct my ancient lights; or keep hogs or other animals so as to incommode his neighbor, and render the air unwholesome: Id.; Aldred's Case, 9 Co. 58. "And by consequence, it follows that if one does any other act, in itself lawful, which being done, in that place, necessarily tends to the damage of another's property, it is a nuisance; for it is incumbent on him to find some other place to do that act where it will be less offensive-so closely," says Blackstone, "does the law of England enforce that excellent rule of gospel morality, of doing to others as we would they should do unto ourselves:" 3 Bla. Com. 218. To constitute a nuisance, it is not necessary that the annoyance should be of a character to endanger health; but it is sufficient if it occasions that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable: Catlin v. Valentine, 9 Paige, 576 [38 Am. Dec. 567]; Coker v. Birge, 9 Ga. 425, 428 [54 Am. Dec. 347]; Dargan v. Waddill, 9 Ired. L. 244 [49 Am. Dec. 421]. Even that which does but cause a wellfounded apprehension of danger may be a nuisance. Thus, in Cheatham v. Shearon, 1 Swan, 213, 216 [55 Am. Dec. 734], it was held that a powder-house located in a city, and containing stored

therein large quantities of gunpowder, was a nuisance. "When we know," said Judge Green, "that the electric fluid, the irresistible effects of which are disclosed in every thunder-storm, may, in defiance of every precaution, cause it to explode, it cannot be doubted that if five hundred kegs of powder were stored in a magazine in this city every thunder-storm would awaken a universal alarm and consternation in the minds of the inhabitants." And the court pronounced it per se a nuisance. So it has been held that building a smith's forge so near another's house, and making such a noise with hammers that the occupants could not sleep: Com. Dig., Action on the Case for Nuisance; and so constructing a livery-stable as to disturb the occupants of an adjacent house by the interminable stamping of horses, day and night, and by noisome smells-is a nuisance: Dargan v. Waddill, 9 Ired. L. 244 [49 Am. Dec. 421]. These references show that the plaintiff took upon himself an unnecessary burden of proof by alleging that the stable was annoying and injurious to him in more ways and to a greater extent than was necessary to constitute it a nuisance. Yet there was a general verdict for the plaintiff, maintaining the truth of his averments; and it appears to be well supported by evidence. The charge of the court was not unfavorable to the defendants, and we do not perceive any ground for an appeal on their part in any of the errors they have assigned. The only question is whether the court did not err in refusing a peremptory injunct.on in favor of the plaintiff, which refusal he has assigned as error.

After the institution of this proceeding the stable appears to have been kept in a less annoying manner than formerly, and the witnesses say, as well as stables are usually kept. Yet the amended petition charged it to have been still a nuisance, and under the pleadings and proof the verdict establishes that it was such, as well after as before the partial dissolution of the injunction, or the partial injunction decreed. The finding of the jury is inconsistent with any other conclusion than that they believed the stable to be a nuisance as then kept. For it was returned under the charge of the court to the effect that a livery-stable is not in itself a nuisance; but whether it be so or not will dedend upon the manner of keeping it and other circumstances. It would appear, then, that the only decree which could be legally rendered on the verdict was a perpetual injunction.

It is true, as observed by Chief Justice Ruffin in Dargan v. v. Waddill, 9 Ired. L. 247 [49 Am. Dec. 421], that a livery-stable in a town is not necessarily or prima facie a nuisance. Such