Dargan v. Waddill.

not necessarily so; but they may become so, and we think that of the defendant was in fact so. Therefore the in

structions, as applied to this particular case, were calcu lated, we think, to mislead the jury. In respect to the filth and smells which might or did arise from it, the Court entirely concurs with the directions to the jury; and we suppose the jury must have thought, that no serious in. convenience was sustained by the plaintiff's family from that cause. For in that respect a stable may be likened to a privy, which decency and convenience render indispensable. But the proprietor cannot protect himself under that plea, if by neglecting to cleanse it, he allows it to become offensive in the adjacent houses or grounds. So care must be taken to prevent a stable from incommo. ding the neighbors, from the ordure deposited in it. But if the adjacent proprietors be annoyed by it in any other manner, which could be avoided, it in like manner becomes an actionable nuisance, though in itself a stable be a convenient and lawful erection. This stable, it appears, was a wooden building, with a plank floor so constructed, that the stamping of the horses on it created such a noise day and night as could be heard, not only throughout the square on which it and the plaintiff's house were situated, but on all the adjoining squares, and, in the opinion of the witnesses, impaired the value of the plaintiff's house as a dwelling. That, we think, amounts in law to such a disturbance and annoyance as to be an actionable nuisance. In Bradley v. Gill, 1 Lut. 69, it was held that building a smith's forge so near another's house and making such noises with the hammers, that the owners could not sleep, was a nuisance, for which an action would lie; for though the trade of a smith be a necessary one, it must be carried on so as not to injure others in the neighbourhood. That case is cited and approved by Chief Baron Comyns. Com. Dig. Action on the case for a nuisance, A.; and, indeed, the principle is in itself so rea

Dargan r. Waddıl.

sonable that every one must admit it.

If that be true of a black smith's shop, because the noise of the hammers at unseasonable times deprived a person of his rest, it must be much worse from the stamping of fifty horses on boards laid on sleepers, so as to make a loud sound. It is obvious, that the effect complained of must have arisen from the structure of the building. The defendant might have built his stable with an earthen floor, and thus avoided this annoyance. If it be said, that probably a greater evil might have arisen, from the greater difficulty of cleansing the stable, the answer is, that the defendant had his choice at his risk; for, in truth, he had no right to erect a nuisance in either way. whether by noisome smells or disturbing noises. He cannot excuse one nui. sance by urging, that, if not committed in that form, it Inight have been worse, in another. But, in reality, neither was unavoidable. For, if the situation was such that the horses ought not to stand on the ground, the defendant might have paved the floor, or laid the boards on the earth, or used such as were so thick as not to sound under the hoofs of the horses so loud as to disturb or de. stroy the repose of the neighboring inhabitants and thereby lessen the value of their property. It appeared affirmatively, then, that the defendant had done "unnecessary damage" to the plaintiff: and we think it would have been proper so to instruct the jury. Therefore, in order that the inquiry may be submitted to them with proper explanations of the rights and duties of the parties, there must be a venire de novo.

Of course, it will be understood, that an action will not lie in such a case for noises that are barely audible, and only occasional; but only for such as really annoy the plaintiff's family and would annoy persons generally, who might dwell in the house so as to impair their rest and comfort materially.

PER CURIAM.

Judgment accordingly.

JAMES IREDELL TO THE USE OF DOHN M. FAUCETT v3. WILLIAM BARBEE.

A stranger may accept the delivery of a bond, and it is good, unless the obligee refuse to ratify the delivery, but in the absence of proof to the con. trary such ratification is presumed.

In construing a deed all useless aud unmeaning words are to be rejected. provided enough remains to make the deed sensible. Thus, where a bond, purporting to be a guardian bond, was made to "I, Governor, &c. Justices of the Court of Pleas and Quarter Sessions, &c. in the sum of &c. to be paid to the said Justices or the survivors of them," the words "Justices of the Court," &c. "to be paid to the said Justices," &c. are to be rejected as unmeaning and the bond is payable to I.

Where a Court has no power to appoint a guardian but does appoint him, and he gives bond with sureties and takes possession of the estate of the ward, it is not competent for any of the obligors in such bond to object to its validity on the ground of want of power in the Court to make the appointment.

The cases of Fitz v. Green, 3 Dev. 281, Vanhook v. Barnet, 4 Dev. 268, and Richardson v. Wall, 1 Ire. 297, cited and approved.

Appeal from the Superior Court of Law of Orange County, at the Fall Term, 1848, his Honor Judge CALDWELL presiding.

This was an action of debt upon the following bond:

KNOW ALL NEN BY THESE PRESENTS, That we, Nathaniel King, William Barbee and David B. Alsobrook, all of Orange County, in the State aforesaid, are held and firmly bound unto James Iredell. Esq., Governor, &c., Justices of the Court of Pleas and Quarter Sessions for the County of Orange, in the sum of ten thousand dollars to be paid to the said Justices or the survivors of them, their execu

Iredell v. Barbee.

tors or administrators, in trust for the benefit of the child hereafter named, committed to the tuition of the said Nathaniel King; to which payment well and truly to be made, we bind ourselves, and each of us, each and every one of our heirs, executors or administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this 30th day of May, in the year of our Lord, 1828.

THE CONDITION of the above obligation is such, that whereas the above bounden Nathaniel King is constituted and appointed guardian to Elizabeth Fann; now if the said Nathaniel King shall faithfully execute his said guardianship, and particularly shall well and truly secure and improve all the estate of the said Elizabeth Fann that shall come into his possession for the benefit of the said Elizabeth Fann, and shall render a plain and true account of his said guardianship, on oath, before the Jus tices of our said Court, in all cases as required by Act of Assembly, and deliver up, pay to or possess the said Elizabeth Fann of all such estate or estates, as she ought to be possessed of, when lawfully required by said Elizabeth Fann, or to such other persons as shall be lawfully empowered or authorized to receive the same, and the profits arising therefrom, then this obligation to be void; otherwise to remain in full force and virtue.

(Signed and sealed by)

N. J. KING,

W. BARBEE,

D. B. ALSOBROOK.

The breach assigned in the declaration was that the said N. King had failed to deliver and pay over to the said E. Fann a large amount of property which he had received as her property. Pleas, general issue, conditions performed and not broken.

In support of the action it was proved, that the defendant had signed and sealed the bond in suit, and had

Iredell v. Barbee.

handed it to the Clerk of Orange County Court as his bond, and that it had remained among the records of that office until this suit was brought. It was further shewn, by a copy of the record from Orange County Court, that at May term of that Court 1824, a jury purporting to act upon a writ of lunacy, found Elizabeth Fann to be in a weak and debilitated state of mind, and that it was unsafe and injurious to those interested in the property, subject to her control, that it should remain longer in her possession that upon that finding one John Wilson was appointed her guardian, and upon his death Nathaniel J. King was appointed her guardian at May term 1828, and entered into the bond now sued upon. It was further shewn that Elizabeth Fann was dead and that the relator was her administrator. And the report and account of the commissioner to whom the matter had been referred was offered in evidence to shew the amount of the plaintiff's damages.

On the part of the defendant, it was shewn that no petition or writ of lunacy could be found among the records of the County Court in the matter of Elizabeth Fann.

And it was contended by the defendant that this action could not be sustained: First, because there was no de livery of the bond: Secondly, because the bond was void for uncertainty and repugnance: and thirdly, because the verdict of the jury did not find Elizabeth Fann to be either an idiot or a lunatic, and therefore that the ap pointment of the guardian by the Court was a nullity and this bond given by the defendant was void. And his Honor was requested so to charge the jury.

But it was agreed by the counsel of the parties, that his Honor should reserve the questions of law and that the case should be submitted to the jury, and if they should find for the plaintiff, and his Honor, upon consideration should be for the defendant upon the questions re