matter calculated to create a nuisance, the defendants insisted that, as they had been granted the right to use the water of that stream for their canal, and as the pollution thereof was not due to any act of theirs, they could not be held responsible for any conse quences resulting from its use for the authorized purpose. But the court held that as at the time of the grant the water of the stream was pure, and while in that condition no harm would have resulted from its remaining stagnant, it could not be held as having been contemplated by parliament that the water would afterwards become impure and render its use in the canal a nuisance to the public; and the use of the water was enjoined, as was also such use of the canal as to in any way create a nuisance from noxious smells emitted from the water therein. CROMPTON, J., in delivering the opinion of the court, said: "The only way in which such a nuisance as this can be legitimated is by showing that the legislature intended to legitimate it. Here, power was given to the company to take the water of certain becks; but not to take the water at all times so as to cause pollution of the atmosphere and cause disease."

Plaintiff, whose mansion house and grounds adjoined a railway and sidings on which was a shed used for cleaning the engines, complained of smoke and noxious vapors from a large number of engines stabled at the sidings and sheds, created during the process of lighting the engine fires. The company, in an action to enjoin them from permitting the issue of such smoke and vapor, contended that the statute authorized them to commit even a nuisance, provided they worked their line properly and used due precautions, and that the use of the sheds and sidings for cleaning the engines and relighting the fires was a necessary and legitimate one, and incidental to a reasonable enjoyment of their statutory powers, and gave the plaintiff no ground of action. But the court held that the statute had not deprived him of his ordinary rights, and did not authorize the nuisance complained of; that the emission of smoke and noxious vapor during the operations of cleaning the engines and lighting the fires was not a necessary evil incident to the proper working of the line, or a reasonable user of the land for the company's purposes. within the meaning of the statute. Smith v.

Midland R. Co., 37 L. T., N. S. 224; 25 W. R. 861.

Power was given to a company to build a railway between certain points according to a plan deposited with a clerk of the peace, from which plan the company was not to deviate more than one hundred yards. The act recited that a railway between those points would be of great public utility, and would materially assist agricultural interests and the general traffic of the country. By a subsequent act the company was authorized to use locomotive engines upon the railway, which, when constructed, ran parallel and adjacent to an ancient highway, and in some places came within five yards of it. The company's engines frightened horses being driven in carriages along the highway. On indictment for nuisance, it was held that this interference with the rights of the public must be regarded as having been contemplated and sanctioned by the legislature, and that the company was not liable. Rex v. Pease, 4 B. & Ad. 30.

Where a railroad which is authorized to be constructed over a particular route is made over a different route, in whole or in part, it is a mere nuisance on every highway it touches in its illegal course. Com. v. Erie etc. R. Co., 27 Pa. St. 339; s. c., 67 Am. Dec. 471; s. c., Denver etc. R. Co. v. Denver City R. Co., 2 Colo. 673.

A statute prescribing the thickness of walls used for manufacturing or storing petroleum does not authorize the refining of petroleum in any locality where a necessary consequence is the emission of such offensive vapors as constitute a common-law nuisance. Com. v. Kidder, 107 Mass. 188.

In Delaware etc. Canal Co. v. Com., 60 Pa. St. 367, it was held that where a canal company purchased a canal in the condition in which it had been constructed by the commonwealth, and thereafter water was allowed to escape through the bank of the towpath and form stagnant and offensive pools on adjacent land belonging to third persons, that the canal company was indictable for maintaining a public nuisance.

A statute authorized the commissioners of emigration, with the consent of the common council of New York city, to lease or purchase docks, etc., for the landing of emigrants. The council leased to the commissioners for a term of years a portion of the North Bat

tery, in a thickly populated portion of the city, where the contemplated use of it would seriously endanger the health of the community. Held, that an injunction would be granted to restrain such use. Brower v. Mayor etc. of N. Y., 3 Barb. (N. Y.) 254.

In Delaware etc. Canal Co. v. Lee, 22 N. J. L. 243, an action was held to lie against a canal company which, under the authority of its charter, constructed its canal on the land of a third person in such manner as to throw back the water of a natural water-course upon the plaintiff's land.

It is no defence to an action to abate a nuisance caused by maintaining a dam that it was erected by legislative authority, where the erection itself does not necessarily create the nuisance, but it arises from the manner of its construction. Village of Pine City v. Munch, 42 Minn. 342; Burton v. Philadelphia R. Co., 4 Harr. (Del.) 252; Taylor v. Grand Trunk R. Co., 48 N. H. 304; Slatten v. Des Moines Valley R. Co., 29 Iowa 154; s. c., 4 Am. Rep. 205; North Vernon v. Voegler, 103 Ind. 314; Terre Haute etc. R. Co. v. McKinley, 33 Ind. 274; Franklin Turnpike Co. v. Crockett, 2 Sneed (Tenn.) 263; King v. Morris etc. R. Co., 18 N. J. Eq. 397; Tinsman v. Belvidere, Delaware etc. R. Co., 26 N. J. L. 148; Spaulding v. Chicago etc. R. Co., 30 Wis. 110; s. c., 11 Am. Rep. 550; Robinson v. New York etc. R. Co., 27 Barb. (N. Y.) 512; Cott v. Lewiston R. Co., 36 N. Y. 214; Fletcher v. Auburn etc. R. Co., 25 Wend. (N. Y.) 462; Miller v. Auburn etc. R. Co, 6 Hill (N. Y.) 61.

1. Easton v. New York etc. R. Co., 24 N. J. Eq. 49; Hinchman v. Paterson etc. R. Co., 17 N. J. Eq. 75; Danville etc. R. Co. v. Com., 73 Pa. St. 29; People v. Detroit etc. Plank Road Co.,

37 Mich. 195; Griffing v. Gibb, McAll (U. S.) 212; Com. v. Boston, 97 Mass. 555; People v. Law, 34 Barb. (N. Y.) 494; Stoughton v. State, 5 Wis. 291.

2. Rickett v. Metropolitan R. Co., 2 H. L. Cas. 175; North Staffordshire R. Co. v. Dale, 8 El. & Bl. 836; Biscoe v. Great Eastern R. Co., 16 L. R., Eq. 640; Eagle v. Whaimy Cross R. Co., 2 L. R., C. P. 638; Reg. v. Train, 2 B. & S. 640; Carhart v. Auburn Gas Light Co., 22 Barb. (N. Y.) 297; People v. New York Gas Light Co., 64 Barb. (N. Y.) 55; State v. Western etc. Nav. Co., 2 Johns. (N. Y.) 283; Manhattan Gas Co. v. Barker, 36 How. Pr. (N. Y.) 233; Crittenden v. Wilson, 5 Cow. (N. Y.) 165; People v. Platt, 17 Johns. (N. Y.) 195; s. c., 8 Am. Dec. 382; Cott v. Lewiston R. Co., 36 N. Y. 214; Estabrooks v. Peterborough R. Co., 12 Cush. (Mass.) 224; Curtiss v. Eastern R. Co., 14 Allen (Mass.) 55; Wilson v. New Bedford, 108 Mass. 261; s. c., 11 Am. Rep. 352; Bradley v. New York etc. R. Co., 21 Conn. 305; Hamden v. New Haven R. Co., 27 Conn. 158; Cleveland v. Citizens' Gas Light Co., 20 N. J. Eq. 201; Tinsman v. Belvidere Delaware etc. R. Co., 26 N. J. L. 148; Hinchman v. Paterson etc. R. Co., 17 N. J. Eq. 75; Delaware etc. Canal Co. v. Wright, 21 N. J. L. 469; Lee . Pembroke Iron Co., 57 Me. 481; s. c., 2 Am. Rep. 59; Lyman v. White River Bridge Co., 2 Aik. (Vt.) 255; Richardson v. Vermont Cent. R. Co., 25 Vt. 465; s. c., 60 Am. Dec. 283; Eaton v. Boston etc. R. Co., 51 N. H. 504; s. c., 12 Am. Rep. 147; Johnson v. Atlantic R. Co., 35 N. H. 569; March v. P. & C. R. Co., 19 N. H. 372; Nevins 7. Peoria, 41 Ill. 502; s. c., 89 Am. Dec. 392; Phinizy v. Augusta, 47 Ga. 263; City of Bowling Green v.

Rolling Mill Co., 3 Bush (Ky.) 416; Lexington etc. R. Co. v. Applegate, 8 Dana (Ky.) 287; s. c., 33 Am. Dec. 497; Walker v. Board of Public Works, 16 Ohio 540; Fletcher v. Auburn etc. R. Co., 25 Wend. (N. Y.) 462; First Baptist Church v. Schenectady etc. R. Co., 5 Barb. (N. Y.) 79; Spencer v. London etc. R. Co., 8 Sim. 193; Brown v. Cayuga etc. R. Co., 12 NY. 487; Lawrence v. Great Northern R. Co., 16 Q. B. 643; Robinson v. New York etc. R. Co., 27 Barb. (N. Y.) 512; Mahon v. Railroad Co., Lalor's Supp. 156; Williams v. New York Cent. R. Co.,16 N. Y. 97; s. c., 69 Am. Dec. 651; Carpenter v. Cent. Park etc. R. Co., 11 Abb. Pr., N. S. (N. Y.) 416; Eastman v. Amoskeag Mfg. Co., 44 N. H. 143; s. c, 82 Am. Dec. 201; Morgan v. King, 35 N. Y. 454; People v. Law, 34 Barb. (N. Y.) 494; People v. Kerr, 37 Barb. (N. Y.) 357; Alton etc. R. Co. v. Deitz, 50 Ill. 210; s. c., 99 Am. Dec. 509.

A legislative grant to manufacture gas does not exempt the company from liability for damages from noxious smells emanating from the works. People v. New York Gas Light Co., 64 Barb. (N. Y.) 55; Bohan v. Port Jervis Gas Light Co. (N. Y. 1890), 25 N. E. Rep. 246.

Nor from liability for polluting the water of a stream by discharging into it refuse matter from the works. Carhart v. Auburn Gas Light Co., 22 Barb. (N. Y.) 297.

Authority to erect and maintain a steam engine does not justify the creation of a nuisance by the emission of soot from the smoke-stack of such engine. Sullivan v. Royer, 72 Cal. 248.

with that of private individuals who should use their property for similar purposes. The court say: "The grantee of a franchise for private emolument, as a railroad company, may be vested with the sovereign power to take private property for public use on making compensation, but is not clothed with the sovereign's immunity from resulting damages. This power leaves their common-law liability for injuries done in the exercise of their authority precisely where it would have stood if the land had never been acquired in the ordinary way." The court held in this case that the plaintiff could recover for damages sustained by being deprived of free access to the mouth of a creek, in which he had lumber privileges before the defendant company interfered with him, and that the fact that the creek was navigable and under the control of the legislature was no objection to his recovering.

One who buys land near which is an authorized ditch cannot recover damages from those maintaining the ditch if it is as carefully operated as is possible under the circumstances. Platte & Denver Ditch Co. v. Anderson, 8 Colo. 131.

1. Bouv. Law Dict.; Anderson's Law Dict.; Abb. Law Dict. 2. Bouv. Law Dict.

3. Bouv. Law Dict. See also EXECUTIONS, 7 Am. & Eng. Encyc. of Law 155; PROCESS.

4. Salter v. Hilgen, 40 Wis. 365.

"No order which a court is empow ered, under any circumstances, in the course of a proceeding over which it has jurisdiction, to make, can be treated as a nullity merely because it was made improvidently, or in a manner not warranted by law or the previous state of the case. The only question in such a case is, had the court or tribunal the

In Tinsman v. Belvidere Delaware R. Co., 26 N. J. L. 148, the liability of companies acting under statutory authority is placed upon the same footing

power, under any circumstances, to make the order or to perform the act? If this is answered in the affirmative, then its decision upon those circumstances becomes final and conclusive, until reversed by a direct proceeding for that purpose." DIXON, C. J., in Tallman v. McCarty, 11 Wis. 401.

"Absolute nullities were of two kinds, those resulting from stipulations derogating from the force of laws made for the preservation of public order, and those established for the interests of individuals. The former are not susceptible of ratification; but, if by subsequent dispositions of law or by succession of time such stipulations cease to be illegal, they may from that time be ratified." Clay v. Clay, 35 Tex. 530; Means v. Robinson, 7 Tex. 516.

Nullity of Marriage.-See DIVORCE, 5 Am. & Eng. Encyc. of Law 745: MARRIAGE, 14 Am. & Eng. Encyc. of Law 532.

ANullity Distinguished from an Irregularity. "It is difficult sometimes to distinguish between an irregularity and a nullity; but I think the safest rule to determine what is an irregularity and what is a nullity is to see whether a party can waive the objection. If he can waive it, it amounts to an irregularity; if he cannot, it is a nullity." COLERIDGE, J. Holmes v. Russel, 9 Dowl. 487; Jenness v. Lapeer Circuit Judge, 42 Mich. 471.

1. Bouv. Law Dict.

v. Lippitt, 77 Mo. 242; Catterlin v. Frankfort, 87 Ind. 54.

For the use of defendants for defendant, and vice versa, see Forsythe v. Van Winkle, 11 Biss. (U. S.) 111; Williams v. Muthersbaugh, 29 Kan. 734; Barnes v. Michigan etc. R. Co., 54 Mich. 243; Holcomb v. Tift, 54 Mich. 647.

"Number of Days."--The term, "a number of days" and "some days," may mean two days or more; neither necessarily indicates a greater number than two. Chase v. Cleveland, 44 Ohio St. 513.

Number and Denomination.-Where an indictment charged that the defendants feloniously took and carried away sundry bank notes, the number and denomination of which are unknown, the court uses the following language: "What is the meaning, the proper interpretation of the words 'number' and denomination'? If the word had been numbers in the plural, we would be inclined to hold it referred to the serial numbers on the bills. Being in the singular number, it must be construed as expressing or relating to the number of bills alleged to have been stolen, not the numbers on the bills. The word 'denomination' explains itself. It refers to the value or number of dollars the several bills represented." Duvall v. State, 63 Ala. 17.

2. In Gray v. Brignardello, 1 Wall. (U.S.) 627, the court said that a nunc pro tunc order may be made when the delav has arisen from the act of the court. In Mitchell v. Overman, 103 U. S. 65, the court entered a decree after the death of a party and after the final submission, as of the term when, in the lifetime of the party, the cause after argument was finally submitted. Ætna Ins. Co. v. Boone, 95 U. S. 125, it was said that when a case was tried

The singular number is included within the plural, as where a statute makes it felony to purloin from a postoffice "bank notes," it is within the prohibition to steal a single note; and so houses will apply to house, etc. Bishop on Stat. Crimes, § 213; State v. Nichols, 83 Ind. 228; Partridge v. Strange, 1 Plow (Eng.) 85; Hassel's Case, Leach 1; Carpenter

In

by the court, a finding of facts might, by order of the court, be filed at a subsequent term. In Benedict v. State, 44 Ohio St. 679, an omission from the

docket of a recital of the reason of the discharge of the jury in a criminal case was supplied by an order nunc pro tunc. Ex parte Beard, 41 Tex. 234; Smith v. State, Tex. App. 408, and Ex parte Jones, 61 Ala. 399, were criminal cases wherein the practice was similar. In Rugg v. Parker, 7 Gray (Mass.) 172, the record of a judgment was completed by a nunc pro tunc order, after the lapse of twenty years.

1. Definition.-Swinburne, § 12, p. 1; Perkins, § 476. To this definition the words "in extremis" must be added to define such wills in the sense now used. See Bouv. L. Dict., Kent, vol. 4, 517: Jarman on Wills, vol. 1, 238; Schouler on Wills, § 360.

2. Nuncupative.-The word "nuncupative" comes from the Latin nunçupatio, for among the Romans the naming of the executor was of the essence of the will. Godolphin's Orphans Legacy, p. 13, holds that "Testaments are called nuncupative, when the testator without any writing doth declare

his will before a sufficient number of witnesses; and such nuncupative will is of as great force and efficacy (except for lands, tenements and hereditaments) as any written testament ... Such testaments are supposed to be of the greatest antiquity and far more ancient than written wills, as being in use and practice before letters were known." Swinburne, § 12, pt. 1.

3. Number of Witnesses, see infra this title (e) NUMBER OF WITNESSES, COMPETENCY.

4. In Writing, see infra this title, (f) REDUCTION TO WRITING.

5. Origin.-LORD MANSFIELD says: (Cowp. 90), "As to personal estate, the law of England has adopted the rule of the Roman testament, yet a devise of lands in England is considered in a different light from a Roman will." The Institutes of Justinian declared that if any one wished to make a testament valid by the civil law, without writing, he might do so, if, in the presence of seven witnesses, he verbally declared his wishes; and that such a will would be perfectly valid according to the civil law. Justinian, lib. 2, tit. 10, § 14; S. C., Sandar's Justinian 243.