to take reasonable care that the dock was in a fit state) it seems clear that if they, by their servants, had the means of knowing that the dock was in an unfit state, and were negligently ignorant of its state, they did neglect this duty and did not take reasonable care that it was fit." And so in this case, the Washington Market Company had the means of knowledge, and if it did not avail itself of such means, its omission was negligence by its servants or agents, for which it was liable. But, as we have said, in view of the undisputed facts in this case, the fact of actual notice to the market company was not essential to the plaintiffs' right to

recover.

In view of the whole case, and of the principles we have stated, we perceive no ground whatever upon which a reversal of the judgment can be claimed. The case was submitted to the jury in a most favorable manner to the defendants; and upon the restricted ground which the market company was held liable, according to the charge of the court, the jury must have found that the market company had failed to provide a sufficient force to patrol and keep the aisles and corridors of the building clear and in a safe condition. And, upon that supposition, the question of notice would, in any aspect of the case, become quite immaterial.

With respect to the question that was raised as to the form of the verdict as originally rendered, we perceive no merit in the objection taken to it. The verdict as delivered was that the jury "find said issues in favor of the plaintiffs, and that the money payable to them by the defendants is the sum of $1,000, to wit: $500 by each of the defendants." The jury simply undertook the inadmissible thing of making an equal apportionment of the amount of the verdict to be paid as between the two defendants. This they could not do. They had found the amount of the joint liability to be $1,000, and they had nothing to do in apportioning the payment between the defendants. The verdict as a whole was irregular and informal. But it would have been competent for the court to have received the verdict and amended it by striking out, as surplusage,

Syllabus.

[19 App. all after the finding of the joint liability, that is to say, after the $1,000, leaving the verdict to stand for that amount; that being the manifest intention of the jury as to the amount of their joint finding. But it was equally competent to the court to pursue the course that was pursued, that of returning the verdict to the jury for correction. We perceive no error in what was done. 28 Am. & Eng. Encyc. of Law, 365.

It follows from what we have said that the judgment should be affirmed; and it is so ordered.

Judgment affirmed.

AKERS v. MARSH.

EQUITY; INJUNCTIONS; NUISANCES.

In a suit by a husband and wife to enjoin certain parties from playing the game of croquet on a vacant lot opposite complainants' dwelling, upon the ground that the playing of the game at the time and place constituted a nuisance which impaired complainants' enjoyment of their home, where it appeared that the game was played after nightfall until and sometimes after 11 o'clock, P. M., light for the purpose being provided by small oil torches fastened to the wickets, to the annoyance and discomfort of the complainants, especially the female plaintiff, who, at the time, was in a delicate condition, but that it was not conducted in a boisterous or disorderly manner, nor persisted in by the defendants with a malicious motive of annoying the complainants, the only colorable ground of complaint being the noise incident to the playing of the game at night, it was held, reversing a decree of the lower court, that there was nothing in the case justifying the interference of the court by injunction.

No. 1116. Submitted October 16, 1901. Decided November 6, 1901.

HEARING on an appeal by the defendants from a decree of the Supreme Court of the District of Columbia granting an injunction restraining the defendants from playing the game of croquet after nightfall.

Reversed.

The COURT in its opinion stated the case as follows:

The bill in this case was filed July 19, 1900, for the purpose of obtaining an injunction to restrain the defendants. from playing the game of croquet on a vacant lot near by and opposite the dwelling-house of the complainants, upon the ground, as alleged, that the playing of the game at the time and place constituted a nuisance to the complainants, whereby the enjoyment of their home was seriously impaired.

The complainants are husband and wife, and reside on Huntington place, in the city of Washington, opposite an open lot owned by one of the defendants, Mrs. Lacey, and which, with her consent, is used by Mr. Akers, the other defendant, and his family and friends, as a croquet ground. In the bill it is alleged that the game was frequently played from about nightfall until and sometimes later than 11 o'clock, P. M., light being provided from small torchlight lamps, one of which was fastened on each wicket; that these torches gave a flaming light, and emitted offensive odor and smoke. The manner in which the complainants were affected by the nuisance is charged to be, that the husband being an architect by profession, his work requires for its proper execution the full composure of his nervous system, which, by the playing of the game, has been disturbed. That the female complainant is of a naturally slight and delicate organization, and is especially sensitive to noises of every description, and she is besides in a delicate condition of health, being far advanced in pregnancy, requiring constant care and attention, and in great danger of serious consequences in the absence of such care and attention, and in the presence of distracting noises or annoyances to her senses of every description. It is alleged that the effect of the light and odor from the torches, and the noises from the game upon the female complainant is distracting and annoying, so that she is deprived of sleep and rendered nervous, while the husband, by the constant necessity he is under of giving attention to his wife in her nervous state, is also deprived of sleep, etc.

Most of the substantial allegations of the bill in respect of what is alleged as a nuisance by the playing of the game of croquet, are denied by the answer of James O. Akers, the principal defendant; the answer of the other defendant, Mrs. Lacey, while admitting that the vacant lot belongs to her and that she had given permission for its use as a croquet ground, avers that she was and is ignorant of the manner in which the complainants were affected by the playing of the game of croquet on the lot.

Upon the coming in of the answers, proof was taken in support of and in refutation of the case as stated in the bill; and, upon final hearing the court below, on the 6th day of June, 1901, decreed that the defendants and each of them and their and each of their several agents, associates, and representatives be perpetually restrained and enjoined from playing the game of croquet at the place and in the manner mentioned and described in the bill of complaint, at any hour or hours which may necessitate the use of lamps or any other form of artificial light to enable the said game to be played; and that the complainants have and recover of the defendants their costs, etc.

It is from this decree that the appeal is taken by the defendants.

In the opinion of the learned justice below a very full and clear statement of the allegations and proof is furnished, and also of the contentions of the parties; and as we agree with much of what is said in that opinion, though not with the final conclusion reached, we adopt the statement of the facts that it contains. The opinion states:

"It is alleged that the defendant Akers is a resident on the same street on which the complainants reside; that besides his family he has boarders; that the defendant Lacey is the owner of a vacant lot fifty feet in width, which is directly opposite the residence of the complainants; that the complainants' residence and this vacant lot are located on Huntington place, just west of Fourteenth street northwest; that the defendant Akers and others have graded and equipped this lot for the purpose of games of croquet; that

the land has been leveled off and rolled and sanded, and that a number of iron wickets that are essential for the proper playing of that game have been put in the proper place for such purpose upon this lot, and that the lot itself has been inclosed for the purposes of this game by running a wooden curb about it for the purpose of keeping the balls within the boundary; that during the summer of 1899, the female complainant was in a state of bad health; that she had suffered from a physical ailment to which women are subject, and, as a result of that ailment, was suffering from physical weakness and general nervous debility; that during the summer of 1899, it was the habit of Akers, and his family, boarders and others associated with them, to play this game of croquet, not only to some extent in the hours of daylight, but principally after darkness had set in, continuing the game as late as eleven o'clock and sometimes later than eleven o'clock at night; that to enable them to play this game during the hours of darkness, and to afford the requisite light for the purpose, the wickets were each provided with a vertical rod, upon which was hung a lamp supplied either with coal oil, or gasoline, or some inflam mable substance which, without a chimney to confine it and keep the light steady, gave a flaring and flickering light, and, for the same reason, inasmuch as the gas or the coal oil was not entirely consumed, emitted fumes and vapors and unconsumed particles, which were offensive, and that this game, played at these unreasonable hours, continued through the summer of 1899, notwithstanding the great discomfort to the female complainant. The game, of course, was discontinued during the winter months, as the season was not favorable to such occupation, but it began again in the early summer, and when this bill was filed, somewhere about the middle of July, 1900, the parties were engaged, if not every night, several nights in the week in playing this game. At that time, the female complainant, as alleged and proved, was with child, and the day of her confinement was not remote. She was actually suffering from the inconvenience and the nervous strain which were consequent upon