erections may be and usually are harmless and useful. But if they be so built, or so kept, or so used, as to destroy the comfort of persons owning and occupying adjoining premises, and impair their value, stables do thereby become nuisances. They are not necessarily so, but may become so; and we think the proof abundantly shows that that of the defendants was in fact so by reason of its locality and construction as well as the manner of keeping it. According to the testimony of the defendants' witnesses, it was as well kept as livery-stables generally are. The defendants did not propose to keep it differently, or profess to be able and willing to undertake the keeping of it in any manner which would be less annoying to the plaintiff. Supposing it possible that a stable, situated and constructed as this is, may be so kept as not to be a nuisance, will this be done? What security has the plaintiff that the care and expense necessary for that purpose will be bestowed? The defendants do not propose it. On the contary, they insist that it is well kept, and that it is not a nuisance. That is the issue they tender, and on it they rest their case; it has been rightly found against them, and the corresponding judgment must follow.

In Coker v. Birge, 10 Ga. 336, which was a bill to enjoin the building of a stable, the defendant, in his answer, insisted that he would take such precautionary measures as to prevent the apprehended danger, by keeping the stable clean, sprinkling lime-water, etc. But the court refused to discharge the ad interim interdict, so far as to permit the experiment to be made; because they deemed it improbable that what the defendant proposed would be done: See also Coker v. Birge, 9 Ga. 425 [54 Am. Dec. 347].

So in Catlin v. Valentine, 9 Paige, 575 [38 Am. Dec. 567], where the defendant, by his answer, insisted that he intended to use a slaughter-house in such a manner that it would not be a nuisance to complainants, the chancellor admitted that it was, perhaps, possible to carry on the business to a limited extent in such a manner as that it would not be a nuisance; but he thought it wholly improbable that any one would incur such cost and labor, and therefore refused to dissolve the injunction; and see cases cited in Coker v. Birge, supra.

Here the defendants' stable, as kept, is a nuisance; and they do not propose to keep it in any other manner which will be less offensive or injurious. Nor does the evidence warrant the belief that, as it is located and constructed, it will or can be so kept as not to be a nuisance.

The principle upon which an injunction is allowed in such cases is, that the injury is such as, from its nature, is not susceptible of being compensated in damages. It is a constantly occurring grievance from day to day and year to year, which, in its nature, is incapable of being estimated in dollars and cents, and cannot be prevented otherwise than by an injunction: 2 Story's Eq. Jur., sec. 925; Attorney General v. Nichol, 16 Ves.

341.

Though the defendants should sustain inconvenience and loss, they have no just cause of complaint. They were aware of the plaintiff's objections to their building their stable in that place. Still they persisted, and even went on to enlarge it after the institution of this proceeding. They refused every offer of the plaintiff, either to be at the expense of removing the stable or of building one for them of like dimensions elsewhere. They commenced and consummated the establishment of the nuisance in their own wrong. The maxim of the law is, Use your own rights and property so as not to injure that of another. The legal proposition, consequently, being that if one do an act in itself lawful, which being done in a particular 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 not be injurious to his neighbor: 3 Bla. Com. 218; it was the duty of the defendants to find some other place for their livery-stable where it would not be so injurious or offensive as to deprive others of their accustomed and rightful use and enjoyment of their property.

We are of opinion that the judgment be reformed, so as to render the decree which the court below ought to have rendered; that is, that the injunction be made absolute and perpetual.

Judgment reformed.

NUISANCE, WHAT CONSTITUTES, GENERALLY: See Catlin v. Valentine, 38 Am. Dec. 567; Tanner v. Trustees of Albion, 40 Id. 337; Fish v. Dodge, 47 Id. 254; Coker v. Birge, 54 Id. 347, and notes thereto.

STABLE AS NUISANCE: See Dargan v. Waddil, 49 Am. Dec. 421; Kirkham v. Handy, 54 Id. 45; Coker v. Birge, Id. 347, and notes. That a stable is not a nuisance per se is held, citing the principal case, in Keiser v. Lovett, 85 Ind. 242. The case is cited to the same point in Miller v. Burch, 32 Tex. 210, where it is held that in such a case, as it is the use of the building, and not the building, which constitutes the nuisance, the destruction of the building to abate the nuisance by a municipal officer is unwarranted: See, on that point, Barclay v. Commonwealth, 64 Am. Dec. 715, and cases cited in a note thereto.

DIGNOWITTY v. STATE.

[17 TEXAS, 521.]

FELONIOUS INTENT AT TIME OF TAKING IS ESSENTIAL TO LARCENY; but where one obtains possession of an article merely to look at it, but without intending to steal, and then embezzles it, he is guilty of larceny. OBLIGOR IN BOND IS GUILTY OF LARCENY IN DESTROYING IT with intent to benefit himself, after having obtained possession of it on pretense of examining it, even though he did not then intend to destroy it, but couceived the design at the moment of the act of destruction.

FELONIOUS INTENT IN LARCENY NEED NOT BE INTENT TO BENEFIT the offender pecuniarily: an intent to serve either himself or another, though not pecuniarily, would be sufficient.

PARTICULAR DESCRIPTION OF THING STOLEN, IN INDICTMENT for larceny, is not necessary, but it is sufficient to describe it specifically by the name usually applied to it.

INDICTMENT FOR LARCENY OF "CERTAIN INSTRUMENT OF WRITING con

taining evidence of an existing contract for the conveyance of real estate, to wit, a town lot in the city of A.," etc., of a specified value, the property of M. F., sufficiently describes the thing stolen. PROOF, IN LARceny, of GenerAL OR SPECIAL PROPERTY OF OWNER, alleged in the indictment, in the thing stolen, is sufficient to sustain a conviction; as in case of an indictment for stealing a bond, “the property of M. F.,” where the proof is that the bond was made to M. F. and her husband, since deceased, leaving a child living.

UNSUPPORTED AFFIDAVIT OF PRISONER FOR NEW TRIAL on the ground of absent testimony is insufficient.

COUNTER-AFFIDAVIT IN RESPONSE TO AFFIDAVIT FOR NEW TRIAL is admissible.

APPEAL from a conviction on an indictment for larceny of "a certain instrument of writing," the property of Matilda Francis. The description in the indictment is sufficiently set out in the syllabus. The evidence was that the writing in question was a bond made by the defendant to the said Matilda Francis and her husband, for the conveyance of a certain town lot in the city of San Antonio; and that the defendant called upon Mrs. Francis and asked to "see that contract," and when it was handed to him he put it in the fire and destroyed it, and afterwards tried to sell the lot to another. Mrs. Francis's husband was dead when the offense was committed, and had one child living. The judge charged the jury that if the prisoner received the writing from Mrs. Francis, and unlawfully destroyed it without her consent, and with a view to benefit himself by depriving ner of it, and her interest in it was of the value of twenty dollars, they must find the prisoner guilty. The judge refused certain instructions asked by the prisoner, among others that the jury could not convict unless they should find said writing to

have been the sole property of Mrs. Francis. Verdict of guilty. Motion for new trial and in arrest of judgment overruled, and judgment on the verdict. The motion for a new trial was based upon an affidavit of the prisoner, stating what he could prove by a certain witness who was absent from the state, and whose testimony he was prevented from obtaining by the fact that he was led to believe that one Layer, a witness who testified for the prosecution on the trial, would swear to the same matters. The affidavit was opposed by an affidavit from Layer.

Paschals and Stribling, for the appellant.

Thomas J. Jennings, attorney general, for the state.

By Court, WHEELER, J. The two grounds mainly relied on for reversing the judgment are: 1. The charge of the court; 2. The overruling the motion in arrest of judgment.

Simple larceny is defined to be "the felonious taking and carrying away of the personal goods of another:" 4 Bla. Com. 239. The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own use: Id. 232, note 8, Am. ed. from 18th Lond. ed.; Archb. Crim. Pl., 6th ed., 362, note 1, by Waterman. If, therefore, the intention of the accused was, as stated in the charge, to benefit himself by depriving the owner of the property, it was felonious. As to the motive, though the charge does not use the word "felonious" in defining the crime, yet it requires the jury to find the intention of the accused to have been such as necessarily to constitute the taking felonious, if the act of taking was such as, under the circumstances, to constitute the crime of larceny. Was it such? There can scarcely be a possible doubt that the intention of the accused in asking to see the paper was to get possession of it, that he might destroy it. But the charge of the court assumes that it was not essential to constitute the crime that the felonious intent should have existed at the time the accused received the paper from the hand of the witness. And such is the law. The felonious intent is an essential ingredient in the crime of larceny, and it must exist at the time of the taking; for no subsequent felonious intention will render the previous taking felonious: Id. But where the offender lawfully acquired the possession of goods, but under a bare charge, the owner still retaining his property in them, the offender will be guilty of larceny at common law in embezzling them.

The principle is thus stated by Mr. Russell, in treating of the cases where it appears the goods were taken by delivery or con

sent of the owner: "It may, in the first place, be observed, with respect to those cases where the goods are obtained by delivery, that if it appear that although there is a delivery by the owner in fact, yet there is clearly no change of property nor of legal possession, but the legal possession still remains exclusively in the owner, larceny may be committed exactly as if no such delivery had been made:" 2 Russell on Crimes, 21. And the doctrine is illustrated by many adjudged cases. Thus if a master deliver property into the hands of a servant for a special purpose, as to leave it at the house of a friend, or to get change, or deposit with a banker, the servant will be guilty of felony in applying it to his own use; for it still remains in the constructive possession of the owner: 2 Bla. Com. 229, note 3, and numerous cases there cited; Whart. Crim. L., 2d ed., 572; so in the case cited by the attorney general, People v. Call, 1 Denio, 120 [43 Am. Dec. 655], where the holder of a promissory note, having received a partial payment from the maker, handed it to him to indorse the payment, and he took it away and refused to give it up, it was held that the possession remained in the owner, and that his subsequent conversion, being found to be felonious, was larceny; that it was not essential that the felonious intent should have existed when the prisoner received the note. "If it came upon him after the note had been received, and while he was making the indorsement, or subsequently," the court said, "and was carried into effect by converting the property to his own use, it was larceny:" Id. 124. It was said: “As every larceny includes a trespass, the taking must be from the possession of another. But here it is necessary to discriminate carefully between what constitutes in law a possession of property and that which amounts only to its care and charge:” Id. 123. "Where one having only the care, charge, or custody of property for the owner converts it animo furandi, it is larceny, the possession, in judgment of law, remaining in the owner until the conversion:" Whart. Crim. L. 572.

The principle is certainly applicable and was rightly applied to the present case. The owner handed the paper to the accused at his request, merely that he might see it. She did not intend to part with the possession. Nor, in judgment of law, was she divested of the possession while the paper remained, for a mere temporary purpose, in the hand of the accused. He merely had the privilege of taking it for the purpose of inspecting it in her presence. And though it seems impossible to doubt that his intention in applying to see it was that he might destroy