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$699. Attachment proceedings.- Where a writ of attachment is sued out maliciously and without probable cause, and damage ensues, the defendant has a remedy on common-law principles aside from the remedy on the attachment bond. Preston v. Cooper, 1 Dill., 589.

$ 700. In an action for an unlawful attachment, if the affidavit for the attachment was based upon representations made by the defendant in attachment to the plaintiff in attachment, or to other persons and communicated to him, the jury should find the attachment justified. But on this question they cannot consider representations to third persons not communicated to plaintiff in attachment, for they cannot have influenced him in determining whether or not to attach. Tiblier v. Alford, 12 Fed. R., 262.

§ 701. At common law a plaintiff in attachment who fails in his action is not liable for damages unless he has got out his attachment without probable cause or maliciously. But in Tennessee, under the statute, a plaintiff in attachment who fails in his action is liable for actual damages whether he shows probable cause or not. Jerman v. Stewart, 12 Fed. R., 266. § 702. malice inferred.- A seizure under attachment process is wrongful if made without proper legal ground to sustain it; and, while malice is to be proved, the jury may infer it from evidence of the wantonness of the seizure and oppressive conduct on the part of the defendant. Tiblier v. Alford, 12 Fed. R., 264.

§ 703. Process of Confederate courts no justification.—The courts of the Confederate States of America were mere nullities; hence their process can form no justification to one who acts under them, and is subsequently prosecuted therefor, in an action for malicious prosecution. Hickman v. Jones,* 9 Wall., 197.

§ 704. Advice of justice, how far a defense.- Plaintiff was arrested on a warrant for having horses illegally in his possession, and refusing to deliver them to the defendant, their owner. The case was dismissed by the justice with the consent of the complainant, and shortly afterwards plaintiff commenced suit against defendant for false arrest. Held, that as defendant had made his affidavit upon which the warrant was issued by the advice and under the direction of the justice, and swears that he did not mean, and never did mean, to prosecute the plaintiff criminally, the plaintiff is not entitled to recover. Johnson v. Daws,* 5 Cr. C. C., 283.

§ 705. Evidence.— In an action for vexatious suit, and malicious holding to bail, held, that the records of other actions brought by the same defendant against the plaintiff could not be given in evidence. Ray v. Law,* Pet. C. C., 207.

§ 706. In an action for malicious attachment the return of the officer may be contradicted by parol. Mott v. Smith,* 2 Cr. C. C., 33.

$ 707. Upon a ne exeat the plaintiff may give evidence that he has suffered in the public estimation in consequence of the process of ne exeat, but not in consequence of reports circulated by the defendant, although such reports may be given in evidence by the plaintiff to show malice in the defendant; nor can he give evidence of special damage not averred in the declaration. Zantzinger v. Weightman,* 2 Cr. C. C., 478.

§ 708. Pleading and practice.-In an action for maliciously arresting and holding the plaintiff to bail without probable cause, the affidavit to hold to bail must aver that the suit in which the plaintiff was so maliciously holden to bail was determined; and a declaration for such malicious arrest and holding to bail must contain this averment or it is demurrable. Barrell v. Simonton, 2 Cr. C. C., 657.

§ 709. In an action for malicious prosecution a plea showing probable cause after an office judgment against defendant was objected to. Held, that as the gist of the action was malice and the want of probable cause the plaintiff must show the want of such cause, which will permit the defendant to give in evidence on the general issue the same fact which he has pleaded specially. Wherefore it is not necessary to the merits of the case that they should be specially pleaded. And the defendant, having suffered an office judgment to go against him, and this not being a plea to issue, he cannot claim it as a matter of right. Sheehe v. Ressler,* 1 Cr. C. C., 42.

§ 710. Miscellaneous.- Action for malicious prosecution,- held, that demanding excessive bail where there is a good cause of action, or holding to bail where there is no cause of action, if done vexatiously, entitles the party injured to an action for a malicious prosecution. But if bail be not exacted such action will not lie. Ray v. Law,* Pet. C. C., 207.

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§ 711. A wife brought an action to recover damages for a malicious prosecution. Her husband authorized her bringing the suit, but filed a paper stating that he comes solely to assist her in prosecuting this suit, and as husband does not claim any share in said damages, but joins her to claim the same in her behalf." The code of Louisiana provided that a suit for malicious prosecution of a wife must be brought by her husband. An exception was interposed by the defendant that the action should be brought by the husband. Held, that the exception was well taken, and was not cured by the paper filed by the husband. (Holmes v. Holmes, 9 La., 350; Cowand v. Pulley, 9 La. Ann., 12; Barton v. Kavanaugh, 12 La. Ann.,

332; Cooper v. Cappel, 29 La. Ann., 213.) And under Civil Code, article 2400, this rule is not modified by the fact that the parties are non-residents. Meyerson v. Alter,* 11 Fed. R., 688. § 712. The fact that the plaintiff was or had been a traitor to the United States does not prevent his recovery of damages for malicious arrest and imprisonment against other traitors, acting before and under process from a Confederate court on a charge of treason to the Confederacy, by assisting United States troops while suppressing the rebellion. Proof of plaintiff's bad character is always inadmissible in actions for malicious prosecution. Hickman v. Jones,* 9 Wall., 197.

713. The plaintiff was arrested and imprisoned by defendant for a much larger sum of money than he owed, and required to give bond in the sum of $16,000, whereas he only owed $3,531.75. Held, that in an action for maliciously holding the plaintiff to bail upon a ne exeat for a larger sum than was due, the court will grant a new trial if the verdict for the plaintiff is against the weight of evidence. Zantzinger v. Weightman,* 2 Cr. C. C., 478.

§ 714. It was alleged that M., being indebted to the defendant and others, assigned his property to the plaintiff in trust for his creditors. The plaintiff was imprisoned under color of a writ of ne exeat. He brought suit against defendants for malicious prosecution and false imprisonment. The court charged the jury that if the property had been assigned to the plaintiff there was probable cause for instituting suit against him; that the plaintiff was entitled to maintain his action if the proceedings of which he complained were without probable cause and also malicious on the part of defendant. If the ne exeat which was afterward obtained, and the imprisonment of the plaintiff, were procured by the attorneys without probable cause and from malice to the plaintiff, the defendants are not responsible for the acts of their counsel unless directed by them, nor for the motives by which they were governed. But if the defendants afterwards refused to stay these proceedings or discharge the party from imprisonment, from the desire to obtain thereby, unjustly, any pecuniary advantage to themselves, and knew or believed at the time of their refusal that such proceedings and imprisonment had been procured maliciously and without any probable cause, then they are liable to this action. If, however, in refusing to interfere they were actuated by honest motives, seeking and desiring by legal means to recover money which they believed to be due to them, and were guided in their course by advice of counsel whom they believed to be trustworthy, then this action cannot be maintained. Burnap v. Albert,* Taney, 244.

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X. NUISANCE.

[See EQUITY; WATER AND WATER-COURSES.]

· Remedy; action by a town, § 715.- Compact between Virginia and Maryland, $ 716.

§ 715. A public nuisance warrants an action at common law for damages, or a bill for an injunction in equity to restrain or abate it, in favor of a private person suffering special damages thereby. But a town cannot file such a bill as the representative of its inhabitants, although a corporation or person creating a public nuisance may be prosecuted by indictment or information to a criminal court. Georgetown v. Alexandria Canal Co., §§ 717-722.

$ 716. The compact of 1785 between Virginia and Maryland, securing the free navigation of the Potomac river, could be changed or abrogated at the pleasure of those states, or of congress, when those states ceded to the United States all control over the District of Columbia and the Potomac river included therein. Hence congress had power to create an aqueduct company and authorize it to build an aqueduct over the Potomac, even though it should impede the navigation of that river. Ibid.

[NOTES.-See § 723-764.]

CITY OF GEORGETOWN v. ALEXANDRIA CANAL COMPANY.

(12 Peters, 91-100. 1838.)

Opinion by MR. JUSTICE BARBOUR.

STATEMENT OF FACTS.- This is an appeal from a decree of the circuit court of the United States for the county of Washington in the District of Columbia, dismissing the appellants' bill. The appellants filed their bill in the court below, in behalf of themselves and the citizens of Georgetown, against the appellees, containing various allegations, the material parts of which are sub

stantially these: That the appellees, who were defendants in the court below, had been, and then were, engaged in constructing an aqueduct over the Potomac river, at Georgetown, within its corporate limits, immediately above and west of the principal public and private wharves of the town; that the Potomac river, above and below the aqueduct, continuously outward to the sea, was a public navigable highway; that the free use of that river was secured to all the people residing on its borders or interested in its navigation by a compact between the states of Virginia and Maryland in the year 1785; that Georgetown derived its chief support and prosperity from the trade of the Potomac; that large sums of money had been expended by the complainants at the wharves of the town in deepening the water on the bar across the main channel, immediately below the town and north and west of the long bridge across the Potomac; that the defendants had constructed one massive stone pier, and were about to construct others; that by the use of clay and earth thrown in to make close certain coffer-dams, used by the defendants in the construction of the piers, the harbor has been injured, and the depth of water in the cut or channel through the bar below the town has been diminished already, and that they apprehend serious injury in future from the same causes; that by the construction of their piers of stone, and in such a way as greatly to increase the force of the current, other earth and mud have been, and will be, washed down by the velocity of the current, so as to injure the wharves and harbor of the town, and impair the navigation of the river. The bill charges that the aqueduct can be constructed without the use of clay and earth, from which so much injury is apprehended. It proceeds to state, in minute detail, the nature and character of the injury apprehended to the harbor, wharves and navigation; and concludes with a prayer for an injunction prohibiting the defendants from further depositing earth and clay in the Potomac river, outside or inside their coffer-dams, or otherwise, to the injury of the navigation of the river and the harbor of Georgetown; and with a prayer also for general relief.

The defendants answered, denying that the complainants, the corporation of Georgetown, had any right, title or interest in the waters of the Potomac river, which they aver to be a public navigable river and a common highway; they deny that the works, in the construction of which they are engaged, are within the corporate limits of Georgetown; they deny the right of the corporation of Georgetown to file a bill in behalf of the citizens of the town; they deny the jurisdiction of a court of equity over nuisances in public rivers and highways; and also its power to enjoin them from the prosecution of the works in which they are engaged under their charter; they insist that congress had full power to grant to them the charter of incorporation, and to authorize the construction of the works in which they are engaged. They aver that they have not transcended the power conferred by their charter, which was granted to them by an act of congress passed on the 26th of May, 1830 (6 Stats. at Large, 419), which they exhibit as part of their answer. They then proceed to answer the bill at large upon its merits.

It is unnecessary to state the evidence in the case, because our opinion is founded upon considerations independent of the facts which that evidence was intended to prove.

We shall forbear also from any expression of opinion upon some of the topics discussed at the bar; because, whilst they are important in their char

acter, they have no bearing upon the principles on which our judgment proceeds.

$717. The compact between Maryland and Virginia of 1785, securing the free navigation of the Potomac, could be changed or abrogated at the pleasure of those states.

We will now very briefly state them, and the conclusions which necessarily flow from them. The compact made in the year 1785, between Virginia and Maryland, was made by the two states in their character as states. The citi zens, individually, of both commonwealths were subject to all obligations imposed, and entitled to all the benefits conferred, by that compact. But the citizens as such, individually, were in no just sense the parties to it; those parties were the two states of which they were citizens. The same power which established it was competent either to annul or to modify it. Virginia and Maryland, then, if they had retained the portions of territory respectively belonging to them on the right and left banks of the Potomac, could have so far modified this compact as to have agreed to change any or all of its stipulations. They could, by their joint will, have made any improvement which they chose, either by canals along the margin of the river, or by bridges or aqueducts across it, or in any other manner whatsoever.

§ 718. When the District of Columbia was ceded to the United States by Maryland and Virginia all the rights of both states to the territory included in its cession passed to the United States.

When they ceded to congress the portions of their territory embracing the Potomac river within their limits, whatsoever the legislatures of Virginia and Maryland could have done by their joint will after that cession could be done by congress, subject only to the limitations imposed by the acts of cession.

We are satisfied, then, that the act of congress which granted the charter to the Alexandria Canal Company is in no degree a violation of the compact between the states of Virginia and Maryland, or of any rights that the citizens of either or both states claimed as being derived from it.

Congress, then, having the power, authorized the Alexandria Canal Company "to cut canals, erect dams, open feeders, construct locks and perform such other works as they shall judge necessary and expedient for completing a canal from the termination or other point on the Chesapeake and Ohio canal to such place in the town of Alexandria as the board of directors shall appoint." Now, as one of its termini was authorized to be either the termination or some other point on the Chesapeake and Ohio canal, and the other some place in the town of Alexandria, and as the Potomac lies between these termini, the authority to construct an aqueduct was granted ex necessitate. But, if certainty required to be made more certain, this is done by the language of the ninth and fourteenth sections of the act of May 26, 1830, granting the charter, in both of which the term aqueducts is used in such a manner as incontestably to prove that congress considered the power to construct them as given by the charter.

§ 719. Congress has power to abrogate wholly or in part the compact of 1785 between Virginia and Maryland.

If, then, as we have said, congress had power to authorize the construction of an aqueduct across the Potomac; if, so having the power, they have given to the Alexandria Canal Company the authority to construct it; and if in the construction that company has not exceeded the authority given them, either

in the thing done or in the manner of doing it, so as to produce the least injury or inconvenience practicable consistently with the execution of the work, it would be difficult, as a legal proposition, to predicate of such a work that it was unlawful, or that it was a nuisance, so as to justify a court in interfering to prevent its progress towards completion.

§ 720. A public nuisance can be abated by proceedings upon indictment or information at common law.

It is unnecessary, however, to prosecute this inquiry, because there is a view of this subject which we think decisive of the case. Were it even admitted that the canal company had exceeded the authority under which they are acting, nevertheless, as the Potomac river is a navigable stream, a part of the jus publicum, any obstruction to its navigation would, upon the most established principles, be what is declared by law to be a public nuisance. A public nuisance being the subject of criminal jurisdiction, the ordinary and regular proceeding at law is by indictment or information, by which the nuisance may be abated and the person who caused it may be punished. If any particular individual shall have sustained special damage from the erection of it he may maintain a private action for such special damage, because, to that extent, he has suffered beyond his portion of injury in common with the community at large. 5 Bac. Abr., Nuisance, B., p. 51; 2 Lord Raym., 1163.

Besides this remedy at law, it is now settled that a court of equity may take jurisdiction in cases of public nuisance by an information filed by the attorneygeneral. This jurisdiction seems to have been acted on with great caution and hesitancy. Thus it is said by the chancellor, in 18 Ves., 217, that the instances of the interposition of the court were confined and rare. He referred, as to the principal authority on the subject, to what had been done in the court of exchequer upon the discussion of the right of the attorney-general, by some species of information, to seek on the equitable side of the court relief as to nuisance and preventive relief.

Chancellor Kent, in 2 Johns. Ch., 382, remarks that the equity jurisdiction, in cases of public nuisance, in the only cases in which it had been exercised, that is, in cases of encroachment on the king's soil, had lain dormant for a century and a half, that is, from Charles I. down to the year 1795.

Yet the jurisdiction has been finally sustained, upon the principle that equity can give more adequate and complete relief than can be obtained at law. Whilst, therefore, it is admitted by all that it is confessedly one of delicacy, and accordingly the instances of its exercise are rare, yet it may be exercised in those cases in which there is imminent danger of irreparable mischief before the tardiness of the law could reach it.

$721. Equity will take jurisdiction of public nuisances at the instance of a private person in imminent danger of special injury.

The court of equity, also, pursuing the analogy of the law that a party may maintain a private action for special damage, even in case of a public nuisance, will now take jurisdiction in case of a public nuisance at the instance of a private person, where he is in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy. Amongst other cases this doctrine is laid down in the case of Crowder v. Tinkler, 19 Ves., 616. In that case, page 622, the chancellor says: "Upon the question of jurisdiction, if the subject was represented as a mere public nuisance, I could not interfere in this case, as the attorney-general is not a party; and if he was a party upon the dieta, unless it was clearly a

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