Common Law Points. Though the impetuous torrent of Mirabeau's eloquence had contributed so much to roll on the devastating flood of the French Revolution, he was himself BILLS OF constrained to say, "thus far and no farther;" and was engaged in an effort to arrest its swollen progress, when death hurried him from the scene. COMMON LAW POINTS. EXCHANGE DRAWN IN FOREIGN COUNTRIES. A CASE in the English court of common pleas, lately reported, Steadman v. Du It may be objected, that such a sub-hamel, 1 Com. Bench. R. 889, suggests the necessity of increased caution in nemissive reverential spirit, as is herein recommended, is that of an abject, and gotiating bills of exchange, purporting to The facts would uphold the autocracy of Russia be drawn in foreign countries. were as follows:-The plaintiff, Steadand the despotism of Turkey, as well as the free polity of our Union. But it may man, became indorsee for value of a bill be replied, what have they to expect from for 587., payable in London, but written sudden changes, or revolution? And it in the French language, and dated at is not so easily to be determined that the Vichy, a town in France. The bill not interests of their subjects are not rather having been paid at maturity, the indorpromoted by stability, with such ameliora- see brought his action against the acceptions as may be slowly wrought, than by tor, Duhamel; and upon the production a spirit of anarchy. But, in short, noth- of the bill, which was not stamped, it was ing that I have said contemplates such a objected to, and to support the objection, state of things. We are in the full enjoy- evidence was given, that though purportment of liberty; and the problem is not, ing to be a foreign bill, it was really drawn how to obtain, but how to preserve it. in London. It further appeared, that the bill was drawn in the form of a foregn bill, Our past is one of glory, honor and safety; and in reverencing it and the worthies who at the express suggestion of the defendhave made it illustrious, we only revere ant, and the plaintiff, when he took the bill, had no reason to suppose it was other what is highest and best. May not our than it appeared upon the face of it to be. situation be likened, without irreverence, Lord Denman, who tried the cause on to that of the angel Raphael, when sent on his errand of mercy and warning to circuit, allowed the bill, under the cirour first parents, surrounded with perils cumstances, to be read in evidence, reand temptations? Did he look back, his serving leave, however, to move to enter eye rested on the “Garden of God, with a nonsuit, if the court should be of opincedars crowned above all hills;" whilst ion that the defendant was not estopped Our from raising the objection that the bill before him was his mission to man. career thus far, has been bright and illus- was unstamped. trious, and crowded all along with divine blessings; and in looking back, the patriot's vision, however expansive it may be, is filled with the image of the peerless Washington, heaven's best gift to our country. Before us is our mission, our destiny, not without dangers; and with the lamp of experience, the light of the past, to guide us, we may march triumphantly onward, to hail other Washingtons, In arguing the case in the court above, the plaintiff's counsel relied mainly on the ground, that the defendant having allowed the bill to go into circulation as a foreign bill, ought not to be permitted to set up his own fraud as an answer, to an innocent holder who received the bill bona fide and without notice of any irregularity. Several authorities were cited as expounding the rule of law laid down by the Queen's Bench in Pickard v. Sears, 6 Ad. & El. 469; 2 Nev. & P. 488. See also Gregg v. Wells, 10 Ad. & El. 90; 2 P. & D. 296; Pitt v. Chappelaw, 8 Mees. & W. 616, & Sug. Vend. & Pur. 10th ed. vol. 3, p. 428, "that where one by his words or conduct, wilfully causes another to believe the existence of a certain state Supreme Court, Alabama.-The Mayor and Council of the City of Columbus v. Rodgers et al. of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter the existence of a different state of things at the time." The court, after taking time to consider, intimated that the doctrine of estoppel was not strictly applicable to the case, and that the decision of the question must be governed by the provision of the Stamp Act, 31 Geo. 3, c. 25, s. 19, which is incorporated in the later acts, and enacts that no bill or note, liable to the duty, shall be pleaded or given in evidence in any court, or admitted in any court to be good, useful, or available in law or equity, unless stamped. The judgment proceeded on the ground that whenever it appeared on a trial, that an instrument tendered as evidence was not properly stamped, the objection strictly was one to be made by the court; and there was no reason, either upon principle or authority for saying, that when such an objection was taken by a party, the court should not give effect to it. It was therefore determined, that the bill ought not to be received in evidence, and that the verdict taken for the plaintiff, must be set aside and a nonsuit entered. Supreme Court, Alabama. [In Equity.] Before the Honorable Chief Justice COLLIER. The Mayor and COUNCIL OF THE CITY The city of Columbus, in Georgia, incorporated by two miles thereof: Further, if any one shall establish a bridge or ferry, in violation of this prohibition, he shall pay twenty dollars for every day he shall keep the same in operation. Upon the payment by D. M. and others, and their associates of one half the value of the bridge erected by the city, then they were authorized to receive at the western abutment toll, the rates of which were prescribed. D. M. and others conveyed to the city of Columbus, not only the land on which the western abutment rested, but the privileges and immunities conferred by the statute. Afterwards, the commissioners' court of revenue and roads of Russell county, ordered that a gate be erected immediately west of the bridge, and that toll be required of all persons passing over any of the bridges of that county, fixed rates of toll, and caused the gate thus erected to be leased, &c. Held-1. That although the city of Columbus was a foreign corporation, its purchase from D. M. and others, invested it with the privileges and immunities conferred by the act of the Alabama legislature. 2. That the order of the court of revenue and roads, and consequent proceedings, was an invasion of the franchise thus acquired. 3. That it was competent for a court of chancery to protect the rights of the city, by enjoining the collection of toll by the lessee of the gate, and by causing the same to be abated; and this, although the statute imposed a penalty for a violation of one of its provisions. 4. That the city might file a bill in its corporate name, without making the Attorney General or the state of Albama a party complainant. WRIT of Error to the Court of Chancery sitting in Russell. The plaintiffs in error allege in their bill, that the city of Columbus was first incorporated by the legislature of the state of Georgia, by the name of the Intendent and Commissioners of the town of Columbus, and "vested with certain powers, privileges and immunities," among which was the right to hold real estate, to construct a bridge across the Chattahoochie, at or near the city, and have the exclusive right of demanding and receiving tolls for passing over the same. Afterwards, the corporate name was regularly changed to "The Mayor and Aldermen of the city of Columbus, with a continuation of the powers and privileges conferred by the first enact ment. which is in Alabama; afterwards, the legislature of the latter state passed an act, rociting that the western abutment of the bridge rested upon the lands of D. M. and others, and thereupon enacted, that the parties whose lands were thus In 1833, the complainants, at great exencroached upon, and their assigns, were authorized to make and erect all things necessary to pense, caused a bridge to be erected at the permanent erection of the western abutment, the place designated-the eastern abuton their own lands; that the bridge as then lo- ment being in the city of Columbus, and cated should be permanent, that no person the western in the town of Girard, in Russhould be authorized to erect a bridge, or attach an abutment on the western bank of the Chata- sell county, Alabama; since which time, hoochie, nor establish any bridge or ferry within up to the hindrance complained of, com Supreme Court, Alabama.-The Mayor and Council of the City of Col umbus v. Rodgers et al. plainant has exercised exclusive control, | It is therefore charged, that the gate has and received the established tolls for cross- been erected to obstruct the street, so as ing the same. to injure the complainant in the enjoyment of their rights; and that it is not only to the prejudice of their rights, but to the “ 'annoyance, molestation and damage of the citizens both of Georgia and Alabama”-in fact it is a common nuisance. Previous to building the bridge, Daniel McDougald and others caused the town of Girard to be laid off into lots, upon a tract of land which they were proprietors, known as "Marshall's reserve," with streets through the same. These lots were sold to individuals, and the streets have been used as public highways. The principal street was from the western abutment of the bridge, due west through the town, and is the only one by which the bridge can be approached; the town is incorporated, and no overseer has for a long time been appointed by the county of Russell over this street. In the year 1834, the legislature of Alabama passed an act, authorizing Daniel McDougald and others, proprietors of the land on which the western abutment was located, and their assignees to take tolls there. Afterwards, in the same year, McDougald and others sold this land and the privilege of receiving tolls, as conferred by the act to the complainants, and made a deed by which they transferred the land and the franchise. The Commissioners' Court of Revenue and Roads of Russell county, at a regular term thereof, on the second Monday of March, 1846, ordained that a gate be established on the street running west from the bridge, and that toll be required of all persons passing over any of the bridges in that county; and at the same time provided for the disposition of the gate, fixed the rates of toll, &c. Afterwards, the court leased the gate to the highest bidder, when William Rodgers became the lessee, and on the 16th March, erected a gate at the western abutment of the bridge, completely obstructing the street and preventing the approach of the bridge from the west. The lessee is demanding toll from all persons who cross complainant's bridge, except the citizens of Russell county, and unless it is paid, he refuses to permit them to proceed-and this whether they have passed any bridge in the county or not. The bill prays that the judge of the county court and the Commissioners of Revenue and Roads, who are designated by name, and Rogers, the lessee, may be enjoined from all further proceedings under the order, from collecting toll at the gate erected, or any other that may be placed across that street; that the gate may be abated, and such other relief as is proper be granted, &c. An injunction was granted accordingly, but afterwards, upon motion of defendants, the bill was dismissed for want of equity, and ordered that the complainant be taxed with the costs. J. W. Pryor and S. F. Rice, for the plaintiff in error, made the following points: 1. The gate erected under the authority of the Court of Revenue and Roads is a public nuisance. 5 Porter's Rep. 312; see Clay's Dig. 512, § 24; 513, §§ 25, 26. The act of the Alabama legislature, passed in 1834, when accepted by McDougald and his associates, and the sale and assignment was made thereunder, operated as a contract, so that neither the court nor the legislature could have divested or abridged the benefit which the act conferred. In this view, the gate was not only a violation of the private rights of the complainant, but operated as a public nuisance. 13 Pick. Rep. 169; 22 Id. 333, 353. 2. The Commissioners' Court of Russell has not power to order or authorize the erection of a toll gate; and if it possessed such a general power, could not exercise it in an incorporated town, whose streets have been dedicated to the public use, and are under the supervision of the corporate of ficers. 6 Pet. Rep. 431. 3. The acts of the Georgia and AlabaThe Commissioners' Court have not ma legislatures--the conveyance by Mccaused to be constructed any bridge, so Dougald and others, and the exercise of as to make the establishment of the gate the right there conferred upon the comnecessary, at the place where it is located. | plainant, vested an unquestionable right; Supreme Court, Alabama.-The Mayor and Council of the City of Columbus v. Rodgers et al. for the protection of which an injunction | 312, § 2; 13 Id. 513, §6; 2 Ala. Rep. is the proper remedy. 2 Stew. Rep. 211; 140. But if it be a nuisance, redress 1 Johns. Ch. R. 611, 615; 5 Id. 101, 110; should be sought by action at law, and a 6 Id. 439; 2 Story's Eq. 204; Eden on court of equity has no jurisdiction. 4 Inj. 162-3; 4 Paige's Rep. 510, 514; Wend: Rep. 9; 9 Wend. Rep. 315; 7 12 Gill & J. Rep. 1, 12, 91, 129; 16 Pick. Porter's Rep. 238. Rep. 512; 5 Porter's Rep. 313. 4. An action at law would afford an incomplete remedy-it might compensate the party injured for the past, but it could not prevent a repetition of the grievance. See 13th and 22d Pick. supra. 5. The right of the complainant to receive the tolls need not be ascertained by suit at law, to authorize the interference of equity. All the facts appear upon paper, and must, upon a motion to dismiss, be taken to be true-they cannot be controverted otherwise than by answer; and until this comes in, it cannot be known that any fact will be controverted. Eden on Inj. 168; 2 Johns. Ch. Rep. 162, 165; 5 Porter's Rep. supra. 6. It is not admitted that the state should have been made a party to the bill; but if this was necessary it is insisted the bill should not have been dismissed, but retained that the proper parties might have been made. 12 Gill & J. Rep. supra. J. E. Belser and S. Heydenfeldt, for the defendant. It is admitted that a corporation created in another state may sue here, (2 Stew. Rep. 147,) and it may file a bill to restrain an interference with its chartered privileges; but it cannot be a common informer. 2 Strange's R. 1240; 2 Paige's R. 116. Notwithstanding the terms of the act of 1834, in favor of McDougald and others, it did not autorize these persons to transfer their interest in the subject to the complainant. 13 Vin. Ab. 503, § 1. A foreign corporation can't hold real estate here-nor can it exercise a franchise without the state to which it owes its creation. 1 Stew. Rep. 299; 5 Porter's Rep. 279; 2 Paige's R. 116. The grant to McDougald enabled him to put the abutment upon his own land, but the street on which the abutment now rests, was, before the grant, dedicated to the public use, and does not come within the terms of the act. Chardon's Droits D. Alluvion, chap. 5, § 159. If one person has sustained special damage by a public nuisance, he may redress it by an action against the party who erected it; but the guilty person should, except in this instance, be proceeded against criminally, so as to abate the nuisance and punish him. 12 Pet. Rep. 92. It is, however, admitted, that an information in equity in the name of the state, at the relation of the aggrieved party, may be maintained. 4 Hawks' Rep. 384; 5 Porter's Rep. 313; 12 Pet. Rep. 91; 3 Atk. Rep. 751. The grant of the legislature to McDougald and others, was the creation of a trust for the public convenience, and could not be assigned-the assignment was a breach of the trust and operated a forfeiture. 2 Bac. Ab. Tit. Execution, C.; 1 Cow. & H.'s Dig. 374; 19 Johns. Rep. 456. But if the franchise has been invaded by the defendants, the statute prescribes the penalty, and for this the party injured should proceed. The streets of the town of Girard are public highways, and the commissioners' court of Russell might erect a toll gate across them. 5 Porter's Rep. 311; Clay's Dig. 513, §§ 25, 26. If the gate erected under the authority of the commissioners' court is not placed upon the complainant's land, then they have no right to enjoin the collection of tolls-nor is the allegation sufficient that complainant's profits are likely to be The act of the Alabama legislature diminished. 11 Pet. Rep. 420. If the makes the collection of tolls at the west tolls have been improperly collected in end of the bridge a franchise; if a party Alabama, they may be recovered back, not authorized to receive them, usurps it, Clay's Dig. 513, § 27; 2 Porter's Rep. the remedy against him is by quo warranto, 307, but this furnishes no ground for an and not by a proceeding to restrain or injunction. The doctrine that a franchise punish for a nuisance. 7 Com. Dig. Quo cannot be impaired, and that all compeWarranto, (A.) 190; 6 Vin. Ab. 293, § 6; | tition may be excluded, cannot be main Supreme Court, Alabama.-The Mayor and Council of the City of Columbus v. Rodgers et al. tained-monopolies are against the policy the sum of twenty dollars. Further, upon of the state. 19 Ves. Rep. 616; 4 T. the payment by McDougald, Collins, Rep. 666; 2 B. & Adol. Rep. 792; 2" and their associates, or assigns," of "one Paige's Rep. 116; 1 Wheat. Rep. 115. Chancery will not exercise a primary jurisdiction in cases of nuisance, unless the necessity be pressing-there must first be a trial at law. 18 Ves. Rep. 245; 2 Dana's Rep. 158; 12 Pet. Rep. 91; 7 Porter's Rep. 238; 3 Ired. Eq. Rep. 301; 10 Wend. Rep. 324; 3 Atk. Rep. 750; 5 Porter's R. 313; 4 Hawk. Rep. 384. The court of revenue and roads may license the erection of a toll gate, or a bridge, or the establisment of a ferry at "a city or town," though within two miles of another previously licensed. Clay's Dig. 508, §7; 514, § 29; 2 Porter's Rep. 296. One prejudiced by a private ferry illegally used, may restrain its use by an injunction, and in principle the cases cited for the plaintiff in error do not go beyond this. See 2 Saund. Rep. 172; Willes' Rep. 508; 1 N. & McC. Rep. 387; 5 Johns. Ch. Rep. 101; 2 Stewart's Rep. 211. half the value of the bridge erected as aforesaid," then they were authorized to demand and receive at the western abutment, toll, the rates of which are prescribed by the act. Under the authority of this enactment, McDougald and his associates conveyed to the complainant, not only the land on which the western abutment of the bridge rested, but also the privileges and immunities conferred by the act. The questions now to be considered are-1. Was the conveyance effectual to invest the complainant with a title to the land, or the right to "demand and receive tolls" from persons passing over the bridge? 2. Does the bill disclose a case which authorizes a court of chancery to grant an injunction? 1. We need not inquire whether it is competent for a corporation created in one state, to purchase and hold lands in another state, but we think it well worthy of consideration, whether such a sale, consumated by deed, would not estop the venCOLLIER, C. J.-The act 1834, referred dor, or whether a wrongdoer would be to in the bill, recites that the commis- permitted to insist on its invalidity? sioners of the town of Columbus "have There can be no question but the conveyerected a bridge across the Chattahoochie ance by McDougald and others, conferriver, opposite that city, and that the wes- red upon complainant the right to enter tern abutment of said bridge rests upon and occupy the land, through its agents. the lands of Daniel McDougald, Robert But whatever may be the law in respect Collins, James C. Watson and Burton to the land, we think there can be no Hepburn, within the chartered limits and doubt of the complainant's capacity to jurisdiction of this state." And there- purchase the franchise granted by the act. upon enacts, that the parties whose lands Such a right intimately concerned its inare thus encroached upon, and their as- terests, was necessary to the consummation signs, are "authorized to make and erect of its title to the entire bridge, and to an all things necessary to the permanent erec-investiture of the privileges and profits tion of the western abutment of said which its construction contemplated. bridge, on their own lands." The bridge The right of a corporation to make as then located, was declared permanent, contracts, in a state other than that of its and it was enacted that no person shall be creation, has been considered with great authorized to erect a bridge, or attach an ability and clearness in several cases, by abutment to the western bank of the Chat- the supreme court of the United States. tahoochie river, nor establish any ferry 13 Peters' Rep. 521; see also, 14 Pet. Rep. within two miles of the bridge, either 60, 122, 393. In the case first cited, it above or below. If any bridge or ferry was conceded that a corporation could is established within two miles of that have no legal existence out of the limits then erected, the owner of such bridge of the sovereignty by which it is created; or ferry, shall forfeit and pay for every it exists in contemplation of, and by force day he shall keep the same in operation, of the law, and where that law ceases to or it shall remain attached and affixed operate, it can have no legal existence. to the western bank of the Chattahootchie," "It must dwell in the place of its crea |