once obtained in one of the actions would, on application of the court, be allowed to be set up in bar of the further prosecution of the other. But the pendency of an action in another State, between the same parties, and for the same cause, does not, according to the general rule, abate the second suit. Bowne v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 id. 99; Bank v. Bonney, 101 New York, 173; Cook v. Litchfield, 5 Sandf. 330. An exception to this general doctrine was made in this State in the early case of Embree v. Hanna, 5 Johns. 101, in respect to prior attachment proceedings instituted in the State of Maryland, under the laws of that State, against a debtor of a New York creditor, by a creditor of the latter. The New York creditor subsequently commenced an action in this State against his Maryland debtor to recover the debt, and the defendant pleaded in abatement the pendency of the attachment proceedings in Maryland; and the plea was held to be good, on the ground that the debtor might otherwise be compelled to pay the debt twice. But attachment suits partake of the nature of suits in rem, and are distinctly such when they proceed without jurisdiction having been acquired of the person of the debtor in the attachment. Real and personal property may be subjected to seizure and sale for the payment of debts of the owner, according to the laws of the State or sovereignty where the property is, having regard to the fundamental condition that due process of law shall precede the appropriation. It is undeniable that a State may authorise the seizure and sale, by means of appropriate judicial proceedings, of property of non-residents within the jurisdiction, for the payment of their debts. There must be notice and an opportunity to be heard, either actual or constructive, in such way and form as the law may prescribe. But no State can subject either real or personal property out of the jurisdiction to its laws. It may, and often does, compel persons, through the process and judgment of its courts, to perform acts which affect their title and interest to property outside of the limits of the State. Having acquired jurisdiction of the person, the courts could compel observance of its decrees by proceedings in personam against the owner within the jurisdiction. But it is a fundamental rule that in attachment proceedings the res must be within the jurisdiction of the court issuing the process, in order to confer jurisdiction. Plimpton v. Bigelow, 93 New York, 593.” And it was held that "the general rule is well settled that the situs of debts and obligations is at the domicile of the owner." See to the same effect, Harvey v. Great No. R. Co., 50 Minnesota, 405; 17 Lawyers' Rep. Annotated, 84, with notes. The opinion cites Embree v. Hanna, supra; Wallace v. McConnell, 13 Peters (U. S. Sup. Ct.), 136; Bank v. Rollins, 99 Massachusetts, 313; Baltimore &c. R. Co. v. May, 25 Ohio St., 347, and disapproves Missouri Pac. R. Co. v. Sharitt, 43 Kansas, 375. Contra, People v. Judges, 27 Michigan, 406; 15 Am. Rep. 195, where it is said, "the two proceedings must be in all respects identical." That was an action for services in fitting out a vessel, and it was held not abated by pending proceedings in rem in the Federal court in another State. ONE of a class of persons enjoying a right may maintain an action for its infringement, although he has suffered no individual damage, if the act complained of is such that repeated acts of the kind would furnish evidence in derogation of the right. Harrop v. Hirst. 38 L. J. Ex. 1 (s. c. L. R. 4 Ex. 43). The declaration stated that from time whereof the memory of man was not to the contrary there had been, and of right ought to have been, and still ought to be, a certain public water-spout in a public highway called Kiln Lane, within the district of Tamewater, in the parish of Saddleworth, in the West Riding of the county of York; and during all the time aforesaid the water of a spring arising in a certain close, now called the Wharnton Grammar School Close, ran and flowed, and of right ought to run and flow, from and out of the said spring in and along a certain watercourse, through divers closes unto and into the said spout, for the supply of water to the said spout for the purposes thereinafter mentioned; and during all the time aforesaid, by an ancient and laudable custom and usage of the said district, the inhabitants for the time being of the said district residing therein and occupying dwelling-houses situate and being within the said district had been entitled, and still were entitled, to take, use, and enjoy water from the said spout for their culinary and other domestic purposes to be used in their said respective dwellinghouses for the more convenient use, occupation, and enjoyment, thereof respectively; and the plaintiffs, before and at the time of the committing of the grievances by the defendant, as thereinafter next mentioned, were inhabitants of the said district and residing therein and jointly occupying a dwelling-house within the said district, and entitled to take, use, and enjoy water, from the said spout for their culinary and other domestic purposes to be used in their said dwelling-houses for the more convenient use, occupation. No. 3. Harrop v. Hirst. and enjoyment thereof; yet the defendant, well knowing the premises, and contriving and intending to prejudice and aggrieve the plaintiffs and other the persons so entitled as aforesaid respectively, and to deprive them respectively of the water to which they were so respectively entitled as aforesaid, on divers days and times before the commencement of the suit, wrongfully diverted large quantities of the said water which ought to have run and flowed, and which otherwise would have run and flowed, in and along the said watercourse unto and into the said spout for the purposes aforesaid, as such water otherwise would and ought to have done; whereby the said spout became and was on divers days and times imperfectly and insufficiently supplied with water for the purposes aforesaid, and on divers other days and times was wholly deprived of water; and by means of the premises the defendant wrongfully hindered and prevented the plaintiffs from taking from and out of the said spout, and using and enjoying, divers large quantities of the said water to which they were entitled as aforesaid, and the plaintiffs were thereby put to and suffered and incurred great inconvenience, loss, and expense, and were much disturbed in the use, occupation, and enjoyment, of the said dwelling-house for want of the said water for the purposes aforesaid, and to which they were so entitled, and of which they were so deprived as aforesaid, and have been otherwise much injured and damnified. : Pleas The general issue, and traverses of the essential allegations of right in the declaration. Issues thereon. The cause was tried, at the Leeds Summer Assizes, 1868, before BRAMWELL, B., and a special jury. It appeared that the right alleged in the declaration existed, and that the plaintiffs were in occupation of a dwelling-house within the district. The defendant was the occupier of a certain close of land through which the water in question flowed on its way from the spring to the spout. The jury found that the defendant had by various acts, extending over some years, diverted water from the spout, so as sensibly to diminish the flow on various occasions. It was proved that several inhabitants of the district had on various occasions, when the flow was so impeded and diminished, been put to inconvenience by failure to obtain water from the spout on endeavouring to do so; but the jury, in answer to a question from the learned Judge, said that the plaintiffs had not individually sustained any loss capable No. 3. Harrop v. Hirst. of pecuniary computation from the want of water, or any inconvenience except the trouble of complaining of the defendant's acts of infringement. Upon these findings the verdict was entered for the plaintiffs for 40s. damages, and leave was reserved to the defendant to move to enter a nonsuit, on the ground that the action was not maintainable by the plaintiffs without proving actual damage to themselves personally. A rule nisi having been accordingly obtained, the question was argued. In the course of the argument, MARTIN, B., referred to the notes to Mellor v. Spateman, 1 Wms. Saund. 346 a, 346 b. Judgments were delivered as follows: KELLY, C. B. The plaintiffs in this case, in common with the other inhabitants of a certain district, claim a right to a flow of water through a spout within the district, for the supply of water in their houses for domestic purposes; and the defendant, who is the owner or occupier of land through which the stream flows by which this spout is fed and supplied, has from time to time abstracted large quantities of water from this stream, and has thus diminished the quantity of water, so that at times it has been insufficient for the supply of the entire district. It does not appear that the plaintiffs have individually sustained any inconvenience, inasmuch as they do not seem to have endeavoured to obtain water from this spout at any of the periods at which the supply had been substantially or largely diminished by the abstraction of water on the part of the defendant; and the question is, whether, under these circumstances, an action lies for the infringement of the right without I will not say special, but - without individual and particular damage sustained by the plaintiffs. Let us, in the first place, consider whether this injury to a person possessing, in common with others, a right of this nature, is the subject of an action. It is clear from Coke upon Littleton 56 a, and the other authorities cited, especially the case of Westbury v. Powell, cited in Fineux v. Hovenden, Cro. Eliz. 664, Co. Lit. 56 a, that such action is maintainable. In the case of Fineux v. Hovenden, Cro. Eliz. 664, it was held, by two Justices against one, that the action. there was not maintainable, being an action for an injury done to a right of a public nature, a right not confined to the inhabitants of a district, but common to the whole of the subjects of the king. In that case the case of Westbury v. Powell was cited, and there it No. 3. Harrop v. Hirst. appears that it was determined "that, where the inhabitants of Southwark had a common watering-place, and the defendant had stopped it, and the plaintiff, being an inhabitant there, brought his action upon the case, it was adjudged maintainable." Now, with respect to the question whether this action is maintainable without particular damage to the plaintiffs, certainly it did not appear in that case that the plaintiff had himself sustained any particular damage, and he may have been much in the same condition as the plaintiffs in the present case. But when we consider the nature of the right claimed, and the nature of the infringement alleged to have occurred by the acts of the defendant, and the probable effect of such acts if continued and repeated, it is impossible not to see that the effect might be to furnish the foundation of a claim to a right to so largely diminish the supply of water to this spout as to interfere with the right of the inhabitants of the district, and render it practically valueless. Upon the point that, under such circumstances, without particular damage, an action of this nature may be sustained, my Brother Martin, in the course of the argument, referred to the very learned note of Mr. Serjeant Williams to the case of Mellor v. Spateman, 1 Wms. Saund. 346 b, where, after a reference to various cases of this nature, we find this laid down: "For wherever any act injures another's right, and would be evidence in future in favour of the wrong-doer, an action may be maintained for an invasion of the right without proof of any specific injury; and this seems to be a governing principle in cases of this kind." There are several authorities for that proposition. I hold it to be an undeniable proposition of law, that where there is a right in one man, and acts have been done by another, which if continued would be evidence of a right in derogation of the right claimed, such acts are the subject of an action by the person entitled to the right in question. Among the authorities referred to was the case decided in the Common Pleas of Bower v. Hill, 2 Sc. 535; s. c. 5 Law J. Rep. (N. s.) C. P. 77, and at the close of Chief Justice Tindal's judgment we find he expressed himself thus: "But independently of this narrower ground of decision, we think the erection of the tunnel is in the nature of a natural easement, and is to be considered as a permanent obstruction to plaintiff's right, and therefore an injury to the plaintiff, even though he received no immediate damage thereby. The right of the plaintiff to this way is injured |
