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Cowden v. Hurford and others.

where interest upon interest was allowed, in a case similar to the present, and we are willing to follow the precedent. (a)

(a) An action will lie to recover interest. 2 Mass. 613; 3 Mass. 221 Where money is payable on demand, interest is not recoverable until demand made. 4 Bibh, 246; 2 Bibb, 471.

ROBERT Cowden v. JOSEPH HURFORD AND OTHERS.

Execution can not issue on a general judgment of restitution, without first is

suing a sci. fa.

HURFORD and others recovered a judgment against Cowden in the court of common pleas of Jefferson county. Upon this judgment Cowden sued out a writ of error, and this court reversed the judgment, and thereupon rendered a judgment for costs, upon the writ of error, and for a restitution in the usual form, with a mandate to the court of common pleas to carry the same into execution. When this mandate came down, Cowden moved the court of common pleas to award a writ of restitution, which motion was overruled. He then applied to this court for a peremptory mandamus to the court below, or to award a writ of restitution returnable in this court. This application was reserved for 375] *decision here by the Supreme Court. The record of the judgment of reversal was not produced, nor did it appear that this court, in the judgment of reversal, had awarded the restitution of any certain sum of money; but upon the application to the court of common pleas for a writ of restitution, Cowden exhibited evidence of certain payments made upon the judgment rev orsed.

TAPPAN, in support of the application, cited 2 Salk. 588; 5 Com. Dig. 725.

There was no argument on the other side.

By the Court:

A judgment of restitution is strictly a judgment which the court have inherent power to execute. 12 Serg & Rawle, 292. And the

Story o. Hammond and others.

court, in the case cited, hold that where this judgment of restitution is rendered, assumpsit will not lie for the money.

But the court are now called upon to point out the manner of executing this judgment. If the judgment of reversal contain evidence of the precise thing to be restored, the writ of restitution may be awarded. Cro. Car. 699. But where the matter to be restored is not specified in the judgment, but depends upon evi, dence dehors the record, it is inconsistent with the policy of the law to permit execution without an opportunity given to the other party to make his defense.

The proper remedy in such case is the writ of scire facias. Saund. 101, y; 2 Salk. 583. (a)

(a) For the form of a scire facias quare restitutionem non, see Lill. Ent. 641, 650; and for the form of a restitution, see Tidd's Prac. Forms, 541, 542.

*GEORGE W. STORY v. THEODORE HAMMOND AND OTHERS. [376

An action on the case lies for a nuisance affecting the health of the plaintiff

and his family.

This was a motion for a new trial, reserved from the county of Cuyaboga.

The plaintiff brought an action on the case, to recover special damages, sustained by himself and family, in consequence of a mill.dam erected by the defendant across a branch of Yellow creek, in Cuyaboga county.

The plaintiff, in his declaration, alleged that the dam, by over. flowing the adjacent lands, rendered the atmosphere exceedingly impure and unhealthy; and thereby occasioned the sickness of himself and family; and that he was put to great costs and charges, in and about curing himself, and his wife and children, etc.; and that he and bis family had sustained a great loss of time, etc.

The jury rendered a verdict, in favor of the plaintiff, for one hundred and eighty-eight dollars and seventy-five cents; and the defendant moved for a new trial upon two grounds:

First. That the court permitted the plaintiff to give evidence, not only of bis own sickness, but of the sickness of his family and

Story v. Hammond and others.

the different members thereof, and the loss of their services, as a foundation for the recovery of damages.

Second. Because the court charged the jury that this action was, by law, sustainable, although the neighborhood generally was afflicted with the same injury sustained by the plaintiff and his family, and for which this action was brought. That if the jury were satisfied that the sickness of the plaintiff and his family was caused by the erection of the dam or nuisance, then the plaintiff had proved a damage done to himself and family sufficiently special to entitle him to recover, notwithstanding the neighborhood generally was proved to have sustained the same injury. That the defendant, having been indicted and plead guilty, under section 43 of the “act for the punishment of certain offenses therein named," previous to the commencement of this suit, formed no bar to this action, and that the private remedy of the plaintiff was not thereby taken away. 377] *It was proved on the trial, that Yellow creek was not a navigable stream, and that the dam was erected upon tho lands of the defendant, in the vicinity of the plaintiff's residence.

HUMPHREY & KIRKUM, in favor of the motion.

WILLEY & OLCOTT, contra.

By the Court:

The declaration is somewhat loose and inartificial, but is substantially good. No other evidence was admitted on the trial than to show the sickness of the plaintiff, and that of his wife and children wbom he was bound to support.

It appeared, upon the trial, that not only the plaintiff and his family, but the neighborhood, generally, suffered much sickness and disease, occasioned by the defendant's mill-dam, and it is insisted that this general injury is a legal bar to the recovery of in. dividual damages.

We consider it unnecessary to determine whether the injury complained of belongs to the class of public or private nuisances, as defined by the common law. Every member of society is bound by the principles of natural justice, so to use his own property as not to injure the rights of others. If an individual erects a mill.

Ford v. Skinner.

dam which creates disease and sickness, he must be responsible for the consequences.

The defense set up is entirely without foundation. If a man wero to sally forth into the public streets of a town, and commit an assault and battery upon every person be met, it would hardly.be competent for him, in a suit by an individual for special damages, to set up as a defense that he had not only beat the plaintiff, but had also beat the whole town. Or, if a man was to poison a reservoir of water, for the supply of a city, and thereby create a general sickness among the inhabitants, it would not be seriously contended that the magnitude of the offense was a bar to a private action; or, in other words, that the defendant might exculpate himself by proving that he had not only poisoned tbe plaintiff, but had poisoned all the inhabitants of the city.

*There is no foundation in the objection that the civil action [378 was merged in the indictment. In England, actions of trespass or tort, in certain cases, were held to be merged in the felony. But this rule, it seems, did not operate after the offender was brought to justice. 1 Bac. Abr. 99; 4 Term, 333. (a)

Motion overruled.

(a) The doctrine of merger by felony, of a civil action, has no foundatior in this country. 15 Mass. 338. In assumpsit for money received, proof that a lamb was driven to London and sold, is sufficient, unless it appear to be stolen, when trover would be the only proper remedy. Bull. N. P. 331.

John FORD V. AUGUSTUS SKINNER AND OTHERS.

A judgment lien upon land is not discharged, against a subsequent purchaser,

by the fact that chattels were once levied upon, and the levy released, by the mutual consent of the parties to the execution.

This was a bill of injunction, to restrain the defendants from selling certain real estate, taken in execution upon a judgment at law; and was reserved from the county of Geauga.

The case was as follows: On June 8, 1813, ope Jacob French mortgaged the lands in controversy to Daniel L. Coit, for the sum

Ford v. Skinner.

of five hundred dollars. On November 16, 1818, French conveyed, in fee, the same premises to John Ford, the complainant, who afterward, on May 17, 1819, purchased and took an assignment of the mortgage from Coit. At the October term of the court of common pleas, in the year 1816, the then commissioners of the county of Geauga, and whose successors were made defendants in this bill, recovered a judgment against French and others, for the use of Abraham Skinner, the intestate of the defendant, Augustus Skinner, for the sum of four thousand dollars, to be discharged on the payment of one thousand eight hundred and eighty-four dollars and costs. Upon this judgment, executions issued from time to time, and small sums of money collected, until October 28, 1818, when the sheriff levied upon personal property of French, 379] *sufficient to discharge the judgment, but the same was re. turned by the sheriff, unsold for want of time to advertise. Or December 26, 1818, a vendi. was issued, and on the 3d of March fol lowing, by consent of parties to the execution, the personal prop erty thus levied upon was released, and redelivered to French. Executions were again issued, from time to time, and a considerable portion of the money made. On February 19, 1828, a pl. fi. fa. was issued, and the sheriff having indorsed nulla bona, levied upon a part of the real estate purchased by the complainant of Ford, as before stated, and thereupon this bill was filed to enjoin all further proceedings upon the execution. There was no charge that the levy upon the personal property was discharged fraudulently, or with intent to injury the complainant; but the bill contained the common cbarge, that the defendants combining, etc., to injure and oppress the complainant, refuse to release their lien on the land, etc.

WEBB, for complainant:

It will be seen that the principle which ought to govern in this case, is almost, or quite, the same as that of marsbaling assets, or that principle, that where one creditor has two funds, out of which he may be paid, and another has but one, the creditor having the two funds shall first exhaust that of which be alone can have the control, before he shall be permitted to resort to the other. This principle is so familiar with the court, that it is deemed entirely unnecessary to cite any authorities in support of it. I shall proceed to recite some of the leading facts in the case. It

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