[M'Niel v. Holbrook.]

were right in refusing to instruct the jury, that it was incumbent on the plaintiff to prove the endorsement on the notes purporting to have been made by the payees. By an act of the legislature of Georgia, passed on the 15th of December, 1810, Prince's Digest of the Laws of Georgia, p. 144, it is enacted, "that in all cases brought by any endorsee or endorsees, assignee or assignees, on any bill, bond, or note, before any court of law or equity, in this state, the assignment or endorsement, without regard to the form thereof, shall be sufficient evidence of the transfer thereof; and the said bond, bill, or note shall be admitted as evidence, without the necessity of proving the handwriting of the assignor or assignors, endorser or endorsers; any law, usage or custom to the contrary notwithstanding."

In a suit, therefore, in the state courts, there would have been no necessity for proving the handwritings of the endorsers; and the endorsements themselves would have been prima facie evidence that the notes in question had been transferred to the plaintiff; he being in possession of the notes, and the endorsements of the payers. appearing thereon in blank.

The 34th section of the judiciary act, establishing the courts of the United States, (1789, ch. 20,) provides, "that the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply."

We do not perceive any sufficient reason for so construing this act of congress as to exclude from its provisions those statutes of the several states which prescribe rules of evidence, in civil cases, in trials at common law. Indeed, it would be difficult to make the laws of the state, in relation to the rights of property, the rule of decision in the circuit courts; without associating with them the laws of the same state, prescribing the rules of evidence by which the rights of property must be decided. How could the courts of the United States decide whether property had been legally transferred, unless they resorted to the laws of the state to ascertain by what evidence the transfer must be established? In some cases, the laws of the states require written evidence; in others, it dispenses with it, and permits the party to prove his case by parol testimony: and what rule of evidence could the courts of the United States adopt, to decide a question of property, but the rule which the legislature of the state has prescribed? The object of the law of congress was to make the VOL. XII.-M

[M'Niel v. Holbrook.]

rules of decisions, in the courts of the United States, the same with those of the states; taking care to preserve the rights of the United States by the exceptions contained in the same section. Justice to the citizens of the several states required this to be done; and the natural import of the words used in the act of congress, includes the laws in relation to evidence, as well as the laws in relation to property. We think they are both embraced in it: and as, by a law of Georgia, the endorsement on these notes was made prima facie evidence that they had been so endorsed by the proper party, we think the circuit court were bound to regard this law as a rule of evidence. It dispensed with the proof which the defendant insisted on; and the circuit court, on that ground, were right in refusing the prayers, of the defendant, which required proof of these endorsements. Upon the production of the notes, the plaintiff was entitled to recover without the aid of the parol evidence; which is the subject of all the defendant's exceptions. For this reason, independently of the principles herein before stated, we think the judgment of the circuit court below, ought to be affirmed.

The defendant in error has moved the Court to allow him ten per cent. damages, under the 17th rule of the court, which provides, that when a writ of error shall appear to have been sued out merely for delay; damages shall be awarded at the rate of ten per cent. per annum, on the amount of the judgment. We do not consider this case as one of that description: and therefore award nothing more than the ordinary interest of six per cent.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Georgia, and was argued by counsel; on consideration whereof, it is adjudged and ordered by this Court, that the judgment-of the said circuit court in this cause be, and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum.

THE MAYOR, RECORDER, ALDERMEN, AND COMMON COUNCIL OF GEORGETOWN, APPELLANTS V. THE ALEXANDRIA CANAL COMPANY, AND WILLIAM TURNBULL, APPELLEES.

A bill was filed by the Corporation of Georgetown, on behalf of themselves and the citizens of Georgetown, against the Alexandria Canal Company; stating that the company were constructing an aqueduct across the Potomac river, within the corporate limits of Georgetown; that the Potomac was a public highway; and that' the free use of the river was secured to all persons residing on the border of the river, or interested in its navigation, by the compact of 1785, between Virginia and Maryland. The aqueduct, with the works of the Alexandria Canal Company, the bill stated, obstructed the navigation of the river, and injured the owners of wharf property on the same. The bill asked an injunction to stay the further proceedings of the defendants, and for other relief. The Alexandria Canal Company, incorporated by congress, denied the right of the Corporation of Georgetown to interfere in the matter; denied that their works are within the corporate limits of Georgetown; and that the Court has jurisdiction to interfere, or can restrain them from prosecuting their works under their charter: averring they have not transcended the power granted to them by congress, on the 26th of May, 1830. The circuit court dismissed the bill; and, on an appeal to the Supreme Court, the decree of the circuit court was affirmed.

The compact between Virginia and Maryland, in 1785, was made by the two states, in their character of states. The citizens, individually, of both commonwealths, were subject to all the obligations, and entitled to all the benefits conferred by that compact. But the citizens of each, individually, were, in no just sense, the parties to it. These parties were the two states of which they were citizens. The same power which established it, was competent to annul or to modify it. Virginia and Maryland, if they had retained the portions of territory which respectively belonged 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 improvements 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. When they ceded to congress the portions of the territory embracing the Potomac river within their limits, whatever the legisla tures 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.

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 of the rights that the citizens of either, or both states, claimed as being derived from it.

The Potomac river is a navigable stream, or part of the jus publicum; and any obstruction to its navigation would, upon the most established principles, 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

[City of Georgetown v. The Alexandria Canal Company, &c.] nuisance may be abated, and the person who caused it may be punished. A court of equity may take jurisdiction in cases of public nuisance, by an information filed by the attorney general. 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.

While it is admitted by all, that the jurisdiction of a court of equity, in cases of nuisance, 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. There are cases in which it is competent for some persons to come into a court of equity as plaintiffs, for themselves and others, having similar interests. Such is the familiar example of what is called a creditors' bill. But, in all these cases, the parties have an interest in the subject matter, which enables them to sue; and the others are treated as a kind of plaintiffs with those named, although they themselves are not named.

ON appeal from the circuit court of the United States, for the county of Washington, in the District of Columbia.

The appellants filed their bill in the court below, in July, 1836, stating, in substance, that they were deeply interested in the trade and navigation of the Potomac river, a common highway; the unobstructed use of which is secured by a compact in 1786, between the states of Virginia and Maryland. That the appellees, under the alleged authority of an act of congress of the 26th of May, 1830, are engaged at Georgetown, and within its corporate limits, in constructing an aqueduct over the said river. That the said aqueduct is designed to rest on massive stone piers, having their foundation on the solid rock at the bottom of said river. That to build said piers coffer dams are used around the site of them, with a double row of piling, the inner and outer rows of piling twelve or thirteen feet apart. That the appellees have finished one pier. That in building it, they filled up the space between the inner and outer rows of piling with clay and earth. The appellants expressed fears, that the clay so used, would injure the harbour of the town and channel of the river; but they were assured by the appellees that the clay so used, on completing the pier, should be taken away, and not permitted to be swept into the harbour and river. The bill further states, that, in the construction of the second pier, then in progress, the appellees not only used clay between said rows of piling, but threw large masses of clay and earth into the open river, outside the outer row of piles; that the current of said river and freshets, to which it was subject, had swept and

[City of Georgetown 'v. The Alexandria Canal Company, &c.] would sweep said clay and earth into the channel and harbour; and had materially injured and would injure said channel and harbour. That the appellants had expended large sums of money, (in part granted to them by congress,) in deepening the channel of the river below. the town; and that the depth of water had been materially lessened, caused in part, and materially, by the said works of the appellees.

The bill further states, that the appellants, before filing their bill remonstrated against the use of said clay and earth in the open river, outside the dams, to the officer in charge of the work; but he asserted his right so to use it, and would use it when the safety of his works. in his judgment, required; and was so instructed by his principals.

The bill further stated that the appellants had reason to believe, and did believe, that the said operation would be renewed, in the construction of the six or more remaining piers of the aqueduct, if not arrested by the order of the court; to the manifest injury, if not ruin, of their harbour and channel. The bill further averred that the appellees were without sufficient means to complete the work, and called for a statement of their funds. The bill also av red the charter of the appellees, of May, 1830, to be unconstitutional, because it obstructed navigation. It prayed a perpetual injunction against the appellees in the use of clay and earth, inside or outside the dams; and against the progress of the work so conducted, in which they were engaged; and for further relief, &c. &c.

The answer denied the right of the appellants to sue, and the jurisdiction of the court, to enjoin for a public nuisance; and to give the relief prayed: denied that there was any injury, or damage; and if any, that it was within the corporate limits of Georgetown; and averred the validity of the act of congress, of 26th May, 1830, and their right to proceed under it. The answer avers that the said charter was granted with the knowledge and acquiescence of Georgetown; that a large amount of money had been obtained and expended on the work; and that appellees confidently believed, an ample amount had been, and would be furnished to complete it. They further averred, that they had employed skilful and scientific engineers; that they had adopted the most approved plan, (as set forth in the bill;) and that if any injury had occurred, or should occur to the river or harbour of Georgetown, which they denied, it was the necessary and inevitable result of the work itself. The answer admits, that, in building the second pier, in consequence of a freshet in June, 1836, alleged to have swept off the original deposite at the bottom