Green v. Lake. fully said by the chancellor, in St. Helen' Smelting Co. v. Tipping, 11 H. L. Cas. 642, 650, "If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property. Surely it would not be pretended that a flouring and corn mill is per se a nuisance. But the complainants allege this one to be a nuisance, because of the circumstances detailed. To abate a public nuisance, the public authority must move. A private action, either at law or in equity, will not lie, unless the plaintiff has sustained some special damage. Bigelow v. Hartford Bridge Co., 14 Conn. 565; Baxter v. Winooski Turnpike Co., 22 Vt. 114, 121. The complainant must sustain a special or peculiar damage, an injury distinct from that done to the public at large. O'Brien v. Norwich & Worcester Railroad, 17 Conn. 372. In Smith v. Boston, 7 Cush. 254, the action was at law for discontinuing a portion of a street. After stating that the nuisance, if any, was public, and therefore injurious to the community, the court examined the plaintiff's right to damages, and said that he must suffer a peculiar and special damage, not common to the public, as by driving upon an obstruction in the night, and injuring his horse." On account of his proximity to the obstruction, the plaintiff may suffer more in degree but not different in kind from others. The same view is repeated in Brainard v. Connecticut River Railroad, 7 Cush. 506, 510. 66 But do the complainants bring their case within the settled rules of a court of chancery? If they intend by the allegations recited that the establishment of Lake is a public nuisance, they have no right of suit at law for damages, or in equity for perpetual injunction, unless they sustain peculiar and special injuries of the character just considered. But if they mean no more than to affirm that the use of the property is a private nuisance as to themselves specially, then the principle is the same. Irreparable injury lies at the foundation of relief in equity, which must be so great as to be incapable of compensation in damages. Hilliard on Injunctions, 269, 270. Equity will not relieve if the injury be doubtful, eventual or contingent. Butler v. Rogers, 1 Stock. 487. Nor ought so peremptory an interdict to be laid on the defendant's use of his property, if the evils which are said to exist may be obviated by Green v. Lake. proper precautions. If the chimneys should be elevated so high as to discharge the smoke in the upper air, that annoyance to the complainants would be obviated. So a spark-arrester might be placed in the chimney to prevent from that source the danger of firing the complainants' houses. So, if the boiler and furnace are not sufficiently guarded, proper structures might be put around them, to guard against the escape of fire. The noise complained of is not specifically analyzed in the bill. Whether it proceeds from the puffing of the engine or the rumbling of the machinery is not stated. Whether it is more than is usual to such mills is not alleged. A perpetual injunction against the lawful use of property in a city ought not to be decreed if the owner can apply to his steam power and machinery such alterations and appliances as will relieve them from the special and unusual annoyances complained of in this case. A chancellor ought to be well satisfied that the grievance is serious and well founded, and that there is no remedy short of the cessation of such use before he will abate it as a nuisance by injunction. The case must be urgent for him to do so before the complainant has established the existence of the nuisance at law. If the grievance can be removed by the aid of science and skill, a court of equity will go no further than to require those things to be done. The legislature and the local municipal authorities have ample power to regulate the business of the city so as to produce as little inconvenience and annoyance to the different classes of its population as possible. Noisome and offen sive trades may be assigned certain limits. It does not appear that the authorities of Aberdeen have ever declared that Lake's mill was improperly located, or that such establishments should not be carried on in the neighborhood. where his is located. The merchant, mechanic, manufacturer, butcher, laborer and professional man, as well as those of wealth and leisure, constitute the city. They all have rights, and they ought to be so accommodated that each may enjoy his property and pursue his calling under the regulations prescribed by the authorities, without inflicting unnecessary and reasonably avoidable injury on others or their property. If there should be such accumulation of filth about the mill as is apprehended, the remedy is easy and plain, when that evil comes. Decree affirmed. Raymond v. State. RAYMOND V. STATE. (54 Miss. 562.) Set-off - demands by State against citizens. The drawer of a draft, accepted for his accommodation, delivered it to the State in payment of his debt to it. He afterward filed a bill against the State and the acceptor to set off against such draft a demand due from the State to him and growing out of a distinct transaction. Held, that the bill could not be maintained. ILL to compel set-off. The complainant's testator, being indebted to and sued by the State, gave in full settlement thereof his draft on J. & T. Green, bankers, which was duly accepted by the drawees, payable in State warrants. Afterward, the drawer acquired from the Pilot Publishing Company sundry accounts against the State, for printing for which the legislature had made no appropriation. The bill prayed that J. & T. Green be enjoined from paying, and the State officer from collecting, the amount due on the acceptance; that the claims for printing may be set off in equity against the acceptance, and the injunction be made perpetual. The State answered, that the set-off could not be allowed. The bill was dismissed and the complainant appealed. M. Green, for appellant. George E. Harris, Attorney-General, and W. L. Nugent, for the State. SIMRALL, J. The case made by the appellant in his bill is susceptible of this abstract statement: Can one set off, against the demand of the State, an indebtedness of the State to himself, growing out of a distinct transaction? A set-off is a counter-demand which a defendant holds against a plaintiff, arising out of a transaction extrinsic of the plaintiff's cause of action. Recoupment is distinguished from a set-off in these particulars: 1st. It arises out of matters connected with the transaction or contract on which the plaintiff's cause of action is founded. 2d. It matters not whether it be liquidated or unliqui Raymond v. State. dated. 3d. It is not dependent on any statutory regulation, but is controlled by the principles of the common law. It is admitted that a State cannot be sued in its own courts unless it has expressly consented to abrogate the prerogative of sovereignty, and allow itself to be sued. A statute permitting such suits would be a derogation of its sovereignty, and would be construed strictly. The rule on this subject was very clearly stated in State v. Joiner, 23 Miss. 500; Parmilee v. McNutt, 1 S. & M. 179, and Josselyn v. Stone, 28 Miss. 753, 761. The State is not included in a general statute of limitations, unless expressly so provided. Nor were the rights of the State as judgment creditor compromised by the Abstract Act of Feb. 6, 1841 (Acts 1841, p. 93), nor the Enrolment Act of Feb. 24, 1844 (Acts 1844, p. 97). The reason is, that the general words of a statute do not embrace the State, or affect its rights, unless it is specially named, or clearly intended to be included. The privilege of suing the State is regulated by several sections of the statutes. The State may be sued by "any person having a cause of action, in the manner hereinafter provided." § 1573, Code 1871. Such suits must be brought in the proper court, holden at the capital. Process shall be served on the attorney-general. Judgments and decrees shall not be enforced otherwise than by an appropriation by the legislature. § 1580. The purpose of the statute is to remit the creditor, after he has made demand of his claim from the proper ministerial officer, to the judicial tribunal, not to enforce payment, but to subject it to the scrutiny of the court, for the ascertainment of its legality and amount. The statute assumes that the courts are more competent to determine the validity of the claim than the legislature; or, if not more competent, that it is cheaper to settle the disputation there than before the two houses of the legislature. But if the claim has been adjusted by the accounting officers, and a warrant issued by the auditor on the treasurer, there has been an end of the matter, and a suit will not lie on the warrant. Green v. State, 53 Miss. 148, 152. It is plain that the entire function of the court is to investigate and adjudicate the claim preferred against the State in a suit brought by the creditor. When that is done, the power of the judiciary is at an end, and satisfaction must be had by a legislative appropriation. The State has not consented, by express words, Raymond v. State. to subject itself to the statute of set-off. It would be difficult to reconcile that statute with the other provisions referred to. The principle of set-off is that the defendant pays the plaintiff's demand, in whole or in part, by his claim against the latter. If successful, he satisfies, partially or in full, the plaintiff's demand. If in excess, he has judgment against the plaintiff. But as we have seen, the State has not consented to any thing more than that the claim of its creditor shall be established by the judgment or decree of the court, reserving to the political department the final determination of whether an appropriation shall be made. The legislature passes finally on the question of payment. That right can be defeated if the court could adjudge its payment as a set-off against the debt due to the State. But if the State consents to be sued, it is only in the manner prescribed. That has been done in the several sections of the statute referred to. Cases have been cited in the Supreme Court of the United States where this plea was allowed. United States v. Wilkins, 6 Wheat. 135; United States v. Macdaniel, 7 Pet. 1; United States v. Robeson, 9 id. 319; United States v. Bank of the Metropolis, 15 id. 377. But a careful reading of them will show that the right to the plea is referred to the act of Congress of March 3, 1797, ch. 20. It is well settled, that, if the State has not given up its prerogative of non-liability to be sued, a defendant cannot set up a set-off in satisfaction of the demand asserted in a suit brought by the State. Chevallier v. State, 10 Tex. 315; Commonwealth v. Matlack, 4 Dall. 303. Set-off is purely a statutory right, and did not exist at the common law. The defendant who had a cross-demand against the plaintiff was compelled to become actor in a suit at law, or file a bill in chancery. By the settled rules for construing statutes, the government would not be embraced in the statute of set-off, unless named and bound by it. Shortly after the passage of the English statute, 2 Geo. II, ch. 22, § 13, on this subject, it was held that the crown was not bound by it. Ample provision is made for those who have claims against the government (and who have made demand on the proper officers) to establish them by suit, brought in particular courts, at the capital. The attorney-general is required to be summoned, and it is made his duty to represent the State, and to reside at the capital. In a suit brought in Wilkinson or Tishomingo county by the State against an individual, |