by an injunction. Where the injury is irreparable, as where loss of health, loss of trade, destruction of the means of subsistence, or permanent ruin to property may or will ensue from the wrongful act or erection; in every such case, courts of equity will interfere by injunction, in furtherance of justice and the violated rights of the party: Story's Equity Jurisprudence, sections 925, 926. A brew-house, glass-house, lime-kiln, dye-house, smelting-house, tanpit, chandler's shop, or swine sty, if set up in such inconvenient parts of the town as that they incommode the neighborhood, are common nuisances; so also steeping stinking skins in water, and laying them in the highway, are common nuisances; and in general everything that causes not only an unwholesome smell, but that renders the enjoyment of life and property uncomfortable, is a nuisance; Eden on Injunctions, 160. Knight Bruce V. C. in Walter vs. Selfe, 4 English Law and Equity Reps. 21, uses this language: "The first point disputed or not conceded, is the question whether, as between the defendant in his character of a person owning, using and occupying his parcel of land that has been mentioned on the one hand, and the plaintiffs in their character of owner and occupier of the house, offices and gardens occupied by the plaintiff, Mr. Pressly, on the other, Mr. Pressly is entitled to an untainted and unpolluted stream of air for the necessary supply and reasonable use of himself and his family there; or in other words, to have there for the ordinary purposes of breath and life an unpolluted and untainted atmosphere. And there can, I think, be no doubt in fact or law, that this question must be answered in the affirmative, meaning by untainted and unpolluted, not necessarily air fresh, free and pure, as at the time of building the plaintiff's house the atmosphere then was, but air not rendered to an important degree less compatible, or at least not rendered incompatible with the physical wants of human existence." This was an application to restrain the defendant from erecting a brick kiln near to plaintiff's house, which had been built twenty years before. Of course it is an important consideration in the case now before me, that the plaintiff was in the quiet enjoyment of the premises leased by him more than a year before the defendants leased the premises which they occupy. If the plaintiff had rented his store subsequently to the possession obtained by the defendants, as he would or could have known of the annoyances of which he complains, equity would be slow to relieve him of the consequences of his own folly. Courts of equity, however, are very loth to interfere with the ordinary pursuits of mankind, and whilst I feel it my duty to continue this special injunction, I modify the form of it so that the defendants, their servants and agents, be restrained by special injunction from carrying on and conducting their business as laundrymen at the premises aforesaid, so as to occasion damage or annoyance to the plaintiff. This will permit them to conduct their business at the place occupied by them if they can so alter and change their mode of carrying it on as not to annoy and damage the plaintiff. John C. Grady and J. Howard Gendell, Esqs., for plaintiff. 11 [Leg. Int., Vol. 31, p. 340.] THE COMMONWEALTH Ex relatione Jos. S. ALLEN vs. WM. BUMM. 1. The office of councilman is a town office. 2. A citizen who claims a seat in councils in place of one who has removed from the ward, has sufficient interest to entitle him to a writ of quo warranto to determine the question of forfeiture. Motion to quash writ of quo warranto. Opinion delivered October 17, 1874, by PEIRCE, J.-This writ was sued out to test the right of the defendant to the office of member of select council of the city of Philadelphia. The suggestion sets forth that the defendant was elected a member of select council for the Eighteenth ward of the city of Philadelphia, for a term which would expire January 1, 1875, and that he moved from the Eighteenth ward, from which he had been elected, and had become a resident of the Fifteenth ward before the month of February last, whereby it became the duty of the qualified electors of the Eighteenth ward, at the next municipal election thereafter, to elect a person as a member of said council for the unexpired term of the said William Bumm. That the said relator on the third Tuesday of February last, being the next municipal election thereafter, was chosen by the qualified clectors of the Eighteenth ward for the unexpired term of said defendant, and a certifieate of his election had been delivered to the said relator accordingly. That the said defendant, since his removal from the Eighteenth ward as aforesaid, hath exercised, and still doth exercise, the franchises and privileges of the said office, and prayed for process against the said William Bumm to answer by what right he claims to have and enjoy the franchises and privileges of a member of the select council as aforesaid. Upon this suggestion the writ of quo warranto was issued, and the defendant moved to quash it on several grounds, viz.: 1. It is not in reference to any known or recognized office. 2. The subject-matter is not within the jurisdiction of the court. 3. The suggestion is filed and the writ issued at the instance of a private relator. 4. The suggestion does not set out a case for the allowance of this writ. The first objection has reference to a description of the office as “a member of select council for the Eighteenth ward of the city of Philadelphia." The title of the office is "member of select council of the city of Philadelphia." The insertion of the words "for the Eighteenth ward" is amendable by striking them out. It is not a ground for quashing the writ. The reason of the second objection is that the jurisdiction of the Common Pleas in matters of public office is confined to town and township offices. The office of a member of select council is technically a municipal office, and there are offices known specifically as township offices; but is not the office of a member of select council, if not within the letter, within the meaning and spirit of the law? Richardson, in his dictionary, defines a town to be " au undefined collection of houses or habitations.' Webster defines it," any collection of houses larger than a village." In this use he says the word is very indefinite, and a town may consist of 20 houses or 20,000. He defines a city to be "in a general sense," a large town; a large number of houses and inhabitants established in one This place. In law, tithings, towns or villas are of the same signification. The word town or villa is, indeed, by the alteration of terms and language, now become a general term, comprehending under it the several species of cities, boroughs, and common towns: 1 Blackstone Commentaries, s. 4, Introduction. Several cases of quo warranto touching the rights of members of council have gone up from this court to the Supreme Court, but it does not appear in any case that the jurisdiction of this court in such a case has been called in question. To the contrary, in Commonwealth vs. Cluely, 6 P. F. Smith, 272, Judge Strong said the act gave jurisdiction to Courts of Common Pleas in municipal cases. objection is not sustained. The third objection is that the suggestion is filed and the writ issued at the instance of a private relator. The act of assembly conferring jurisdiction on this court by quo warranto in cases of this character, says that the writ may be issued at the suggestion of the attorney-general or his deputy in the respective county, or any person or persons desiring to prosecute the same. In the Commonwealth vs. Cluely, 6 P. F. Smith, 270, and in other cases, the Supreme Court has said that the words "any person or persons desiring to prosecute the same," means any person who has an interest to be affected. This brings us to the question, "has the relator an interest in the office which he alleges the defendant unlawfully exercises?" The question for decision is not whether the relator was duly elected to the office. With that question we have nothing to do. That, by act of assembly, is made the duty of the council to determine. And the relator does not seek by the writ of quo warranto to have that question determined. The only object of the writ is to ascertain whether the defendant has done an act by which a forfeiture of his office has occurred. Has the relator an interest to be affected by the determination of this question? He claims to have been elected to the office now filled by the defendant, and he holds his certificate of election thereto. If the defendant unlawfully holds the office, the relator, with his certificate of election in hand, may go to the select council and ask to be admitted a member thereof. He therefore clearly has an interest to be affected by the determination of this question; for with the office declared vacant by the defendant, he has accomplished one step towards a determination of his right of admission to the office. It may be that the select council also has the right to determine the question of the forfeiture of the office by the defendant, but as was determined in Commonwealth vs. Allen, 29 Legal Intelligencer, 4, this does not oust the jurisdiction of this court to inquire into a question of disqualification. The last objection is of a general character, and is embraced in the three preceding objections. It does not, therefore, require further consideration. The motion to quash is therefore refused. David W. Sellers, Esq., for relator. Lewis C. Cassidy, Esq., for defendant. [Leg. Int., Vol. 31, p. 340.] THE COMMONWEALTH ex rel. WM. HEACOCK et al. vs. Horne. Private citizens having no particular or special interest to be affected have not the right to ask for a quo warranto to oust a member of councils. Quo warranto. Demurrer to plea to jurisdiction and motion in arrest of judgment. Opinion delivered October 17, 1874, by PEIRCE, J.-This writ was issued to test the right of the defendant to the office of a member of common council of the city of Philadelphia, on the ground that at the October election, 1873, the Ninth ward, from which he was elected, was not entitled to two members of common council. By act of assembly of March 1, 1864, it was enacted: “That each ward of the city of Philadelphia shall have a member of common council for each 2,000 of taxable inhabitants that it shall contain, according to the list of taxables for the preceding year." It was suggested by the relators that the Ninth ward did not contain, according to the list of taxables for the preceding year, 4,000 taxable inhabitants, and issue was joined on this fact. On trial of the cause before a jury they rendered a verdict finding that the number of taxable inhabitants for the preceding year was 3,859. If this court has jurisdiction of the case at the suit of private relators, then this verdict is decisive against the right of the defendant to the office which he holds. Another point was made, that the office of a member of common council, not being a county or township office, the court had not jurisdiction according to the terms of the act of assembly giving jurisdiction. But in the case of the Commonwealth ex rel. Allen vs. Bumm, decided to-day, this court held that the office of a member of council was within the meaning of the act conferring the jurisdiction. The only remaining question is, had the court jurisdiction of the question at the suit of private relators, having no particular or special interest to be affected beyond others of their fellow-citizens? In Meeser's Case, 8 Wright, 341, the Supreme Court sustained such a writ, but did it with some hesitation; and afterwards, in the Commonwealth vs. Cluely, 6 P. F. Smith, 270, it said: "This Court has construed the words 'every person or persons desiring to prosecute the same,' to mean any person who has an interest to be affected. They do not give a private relator the writ in a case of public right, involving no individual grievance. If a private relator cannot sue out a writ to enforce a forfeiture without having an interest, the statute gives him no greater right when he complains of usurpation of a county or township office. The right of the relator in each class of cases is defined by the same words." We think that the Commonwealth vs. Cluely rules this case. It has not been shown that the relators have an interest to be affected other or different from that which is common to their fellow-citizens. The judg ment on the verdict is arrested, and we enter judgment for the defendant on the demurrer to the plea to the jurisdiction. John J. Ridgway, Jr., and William H. Rawle, Esqs., for relators. [Leg. Int., Vol. 31, p. 372.] JONES VS. PARK. The legal remedy for disturbance of a right of way is an action of trespass on the case. In equity. Hearing on bill, pleas and answer. Opinion delivered November 14, 1874, by PEIRCE, J.-A bill in equity is not a remedy for every grievance. The law furnishes adequate redress for many wrongs, and where this is so equity seldom interferes, except to prevent repetition of the wrong and to enforce the right established of law. The legal remedy for disturbance of a right of way is an action of trespass on the case: Shroder vs. Brenneman, 11 Harris, 348; Dietrich vs. Berk, 12 Harris, 470. It is not necessary, therefore, to consider the questions raised by the pleas and answer in this case, further than to say, that it does not seen to us that the right of the plaintiff has been concluded by the action of ejectment brought by him in the District Court. We will therefore retain this bill for three months to give the plaintiff an opportunity to bring his action at law if he should so desire, with leave to him, if he should establish his right at law, to amend his bill, and seek such further relief, if any, as he may need. Bill retained. Joseph M. Pile, Esq., for plaintiff. C. W. Hillman and D. C. Harrington, Esqs., for defendant. [Leg. Int., Vol. 31, p. 380.] THE CITY OF PHILADELPHIA vs. THE GERMANTOWN PASSENGER RAILWAY COMPANY. The park commission has power to use the name of the city of Philadelphia in any proceeding at law or in equity that may be necessary to carry into effect the objects referred to in the act creating the commission. Opinion delivered November 18, 1874, by PAXSON, J.-This was a rule upon Wm. H. Yerkes, Esq., park solicitor, to show cause why he should not file his warrant of attorney, and was taken to raise the question, whether that officer, acting by the authority of the park commission, has a right to commence a suit in equity in the name of the city of Philadelphia. Mr. Yerkes, by order of the park commission, filed a bill in the above entitled action, against the Germantown Passenger Railway Company, to restrain said company from "grading or interfering with that part of Girard avenue between Pennsylvania avenue and the Junction railroad, and within the limits of the park, and from constructing or maintaining a railroad therein." The defendant corporation alleges that neither the mayor, councils, nor the city solicitor, has assented to the filing of this bill, and that without the consent of said authorities the park commission has not the right, through its solicitor, to commence this proceeding in the name of the city. No evidence having been produced of the consent of the city authorities above referred to, we are called upon to determine the question |