
    N. I. WILKINSON et al., plaintiffs in error, v. THE OFFICERS OF COURT, defendants in error.
    (Atlanta,
    June Term, 1870.)
    NUISANCE—ABATEMENT—PAYMENT OF COSTS.—In the month of February, 1868, four citizen free-holders of the county of Troup, made oath before one of the Justices of the Inferior Court of that county, that, according to their opinion and belief, the health of the neighborhood was materially injured by the mill-dam of George H. Traylor, on Long Cane creek, in said county, and thereby caused proceedings to be instituted for the abatement of said mill-dam as a nuisance, and on the trial thereof, before the Inferior Court, in March, 1868, the jury returned a verdict in favor of the defendant, with costs of suit, and a judgment was entered up against the complaining parties for the costs of the proceeding; and an execution having issued for the costs against the parties who originated the proceeding they objected to the same, ori the ground that the execution was illegal, and that they were not liable for the payment of the costs:
    
      Held, that inasmuch as the Code does not especially provide who shall pay the costs on the trial of such cases when the verdict is for the defendant, yet, as the jury have found that the complaint of the parties was not well founded in point of fact, by returning a verdict for the defendant with costs of suit, it is but just and right, that the parties who originated and instituted the proceeding, should pay the cost of it.
    Nuisance. Costs. Before Judge Bigby. Troup .Superior Court. November Term, 1869.
    Wilkinson, and other citizens of Troup county, and freeholders, made affidavit that the health of their community was injured by the mill-dam of one Traylor, in said county, and sought to have it abated as a nuisance. A trial was had and the jury found for the defendant, with costs of suit. ""Thereupon a judgment was entered up against said citizens, the informers, for the costs of said proceeding. A motion was made to have a fi. fa. issue for costs, under said judgment. The informers resisted it, contending that the judgment was illegal, because the county was liable for the costs, and they were not. By consent, it was agreed that the Court should decide as to the legality of the judgment and direct who should pay said costs. The Court held the informers liable for the costs. That is assigned as error.
    B. H.'Bigham, by Thomas Whitaker, for-plaintiffs in error,
    said this was a public nuisance: Irwin’s Code, sec. 2946; 28th Ga. R., 399; 15th, 61. The county is liable for the costs: Irwin’s Code, secs. 632, 635.
    No appearance for defendants.
   WARNER, J.

The error assigned to the judgment of the Court below in this case, is in awarding an execution for the costs of the proceeding against the parties who originated it. Inasmuch as the Code does not specially provide who shall pay the costs on' the trial of the particular class of cases mentioned in the record, and the jury having found that the complaint of the parties was not well founded in point of fact, by returning a verdict for the defendant with costs of suit, it is but just and right, in our judgment, that the parties who originated and instituted the proceeding, should pay the cost of it.

Let the judgment of the Court below be affirmed.  