
    
      John McKinne, James Jones and Joseph J. Kennedy vs. The City Council of Augusta.
    
    Bill by plaintiffs, owners of a charter, from South-Carolina, of the Augusta bridge over the Savannah river, against the City Counoil of Augusta, in Georgia, owners of a charter of the same bridge from the State of Georgia, for an account of tolls collected by the defendants, and for an injunction to restrain them from collecting more than ono moiety of tolls, and also from collecting any tolls whatover at a new bridge which they had built in violation of plaintiffs’ charter: it was averred in the bill, that of so much of the Augusta bridge as lay within the territorial limits of South-Carolina, the plaintiffs were the owners, and it was incidently stated that the defendants owned some lots in Hamburg, in this StatePlea to the jurisdiction, because the defendants were non-residents of South-Carolina, sustained.
    
      Before Dunkin, Ch., at Edgefield, June, 1852.
    
    The bill stated, that the river Savannah is the boundary between the States of South-Carolina and Georgia; that the sovereignty and territorial jurisdiction of each State extend, usque adftlum medium aquae, to the central line of the river, as your orators are advised, and that the said States have no convention to regulate the exercise of their respective jurisdictions over the waters of the said river, in respect to bridges, ferries, and such other privileges, but, as your orators are advised, the grant's or charters for bridges or ferries from either of the said States, have effect over so much of the said river as lies within the territorial jurisdiction and no further.
    That by an Act passed on the 17th day of December, 1813, the State of South-Garolina granted to Henry Shultz and Lewis Cooper, their heirs and assigns, for the space of twenty-one years, the exclusive privilege of building a toll-bridge over so much of the Savannah river within the State of South-Carolina as lies between Campbelltown Ferry above, and the Sand-bar Ferry below Augusta, and of receiving at the same, certain legal tolls, and prohibited, under the penalty of five thousand dollars, the building of any other bridge, and the keeping of any ferry or other convenience for crossing the said river, except for private use, within those limits, as in and by the said Act> reference being thereunto had, will more fully, and at large, appear — that soon after the passing of said Act, the said Lewis Cooper assigned his interest in the said charter to your orator, John McKinne, and the State of Georgia, by an Act passed on the 9th of November, 1814, granted a like charter to the said Henry Shultz and your orator, John McKinne, their heirs and assigns for twenty years, as in and by the said last mentioned Act, published and printed under the authority of the State of Georgia, will more fully appear; and that in pursuance of the privileges and powers thus vested in them, the said Henry Shultz and John McKinne, with much skill and cost, built the bridge over the Savannah river, between the said Campbelltown and Sand-bar Ferries, known afterwards as the Augusta bridge, having fully complied with all the terms and conditions of the said charters, as your orators believe, and that during the continuance oí the said charters, The Bank of the State of Georgia, a body politic and corporate under the law of Georgia, with capacity to take and hold real estate, under certain restrictions, came into the possession of the said bridge and the receipt of profits and tolls thereof.
    That your orators are informed and believe that at the erection of the said bridge, the soil upon which rested its abutment and landing on the South-Carolina side of the said river; as also the land lying on the river for some distance, both above and below the abutment of the said bridge, was parcel of a tract of land that belonged to the heirs of one Isaac Fair, who had died intestate seized thereof in fee, and leaving him surviving, a widow, Lucilla, who afterwards intermarried with John B. Covington, and two children, John H. Fair and Jane Caroline Fair, who afterwards intermarried with George Anderson ; that the said Henry Shultz afterwards purchased the one undivided fourth-part of the said tract of land in fee, and having obtained from the State of South-Carolina the loan of $50,000, for which the said J. B. Covington became bound as one of his sureties, the said Shultz and Covington for the securing the payment of the said money, each executed a mortgage of his respective portion of the said land — that the said debt remaining unpaid, certain proceedings were afterwards instituted in the Court of Equity for the District of Edgefield, to which all the persons in interest were made parties, to procure partition of the said tract of land, as well as foreclose the said mortgages — that, at the June term, 1830, of the said Court, a decree in the said cause was pronounced foreclosing the said mortgages and providing for the partition of the said land, and for that purpose directing that it should be sold — that in pursuance of said decree, the said tract of land was divided by the Commissioner, into six lots or portions, and sold by him on the first Monday in August, 1830, in separate lots — that at that sale the Hon. Baylis J. Earle, being duly authorized thereunto, purchased, for the State of South-Carolina the four lots on the said river, according to the Commissioner’s division of the said land, which included as well the spot upon which rested the abutment and landing of said bridge on the South-Carolina side of the said river, as also the land immediately adjoining, and lying upon the said river, both above and below the said bridge, and that thereupon a deed of conveyance of the said four lots or portions of the said land was duly executed by the Commissioner to the said B. J. Earle, for and on behalf of the State of South-Carolina; that the said B. J. Earle afterwards, to wit, on the 24th of December, 1830, on behalf, and as the duly authorized agent of the State of South-Carolina, executed a deed conveying in fee to Samuel Piale, then the President of the Branch Bank of the State of Georgia in Augusta, certain “ lots and ground, near the end of the said bridge/ lying in the town of Hamburg, being parcel of the four lots purchased by the said B. J. Earle as aforesaid, and described in his deed to the said Samuel Hale, as follows: — That is to say, “ one lot or parcel beginning on the bank of Savannah river, at low water mark, on the South-Carolina side, at the termination of Covington-street, thence north along the eastern line of Covington-street to lot No. 326, thence along the southern boundary of the said lot to John Fox’s linej thence along the said line to the river, thence along the margin of the river to the beginning, embracing the lots No. 327, No. 328, No. 329, and No. 330, as laid down in the original plan of Hamburg; also, lot number fifty-four, as laid down in the said original plan, bounded by Market-street on the north, Covington-street on the east, Bay-street on the south, and by lot 53 on the west; also, so much ground as lies immediately south of the last mentioned lot, between Bay-street and the river, and having the same east and west boundaries ; and also a piece or parcel of ground situated within Covington-street, as laid down on the original plan, of the following-dimensions, to wit, extending from the margin of the river at low water mark to the southern line of Market-street, and bounded by east and west lines of the width of the Augusta bridge, running the course of Covington-street to the said southern line of Market-street, it being understood that the last piece or parcel is to be used, held and enjoyed solely and exclusively for the purpose of the bridge abutment and a highway;” and that the said Samuel Hale afterwards, to wit: on the 27th December, 1830, by deed duly executed, conveyed to the said The Bank of the State of Georgia in fee all and singular the “ lots and ground ” purchased by him as aforesaid ¡describing the same in the identical words of the description thereof contained in the deed of conveyance executed to him by the said B. J. Earle as aforesaid.
    That the State of South-Carolina by an Act passed on the 18th December, 1830, granted to the said The Bank of the State of Georgia, by the style and addition of the President and Directors of The Bank of the State of Georgia, their successors and assigns, a renewal of the said charter of the said bridge for the further space of fourteen years from the 17th of December, 1834, with all the exclusive rights, privileges and immunities extended and allowed to the former proprietors of the said bridge, under the charter of 1813, as in by the said Act, reference being thereto had, will more fully appear: And that the State of Georgia, by Act passed on the 23d December, 1833, granted to the said The Bank of the State of Georgia an extension of the said charter of 1814 for the further space of ten years from 9th November, 1834, with a reservation of the right of chartering any other bridge at or near Augusta, and for greater particularity and exactness, your orators crave leave to refer to the said Act, printed and published under the authority of the State of Georgia.
    That all and singular the “ lots and ground ” conveyed by B. J. Earle on behalf of the State of South-Carolina to Samuel Hale, and by him to the said The Bank of the State of Georgia as aforesaid, were, on the 4th May, 1838, by deed duly executed, conveyed in fee by the said The Bank of the State of Georgia to Gazaway B. Lamar, and that the said G. B. Lamar, at or about the same time, obtained from the said The Bank of the State of Georgia a conveyance and transfer of all its interest and estate in the said bridge, and the franchises and privileges in respect thereto, derived from the said charters from the States of Georgia and South-Carolina, and that on the 21st of January, 1840, the said Gazaway B. Lamar, by deed duly executed, sold and conveyed to The City Council of Augusta, a body politic and corporate under the law of Georgia, all and singular the said “lots and ground ” in the town of Hamburg, purchased by him from The Bank of the State of Georgia as aforesaid, and all his interest and estate, however derived, in the said bridge and in the franchises and privileges belonging to him in respect thereto; that the “ lots and ground ” in the town of Hamburg conveyed by the deed from The Bank of the State of Georgia to the said Gaza way B, Lamar, are therein also described in terms identical with those employed in the deed from B. J. Earle to Samuel Hale as aforesaid, and that almost literally the same description of them is adopted in the said deed from G. B. Lamar to the said The City Council of Augusta, by whom the same are still held and owned ; and that by an Act passed on the 23d December, 1840, the Legislature of Georgia confirmed the purchase of the said bridge made by the said The City Council of Augusta as aforesaid, and granted them thenceforth the exclusive privilege of building and keeping up bridges across the Savannah river at Augusta, within the corporate limits of the said city, (which were by the said Act extended on the north over the said river to the boundary line between that Stale and the State of South-Carolina,) with power to collect the toll then authorized by law in relation to the said bridge, but with the proviso that nothing in the said Act contained should be so construed as to impair the right, title, claim or interest of any person or persons in and to the said bridge, as in and by the said Act, printed and published by the authority of the said State, reference being thereto had, will more fully appear.
    That by an Act of the Legislature of South-Carolina, passed the 19th December, 1848, the said bridge across the Savannah river was rechartered and vested in the said Henry Shultz and your orator, John McKinne, their heirs and assigns, for the term of fourteen years, with certain rates of toll therein prescribed, with the proviso, however, that the South-Carolina Railroad Cempany should be authorized to construct a bridge across the Savannah river at any point at or near Hamburg for the transportation of freight and passengers on the said road, and that the said grantees, Shultz and your orator, McKinne, should not be allowed to charge and collect toll as aforesaid at the South-Carolina end of the said bridge, until the litigation then pending-in the Supreme Court of the United States in relation to the said bridge and the proceeds of its sale, should be determined against the said The City Council of Augusta, and that after-wards by an Act of the Legislature of South-Carolina, passed the 19th day of December, 1849, the restriction imposed by the Act of 1848, as to the collection of tolls at the said bridge, was repealed, and the said Henry Shultz and your orator, John McKinne, were thereby authorized to collect the rates of toll established by the Act of 1848, at the South-Carolina end of the said bridge, from all persons going from the South-Carolina end, but not from persons coming from the Georgia end of the said bridge; and it was thereby also enacted that the collecting of said toll should not subject the Railroad Company, or the community, to the payment of double toll; all which will more fully and at large appear by reference to the said Acts of 1848 and 1849.
    Your ordtors further show unto your Honors, that on the 21st March, 1851, articles of agreement in writing, between the said Henry Shultz and your orator, John McKinne, were duly executed by the parties thereto, under their hands and seals, whereby, among other matters not material in this behalf your orator, John McKinne, bound himself, upon payment to him by the said Henry Shultz of the sum of fifteen hundred and twenty dollars, with the Georgia lawful interest, on or before the first day of May, 1852, to execute to him, the said Shrdtz, or such person or persons as he, in writing, might direct to receive the same, a quit claim conveyance and release of all your orator’s, McKinne’s, right, title, claim and interest in and to the said bridge, and the franchises, privileges, monies and profits belonging thereto, of every description, and from whatever source derived; that the said agreement is not yet, but soon will be consummated by the payment of the purchase money on the one side, and the execution of the quit claim deed on the other side.
    That on the 12th of September, 1851, the said Henry Shultz, by deed duly executed, conveyed, among other things, to your orators, James Jones and Joseph J. Kennedy, all his, the said Shultz’s, title, interest, and estate, in and to the said bridge, and the charters thereof granted by the Act of the Legislature of South-Carolina of the 19th of December, 1848, amended by the Act of the 19th of December, 1849, as aforesaid, with all the rights, hereditaments and appurtenances thereto appertaining, to be had and held by them in fee for the persons and purposes therein mentioned, with the reservation of the use'and enjoyment of the same during the term of his natural life.
    That the said Henry Shultz departed this life intestate, on the 13th day of October, A. D. 1851, being a resident of the District of Edgefield at the time of his death, and that your orators, James Jones and Joseph J. Kennedy, being creditors of the said Henry Shultz, afterwards obtained from the Ordinary of the said district the grant of the administration of his estate.
    That the charters of the said bridge conferred by the State of Georgia in 1814, upon the said Shultz and your orator, McKinne, and in 1833 upon The Bank of the State of Georgia, were not granted until like charters, and with identically the same rates of toll, had been obtained by the same grantees respectively from the State of South-Carolina; and it is respectfully submitted that the tolls authorized by the charters from the States of South-Carolina and Georgia to the said Shultz and McKinne, and The Bank of the State of Georgia, respectively, were undoubtedly designed to be tolls for passage over not one-half merely, but the whole length of the said bridge; that the said charters from the State of Georgia did not confer upon the grantees thereof the right to collect the tolls therein specified, in addition to the tolls prescribed in the charters from the State of South-Carolina to the same grantees, but, on the contrary, were intended to confirm and give full effect to the grant of tolls contained in the charters from the State of South-Carolina; that such has been the uniform construction of the said charters by the respective grantees thereof, and those claiming under them, for at no time did they ever assume to sever or apportion the tolls thereby authorized, by charging, claiming, or taking one part thereof for passage over one-half, and the other part thereof for passage over the other half of the said bridge ; but always and invariably exacted but one toll for the privilege of passing over the entire length of the said bridge, and that the Act of 1840 of the State of Georgia, which permits the City Council of Augusta to collect the tolls then authorized by law, should he held to have empowered them to exact the whole of such tolls only so long as they should continue invested with the franchise of taking toll in respect to the whole bridge.
    That since the expiration of the charter granted by the State of South-Carolina to The Bank of the State of Georgia as aforesaid, the said The City Council of Augusta have continued and still continue to exact and collect substantially the same rates of tolls as before, without any abatement; and that since the 19th December, 1848, as your orators are informed, large sums have been received by them for such tolls, amounting in the aggregate to the sum of one hundred thousand dollars or more, and your orators respectfully submit that hy the Act of the Legislature of South-Carolina of L848, the said Shultz and your orator, McKinne, became invested not merely with the franchise conferred thereby in respect to so much of the said bridge as is within the territorial limits of that State but also with the full title, property and ownership in and to the material structure of that portion of-the said bridge, for and during the term of fourteen years then next ensuing; that although the grantees under the last mentioned charter were restricted temporarily from collecting tolls at the South-Carolina end of the said bridge, such ‘ restriction did not avoid or take away their title and property in said bridge and in the franchise in respect thereto granted to them by the said charter. Nor yet did it abridge or impair their legal remedies (by suit at law or in Equity,) to recover their fair and just proportion of such tolls, against any person or persons who had actually collected and received the same; nor, least of all, did it amount to a release or assignment of their interest in the same to the said The City Council of Augusta; that since the 19th of December, 1848, the said The City Council of Augusta have been practically in the possession and enjoyment of all and singular the property and interest in the said bridge and the franchise in respect thereto granted by the Act of the Legislature of South-Carolina of that date, to the said Shultz and your orator, McKinne; that the effect of the said charter of 1848 was to constitute the said Shultz and McKinne substantially co-tenants with the said The City Council of Augusta, in respect to the tolls of the said bridge, collected and received by them since the 19th of December, 1.848, and that your orators are entitled to have an account of the said tolls, and to be paid their fair and equitable proportion thereof.
    That on the 3d day of February, 1852, your orators, Jones and Kennedy, claiming under the said Henry Shultz, as aforesaid, erected a toll gate, and proceeded to collect at the South-Carolina end of the said bridge the tolls established and allowed by the said Act of 19th December, 1848, as amended by the said Act of 19th December, 1849, and that thereupon the said The City Council of Augusta, as your orators are informed, raised the rates of toll exacted by them at the Georgia end of the said bridge, to the maximum limited by the said charter from the State of Georgia to the said The Bank of the State of Georgia, with purpose to annoy, hinder and disturb your orators in the collection and enjoyment of their said legal tolls as your orators believe, and by a formal resolution published and announced that their said high rates would be discontinued when and as soon as 3mur orators should forbear to collect their said tolls at the South-Carolina end of the said bridge; that for some sixteen days, during which your orators collected the tolls authorized by their said charter, the said The City Council of Augusta persisted in exacting the increased rates of toll above mentioned at the Georgia end of the said bridge, thereby driving off the custom of passengers and produce, and greatly reducing the profits which your orators would therefrom have received had the said rates been reduced one-half as they should have been, or been permitted to remain even at their former standard; and although by an arrangement between your orators and the South-Carolina Railroad Company, your orators are, at present, forbearing to exact tolls at the said bridge — the said South-Carolina Railroad Company undertaking to be responsible therefor to your orators, if their right to collect such tolls should be adjudged valid — yet this arrangement is but temporary, being limited to the 1st day of June next, and your orators apprehend and verily fear, that when and as soon as they shall again begin to collect their tolls at the said bridge, the said The City Council of Augusta will again resort to their device of exacting and collecting the said excessive rates of toll at the Georgia end of the said bridge, with the same view of annoying, hindering and disturbing your orators in the exercise and enjoyment of their just rights in this behalf.
    That by the said Act of 19th December, 1848, your orators are advised, the former charter for the said bridge granted by the State of South-Carolina to the said The Bank of the State of Georgia, was renewed and extended in favor of the said Shultz and McKinne for the term of fourteen years, with all the exclusive privileges conferred by that Act and by the original charter of 1813 therein referred to; that the Act of the State of Georgia, granting as hereinbefore mentioned to the said The City Council of Augusta the exclusive privilege of building and erecting and keeping up bridges across the Savannah river, cannot impair the grant from the State of South-Carolina to the said Shultz and McKinne, nor confer any authority to build in or over that part of the Savannah river between Campbelltown and Sand-bar Ferries, which lies within the sovereignty and territorial jurisdiction of South-Carolina, in derogation of the Acts of that State of 1813 and 1830, and 1848, hereinbefore mentioned. But the said The City Council of Augusta, under color of the last mentioned Act of the State of Georgia, have undertaken to build, and have recently actually built, a bridge from the Georgia shore, at or near the foot of Mill-street in Augusta, not to any island in the Savannah river, but over the whole stream of the said river, to a point on the opposite bank of the said river, within the territorial limits of South-Carolina, between the Campbelltown and Sand-bar Ferries, and within two miles of the bridge of your orators; that the said new bridge is not meant nor designed as a private bridge for the use of the individuals now composing the said The City Council of Augusta, but it is in operation distinctly and avowedly as a public toll bridge; that by the direction of the said The City Council of Augusta, the same rates of toll have been demanded and taken for passage over the same as at the Georgia end of the other and lower bridge before mentioned, and as if for the purpose of evading the jurisdiction of the law of the State of South-Carolina, the said tolls are demanded and taken exclusively at the Georgia end of the said bridge ; that independent of the express prohibition in the charter of your orators against such a bridge, its erection is unlawful, because the said new bridge is so near the established and chartered bridge of your orators, as inevitably to reduce greatly the profits, and perhaps even destroy the value of the latter bridge, by drawing off and diverting the custom of passengers and produce, and yet no permission has been granted by the Legislature of South-Carolina, expressed by Act or otherwise, for the erection of any such new bridge; and that the penalty of five thousand dollars would be a very inadequate satisfaction for the injury which your orators will, in all probability, sustain from the violation of their said charter, which the said The City Council of Augusta have perpetrated as aforesaid.
    That during the life time of the said Henry Shultz, before the building of the new bridge was begun, and whilst the said The City Council of Augusta were advertising the public that proposals for the construction of the said new bridge were invited, and' would be'received by them — that is to say, in the month of August, A. D., Í850, the said Henry Shultz, by public advertisement, over his own signature, inserted in two of the daily papers published in the city of Augusta, gave to the said The City Council of Augusta formal notice of his rights under the said charter, granted by the State of South-Carolina to himself and your orator, McKinne, and forewarned them against carrying into execution their said contemplated enterprise; but the remonstrances and wáxnings of the said Shultz were utterly disregarded. And yoür orators further show unto your Honors, that your orators, Jones and Kennedy, before they proceeded to assert their rights, under their said charter, by the collection of tolls at the South-Carolina end of the said bridge, opened a communication with the said The City Council of Augusta, in the hope that by a sale and transfer to them of your orators’ interest in the said' bridge, or by some other proper arrangement, all disputes between them and your orators might be avoided, but the said The City Council of Augusta did not, nor would recognize your orators as having any property or interest whatever in the said bridge — all which actings and doings of the said The City Council of Augusta are contrary to equity and good conscience, and tend to the manifest injury of your orators. In tender consideration whereof, and forasmuch as your orators are without adequate remedy in the premises, save in this Honorable Court, where alone such matters are properly cognizable and relievable. To the end, therefore, that the said The City Council of Augusta may, upon oath, true, direct and perfect answer make to all and singular the matters and things herein-before set forth and alleged, and that as fully as though the same were here repeated, and they thereunto particularly interrogated, and in especial that the said The City Council of Augusta may set forth and exhibit the deeds of conveyance hereinbefore referred to from the said B. J. Earle to Samuel Hale, from Samuel Hale to The Bank of the State of Georgia, from the Bank of the State of Georgia to Gazaway B. Lamar, and from the said G. B. Lamar to the said The City Council of Augusta, and that the rights of your orators under their charter from the State of South-Carolina may be set up and asserted in respect to the tolls of the Augusta bridge, received by the said The City Council of Augusta since the 19th December, 1848, and that they may be required to discover and set forth the aggregate amount of such tolls received by them since the date last mentioned, and what proportion thereof has been received from persons passing from the South-Carolina to the Georgia end of the said bridge, and that they may be required to set forth and discover what was the amount of said tolls received by them from the 19th December, 1848, to the 19th December, 1849, and what the amount thereof received from the date last mentioned to the 13th October, 1851, and what the amount thereof received from the date last mentioned to the 3d February, 1852, and what the amount thereof received from the date last mentiohed to the coming in of their answer. And that an account may be taken of all and singular the said tolls so received by them since the 19th December, 1848, and that they may be ordered and decreed to pay to your orators such fair and equitable proportion thereof as your orators may appear to be justly entitled to, under their said charter, and that they may be adjudged to be entitled to receive and collect for passage over the Augusta bridge, from the South-Carolina to the Georgia bank, no more than one moiety of the tolls prescribed in the charter granted by the State of Georgiano The Bank of the State of Georgia in 1833, and that they may be restrained and enjoined from exacting and receiving, in future, any larger or greater proportion of such tolls ; and that they may also be restrained and enjoined from collecting and receiving tolls for passage over the said new bridge across the Savannah river, and that they may be constrained wholly to discontinue and abandon the use of the said new bridge, and that the same may be ordered to be closed and shut up, and from allowing any person or persons to use the same for passing or going to or from one bank of the said river to or towards the other side within the jurisdiction of the State of South-Carolina, and that such other and further relief may be extended to your orators as their case, upon the whole, may seem to require, and to equity may belong.
    May it please your Honors to grant to your orators not only your writ of injunction to restrain and prevent in future the said The City Council of Augusta, their servants, agents, bailiffs and attorneys, from exacting and receiving for passage over the Augusta bridge, from the South-Carolina to the Georgia end thereof, any larger or greater proportion than one moiety of the tolls prescribed by the charter granted by the State of Georgia to The Bank of the State of Georgia, as aforesaid, and from collecting or receiving any tolls whatever for passage over their said new bridge, and from using or allowing the same to be used by any person or persons whatever for passing from one bank or side of the said river to or towards the other and opposite bank or side thereof, within the jurisdiction of the State of South-Carolina, so that the same may be entirely and effectually closed and shut up, but also your writ of subpoena, &c.
    Notice having been published, in pursuance of an order made by the Commissioner, that the defendants demur, plead or answer to the bill within three months, the following plea was filed by the defendants:
    This defendant by protestation not confessing or acknowledging all or any of the matters and things in said complainants’ said bill mentioned, to be true, in such manner and form as the same are therein and- thereby set forth and alleged, doth plead to the jurisdiction of this Honorable Court, and says: That the defendant ought not to be required to plead unto the matters and things charged in said bill, and that this Court has no authority to decree thereon against this defendant; because this defendant, says, that this defendant is a Municipal Corporation, created by and existing in the State of Georgia, and is not and never has been within or resident or the State of South-Carolina. All which this defendant avers to be true, and pleads the same to the jurisdiction of this Honorable Court, and humbly demands the judgment of this Court, whether the defendant ought to be compelled to make any answer to the said bill of complaint, and humbly prays to be hence dismissed, &c.
    (Signed) The City Council of Augusta,
    By WM. E. BEARING, Mayor. '
    Dunicin, Ch. This cause was heard on the bill, and plea to . the jurisdiction submitted on behalf of the defendants. The counsel for the complainants declined to argue the question, and the Court is therefore unprepared to anticipate the views which they may have entertained.
    The general rule of this, as well as every other well regulated tribunal, is, that only parties resident are amenable to the jurisdiction of the Court. The exception to, the rule, both at Law and Equity, is, that absent persons, interested in property within the jurisdiction, may be subjected t<? the cognizance and decree of the Court in reference to such property. It seems at one time to have been supposed, that the Act of 1784, may have extended the jurisdiction of this Court in reference to persons residing beyond the limits of the State. But more than a quarter of a century ago, this Act was construed and explained in Winstanley vs. Savage, 2 McC. Ch. 435. It was there held, that the Act of 1784, “ was not meant to introduce so new and dangerous a principle as the one contended for. It merely meant to regulate the proceedings in cases where non-residents could be made amenable to the jurisdiction of the Court by holding property within it.” It is believed that this construction has not since been called in question, and the decision was fully recognized, and the rule re-affirmed in Garden vs. Hunt, Chev. Eq. 42.
    It is admitted that the defendants are non-residents, and the averment of the bill is, that they have no title to any part of the property in controversy within the State of South-Carolina. The principal relief sought by the bill is to have the defendants restrained and regulated in the collection of tolls, as they are now in the habit of collecting them on the Georgia side of the river. It was once said by a Lord Chancellor, “ I shall never make an order merely in terrorem which is to be effective only against the ignorant, or those who do not inquire into the extent of my jurisdiction. I shall make no order but such as every man is bound to obey on pain of contempt.” 12 Eng. C. C. R. 44. Now suppose this Court should enjoin Wm. E. Dealing, the defendant, from collecting toll, or restrain him from clemand-ing more than a certain amount, in what manner could the order be enforced, or how could the defendant be subjected to the penalties of contempt? The most stringent attachment would be mere brutum fulmen to a party beyond the reach of the arm of the Court.
    The bill prays an account of tolls heretofore collected on the Georgia side of the river; and, suppose a decree to be rendered against the defendant for an ascertained sum, what could it avail the plaintiffs in this State, against a defendant, who has neither person to be attached, nor property out of which it might be levied under the process of this Court? And if suit were instituted in Georgia, founded upon the decree, although the judgment would be conclusive upon every other matter, the question of jurisdiction is always open to inquiry, and this inquiry would be fatal to the efficacy of the whole proceeding, against a citizen of Georgia. Assuming then the averments of the bill to be true, the Court is of the opinion that the defendants are not amenable to the jurisdiction of this Court, and that the plea must be sustained, and the bill dismissed.
    It is so ordered and decreed.
    The plaintiffs appealed from the decree, and moved for its reversal upon the grounds :
    1. The decree is erroneous in assuming that the defendants have no property within the jurisdiction of the Court, as the bill contains a distinct averment of their being the owners of four lots or parcels of land in the Town of Hamburg, with a full description of the boundaries thereof, and a precise recital of the derivation of their title thereto.
    2. The “ principal relief” sought by the bill was to have an account of the tolls received by the defendants at the Augusta bridge since 19th Decémber, 1848, and an injunction against their collecting tolls at their new or upper bridge, or using or allowing to be 'used the latter bridge for passage across the river; and the decree errs in supposing the bill to be otherwise.
    3. The objection to the jurisdiction of the Court rests upon no sufficient grounds; and the defendants’ plea, it is respectfully submitted, ought to have been overruled.
    
      Bauskett, Cdrroll, for appellants,
    cited 7 Stat. 210; Kinloch & Phillips vs. Meyer, Sp. Eq. 427; Bowden vs. Sehatzell, Bail. Eq. 360 ; Story Confl. Laws § 549.
    
      Miller, Petigru, contra,
    cited Miller vs. Miller, 1 Bail. 242; 5 Geo. R. 83 ; Mitf. PI. 33; 1 Bl. Com. 60 ; 2 Thom. Coke, 18 ; 2 Bl. Com. 91.
   The opinion of the Court was delivered by

Dunkin', Ch.

It is true that the bill prays an account of tolls collected, since December, 1848, by the defendants, but this is consequent only upon the adjudication which the Court is prayed to make, that the defendants are entitled to receive, and collect, for passage over the Augusta bridge, no more than one moiety of the tolls prescribed by the Georgia charter of 1833; and to this intent the complainants pray a writ of injunction, to restrain and prevent in future the defendants from exacting and receiving, for passage over the Augusta bridge, from the South-Carolina to the Georgia end thereof, more than one moiety of the tolls prescribed by the charter of 1833, and. from collecting any tolls whatever on the new bridge, which they are charged to have erected at Mill-street, or from allowing the same to be used, “ so that the same may be entirely and effectually closed and shut up.”

At the hearing, the counsel for the complainants declined to argue the question arising on the plea to the jurisdiction, and the Court could only infer that the positions assumed were those which the counsel for the defendants had discussed, and upon these the judgment of the Court was pronounced.

It is now said, that it appears from the bill itself, that the defendants held property in the State of South-Carolina, an,d that it was intended to maintain the jurisdiction on that ground. It is by no means certain that any such averment is made in the bill. It is very certain it is not set forth as a ground upon which this Court should assume jurisdiction against the defendants, nor did the Court receive any intimation to that effect. The subject matter in controversy is the Augusta bridge, properly so called, and the newly erected bridge at Mill-street. The complainants rely on the Act of 1848, as vesting in them the bridge, and the exclusive right from Campbelltown Ferry above, to the Sand-bar Ferry below, Augusta, — by which Act (aver the complainants) they became invested, not merely with the franchise conferred thereby in respect to so much of the said bridge as is within the territorial limits of the State, but also with the full title, property and ownership in and to the material structure of that portion of the bridge.” In the narrative part of the bill it had been stated, that the abutment and landing of the bridge on the South-Carolina side of the river were upon parts of four lots of land in the town of Hamburg — -that Gaza-way B. Lamar, having a charter of the bridge from the State of South-Carolina, until 1848, and being also owner of these lots, on the 21st January, 1840, conveyed the charter and the lots to the defendants. The complainants then aver the re-charter to themselves in 1848, and thence insist on their exclusive right to restrain the defendants from interfering with their property or privileges. It may answer the purpose of an argument to say, that the defendants are averred to have property in South-Carolina ; but it has been, on another occasion, strenuously contended, that not only the franchise, but the structure of the bridge, including the abutments and landing, pass with the charter, and the proviso in the deed from Judge Earle, under whom defendants are alleged to derive title, was urged in support of the argument. What is then averred to be the property of the defendants within the State of South-Carolina, which is to give the Court cognizance of this cause ? Upon a strict examination, it may be they have a title to so much of the four lots as is not occupied by the abutment of the bridge and the landing. Of course, that is not the subject matter of controversy, but must be admitted to be the undisputed property of the defendants. Can this give the Court jurisdiction so as to authorize the impleading of the absent defendants, and the adjudication of their rights upon the matters presented ? It is in accordance with the first principle of justice that no person shall be condemned until he has been heard. And, as a general rule, no Court should pass on the rights of those not within their jurisdiction. To this rule there are exceptions, or rather qualifications, equally well recognised; some arising from the provisions of the statute law, and others from the practice of Courts. Among the latter are proceedings in Admiralty, which act in rem, and whose proceedings are conclusive upon the subject matter within their jurisdiction. Courts of Common Law entertain jurisdiction against an absent defendant by proceedings in attachment, under the custom of London or by statute. But it is well settled that the judgment in attachment has no effect beyond the property attached. “ If those goods, credits and effects are insufficient to satisfy the judgment, and the creditor should sue an action on that judgment, in the State where defendant resides, to obtain satisfaction, he must fail; because the defendant was not personally amenable to the jurisdiction of the Court rendering the judgment.” Such is the language of Chief Justice Parsons, in Bissell vs. Briggs, (9 Mass. R. 468.) See also Story Confl. Laws, § 549. We have also an Act of Assembly which authorizes proceedings where one of several executors is absent from the State ; and the Act of 1823 gives a remedy in case of the absence of one of several parties to a joint contract. But both Acts provide, that the interests of the absent party shall not be affected. The attachment Acts do not extend to Courts of Equity. But it has been the practice, both in England and in this country, to entertain suits in relation to property within the jurisdiction, although some of the parties interested in the subject matter reside beyond the jurisdiction of the Court. Mr. Mitford says: “ A suit may affect the rights of persons out of the jurisdiction of the Court, and consequently not compellable to appear in it. If they cannot be prevailed upon to make defence to the bill, yet? if there are other parties, the Court will, in some cases, proceed against those parties.” But if the absent parties are to be active in the performance of a decree, if they have rights wholly distinct from those of the other parties, the Court cannot proceed to a determination against them.” Mitf. PI. 33. This Court is in the familiar habit of entertaining proceedings in partition where a portion of the defendants are beyond the limits of the State. It has also, in' some instances, taken cognizance where the complainant has a plain legal demand against an absent defendant who has property in this State, but which, from its peculiar position, is not subject to the ordinary process of attachment. Such is the case of Kinloch & Phillips vs. Meyer, administrator, Spears’ Eq. 428, which was a proceeding against the administrator of an intestate and an absent distributee, to subject the interest of the latter to the payment of a debt; and so of the case of Bowden vs. Schatzell, Bail. Eq. 369. It cannot be supposed that in this case the complainants have a plain legal demand against the defendants, or any demand at law; much less is it averred that the property of the defendants in this State, whatever it may be, is not subject to a writ of attachment.

The complainants do not ask the aid of this Court to subject the defendants’ property in this State to the satisfaction of a claim, much less is it averred that such property is the subject matter of controversy. They claim certain exclusive rights to toll, &c. under the charter of 1848, and they ask the assistance of this Court in enforcing them against the absent defendants. As well might a bill be filecl in Georgia for a divorce against a defendant resident in Charleston, who happened to own a water lot in Augusta; or a Tennessean be impleaded in the Court of Equity of South-Carolina, for the specific performance of an agreement in relation to real estate in Chattanooga, because the complainant had been fortunate enough to find a bale of the defendant’s cotton in its transit through this State. There is avowedly no precedent for the proceedings of the complainants in this case, and they are equally without authority from the general principles usually recognised in well regulated tribunals.

It is ordered and decreed that the appeal be dismissed.

JohnstoN, DargaN and Wardlaw, CC., concurred.

Appeal dismissed.  