Gunn 3. Gunn. p. 137) decided this case. The defendant pleaded a set-off, beginning in 1855 and ending in 1863, against plaintiff's account, beginning in 1868 and ending in 1869. Plaintiff urged the statutory bar of six years against defendant's account. Held, that upon the principle of the mutuality of the accounts, the statute did not begin to run against either side till the last item, which was in plaintiff's favor in 1869. In 1 Smith's Leading Cases (H. & W.'s notes), Truman vs. Fenton, it is held that, "When men deal with an express or implied agreement that what each sells or delivers shall, instead of giving rise to a demand payable at once, stand as a payment, or set-off, for what has been or may be received from the other, their liability will be limited to and depend upon the balance as finally disclosed, and the statute will not begin to run until the date of the last item." We forbear to make more extensive quotations. The rule here laid down, though disregarded by some courts, on the erroneous reasoning already discussed, stands supported by the great mass of authorities. See 35 Am. R., 501; 79 N. Y., 1; 20 Wend., 72; 9 Id., 125, 126; 6 Cow. N. Y., 195; 7 Wend., 322; 5 Johns. Chanc., 522,; 5 Cranch, 15; 3 Met., 216; 2 Mass., 217; 6 Pick., 364; 8 Id., 187; 1 Hill's S. C., 292; 12 Texas, 374, 420; 18 Ala., 274; 2 Port. (Ala.), 351; 19 Miss. (4 Bennet), 42; 20 Miss., 13; 20 Mo. Rep., 13; 2 Blackf., 340; 4 Sandf., 329; 2 I., 125-7; 1 Chit. Pr., 777; Peake's Cases, 121; 2 Esp. R., 569; 41 Ga, 44, 5S, 66, 49, 54, 190; Ford vs. Clark, 72 Ga., 760; Flournoy & Epping vs. Wooten, 71 Ga., 163. In the argument of counsel, much stress was laid upon the fact of a hiatus between the items of the account, in this, that from 1873 to 1876 there is no item on either side. Our reply to that is that no hiatus less than the period of limitations could, of itself, operate as a bar, or even effect or demonstrate an annulling of the implied understanding, Gunn vs. Gunn. that each party might continue to credit the other upon the view of an ultimate adjustment of accounts. On the question of fact, whether the parties had terminated that course of mutual dealing, we do not say that long gaps in the accounts might not furnish some argument to the jury, along with other circumstances tending to show the breaking up of such relations as mutual creditors. As to that, each case must stand on its own facts. It has also been declared to be an absurdity, that the plaintiff, by charging one or two additional items, and those small ones, after a three years' interruption of dealings, could be held to have drawn the whole account against the defendant so far forward as to be out of reach of the statute of limitations. It seemed to counsel to give the plaintiff an unfair advantage. To this view, we simply reply, that the defendant voluntarily so acted with the plaintiff, mutually borrowing and lending, as, in the opinion of the jury, to justify the implication of a treaty between them to deal with each other" on a basis of mutual confidence." This state of things being once established, the law and the jury presumed its continuance till some evidence of its termination by both or either. Defendant could have ended it any day by demanding a settlement, or plainly refusing so to deal any longer. But instead of taking steps to bring this mutual understanding to an end, it suited him better to take the benefit of plaintiff's reliance upon its continuance and obtain further loans. Such, at least, is the fair construction of the case, if we accept the jury's finding against his plea of payment or settle ment. We hold that either party could have paused at any item and demanded settlement of the existing balance. Such a demand could have been made in legal proceedings by suit. But so long as both parties saw fit not to move in the matter, there was no principle of law to break up the treaty, save the statute of limitations running from Butler ts. The Mayor, etc., of Thomasville et al. the last transaction between them until four years before suit. Let the judgment of the court below be affirmed. JACKSON, C. J., concurred, but furnished no written opinion. BLANDFORD, J., dissented, but furnished no written opinion. 74 570 108 690 74 570 f112 791 74 570 f113 965 74 570 118 104 74 570 125 628 74 570 f127 422 BUTLER VS. THE MAYOR, ETC., OF THOMASVILLE et al. 1. When a municipal corporation is proceeding to lay sewers and discharge filthy sewage upon the land of a property owner, which may probably cause injury to his health and sickness in his family, and where the nuisance is continuing and likely to be permanent, and the consequences are not barely possible, but to a reasonable degree certain, a court of equity may interfere to arrest such nuisance before it is completed. (a.) If a nuisance causes special damage to an individual in which the public do not participate, such special damage gives a right of action; and as an action may be brought for every day the nuisance continues, equity, which abhors a multiplicity of suits, will entertain jurisdiction, so as to do full and complete justice between the parties, and terminate the litigation. (b.) Especially will this be done where, as in the case of municipal (c.) This case differs from that of Powell vs. Foster, 59 Ga., 790. 2. There is no power or authority vested in the city of Thomasville, March 30, 1985. Municipal Corporations. Sewers. Nuisance. Dam Butler vs. The Mayor, etc., of Thomasville et al. ages. Injunction. Eminent Domain. Constitutional Law. Thomasville. Before Judge HANSELL. Thomas County. At Chambers. February 5, 1885. Butler filed his bill to enjoin the municipal authorities of Thomasville from laying a sewer, from which it was proposed to discharge and empty into a branch on his land the sewage of two large hotels and other buildings. He alleged that, upon hearing that the city proposed to lay such sewer and to make it the principal or main sewer for the city, he at once went before the mayor and council in meeting assembled, and by attorney and personally made known his objections to the laying of the sewer through his lands and the discharge of sewage into the branch thereon; that, notwithstanding his objections so made, and without any offer of compensation to him, the defendant was proceeding to lay the sewer through his land, intending to empty it as aforesaid; that for twenty years his family and stock have used the waters of the branch, the same having heretofore been pure, and the execution by the city of its wrongful and illegal purpose would pollute the waters and make them unfit for use by man or beast, and thus inflict upon him irreparable injury; that his residence was near and immediately west of the proposed lower terminus of the sewer, and the wind frequently blew steadily for days and weeks at a time from the east, and would carry to his residence from the discharge of the sewer noxious vapors and horrible odors that would greatly endanger the life and health of his family; that the land through which it was proposed to lay the sewer was within the corporate limits of the city and was valuable for building lots; that he had desired and intended to divide it into such lots and sell them, expecting to realize therefrom satisfactory prices; but that the laying of such sewer would render the land unfit for building purposes and destroy its value, leaving him without remedy for the injury sustained. Butler vs. The Mayor, etc., of Thomasville et al. On presentation of this bill, the chancellor granted an order restraining the defendants from prosecuting the work on the land of complainant until further order. At the hearing, complainant amended his bill, alleging that, notwithstanding service of it, and the restraining order, the defendants had prosecuted to completion the main sewer, and that connection of this with sewers from the hotels and other buildings was all that remained to be done to establish the nuisance sought to be enjoined; wherefore he prayed that the defendants be enjoined from permitting any connections to be made with the main sewer. The answer of defendants admitted the allegations of the bill as to ownership of land, locations and their purpose to lay the sewer, notwithstanding the objections and protests of complainant. It averred that the contract for laying the sewer was made before objection of complainant was known; that the objections were respectfully heard and patiently considered, and the complainant was then notified that they would proceed with the work as contemplated; that defendants were constrained to a determination to prosecute the work of laying the sewer by considerations of official duty; that the utmost care had been exercised in selecting a route and outlet for it; that the removal of filth from the city had become a necessity, and the means selected for this purpose were the most economical and efficacious, as shown by the opinions of experts and the results of surveys; that in laying the sewer, only suitable material had been used and only skillful labor employed; that the branch into which the sewer emptied was a constantly running stream and emptied into the Ochlocknee river three and a half miles from the city, and that the dangers apprehended by complainant were purely imaginary; that defendants had assured complainant that if the use of the sewer should become, in any manner, a nuisance, it would be extended through and beyond his field, but he would not consent to anything except an ex |