Woods v. Nashua Manufacturing Co.

4 N.H. 527

Opinion

By the court.

It seems to be a good plea in abatement, that the remedy is misconceived by the plaintiff, although such a plea has been rarely used in modern times. 1 Chitty’s Pl. 442; Com. Dig. “ Abatement” G. 5; 1 Shower, 68, Wilkins v. Wilkins; 1 Tidd’s Practice, 583.

It is a well settled principle, that when the legislature authorizes an act, the necessary and natural consequence of which is damage to the property of another, and at tbe same time prescribes the particular mode in which the damage shall be ascertained and compensated, he who does the act cannot be liable as a wrong doer. 1 N. H. Rep. 339, Lebanon v. Olcott; 5 Pick. 292, W. W. M. Company v. Upham; 12 Mass. Rep. 466, Stevens v. Middlesex Canal; 2 Johns. 283; 11 Mass. Rep. 364, Stowell v. Flagg; 2 B. & C. 703, Boulton v. Crowtker; 6 Taunt. 29, Sutton v. Clarke; 4 D. & E. 794.

Judgment that the writ abate.