a nuisance injurious to health, and that they could declare nothing a nuisance which was not one at common law. This doctrine, I presume by fair interpretation of that decision, may be deduced from it, but no one will read it calmly now without thinking that our lamented and learned brother Olin rather over-stated the law when he said that such an act was beyond the power of Congress. But whether Congress has that power or not, we know that if they have not power to declare nuisances injurious to health, that they can have very little authority over municipal powers, because the police regulations of a densely inhabited city, its sanitary regulations and necessities, are of such importance that. that power must reside somewhere else than in the common law. We think it is a just conclusion that Congress may declare what is a nuisance injurious to health. But whether it can or not, there is no doubt of one thing, that the complaint in this case does describe a nuisance at common law, or what would constitute a nuisance at common law. It declares "that the Washington Gas Light Company, late of the county of Washington aforesaid, on the 21st day of July, in the year of 1883, and on divers other days between said day and the day of the filing of this information, in the District aforesaid, and in the city of Washington, near unto, in or upon divers public streets, and also near unto the dwelling houses of divers good citizens of the District of Columbia, to wit, on lot on corner," &c., describing the locality, "did then and there commit, create and maintain a nuisance injurious to health, consisting of crushing, grind-. ing and burning of shells, whereby noisome stenches and noxious gases arise and are generated, which is contrary to and in violation of," &c.

Well, now a condition of things from which arise noxious gases, noisome stenches, &c., what are they but nuisances, that the common law would take cognizance of? It appears to us that the argument on all the points against the power of the court to enforce these ordinances must fall. ve Mal

Then, in regard to the writ of certiorari. There is no doubt that where an inferior court is proceeding beyond or

without its jurisdiction, the writ of certiorari is the proper remedy, and the court appealed to in such a case for the writ will grant it, and will restrain such inferior court. This, however, will only arise on the question of jurisdiction, and not as to matters of form and procedure. We have, therefore, taken cognizance of this certiorari for the purpose of settling the question of jurisdiction.

Another question relating to the jurisdiction, is, granting that this law is valid, can it be enforced in the police court, when it has no jury by which a party can have his rights adjusted? I suppose that question is stare decisis with us. The right of trial by jury is secured by an appeal to this court, and that is a substantial compliance with the provision of the Constitution on that subject.

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Objections are taken to the complaint that there is no prayer for process, and that it does not allege notice. The 21st section of the ordinances is the one upon which this complaint is founded. It provides for the punishment of whoever shall continue any such nuisance, and who shall fail, after due notice from the board, to abate the same"; and it is declared that there is no allegation of notice in the complaint. It is also objected that the name or signature of the district attorney is printed in roman characters and not in writing. We think that these relate to mere matters of form and procedure, and are amendable. It would be very easy to pray process, and to allege want of notice. We ought not to encourage writs of certiorari for mere matters of form, and the courts do not. The old Supreme Court of New York was troubled with applications of this kind, and they finally decided broadly the doctrine that writs of certiorari should never issue, where there was a right of appeal, and the party could have a remedy in a superior court, unless the jurisdiction was called in question, or unless some specific reason was shown why the writ should issue, as that a party has lost his right of appeal through mistake or inadvertence, or something of that kind. So we do not think that we ought to pass upon these questions, and simply decide that a writ of

certiorari does not lie for such complaints as the objections which have just been mentioned.

Our conclusion upon the whole is, that this writ must be quashed or discharged, and that an order of procedendo must be entered in the case to return it to the police court for further proceedings.

J. A. EDMONSTON ET AL.

vs.

HENRY P. GILBERT ET AL.

LAW. No. 23,859.

Decided January 12, 1885.

The CHIEF JUSTICE and Justices MAC ARTHUR,

Cox and JAMES sitting.

1. A note consecutively endorsed by three persons, being dishonored, the holder notified by mail the last endorser, who lived in a different city, enclosing him at the same time two notices for delivery to the other endorsers, the last of whom resided in the same city with the holder of the note. These notices the endorser to whom they had been mailed immediately delivered to his next endorser, who, in turn, mailed, on the next day, to the first endorser, the notice intended for him.

Held, Sufficient to fix the liability of the first endorser.

2. The rule laid down in Morton vs. Cammack, Mac A. & Mackey, 22, that where the holder and endorser reside in the same city, notice of protest by mail is not sufficient, does not apply to a case where there are several endorsers some of whom live in another city.

STATEMENT OF THE CASE.

This action is brought upon a promissory note against the makers, (a partnership), Booth, Wemple & Smith, and also against one of the endorsers, Henry P. Gilbert, the appellant in this case. The drawers of the note interposed no defence; the endorser, however, insists that he is not liable upon the ground that due and proper notice of the presentment and dishonor of the note was not given him, and the legal sufficiency of the notice claimed to have been given, to charge the endorser, was the matter submitted to the court.

From the bill of exceptions and case stated, these facts appear:

1. That the Citizens' National Bank of Washington City D. C., was the holder of the note from and after the 12th or at least the the 13th day of June, 1882.

2. The note matured on the 16th of July, 1882; adding the days of grace, was positively payable on the 19th of July, 1882.

3. That the endorser, Gilbert, was well acquainted with the Citizens' National Bank and its officers, and they with him, and that he was a hardware merchant, had been in business for nineteen years in Washington, and had often done business with that bank.

4. That on the 21st of July, 1882, the National Farmers and Planters' Bank of Baltimore, Maryland, received from the Citizens' Bank, in a letter dated July 20, 1882, the note, together with notices of protest, for itself, the plaintiffs, and for defendant Gilbert.

5. That on the 21st of July, 1882, the Baltimore bank notified the plaintiffs and enclosed the notice for the other endorser (Gilbert) to them; that Blundon, one of the plaintiff's firm, on the same day enclosed the notice to the defendant, Gilbert, with a letter from himself in his own name, and this notice and letter were received by the defendant in his morning mail on the 22d of July, 1882.

6. That the endorser, Gilbert, received no other notice of the dishonor of the note than the letter from Blundon of the 21st of July, and the notice enclosed therein.

This was substantially the testimony given in the case. Whereupon the defendant prayed the court to instruct the jury:

1. That if the jury find from the whole evidence that the Citizens' National Bank of Washington was the party to whom the note in suit was sent for demand and payment, it thereby became and was the real holder of said note for giving and receiving notices in regard thereto; and if the jury shall further find that the said Citizens' National Bank was located and doing business in Washington, and defend

ant, Gilbert, was also, and had been for a long time previously a resident of, and doing business in the same place, and this was known to said bank, and that no other notice of dishonor of said note in suit was sent to the defendant than the one mailed from Baltimore, Md., on the 21st of July, 1882, then their verdict should be for the defendant.

2. That a notice of non-payment of a note, where the holder and endorser reside, and do business in the same locality or place, must be given to the endorser personally, or left at his place of abode or place of business, at least on the day after the dishonor of said note, to bind the enndorser.

3. That notice of non-payment of a note to the endorser when parties reside in the same town or place, is not sufficient to bind him when sent by mail.

The court refused to grant these prayers, but instructed the jury that upon the whole evidence, the defendant, Gilbert, was liable, and their verdict was so rendered.

BIRNEY & BIRNEY for plaintiff.

FRED W. JONES for defendant Gilbert.

It is submitted: 1st. That a want of proper notice is a complete defence on the part of an endorser; the doctrine which formerly obtained that he must be injured for want of notice having been exploded. Hill vs. Heap, 16 Eng. C. L. R., 435.

2d. That the Citizens' National Bank of Washington, D. C., being the real holder of the note before and at the date of its maturity, was the only proper party to give notice of the dishonor of the note to all endorsers. Worden vs. Nourse, 36 Vt., 756; Warren vs. Gilman, 5 Shepley, 360; Bank vs. Perkins, 7 Shepley, 292; Troy Bank vs. Capital Bank, 41 Barb.; Ogden vs. Dobbins, 2 Hall, 112; Bank vs. Fellows, 2 Foster (28 N. H.), 302; Smedes vs. Bank, 20 Johns., 379; Thompson vs. Bank, 3 Hill, S. C. (law), 77; Id., 1 Riley, S. C. (law), 81; Ib., 23 Am. Dec., 354.

3d. That where the holder and endorser both reside or do business in the same place, to bind or charge the endorser, notice must be given to him personally, or left at his place