- (1.) We think it clear that this suit will not lie. The plaintiff sues for obstructing a public road, without showing that he has sustained any particular inconvenience in consequence of that obstruction. If he can maintain this suit, any member of the public can do so, and the defendant may be ruined by innumerable actions by persons who have not sustained a farthing of damages. It is said that the plaintiff has a right to sue because he was one of the persons who dedicated the road to the public: but it is not because he gave the road to the public that he is necessarily entitled to be the guardian of the public, and to sue whenever there is any obstruction to the public, which causes him no inconvenience beyond that which is sustained by every other member of the public. Section 308 and the following sections of the Code of Criminal Procedure have provided for the removal of obstructions to thoroughfares. Section 310 says, that a person on whom an order is issued shall be bound to obey the same, or he may apply to the Magistrate by petition for an order for a jury to be appointed to try whether the order is reasonable and proper. But there is no such thing as a jury in a civil case in this country, and if the jurisdiction were to be taken away from the Magistrate and given to the Civil Court, the parties would be deprived of a right which the law has intended to give them of having a jury appointed to decide whether an order in such a case is reasonable or not. In this particular case, the jury have actually found that no injury to the public has resulted.
(2.) It is unnecessary to decide whether this action has been brought from malicious motives; but the first Court found that it was brought merely to annoy the defendant who had erected a new house on the spot. The decision of the lower appellate Court is reversed, and the decision of the first Court affirmed with costs in the lower appellate Court and the costs of this appeal.;