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384 THE CASE.
be tacitly to sanction a wrong upon the public and the state; and
therefore it must be put a stop to for the future. For, this court,
not only can in no case pronounce a judgment against any right of
the state which appears upon the record; though not insisted on
by any one on its behalf; but, after having thus ascertained, that
neither of the litigating parties has any right, it devolves upon the
court, as a judicial duty, in all such cases to protect the interests
of the state, and the rights of the people, thus manifested by the
record, by all the means within its power, from injury, perversion,
or violation in any way whatever, (s)
Upon the whole, therefore, it is my opinion, that these public
wharves are no more liable to wharfage, than any one of the streets
of the city are subject to toll; that these public wharves, like the
public streets, are to be regulated by, and kept in repair at the
expense of the city alone; and that, for the purpose of protecting
the rights and interests of the public, each of these parties must be
prohibited from demanding and receiving wharfage or toll of any
description for the use of these public wharves.
Whereupon it is Decreed, that these three cases be and they are
hereby consolidated, deemed and taken as one case, under the
name and style of that which was first instituted. Decreed, that
this case be and the same is hereby dismissed without costs, as by
or against the widow and all the heirs or legal representatives of
Thomas McElderry, deceased. Decreed, that the said Cumberland
Dugan be and he is hereby perpetually prohibited and enjoined
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(s) Bex v. Leigh, 4 Burr, 2146; Penn v. Lord Baltimore, 1 Ves. 454; Barclay v.
Russell, 3 Ves. 436; Gray v. Chaplin, 3 Cond. Chan. Rep. 52; Attorney-General v.
Burridge, 6 Exch. Rep. 356; Bolder v. The Bank of England, 10 Ves. 354; Cockey
v. Smith, 3 H. & J. 26; Plummer v. Lane, 4 H. & McH. 72.
STALLINGS v. BROWN.—10th May, 1726.—CALVERT, Chancellor.—Upon a fall
hearing of the whole proceedings in relation to this cause, and upon mature consi-
deration thereupon had, it appears, that the defendant had no right to prosecute the
complaint at common law, for that the sole right is in the crown. Thereupon it is
Decreed, that the injunction prayed for in the bill be perpetual; and that the defen-
dant pay to the complainant all his costs and charges by him in the said cause laid
out and expended.—Chancery Proceedings, lib. S. R. No. I, fol, 129.
'When the rights of the crown, (the state,} were brought forward by the claimant,
in a way which it was impossible not to notice, the court was bound, as every court
would be, to take care that justice was done to them. The rights of the crown,
(the state,) are public rights, conferred not merely for private purposes, or for per-
sonal splendour, but for the public service, and to answer the great exigencies of
public interest, and claims of justice; as such, they demand the active protection of
every court, in which the occurrence of them is suggested to arise.—Per Sir Wil--
liam Scott; The Elsebe, 5 Robinson's Adm. Rep. 177.
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