there was some evidence to that effect. Whether the jury were right in their conclusion we can not now consider, and we must assume the plaintiffs are such owners. That being so, what are their rights? Now, water is only publici juris in the sense pointed out by Mr. Baron Parke in Embrey v. Owen, that all may reasonably use it who have a right of access to it, and that they can only have a property in what they take possession of, and during the time of that possession only. Beyond that water can not be considered the subject of property, But there is also the right to have the flow of the water. From all time the law has been that owners of land upon the banks of a stream, or of land beneath the stream, or both, are riparian owners in the sense that they all have a right to the enjoyment of the stream which passes down its bed, to some extent and for certain purposes, and to have it flow in its accustomed course. In this case the learned judge has put a construction on the findings of the jury which, I think, having regard to the particular case, was right. The jury meant that the defendants had sensibly affected the flow of the water; but that for the practical purposes of the plaintiffs' business the plaintiffs have only suffered nominal damage, and I may discuss the case on that assumption. I will define shortly the rights of riparian owners, and before considering what the defendants have done, it is necessary to see whether a stranger can claim under a riparian owner. The position in which the defendants stand makes a considerable difference, if the law is rightly laid down in Miner v. Gilmour, because, according to Lord Kingsdown, a riparian owner above has some further power of interfering with a riparian owner below than a mere stranger who has no right to touch that which does not belong to him, or to interfere with the flow of the water. If the exposition of law by Lord Kingsdown is correct, a riparian owner may have some increased rights. [His lordship read the passage set out in the judgment of Mr. Justice Cave.] Now that proves that he thought that a riparian owner below could not complain of interference by the riparian owner above with the flow of the stream, if what he took was only for purposes of using the water for reasonable domestic purposes, and for the ordinary purposes of his land. If that was all, he must have thought that the riparian owner below would have to submit. I will assume that to be so for the purpose of argument. Then he says that, supposing the use by the riparian owner above is not for ordinary, but for extraordinary, purposes, other riparian owners, either above or below, have no right to interfere unless their rights are sensibly injured. I will assume the plaintiffs here must submit to a reasonable use by the riparian owner above for domestic purposes and for purposes of ordinary life, and also that manufacturing purposes are not, in a manufacturing country, extraordinary, but ordinary, uses, within the proposition of Lord Kingsdown. But then comes the greater question, whether the defendants are riparian owners so as to compel the plaintiffs to such an user by them, or whether they were mere strangers. They are not riparian owners in one sense, for they have not got any land upon the banks of the stream, nor have they got any right of possession of the soil through which the pipe runs. They have a right to lay pipes to the stream through the land belonging to some one who is a riparian owner. That being so, we come to this, whether the defendants can claim as if they were riparian owners within the meaning of the law which applies to rivers. That depends upon whether a riparian owner in the strict sense of the term can transfer his riparian rights, in respect of water, to a third person, without transferring to him the bank of the river as well. It is clear he can let a stranger come to the banks of the river, and he can also grant a stranger, as against himself, a right to take water. But the question is whether he can, by any grant of his own, convert a person who is a stranger into a riparian owner. In the case of The Stockport Waterworks Compaǹy v. Potter, the majority of the court thought that riparian rights are so much an incident of the property in the land upon the bank of the river, that riparian owners cannot part with their rights without parting with the land itself. I confess my impression is rather that Mr. Baron Bramwell was not right in that case, and case after case has spoken of the right as an incident of property, and attached to the enjoyment of the soil. I think, on the whole, the law will be found in favour of the judgment of the majority in The Stockport Waterworks Company v. Potter. But I pronounce no opinion on the point, because it seems to me the defendants have not had assigned to them any rights at all in the stream in the nature of riparian rights. They have a right, as against the grantor Scholfield, to go into his land and put down pipes up to the river, and that is a mere easement in the land. It may, perhaps, carry with it a license as against Scholfield to take the water, but I do not think it transfers to the defendants any of the riparian rights which he enjoys against the other riparian owners, but that it falls short of that. Assuming that, on the maxim ut res magis valeat quam pereat, the deed does carry with it a right as against Scholfield to tap the river, it does not carry any transfer of his right to tap the river as riparian owner, nor does it take the defendants out of the category of mere strangers. I think it was intended that the deed should stop short of that, because Scholfield might be willing to let the defendants take a transfer of what they might lawfully do on the river bank, without conferring on them anything in the nature of a grant, even if he could. I decide this case, therefore, on the following grounds,-first, that the plaintiffs were found by the jury to be riparian owners; secondly, that the plaintiffs' right to have the water flow in quantity and quality has been affected by the defendants, 1. APPELLATE PRACTICE-DISCRETION OF COURT BELOW. The defendant had excavated and projected a tunnel under the lot of plaintiff. The court found that the completion of the tunnel would not cause irreparable injury, nor any injury to said lot, and dissolved an injunction previously granted. Held, 1. The threatened injury is per se irreparable. 2. The dissolution of the injunction was a palpable error, or an abuse of discretion which the appellate court will correct. Cases of palpable error or abuse of discretion are excepted from the rule under which this court declined to interfere with the granting, refusing, continuing or dissolving of injunctions; and that rule applies more especially, if not exclusively, to preliminary injunctions. It does not apply to a case in which an injunction is continued or dissolved after trial and findings upon all the material issues. Richards v. Dower, S. C. Cal., July 31, 1883; 16 Ch. L. N., 1. 2. BANK-CLAIM AGAINST SHAREHOLDER-LIEN. There is no such thing as a common law lien on stocks in favor of a corporation for a debt due it by a shareholder. A bank, which is not a bank of issue, can not claim a lien on shares of one of its stockholders by way of set-off for an indebtedness of his to the bank, where there is not a special provision in its charter giving it that right. Merchants' Bank of Easton v. Shouse, S. C. Pa., April 16, 1883; 15 Lanc. Bar, 61. 3. COMMON CARRIERS-BILL OF LADING-INSURANCE ON GOODS CARRIED. A collision occurred on defendant's railroad and plaintiffs' goods were destroyed by fire caused by the collision. The bill of lading contained a provision that the carrier should have the full benefit of any insurance upon the goods. Plaintiffs received the full value of the goods from the insurance company. Held, that the railroad company was not liable to plaintiffs. Rintone v. New York Central, etc. R. Co., U. S. C. C., S. D. N. Y., Aug. 24, 1833; 16 Rep., 356. 4. CONTRACT-LEX LOCI CONTRACTUS-FORCE MAJEURE, UNDER ALGERIAN LAW. The plaintiffs, esparto merchants, carrying on busi ness in London, had made a contract in London with the defendants, a banking company, also carrying on business in London, whereby the defendants agreed to supply certain quantities of Algerian esparto from time to time to the plaintiffs in England, the esparto to be prepared in Algeria for transportation to England. Owing to military operations and other causes in Algeria, the defendants were prevented from performing their contract, and, as a defense to an action for breach, pleaded force majeure under the French Civil Code, the law prevailing in Algeria. Held, on demurrer, that, the parties being located in England and the contract having been made in England, as it did not appear that at the time of making the contract the parties contemplated the application of the Algerian law to the performance of any part of the contract, such a defense was bad according to English law and could not be sustained. Jacobs v. The Credit Lyonnais London Agency, Eng. H. Ct., Q. B. Div., July 2, 1883; 49 L. T. Rep., 39. 5. CONTRACT- PART PERFORMANCE - WAIVER OF BREACH. Appellee, in August, 1881, agreed to furnish appellant with 1,000,000 feet of lumber, at the rate of 150,000 feet per month. No lumber was furnished until November, when a consignment of 200,000 feet was sent to appellant, who received the same without objection that the previous installments had not been supplied. Held, by accepting the lumber thus furnished, appellant waived the time of performance. By taking possession of the lumber, the appellant also waived the production of the invoice and bill of lading provided for by the contract, and became liable to the appellee for the amount of lumber furnished. Ohio Falls Car Co. v. Menzies, S. C. Ind., Sept. 20, 1883. 6. CONTRACT-WARRANTY-CONSTRUCTION. Appellee bought a reaper of appellant under a contract that if the machine did not work well upon one day's trial the purchaser should give immediate notice to appellants' agents and allow sufficient time to send a person to put the machine in order, and that if it was not then made to work well the purchaser should have the right to return it. Appellee used the machine on June 30, and, it not working well, mailed a notice of the fact the next day to appellants' agents, and finished cutting his wheat that day. He did not use the machine any more, and the agents not offering to put the machine in order during the following week, the appellee returned it to the agents. Held, in an action to recover the price of the machine, that the contract did not require the purchaser to cease using the machine after one day's trial, or to keep any grain or grass of his own in which the machine might be tested, but only to give the proper notice to the agents and allow time for putting it in order. It does not appear from the facts that this was not done. Judgment affirmed. McCormick Harvesting Machine Co. v. Hays, S. C. Ind., Sept. 20, 1883. 7. CRIMINAL LAW-PARDON-HABEAS CORPUS. A prisoner can not, on habeas corpus, claim his release under a pardon granted on condition that he forthwith leave the State never to return, it appearing that he did not accept the pardon in good faith; that after his release from the penitentiary, and before his re-arrest, ample opportunity was given him to leave the State, which, instead of availing himself of, he abused. Ex parte Marks, S. C. Cal., July 24, 1883; 16 Ch. L. N. 2. The terms "fixtures and utensils' in a mortgage of goods, etc., in a country store, was properly held by the judge below to cover an iron safe, show cases, platform scales, trucks, copying press, chandeliers and a cheese case, which were in the store at the execution of the mortgage. The distinction between moveable and permanent fixtures is recognized by our code. Code, secs. 2281, 2220, 2219. Before a thing can become a part of the reality by merely annexing it, it is necessary that both the thing and the soil should belong to the same person. Herman on chattel mortgage, sec. 9. In this case the mortgagor was occupying rented premises and in this house the goods mortgaged were located and were so described. McCall v. Walter, S. C. Ga., Sept. 18, 1883. 9. INSURANCE, FIRE-SALE OF INSURED PREMISES. After the date of a contract for the sale of a house which was insured against fire, and before completion of the purchase, the house was damaged by fire, and the insurance company, in ignorance of the contract, paid the vendors for the damage done. The purchase was subsequently completed, the vendors receiving the full amount of the purchase money, and also retaining the moneys paid to them by the insurance company. In an action by the chairman of the insurance company to recover the amount paid by the company to the vendors: Held, (reversing the judgment of Chitty, J.). that the contract of insurance was a contract of insurance was a contract of indemnity only, and therefore the receipt of the purchase money by the defendants must be taken into account in calculating the amount of the loss sustained by the defendants, and, as it had the effect of extinguishing such loss, the plaintiff was entitled to recover. Castellain v. Preston, Eng. Ct. App.. March 12, 1883; 49 L. T. Rep. 29. 10. JURY TRIAL-COMMENT OF COUNSEL AS GROUND FOR NEW TRIAL. The introduction of matters foreign to the issue before the jury, in the opening statement of counsel, is improper, and should not be allowed by the court. Rickabus v. Gott, S. C. Mich., July 2, 1883; 4 Oh. L. J. 133. 11. LIMITATIONS-DISCOVERY OF FRAUD. The entry of satisfaction on a judgment, by the assignor of the bond which is secured by the judg ment, is an actual fraud upon the assignee of the bond. The statute of limitations in such cases runs from the time of the discovery of the fraud, and this rule is not altered by the fact that there may be no evidence of concealment, and that the means of discovery were open; for the assignee had no reason to suspect the fraud, and was not bound to examine the docket to see if it had been committed. The cause of the action, rather than its form, determines the applicability of the statute. Public records are constructive notice to everybody only as to such entries as are rightfully made. Mitchell v. Buffington, S. C. Pa., 15 Lanc. Bar, 62. ject, that doubt must be resolved in favor of the State; and it is only where the exemption is shown to be granted in terms clear and unequivocal, that the right of exemption can be maintained. If there be an investment for revenue, independent of or beside the actual corporate use of the building, that investment is legally liable to assessment. The statute only contemplates, in the exemption granted, such building or parts thereof as may be reasonably necessary for the corporate purposes of the institution or association; and any building or part of a building devoted to other purposes, and let to rent, should be taxed as other property in the State. All fair presumptions should be indulged in to support a correct assessment. City of Baltimore v. Grand Lodge A. F. & A. M., Md. Ct. App., April Term, 1883; Md. L. Rec., No. 4. QUERIES AND ANSWERS. [*** The attention of subscribers is directed to this department,as a means of mutual benefit. Answers to queries wil be thankfully received, and due credit given whenever request ed. To save trouble for the reader each query will be re peated whenever an answer to it is printed. The querie must be brief; long statements of facts of particular case must, for want of space, be invariably rejected. Anonymou communications are not requested. QUERIES. 70. Mrs. A sells her undivided half interest in a piece of land, joined by her husband, in an ordinary warranty deed. The husband owns the other undivided half. Does the husband become one of the warrantors, and will his individual estate be liable under an enforcement of the warranty? II. A. P. Abilene, Texas. QUERIES ANSWERED. Query 66. [17 Cent. L. J. 199.] A owns certain land, being all the property he has liable to execution. B recovers judgment against A, which judgment is filed and becomes a lien upon the land on July 1. C recovers judgment, which is filed Aug. 1. B obtains another judgment, which is filed Sept. 1. B issues execution under his last judgment, and the sheriff sells the land to B for the amount of his last judgment with costs, etc. Shortly after the land is again sold under an execution issued upon B's first judgment, and is again bid in by B. Query: Did the purchase by B under his last judgment (which was, of course, subject to C's lien), extinguish or merge the lien of B's first judgment? Did the second sale have the effect to extinguish C's lien? What did B acquire by his second purchase? In short, does C's lien still hold good, or is it wiped out? ONEIDA. Appleton, Wis. Answer. C, upon complying with the provisions of the statute, allowing junior lien holders to redeem lands of their judgment-debtor from sale under senior execution, may redeem from the sale under B's execution of July 1, in case A does not redeem. B, by his second sale, acquired the ownership in fee of the land, subject to the equity redemption in A and C. The second sale affected C's lien, in that it forces him to redeem or be cut out upon the expiration of the time for redemption, unless A redeem. There was no merger of B's first lien upon his purchase at the sale under his second judgment. Rev. Stats. 1849, ch. 102, and Rev. Stats. 1858, ch. 134. RECENT LEGAL LITERATURE. SEVENTY-SIX MISSOURI.-Reports of Cases Argued and Determined in the Supreme Court of the State of Missouri. Thomas K. Skinker, State Reporter, Vol. 76, Kansas City, 1883: Ramsey, Millett & Hudson. This volume contains cases decided at the October Term, 1882. The cases are carefully reported and well printed and bound. It may not be inappropriate to call the attention of our Missouri subscribers to the fact that the substance of these decisions, even the latest, was presented to the subscribers to the Missouri Addendum nearly six months ago. At this day the lawyer who means that his information shall keep upon the heels of his own Supreme Court should avail himself of all the appliances. AMERICAN DECISIONS. Containing Cases of General Value and Authority, Decided in the Courts of the Several States, from the Earliest Issue of the State Reports to the year 1869, Compiled and Annotated by A. C. Freeman. Vol. 46. San Francisco, 1883: A. L. Bancroft & Co. This latest volume of this excellent series, contains cases decided during the years 1845-246-'47 and '48. Among the topics exhaustively discussed in the frequent and learned notes in this volume are: Choses in Action in Wife's Name, Effect of Marriage during Continuance of prior valid Mariage, Writ of Error Coram Nobis, Action for use and Occupation, Judgments against Garnishees, Prevention of the Grant of Letters of Administration, Breaches of Official Bonds of Sheriffs and Constables, American Doctrine of Ancient Lights, Mortgage of after acquired Property. GENERAL LEGAL MISCELLANY. Court of Massachusetts, when the great and severe Chief Justice Shaw presided over that tribunal. "May it please your honors," said Mr. Newton, "I have the greatest respect for the opinions of this court, except-except in a few gross cases.” A story is told of Tom Marshall, of Kentucky, that hence spoke of a ruling on a certain trial as without parallel "since Pontius Pilate presided on the trial of Christ." This struck the judge as rather disrespectful, and he imposed a fine upon the lawyer, who protested against it most earnestly. "I confess, your honor," said Mr. Marshall, "I was a little hard on Pontius Pilate, but this is the first occasion in the history of Kentucky jurisprudence that to speak disrespectfully of Pontius Pilate has been declared contempt of court. Thus, bold and brilliant men relieve the ordinary toil of a laborious profession.-New York Sun. THE TALESMEN. He who has waited about the court-room during term time will recognize the follow lines. They were scribbled on a fragment of legal cap one day by an attorney while he lingered at the clerk's desk waiting for his case to come on: Who are they that perennial bloom, Who is it when the panel's ranks Who is it on election day, Ah! sweet their presence year by year, SHARP TALK TO JUDGES. One of the most effective thrusts in Judge Black's admirable argument before the electoral commission in the Florida case was suggested by a famous remark attributed to Chief Justice Marshall. "One of the gentleman who spoke yesterday," said Mr. Black, "repeated what had been said by Judge Marshall, and I am glad he did. We have heard it before, but it can not be told too often, for it contains a very wholesome moral. The judge said to a counselor who was addressing him that a judge of the Supreme Court was presumed to know something. I hope that no decision, which you may make in this case will repel that presumption." This is going very near the line where respect for a judicial tribunal ends and contempt of court begins. It reminds us of what Rejoice Newton, a well known member of the Worcester County bar, once said to the full bench of the Supreme Judicial NOTES The seventeenth annual term of the St. Louis Law School opens Oct. 17, 1883. There is no better law school than this, in the country. Mr. Hammond has acquired a national reputation as a law-writer and teacher. The other gentlemen of the faculty are men of deep learning and wide experience, engaged in active practice and are among the most eminent and brilliantly successful members of the St. Louis bar. The training, which the student is likely to receive at their hands is apt to present many points of practical superiority over the teaching of the mere law-professor. The course of study fits students for prac◄ tice in any State, The Central Law Journal. Chinese labor which experience had shown to ST. LOUIS, OCTOBER 5, 1883. CURRENT TOPICS. A conflict of authority has arisen between the Circuit Courts of the United States, sitting at Boston and San Francisco respectively, regarding the proper interpretation to be given to the treaty with. China and the Act of Congress, of May 6, 1882, known as the "Chinese Prohibitory Act," in cases which seem to be exactly similar in the facts and questions presented. In the Massachusetts case, Captain Douglass, of the British bark Irene, was charged with unlawfully bringing a "Chinese laborer" into this country in the person of Ah Shong, who came as a ship carpenter, and who, although Chinese in race, is a British subject. The defense was based upon the theory that the legislation in question was intended to exclude only subjects of the Empire of China, and could be extended to no others. The Court (Lowell and Nelson, J. J.) adopted this view in its opinion, saying: "The term 'Chinese laborers,' as used in the act, must have the same signification as when used in the treaty, and be held to mean subjects of the Government of China, to which the provisions of the treaty relate. For these reasons we are of the opinion that the inhibitions of the act are not to be construed as applying to persons of the Chinese race, who are not and never were subjects of, or residents within the Chinese Empire. As Ah Shong is a person of this description, the defendant cannot be guilty of a violation of the act and is, therefore, entitled to be discharged." In the California case the objectionable Chinaman, Pung Ah Lung, was also a British subject, having been born on the Island of Hong Kong after its cession to Great Britain. The Court (Field, Justice and Sawyer J.) differed from the view expressed in the Massachusetts case, and held that while the act of Congress in question was intended, certainly, to enforce the provisions of the stipulations of the supplementary treaty with China, that was not its sole object but that it went further and sought to free the laboring classes of the United States, from a competition with Vol. 17-No. 14. be peculiarly irritating and exasperating and in its ultimate effects upon the white laborer even degrading, that the peculiar physical characteristics and habits of the chinese laborers, their frugal habits and singular ability to live in the narrowest quarters without apparent injury to health, their contentment with the simplest fare, and above all the absence of the institution of the family, among them, gave them undue competitive advantages over the the white laborer, who demands, beyond the barest subsistence, the comforts of a home and the means for the support of a family and the education of children. For the purpose of preventing this ruinous competition, the act was passed, and provided for the return of the immigrant Chinese laborer, (who came in violation of the act) not to the Empire of China, but to "the country from whence he came." It is not our province to express any opinion as to the soundness of either of these opposing views. We cannot refrain, however, from observing how perfectly each of these courts, both able and both unquestionably pure, reflects in its judgment, the shade of surrounding local opinion. The fact that the ideas, feelings, and arguments the puplic mind of Boston, and of San Francisco, respectively, can find such perfect expression in the Federal courts sitting in those places, is an emphatic vindication of the wisdom of the framers of the constitution in providing for "one Supreme Court," so constituted as to be free from all local color in its decisions. ON THE DEGREES, OR KINDS, OF NEGLIGENCE IN OUR PRESENT AMERICAN LAW. I. Concerning the Degrees.-Negligence is the antithesis of diligence. It is an act of omission which signifies not only a want of care, but also an injury to a positive right.1 To be a ground of liability it must be either a violation of a duty imposed by law, or a breach of an obligation created by contract.2 It follows, therefore, that its existence, char 1 See an article, "Res Ipsa Loquitur," by Hon. S. D. Thompson, 10 Cent. L. J. 261. 2 Kahl v. Love, 37 N. J. L. 5; Providence, etc. R. Co. v., 2 R. I. 409; Dr. Wm. G. Hammond's Synopsis of Torts.j |