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2. (Same.) The different situation of our country requires a different application of the rule from that which might be proper in England. Ib. 3. (Same.) It is not in Vermont waste to cut down wood or timber so as to fit the land for cultivation, provided this does not damage the inheritance, and is conformable to the rules of good husbandry; and this, even though the wood or timber so cut may be sold, or consumed off of the premises. Ib. WATER-COURSE. (Diversion of) A party may recover at law nominal damages for a diversion of a watercourse, where no actual damage has occurred, as a means of establishing and protecting his right. A fortiori, he may assert his right in equity by a writ of injunction. Webb v. Manufacturing Co., 3 Sumner, 189. 2. (Same.) No riparian proprietor or mill-owner has a right to divert or unreasonably retard the natural flow of water to the parties below ; and no proprietor or mill-owner below has a right to retard or throw it back upon the lands or mills above, to the prejudice of the right of the proprietors thereof. Ib. 3. (Same.) Where there is a mere fugitive and temporary diversion of water, without damage, and without pretence of right, a court of equity will not interfere, by way of injunction. Quatre, whether there would be any redress at law. lb. 4. (Same.) The plaintiffs and defendants were owners of different mills, in severalty, on the same mill-dam. The defendants opened a canal into the pond, at some distance above the dam, for a supply of water to work one of their mills, the water thus withdrawn being returned into the river immediately below the dam. Held, that both parties were entitled per my et per tout, to their proportions of the whole stream, on its arrival at the dam, and that neither party could divert any portion of it, though the portion diverted were a less quantity than he would naturally use at his mill on the dam. It will be no answer to such a violation of right by one party, that the other has increased the quantity of water in the stream by means of a reservoir higher
WILL. (Of non compos.) A person under guardianship as non compos mentis may make a will, if he is in fact of sound mind at the time of its execution. Breed v. Pratt, 18 Pickering, 115.
2. In the case of a will made by a person under guardianship as non compos mentis, appointing his guardian executor, and giving him a legacy, the executor is not estopped, by the fact of his guardianship, from showing that the testator, at the time of making his will, was of sound and disposing mind and memory. Ib.
3. (Same.) Under such circumstances the fact of the testator's being under guardianship is prima facie evidence of insanity and incapacity to make a will, and therefore it is incumbent on the executor to show, beyond a reasonable doubt, that the testator had both such mental capacity and such freedom of will and action as are requisite to render a will legally valid. Ib.
Forfeiture of wages for misconduct.
This was a suit by a mariner named Rendall, for wages alleged to be due to him for a voyage from Liverpool to the East Indies and back, occupying twenty-two months, at two pounds five shillings a month; but which, the owners alleged, he had forfeited by misconduct at St. Helena, on the homeward voyage. The libel admitted, that the mariner, while in a state of intoxication, had refused to assist in weighing the anchor, and had otherwise conducted himself in a mutinous manner; and on this ground, the admission of the libel was opposed. The Queen's Advocate and Nicholl, D., for the owners, Addams, D., for the mariner, cited the New Phoenix', and the Lady Campbell and Susan Hamilton, in the same volume.
Dr. LushingtoN. For the purpose of this question, I must take the facts as laid in the libel, which pleads that the mariner duly performed his duty during the voyage, save and except on a particular day, the 4th of November, when he refused to aid and assist in heaving the anchor, being in a state of intoxication, and persisted in that refusal for four or five hours, and that he otherwise conducted himself in a mutinous manner. The question I have to decide is, whether the whole of the wages earned during the voyage are forfeited in consequence of the facts so admitted.
There is no question as to the general law, which is laid down in all the books, and by repeated decisions, that drunkenness, disobedience of orders, insubordination, and mutiny, work a forfeiture of wages. But this is also laid down with some qualification; because lord Stowell has decided that it is not a single act of drunkenness, or a single act of insubordination, that will work a forfeiture of the whole wages. But it is material to see the distinction between cases of forfeiture of wages. An act of drunkenness merely is distinguished from a habit of drunkenness; drunkenness in port is distinguished from drunkenness during the voyage, for this reason, that the ship is not so liable to injury during the time she is in port, and there are opportunities for seamen to get intoxicated in port which it is very difficult for persons circumstanced as they are to resist. Disobedience of orders is a still more serious offence; insubordination goes still further; but mutiny is not only a disobedience of the orders of the master, but an endeavor by some overt act, to wrest his authority from him. It is impossible to prescribe the exact quantum of drunkenness that shall work a forfeiture of wages; and it is equally difficult to fix the precise amount of insubordination that shall lead to a like conclusion. Generally, I have no disposition to carry the relaxation beyond the limits which lord Stowell prescribed, or to make greater excuses for intoxication or insubordination than that noble and learned lord considered right for the interests of navigation.
I am disposed to think that, if the charge against the mariner be a single act of intoxication, and a refusal to obey orders whilst in a state of intoxication, looking to the previous decisions of my predecessors, I should not be justified in holding that it would amount to a forfeiture of wages. It has been urged that intoxication is no justification of another offence, and this proposition is true according to the law of England; but I recollect the observation of lord Stowell, that if an occasional act of intoxication would not deprive a mariner of his wages, conduct which is almost inseparable from intoxication (not amounting to mutiny) ought not to work such a forfeiture. But I am not sure that I understand the meaning of the words, “ or otherwise conducted himself in a mutinous manner.” If I am to understand by these words that he might have used disrespectful language to the master, there may be some excuse ; but if they mean threatening the master, using violent language to the master, and evincing a determination to resist his lawful authority, the conclusion to which I must arrive will be totally different. But I must take the libel as it stands, and I am bound not to extend its meaning beyond what appears on the face of it; and I understand that it is not intended to aver that the mariner was guilty of any thing approaching to mutiny, in the exact sense of the term : my sense of mutiny is, that it is not merely a disobedience of orders, or insubordination, but something of a higher grade ; a defiance and contempt of authority, and an expressed intention of setting that authority at nought. On the whole, I have come to the conclusion, not without considerable doubt, that I am bound to admit the libel; at the same time warning the party, that if his conduct shall amount to what I have endeavored to define as coming under the character of mutiny, I shall consider myself bound to refuse his claim. One of the principal grounds on which I admit the libel is on account of the misconduct taking place whilst the vessel was in port; for the distinction between conduct in port and on the high seas is of importance. I shall consider any act of this kind, whilst the vessel is at sea, however trifling, as of a serious character; but in port, according to the opinion of lord Stowell, a greater degree of indulgence ought to be allowed. The cause was argued on the 4th of June, by Addams D., and Robertson D., for the mariner; and by sir John Dodson, Q. A., and Nicholl D., for the owners. Dr. LushingtoN.—That the mariner did misconduct himself, and seriously too, during a part of the voyage, cannot be denied, for the fact is admitted in his own plea, and is substantiated by the evidence of his own witnesses. One offence only is alleged by him to have been committed; but I think I am bound to take into consideration the whole of the occurrences during this long voyage, and that I should not do justice if I were to restrict myself to a single isolated transaction. Before I consider the facts, it inay be expedient to advert briefly to the general principles by which the court must be guided ; although I fear it is impossible to lay down any rules so definite as to suit the circumstances of every case, or the great majority of cases. Lord Tenterden, in his learned treatise," refers to what fell from lord Stowell in the “Exeter,” who expresses himself to the effect, that any cause which will justify a master in discharging a seaman, during the voyage, will also deprive the seaman of his wages. In my judgment, this appears but a very infirm test, and one which cannot be uniformly adopted and acted upon with safety in transactions with seamen; for in case of disobedience of orders (presuming that the orders were proper), whether a master is justified in discharging a seaman or not during the voyage, must depend upon circumstances continually varying, and to a great degree not connected with the conduct of the mariner himself: for instance, the place where the disobedience occurred, whether at sea or in a British or in a foreign port, taking into consideration also the provisions of sir James Graham's act. The discharge of a seaman for an offence, therefore, can hardly be a test, unless the offence be so atrocious as to make the discharge of the offender absolutely necessary to the safety of the ship. The only rule which I can get to guide me is this, that the wages may be forfeited, not in cases of discharge for mere disobedience