which not, will involve the courts in discussions where the personal experience of judges must have more influence than legal principles. In every such case the question of usage should be regarded as one of fact and not of law."

In Wayne County v. Waller, Pennsylvania Supreme Court, May 5, 1879, 8 Rep. 598, it was held that a county is not bound, in the absence of statutory provision, to pay the fees and expenses of counsel assigned by the court to defend a prisoner charged with crime. Counsel urged upon the court the following analogies: "The court may impose on the county the expense of boarding and lodging a jury. Commissioners v. Hall, 7 Watts, 290. And the county is liable for a post mortem examination ordered by the coroner; Allegheny v. Watt, 3 Barr, 462; for incidental expenses of the court; McCal mont v. Allegheny, 5 Casey, 417; for fuel for prisoners in jail; Richardson v. Clarion Co., 2 Harris, 200; and in none of these cases is the liability imposed by statute. Counsel assigned to the defense of poor prisoners have a right of action against the county for their fees. Reg. v. Fogarty, 5 Cox's C. C. 161; Blythe v. State, 4 Ind. 525; Dane Co. v. Swith, 13 Wis. 585; Hall v. Washington Co., 2 Greene, 473; Davis v. Linn Co., 24 Iowa, 508." But the court pronounce the obligation to defend prisoners gratuitously an incident of the office of counsellor. They say: "As to the officers, such service must be regarded as an incident of official position. They take and hold office cum onere. The hardship is greatest on the witnesses; but until otherwise provided for, it must be set to the account of the service which every one at times owes to the government under which he lives, and whose protection he enjoys. See Huntingdon County v. Commonwealth, 22 P. F. S. 80. It is very clear to us that the county was neither bound to furnish money nor reimburse the defendants in error for the amount expended by them in behalf of the prisoner, and we think it is equally manifest that it was under no legal obligation to compensate them for their professional services. They were officers of the court, and, like others, took their offices cum onere. One of these burdens, which custom has recognized, is the gratuitous service rendered to a poor prisoner at the suggestion of the court. While there is some force in the reasoning of the Iowa and Wisconsin courts, we adhere to the opposite view as according better with a practice which has been almost universal, and of such long standing as to have acquired the force of law. In this State we have always proceeded on the safe principle of requiring statutory authority — either in express terms or by necessary implication - for all such claims upon the public treasury. To hold that counsel appointed to defend insolvent prisoners may demand compensation from the county would be a departure from a time-honored custom to the contrary, and it is not difficult to foresee the mischief to which it would lead. It is far better to let such cases rest on the

foundation which has hitherto sustained them - human sympathy, and a just sense of professional obligation; no poverty-stricken prisoner is ever likely to suffer for want of necessary professional or pecuniary aid. It is but simple justice to the learned gentlemen who defend against this suit to say, that in their brief as well as orally they disclaimed any desire for remuneration beyond an amount sufficient to reimburse them for their actual cash outlay; but we find no warrant for sustaining their claim even to this extent."

In U. S. v. Buffalo Park, U. S. Circuit Court for the Northern District of New York, April 16, 1879, 8 Rep. 582, per Wallace, J., it was held that an act, imposing a tax upon the gross receipts of persons conducting any theater, musical entertainment, acrobatic sports, feats of horsemanship, or other shows open for pay to the public, does not authorize a tax upon an incorporated public driving park used for horse racing. The court say: "It is an exhibition of feats of horses and not of their riders, and therefore not within the statute as an exhibition of feats of horsemanship. If such an exhibition is included, it is because it is one of the other shows open to the public for pay within the meaning of the statute. The enumeration of the specific exhibitions indicates that those were the special subjects of legislative consideration. Some effect must be given to the general descriptive term, otherwise it would not have been employed. This is done by construing the general term to cover all other exhibitions of a similar kind to those which were present to the legislative contemplation, but not to include such as are not reasonably suggested by those specifically described. In the construction of statutes and of contracts, where general words of description follow particular ones, the general words are controlled and limited by the particular ones, so as to apply to subjects ejusdem generis. Thus in the case of Sandiman v. Breach, 7 B. & C. 96, the statute enacted that no tradesman, artificer, workman or laborer, or other person should do or exercise any worldly business or work of their ordinary calling upon the Lord's day, and it was held that stage drivers were not included in the term 'other persons.' The statute in question forms part of a comprehensive scheme of taxation, one feature of which is the taxation of the profits or income of business avocations. Among well-recognized business avocations is the management of many kinds of exhibitions. Other public exhibitions, although conducted for profit in exceptional instances, are not primarily conducted for this end. It is evident that this distinction was present in the minds of the Legislature. Fairs, industrial exhibitions, entertainments for charitable purposes, are all of them 'shows open to the public for pay,' but they are not named within the description of the exhibitions taxed; they are as much so, however, as are horse races, base ball matches, regattas, or various other shows which might have been subjected to tax."

The first impression which has been left on us is that Mr. Justice Curtis was peculiarly adapted for the office of judge, by his conservative nature. His whole life from earliest boyhood bore a judicial cast. To the strictly legal aspects of a question he subordinated all other interests, and for the enforcement of what he deemed the legal right he risked all personal considerations. So, we find him starting out in his professional career, at the age of 27, when he had been only two years at the Boston bar, by an argument in the case of the slave Mled, in favor of the then novel proposition, "that a citizen of a slave-holding State, who comes to Massachusetts | for a temporary purpose of business or pleasure, and brings his slave as a personal attendant on his journey, may restrain the slave for the purpose of carrying him out of Massachusetts and returning him to the domicile of his owner." The Supreme Court did not assent to this proposition, but his argument called for a careful judicial answer from the great Chief Justice Shaw. Commonwealth v. Aves, 18 Pick. 193. Then, on the other hand, we find him at the close of his judicial career, delivering the famous dissenting opinion in the Dred Scott case. These two extremes mark the honesty and independence of his character, while they show an intense conservatism, which would stand by old land-marks of law and policy, in spite of the progress of events. This legal conservatism was also illustrated by his opposition to codification. In 1836 he wrote to Mr. Ticknor: "Perhaps, however, there will be no common law when you come back; for among other wild theories with which the Legislature now in session are bitten is an idea of codifying the Common Law." (He wrote "common law" with capitals as above.) "You remember that the Statute Law" (but so he did "statute law," thus showing his impartiality) — " of the Commonwealth was undergoing revision when you left Massachusetts. Having got well through with that, the Legislature are so much encouraged that many of them imagine that the whole body of the law may now be reduced to a pocket volume, so that any man may carry about with him his own lawyer. It does not occur to them that a good system of law must be at the same time so extensive as to apply to and govern all the existing relations between men and society; so stable and fixed, in all important principles, as to furnish a certain guide; and so flexible as to be capable of adaptation to the ever-changing forms into which property is thrown by the unwearied enterprise and the all-absorbing love of gain which distinguish our people. With the exception of this scheme, I think matters are going on well in Massachusetts." Later in life he adhered to the same views of law reform. In 1851, as chairman of a

And we

commission to revise and reform the proceedings in civil courts of justice, he reported to the Legislature against most of the changes which have been regarded in this State and many others as ameliorations. In speaking of special pleading, in this report, he said: "No one can have understood this system without a profound admiration of it as a work of human genius, nor without perceiving that it is capable of accomplishing perfectly those objects of first-rate importance where facts are to be tried by a jury, the separation of the law from the fact, and the production of simple and exact issues, to be submitted to their appropriate tribunals." And yet he had the candor to say: "It has been rather a favorite saying with common lawyers that form is often substance. By this is meant more than that the safest way to secure substance is to observe an approved form; it is meant that form is so necessary that it is practically substance. And this is true to a great extent in special pleading. But surely it is a grave objection to the system. To attain the ends of pleading with the fewest possible merely technical rules is the desideratum. do not think the system of special pleading has arrived at it.” "The system of special pleading known to the common law seems to us not to have worked well in practice." As to evidence, he recommended the admission of interested persons as witnesses, not including parties, or the husband or wife of a party. Respecting the incompetency of persons convicted of crimes, to testify, he expressed some doubt, but made no decided recommendation. Respecting husband and wife he was very decided, without assigning any reasons, except, in regard to a husband calling a wife as a witness in his own behalf, he said it seemed objectionable, "not so much from the danger of perjury as from the effect of influences extremely adverse to the perception and recollection of the truth." As to the examination of parties in open court, his objection to their competency was the intellectual inequality between men; an objection which would apply as well to their advocates. He proposed, as a means of getting at the truth when within the exclusive knowledge of parties, interrogatories in writing to be answered on oath — a substitute for a bill of discovery.

man.

Perhaps it was his extraordinary judicial sense which deprived him of the forecast of the statesCertainly no man less appreciated the situation of our political affairs in 1861, and he was far behind the common people of the North in this regard. In his schemes of conciliation and in his skepticism of the gravity of the insurrection, he reminds us at this day of the old woman who tried to keep out the sea with her broom. So, too, while we must admire his legal intelligence and consistency in his opposition to the arbitrary arrests which occurred in that year, and the suspension of habeas corpus, yet we cannot but wonder at the tameness with which he would have subordinated the instinct and necessity of self-defense on the part of the government, in a tremendous and unprecedented emergency, to the strict legal rules of peaceful times. As Professor Parsons well said: "Judge

to prevent the flow of water between them, which they used till the construction of the present dam in the year 1856.

In February, 1856, the Legislature of the Territory of Minnesota incorporated the defendant, and authorized it to maintain the [then] present dams and sluices, and construct and maintain dams, canals and water sluices, erect mills, buildings or other structures for the purpose of manufacturing in any of its branches or improving any water- power owned or possessed by said company, "and may construct dams in the rapids above and below the Falls of St. Anthony, with side dams, sluices and all other improvements in the Mississippi river, upon the property owned, or to be owned, by said corporation, which may be necessary for the full enjoyment of the powers herein granted; provided, that nothing herein contained shall be so construed as to authorize said corporation to interfere with the rights or property of any other person or persons whatever." Subsequent to the passage of this act the present dam of defendants was constructed. The effect of this dam is to diminish, especially in low water, the amount of water which would naturally flow along the west bank of plaintiff's property. This bank is valuable for mill sites, the powers being furnished by the water flowing along the bank. The plaintiff's mill is propelled by this water. The river is not navigable in fact at the falls, nor at or near the premises in question, but is available and of great value for water-powers. The question in the case is as to the right of the defendant to maintain its dam in such a manner as to interfere with the flow of water, to the injury of plaintiff.

It is evident that defendant cannot, by virtue merely of its rights as riparian owner, stop the water which would naturally flow past the land of plaintiffs, so as to interfere with any use which they, as riparian owners, have the right to make of it.

The defendant makes, in substance, these propositions:

First. The Mississippi river is a navigable stream, the government owning the bed of the stream, and the owners of the banks owning only at furthest to lowwater mark.

Second. If there be any riparian rights in such a stream, they are such only as relate to or are connected with navigation, giving to the owner only means of access from his own land to the river for purposes of navigation.

Third. The exclusive right to any water-power is in the owner of the soil over which the stream flows - in this case the government-and in such power the owner of the banks has no property.

and the

Fourth. The government, by the act incorporating the defendant, vested in it the right to the waterpower, and the right to make it available by constructing such dams, etc.. as it might see fit; dam being lawful, the plaintiffs, who have no property in the water-power in the river opposite their land, cannot complain if the dam interrupts such power.

We shall consider first the proposition that the charter authorizes defendant to appropriate the waterpower as well opposite the plaintiff's property as opposite the defendant's. If the proviso we have quoted had been omitted, still it is not clear that a proper construction of the act would give defendant the authority claimed. A legislative grant is construed strictly; where two interpretations may reasonably be put upon it, that least favorable to the grantee must prevail. The intention of the Legislature to vest any right claimed must be clearly expressed or appear by necessary implication. Upon the language of the act (without the proviso) it may certainly be doubted the Legislature intended to give authority to defendant to construct dams, etc., except for improving any waterpower owned or possessed by said company. The pro

viso removes any doubt that might otherwise exist. It is: Nothing herein contained shall be so construed as to authorize said corporation to interfere with the rights or property of any other person or persons whatever." It may be suggested that the "rights or property" here mentioned were such as persons might possess as against the State, and with which the State had no power to interfere.

We do not intend to discuss the question whether riparian owners have rights in navigable waters absolute as against the State, and which the State cannot tako away without making compensation. That they have rights absolute as to every one unless the State is undoubted, and the proviso was inserted to save those rights. In Lyon v. Fishmongers' Co., 1 L. R. Ap. Cases, 662, the power conferred by the "Thames Conservancy Act on the "conservators of the Thames," were as full as the rights and privileges vested in this defendant by its charter, and the clause saving rights of others was 'any claim, privilege, franchise, exemption or immunity which any owner or occupier of any lands, tenements or hereditaments on the banks of the river, including the banks thereof, or of any aits or islands in the river is now by law entitled." This was held to protect the ordinary riparian rights of an owner on the banks.

It is now settled by the decisions of the court of last resort that under the acts of Congress providing for the survey and sale of the public lands, the patentees of lands bordering on the Mississippi river and its tributaries take only to the stream-at furthest to low-water mark-leaving the title to the bed of the stream below low-water mark in the government. These streams, below low-water mark, stand therefore in respect to the rights of the government and of individuals in them, the same as tidal rivers. The rights of riparian owners are the same in both.

Owners of lands bordering on navigable rivers and lakes those navigable in the common-law sense, aud those navigable under acts of Congress - have rights in respect to the waters of such rivers and lakes peculiar to such owners, and not possessed by others. Dutton v. Strong, 1 Black, 23; Schurmeir v. R. Co., 7 Wall. 272; Yates v. Milwaukee, 10 id. 497; Rose v. Groves, 5 Man. & G. 613; Duke of Buccleuch v. Metropolitan Board of Works, L. R., 5 H.L. 418; Metropolitan Board of Works v. McCarthy, L. R., 7 H. L. 243; Lyon v. Fishmongers' Co., 1 L. R. Ap. Cases, 662; Delaplaine v. R. Co., 42 Wis. 214; Brisbine v. St. Paul & Sioux City R. Co., 23 Minn. 114.

The case of Atlee v. Packet Co., 21 Wall. 393, does not deny this proposition. It decides that the riparian owner, as such, has no right to construct piers in the navigable portion of such a river, and is entirely consistent with Dutton v. Strong, ante, which affirmed the right to construct a pier or wharf out to the point of navigability.

No case or text-book that we have found has attempted to define or limit the uses which the riparian owner may make of navigable waters, as those waters are seldom capable of any use except for navigation. Whenever specific riparian rights have come in question they have generally been connected with navigation, such as the right to construct and maintain wharves and piers for access from the land to the water.

Other cases, like Schurmeir v. R. Co. and Brisbine v. St. P. & S. C. R. Co., have mentioned the right to construct wharves and piers, not to confine riparian rights to such structures, but to illustrate the proposition that the owner of the banks has peculiar rights in the stream.

There is a class of cases, among them Lansing v. Smith, 4 Wend. 9; People v. Tibbets, 19 N. Y. 523; Gilman v. Philadelphia, 3 Wall. 713, which hold that riparian rights in navigable waters are subordinate to

those of the State, and cannot in any manner interfere with the exercise of such public rights. These latter cases have no bearing on this, for here there is no attempt by the State to exercise the public power. There are several cases in which the courts, arguendo, have indicated that the owner of the bank may make any use of the water adjoining his land not inconsistent with the public right, nor in opposition to the State. The only statement of a foundation for such a right, that we can find, is in the opinion of Lord Selborn in Lyon v. Fishmongers' Co., where he says, "the rights of a riparian proprietor, so far as they relate to any natural stream, exist jure naturæ, because his land has by nature the advantage of being washed by the stream."

In The State v. Tibbets, it is said: "The riparian owner may undoubtedly use the water passing or adjoining his land for his own advantage, so long as he does not impede the navigation, in the absence of any counter-claim by the State as absolute proprietor." In Delaplaine v. C. & N. W. R. Co., "all the facilities which the location of his land with reference to the lake affords he has the right to enjoy for purposes of gain or pleasure." "These rights of user and exclusion are connected with the land itself, grow out of its location, and cannot be materially abridged or destroyed without inflicting an injury upon the owner which the law should redress." And in Canal Appraisers v. The People, 17 Wend. 571, Senator Tracy, in support of the right of the State to interfere with riparian rights without making compensation, said: "We may also take the case of the tide mills on Long Island, where the owners of the lands on the inlet of the sea possess an undoubted right to use the water for their private emoluments, and where the capability of availing themselves of this water-power may constitute the chief value of the adjacent lands."

Dutton v. Strong affirmed the right of a riparian owner in a navigable lake to build and maintain, for his own exclusive use and benefit, a pier into the lake as far as the point of navigability. The right to encroach upon the shallow water of the lake, by an exclusive appropriation even of the underlying soil, must rest upon the proposition that the riparian owner may make any use of the lake or river opposite his land not inconsistent with the public right. As it seems to us. none of these opinions state the right too strongly. If the right exists jure naturæ, because the land has, by nature, the advantage of being washed by the stream, it is impossible to see how any such distinction as defendant claims can be made as to the peculiar uses which the riparian owner may make of the waters.

The limit to the private right is imposed by the public right, and the private right exists up to the point beyond which it would be inconsistent with the public right.

remedy. To prevent such a wrong injunction is an appropriate remedy.

We can see no elements of estoppel in the case. The defendant has acted with full knowledge of all the facts, and as must be presumed, knowing the law controlling the rights of the parties. If it has mistaken its rights, there is nothing in the case to show that it was led into such mistake by the plaintiffs. There is sufficient evidence to sustain the finding of the court below upon the facts in the particular complained of. Judgment affirmed.

LIABILITY OF INNOCENT PARTY FOR FRAUD OF ANOTHER.

ENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, JUNE 10, 1879.

BABCOCK V. LAWSON.

Where of two innocent parties one must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud.

Plaintiffs had lent to D. D. & Sons their acceptances for £11,500, taking a memorandum in this form: "As security for the due fulfillment on our part of this undertaking, we have warehoused in your name sundry lots of flour, and in consideration of your delivering to us, or our order, said flour as sold, we further undertake to specifically pay you proceeds of all sales thereof immediately on their receipt. D. D. & Sons." This undertaking was renewed upon the acceptances falling due. Subsequently the defendants, in entire ignorance of the above facts, and believing the flour to be the property of D. D. & Sons, agreed to advance a sum of £2,500 on the security of the flour, but on the terms that they were to have absolute possession of the flour and to have power to sell it.

D. D. & Sons then fraudulently misrepresented to plaintiffs that they had found a purchaser for the flour and would hand over to them the amount received as the price; whereupon the plaintiffs were induced to part with the possession of the flour, and for that purpose gave a delivery order to D. D. & Sons. The defendants having obtained possession of the flour and sold it, this action was brought to recover its value. Held, that as the flour had been given up by the plaintiffs to D. D. & Sons conformably to the contract to sell as their own, the special property vested in the plaintiffs as pledgees, if any, was intentionally surrendered, and though such surrender might have been revoked as having been obtained by fraud so long as the goods remained in the hands of the pledgors, when once the property in them had been transferred for good consideration to a bona fide transferee, the latter acquired an indefeasible title. Held, also, that the plaintiffs, having put it in the power of D. D. & Sons to commit the fraud, must be the sufferers rather than the defendants, who were merely innocent transferees for value.

HIS was a special case, stated in an action brought

water to any useful purpose may be sustained by considerations of public policy. It is certainly for the interests of the public, that where the waters of a navigable stream may without interfering with the public right be put to some useful purpose, the right to so use them should exist.

We will state the rule at which we have arrived nearly in the language of the court in The People v. Tibbets: "The riparian owner may undoubtedly use for any purpose the water of a navigable stream passing or adjoining his land for his own advantage, so long as he does not impede the navigation, in the absence of any counter-claim by the State or United States as an absolute proprietor." The conclusion follows that as between these parties the plaintiffs have a right to the natural flow of the water past their land, and any interference with this flow to their injury is a wrong for which they are entitled to an appropriate

the value of certain flour.

The facts are fully set out in the judgment of the court.

T. H. James (Herschell, Q. C., with him), for plaintiffs, cited Halliday v. Holgate, 18 L. T. Rep. (N. S.) 656; L. R., 3 Ex. 299; Cundy v. Lindsay, 38 L. T. Rep. (N. S.) 573; L. R., 3 App. Cas. 459; Kingsford v. Merry, 28 L. T. Rep. (O. S.) 236; 1 H. & N. 503; Roberts v. Wyatt, 2 Taunt. 268; Hollins v. Fowler, 33 L. T. Rep. (N. S.) 73; L. R., 7 H. of L. Cas. 757.

Cohen, Q. C. (Warr with him), for defendants, cited Knights v. Wiffen, 23 L. T. Rep. (N. S.) 610; L. R., 5 Q. B. 660; Vickers v. Hertz, L. R., 2 Sc. App. 115; White v. Garden, 17 L. T. Rep. (O. S.) 64; 10 C. B. 919; Attenborough v. St. Katharine's Dock Co., 38 L. T. Rep. (N. S.) 404; L. R., 3 C. P. Div. 450; Pease v. Gloahec, 15 L. T. Rep. (N. S.) 6; L. R., 1 P. C. 219; Moyce v. Newing