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view thus: "Every man is responsible criminally for what of wrong flows directly from his corrupt intentions; but no man intending wrong is responsible for an independent act of wrong committed by another. If one person sets in motion the physical power of another person, the former is criminally guilty for its results. If he contemplated the result, he is answerable, though it is produced in a manner he did not contemplate." 1 Bish. Crim. Law, § 641.

The result aimed at by the respondent was sexual intercourse between Reagan and his wife, and the evidence of it for his use in a divorce suit. His bargain with Reagan was to fix it so that he could catch Reagan "in bed with her, or aboard of her." He was not particular in his agreement how this was to be accomplished-whether by force or his wife's full consent. He stood by and saw the force used. It is evident he sanctioned it, and under the circumstances this sanction was an encouragement and assistance to Reagan. The result bargained for was obtained by his corrupt agreement in the first instance, and by his presence and sanction of the evil act. If he had not been present at all, I think he would have been guilty, as the result was desired and profited by, though it might have been accomplished by force when he intended it should be obtained without it. Not only was he present, but by his silence and passiveness when his wife was defending her honor, and his conduct when he rushed into the room and afterward, the irresistible conviction is forced upon my mind that the purpose of his agreement with Reagan, and the object of his presence in the house, was to obtain evidence of the sexual intercourse of his wife with another than himself, and that he cared not how such intercourse was obtained. I am reasoning now upon the evidence of the wife and Reagan; and if their testimony be true, of which I am not to judge, the respondent is guilty as charged, under every principle of law as well as morals.

The court correctly charged the jury that if they found beyond a reasonable doubt that there was an agreement between Chapman and Reagan that Reagan should be caught by Jerry Chapman in bed with Mrs. Chapman, or on board of her, as the witness Reagan puts it, and in pursuance of that agreement Reagan committed the crime of rape upon Mrs. Chapmau, and Jerry Chapman, the defendant, was present in an adjoining room, in pursuance of that agreement with the door partly open, and witnessed and sanctioned the act of rape when it was committed, then the defendant was guilty of rape."

[But the conviction was set aside on another ground.]

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upon an application for a summons against Alfred G. Vance, for "That he, the said Alfred G. Vance, did maliciously publish of her, the said Emma Vance, the following defamatory libel in the Daily Telegraph of the 14th November, 1885, viz.: "Mr. Alfred G. Vance, comedian and vocalist, in answer to an advertisement that appeared in last Tuesday's issue of this paper, informs his friends and the public that the person ad vertising is in no way related to himself or family;' meaning thereby that she, the said Emma Vance, was not his wife, and disparaging her in her reputation as a married, respectable woman, and tending to bring her into ridicule and contempt as a person who had lived with the said Alfred G. Vance under the pretense that she was his wife, whereas she was his mistress, and in no way related to him."

At the time of the publication of this alleged libel Emma Vance was, and still is, the wife of Alfred G. Vance.

Emma Vance tendered herself before the lord mayor to prove the publication of the alleged libel. The lord mayor refused to grant a summons, upon the ground that Emma Vance was the wife of Alfred G. Vance, and could not under the circumstances prosecute or give evidence against her husband.

W. Baugh Allen (Poland with him), for lord mayor, showed cause.

Crispe, in support of the rule.

SMITH, J. We are of opinion that this rule should be discharged. It cannot be doubted that by the law of England, before the passing of the Married Women's Property Acts in 1870, 1882 and 1884 (33 & 34 Vict., ch. 93; 45 & 46 Vict., ch. 75; aud 47 & 48 Vict., ch. 14), except in the cases hereinafter mentioned, a husband or wife could not take criminal proceedings against each other. From the earliest time it has been held that a feme covert was not guilty of felony in stealing her husband's goods, the reason being that husband and wife were considered but as one person in law. See 1 Hale P. C. 514. Upon the same principle it was held that a husband could not grant lands to a wife, for the maxim of the law was "that a husband and wife are one person" (Firebrass v. Pennant, 2 Wils. 254), and per Lush and Field, JJ., in Phillips v. Barnet, 34 L. T. Rep. (N. S.) 177; 1Q. B. Div. 440, 441.

It was also the law of England, before the passing of the Married Women's Property Acts, that a husband and wife in a criminal case (except as hereinafter mentioned, and in cases of high treason) could not give evidence for or against each other; and until the passing of the 16 & 17 Vict., ch. 83, could not have given evidence for or against each other, even in a civil suit. There were however exceptions recognized by the law to the above rule. The question for our determination is whether the present case, which is that of a wife seeking to prosecute her husband for a defamatory libel, comes within the exception or not. We are of opinion that the exceptions are confined to those cases in which person l injuries have been effected by violence or coercion by the husband upon the wife or wife upon the husband. See Phil. Ev. (10th ed.) 83. It is upon this ground that it has been held that a husband and wife, as the case may be, can prosecute and give evidence against each other in cases of batteries, assaults and other personal injury. This, as it appears to us, is the law laid down in Reeve v. Wood, 5 B. & S. 364. Upon this principle it is that the two cases of abduction (Reg. v. Yore, 1 Jebb & Symes, 563; and Reg. v. Wakefield, 2 Lew. C. C. 279) would seem to have been decided; for as pointed out by Crompton, J., in Reeve v. Wood, 5 B. & S. 364, there might have been considered to have been what was equivalent to an actual

personal injury to the woman herself in those cases. The following passage in the judgment of Blackburn, J., in the case of Phillips v. Barnet, is very apposite to the matter in hand. The learned judge there says: "There can be no doubt that if a wife receives bodily injury from the hands of her husband, he is liable to criminal proceedings for a felony or a misdemeanor, as the case may be; and in the case of an ordinary assault it is quite clear that the wife has a right for her protection to obtain articles of the peace against her husband."

In our judgment the exception only extends to the class of cases where bodily injury has been received by the wife or husband, as the case may be. No case has been cited at the bar, nor are we aware of any, in which the exception has ever been extended beyond that above enunciated; and it is worthy of remark, that if the law be as was contended by the applicant, no trace of authority to support her position can be adduced in her behalf. It was then argued however that even if the present case does not come within the present exception as the law stood before the passing of the Married Women's Property Act in 1870, yet it comes within the existing act of 1882, and that by virtue of the provisions of that act she was now enabled to prosecute her husband for a libel upon her reputation and credit. It was said that by section 12 of the act of 1882 it was enacted that every woman, whether married before or after the passing of the act, should have against her husband the same remedies and redress by way of criminal proceedings "for the protection and security of her own separate property, as if such property belonged to her as a feme sole;" and that the present criminal proceeding against her husband for libel was for the protection and security of her separate property, she being a vocalist.

wife criminally prosecute a husband or give evidence against him upon a prosecution for a personal libel upon herself. We therefore discharge this rule, with costs.

Solicitor for applicant, Heritage.

Solicitor for respondent, City Solicitor.

CONSTITUTIONAL LAW-MINING COAL-STAT-
UTE COMPELLING MEASUREMENT OF
COAL BY WEIGHT AS BASIS
OF WAGES.

SUPREME COURT OF ILLINOIS, JUNE 12, 1886.

MILLETT V. PEOPLE.*

A statute providing for the weighing of coal at the mines, requiring the owners and operators of mines to provide scales, and weigh all coal taken out, and make such weight the basis of wages, is unconstitutional.

APPEAL from St. Clair.

Wilderman & Hamill, for appellant.

George Hunt, Atty.-Gen., and R. D. W. Holden, State's Atty., for People.

SCHOLFIELD, J. The defendant was indicted and convicted of failing, as the agent of the owner of a certain coal mine, to cause to be furnished and placed upon the railroad track, adjacent to the coal mine, a track scale of standard measure, upon which to weigh the coal hoisted from the mine, as provided by section

It was argued before us, that it having been stated by 1 of "An act to provide for the weighing of coal at the

Brett, J., during the argument in the case of Summers v. City Bank, supra, under section 11 of the act of 1870 that a wife could sue her husband for a libel upon her in her trade, and therefore it necessarily followed that she could criminally prosecute him in a case like the present. It seems to use that the argument is wholly fallacious. First, we would point out that under section 12 of the act of 1882, which is the act now in force (it was equally so under section 11 of the act of 1870), proceedings, whether civil or criminal, can only be taken by wife against husband for the protection and security of her own separate estate. How can crimi nal proceedings for a personal libel be said to be for the protection and security of her own separate property? Libel on an individual is, and always has been, regarded as both a civil injury and a criminal offense. The person libelled may pursue his remedy for damages or prefer an indictment; he may both sue for damages and indict. It is ranked among criminal offenses because of its supposed tendency to arouse angry passions, provoke revenge, and thus endanger the public peace. See per Lush, J., Reg. v. Holbrook, 39 L. T. Rep. (N. S.) 530; 4 Q. B. Div. 46.

How can a prosecution for a libel, which is criminal only because of the tendency above pointed out, be said to be for the protection and security of the sepaarate estate? It seems to us impossible to so hold, even if it may hereafter be held (upon which we give no opinion) that an action for libel in a case like the present can be maintained by a wife against a husband. It seems to us moreover, looking at the complaint made, that it would be impossible to hold the separate estate, as contemplated by the statute, was ever here in jeopardy. What was damaged, if anything, was the fair fame of the applicant, and that, in our judgment, is not separate estate.

We are of opinion, for the reasons above stated, that neither as the law stood prior to 1870, nor since, can a

mine," approved June 14, 1883, and the several sections to amend sections 2, 3 and 4 of that act, approved June 29, 1885.

We held in Jones v. People, 110 Ill. 590, that it was competent to show, in defense of a person indicted under the same action, before the approval of the mandatory act of June 29, 1885, that at the time the act took effect, and long prior thereto, the corporation in that case owning and operating the coal mine had a contract with all the men employed to mine coal in that mine, during that period to receive as the wages for their labor from said coal company, the sum of 40 cents per box for each box of coal mined and taken from said mine; that all the persons employed in the mine to mine coal for said company had always been and were then perfectly satisfied to work under said contract; and that they did not want the coal taken from the mine weighed as a basis upon which to compute their wages, etc. It was, in considering this question, among other things, then said: "Although section 2 does provide that the weight determined by weighing on the scales furnished shall be considered the basis upon which the wages of persons mining coal shall be computed, we do not regard this as requiring in all contracts for the mining of coal the wages of the miners must be computed upon the basis of the weight of the coal mined. That would be a quite arbitrary provision seemingly an undue interference with men's rights of making contracts-and we cannot ascribe to the Legislature the making of such an enactment unless it be plainly declared, which is not done in this case."

"

The second section of the mandatory act, approved June 29, 1885, requires that all coal produced in this State shall be weighed on the scales, as provided in section 1 of the act approved June 14, 1883, and that a correct record of the same shall be kept in a well

7 N. E. Rep'r, 631.

bound book furnished by the owner, agent or operator of such mine for that purpose, by a competent person, at the expense of such owner, agent or operator; said record to be subject to the inspection (at all reasonable business hours) of the miner, operator, carrier, land-owner, adjacent land-owner, member of the bureau of labor statistics, mine inspectors, and all others interested.

Section 3 provides that it shall be lawful for the miners employed in any coal mine or colliery in this State to furnish a check-weigher at their own expense, whose duty it shall be to balance said scales, and see that the coal is properly weighed, and keep a correct account of the same, and for this purpose he shall have access at all times to the beam box of said scales while such weighing is being performed.

The fourth section provides that a fine, or fine and imprisonment, as prescribed, shall be enforced on any owner or agent operating a coal mine failing to comply with these provisions. Another section provides that all contracts for the mining of coal in which the weighing of the coal, as provided for in that act, shall be dispensed with, shall be null and void.

The court, at the instance of the people, instructed the jury that since the first day of July, 1885, the law prohibits the making of any contracts between the operators of the coal mines and the miners in which the weighing of coal, as provided by law, is sought to be avoided, and the court refused to instruct the jury that "if they believed from the evidence that the company for which the defendant is working does not sell nor offer to sell coal by weight at its mine at which defendant is employed, and that it has contracts with all the men employed in its mine to mine coal at 25 or 20 cents per box, then the jury should find the defendant not guilty." There was evidence before the jury on which to predicate this instruction.

The question is thus presented whether it is competent for the General Assembly to single out owners and operators of coal mines as a distinct class, and provide that they shall bear burdens not imposed on other owners of property or employers of laborers, and prohibit them from making contracts which it is competent for other owners of property or employers of laborers to make.

It is declared in section 2, article 2, of our Constitution, that "no person shall be deprived of life, liberty or property without due process of law." And section 13 of the same article provides that private property shall not be taken or damaged for public use without just compensation. The words "due process of law" in this connection are held to be synonymous with the words, "the law of the land" (Cooley Const. Lim. [1st ed.] pp. 352, 353), and this means general public law, binding upon all the members of the community, under all circumstances, and not partial or private laws affecting the rights of private individuals or classes of individuals. Janes v. Reynolds, 2 Tex. 251. See also Wynehamer V. People, 13 N. Y. 432; Vanzant v. Waddel, 2 Yerg. 269. "Every one," says Cooley (Const. Lim. [1st ed.] p. 391), "has a right to demand that he be governed by general rules; and a special statute that singles his case out as one to be regulated by a different law from that which is applied in all similar cases would not be legitimate legislation, but an arbitrary mandate, unrecognized in free government. Mr. Locke has said of those who make the laws: 'They are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough;' and this may justly be said to have become a maxim in the law by which may be tested the authority and binding force of legislative enactments."

And again the same authority says (p. 393): “The

doubt might also arise whether a regulation made for any one class of citizens, entirely arbitrary in its character, and restricting their rights, privileges or legal capacities in manner before unknown to the law, could be sustained. Distinctions in these respects should be based upon some reason which renders them important-like the want of capacity in infants and insane persons; but if the Legislature should undertake to provide that persons following some specified lawful trade or employment should not have capacity to make contracts or to receive conveyances, or to build such houses as others were allowed to erect, or in any other way to make such use of their property as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power, even if it did not come in conflict with express constitutional provisions. The man or the class forbidden the acquisition or enjoyment of property in the manner permitted to the community at large would be deprived of liberty in particulars of primary importance to his or their pursuit of happiness."

See also Budd v. State, 8 Humph. 483, where the sections of the act incorporating the Union Bank, which provided that if any of the officers, agents or servants of that bank should embezzle the funds of the bank, or make false entries, they should be guilty of felony, was held unconstitutional, because it did not apply generally to officers, agents or servants of banks committing like offenses; and Wally's Heirs v. Kennedy, 2 Yerg. 554, where an act authorizing the court to dişmiss Indian reservation cases, where prosecuted for the use of another, was held unconstitutional. In the last case the court said: "The rights of every individual must stand or fall by the same rule or law that governs every other member of the body politic or land under similar circumstances; and every partial or private law which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals or corporate bodies would be governed by one law; the mass of the community, and those who made the law, by another; whereas a like general law, affecting the whole community equally, could not have been passed."

On like principles also is People v. Marx, 99 N. Y. 377; S. C., 52 Am. Rep. 34.

What is there in the condition or situation of the laborer in the mine to disqualify him from contracting in regard to the price of his labor, or in regard to the mode of ascertaining the price? And why should the owner of the mine, or the agent in control of the mine, not be allowed to contract in respect to matters as to which all other property owners and agents may contract?

Undoubtedly if these sections fall within the police power, they may be maintained on that ground; but it is quite obvious that they do not. Their requirements have no tendency to insure the personal safety of the miner, or to protect his property or the property of others. They do not meet Dwarris' definition of police regulations. They do not have reference to the comfort, the safety or the welfare of society. Potter Dwar. Stat. 458.

In Austin v. Murray, 16 Pick. 121, it was said: "The law will not allow the rights of property to be invaded under the guise of a police regulation for the promotion of health, when it is manifest that such is not the object and purpose of the regulation." See also to like effect the language of Colt, J., in Watertown v. Mayo, 109 Mass. 315; S. C., 12 Am. Rep. 694, and the opinion of the court, and cases referred to, in Re Application of Jacobs, 98 N. Y. 109, et seq.; S. C., 50 Am. Rep. 636, and People v. Marx, supra.

But it is suggested in argument that one purpose of

the sections is to furnish needful information to the public. If that be so, then under section 13, article 2, supra, there must first be made compensation to the owner of the property thus to be devoted to public use; for it must be too apparent to need argument in its support that to compel the purchasing of scales and the employing of a person to use them, for the benefit of the public, is to appropriate the private property, i. e., the money which this will cost, to public use, Morse v. Stocker, 1 Allen, 150; State v. Glen, 7 Jones (Law), 321.

The main reliance of the counsel representing the State to sustain the ruling below seems however to be on the ground that mining for coal is affected with a public use, so that it may be regulated by law, like public warehouses, as held in Munn v. Illinois, 94 U.S. 113. It cannot be claimed that mining for coal was by common law affected with a public use, and therefore specially regulated by law, like the business of innkeepers, common carriers, millers, etc.; and in our opinion it is not, like the business of public warehousing, within the principle controlling such classes of business. The public are not compelled to resort to mine owners any more than they are compelled to resort to the owners of wood or turf, or even to the owners of grain, domestic animals, or to those owning any of the other ordinary necessaries or conveniences of life which form a part of the commerce of the country.

The owner of a coal mine is under no obligation to obtain a license from any public authority, and therefore when he choses to mine his coal he exercises no franchise. We are aware of no case wherein it has

been held that the owner or operator of a coal mine stands on a different footing, as respects the control and sale of his property, than the owner or operator of any other kind of property in general demand by the public. We are not unmindful that our Constitution, in section 29, article 4, enjoins legislation in the interest of miners; but this is solely as respects his personal safety-the enactment of police regulations to promote that end. It recognizes that the business is dangerous to life and health, but it nowhere intimates that there is any thing in it which disqualifies parties engaged in it from contracting as they may in regard to other matters, or that gives the public a use in it. There is also in section 5, article 13, a provision requiring railroad companies to permit connections to be made with their tracks, so that coal banks or coal yards may be reached; but the same provision also applies to consignees of grain, and it affects the duty of the carrier alone, for no duty or obligation is enjoined on the owner of the coal bank or coal yard in that respect.

We recognize fully the right of the General Assembly, subject to the paramount authority of Congress, to prescribe weights and measures, and to enforce their use in proper cases, but we do not think that the General Assembly has power to deny to persons in one kind of business the privilege to contract for labor, and to sell their products, without regard to weight, while at the same time allowing to persons in all other kinds of business this privilege; there being nothing in the business itself to distinguish it in this respect from any other kind of business. And we deny that the burden can be imposed on any corporation or individual, not acting under a license, or by virtue of a franchise, of buying property and hiring labor merely to furnish public statistics, unless upon due compensation to be made therefor.

So far as the owner or operator of a mine shall contract for the mining of coal or the selling of coal by weight, we see no objection to the statute as imposing upon him the duty of procuring scales for that purpose; but we do not think that he can be compelled to make

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A. McNichol and George A. Curran, for plaintiffs.
F. A. Pike, for defendant.

EMERY, J. There was evidence tending to establish the following as facts: In the St. Croix river, at Calais, is an island near the American shore. This island and the American shore for some distance above and below were formerly one estate. As early as 1810 dams and mills were built across from the shore to the island at the upper end. The title to this upper mill privilege afterward came to the defendant. In 1824 was the severance in the township. A conveyance was made of the land nearly opposite the lower end of the island, "with liberty to build a dam from the shore across to the island." The title to this lower privilege afterward came to the plaintiffs.

The owners of the upper privilege had from time to time, during the last forty years, deepened the channel leading to their mills by removing rocks, etc. They had also, for at least sixty years, maintained a sheer dam running from the upper end of the island up the river, sheering out into the river. This sheer dam and the deepening of the channel conducted more or less of the waters of the St. Croix toward the American shore and down inside the island, which water would otherwise have flowed past outside of the island. For many years, at least forty, there were several mills on the upper privilege, between the shore and the island,

which vented the water into the channel between the island and the shore. This flow of water down inside the island was the power for the mills upon the lower privilege. At the upper end of the island, upon the upper privilege, was also a mill, called the Franklin mill, which vented water into the main river outside the island. This water of course would not then flow to the lower mills.

In 1882 the defendants ceased using the inshore mills for a time, and diverted to the Franklin mill, and so down outside the island, the water that formerly flowed through the inshore mills, down inside the island to the plaintiffs' mills. For this diversion this action was brought, and the jury have found there was such a diversion of the water.

The defendant contended that the plaintiffs could only claim of right the natural flow of water, and could not acquire by user, however long continued, a legal right to the surplus or extra water artificially led artificial deepenings of the channel. The judge in efinto the channel by defendant's sheer dam, and by the fect instructed the jury that the plaintiffs were enti

*5 East. Rep'r, 816.

tled to all the water which naturally flowed in the channel between the island and the American shore, and which had been permitted to flow, and they had been accustomed to receive at the mills, and privilege through the series of years down to 1882. That series of years was admittedly more than twenty.

The defendant construed the language as meaning that the plaintiffs might be entitled to more than the natural flow of water; that they might become entitled by prescription to the flow of such water as had been artificially led into the channel. We think it may be construed to mean that the plaintiffs were entitled to only so much of the natural flow as had been permitted to flow, lessening rather than enlarging their rights. The defendant contended for a prescriptive right to divert the water from the plaintiffs, and if applied to that contention, the instruction was in their favor. But we will examine the instruction as construed by the defendant.

If the plaintiffs, by a user sufficiently long and continuous, could acquire a prescriptive right to the accustomed flow of the water thus artificially led into this channel, the instruction is admittedly correct; but the defendant contended that the water-course inside the island was in fact artificial, and that no prescriptive rights can be acquired therein.

The theory of prescriptive rights is that there was a grant made of them. It is presumed that what one has so long permitted another to enjoy, he has granted to him. It would seem that a grant of water easements could be as readily presumed as the grant of any other easements. Such easements are valuable. Important interests often depend upon them. They are the ordinary subjects of grants. The use of them are as permanent as in the case of many other easements. They can be as easily defined. There would seem to be no good reason for accepting them from the general rule as to prescriptive rights. If prescription is to obtain at all as a foundation of legal right, such a

purchasers built mills thereon, which have been propelled by water from the upper mills for half a century.

The English cases cited by the defendant will be found, upon examination, to be cases of artificial supply rather than of artificial channel. In other English cases the distinction is clearly made, and the same principles applied to artificial as to natural watercourses. See language of Pollock, C. B., in Wood v. Wand, supra, and Leeman, C. J., in Mayor v. Chadwick, supra. Baron Channell, in Nuttall v. Bracewell, L. R., 2 Exch. 1, tersely expresses the situation; hence when he says: "It is a natural flow or stream through an artificial channel." See also Ivimey v. Stocker, L. R., 1 Ch. App. 396.

The case of Lockwood Co. v. Lawrence, 77 Me. 297: S. C., 52 Am. Rep. 763; 1 East. Rep'r, 403; 32 Alb. L. J. 307, cited by the defendant, recognizes the doctrine that rights in the flow of water may be acquired by prescription. The rights contended for in that case however were not sustained by the evidence. In this case the evidence was for the jury. [Omitting a minor point.]

Motion and exceptions overruled.
Judgment on the verdict.

Peters, C. J., Danforth, Virgin, Foster and Haskell, JJ., concurred.

SHERIFF-APPOINTMENT OF SPECIAL DEPUTY - WANT OF SEAL.

NEW HAMPSHIRE SUPREME COURT, MARCH 12, 1886.

JEWELL V. GILBERT.

A person specially appointed by a sheriff to serve a writ, though his'appointment is not under seal, is an officer de facto for that purpose.

case as this would seem to be clearly within the prin- ASSUMPSIT. The plaintiff claimed a lien for sup

ciple.

We also think the case is within the authorities. In Belknap v. Trimble, 3 Paige, 577, Chancellor Walworth appositely said: "A proprietor at the head of a stream who has enlarged the natural flow of the waters, and has continued such change for more than twenty years, cannot afterward be permitted to restore it to its natural state, when it will have the effect to destroy the mills of other proprietors below, which have been erected with reference to such change in the natural flow of the stream."

In Delaney v. Boston, 2 Harr. 489, it was declared that one who has suffered water to flow through his land in a new, artificial channel for twenty years, cannot then divert it to the injuries of riparian proprietors above, who have enjoyed the benefit of its flowing in such artificial channel.

In Shepardson v. Perkins, 58 N. H. 354, the case last cited is quoted, and the principle applied in favor of mill-owners below on the artificial channel. See also in English cases, Wood v. Wand, 3 Ex. 777; Mayor v. Chadwick, 11 Adol. & El. 571.

The defendant urges that he cannot be obliged to keep up the sheer dam, and that all the extra flow is caused by his works. He insists he is not bound to maintain works to lead water to the plaintiffs' mills, and that what extra water he gathers in by his own labor and appliances he can use and set free in what direction is most convenient for him. This action however is not for neglect to keep up the dam, nor for refusing to gather water into the channel. The water, the diversion of which is complained of, had in fact come into the channel down as far as the upper mills. It will be recalled that the owners of the upper mills conveyed the land below for a mill privilege; that the

plies furnished the defendant toward hauling wood. The Grand Trunk Railway Company, as claimant of the wood, objected on the ground that a lien had not been secured by a valid attachment. The attachment was made by one whose appointment as a special deputy for the service and return of the writ was not under seal.

A. S. Twitchell, A. R. Evans, and A. L. Chamberlain, for plaintiff.

Drew, Jordan & Carpenter, for claimant.

*

DOE, C. J. "The de facto doctrine was introduced into the law, as a matter of policy and necessity, to protect the interests of the public and individuals, where interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. It was seen * * that the public could not reasonably be compelled to inquire into to the title of an officer, nor be compelled to show a title, and these became settled principles in the law. But to protect those who dealt with such officers when apparent incumbents of offices, under such apparent circumstances of reputation or color as would lead men to suppose they were legal officers, the law validated their acts, as to the public and third persons, on the ground that, as to them, although not officers de jure, they were officers in fact, whose acts public policy required should be considered valid." State v. Carroll, 38 Conn. 449, 467.

"Upon well-settled principles it would be inconsistent with the convenience and security of the public, and with a due regard to the rights of one acting in an official capacity under the color of and a belief in lawful authority to do so, that the validity of his acts as a justice should be disputed, or the legal effect of

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