neighbor, to the substantial injury of the latter, how- the flow upon the opposite side, it follows that this ever beneficial it may be to his own lands, without must be permitted to some extent by all owning lands violating this elementary maxim of justice. There is upon the stream, or the right cannot be exercised by little or no difference in the authorities upon this any one of them. Such a rigid application of the prinsubject.

ciple of the maxim would materially impair the inter-
Thus, Angell, in his work on Water-courses, section ests of agriculture in some, if not all, of the most
333, says: "A riparian proprietor may in fact legally fertile valleys of the State, without any necessary re-
erect any work in order to prevent his lands being quirement on the part, if not to the detriment, of pri.
overflowed by any change of the natural state of the vate property. It is true, as a rule, that every invasion
river, and to prevent the old course of the river from of a private right imparts an injury for which the law
being altered." "But,” he adds, at section 334, “a will allow a recovery of nominal damages at least, for
riparian proprietor, for his greater convenience and the purpose of maintaining the right and preventing
benefit, has no right to build any thing which in times the wrong from ripening into a right by lapse of time.
of ordinary flood will throw the water on the grounds Tootle v. Clifton, supra; Sedg. Dam., chap. 2.
of another proprietor so as to overflow and injure As a rule, the infringement of a right can be deter-
them.” To this may be added what is said by Wood, mined without regard to the damages that may have
in his work on Nuisances, section 350: “While it is been occasioned; the injury and the damage being
true that a riparian owuer may erect bulwarks to pro- plainly separable. But this is not so plainly the case
tect his property from injury by the stream, yet they among riparian proprietors. They have a common
can only do this when it can be done without injury right in aud over the waters of the same stream, and
to others, either to an owner upon the opposite side the invasion of the individual right of one iu the sub-
of, or to those above or below him on the stream." ject of their common enjoyment cannot be determined
He then cites the case of Gerrish v. Clough, 48 N. H. until some act is done by another that is in excess of
9; S. C., 2 Am. Rep. 165, where the defendant had the common right of all in the same subject; 80 that
erected a break-water upon his bauk of the river to in such cases, before an action can be brought by one
protect it from injury by the water, but the effect of riparian proprietor against another for an infringe-
this was to throw the water against the plaintiff's ment of the former's right as such proprietor, he must
land, upon the opposite side, and in high water his show that he has been substantially daunaged by the
land was washed away, and the injury was held to be act of the latter. This was the rule applied to the
actionable. And so in Valley Ry. Co. v. Franz, 43 deepening of waters in stream by mill-dams, in the
Ohio St. 623, it was held by this court that “a railway cases of Cooper v. Hall, 5 Ohio, 320, and McElroy v.
company, like an individual, may, on its own land, Goble, 6 Ohio St. 187; and was applied, by analogy, to
lawfully cut a new channel for a stream of water, and the corruptivg of the air by smoke, in Gas-light Co. v.
turn the stream into such new channel, if thereby no Freelund, 12 Ohio St. 392. And we see no good reason
damage is caused to another; but when it so controls why it should not be applied, in cases like the present,
and directs the course of the stream, the water is when an embankment is constructed by one for the
thrown across the old channel, and against aud upon protection of his land upon a stream; all others own-
the land of another, and thereby causes damage to ing lands upon it having, for the same purpose, a like
such other, the company is liable for such damage." right, and the public having the same general interest

The difference arises as to surface water. In some in the encouragement of agriculture that it has in
of the States the rule of the civil, and in others of the mills. The principles of every enlightened system of
common, law prevails. The former requires each jurisprudence should be made to vary with circum-
tenement to submit to the couditions imposed on it by stances, and be so applied as to meet the wants and
nature, so that the owner of a lower tract cannot di- conditions of a people. It is with these qualifications
vert the water that flows to and upon his own from a that, as has been said, the common law has been
higher one, to the injury of the latter. This rule was adopted in this State.
recognized by this court in Butler v. Peck, 16 Ohio St. But the argument of the learned counsel for the de-
335, and was adopted as the rule of its decision in fendant, drawn from the interest of agriculture, goes
Tootle v. Clifton, 22 Ohio St. 247; S. C., 10 Am. Rep. too far when, as he seems to claim, one private owner
782. The civil law acts upon the maxim that water is upon a stream may, for his own benefit, erect an em-
descendible by nature, and that its usual flow should bankment that will cause its water, in times of ordi-
not be interfered with, so that its burder, if it be one, nary floods, to overflow and destroy the lands of his
sbould be borne by the land where it naturally flows, neighbor. Unless this right to erect an embankment
rather than by land where it can only be made to flow be limited, as above stated, what limit could be set to
by artificial means. The common law does not recog- the exercise of a similar right in any other case? The
nize this principle as to surface water, but permits any right of private property, so carefully guarded in the
one to protect his own premises from it as he may fundamental law against public encroachment, might
choose to do, without becoming liable to others in- be wholly destroyed by that of individuals. If the
jured thereby; or more properly, it does not regard it | general interests of agriculture require the taking of
as an injury to do so, whatever inconvenience or loss private property for the construction of levees, there
may result to others therefrom. It is not necessary, is ample power in the legislature to authorize this to
as we have said, to discuss the merits of either system be done by some general statute making provision for
in this case, as the injury complained of does not arise compensation to owners for damages sustained. But
from an interference with the flow of surface water as the effect of a certain embankment acting upon the

The maxim of the civil law, aqua currit et debet cur- waters of a stream, when at its flood, cannot be known
rere ut currere solebat, applies generally to running with certainty by a man of ordinary knowledge and
water in the common, as well as in the civil law, sub- skill until the experiment has been made, it must fol.
ject to such reasonable qualifications as the interests low, that where a proprietor constructs an embank.
of agriculture require and the enjoyment of private ment for the benefit of his own land, he should not be
property will permit. Parkley v. Wilcox, 86 N. Y. 140. held liable for its unforeseen results to his neighbor, if
As each owner has the right to protect his own lands at the time be constructed it he exercised the care and
from the violence of the current, or to improve the

skill of an ordinarily skillful and intelligent man. It same, by the erection of embankments, and as a rule, was upon this principle that the case of Railway Co. v. this cannot be done without increasing to some extent Carr, 38 Ohio St. 448; S. C., 43 Am. Rep. 428, was de

cided. The duty however of a land-owner upon a RUGER, C. J. The facts thus presented are that
river, in making chauges thereon for his own benefit, Masterton & Co. were the legal depositaries of the
to exercise reasonable care and caution not to injure moneys of the county of Westchester, applicable to
others, "both in the inception and execution of the the redemption of its bonded indebtedness, and be-
work," and his liability to the party injured for his fore November 1, 1884, had been put in funds by de-
omission to do so, is fully recoguized in the first two fendant, its county treasurer, to redeem the coupons
propositions of the syllabus.

for interest on its debt maturing on that day.
After however the occurrence of an ordinary flood The relator held such coupons to the amount of up-
has shown the tendency of the embankment at such ward of $500, and on November 6, 1884, presented them
times to occasion injury to an adjacent proprietor, and to Masterton & Co.for payment, and upon being inter-
that its effect, at each recurring flood, will be to cause rogated as to the manner of payment, stated that it
additional injury, the duty on his part at once arises wished a draft for the amount. Thereupon Master-
to obviate the cause of injury; and if he fails to do so ton & Co. delivered to the relator their sight draft
his liability from such time must, upon principle, bo upon the National City Bank of New York for the
the same as it would have been could he have foreseen amount thereof, and it surrendered to Masterson &
tbe result in the first instance. He cannot, by the ex- Co. its coupons, which were immediately charged to
ercise of care and diligence in the first instance, ac- the defendant's account as paid, and the coupons were
quire the right to continue a nuisance to the lands of afterward delivered to the county treasurer. At the
his neighbor. Care and diligence in constructing the time of this transaction Mastertou & Co. had on hand
embankment can only exonerate the party building it cash sufficient to pay the amount of such coupons,and
from such damages as were unforeseen at the time. would have paid them in currency but for the election
The liability that may arise from a continuance of the of the relator to take the amount in a draft. The
cause of injury, after its character becomes apparent, draft was presented by the relator to the National
was not presented in Railway Co. v. Carr, supra, as City Bank some time in November thereafter, and

had been occasioned to the crops of the plaintiff below Masterton & Co. having failed in the meantime. The
at the flood of August 1, 1875.

fact was made public ou the 8th, although Masterton
As to whether the plaintiff is outitled to relief upon & Co. were insolvent on the 6th, and remained so until
his second cause of action, it is sufficient to say that

after the draft was presented.
in a proper case, on a final hearing, a decree may be Upon these facts the relator applied for a peremp-
entered for the abatement of a nuisance, but it neces- tory mandamus against the county treasurer requiring
sarily depends upon a variety of circumstances whether him to pay the coupons.
such a decree will be entered. In the first place, equity

The defendant alleges that he had no money in bis
requires that the plaintiff shall have acted with hauds with which to pay them and no means of rais-
promptness in objecting, and in taking steps to enforce ing the amount from the tax payers of the county by
his objections, upon receiving notice of the defendant's virtue of any statutory authority.
structures and erections which are sought to be abated, The remedy sought is of doubtful propriety in its
if the circumstances are such that the defendant would application to the circumstances related, and it might
be unnecessarily prejudiced by the plaintitt's delay;

well be said that payment of the general indebtedness
and the injury must be of a substantial and perma-

of a county cannot be enforced by the punishment of
neut nature, and not capable of an adequate compen-

its financial officers; but as we are of the opinion that
sation in damages. 3 Pom. Eq. Jur., $ 1359. It is suffi- the relator has not shown a case entitling him to re-
cient however in this regard, that the damages are of cover upon the merits we prefer to dispose of the ap-
such constant and frequent recurrence that no ade- peal upon that ground.
quate compensation can be made hereby. Wood,

The claim of the relator is that the loss occasioned
Nuis., $778.

by the insolvency of Masterton & Co. shall be im-
Judgment of the District and of the Common Plens

posed upon the defendant and enforced by the com-
Court reversed, and cause remanded to the Circuit pulsory process of the court.
Court, with directions to overrule the denurrer to the

It is evident that this loss resulted from the volun-
amended petition, and for further proceedings.

tary action of the relator in accepting a draft instead
of money for the obligatious of the county then sur.
rendered, and that it thereby intended to discharge its

claim upon the county and to accept in lieu thereof
PAYMENT_ACCEPTING DRAFT OF THIRD PER-

the responsibility of Masterton & Co. This is the SONS-FAILURE OF DRAWER.

plain meaning of the transaction as evidenced by the

unequivocal acts of the parties, and it cannot be ob-
NEW YORK COURT OF APPEALS, JUNE 1, 1886. scured by supposed analogies to other situations.

Masterton & Co. were the speciel agents of the county
PEOPLE V. CROMWELL.

to pay their coupons as a bank is the agent of his de

positor to pay his check. If upon presentation such When a county places funds in the hands of a depositary to

agent or bank should refuse payment the debt remains pay interest on its bonds, and a bondholder, at his own

uapaid, but if the creditor accepts any thing other request, accepts the depositary's draft drawn upon a

than legal currency in payment the debt is disthird party instead of the money, and surrenders up the

charged. Crawford v. West Side Bank, 100 N. Y. 50; coupons, and the draft is not paid, owing to the subse.

S. C., 53 Am. Rep. 152. quent failure of the depositary, the loss falls upon the

The authority of the depositary is simple and lim. bondholder, and the county is released from any further

ited to the act of making payment, and if the creditor liability on account thereof.

goes further and deals with it for any other transacPPEAL from an order of the General Term, Sec

tion than that of receiving payment, he does so upou ond Department, reversing an order of the Spec- his own responsibility, and must bear the consequent ial Term. The opiniou states the case.

loss, if any, of such a transaction,

The surrender of the possession of the coupons by
Isaac N. Mills, for respondent.

the relator was inconsistent with the expectation of
Wilson Brown, Jr., for appellant.

any continuance of liability on the part of the county [Omitting minor point.]

thereon, as it was beyond the power of Mastertou &

A"

Co. to authorize such ar expectation. The county refused. The maker having in the meanwhile become
had provided the funds for the payment of its indebt- insolvent, it was held that the plaintiff had by his
edness, and if the creditor accepted any thing else than laches released the drawers of the draft from liability
cash for its obligations be was at liberty to do it, but to him, and constituted the makers of the check his
acted ou his owu responsibility in so doing. The en- debtors for the amount. The transaction there was
tire scope of the agency of Masterton & Co. was to pay directly between the debtor and creditor, and although
out the moneys of the county to its creditors in the in that regard much more favorable to the claims of
amounts, to the persons and at the time specified in the creditor than here, yet it was held that the cred-
its obligations, and outside of the performance of the itor had lost his remedy against the debtor, although
duty they had no power to bind or affect the county. he had received the check of oue of the parties to the
The limitations upon their authority arose from this draft in payment thereof.
pature of the business they were authorized by stat- The case here presented is also clearly distinguish-
ute to transact, and were obvious to all who had finan. able from those arising directly between the debtor
cial dealings with the county.

and creditor. In those cases there is no question as By the transaction considered the relator author- to the power of the debtor to authorize the continuized Masterton & Co. to immediately appropriate to ance of its original liability, and in any transaction their own use the funds provided by the county to pay having in view the payment of his obligation, it is rethe coupons, and when they were afterward delivered quired that it should be actually paid in order to disto the county Masterton & Co. became entitled to a charge it, or that something shall be received by the credit therefor in their accounts. It was thus placed

creditor from the debtor under the express agreement beyond the power of the county to reclaim those funds that it shall operate as payment. or hold the boudsmen of Masterton & Co. liable for The case of Turner v. Bank of Fox Lake, 3 Keyes, default of their principal. Masterton & Co. were not 425, also cited by the relator, is not an authority in its parties to the obligations presented, and their debt favor. There the creditor sued upon a bill of exchange was the obligation of a third person, accepted in ex- of which he had possession, but which had been rechange for the coupons surrendered. The defendant claimed by him after having been once surrendered in had no authority over the transaction, and it was be- exchange for the check of the drawee.

After payyond his power to influence or prevent it.

ment of the check had been refused, the holder reThere is little analogy between this case and that of turned it to the drawee and received possession of the Indig v. Nat. City Bank, 80 N. Y. 100, cited by the re- bill, and caused it to be duly protested for non-paylator and apparently much relied on. There the de- ment. fendant was an agent of the plaintiff, employed to

It was held that the bill sued upon was given upon a make collection of a note at a distant point, and was sufficient consideration. sued for alleged negligence in accepting the draft of In that case it was the check of a persou liable as a its corresponding agent in payment of the collection. party to the draft that had been received in payment, The liability depended solely upon the question of and it was received by an agent for collection, and the negligence. It was held that the collection was made question was whether the agent had discharged his according to the customary usages of business, and in duty with diligence and fidelity in making the collecaccordance with the implied authority conferred upon

tion. the agent in transacting such business for its princi- But little aid in the solution of the questions here pal. It was further intimated in the case that the presented can be derived from cases arising between plaintiff therein had suffered no loss, as it did not ap- principals and collecting agents. as in such cases the pear that the note had been paid, the makery not hav. question is usually one of negligence alone, and is goving sufficient funds on deposit at the place of payment erned largely by the usages of trade. at its maturity to pay it. The implication from this Here no custom has been proved or can be proved, case it quite strong that if the maker had provided and but little evidence given as to the facts upon which funds, as the defendant did here, to pay the obliga- the liability of the parties would be affected by the tion), the trausaction would have operated as pay

omission of the relator to present the check promptly. ment of the note.

It certainly seems probable that having received the This case is similar in some respects to that of Smith check on the 6th, it might have caused it to be preF. Miller, 43 N. Y. 171; S. C., 3 Am. Rep. 690, where it sented in New York on the 7th, when it probably was said that a creditor may so deal with negotiable

would have been paid: but whether so or not the evisecurities received from his debtor for collection, and dence is not before us to enable us to determine that to be placed to his credit when paid, as to discharge question. Clearly the relator has not made a case the debtor from all liability, whether the securities are which exempts it in law from the imputation of in fact paid or not. He may make them his own so as laches, to substitute the parties to the securities as his debt

In this case the relator accepted the obligation of a ors, in place of his original debtor, by his dealing with third person in payment of its claims against the those parties, or by giving time for payment, or by any county, and having failed to realize the amount of the act prejudicial to the interests of the debtor.” South- security taken without recovering possession of its wick v. Cox, 9 W. R. 22; Vernon v. Brown, 2 Shaw, coupons, seeks to establish a debt against the county. 296.

We think it is precluded from doing so by the defense The same result will follow any neglect or laches of

of payment. the creditor in obtaining payment of negotiable instru

The order of the General Term should be reversed, ments transferred from which loss and injury ensues.

and that of the Special Term affirmed, with costs. In fact the defendants, who resided at Buffalo, were

All concur. indebted to plaintiffs, living in New York, and in pay

Order reversed. ment of such indebtedness remitted to them a sight draft on an apparently solvent firm, residing in the AMENDMENT AT COMMON LAW-ADDING same city, with whom the drawers had funds. The

PARTIES plaintiff presented the draft and accepted a check

NEW HAMPSHIRE SUPREME COURT, MARCH 12. 1886. upon a bank in that city from the drawees in payment thereof. This check would have been paid if pre

OWEN V. WESTON. sented on the day of receipt, but the plaintiff omitted In an action at law, an amendment may be allowed making to present it until the next day; when payment was a third party a defendant upon proper notice to him, if

justice requires it, and if a trilateral controversy may be member it being done twice or thrice iu things of conveniently tried in one suit.

small value. It ought to be done to prevent vexatious YASE against the defendants, alleged to be the trus. | litigation, which a plaintiff may be tempted to pursue tees of the Manchester and Keene railroad, for an

when, in all events, he is sure of costs. It ought to be injury received by the plaintiff March 19, 1881, while

done because it is the specific relief.

* * An esriding as a passenger “on the cars procured and run

timated value is a precarious measure of justice comupon said railroad uuder the control and direction of

pared with the specific thing. * * * Such motions said defendants, as trustees, as aforesaid." The de ought neither to be refused nor granted of course. fendants moved to dismiss on the ground that the They must depend upon their own circumstances." railroad corporation should be defendants instead of

In mitigation of damages, a plaintiff may be required the trustees.

to accept a conveyauce of land claimed by him. Towle

v. Lawrence, 59 N. H. 501. A plaintiff may be required D. H. Woodward, for plaintiff.

to file a bond to indemnify the defendant against J. W. Fellows, for defendants.

claims. “If it be said that the court of law has no

rwer to decree that the plaintiff shall file a bond of Doe, C. J. “Every subject of this State is entitled indemnity, the answer is that such court can stay proto a certain remedy, by having recourse to the laws, credings until it is filed, as it appears that

is not for all injuries he may receive in his person, property, necessary for the security of the defendant." Hill v. or character; to obtain right and justice freely, with Barney, 18 N. H. 607, 610. A defendant may be reout being obliged to purchase it, completely, and with- quired to surrender a release, and his plea of release out any denial, promptly, and without any delay, may be set aside. Webb v. Steele, 13 N. H. 230, 239; conformably to the laws." Bill of Rights, art. 14. Gerrish v. Clough, 36 id. 519, 524; Holley v. Hruggeford, The progressive introduction of oral and written 8 Pick. 73, 77, note 3. A will may be admitted to a forms and methods of pleading, proof, trial, judgment limited probate. Marston v. Marston, 17 N. H. 503, and process, initial, intermediate and final, under the 508. By a great variety of orders in suits at law obcommon law of every nation from the beginning to jections may be removed, and specific protection and the present time, has not been illegal. Conformably relief may be given to each party. Cheshire Prov. to the common law of this State for ascertaining, es- Inst. v. Stone, 52 N. H. 365, 367, 368; Hobbs v. Hobbs, tablishing and vindicating contested rights in civil 58 id. 81; Morrill v. Hovey, 59 id. 107, and cases cited; cases, each party is entitled to such remedy, including 2 Suth. Dam. 271; Rawle Cov. (4th ed.) 281. The form, method and order of procedure, as justice and common law has not ceased to require the invention convenience require. Metcal; v. Gilmore, 59 N. H. 417, of forms of action demanded by the convenience of 433-435; Walker v. Walker, 63 id. 321, 326. This court justice. Walker v. Walker, 63 N. H. 321, 326. has not been intrusted with the power of directly and Statutes allowing amendments of form and subformally abolishing substantive rights of person and stance in any stage of the proceedings are re-enactproperty, or the power of infringing them indirectly ments of the common-law right of litigants compelling by withholding the incidental rights of complete and judges to do their common-law duty. 3 Bl. Com. 407-411; prompt remedy. Within constitutional and statutory Rex v. IVilkes, 4 Burr. 2527, 2567-2572; McKean v. Cutlimits, parties are entitled to use the best procedure ler, 48 N. H. 370, 376. The notion that when judgment that can be invented; but in determining what is had been given and enrolled no ameudment could be best, it may be necessary to look beyond the peculiar made at a subsequent term (3 Bl. Com. 407) was long circumstances of one case.

ago abandoned; and judgment rendered in 1817 In trover an order may be made, that upon defend- (Chamberlain v. Crane, 1 N. H. 64) was amended in ant's surrendering a part of the articles for which the

18:27, “with a gaving of all rights acquired by third action is brought, the articles surrendered shall be

persons under the judgment." Chamberlain v. Crane, struck out of the declaration. Fisher v. Prince, 3 4 N. H. 115. After writ of error brought, an erroneous Burr. 1863; Brunsdon v. Austin, Tidd. Pr. (3d ed.) judgment and an erroneous execution may be vacated 490; Watts v. Phipps, Bull. N. P. 49; Earle v. Holder

or corrected on motion and notice, and other proceedness, 4 Bing. 462; Colby v. Reed, 99 U. S. 560, 566. ings may be stayed to await the result of the motion. Fisher v. Prince was decided in 1762. Upon motion, Rees v. Morgun, 3 Durn. & E. 349; Rowell v. Bruce, 5 the defendant obtained an order for the plaintiff to N. H. 381, 383; Bellows v. Stone, 14 id. 175, 203; Chase v. show cause why, upon the defendant's delivering to the Wyeth, 17 id. 486-488; Wiggin v. Veasey, 43 id. 313; plaintiff the several goods and chattels for which the

Judge of Probate v. Webster, 46 id. 518; Cheshire Prov. action was brought, and paying him his costs to the Inst. v. Stone, 52 id. 365, 367; Warner Bank v. Clement, day of making the motion, further proceedings should 58 id. 533; County v. Clark, 60 id. 209; Moore v. Carnot be stayed. It was urged on the part of the plain-penter, 63 id. 65; Clough v. Moore, id. 111. To cure a tiff that the motion was, in effect, to bring the goods defect of form, an amendment may be ordered; but into court; that it was contrary to the course of the without an amendment such a defect may be disrecourt to bring in tho thing demanded (excepting the garded. 3 Bl. Com. 407; Rowell v. Bruce, 5 N. H. 381, single case of trover for moneys numbered), and that

383; Berry v. Osborn, 28 id. 279, 286, 287; McKean v. the reason which has often been given is that the court Cutler, 48 id. 370, 376. The form of action may be does not keep a warehouse. "Lord Mansfield said, it changed by amendment. Rider v. Chick, 59 N. H. 50; is a pity that a false conceit should, in judicature, be Stebbins v. Insurance Co., id. 143. Counts in contract repeated as an argument. The court does not keep a and tort may be joined in the original declaration, or warehouse.' What then? What has a warehouse to by amendment before or after verdiot. Merrill v. Perdo with ordering the thing to be delivered to the kins, 59 N. H. 343; Rutherford v. Whitcher, 60 id. 110; plaintiff? Money paid into court is payment to the Elsher v. Hughes, id. 469; Peaslee v. Dudley, 63 id. plaintiff. The reason and spirit of cases make law; 220. A new party may be joined as plaintiff after vernot the letter of particular precedents. In trover for dict (Annis v. Gleason, 56 N. H. 16), and may have money numbered, or in a bag, the court have ordered judgment and execution in severalty for his share of it to be brought in; yet the jury may give more in the damages. Chauncy v. Insurance Co., 60 N. H. 428; damages--they may allow interest (and in some cases Cole v. Gilford, 63 id. 60; Brooks v. Howison, id. 382, they ought). The reason holds to every other case 388; City Sav. Bank v. Whitile, id. ---; 8. C., 3 Atl. where a thing clearly remains of the same value, yet Rep. 645. A new plaintiff may be introduced by an the jury may give damages for the detention. I re

amendment substituting a trustee for his beneficiary

ਨੇ

,

(Judge of Probate v. Jackson, 58 N. H. 456); a princi- the case, it cau be tried at a proper time. Whether all
pal for bis agent (Boudreau v. Eastman, 59 V. H. 467); or a part only of the issues in any action between two
a creditor for a surety (Buckminster v. Wright, 59 N. parties shall be tried at one time, and which shall be
H. 153). Misjoinder of plaintiffs and defendants may tried first, is a question of justice and convenience,
be cured after verdict. Demeritt v. Mills, 59 N. H. 18. and ordinarily a matter of fact, to be determined at
The defendant's pleading, as well as the plaintiff's, the trial term. Bernis v. Morey, Carroll, June, 1883;
may be amended after verdict. Hoit v. Russell, 56 N. Clark v. Fellows, 63 N. H. 133; S. C., 1 Atl. Rep. 201;
H. 559, 566; Roulo v. Valcour, 69 id. 347, and authori. Dole v. Pike, 63 N. H. ; S. C., 3 Atl. Rep. 743.
ties cited. A law-term caso erroneously entered at Motion denied.
the trial term may be removed to the law term. State Allen, J., did not sit. The others conourred.
5. Portland & 0. R. R., 58 N. H. 113. An action en-
tered in a wrong county may be transferred to the
county in wbich it should have been entered. Bartlett MUNICIPAL CORPORATION-PLAN OF SEWER-
v. Lee, 60 N. H. 168. Iu a suit at law either party may

AGE-CONJECTURAL DANGERS-
be allowed to file a bill in equity as an amendment of

INJUNCTION.
his pleading, and iu a suit in equity either party may
be allowed to file a declaration at law. Metcalf v. Gil- NEW YORK COURT OF APPEALS, JUNE 1, 1886.
more, 59 N. H. 417; Walker v. Walker, 63 id. 321, 326;
Brooks v. Howison, id. 382, 389. As justice may require

MORGAN V. CITY OF BINGHAMTON.
that leave to amend may he granted to either party on
conditions that will give the other party specific relief

A court of equity will not enjoin the use of a carefully planned (Bellows v. Stone, 14 N. H. 175, 204), so justice may re

system of) sewerage, where danger through poisoning

and infection of the air is not imminent, but is wholly quire that leave to amend be refused. Redding v. Dodge, 59 N. H. 98.

contingent, doubtful and remote, and its possible coming

rests upon opinion and speculation. Upon inquiry in this caso, at the trial term, it may be found that the question whether the trustee or the THIS railroad company should be defendants ought to be the defendants, from a judgment entered upon a decided in a suit in which the company, as well as decision of the General Term of the Third Departthe trustees and the plaintiff, will be bound by the de- ment, aflìrming a judgment of the Supreme Court at cision. The plaintiff can be ordered to file an amend- Special Term, entered in Broome county, in favor of ment joining the company as defendants, and they the plaintiff and respondent, restraining the defeudant can be summoned by a duly-attested copy of writ, and appellant, the city of Binghamton, from using, or amendment, and order of notice. Laws 1883, chap. 22, allowing to be used, a sewer constructed uuder the If there is a trilateral controversy, it is not admitted orders of said city for the discharging of filth into the or proved that it cannot be conveniently tried and ad- Susquehanna river near the respondent's property, so judicated in this suit. A bill in equity (Webster v. as to create a nuisance to said property. The opinion Hall, 60 N. H. 7) may not be necessary (Davis v. Brad- states the material facts. ford, 58 N. H. 476, 480). In assumpsit for a debt which

A. D. Vales, for appellant. the defendant admits was once due from him to the

G. L. Sessions, for respondent. plaintiff, the plaintiff may fail because the jury find a debt of the same amount was due to the defendant FINCH, J. The findings of fact of the trial judge are from A., and the three agreed that A., instead of the conclusive for all the purposes of this appeal. defendant, should be the plaintiff's debtor. Heaton v. If the evidence leaves any of them doubtful, the deAugier, 7 N. H. 397; Morse v. Allen, 44 id. 33. Bring. ficient proof may have been supplied by his personal ing an action against A., the plaintiff may fail agaiu examination since he went over the route of the sewer because the jury find there was no such agreement. and took careful observation of the locality, with the His first action might need to be one in which the consent of both parties and doubtless aided by their three persons would be bound by one verdict ou the suggestions. The sole question before us therefore is question of novation. For a trilateral question there whether upon those findings the plaintiff was entitled may be an action of a corresponding form. Iu foreign to so far defeat the plan of sewerage adoption by the attachment, where the plaintiff's claim against the de- common council as to prevent and restrain the confendant is a cross-action in the form of a set-off, the uection of other sewers with that running through question whetber the trustee holds certain property, Carroll street. and the question whether that property belongs to the

It is not contended that any of the sewers as planned defendant, the trustee, or another claimant, may be will discharge their contents upon plaintiff's land or tried without a bill in equity, and all parties may be in any manner touch or interfere with his premises; bound by several judgments rendered in the many- and all the cases in which equity has interfered to presided suit. Equity jurisdiction, without the right of

vent the discharge of sewerage upon private property jury trial, is uot to be extended by imaginary obsta- have no application. The prevailing opinion at Gencles of procedure at law. It does not appear that is- eral Term indulges in that misapprehension, and has sues between this plaintiff, the trustees, and the com

been criticised upon the argument in that respect. pany will raise any practical difficulty of trial, or that The injury apprehended is not that, but something the plaintiff can be justly driven to another suit by very different. Instead of a direct trespass it was a the circumstances that this railroad is run by trustees. consequential damage which is threatened. The The trustees and the company may act together in re- theory of the fiudings is that in one or two, or very sisting the plaintiff's claim. It may be their duty to do surely in three years after the branch sewers are emp80. If the plaintiff obtains a verdict, the judgment tied into the Carroll street sewer, and have become can be put in a form that will impose the liability | largely connected with premises along their lines, the upon the party by whom, and the property out of discharge at the mouth of the Carroll street sewer into which, the judgment should be satisfied ; and the form the river will be strewn along its banks and stranded of the judgment in that respect may be a question that upon low lauds, and tend to produce offensive and uncan be equitably postponed until it is settled that the healthy odors, tainting the air and planting the seeds plaintiff is entitled to a judgment. If the trustee's

of disease, and that the premises of the plaintiff are so personal liability is asserted by the plaintiff or the situated as to be peculiarly exposed to these dangers compauy, and it becomes necessary to try that part of by reason of proximity,