Imágenes de páginas
[merged small][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][merged small][ocr errors][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][ocr errors]

neighbor, to the substantial injury of the latter, how-
ever beneficial it may be to his own lands, without
violating this elementary maxim of justice. There is
little or no difference in the authorities upon this

Thus, Angell, in his work on Water-courses, section
333, says: "A riparian proprietor may in fact legally
erect any work in order to prevent his lands being
overflowed by any change of the natural state of the
river, and to prevent the old course of the river from
being altered." "But," he adds, at section 334, "a
riparian proprietor, for his greater convenience and
benefit, has no right to build any thing which in times
of ordinary flood will throw the water on the grounds
of another proprietor so as to overflow and injure
them." To this may be added what is said by Wood,
in his work on Nuisances, section 350: "While it is
true that a riparian owner may erect bulwarks to pro-
tect his property from injury by the stream, yet they
can only do this when it can be done without injury
to others, either to an owner upon the opposite side
of, or to those above or below him on the stream."
He then cites the case of Gerrish v. Clough, 48 N. H.
9; S. C., 2 Am. Rep. 165, where the defendant had
erected a break-water upon his bank of the river to
protect it from injury by the water, but the effect of
this was to throw the water against the plaintiff's
land, upon the opposite side, and in high water his
land was washed away, and the injury was held to be
actionable. And so in Valley Ry. Co. v. Franz, 43
Ohio St. 623, it was held by this court that ". a railway
company, like an individual, may, on its own land,
fawfully cut a new channel for a stream of water, and
turn the stream into such new channel, if thereby no
damage is caused to another; but when it so controls
and directs the course of the stream, the water is
thrown across the old channel, and against and upon
the land of another, and thereby causes damage to
such other, the company is liable for such damage."
The difference arises as to surface water. In some
of the States the rule of the civil, and in others of the
common, law prevails. The former requires each
tenement to submit to the conditions imposed on it by
nature, so that the owner of a lower tract cannot di-
vert the water that flows to and upon his own from a
higher one, to the injury of the latter. This rule was
recognized by this court in Butler v. Peck, 16 Ohio St.
335, and was adopted as the rule of its decision in
Tootle v. Clifton, 22 Ohio St. 247; S. C., 10 Am. Rep.
732. The civil law acts upon the maxim that water is
descendible by nature, and that its usual flow should
not be interfered with, so that its burden, if it be one,
should be borne by the land where it naturally flows,
rather than by land where it can only be made to flow
by artificial means. The common law does not recog-
nize this principle as to surface water, but permits any
one to protect his own premises from it as he may
choose to do, without becoming liable to others in-
jured thereby; or more properly, it does not regard it
as an injury to do so, whatever inconvenience or loss
may result to others therefrom. It is not necessary,
as we have said, to discuss the merits of either system
in this case, as the injury complained of does not arise
from an interference with the flow of surface water

The maxim of the civil law, aqua currit et debet currere ut currere solebat, applies generally to running water in the common, as well as in the civil law, subject to such reasonable qualifications as the interests of agriculture require and the enjoyment of private property will permit. Parkley v. Wilcox, 86 N. Y. 140. As each owner has the right to protect his own lands from the violence of the current, or to improve the same, by the erection of embankments, and as a rule, this cannot be done without increasing to some extent


the flow upon the opposite side, it follows that this must be permitted to some extent by all owning lands upon the stream, or the right cannot be exercised by any one of them. Such a rigid application of the principle of the maxim would materially impair the interests of agriculture in some, if not all, of the most fertile valleys of the State, without any necessary requirement on the part, if not to the detriment, of pri. vate property. It is true, as a rule, that every invasion of a private right imparts an injury for which the law will allow a recovery of nominal damages at least, for the purpose of maintaining the right and preventing the wrong from ripening into a right by lapse of time. Tootle v. Clifton, supra; Sedg. Dam., chap. 2.

As a rule, the infringement of a right can be determined without regard to the damages that may have been occasioned; the injury and the damage being plainly separable. But this is not so plainly the case among riparian proprietors. They have a common right in and over the waters of the same stream, and the invasion of the individual right of one in the subject of their common enjoyment cannot be determined until some act is done by another that is in excess of the common right of all in the same subject; so that in such cases, before an action can be brought by one riparian proprietor against another for an infringement of the former's right as such proprietor, he must show that he has been substantially damaged by the act of the latter. This was the rule applied to the deepening of waters in stream by mill-dams, in the cases of Cooper v. Hall, 5 Ohio, 320, and McElroy v. Goble, 6 Ohio St. 187; and was applied, by analogy, to the corrupting of the air by smoke, in Gas-light Co. v. Freeland, 12 Ohio St. 392. And we see no good reason why it should not be applied, in cases like the present, when an embankment is constructed by one for the protection of his land upon a stream; all others owning lands upon it having, for the same purpose, a like right, and the public having the same general interest in the encouragement of agriculture that it has in mills. The principles of every enlightened system of jurisprudence should be made to vary with circumstances, and be so applied as to meet the wants and conditions of a people. It is with these qualifications that, as has been said, the common law has been adopted in this State.

But the argument of the learned counsel for the defendant, drawn from the interest of agriculture, goes too far when, as he seems to claim, one private owner upon a stream may, for his own benefit, erect an embankment that will cause its water, in times of ordinary floods, to overflow and destroy the lands of his neighbor. Unless this right to erect an embankment be limited, as above stated, what limit could be set to the exercise of a similar right in any other case? The right of private property, so carefully guarded in the fundamental law against public encroachment, might be wholly destroyed by that of individuals. If the general interests of agriculture require the taking of private property for the construction of levees, there is ample power in the legislature to authorize this to be done by some general statute making provision for compensation to owners for damages sustained. But as the effect of a certain embankment acting upon the waters of a stream, when at its flood, cannot be known with certainty by a man of ordinary knowledge and skill until the experiment has been made, it must follow, that where a proprietor constructs an embankment for the benefit of his own land, he should not be held liable for its unforeseen results to his neighbor, if at the time he constructed it he exercised the care and skill of an ordinarily skillful and intelligent man. It was upon this principle that the case of Railway Co. v. Carr, 38 Ohio St. 448; S. C., 43 Am. Rep. 428, was de

[ocr errors][ocr errors]


cided. The duty however of a land-owner upon a river, in making changes thereon for his own benefit, to exercise reasonable care and caution not to injure others, both in the inception and execution of the work," and his liability to the party injured for his omission to do so, is fully recognized in the first two propositions of the syllabus.

After however the occurrence of an ordinary flood has shown the tendency of the embankment at such times to occasion injury to an adjacent proprietor, and that its effect, at each recurring flood, will be to cause additional injury, the duty on his part at once arises to obviate the cause of injury; and if he fails to do so his liability from such time must, upon principle, be the same as it would have been could he have foreseen the result in the first instance. He cannot, by the exercise of care and diligence in the first instance, acquire the right to continue a nuisance to the lands of his neighbor. Care and diligence in constructing the embankment can only exonerate the party building it from such damages as were unforeseen at the time. The liability that may arise from a continuance of the cause of injury, after its character becomes apparent, was not presented in Railway Co. v. Carr, supra, as that action was simply brought for the damages that had been occasioned to the crops of the plaintiff below at the flood of August 1, 1875.

As to whether the plaintiff is entitled to relief upon his second cause of action, it is sufficient to say that in a proper case, on a final hearing, a decree may be entered for the abatement of a nuisance, but it necessarily depends upon a variety of circumstances whether such a decree will be entered. In the first place, equity requires that the plaintiff shall have acted with promptness in objecting, and in taking steps to enforce his objections, upon receiving notice of the defendant's structures and erections which are sought to be abated, if the circumstances are such that the defendant would be unnecessarily prejudiced by the plaintiff's delay; and the injury must be of a substantial and permanent nature, and not capable of an adequate compensation in damages. 3 Pom. Eq. Jur., § 1359. It is sufficient however in this regard, that the damages are of such constant and frequent recurrence that no adequate compensation can be made hereby. Wood, Nuis., § 778.

Judgment of the District and of the Common Pleas Court reversed, and cause remanded to the Circuit Court, with directions to overrule the demurrer to the amended petition, and for further proceedings.



PEOPLE V. CROMWELL. When a county places funds in the hands of a depositary to pay interest on its bonds, and a bondholder, at his own request, accepts the depositary's draft drawn upon a third party instead of the money, and surrenders up the coupons, and the draft is not paid, owing to the subsequent failure of the depositary, the loss falls upon the bondholder, and the county is released from any further liability on account thereof.

PPEAL from an order of the General Term, Second Department, reversing an order of the Special Term. The opinion states the case.


Isaac N. Mills, for respondent.

Wilson Brown, Jr., for appellant. [Omitting minor point.]

RUGER, C. J. The facts thus presented are that Masterton & Co. were the legal depositaries of the moneys of the county of Westchester, applicable to the redemption of its bonded indebtedness, and before November 1, 1884, had been put in funds by defendant, its county treasurer, to redeem the coupons for interest on its debt maturing on that day.

The relator held such coupons to the amount of upward of $500, and on November 6, 1884, presented them to Masterton & Co. for payment, and upon being interrogated as to the manner of payment, stated that it wished a draft for the amount. Thereupon Masterton & Co. delivered to the relator their sight draft upon the National City Bank of New York for the amount thereof, and it surrendered to Masterson & Co. its coupons, which were immediately charged to the defendant's account as paid, and the coupons were afterward delivered to the county treasurer. At the time of this transaction Masterton & Co. had on hand cash sufficient to pay the amount of such coupons,and would have paid them in currency but for the election of the relator to take the amount in a draft. The draft was presented by the relator to the National City Bank some time in November thereafter, and was protested for non-acceptance and non-payment. Masterton & Co. having failed in the meantime. The fact was made public on the 8th, although Masterton & Co. were insolvent on the 6th, and remained so until after the draft was presented.

Upon these facts the relator applied for a peremp tory mandamus against the county treasurer requiring him to pay the coupons.

The defendant alleges that he had no money in his hands with which to pay them and no means of raising the amount from the tax payers of the county by virtue of any statutory authority.

The remedy sought is of doubtful propriety in its application to the circumstances related, and it might well be said that payment of the general indebtedness of a county cannot be enforced by the punishment of its financial officers; but as we are of the opinion that the relator has not shown a case entitling him to recover upon the merits we prefer to dispose of the appeal upon that ground.

The claim of the relator is that the loss occasioned by the insolvency of Masterton & Co. shall be imposed upon the defendant and enforced by the compulsory process of the court.

It is evident that this loss resulted from the voluntary action of the relator in accepting a draft instead of money for the obligations of the county then surrendered, and that it thereby intended to discharge its claim upon the county and to accept in lieu thereof the responsibility of Masterton & Co. This is the plain meaning of the transaction as evidenced by the unequivocal acts of the parties, and it cannot be obscured by supposed analogies to other situations. Masterton & Co. were the speciel agents of the county to pay their coupons as a bank is the agent of his depositor to pay his check. If upon presentation such agent or bank should refuse payment the debt remains unpaid, but if the creditor accepts any thing other than legal currency in payment the debt is discharged. Crawford v. West Side Bank, 100 N. Y. 50; S. C., 53 Am. Rep. 152.

The authority of the depositary is simple and limited to the act of making payment, and if the creditor goes further and deals with it for any other transaction than that of receiving payment, he does so upon his own responsibility, and must bear the consequent loss, if any, of such a transaction.

The surrender of the possession of the coupons by the relator was inconsistent with the expectation of any continuance of liability on the part of the county thereon, as it was beyond the power of Masterton &

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]
[merged small][merged small][merged small][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][ocr errors]

Co. to authorize such an expectation. The county had provided the funds for the payment of its indebtedness, and if the creditor accepted any thing else than cash for its obligations he was at liberty to do it, but acted on his own responsibility in so doing. The entire scope of the agency of Masterton & Co. was to pay out the moneys of the county to its creditors in the amounts, to the persons and at the time specified in its obligations, and outside of the performance of the duty they had no power to bind or affect the county. The limitations upon their authority arose from this nature of the business they were authorized by statute to transact, and were obvious to all who had financial dealings with the county.

By the transaction considered the relator authorized Masterton & Co. to immediately appropriate to their own use the funds provided by the county to pay the coupons, and when they were afterward delivered to the county Masterton & Co. became entitled to a credit therefor in their accounts. It was thus placed beyond the power of the county to reclaim those funds or hold the bondsmen of Masterton & Co. liable for default of their principal. Masterton & Co. were not parties to the obligations presented, and their debt was the obligation of a third person, accepted in exchange for the coupons surrendered. The defendant had no authority over the transaction, and it was beyond his power to influence or prevent it.

There is little analogy between this case and that of Indig v. Nat. City Bank. 80 N. Y. 100, cited by the relator and apparently much relied on. There the defendant was an agent of the plaintiff, employed to make collection of a note at a distant point, and was sued for alleged negligence in accepting the draft of its corresponding agent in payment of the collection. The liability depended solely upon the question of negligence. It was held that the collection was made according to the customary usages of business, and in accordance with the implied authority conferred upon the agent in transacting such business for its principal. It was further intimated in the case that the plaintiff therein had suffered no loss, as it did not appear that the note had been paid, the maker! not hav ing sufficient funds on deposit at the place of payment at its maturity to pay it. The implication from this case it quite strong that if the maker had provided funds, as the defendant did here, to pay the obligation, the transaction would have operated as payment of the note.

This case is similar in some respects to that of Smith v. Miller, 43 N. Y. 171; S. C., 3 Am. Rep. 690, where it was said that a creditor may so deal with negotiable securities received from his debtor for collection, and to be placed to his credit when paid, as to discharge the debtor from all liability, whether the securities are in fact paid or not. He may make them his own so as to substitute the parties to the securities as his debtors, in place of his original debtor, by his dealing with those parties, or by giving time for payment, or by any act prejudicial to the interests of the debtor." Southwick v. Cox, 9 W. R. 22; Vernon v. Brown, 2 Shaw, 296.

The same result will follow any neglect or laches of the creditor in obtaining payment of negotiable instruments transferred from which loss and injury ensues. In fact the defendants, who resided at Buffalo, were indebted to plaintiffs, living in New York, and in payment of such indebtedness remitted to them a sight draft on an apparently solvent firm, residing in the same city, with whom the drawers had funds. The plaintiff presented the draft and accepted a check upon a bank in that city from the drawees in payment thereof. This check would have been paid if presented on the day of receipt, but the plaintiff omitted to present it until the next day, when payment was

refused. The maker having in the meanwhile become insolvent, it was held that the plaintiff had by his laches released the drawers of the draft from liability to him, and constituted the makers of the check his debtors for the amount. The transaction there was directly between the debtor and creditor, and although in that regard much more favorable to the claims of the creditor than here, yet it was held that the creditor had lost his remedy against the debtor, although he had received the check of oue of the parties to the draft in payment thereof.

The case here presented is also clearly distinguishable from those arising directly between the debtor and creditor. In those cases there is no question as to the power of the debtor to authorize the continuance of its original liability, and in any transaction having in view the payment of his obligation, it is required that it should be actually paid in order to discharge it, or that something shall be received by the creditor from the debtor under the express agreement that it shall operate as payment.

The case of Turner v. Bank of Fox Lake, 3 Keyes, 425, also cited by the relator, is not an authority in its favor. There the creditor sued upon a bill of exchange of which he had possession, but which had been reclaimed by him after having been once surrendered in exchange for the check of the drawee. After payment of the check had been refused, the holder returned it to the drawee and received possession of the bill, and caused it to be duly protested for non-pay

[blocks in formation]

But little aid in the solution of the questions here presented can be derived from cases arising between principals and collecting agents, as in such cases the question is usually one of negligence alone, and is governed largely by the usages of trade.

Here no custom has been proved or can be proved, and but little evidence given as to the facts upon which the liability of the parties would be affected by the omission of the relator to present the check promptly. It certainly seems probable that having received the check on the 6th, it might have caused it to be presented in New York on the 7th, when it probably would have been paid; but whether so or not the evidence is not before us to enable us to determine that question. Clearly the relator has not made a case which exempts it in law from the imputation of laches.

[blocks in formation]

justice requires it, and if a trilateral controversy may be conveniently tried in one suit.

ASE against the defendants, alleged to be the trusCASE against the defendant leged to beat, for un

injury received by the plaintiff March 19, 1881, while riding as a passenger "on the cars procured and run upon said railroad under the control and direction of said defendants, as trustees, as aforesaid." The defendants moved to dismiss on the ground that the railroad corporation should be defendants instead of the trustees.

D. H. Woodward, for plaintiff.

J. W. Fellows, for defendants.

DOE, C. J. "Every subject of this State is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it, completely, and without any denial, promptly, and without any delay, conformably to the laws." Bill of Rights, art. 14. The progressive introduction of oral and written forms and methods of pleading, proof, trial, judgment and process, initial, intermediate and final, under the common law of every nation from the beginning to the present time, has not been illegal. Conformably to the common law of this State for ascertaining, establishing and vindicating contested rights in civil cases, each party is entitled to such remedy, including form, method and order of procedure, as justice and convenience require. Metcalf v. Gilmore, 59 N. H. 417, 433-435; Walker v. Walker, 63 id. 321, 326. This court has not been intrusted with the power of directly and formally abolishing substantive rights of person and property, or the power of infringing them indirectly by withholding the incidental rights of complete and prompt remedy. Within constitutional and statutory limits, parties are entitled to use the best procedure that can be invented; but in determining what is best, it may be necessary to look beyond the peculiar circumstances of one case.

member it being done twice or thrice in things of
small value. It ought to be done to prevent vexatious
litigation, which a plaintiff may be tempted to pursue
when, in all events, he is sure of costs. It ought to be
done because it is the specific relief. *
* An es-
timated value is a precarious measure of justice com-
pared with the specific thing. * * * Such motions
ought neither to be refused nor granted of course.
They must depend upon their own circumstances."

In mitigation of damages, a plaintiff may be required
to accept a conveyance of land claimed by him. Towle
v. Lawrence, 59 N. H. 501. A plaintiff may be required
to file a bond to indemnify the defendant against
claims. "If it be said that the court of law has no
Fwer to decree that the plaintiff shall file a bond of
indemnity, the answer is that such court can stay pro-
ceedings until it is filed, as it appears that it is not
necessary for the security of the defendant." Hill v.
Barney, 18 N. H. 607, 610. A defendant may be re-
quired to surrender a release, and his plea of release
may be set aside. Webb v. Steele, 13 N. H. 230, 239;
Gerrish v. Clough, 36 id. 519, 524; Holley v. Huggeford,
8 Pick. 73, 77, note 3. A will may be admitted to a
limited probate. Marston v. Marston, 17 N. H. 503,
508. By a great variety of orders in suits at law ob-
jections may be removed, and specific protection and
relief may be given to each party. Cheshire Prov.
Inst. v. Stone, 52 N. H. 365, 367, 368; Hobbs v. Hobbs,
58 id. 81; Morrill v. Hovey, 59 id. 107, and cases cited;
2 Suth. Dam. 271; Rawle Cov. (4th ed.) 281. The
common law has not ceased to require the invention
of forms of action demanded by the convenience of
justice. Walker v. Walker, 63 N. H. 321, 326.


In trover an order may be made, that upon defendant's surrendering a part of the articles for which the action is brought, the articles surrendered shall be struck out of the declaration. Fisher v. Prince, 3 Burr. 1863; Brunsdon v. Austin, Tidd. Pr. (3d ed.) 490; Watts v. Phipps, Bull. N. P. 49; Earle v. Holderness, 4 Bing. 462; Colby v. Reed, 99 U. S. 560, 566. Fisher v. Prince was decided in 1762. Upon motion, the defendant obtained an order for the plaintiff to show cause why, upon the defendant's delivering to the plaintiff the several goods and chattels for which the action was brought, and paying him his costs to the day of making the motion, further proceedings should

Statutes allowing amendments of form and sub-
stance in any stage of the proceedings are re-enact-
ments of the common-law right of litigants compelling
judges to do their common-law duty. 3 Bl. Com. 407-411;
Rex v. Wilkes, 4 Burr. 2527, 2567-2572; McKean v. Cut-
ler, 48 N. H. 370, 376. The notion that when judgment
had been given and enrolled no amendment could be
made at a subsequent term (3 Bl. Com. 407) was long
ago abandoned; and judgment rendered in 1817
(Chamberlain v. Crane, 1 N. H. 64) was amended in
1827, "with a saving of all rights acquired by third
persons under the judgment." Chamberlain v. Crane,
4 N. H. 115. After writ of error brought, an erroneous
judgment and an erroneous execution may be vacated
or corrected on motion and notice, and other proceed-
ings may be stayed to await the result of the motion.
Rees v. Morgan, 3 Durn. & E. 349; Rowell v. Bruce, 5
N. H. 381, 383; Bellows v. Stone, 14 id. 175, 203; Chase v.
Wyeth, 17 id. 486-488; Wiggin v. Veasey, 43 id. 313;
Judge of Probate v. Webster, 46 id. 518; Cheshire Prov.
Inst. v. Stone, 52 id. 365, 367; Warner Bank v. Clement,
58 id. 533; County v. Clark, 60 id. 209; Moore v. Car-

not 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
into court; that it was contrary to the course of the
court to bring in the thing demanded (excepting the
single case of trover for moneys numbered), and that
the reason which has often been given is that the court
does not keep a warehouse. "Lord Mansfield said, it
is a pity that a false conceit should, in judicature, be
repeated as an argument. The court does not keep a
warehouse.' What then? What has a warehouse to
do with ordering the thing to be delivered to the
plaintiff? Money paid into court is payment to the
plaintiff. The reason and spirit of cases make law;
not the letter of particular precedents. In trover for
money numbered, or in a bag, the court have ordered
it to be brought in; yet the jury may give more in
damages--they may allow interest (and in some cases
they ought). The reason holds to every other case
where a thing clearly remains of the same value, yet
the jury may give damages for the detention. I re-

defect of form, an amendment may be ordered; but
without an amendment such a defect may be disre-
garded. 3 Bl. Com. 407; Rowell v. Bruce, 5 N. H. 381,
383; Berry v. Osborn, 28 id. 279, 286, 287; McKean v.
Cutler, 48 id. 370, 376. The form of action may be
changed by amendment. Rider v. Chick, 59 N. H. 50;
Stebbins v. Insurance Co., id. 143. Counts in contract
and tort may be joined in the original declaration, or
by amendment before or after verdict. Merrill v. Per-
kins, 59 N. H. 343; Rutherford v. Whitcher, 60 id. 110;
Elsher v. Hughes, id. 469; Peaslee v. Dudley, 63 id.
220. A new party may be joined as plaintiff after ver-
dict (Annis v. Gleason, 56 N. H. 16), and may have
judgment and execution in severalty for his share of
the damages. Chauncy v. Insurance Co., 60 N. H. 428;
Cole v. Gilford, 63 id. 60; Brooks v. Howison, id. 382,
388; City Sav. Bank v. Whittle, id. —~; S. C., 3 Atl.
Rep. 645. A new plaintiff may be introduced by an
amendment substituting a trustee for his beneficiary

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors][ocr errors][ocr errors][merged small]
[ocr errors][subsumed][merged small][subsumed][ocr errors][merged small][subsumed][ocr errors][subsumed][ocr errors][ocr errors][subsumed][ocr errors][subsumed][subsumed][ocr errors][ocr errors][ocr errors][ocr errors]

(Judge of Probate v. Jackson, 58 N. H. 456); a principal for his agent (Boudreau v. Eastman, 59 N. H. 467); a creditor for a surety (Buckminster v. Wright, 59 N. H. 153). Misjoinder of plaintiffs and defendants may be cured after verdict. Demeritt v. Mills, 59 N. H. 18. The defendant's pleading, as well as the plaintiff's, may be amended after verdict. Hoit v. Russell, 56 N. H. 559, 566; Roulo v. Valcour, 59 id. 347, and authorities cited. A law-term case erroneously entered at the trial term may be removed to the law term. State v. Portland & O. R. R., 58 N. H. 113. An action entered in a wrong county may be transferred to the county in which it should have been entered. Bartlett v. Lee, 60 N. H. 168. In a suit at law either party may be allowed to file a bill in equity as an amendment of his pleading, and in a suit in equity either party may be allowed to file a declaration at law. Metcalf v. Gilmore, 59 N. H. 417; Walker v. Walker, 63 id. 321, 326; Brooks v. Howison, id. 382, 389. As justice may require that leave to amend may he granted to either party on conditions that will give the other party specific relief (Bellows v. Stone, 14 N. H. 175, 204), so justice may require that leave to amend be refused. Redding v. Dodge, 59 N. H. 98.

Upon inquiry in this case, at the trial term, it may be found that the question whether the trustee or the railroad company should be defendants ought to be decided in a suit in which the company, as well as the trustees and the plaintiff, will be bound by the decision. The plaintiff can be ordered to file an amendment joining the company as defendants, and they can be summoned by a duly-attested copy of writ, amendment, and order of notice. Laws 1883, chap. 22, If there is a trilateral controversy, it is not admitted or proved that it cannot be conveniently tried and adjudicated in this suit. A bill in equity (Webster v. Hall, 60 N. H. 7) may not be necessary (Davis v. Bradford, 58 N. H. 476, 480). In assumpsit for a debt which the defendant admits was once due from him to the plaintiff, the plaintiff may fail because the jury fiud a debt of the same amount was due to the defendant from A., and the three agreed that A., instead of the defendant, should be the plaintiff's debtor. Heaton v. Angier, 7 N. H. 397; Morse v. Allen, 44 id. 33. Bring. ing an action against A., the plaintiff may fail again because the jury find there was no such agreement. His first action might need to be one in which the three persons would be bound by one verdict on the question of novation. For a trilateral question there may be an action of a corresponding form. In foreign attachment, where the plaintiff's claim against the defendant is a cross-action in the form of a set-off, the question whether the trustee holds certain property, and the question whether that property belongs to the defendant, the trustee, or another claimant, may be tried without a bill in equity, and all parties may be bound by several judgments rendered in the manysided suit. Equity jurisdiction, without the right of jury trial, is uot to be extended by imaginary obstacles of procedure at law. It does not appear that issues between this plaintiff, the trustees, and the company will raise any practical difficulty of trial, or that the plaintiff can be justly driven to another suit by the circumstances that this railroad is run by trustees. The trustees and the company may act together in resisting the plaintiff's claim. It may be their duty to do 80. If the plaintiff obtains a verdict, the judgment can be put in a form that will impose the liability upon the party by whom, and the property out of which, the judgment should be satisfied; and the form of the judgment in that respect may be a question that can be equitably postponed until it is settled that the plaintiff is entitled to a judgment. If the trustee's personal liability is asserted by the plaintiff or the company, and it becomes necessary to try that part of

the case, it can be tried at a proper time. Whether all or a part only of the issues in any action between two parties shall be tried at one time, and which shall be tried first, is a question of justice and convenience, and ordinarily a matter of fact, to be determined at the trial term. Bernis v. Morey, Carroll, June, 1883; Clark v. Fellows, 63 N. H. 133; S. C., 1 Atl. Rep. 201; Dole v. Pike, 63 N. H. -; S. C., 3 Atl. Rep. 743. Motion denied.

Allen, J., did not sit. The others concurred.





A court of equity will not enjoin the use of a carefully planned system of sewerage, where danger through poisoning and infection of the air is not imminent, but is wholly contingent, doubtful and remote, and its possible coming rests upon opinion and speculation.


HIS is an appeal by the city of Binghamton, one of the defendants, from a judgment entered upon a decision of the General Term of the Third Department, affirming a judgment of the Supreme Court at Special Term, entered in Broome county, in favor of the plaintiff and respondent, restraining the defendant and appellant, the city of Binghamton, from using, or allowing to be used, a sewer constructed under the orders of said city for the discharging of filth into the Susquehanna river near the respondent's property, so as to create a nuisance to said property. The opinion states the material facts.

A. D. Wales, for appellant.

G. L. Sessions, for respondent.

FINCH, J. The findings of fact of the trial judge are conclusive for all the purposes of this appeal.

If the evidence leaves any of them doubtful, the deficient proof may have been supplied by his personal examination since he went over the route of the sewer and took careful observation of the locality, with the consent of both parties and doubtless aided by their suggestions. The sole question before us therefore is whether upon those findings the plaintiff was entitled to so far defeat the plan of sewerage adoption by the common council as to prevent and restrain the connection of other sewers with that running through Carroll street.

It is not contended that any of the sewers as planned will discharge their contents upon plaintiff's land or in any manner touch or interfere with his premises; and all the cases in which equity has interfered to prevent the discharge of sewerage upon private property have no application. The prevailing opinion at General Term indulges in that misapprehension, and has been criticised upon the argument in that respect. The injury apprehended is not that, but something very different. Instead of a direct trespass it was a consequential damage which is threatened. The theory of the findings is that in one or two, or very surely in three years after the branch sewers are emptied into the Carroll street sewer, and have become largely connected with premises along their lines, the discharge at the mouth of the Carroll street sewer into the river will be strewn along its banks and stranded upon low lands, and tend to produce offensive and unhealthy odors, tainting the air and planting the seeds of disease, and that the premises of the plaintiff are so situated as to be peculiarly exposed to these dangers by reason of proximity.

« AnteriorContinuar »