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It would have been an absurd condition; and while it is true that he had a right, if he chose to impose it, yet whether it is reasonable in its character can properly be considered when it is a question whether the words were used as a mere reason for executing the paper or as a condition upon which it was to become operative.

It is quite natural for a person to give some reason for making a will; and as has been well said, a "close and literal interpretation may very easily carry us wide of the intention."

Swinburne says: "Albeit the testator make his testament by reason of some great journey, yet it is not revoked by the return of the testator."

Where the words "Lest I should die before the next sun, I make," etc., were used in a will written eighteen years before the testator's death, it was upheld. Burton v. Collingwood, 4 Hagg. Eccles. 176.

So "In case I should die on my travels," etc., although the testator returned home, it being shown that he recognized the paper as his will shortly before his death. Strauss v. Schmidt, 3 Phill. 209.

In Re Tylden, 18 Jur. 136, the language of the will was: "If it please Almighty God to call me suddenly from this mortal life, and during my absence from home, I leave," etc.; and it was sustained, although the testator died at home.

So in Re Dobson, L. R. 1 P. & D., 88, where the words were: "In case of any fatal accident happening to me, being about to travel by railway, I hereby leave," etc. Also in Thorne's case, 4 Sw. & Tr., 436, the language being: "I request that in the event of my death while serving in this horrid climate, or any accident happening to me, I bequeath," etc.

In the case of Bradford's Adm'x v. Bradford, etc., 81 Ky., the language of the will was of a more conditional character than in this instance, to wit.: "Being in the full possession of all my mental faculties, but in feeble health, and about to start on a long journey, and subjeet to the common casualties of others, I deem it prudent to provide for the disposition of my property in case I should not return; " and it was held that it was not contingent, and although the testator returned home and lived for several days thereafter, yet it was sustained.

It is shown in this case that the testator carefully preserved the paper in contest; that he examined it the year prior to his death; and while these facts cannot constitute a statutory republication of it, yet they illustrate the intention of the maker of the instrument, as they tend to show that he believed he had disposed of his property by it; and while the word "if "is an apt one to express a condition, yet the language used is so general in its character that it shows the testator intended it as words of inducement to the making of the will only, and not that the disposition of his property should depend merely upon the place of his death. Judgment affirmed.

CONSTITUTIONAL LAW

DEPRIVATION
PROPERTY-STATE STATUTE-OVER-

FLOWING LANDS.

SUPREME COURT OF THE UNITED STATES.
JANUARY 5, 1885,

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GRAY, J. This was a writ of error to reverse a judg. ment of the Supreme Court of the State of New Hampshire against the plaintiff in error, upon a petition filed by the defendant in error (a corporation established by the laws of New Hampshire for the manufacture of cotton, woolen, iron and other materials) for the assessment of damages for the flowing of his land by its mill-dam at Amoskeag Falls, on the Merrimack river, under the general mill act of that State of 1868, ch. 20.

In the petition filed in the State court the Amoskeag Manufacturing Company alleged that it had been au thorized by its charter to purchase and hold real es tate, and to erect thereon such dams, canals, mills, buildings, machines and works as it might deem necessary or useful in carrying on its manufactures and business; that it had purchased the land on both sides of the Merrimack river at Amoskeag Falls, including the river and falls, and had there built mills, dug canals, and established works, at a cost of several millions of dollars, and for the purpose of making the whole power of the river at the falls available for the use of those mills, had constructed a dam across the river; that the construction of the mills and dam, to raise the water for working the mills, for creating a reservoir of water, and for equalizing its flow, was of public use and benefit to the people of the State, and necessary for the use of the mills for which it was designed; and that Head, the owner of a tract of land described in the petition, and bounded by the river, claimed damages for the overflowing thereof by the dam, which the corporation had been unable satisfactorily to adjust; and prayed that it might be determined whether the construction of the mills and dam, and the flowing, if any, of Head's land to the depth and extent that it might or could be flowed thereby, were or might be of public use or benefit to the people of the State, and whether they were necessary for the mills, and that damages, past or future, to the land by the construction of the dam might be assessed according to the statute.

At successive stages of the proceedings, by demurrer, by request to the court after the introduction of the evidence upon a trial by jury, and by motion in arrest of judgment, Head objected that the statute was unconstitutional, and that the petition could not be maintained, because they contemplated the taking of his property for private use, in violation of the fourteenth amendment of the Constitution of the United States, which declares that no State shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; as well as in violation of the Constitution of the State, the bill of rights of which OF declares that all men have certain natural, essential and inherent rights, among which are the acquiring, possessing and protecting property, and that every member of the community has a right to be protected in the enjoyment of his property. His objections were overruled by the highest court of New Hampshire, and final judgment was entered adjudging that the facts alleged in the petition were true, and that upon payment or tender of the damages assessed by the verdict, with interest, and fifty per cent added, making in all the sum of $572.43, the company have the right to erect and maintain the dam, and to flow his land forever to the depth and extent to which it might or could be flowed or injured thereby. 56 N. H. 386, and 59 id. 332, 563.

HEAD V. AMOSKEAG MANUF'G CO.* A statute of a State authorizing any person to erect and maintain on his own land a water-mill and mill-dam upon and across any stream not navigable, paying to the owners of lands flowed damages assessed in a judicial proceeding, does not deprive them of their property without due process of law, in violation of the fourteenth amendment of the Constitution of the United States.

*S. C., 5 Sup. Ct. Rep. 441.

The position that the plaintiff in error has been denied the equal protection of the laws was not insisted upon at the argument. The single question presented for decision is whether he has been deprived of his property without due process of law, in violation of the fourteenth amendment of the Constitution of the United States. It is only as bearing upon that question that this court, upon a writ of error to a State court, has jurisdiction to consider whether the statute conforms to the Constitution of the State. The charter of the Amoskeag Manufacturing Company, which authorized it to erect and maintain its mills and dam, gave it no right to flow the lands of others. Eastman v. Amoskeag Manufacturing Co., 44 N. H. 143. The proceedings in the State court were had under the general mill act of New Hampshire, which enacts that any person or any corporation authorized by its charter so to do may erect or maintain on his or its own laud a water-mill and mill-dam upon any stream not navigable, paying to the owners of lands flowed the damages which, upon a petition filed in court by either party, may be assessed by a committee or by a jury for the flowing of the lands to the depth and extent to which they may or can be flowed by the dam. N. H. St. 1868, ch. 20.

The plaintiff in error contends that his property has been taken by the State of New Hampshire for private use, and that any taking of private property for private use is without due process of law.

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States are not so limited, either in terms or in the usage under them. In Massachusetts for more than half a century the mill acts have been extended to mills for any manufacturing purpose. Mass. St. 1824, ch. 153; Wolcott Woolen Manufacturing Co. v. Upham, 5 Pick. 292; Palmer Co. v. Ferrill, 17 id. 58, 65. And throughout New England, as well as in Pennsylvania, Virginia, North Carolina, Kentucky, and many of the western States, the statutes are equally comprehensive.

It has been held in many cases of high authority that special acts of incorporation, granted by the Legislature for the establishment of dams to increase and improve the water-power of rivers and navigable waters, for mechanical and manufacturing purposes, are for a public use. Scudder v. Trenton Delaware Falls Co., Saxt. 694, 728, 729; Boston & R. Mill Corp. v. Newman, 12 Pičk. 467; Hazen v. Essex Co., 12 Cush. 475; Com. v. Essex Co., 13 Gray, 239, 251, 252; Hankins v. Lawrence, 8 Blackf. 266; Great Falls Manuf'g Co. v. Fernald, 47 N. H. 444. In some of those cases the authority conferred by general mill acts upon any owner of land upon a stream to erect and maintain a mill on his own land and to flow the land of others, for manufacturing purposes, has been considered as resting on the right of eminent domain, by reason of the advantages inuring to the public from the improvement of water-power and the promotion of manufactures. See also Holyoke Co. v. Lyman, 15 Wall. 500, 506, 507; Beekman v. Saratoga & S. R. Co., 3 Paige, 45, 73; Talbot v. Hudson, 16 Gray, 417, 426. And the validity of general mill acts, when directly controverted, has often been upheld upon that ground, confirmed by long usage or prior decisions. Jordan v. Woodward, 40 Me. 317; Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 id. 78; Venard v. Cross, 8. Kan. 248; Harding v. Funk, id. 315; Miller v. Troost, 14 Minn. 365 (Gil. 282); Newcomb 7. Smith, 1 Chand. 71 (2 Pin. 131); Fisher v. Horicon Co., 10 Wis. 351; Babb v. Mackey, id. 371; Burnham v. Thompson, 35 Iowa, 421.

The defendant in error contends that the raising of a water-power upon a running stream for manufacturing purposes is a public use; that the statute is a constitutional regulation of the rights of riparian owners, and that the remedy given by the statute is due process of law. General mill acts exist in a great majority of the States of the Union. Such acts, authorizing lands to be taken or flowed in invitum, for the erection and maintenance of mills, existed in Virginia, Maryland, Delaware and North Carolina, as well as in Massachusetts, New Hampshire, and Rhode Island, before the declaration of independence; and exist at this day in each of these States, except MaryIn New Hampshire, from which the present case land, where they were repealed in 1832. One passed comes, the Legislature of the province in 1718 passed in North Caroliua in 1777 has remained upon the statan act (for the most part copied from the Massachuute book of Tennessee. They were enacted in Maine, setts act of 1714) authorizing the owners of mills to Kentucky, Missouri and Arkansas soon after their adflow lands of others, paying damages assessed by a mission into the Union. They were passed in Indi jury. The act of 1718 continued in force until the ana, Illinois, Michigan, Wisconsin, Iowa, Nebraska, adoption of the Constitution of the State in 1784, and Minnesota, Mississippi, Alabama and Florida while afterward until June 20, 1792, and was then repealed, they were yet Territories, and re-enacted after they upon a general revision of the statutes, shortly before became States. They were also enacted in Pennsylva-the State Constitution of 1792 took effect. The pronia in 1803, in Connecticut in 1864, and more recently in Vermont, Kansas, Oregon, West Virginia and Georgia, but were afterward repealed in Georgia.

[Omitting references to State statutes.]

In most of those States their validity has been assumed without dispute, and they were never adjudged to be invalid anywhere until since 1870, and then in three States only, and for incompatibility with their respective Constitutions. Loughbridge v. Harris, 42 Ga. 500; Tyler v. Beacher, 44 Vt. 648; S. C., 8 Am. Rep. 398; Ryerson v. Brown, 35 Mich. 333; S. C., 24 Am. Rep. 561. The earlier cases in Tennessee, Alabama and New York containing dicta to the same effect, were decided upon other grounds. Harding v. Goodlett, 3 Yerg. 41; Memphis City R. Co. v. Memphis, 4 Cold. 406; Moore v. Wright, 34 Ala. 311, 333; Bottoms v. Brewer, 54 id. 288; Hay v. Cohoes Co., 3 Barb. 42, 47, and 2 N. Y. 159. The principal objects no doubt of the earlier acts were grist-mills, and it has been generally admitted, even by those courts which have entertained the most restricted view of the legislative power, that a grist-mill which grinds for all comers at tolls fixed by law is for public use. See also Blair v. Cuming Co., 111 U. S. 363. But the statutes of many

visions of the bill of rights, on which the plaintiff in error relied in the court below, were exactly alike in the two Constitutions. Special acts, authorizing the flowing of lands upon the payment of damages, were passed afterward from time to time; among others, the statute of July 8, 1862, authorizing the Great Falls Manufacturing Company to erect a dam upon Salmon Falls river, which was adjudged by the Supreme Judicial Court of New Hampshire in 1867, in an opinion delivered by Chief Justice Perley, to be consistent with the Constitution of that State, because the taking authorized was for a public use. Great Falls Manuf'g Co. v. Fernald, 47 N. H. 444. The statute now in question, the first general mill act passed by the Legislature of the State, was passed and took effect on July 3, 1868; was held in Ash v. Cummings, 50 N. H. 591, after elaborate argument against it, to be constitutional, upon the ground of the decision in Great Falls Manuf'g Co. v. Fernald, and was enforced without question in Pollard v. Moore, 51 N. H. 188, and in Town v. Faulkner, 56 id. 255. In the case at bar, and in another case since, the State court held its constitutionality to be settled by the former decisions. Amoskeag Manufg

Co. v. Head, 56 N. H. 386, and 59 id. 332, 563; Same v.
Worcester, 60 id.522.

The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail himself at will, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use, in the constitutional sense, is so important and far reaching, that it does not become this court to express an opinion upon it, when not required for the determination of the rights of the parties before it. We prefer to rest the decision of this case upon the ground that such a statute, considered as regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed, with a due regard to the interests of all, and to the public good, is within the constitutional power of the Legislature. When property in which several persons have a common interest cannot be fully and beneficially enjoyed in its existing condition, the law often provides a way in which they may compel one another to submit to measures necessary to secure his beneficial enjoyment, making equitable compensation to any whose control of or interest in the property is thereby modified.

proportion to the benefits received, have been often upheld, independently of any effect upon the public | health, as reasonable regulations for the general advantage of those who are treated for this purpose as owners of a common property. Coomes v. Burt, 22 Pick. 422; Wright v. Boston, 9 Cush. 233, 241; Sherman v. Tobey, 3 Allen, 7; Lowell v. Boston, 111 Mass. 454, 469; French v Kirkland, 1 Paige, 117; People v. Brooklyn, 4 N. Y. 419, 438; Coster v. Tide-Water Co., 3 C. E. Green, 54, 68, 518, 531; O'Reilly v. Kankakee Valley Draining Co., 32 Ind. 169.

By the maritime law, based, as Lord Tenterden observed, on the consideration that the actual employment of ships is "a matter, not merely of private advantage to the owners, but of public benefit to the State," and recognized in the decisions and the rules of this court, courts of admiralty may, when the part owners of a ship cannot agree upon her employment, authorize the majority to send her to sea, on giving security to the dissenting minority to bring back and restore the ship, or if she be lost to pay them the value of their shares; and in such case the minority can neither recover part of the profits of the voyage nor compensation for the use of the ship. Abb. Shipp., pt. 1, ch. 3, §§ 2, 3; The Orleans, 11 Pet. 175, 183; Rule 20, in admiralty, 3 How. 7; The Marengo, 1 Low. 52. If the part owners are equally divided in opinion upon the manner of employing the ship, then according to the general maritime law, recognized and applied by Mr. Justice Washington, the ship may be ordered to be sold and the proceeds distributed among them. The Seneca, 18 Am. Jur. 486; S. C., 3 Wall., Jr., 395. See also Story Partn., § 439; The Nelly Schneider, 3 Prob. Div. 152; S. C., 32 Moak Eng. 76.

But none of the cases thus put by way of illustra tion so strongly call for the interposition of the law as the case before us.

The right to the use of running water is publici juris,

In the familiar case of land held by several tenants in common, or even by joint tenants with right of survivorship, any one of them may compel a partition, upon which the court, if the land cannot be equally divided, will order owelty to be paid, or in many States, under statutes the constitutionality of which has never been denied, will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money, or else order the whole estate to be sold. King v. Reed, 11 Gray, 490: Bentley v. Long Dock Co., 1 McCart. 480; S. C., on appeal, nom. Manners v. Bentley, 2 id. 501; Mead v. Mitchell, 17 N. Y. 210; Richardson v. Monson, 23 Conn. 94. Water rights held in common, incapable of parti-and-common to all the proprietors of the bed and tion at law, may be the subject of partition in equity, either by apportioning the time and extent of use, or by a sale of the right and a division of the proceeds. Smith v. Smith, 10 Paige, 470; De Witt v. Harvey, 4 Gray, 486; McGillivray v. Evans, 27 Cal. 92. At the common law, as Lord Coke tells us, "if two tenants in common, or joint tenants, be of an house or mill, and it fall in decay, and the one is willing to repair the same, and the other will not, he that is willing shall have a writ de reparatione facienda; and the writ saith, ad reparationem et sustentationem ejusdem domus teneantur; whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of Co. Litt. 200 b; 4 Kent Comm. 370.

men."

In the same spirit the statutes of Massachusetts for 175 years have provided that any tenant in common of a mill in need of repair may notify a general meeting of all the owners for consultation, and that if any one refuses to attend, or to agree with the majority, or to pay his share, the majority may cause the repairs to be made, and recover his share of the expenses out of the mill or its profits or earnings. Mass. Prov. St. 1709, ch. 3, 1 Prov. Laws (State ed.), 641, and Anc. Chart. 388; St. 1795, ch. 74, §§ 5-7; Rev. St. 1836, ch. 116, §§ 44-58; Gen. St. 1860, ch. 149, §§ 53-64; Pub. St. 1882, ch. 190, §§ 59-70. And the statutes of New Hampshire for more than eighty years have made provisions for compelling the repair of mills in such cases. Peavey, 7 Fost. 477, 493.

Roberts v.

The statutes which have long existed in many States authorizing the majority of the owners in severalty of adjacent meadow or swamp lands to have commissioners appointed to drain and improve the whole tract by cutting ditches or otherwise, and to assess and levy the amount of the expense upon all the proprietors in

banks of the stream from its source to its outlet. Each has aright to the reasonable use of the water as it flows past his land, not interfering with a like reason. able use by those above or below him. One reasonable use of the water is the use of the power inherent in the fall of the stream and the force of the current to drive mills. That power cannot be used without damming up the water, and thereby causing it to flow back. If the water thus dammed up by one riparian proprietor spread over the lands of others, they could at common law bring successive actions against him for the injury so done them, or even have the dam abated. Before the mill act therefore it was often impossible for a riparian proprietor to use the waterpower at all without the consent of those above him. The purpose of these statutes is to enable any riparian proprietor to erect a mill and use the water-power of the stream, provided he does not interfere with an earlier exercise by another of a like right, or with any right, of the public; and to substitute, for the common-law remedies of repeated actions for damages and prostration of the dam, a new form of remedy, by which any one whose land is flowed can have assessed, once for all, either in a gross sum or by way of annual damages, adequate compensation for the injury.

This view of the principle upon which general mill acts rest has been fully and clearly expounded in the judgments delivered by Chief Justice Shaw in the Supreme Judicial Court of Massachusetts.

In delivering the opinion of the court in a case decided in 1832 he said: "The statute of 1796 is but a revision of a former law, and the origin of these regulations is to be found in the provincial statute of 1714. They are somewhat at variance with that absolute right of dominion and enjoyment which every proprietor is supposed by law to have in his own soil; and in

ascertaining their extent it will be useful to inquire into the principle upon which they are founded. We think they will be found to rest for their justification partly upon the interest which the community at large has in the use and employment of mills, and partly upon the nature of the property, which is often so situated that it could not be beneficially used without the aid of this power. A stream of water often runs through the lands of several proprietors. One may have a sufficient mill site on his own land, with ample space on his own land for a mill-pond or reservoir, but yet, from the operation of the well-known physical law that fluids will seek and find a level, he cannot use his own property without flowing the water back more or less on the lands of some other proprietor. We think the power given by statute was intended to apply to such cases, and that the Legislature meant to provide that as the public interest in such case coincides with that of the mill-owner, and as the mill-owner and the owner of lands to be flowed cannot both enjoy their full rights without some interference the latter shall yield to the former, so far that the former may keep up his mill and head of water, notwithstanding the damage done the latter, upon payment of an equitable compensation for the real damage sustained, to be ascertained in the mode provided by the statute." "From this view of the object and purpose of the statute, we think it quite manifest that it was designed to provide for the most useful and beneficial occupation and enjoyment of natural streams and water-courses, where the absolute right of each proprietor to use his own land and water privileges, at his own pleasure, cannot be fully enjoyed, and one must of necessity in some degree yield to the other." Fiske v. Framingham Manuf'g Co., 12 Pick. 68, 70-72.

sion in other authorities. Lowell v. Boston, 111 Mass. 464-466; S. C., 15 Am. Rep.39; U. S. v. Ames, 1 Wood. & M. 76, 88; Waddy v. Johnson, 5 Ired. Law, 333, 339; Jones v. Skinner, 61 Me. 25, 28; Olmstead v. Camp, 33 Conn. 547, 550; Chief Justice Red field, in 12 Am. Law Reg. (N. S.) 498-500. And no case has been cited in which it has been considered and rejected.

Upon principle and authority therefore, independently of any weight due to the opinions of the courts of New Hampshire and other States, maintaining the validity of general mill acts as taking private property for public use, in the strict constitutional meaning of that phrase, the statute under which the Amoskeag Manufacturing Company has flowed the land in question is clearly valid as a just and reasonable exercise of the power of the Legislature, having regard to the public good, in a more general sense, as well as to the rights of the riparian proprietors, to regulate the use of the water-power of running streams, which without some such regulation could not be beneficially used. The statute does not authorize new mills to be erected to the detriment of existing mills and mill privileges. And by providing for an assessment of full compensation to the owners of lands flowed, it avoids the difficulty which arose in the case of Pumpelly v. Green Bay Co., 13 Wall. 166. Being a constitutional exercise of legislative power, and providing a suitable remedy by trial in the regular course of justice, to recover compensation for the injury to the land of the plaintiff in error, it has not deprived him of his property without due process of law, in violation of the fourteenth amendment of the Constitution of the United States. Walker v. Sauvinet, 92 U. S. 90; Davidson v. New Orleans, 96 id. 97; Hurtado v. California, 110 id. 516; Hagar v. Reclamation Dist., 111 id. 701.

Judgment affirmed.

In another case, decided almost twenty years later, he said: "The relative rights of land-owners and mill. owners are founded on the established rule of the common law that every proprietor through whose territory NEW YORK COURT OF APPEALS ABSTRACT.

a current of water flows in its course toward the sea has an equal right to the use of it for all resouable and beneficial purposes, including the power of such stream for driving mills, subject to a like reasonable and beneficial use by the proprietors above and below him on the same stream. Consequently no one can deprive another of his equal right and beneficial use by corrupting the stream, and by wholly diverting it, or stop ping it from the proprietors below him, or raise it artificially, so as to cause it to flow back on the land of the proprietor above. This rule in this Commonwealth is slightly modified by the mill acts, by the well-known provision that when a proprietor erects a dam on his own land, and the effect is by the necessary operation of natural laws that the water sets back upon some land of the proprietor above-a consequence which he may not propose as a distinct purpose, but cannot prevent-he shall not thereby be regarded as committing a tort, and obliged to prostrate his dam, but may keep up his dam, paying annual or gross damages, the equitable assessment of which is provided for by the acts. It is not a right to take and use the land of the proprietor above against his will, but it is an authority to use his own land and water privilege to his own advantage and for the benefit of the community. It is a provision by law for regulating the rights of proprietors on one and the same stream, and from its rise to its outlet, in a manner best calculated on the whole to promote and secure their common rights in it." Bates Weymouth Iron Co., 8 Cush. 548, 552, 553.

V.

Other opinions of Chief Justice Shaw illustrate the same view. Williams v. Nelson, 23 Pick. 141, 143; French v. Braintree Manuf'g Co., id. 216, 218, 221; Cary v. Daniels, 8 Metc. 466, 476, 477; Murdock v. Stickney, 8 Cush. 113, 116; Gould v. Boston Duck Co., 13 Gray, 442, 450. It finds more or less distinct expres

PLEADING-PARTIES SUBSTITUTION OF SHERIFF'S INDEMNITORS-CODE CIV. PROC., § 1421 STRICTLY CONSTRUED.-Section 1421 et seq. of Code of Civ. Proc., authorizing the substitution of the indemnitors of a sheriff as defendants in an action brought to recover personal property levied upon by him by virtue of an attachment or execution, or to recover damages for such a levy, are new and constitute a serious and im portant innovation upon the law as it stood previous to their enactment. Their constitutionality has been seriously questioned heretofore in this court, and was affirmed by us only after much hesitation and by a divided court. This statute is clearly in derogation of the common law and common right, and by settled rules of interpretation must be strictly construed, and not extended beyond its express provisions and clear import. McCluskey v. Cromwell, 11 N. Y. 593; Sprague v. Birdsall, 2 Cow. 419; 4 Mass. 145, 473. If the terms in which it is couched are susceptible of two interpretations, that one must be adopted which conforms most nearly to the rules of the common law and enchroaches the least upon the individual rights affected by it. The propriety of the legislation in question was sought by the codifiers to be made to appear by a reference to the case of Peck v. Acker, 20 Wend. 605, where it was held that an officer sued for an official act has the right to appoint his own attorney, and manage the defense, notwithstanding he has been fully indemnified by the party whose process he was executing, and such party desires to conduct the defense. When it is considered that such party can easily attain the same advantage in all cases where it is proper that he should be exclusively entitled to defend, by inserting a condition to that effect in his bond of indemnity, the reason hardly seems sufficient

to justify so radical an encroachment upon the rights of a party whose property has been unlawfully seized. Preston v. Yates, 17 Hun, 92. The act is one of doubtful propriety, and the cases must be rare when any useful purpose cau be served by depriving a party of his lawful remedy against the individual who injured him, and compelling him to litigate his demands with persons who were not apparently participants in the wrong out of which his action arose, and as to whose liability and its extent many embarrassing questions may arise. A wide latitude is conferred by the law upon the court in granting or refusing the substitutions provided for by the act, and many cases must arise where, in the exercise of a sound discretion, the substitution applied for should be refused. Noyes v. Davidson. Opinion by Ruger, C. J.

[Decided Jan. 20, 1885.]

JUDICIAL SALE ATTACHMENT -BONA FIDE PURCHASER-CODE CIV. PROC., § 1370-- EXECUTION MUST CONFORM TO STATUTE.-The court in both cases proceeded upon proof that the defendant, Reily, was a resident of the State of New York, and had departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or kept himself concealed therein with like intent. The judgment and attachment were therefore in all respects regular, and justified the issuing of an execution against the property of the defendant. But the statute prescribes the form of the execution where a warrant of attachment has been issued, and levied by the sheriff. Code of Civ. Proc., § 1370. The execution issued did not conform to the statute. It commanded the sheriff to collect the judgment out of the attached personal property of the judgment debtor. and if that was insufficient, out of his attached real property, whereas the case was one under the second subdivision of section 1370, by which the execution must go, first, against the attached personal property, second, against the other personal property of the judgment debtor, and lastly, against the attached real property. We are of opinion that the execution for this reason was void. The statute is peremptory that executions in the cases specified "must require" the sheriff to satisfy the judgment in the way pointed out. The evident intention of the subdivision was to prevent resort to the real estate of an absconding or concealed debtor, resident here, for the satisfaction of a judgment obtained in an action in which an attachment had been issued against him, and levied upon his real estate, until after the remedy against his personal property, both attached and unattached, had been exhausted. This is in accordance with the general policy of the law, founded upon reasons less forcible perhaps now than formerly, but which it is nevertheless the province of the Legislature to preserve. It is well settled that the title of a purchaser in good faith of property sold on execution is not affected by mere irregularities in the process. But under a void process no title can be acquired, and the position of a bona fide purchaser under a void process is no better as against the real owner of the property, than that of one who purchased with full knowledge of its invalidity. Wood v. Colvin, 2 Hill, 566. Place v. Whitaker. Opinion by Andrews, J. [Decided Jan. 20, 1885.]

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that the proposed erections would occasion but a trifling obstruction of the streets, as this was not for the trustees or the court to determine. After a careful examination of the provisions of the act of 1867, ch. 399, we think it is very manifest that while the Legislature intended to confer absolute authority for the building of the bridge through such streets as might be required upon payment of compensation to abutting owners, it is also apparent that they designed to protect the public streets and the crossing of the same, by positive and clear restrictions. These restrictions are equally applicable to all streets which necessarily were to be crossed by the bridge, and no distinction can be made in favor of any portion of the bridge or its approaches which authorizes a disregard of the statute. It must be interpreted according to the ordinary rules applicable to the construction of statutes, and we are not at liberty to consider the advantages arising from the plan of the relators, or the necessity and importance of carrying it into effect for the benefit of the public. Such considerations can have no place in determining questions of the character of the one now before us. While property devoted to one public use may be applied to another, this can only be done when express authority is given for that purpose by the clearest provisions of law. Streets must remain and be used as such and for no other purpose until otherwise directed by legislative enactment. Without this no authority exists for their invasion, or appropriation for a different purpose. The authority claimed by the relator was not conferred by the act in question, and the remedy is by application to the Legisla ture, and not to the court. People v. Thompson. Opinion by Miller, J.

[Decided Jan. 20, 1885.]

EMINENT DOMAIN-GENERAL RAILROAD ACT-RIGHT TO APPEAL FROM AWARD-PRACTICE-ORDER NOT APPEALABLE. (1) In pursuance of an order of the Supreme Court, confirming the award of commissioners in proceedings under the General Railroad Act, to condemn lands belonging to the city of New York for railroad purposes, the railroad company paid over the sum awarded to the city chamberlain, who gave his receipt for the same. Held, that as it did not appear that the city had used, or in some way interfered with the money, such payment and receipt did not deprive the city of its right to appeal from the order. Act of 1850, ch. 140, § 17. (2) Section 18 of the act provides, that after the entry of the order of confirmation and the payment or deposit of the award as directed, the railroad company shall be entitled to enter upon, take possession of and use the land for the purposes of its incorporation, and that the title of the land shall then vest in it; and notwithstanding this, either party may appeal from the order of the confirmation to the General Term. If there the order shall be reversed, and a new appraisal ordered, the title and possession shall remain in the company, and if upon the new appraisal, the award should be diminished, the land-owner must refund the difference, and if it be increased, the company must pay the difference. But in any event, after the payment or deposit of the first award, the landowner has, during the corporate existence of the company, lost all right, estate, and interest in the land, as well as the use thereof. Matter of the N. Y., W. S. & B. R. Co., 94 N. Y. 287. The statute notwithstanding the company takes possession of the lands and pays or deposits the amount of the award, gives the right of appeal to both parties; and a construction which would confine that right to the railroad company alone would be most unjust. (3) This court has no jurisdiction to hear the appeal from the order of reversal. Section 18 provides that on the hearing of the appeal to the General Term, "the court may direct a new ap

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