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Commonwealth where every person is presumed to will is not liable to his landlord for the destruction know the law, to regard the authoritative exposic of the premises by fire by the mere negligence of tion of the law by the regularly constituted judi- the tenant. The court said: “ The diligence of the cial tribunals as public property, to be published counsel for the plaintiff has not shown us any case freely by any one who may choose to publish them. in which it has been held that a tenant at will is And such publication may be of cvery thing which liable to hi, landlord for injuries occasioned by liis is the work of the judge, including the syllabus negligence in kindling or keeping fires in stoves, and the statement of the case, as well as the opin- / fireplaces or chimneys intended to be used for heation. The copyright of the volume does not intering the premises. Such a case is presented in Scott fere with such free publication. It protects only v. IIule, 16 Me. 326, but the defendant had a verdict. the work of the reporter — that is to say, the in In the case cited of Parrott v. Burney, 1 Deadly, 10.5, dexes, the tables of cases, and the statement of App., 1 Sawyer, 435, the tenancy was from year to points made, and authorities cited by counsel. year, and the damage was for explosive substances Wheaton v. Peters, 8 Pet. 653; Little v. Gouli, 2 stored in the building. There is nothing in Uniteil Blatchf. 165 and 362; Chuse v. Sanborn, 4 Cliff. 306; States v. Bosturick, 94 U. S. 53, or Robinson v. Wheeler, Myers v. Callaghan, 5 Fed. Rep. 726; S. C., 10 Biss. 25 N. Y. 252, that decides that a tenant it will is 139; Myers v. Callaghan, 20 Fed. Rep. 411. Coun liable for the negligent burning of a building let. sel for complainants cite Judge Drummond's dic The law of negligence has been largely developed tum in Afyers v. Callaghun, 5 Fed. Rep. 728, that in recent times, and is argued that there is no 'if an adeqnate compensation was paid by the State sound reason why it should not be applied in the to the reporter for the work done by him in pre same manner to real property as to personal, and to paring volumes of reports, then whatever property tenancies at will as well as to tenancies for a term. there was in the volumes arising from the labors of It may well be doubted whether the existing conthe reporter ought to belong to the State and not dition of the law of negligence is altogether satisto him.' “Now,' say counsel, ‘in Ohio the State | factory, and whether it would be well to establish undertakes to pay the reporter adequate compen an unlimited liability on the part of every tenant at sation,' and by the statute that amount is all he can will of real property to his landlord for every inreceive. He has no perquisites. The theory is jury occasioned by any act of negligence on his that the State pays him for his labor, and that part, or that of his servant in the use of the propthe result of his labor belongs to the State.' crty. IIowever this may be, we do not feel at lil)And counsel proceed to claim that 'this is precisely crty to overturn long-established rules of law govthe theory upon which the State is entitled to the erning real property. It is competent for landlords decisions of the judges. They are paid a stipu- and tenants to make in writing any stipulations lated price or sum for their services, and this by they see fit. When there is no writing, and the their consent — impliedly given when they accept tenant takes the precarious estate of a tenancy at the office — is in full of their services, and the re will, w? think it has been generally understood sult of their labors is the property of the State.' that the tenant is not liable for the burning of the Mr. Drone, in his work on Copyright, page 161, tenement let occasioned by his negligence or that states substantially the same view, although he says of his servant in the keeping of fires set for the he has seen no sound, clear exposition of the lair purpose of, and in the places designed for, heating governing copyright in judicial decisions, and that the premises so that they may be fit for occupation. it has not been expressly declared in any modern The fact that no action can be found to have been case that copyright will vest in a judicial decision. maintained for this cause of action is strong eviMr. Justice Story, one of the judges who concurred dence of this. The ancient law has been acquiin the decision in Wheaton v. Peters, sail (in Gray | esced in, and consciously or unconsciously the cost v. Russel, 1 Story, 21) that while it was held in that of insurance to the landlord, or the value of the case that the opinions of the court, being pub- risks, enters into the amount of the rent. We lished under the authority of Congress, were not think on this part of the case the exceptions should the proper subject of copyright, it was as little be sustained. If the law were to be established doubted by the court that Mr. Wheaton had a anew, it might with much force be contended that copyright in his own marginal notes, and in the ar the test of the liability of the defendants in this guments of counsel as prepared and arranged in his case ought to be the same as to all of the property work. Whether the State, through its reporter, lestroyed, but it woull deserve consideration can secure a copyright in the opinions of its judges, whether in such a case as this is, it would not be is however not a question arising, nor can it be dle more reasonable to hold the defendants liable only cided in this case. It is sufficient to say that the for gross negligence amounting to reckless conduct. State has not adopted legislation for such copyright, the existing law has however introduced many disthat the enactments providing for copyright for the tinctions. A bailee of chattels for hire is liable volumes of reports, or of the reports, do not au only for the want of ordinary care, but if the bailee thorize copyrights of the opinions of the judges." promises to return the chattel absolutely, then he is

liable, although the chattel is destroyed by inevitaIn Lathrop v. Thaycr, Massachusetts Supreme ble accident. Ilurvey v. Jurray, 136 Vass. 377. Court, January, 1885, it was hold that a tenant at The obligations of tenants under a written lease to

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their landlords, except as far as statutes have im- that R. and others had played at the house of H. posed arbitrary liabilities, are determined by the H. was called and testified that he saw no gaming construction of the lease. But landlords are at in his house. He was then asked: “Was there a common law exempt from many liabilities toward roulette table in the room?H. was not compelled their tenants for the condition of the premises, to answer this question (2). which they are under toward strangers, who are 2. It is alleged that a bond sued on was given lawfully upon the premises while in their posses- for an illegal consideration, viz., the sale of the sion. Bowe v. Hunking, 135 Mass. 380; Woods v. commerce of a ship, contrary to law. The obligee Naumkeag Steam Cotton Co., 134 id. 357; S. C., declines to answer not only as to this fact, but also 45 Am. Rep. 344. Disregarding the use of fire in as to what the consideration was, and why the clearing land and for other agricultural purposes, debt had not been proved in bankruptcy, as having and confining ourselves to the case at bar, which is a tendency to accuse him of violating the law. His the use of fire in stoves for the purpose of heating refusal is proper (3). the building, it is manifest that in many cases pru 3. On the trial of S. a witness is asked whether dence might require a reconstruction of the chim- he knows the handwriting of an advertisement reneys and the purchase of new stoves. In many ferring to the libel, and if so, to name the person. cases it would be difficult to determine how far the He is bound to answer the first question but not the bad condition of the premises contributed to the second (4). injury occasioned by the fire. We think the rea 4. In an action on a bill of exchange a witness is sonable rule is that if landlords would protect shown the bill and asked whether it has ever been themselves from the mere negligence of their ten- in his possession. He replies that as he is under ants, they should take a written lease with proper indictment for usury in the same transaction he covenants; and that a tenant at will is not liable to must refuse to answer. His refusal is proper (5). his landlord for the mere negligence of himself or 5. Fornication was a crime in Tennessee in 1860. his servants in kindling or guarding fires in stoves In that year on the trial of an action for seduction, or chimneys for the purpose of heating the prem : a witness is asked “if he knew of any man having ises; that he is liable for willful burning, and also had sexual intercourse with the girl?” The witfor such gross negligence as amounts to reckless ness may refuse to answer (6). conduct.'

6. A witness is asked: “Do you know of any

one, other than yourself, being engaged in gamRULES AS TO TIE PRIVILEGES OF WIT-bling during the last two years?” The question is NESSES.

proper (7). III.

7. In an action of trespass a witness is asked to

state what he knew in regard to any person tearing RULE. No witness is compelluble against his obvjec- down and carrying away the property in contro

The witness refuses to answer because it tion to answer questions (a), or to produce documents versy. or other evidence (b) which may have a tendency to ren

may tend to criminate himself. The witness' reder him amenable to indictment for a crime (1), or

fusal is legal (8). prosecution for a penalty (c).

8. A witness is asked whether he had not testi

fied falsely in a former case. The witness may re(A.)

fuse to answer (9). 1. R. was sued on a bill of exchange which it 9. In an action of libel a witness is asked (being was alleged had been won at gaming. It appeared shown the manuscript of the publisher's libel):

“Did you write this paper?” The witness may re(1) Cartwright v. Green, 8 Vesey, 107 (1802); Bishop of London v. Fytche, 21 Brown, 97; Er parte Tymes, 11 Vesey, 525; fuse to answer (10). Claridge v. Floare, 14 ill. 05; Paxton v. Douglas, 16 id. 241; Oliver v. Haywood, 1 Austr. 83; Amherst v. Žallis, 9 N. II.

10. In an action on a promissory note a witness 208 (1837); Janvren v. Scammon, 29 id 290 (1854); Macarty v. is asked whether the note was not given for a gamBard, 9 La. 381 (18:36); State v. Foster, 23 N. H. 35+ (1851); Eaton v. Farmer, 46 id.

200 (1865); Warner v. Lucas, 10 Ohio, ing consideration. The witness may refuse to an340 (1810); Phelin v. Kenderline, 20 Penn. St. 363 (1853); Poole v. Perritt, 1 Speers, 128 (1812); State v. Edwards, 2 N. & M.

swer (11) 13 (1819); Floyd v. State, T Tex. 251 (1851); Peoplo v. Mather, 11. E. being indicted for sending a challenge 4 Wend. 229 (1830); State r. Olin, 23 Wis. 318 (1868); Kirschner v. State, 9 Wend, 140 (1839); State v. Talbott, 73 Mo. 358 (1881); and fighting a duel, several witnesses are asked: State v. Marshall, 36 Mo.401 (1865); Byass v. Sullivan, 21 Ilow. Pr. 52 (1860); Re Tappan, 9 id. 394 (1851); Pleasant v. State, 15

“Have you heard E. acknowledge that he sent å Ark. 624 (1855); People v. Lobman, 2 Barb. 216 (1848); Curtis v. challenge to or fought a duel with F.?” They reKnox, 2 Denio, 341 (1845); Hayes v. Caldwell, 10 Ill. 33 (1818); Taney v. Kemp, 4 II. & J. 3.18 (1818); Higdon v. Heard, 14 Ga.

fuse to answer.

Their refusal is proper.(12)
255 (1853); Nealo v. Connigham, 1 Cranch C. C. 70 (1802);
United States v. Strother, 3 id. 432 (1809); Southard v. Rex (2) Fisher v. Ronalds, 12 C. B. 763 (1852).
ford, 6 Cow. 258 (1826); Lister v. Boker, 6 Blackf. 439 (1813); (3) Paxton v. Douglass, 19 Vesey, 227 (1812).
Emery's case, 107 Mass. 173 (1871); Sodusky v. McGee, 5 J.J. (4) R. v. Slaney, 5 C. & P. 213 (1832).
Marsh. 621 (1831); Newcomb v. State, 37 Miss. 383 (1859);
Campbell v.
State, 23 Ala. &2 (1853); Ré Lewis, 39 How. Pr.

(5) Cates v. Hardacre, 3 Taunt. 424 (1811). 155 (1869); People v. Herrick, 13 Johns. 82 (1816); United

(6) Lea v. Henderson, 1 Cold. 146 (1860). States v. Dickinson, 2 McLean, 328 (1840); State v. Staples, 47 (7) Richman v. State, 2 J. Greene, 532 (1850). N. H. 113 (1806); Douglass v. Wood, 1 Swan, 393 (1852): Forney (8) Prentz v. Cheeney, 11 Iowa, 469 (1861). v. Fernell, 4 W. Va. 729 (1871); Moloney v. Dows, 2 Hilt. 247

(9) State v. Blake, 28 Me. 353 (1845). (1858); East v. Chapinan, 1 Mood. & Malk. 46 (1897); King v. Adly, 1 M. & Rob. 94 (1831); Friend's case, 13 How St. Tr. 16;

(10) Simmons v. Holster, 13 Minn. 253 (1868). Rosewell's case, 10 id. 105; Hardy's case, 24 id. 720; O'C'org

(11) Poole v. Perritt, 1 Speers, 128 (1842). ley's case, 26 id. 1351; Lord Macclesfield's case, 16 id. 1146. (12) Stato v. Edwards, 2 N. & Mc. 13 (1819).

In case 1 the answer might have a tendency to fied, and in such case an affirmative answer would involve him in the danger of being indicted as the have a tendency to implicate him. But clearly as keeper of a common gambling house, or as a con the question was put, lie could not claim the benefit spirator to defraud. “The question here put," of the rule.” said Maule, J., “is just one of the questions which In case 7 it was said: “The act of the defendwould necessarily have been asked on an indict- ants, for which the plaintiff sought to recover, is a ment against the witness for keeping a gambling criminal offense under our statute, and the queshouse. I think it is impossible to put a case of the tion asked tended to obtain from the witness cermore proper application of the rule which protects tain facts which would prove that he was present, a witness from committing himself.” And Wil- and aided in the commission of the offense. An liams, J., added: “I think it was abundantly clear answer directly given to the questions propounded that his answer in this case must have a direct ten- by the plaintiff might not have implicated the witdency to place the witness in danger.”

ness, but when once answered the right of defendIn case 2 the chancellor said: "I have looked | ant to a cross-examination to test the truth of such into all the cases, and I find the distinctions be- answer, might have compelled the witness to state tween questions supposed to have a tendency to some fact that would have been a link in the chain criminate and questions to which it is supposed an of evidence that would criminate him.” In a case in swers may be given, as having no connection with its facts almost like case 7 (13), Redfield, J.,said: “It the other questions, so very nice that I can only say is well settled that a witness is not bound to anthe strong inclination of my mind is to protect the swer any question, the answer to which might tend party against answering any question, not only that to criminate him, i. c., expose him to a prosecution has a direct tendency to criminate him, but that for crime or penalty. It is doubtless true that forms one step toward it.”

this is not the most effectual mode of shielding the In case 3 Lord Tenterilen said: “He is not bound witness, for the mere fact of claiming the privto do that, because it may be himself. You can- ilege tends very much to show him guilty the not only not compel a witness to answer that which offense. A rule that the testimony should be given will criminate him, but that which tends to crimin- in all cases, but should never after be used for the ate him, and the reason is this, that the party would purpose of procuring a conviction of crime, would go from one question to another, and though no be more conducive to the reasonable ends of justice, question might be asked, the answer of which and at the same time assord full protection to the would directly criminate the witness, yet they witness. But such is not the law. It is well setwould get enough from him whereon to found a tled that the testimony, is freely given, may be afcharge against him.”

terward used against the witness. I know indeed In case 4 Lord Mansfield held the witness' course of no rule to exclude the testimony being given in proper. “Your questions," said he, “ go to connect evidence against the witness, even in a prosecution the witness with the bill, and they may be links in of a criminal nature, although the witness were a chain."

compelled to testify under the requisition of a court In case 5 the party might be the witness himself. of justice (14). It is obvious then that the only “It is well settled,” said the court, “that where it security of the witness is in silence. The rule reasonably appears that the answer will have a ten-should be so administered as to afford full protecdency to expose the witness to a penal liability, or

tion to the witness, and at the same time escape to any kind of punishment, or to a criminal charge, simulated excess.

From this view of the the witness is not bound to answer the question. subject it is olivious that the witness must first deIf the fact to what he is interrogated forms but a termine whether he can make a full disclosure withlink in the chain of testimony which would convict out stating any fact tending in any degree to crimhim, he is protected, without being requested to inate bimself. If he informs the court upon oath explain how he might be criminated by the answer. that he cannot testify without criminating himself, If it be one of a series of questions, the answers to the court cannot compel him to testify, unless they all of which would establish his criminality, he are fully satisfied such is not the fact, i. e., that the cannot be compelled to answer that or any of the witness is either mistaken or acts in bad faith, in series."

either of which cases the court should compel the In case 6 the court said: “The witness should witness to testify.” have answered this question. An affirmative or

In case I it was said: “The question asked the negative reply could not in any manner have crim

witness referred to the manuscript from which this inated him. The inquiry does not embrace all the libel was published, and which was already in evigaming within the knowledge of the witness, but dence in the cause. A libel is an indictable offense, only such gaming as was known to the witness in

the direct tendency therefore of this question was which he was not a party. If the witness had not

to criminate the witness." been excepted in the interrogatory, there would

In case 10 the court said: “If he had won the bare been more propriety in his refusing to answer,

amount at gaming unlawfully, which was very supas he might have been a party himself to all the (13) Chamberlain . Wilson, 12 V't. 491 (1810). games within his knowledge within the time speci- be inadmissible against him. See rule.

(14) The evidence would be given under duress, and would

*

posable, any affirmative answer must have led to such a tendency, and that the State had closed the time and place, if not attending circumstances, there, the defendant, upon his cross-examination, the how and wherefore of his knowledge — all would naturally have asked at what time and place, asked under the guise of his own assumed right of and under what circumstances was the confession concealment, but leading to the exposure of his made. I presume it will be admitted that an anguilt, and the man would have been soon trapped, swer to this might have implicated the witness — or at least exposed to a prosecution for gaming. then he was permitted to refuse to answer — that The judge therefore decided correctly in permitting would be the result. the witness to be silent upon his own assurance 1. D. is required to produce on a trial certain that his answer would tend to criminate himself. books and papers. D. refuses because they may The decision was within both the reason and letter criminate him. D.'s refusal is proper (15). of the adjudications and the meaning of the rule, “The same rule,” it was said in case 1, "which that no man shall be compelled to criminate him excuses a witness from answering questions wbich self; by which I understand he may not expose him- may tend to convict him of a crime or misdemeanor self to the charge of a crime or misdemeanor by undoubtedly excuses him also from producing law, in contradistinction to dishonor or liability to books or papers, the contents of which may he a civil action, and the protection must be full.”' used as evidence against him, or tend to the same

In case 11 it was said: “I presume no rule on result." the subject of evidence is better established than

JOHN D. LAWBON. that a witness shall not be bound to criminate himself. The only difficulty arises in the application of the rule. It must be admitted that if the ques

JIRY REFORU, tion has a tendency to criminate the witness, according to the rule he is not bound to answer.

the public and the lawyers are getting very BOTIL

much dissatisfied with trial by jury as now conBut it is said the court should decide this point as ducted. It seems to be taken for granted however by to some questions. It is utterly impossible that

most persons who discuss the subject that the only the court can slecide without possessing a full and

alternative to the present arrangement is trial before

judges or referees. This the people will not yet, nor complete knowledge of all the facts which it may

for a long time, be got to consent to, and ought not. be important for the witness to conceal; therefore

It is the purpose of this paper to point out another something must necessarily be left to the witness; plan, which seems to the writer feasible. Before doing and we have the same security for a knowledge of so it will be well to note what are the good and bad the fact that he may be implicated by the answer,

points of the present system which we must seek to

retain or get rid of. that we have for the knowledge of any other fact.

The goodness of the jury system and its only advanIt was urged that an ignorant man might not be tage, as compared with a trial by judges—though as able to decide. The court will always so instruct compared with the barbarous methods of trial in use a witness as to enable him, if he possess any under

before it, it has a thousand points of advantage-is the standing, to determine whether he may be jeopar- | introduction of a las element into the courts. For

merly the jury now and then had to stand between dized by the answer, and if the answer may form

the citizen and tho arbitrary power of the government. one link in a chain of testimony against him, lie is Now it is occasionally needed to protect them against not bound to answer. Phillipps on Ev. (Dunlap's the professional narrowness of lawyers. It is someEd.) 206; 2 Espinasse Dig. 405; 16 Vesey, Junr., times asked: Is it not reasonable to support that men 242; M'Nally, 257; King v. L. G. Gordon, 2 Doug

of special training, experts who spend their lives de.

ciding cases, will always be a better tribunal than lass, 593; Joneyırooil. v. Silirin, 3 Atkins, 276;

men taken from the community at large? But the Cates v. Tardacre, 33 Taunt. 424. Under the act

common sense of the community answers: No; not against duelling all who counsel one to fight, as always; though perhaps usually. And the cases in well as the seconds who are engagel, are made lia which it will not, will be likely to be those that touch ble to the penalties. If the witness stood in either

the popular heart. But even if a trial by judges would of those relations le might be implicated by an

always be more likely to result right, still it would not

be possible to make the people believo so. Courts enswering the question. It is not necessary that the tirely in the hands of lawyers would be looked upon privity of the witness should at once appear by the witb a little distrust; and it is nearly as important answer; nor will it be contended that that would that people generally should trust the courts as that have been the case here; but it may have formed they should be in fact trustworthy.

The necessary weak points of the jury trial, that is, a link in a chain of testimony extracted from him,

those which are not due to general maladministration or obtained from other sources, which may have

in the State, are, in the writer's opinion, the requiretended to criminate him. It was contended that mei of unanimity in their verdict, and what is of in a cross-examination the witness may have refused much more importanco, their power to render a gento answer any question which had a tendency to eral verdict. If a juryman is allowed to vote simply criminate him. This appeared to admit the whole

“guilty” or “not guilty,” or to fiud simply “ for the

plaintiff” or “for the defendant,” nothing in a great argument of the counsel for defendant, for both

many cases can prevent him from looking upon himthe court and the witness thought that it might, self in the light of a judge or an arbitrator, or rather when connected with other matters, produce the -an ideal that still lingers in the popular mind-someconsequence. But supposing the answer had not

(15) Byass v. Sullivan, 21 How. Pr. 52 (1860).

WATER AVD IPATER-COURSES YILL-DAUS

REASONABLE USE OF WATER,

MAINE SUPREME JUDICIAL COURT.

PEARSON V. ROLFE.* A mill-owner upon a floatable river is not under legal obliga

tion to provide a public way, for the passage of logs over his dam, better than would be afforded by the natural condition of the river unobstructed by his mills. The right of passage is to the natural flow of the river or its

equivalent. Nor is he under a legal obligation to furnish any public pas

sage for logs over his dam or through his mills at a time when the river at such place, in its natural condition, does not contain water enough to be floatable if unobstructed by mills, although the river is generally of a float

able character. Whenever a river, with mills upon it, is floatable, aud the

mill-owuer and those who want to float logs past the mills are desirous of using tho water at the same time, all parties are entitled to reasonable use of the common boon; the right of passage is the superior, but not an usurping, excessive er exclusivo right; the law authorizing mills puts some incumbrance upon the right of pas

sage. What is a reasonable use is a question of fact, and depends

upon the size and nature of the stream, tho extent and kinds of business upon it, and all other circumstances. N report.

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thing resembling the magistrate of ancient or patriarchal times, who sat in the gate or market place, and dealt out justice without much thought of fixed rules. No matter how strongly the judge may charge the jury that they must find their rerdict according to the facts and the rules of law as expounded to them from the bench, they will too often insist upou taking the law into their own hands, and will decide on some general notion of what is about right, or on some mere whim or notion or cranky scruple. There is often no way of preventing this, or even of finding out upon what ground the jury have decided. Now if instead of a general verdict, the jury were called on to make a finding of specific facts, on which the court was to decide what the rights and liabilities of the parties were, and to pronounce the decision; if instead of being asked, “Is the prisoner guilty of murder?” they were asked, “Did he actually kill the deceased ?” “ If so, was it done intentiovally?” etc., is there any doubt that they would as a general rule be more likely to report the facts correctly than they now are to render a correct verdict? A juryman who now will consent to no verdict but “not guilty,” because he believes that capital punishment is unjustifiable, becauso he wou't send such a pretty woman as the prisoner to State's prison; because he likes a drink on Sunday himself, and does not think it fair to punish the man who provides it; because he thinks a man has a right to shoot the seducer of his wifo or daughter, or for any other reason which the law excludes, would not dare to sign a written finding that the prisoner did not kill the deceased, or was insane when he did it, or did not steal goods, or did not sell liquor or Sunday; or his overnico scruple would not oppress him so much if he felt that he was not pronouncing sentence, but merely getting up a narrative.

Again, the increased complication of cases nowadays, and the degree of special knowledge, not of law such as judges have, but of business and affairs, needed to comprehend many of them, make them unfit to be taken before juries as now composed.

The following changes in the jury are suggested as tending, while preserving the lay element in the court, to obviato to some extent the evils abovo mentioned and others :

1. A jury of less than twelve would answer all purposes, and be less clumsy and exponsive. Therefore let the parties fix the number of jurymen--not to exceed fivo except by permission of the court-by agreement, if they can agree. If not, let it be fixed at from three to fire, with power in the court to increase it in any case, and with a right in any person accused of a capital crime to have it consist of at least five members.

2. If the parties can agree upon the persons who aro to serve as jurymen, or any of them, and they are willing to serve, or are on the jury list and liable to serve, let such persons be placed on the jury. This power the parties now partially have in the selection of referees.

3. Give to either party or the court the right to require a special finding of facts, either the whole or on any special point, and to have it in writing if desired. In this case the jury might be allowed the assistanco of an expert to help them put their statement into form. Either party in the court should have the right to present to the jury in writing questions material to the case, which the jury should be compelled to answer in their finding. The court should declare the conclusions of law resulting from the facts found.

4. The dissent of one jurynan,or perhaps of two if the jurs consists of five or more, should not, except in prosecutions for capital crimes, prevent the finding of any fact.

HENRY T. TERRY.

The first action is for trespass. The writ dated August 31, 1880, alleged that the defendant at Oldtown, August 30, 1880, with force and arms willfully, and without the consent of the owner, let loose the plaintifts' boom in the Penobscot river by reason whereof a large number of logs ran by the boom into the plainti tfs' mill-poud, and the plaintiff's were put to great expense in sluicing the logs out of the poud. ad damnum one thousand dollars.

Tho second action is case. The writ, dated September 18, 1880, alleges that the defendant on the first day of Juno, 1875, and various other times between that day and the date of the writ, unlawfully erected, maintained and kept a dam across the Penobscot river at Great Works in Oldtown, and unfawfully omitted, neglected and refused to provide a suitable sluice or place of passage for logs being driven down the river by the plaintiff, and caused great loss, damage and detention to the plaintiff in his business of driving logs. old damnum five thousand dollars.

The two cases were submitted together to the law court to reuder such judgment as the rights of the parties require in each case; damages if any, to be assessed at nisi prius.

Wilson and Woodward), and John l'urncy, for Pear

son.

Chas. P. Stetson, and J. A. Blanchard, for Rolfe.

PETERS, ('. J. The controversy in these cases arises from a conflict between log-owners and mill-owners as to their respective rights in the use of the water at certain falls in the Penobscot river at West Great Works, in the town of Oldtown Pearson represents millowners, Rolfe represents log-owners. Pearson has mill structures upon his privilege, with such appendages as dams, sluices and booms. Rolfe had a quantity of logs in the river which he was unable to drive over tbe dam at Pearson's mills, unless Pearson would shut down his mill-gates, thereby suspending his own business of manufacturing, until water enough should accumulate in his mill-pond to float the logs over. This

*S. C., 70 Me. 380.

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