BRIG CITY OF ERIE v. CANFIELD.

intended to be used exclusively in navigating the waters of this state, and the brig in question was in this particular strictly within the terms of the act, and if there is no admiralty jurisdiction, is within the reason for its enactment, notwithstanding a part of its voyage was upon the waters of another state.

The fact that the boom embraced a portion of the navigable waters of the Manistee river, capable of being navigated by vessels like this, does not necessarily constitute it a nuisance which may be abated by force. It appears by a map which is in evidence by stipulation, that the boom is in the river between Manistee City (then a considerable village) and the lake, and it would seem from the judge's opinion, which is returned, that considerable evidence was taken to show its necessity, and whether it did or did not constitute an unnecessary impediment to navigation. The circuit judge examined this question elaborately, and reached the conclusion that it did not. The evidence on which he acted is not returned, and the correctness of his conclusion on its weight and credibility has not been argued. It is clear that on a river like the Manistee, which is navigable by steamers for a long distance, but down which logs by the million are floated and gathered in booms every season-where, in fact the principal industry consists in cutting, floating, and manufacturing into lumber the forests in its vicinity, and where the river is more valuable for this floatage than for any other navigation; the necessity and convenience of this floatage must be considered in any rules laid down for the public use of the stream, and the need of booming facilities to render the floatage of value. Indeed, to take away the privilege of booming would be to strike a fatal blow at the principal commerce on the stream; for the vessels which ply between Manistee and other ports are loaded principally with the lumber which the mills along the shores of Manistee lake and river are enabled, by means of the privilege of floating and booming logs upon these waters, to manufacture and place upon the market.

BRIG CITY OF ERIE'' v. CANFIELD.

It is just and reasonable, therefore, and conducive to the best interests of commerce, that the right of navigating the river should be exercised with due regard to the necessity for booming facilities, and the former is not so far paramount as to render the latter a nuisance whenever and wherever it encroaches upon waters navigable by the large vessels which enter this stream. The question whether a nuisance or not, is complicated; it must depend in any case upon the particular facts, and the necessities and convenience of each interest must be considered and compared before the proper conclusion can be reached. The circuit judge was in position to do this, but we are not. In his opinion the boom is spoken of as having been in existence for eighteen years, and it is fair to presume that persons navigating the stream would long since have taken steps for its removal if they found it more an impediment than an aid to the commerce thereon.

If we are correct so far, we do not see how there can have been jurisdiction in admiralty for the negligence complained of. The tort consisted in an injury to a structure which pertained to the adjacent land just as much as a wharf or a building erected thereon would have done. It must be assumed on this record, where we cannot review the facts, to have extended no farther out than the land owner, with due regard to navigation, might properly extend it, If this is so, a wrongful injury to it would not be a marine injury, and could not be redressed in the court of admiralty. And in this view the extent or point of commencement of the voyage would be immaterial.

The proceedings must be affirmed, with costs.

GRAVES, J., and CHRISTIANCY, CH. J., concurred.
CAMPBELL, J.

I regard the statute in question as designed to authorize proceedings analogous to those in admiralty, and to cre

BRIG CITY OF ERIE' V. CANFIELD.

ate a lien not enforceable in any other way. It seems to me to come clearly within the cases cited on the argument, in which the supreme court of the United States has held such legislation invalid, as well as against those which hold that vessels enrolled and licensed for the coasting trade cannot be subjected by state legislation to liabilities and burdens which shall affect the title, or charge the vessel as such, and not through its owners. I think the proceedings void.

Nathan C. Carter v. George Snyder.

Practice in circuit courts: Set-off: Costs. Where the only defense set up to an action of assumpsit is a settlement, and that subsequently defendant did work for plaintiff to the amount of twenty-one dollars, and the court instructs the jury that if they find the settlement sustained they should throw out all matters upon either side that entered into that settlement, and then find a balance one way or the other as to the items of deal after the settlement, and the jury find a verdict for plaintiff for only twenty-five dollars, it cannot be said that the plaintiff is entitled to full costs on the ground that he established a claim of one hundred dollars which was reduced by set off.

Bill of exceptions: Testimony: Presumption. It will not be presumed that the bill of exceptions does not contain all the evidence, where the form and wording of it indicates that the whole testimony of each witness is given verbatim and it concludes with the recital that "the evidence was here closed."

Heard July 15. Decided July $2.

Error to Ionia Circuit.

Lemuel Clute, for plaintiff in error.

W. W. Mitchel, for defendant in error.

GRAVES, J.

Snyder sued Carter upon the common counts, and added a special count for damages for failure to saw some logs for

him.

CARTER v. SNYDER.

Carter pleaded the general issue and appended a notice of set-off.

On the trial Snyder gave some evidence that in the fall of 1868 he left some logs at Carter's mill, which the latter agreed to saw, and afterwards refused to do so. He also gave some evidence that he sold Carter a pair of mules, and paid him sixty-three dollars in money, and further, that Carter had the benefit of.a few logs belonging to him, and also agreed to deduct fifty cents per thousand for some sawing. Carter gave evidence that all matters were settled between the parties in the fall of 1868, and he also claimed that Snyder owed him twenty-one dollars for sawing done afterwards.

The court instructed the jury that if they found the settlement sustained by the testimony, they should throw out all matters upon either side that entered into that settlement, and then find a balance either one way or the other upon the testimony as to the items of deal after the settlement. The jury found a verdict for the plaintiff for twenty-five dollars.

Snyder then claimed to be allowed full costs, on the alleged ground that his demand as established on the trial exceeded one hundred dollars, and was reduced by set off. Carter opposed this, and insisted that the evidence on his side as to dealings with the plaintiff, except what was said as to a matter of about twenty-one dollars, was given exclusively to prove a settlement, and not as a counter claim, and that upon the evidence, and as the case must have been understood by the jury, there was no ground for saying that the plaintiff established a claim of one hundred dollars. He contended that he was entitled to costs. The court gave judgment, however, in favor of Snyder, for full costs, and Carter asks that this be corrected.

The record, we think, shows pretty plainly that the amount established on the trial in Snyder's favor was considerably below one hundred dollars, and did not go above some forty-six dollars. His claim, as nominally made, did,

CARTER v. SNYDER.

indeed, extend further, but as the only matter of set-off was limited to twenty-one dollars, and under the charge the jury must have found that there was no subsisting demand which would entitle Snyder to more than twentyfive dollars, after deducting the set-off of twenty-one dollars, there is no room for saying that a claim for above one hundred dollars was established, and reduced below that sum by set-off.

It was said in argument that it did not appear that all the evidence was returned, and that, to support the judgment, we ought to intend that sufficient circumstances were shown. This is well enough answered by saying that we do not concur in this representation of the state of the record. We think it does appear that all the evidence is returned. The frame work of the bill of exceptions, and the whole verbiage, indicate that the whole testimony of each witness is given verbatim, and that all evidence is included. And the recital at the end of the proofs, "that the evidence was here closed," confirms this view. We think the court was mistaken in allowing costs to Snyder. They should have been given to the other side.

The judgment below, as to costs, must be reversed, and Carter must have judgment here for his costs in both courts.

The other Justices concurred.

The People v. Jacob R. Chappell.

Statute construed: Careless use of fire-arms: Malice. A prosecution under "An act to prevent the careless use of fire-arms" (Comp. L., § 7550), can not be had, and there can be no lawful conviction under it, where the use is not careless, but intended and malicious.

In such prosecutions the absence of malice is a statutory requisite, and no statutory ingredient of any offense can be disregarded. If lacking, the offense cannot exist.-Koster v. People, 8 Mich., 431.