Dexter v. The Providence Aqueduct Company. in; that the defendants, knowing the premises, in December, 1832, dug, sunk, and cut a deep well, fountain, and pit in an adjacent close of the depth of thirty feet, and of the diameter of twenty-five feet, and dug a trench therefrom, and laid and placed iron pipes or watercourses, leading from the well or fountain to the city of Providence, and have ever since continued to do so; whereby they have diverted the water from the said spring and watercourse, and so diverted the natural flow of the spring and watercourse, that the same are dry for a considerable portion of the year, and the water is thereby hindered and prevented from running and flowing, as it had been immemorially accustomed to run and flow, over and across the said meadow, irrigating and fertilizing the same. Now, the title of the plaintiff to the meadow is not controverted; and if the gravamen, thus stated, is made out by sufficient proofs, I have no doubt, that the plaintiff is entitled to relief under the bill. The case of Balston v. Bensted (1 Camp. R. 463), is directly in point, if, indeed, the same principle of law had not been fully recognized from very early times.1 The defence principally turns upon a denial of the matter of fact, that the spring and watercourse have been diverted at all, or, if diverted at all, that it has been caused or occasioned by the digging of the well and fountain and water pipes of the company. In short, the company attribute the diminution of the water to other natural causes, wholly independent of their well, fountain, and aqueduct. There is a large body of evidence, introduced into the cause by both parties, which is, in many of its most important bearings, contradictory or conflict 1 See Tyler v. Wilkinson (4 Mason R. 397). Hazard v. Robinson (3 Mason R. 272). Surry v. Pigot (Popham R. 166). Dexter v. The Providence Aqueduct Company. ing. The weight, which ought to be attached to it, therefore, must, in a great measure, depend upon the comparative credibility of the respective witnesses. It appears to me, that under these circumstances, and in matters, connected with the common business of practical life, where the experience of a jury might be of great advantage to aid the Court in its ultimate decision, it is exactly such a case, as ought to be submitted to a jury upon an issue to be framed for that purpose. I am the more disposed to have this course pursued, because both the bill and answer admit, that there has been one trial of the question by a jury, on the common law side of this Court, in which a verdict was found for the plaintiff. That verdict is alleged by the defendants to have been entirely unsatisfactory, founded upon very imperfect evidence, and materially affected by the new evidence, which has since been obtained. I cannot, therefore, give it full weight under such circumstances, especially as a new trial was intended to be moved for, but was waived upon a supposed suggestion of the Court, that small damages only were given, and it might be as well to leave the merits to be decided in another action, or in a bill in equity. If another verdict is found on the same side, it will almost of itself be decisive. If found the other way, it will take away the entire force of the former verdict, which is now greatly relied upon by the plaintiff, as a strong ground for a perpetual injunction. What I propose, then, is, to have an issue framed to be tried by a jury at the bar of this Court to ascertain, (1.) Whether there has been any diversion and drying of the spring or watercourse, occasioned by the digging and sinking of the fountain and aqueduct of the defendants. (2.) If there has been any such diversion and drying, what damages have been sustained thereby by the plaintiffs, since the former suit was Dexter v. The Providence Aqueduct Company. brought, and before the present bill was filed; or, if it be thought preferable by the parties, (3.) what is the permanent diminution or loss in the value of the plaintiff's meadow land, occasioned by the defendants' digging and sinking the fountain and the aqueduct, as stated in the bill.1 1 See Hammond v. Hall (10 Simon R. 551). CIRCUIT COURT OF THE UNITED STATES. Spring Circuit. MASSACHUSETTS, MAY TERM, 1841, AT BOSTON. BEFORE {Hon. JOSEPH STORY, Associate Justice of the Supreme Court. DAVIS, District Judge. FRANCIS BARING AND OTHERS V. THEODORE LYMAN, EXECUTOR. Where, by a banker's circular, a banking commission was named on credits or bills" used east of the Cape of Good Hope; " it was held, that the drawing of bills under a letter of credit, in favor of a third person, who, upon the faith of the letter of credit, takes and receives the same for value, and is entitled to hold and use them on his own account, is a use of the letter of credit within the terms of the circular, although the bills are never presented for acceptance or payment. Thus, the agent in Boston of certain London bankers, gave to A. a letter of credit, by which B., in Canton, was authorized to value upon them to the amount of £25,000 sterling at six months' sight, at Canton, the customary commission on bills, used under similar letters, being two per cent. The credit was obtained to furnish funds in part for loading the ship of A., which was consigned to B., at Canton. Bills were accordingly drawn in Canton by B. payable to C., but as there was no demand whatever at that time for exchange, the latter agreed to send the bills to his agent in Boston, and to give A. the option of replacing them, with other funds, or to have them forwarded to London, to the account of C. On the arrival of the bills in Boston, A. concluded to reimburse C. by remitting dollars to Canton, Baring et al. v. Lyman. and the bills and letters to the London bankers were destroyed. An action, brought by the London bankers for the customary commission on the bills, was defended on the ground, among others, that they had never been used; but it was held, that the defence was not maintainable. Any partner in a firm may be the agent of a third person in drawing bills in favor of the firm, for advances made to such third person, under an express authority. A firm may negotiate its own paper to one partner, and the latter will thereby become the owner thereof. So, a firm may take a separate negotiable security from one of its partners, and hold and use the same for its own purposes. A fortiori, where he acts as the agent of third persons. ASSUMPSIT for the recovery of money, viz., five hundred pounds sterling, claimed as due to the plaintiffs for commissions, at the rate of two per centum, upon twenty-five thousand pounds, alleged to have been drawn for by Robert B. Forbes, in bills upon them, under a letter of credit, given by them to the defendant's testator, dated 7th of June, 1838. By that letter, Forbes was authorized to value upon them to that amount, at six months' sight at Canton, on account of the testator the bills to be duly honored, when presented at the banking house of the plaintiffs, if drawn within twelve months from said date. And in case of accident to Mr. Forbes, whereby he should be prevented from attending to the business, Messrs. Russell & Co., of Canton, were authorized to use the credit for account of the testator. By a receipt in writing of the same date, the testator, in consideration of the said credit, agreed to provide in London, sufficient funds to meet the payment of whatever (bills) might be negotiated, by virtue thereof, at maturity of the bills, and also to give security therefor, here, at any time previous, if required; and that the property, which should be purchased by means of said credit, and the proceeds thereof and the policies of insurance, and bills of lading, were thereby pledged as collateral security for the payment as above provided, and |