nite limitations of space except as practicability for use and the occasion for use may give various limits, as the seasons and the needs of business and traffic may change, is so plain that the difference between an appropriation in the two cases needs only to be mentioned. It requires neither argument nor illustration. The one is a public grievance of some sort, but the other is no public grievance of any sort, unless the public use is unreasonably abridged or incouvenienced."

The police power of the Legislature in this State is not omnipotent. It cannot, under the guise of regulation, destroy property rights arbitrarily and without reason. The Legislature can, without doubt, in public harbors, and perhaps in navigable streams, where boats and vessels can be and are used, limit the construction of wharves to the line of navigability; but it is doubtful if such erections could be stopped short of such lines unless some good reason could be shown for such a regulation. Attorney-General v. Booming Co., 34 Mich. 472, 473. And the extent to which private improvements are compatible with the public use must depend upon circumstances, and must always be a question of fact." Ryan v. Brown, 18 Mich. 209. The Legislature of Michigan cannot authorize a municipality to make that a purpresture or nuisance which is not so in fact, if, by so doing, the constitutional rights of any citizen in his person or property is destroyed or infringed. Wreford v. People, 14 Mich. 41; Everett v. Marquette, 53 id. 450; Frazee's Case, 63 id. 396; Robinson v. Miner, 68 id. 556; People v. Armstrong, 73 id. 288.

The power of the Legislature in the matter of harbor and dock-lines upon streams where the bankowner's title in fee reaches to the bed of the river, subject to the public use for purposes of navigation, came before the Supreme Court of the United States in Yates v. Milwaukee, 10 Wall. 497. Yates built a wharf over the low water in the Milwaukee river the width of his lot, and one hundred and ninety-six feet in length, to reach navigable water. The Legislature of Wisconsin had authorized the common council of Milwaukee to establish, by ordinance, dock and wharflines on this river, and to restrain and prevent encroachments and obstructions therein, and to cause it to be dredged. The city by ordinance declared this wharf to be an obstruction to navigation and a nuisance, and ordered it abated. Yates refused to abate it. Thereupon the city contracted with a person to remove it, and Yates filed his bill to restrain such removal. There was no evidence to show that the wharf was an actual obstruction to navigation, or was in any other sense a nuisance. The court, speaking through Mr. Justice Miller, said: "We are of the opinion that the city of Milwaukee cannot, by creating a mere artificial and imaginary dock-line, hundreds of feet away from the navigable part of the river, and without making the river navigable up to that line, deprive riparian owners of the right to avail themselves of the advantages of the navigable channel by building wharves and docks to it for that purpose." It is also further said that the riparian right in the bed of the stream "is property and valuable, and though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed. It is a right of which, when once vested, the owner can only be deprived in accordance with the established law, and if necessary that it be taken for the public good upon due compensation." See also Norfolk City v. Cooke, 27 Gratt. 430, where it is held that the soil under water of the riparian proprietor is not a mere license or privilege, but is property-property in the soil up to the line of navigability, though covered with water.

An intending case, and one in point, is City of Janesville v. Carpenter (Wis.), 46 N. W. Rep. 128. The Leg

islature of Wisconsin in 1887 passed an act "that it shall be unlawful and presumptively injurious * ** to person and property to drive piles," etc., "in Rock river within the limits of the county of Rock, and the doing of such act shall be enjoined at the suit of any resident tax payer, without proof that any injury * ** has been or will be sustained by reason of such act;" and further provided that such acts might be enjoined at the suit of any one having the use of the water-power of the river in said county, without other proof than that the act will cause the river to rise or set back to some extent at the place where the water used to operate his mill or factory, is discharged into the river. This would seem to have been the exercise of the police power of the Legisla ture declaring certain specified things nuisances per se. But the Wisconsin Supreme Court holds that such legislation is void, and in violation of the Constitution, in that it deprives the riparian owner of his property in the river without compensation and without due process of law. The court says: "This is the first time that any Legislature of any enlightened country has attempted to create an action without any cause of action; to authorize a complaint to be made to a court to enjoin the lawful use and enjoyment of one's own property, without proof that any injury or danger has been or will be caused by reason of such act. Tho court holds as follows in regard to the right of the person sought to be enjoined by the city under this act : "That Thomas Lappin, the owner in fee of this ground, has the right to use and enjoy it to the center of the river in any manner not injurious to others, and subject to the public right of navigation, has been too often decided by this court and other courts to be questioned. As a riparian owner of the land adjacent to the water, he owns the bed of the river usque ad filum aquæ, subject to the public easement, if it be navigable in fact, and with due regard to the rights of other riparian proprietors. He may construct docks, landing-places, piers and wharves out to navigable waters if the river is navigable in fact; and if it is not so navigable, he may construct any thing he pleases to the thread of the stream, unless it injures some other riparian proprietor, or those having the superior right to use the waters for hydraulic purposes. Pettibone, 2 Wis. 308; Arnold v. Elmore, 16 Wis. 509; Yates v. Judd, 18 id. 118; Walker v. Shepardson, 4 id. 486; Improvement Co. v. Lyons, 30 id. 61; Delaplaine v. Railroad Co., 42 id. 214; Cohn v. Boom Co., 47 id. 314; Boom Co. v. Reilly, 46 id. 237; Hazeltine v. Case, id. 391. Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property under the protection of the Constitution, and it cannot be taken, or its value lessened or impaired, even for public use, without compensation," or "without due process of law," and it cannot be taken at all for any one's private use. This, in my opinion, is the title also that the defendant Powers holds in the bed of Grand river, opposite his shoreline, and his rights are co-extensive with those given by the Wisconsin Supreme Court to Lappin; and that the law of this State is in complete accord and harmony with that of our sister State of Wisconsin in respect to riparian rights. See especially Ryan v. Brown, 18 Mich. 196; Attorney-General v. Booming Co., 34 id. 462; Sterling v. Jackson, 69 id. 510-512, opinion, Campbell, J.; Middleton v. Booming Co., 27 id. 533, and notes; Watson v. Peters, 26 id. 508, and cases cited in note 1; Booming Co. v. Jarvis, 30 id. 308; Maxwell v. Bridge Co., 41 id. 466.

Jones v.

I do not pass upon the right of the Legislature to

empower the city of Grand Rapids to establish docklines within the limits of the navigable part of the river, if there is such navigable water, and to prevent any encroachments upon or obstructions within the

CHAMPLIN, C. J., did not sit. The other justices and nature, because no fact essential to liability on the

lost during the life-time of the policy. Second Division, Dec. 1, 1891. Reck v. Phoenix Ins. Co. Opinion by Brown, J. 7 N. Y. Supp. 492, reversed.

JUDGMENT-EXECUTION--DECEASED

DEFENDANT

appeared that the corporation had suspended business in 1865, and never resumed, and had coutracted no debts after that time. In Bruce v. Platt the alleged default was in January, 1875, but more than a year previous all the property of the corporation had been sold under execution, and from that time the corporation | PRINCIPAL AND SURETY.-Under the Code of Civil Prohad no property or business, no means of procuring cedure, section 1380, which provides that after the exmoney and no ability or intention of resuming busi-piration of one year from the death of a judgment ness. The result of these cases is summed up by Judge Danforth in Kirkland v. Kille, 99 N. Y. 390-395, as follows: "When the condition of the company is such that the end and object for which it was formed are destroyed, and there is neither an ability nor intention on its part at any time to further prosecute its business, it is no longer required to make the report mentioned in section 12 of the Manufacturing Act." This case does not fall within the rules enunciated in any of the cases cited. The corporation was not in the hands of a receiver at the time of the default. Nor does the evidence show that it was insolvent. Nor had its franchise been abandoned. Under these circumstances the trustees were not relieved from the duty imposed by the statute to file the annual report. Sauborn v. Lefferts, 58 N. Y. 179. (2) Where the referee finds that a defendant, who is sought to be charged as a trustee for failure to file such annual report, was a trustee at the time, and the General Term does not disturb such finding, it will not be disturbed by the Court of Appeals. Second Division, Dec. 22, 1891. First Nat. Bank of Jersey City v. Lamon. Opinion by Brown, J. 8 N. Y. Supp. 444, reversed.

debtor the judgment may be enforced by execution against any property on which it is a lien, land belonging to a deceased judgment debtor may be sold to satisfy a judgment which is a lien on the land, even though the judgment was against decedent and another person jointly, and decedent was surety for such other person. Trethewy v. Ackland, 2 Saund. 48c, note; Reed v. Garvin, 7 Serg. & R. 354; Com v. Mateer, 16 id. 416; Siles v. Brock, 1 Penn. St. 215. Second Division, Dec. 15, 1891. Baskin v. Huntington. Opinion by Follett, C. J. 6 N. Y. Supp. 441, affirmed.

INSURANCE-MARINE-CONDITIONS OF POLICY-SHIPPING-MEASUREMENT OF VESSEL EVIDENCE.-(1) In a marine insurance policy containing a warranty that the insured vessel should not load more than her registered tonnage, the term "registered tonnage" refers to the vessel's carrying capacity, as stated in the ship's papers under which she was sailing at the date of the policy. (2) It appeared that the vessel was built in the United States, and when first launched had an American register of nine hundred and sixteen tons, but was afterward sold to a citizen of Hanover and received a Hanoverian register of three hundred and fifty-one and ninety-seven one-hundredths "commercial lasts." At the time she was lost she carried a load of about nine hundred and one and one-half gross tons. It was also shown that a 6. last' was the equivalent of six thousand pounds. Held, that there was no violation of the warranty. (3) A law of the German Empire, providing a rule for reducing "lasts to tous cannot be used in estimating the carrying capacity of a vessel which was lost before the law was enacted. (4) The law of measurement existing under the acts of Congress, by which one hundred cubic feet of space within a ship's hold are taken as holding a ton of freight, has no application to a vessel sailing under a foreign registry. (5) A ship was insured in January, while at Rotterdam, under a policy containing a warranty not to use ports in Europe north of Autwerp between November 1 and March 1. Held, that having insured the vessel while lying at Rotterdam, which is a port north of Antwerp, the company waived the warranty. (6) In an action on such policy the complaint alleged that the vessel arrived in New York about April 14, but there was no evidence of when she left Rotterdam nor of the usual length of the voyage between that port and New York. Held, that assuming the allegation of the complaint to be correct, the court could not determine as a fact that she left Rotterdam prior to March 1. (7) Evidence that a vessel sailed in May, was seen in the following October and was never seen or heard of again, is prima facie proof in an action on an insurance policy expiring on December 29 following that the ship was

LANDLORD AND TENANT-FRAUD-WAIVER.-A tenant who has leased a house on the false representations of the landlord that the furnace will heat the house does not, by payment of the rent, waive his right to sue the landlord for damages sustained on account of such faise representations. The rule is that, where a fraud is perpetrated in procuring the execution of a contract, the party defrauded has an election of remedies. He may after knowledge of the fraud rescind the contract, and recover back that which he has parted with, or he may continue to perform on his part and maintain an action for such damages as he has sustained by reason of the fraud. Whitney v. Allaire, 1 Hill, 484; 4 Den. 554, affirmed; 1 N. Y. 305; Miller v. Barber, 66 id. 558. If he rescind he must do so immediately upon the discovery of the fraud, and if he continue the use and occupation of the property received under the contract, he will be deemed to have elected to affirm it. Strong v. Strong, 102 N. Y. 69; Schiffer v. Dietz, 83 id. 300. The plaintiff in this case did not rescind. He continued in the use and occupa tion of the premises during the entire term for which they were leased, and paid the rent thereon from month to month, as it became due and payable. He may however have his action for damages unless he has waived the same. Big. Frauds, 184; Cooley Torts, 505; St. John v. Hendrickson, 81 Ind. 350, 352. vision, Dec. 1, 1891. Pryor v. Foster. Haight, J. 7 N. Y. Supp. 4, affirmed.

Second DiOpinion by

MARRIAGE-CONVEYANCE TO HUSBAND AND WIFEJOINT TENANCY-ENTIRETIES.-Laws of 1849, chapter 375, provides that any married woman may take by inheritance or by gift, grant or devise, from any person other than her husband, and hold to her separate use and convey and devise real and personal property, or any interest therein, the same as if she were unmarried. Laws of 1860, chapter 90, and Laws of 1862, chapter 172, provide that the separate property of a married woman shall, notwithstanding her marriage, remain her separate property, and shall not be subject to the control of her husband, or liable for his debts, and that she may sell and convey such property the same as if she were unmarried. Held, that where land is conveyed to the husband and wife in express terms, as joint tenants, they take as such and not as tenants by the entirety. Bertles v. Nunan, 92 N. Y. 152, followed. Dec. 1, 1891. Jooss v. Fey. Opinion by Gray, J. 9 N. Y. Supp. 275, reversed.

MASTER AND SERVANT DEFECTIVE APPLIANCES EVIDENCE OF PRIOR ACCIDENTS.-In an action against a railroad company by a member of a switching gang for personal injuries, where defendant admits that the

TRUSTS

RECEIVERS-CORPORATIONS— EQUITY.—(1) An insurance company deposited some of its funds with a trust company, to be distributed among the certificate-holders in case the insurance company made default in meeting its obligations. Afterward the trustees of the insurance company petitioned for its voluntary dissolution, and a receiver was appointed. Held, that the court had no power to compel the trust company, in the absence of any misconduct on its part, to turn the trust fund over to the receiver to be distributed by him instead of by the trust company. (2) A payment of such fund by the trust company to the receiver, pursuant to an order of court, is not a volun-prietor. tary payment that would prevent the trust company from moving for an order for the repayment of the fund. (3) Where the trust company waits ten months before moving for such order of repayment, the receiver, in accounting with the trust company, should be allowed for payments made by him in good faith out of said fund, under order of court. (4) Such pay-investigations have extended, only for the purpose of ments, which have been made by the receiver to attorneys in the case for their fees, should be repaid by them to the receiver, and by them to the trust company. Dec. 15, 1891. In re Voluntary Dissolution of Home Provident Safety Fund Ass'n of New York. Opinion by Peckham, J. 15 N. Y. Supp. 211, reversed.

on the part of the traveller is, according to the definition of Bigelow, C. J., "confined to those cases of inevitable necessity or unavoidable accident arising from sudden and recent causes, which have occasioned temporary and impassable obstructions in the highway." Campbell v. Rice, supra. When a traveller has notice of the existence of the obstruction, and can reach his destination with his vehicle by another route, which is more circuitous, but not unreasonably long, he will not be permitted, merely for the sake of convenience, to pass without incurring liability in a civil action by the more direct way over the land of an abutting proFarrelly v. City of Cincinnati, 2 Disn. 516. The objection that the rule licenses the taking of private property for public use without compensation is met by the argument that the grant of the easement in the highway carried with it the right in a case of supreme necessity to pass over adjacent land. The principle has been heretofore invoked, so far as our

avoiding responsibility for damages in civil actions. The rule is said to have originated in England at a time when there were no public officials who were liable to indictment or to respond in damages for permitting the highways to become impassable. Where there is a town ordinance forbidding persons to lead or drive horses along the sidewalk, which is the portion of the street intended for the use of pedestrians, and a violation of the ordinance is an indictable offense, and where at the same time the commissioners of the city are liable criminally for failure to keep the streets proper in passable condition for vehicles of all kinds, an individual who deliberately and with full notice of the state of the street, loads his wagon and drives along it to the dangerous point, will not be allowed to evade punishment for violating the letter of the law on the ground that it was absolutely necessary to do so in order to escape danger to his property, which he has willfully put in peril. Especially will this principle hold good in a case like that at bar, where in order to avert danger the traveller insists that he may drive upon the sidewalk, and make it impass

VENDOR AND VENDEE-BONA FIDE PURCHASERRIGHTS OF PERSONS IN POSSESSION.-(1) S. executed to one W. two instruments purporting to convey land to W. They were however intended by both parties to be collateral security for advances of money from W. to S. S. by his tenants remained in possession. Subsequently, with S.'s knowledge, consent and authority, W. conveyed the premises for valuable consideration to plaintiff. Held, that plaintiff obtained a good title, the fact of S.'s acquiescence in the sale taking the case out of the general rule that the possession of a third person is notice to the purchaser of the rights of the possessor. (2) In such case S. would be estopped to assert any claim to the title or right to redeem. Wilson v. Parshall (Sup.), 7 N. Y. Supp. 479; Genuerich v. Ul-able for foot passengers, to whose exclusive use it is by rich (Sup.). 12 id. 353; Noxon v. Glen, 2 N. Y. St. Rep. 661; McNeil v. Bank, 46 N. Y. 325; Bank v. Livingston, 74 id. 223. Second Division, Dec. 22, 1891. Minton v. New York El. R. Co. Opinion by Haight, J. 8 N. Y. Supp. 959, affirmed.

ABSTRACT OF VARIOUS RECENT de-
CISIONS.

CRIMINAL LAW-VIOLATION OF ORDINANCE-DRIVING ON SIDEWALK.~The violation of a city ordinance against driving on a sidewalk cannot be justified ou the ground of necessity arising from the muddy condition of a street, where such condition was known to defendant before he started to drive along it, and where, to avoid unloading his wagon, he drove on the sidewalk, though such street was the only passage to his place of business. It is admitted to have been the well-settled law in England that where a highway became obstructed and impassable from temporary causes, a traveller might go extra viam upon the adjacent land, without subjecting himself to liability in an action of trespass brought by the owner. 2 Bl. Com. 36; Bullard v. Harrison, 4 Maule & S. 387, 393; Taylor v. Whitehead, 2 Doug. 744-748. This extraordinary rule was subsequently recognized by the courts of this country, and the right to do with impunity what would ordinarily subject a person to liability in an action for damages was generally held to rest upon the doctrine of necessity. Campbell v. Race, 7 Cush. 408. The right

law devoted, and escape liability under an indictment on the plea of necessity, when he could have unloaded his tobacco even after his team was in the mud, and have moved the wagon back or forward. Pedestrians have rights that are intended to be protected by such ordinances, and among them that of carrying their wares as well as safely passing by the public footway. The man who transports his goods on wheels must, when the street proper becomes impassable, join the caravan of footmen till such time as those charged with the duty can be induced or driven to repair it, rather than rush his team over the sidewalk and render it also perillous or disagreeable for the larger number of persons for whose comfort and convenience the protective ordinance was passed, merely in order to ship his goods more rapidly. The fact that the footway had not been paved made it only more susceptible to injury from hauling heavily-loaded wagons over it, and rendered it more important to pedestrians that the ordinance should be rigidly enforced. In our geographical location, where the climate is milder, carriages are not often subject to delay by immense blocks of snow and ice, suddenly deposited in highways, as in the colder regions of the northern and north-western States of this country, or in the higher latitude of England, and while our public roads are often rendered temporarily and for short distances impassable on account of sudden washes, no case involving the claim of right on the part of a traveller to go extra viam has hitherto arisen in this State. rather than ice and snow, is the common enemy of those who travel our highways on foot or in carriages,

Mud,