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-poud 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 landsjto 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 Redfield, 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.

a current of water flows in its course toward the sea has an equal right to the use of it for all resonable 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 stopping 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 v. Weymouth Iron Co., 8 Cush. 548, 552, 553.

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.]

MANDAMUS - COMMISSIONERS OF PUBLIC WORKSPERMIT TO BRIDGE COMPANY.-In this case the writ of mandamus issued to the commissioner of public works and the department of parks of the city of New York requiring them to grant a permit to the board of trus. tees of the New York Bridge Company to enter upon certain streets and erect columns therein to support a platform for the bridge over the streets was improperly granted. It could not be sustained upon the ground

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 Legislature, and not to the court. People v. Thompson. Opinion by Miller, J.

[Decided Jan. 20, 1885.]

Act of

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. 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, aud 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, dnring 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

praisal before the same or new commissioners in its discretion." It does not appear in the order appealed from that it was not made in the exercise of the discretion thus confided to the Supreme Court, and we cannot look at the opinion to see upon what ground the new appraisal was ordered. In re Kings Co. Elevated Railway Co., 82 N. Y. 95. Besides this is a special proceeding, and appeals to this court are allowed only from final orders in such proceedings, and this order is not final. Code, § 190; In re Moore, 67 N. Y. 555; In re Horsfalls, 77 id. 514; Roe v. Boyle, 81 id. 305. The order does not become final, because the appraisal to be made by the new commissioners may, under section 18, be final and conclusive. It is nevertheless not a final order, and if the result should be that the company will not be able to bring to this court for review the question of law upon which, it appears from the opinion of the General Term. the new appraisal was ordered, it will be the fault of the law and not of this court. If however upon the new appraisal the commissioners should proceed upon a fundamentally erroneous view of the law,and one that does either party injustice, the ingenuity of counsel may possibly discover some mode for correcting the error, and if necessary, for procuring a review of the question in this court. In re P. P. & C. I. R. Co., 85 N. Y. 489, 496. Matter of New York & Harlem R. Co. Opinion by Earl, J. [Decided Jan. 20, 1885.]

UNITED STATES SUPREME COURT ABSTRACT.

REMOVAL OF CAUSE-ACTION AGAINST ADMINISTRATOR--CITIZENSHIP.- A proceeding in a State court against an administrator, to obtain payment of a debt due by the decedent in his life-time, is removable into a court of the United States when the creditor and the administrator are citizens of different States, notwithstanding the State statute may enact that such claims can only be established in a Probate Court of the State, or by appeal from that court to some other State court. All debts to be paid out of the assets of a deceased man's estate shall be established in the court to which the law of the domicile has confided the general administration of these assets. And the courts of the United States will pay respect to this principle in the execution of the process enforcing their judgments out of these assets, so far as the demands of justice require. But neither the principle of convenience nor the statutes of a State can deprive them of jurisdiction to hear and determine a controversy between citizens of different States when such a controversy is distinctly presented, because the judgment may affect the administration or distribution in another forum of the assets of the decedent's estate. The controverted question of debt or no debt is one which, if the representative of the decedent is a citizen of a State different from that of the other party, the party prop. erly situated has a right, given by the Constitution of the United States, to have tried originally or by removal in a court of the United States, which cannot be defeated by State statutes enacted for the more convenient settlement of estates of decedents. These views have been expressed by this court in many cases where they were proper grounds for the decisions made. The latest of them, in which the others are reviewed with care, is that of Ellis v. Davis, 109 U. S. 485, in which the opinion was delivered by Mr. Justice Matthews. Among the cases there cited with approval is that of Gaines v. Fuentes, 92 U. S. 10. This court said: "The Constitution imposes no limitation upon the class of cases involving controversies between citizens of different States to which the judicial power

of the United States may be extended, and Congress may therefore lawfully provide for bringing, at the option of either of the parties, all such controversies within the jurisdiction of the Federal judiciary." "And if by the law obtaining in the State, customary or statutory, they can be maintained in a State court. whatever designation that court may bear, we think they may be maintained by original process in a Federal court, where the parties on one side are citizens of the State of Louisiana, and on the other citizens of other States." This court reversed the judgment of the Louisiana courts, and held that the application for the removal should have been granted, and ordered the case to be remanded to the parish District Court, with directions to make the transfer. The cases of Payne v. Hook, 7 Wall. 425, and Hyde v. Stone, 20 How. 170, are to the same effect. In the latter case the court said, with much force and propriety, that it "had repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different States cannot be impaired by the laws of the States which prescribe modes of redress in their courts, or which regulate the distribution of their judicial powers." The case of Boom Co. v. Patterson, 98 U. S. 403, is also in point. That was a special proceeding to condemn property under laws of the State of Minnesota in the exercise of the right of eminent domain, which commencing before special commissioners to assess damages, was by appeal brought into a court of general jurisdiction, and from there removed, rightfully as this court held, into the Circuit Court of the United States. The case before us was one removable into the court of the United States. Hess v. Reynolds. Opinion by Miller, J. [Decided Jan. 5, 1885.]

PRACTICE-WISCONSIN-CUSTODY OF RECORD-WRIT OF ERROR TO WHAT COURT DIRECTED-STATUTE OF

LIMITATIONS-RECORD.-As by the practice of Wisconsin the record itself is remitted by the State Supreme Court to the inferior court from whose judgment appeal was taken, a writ of error from the Supreme Court of the United States should, in a proper case, be brought to such inferior court, though the judgment of the latter was the judgment which the State Supreme Court directed it to enter. It is the record of the judicial decision or order of the court found in the record-book of the court's proceedings which constitutes the evidence of the judgment, and from the date of its entry in that book the statute of limitations begins to run. This is a writ of error to the Circuit Court of Wisconsin for the county of La Crosse, and a motion is made to dismiss it. The first ground of the motion is that the writ should have been directed to the Supreme Court of the State, and cannot be rightfully directed to the Circuit Court of the county. It appears that the defendant in error here was plaintiff in the Circuit Court of La Crosse county, and brought its action against Polleys and others for relief in regard to their obstructing the navigation of Black river and its branches. The Circuit Court denied the relief and dismissed the bill. On appeal the Supreme Court of the State reversed this judgment and delivered an opinion that plaintiff was entitled to relief in the premises; and it made an order remanding the case to the Circuit Court, with directions "to enter judgment in accordance with the opinion of this (that) court." It appears by the cases cited to us, and by the course of proceedings in such cases in the Wisconsin courts, that the record itself is remitted to the inferior court, and does not, nor does a copy of it, remain in the Supreme Court. Though the judgment in the Circuit Court was the judgment which the Supreme Court ordered it to enter, and was in effect the judgment of the Supreme Court, it is the only final

judgment in the case, and the record of it can be found nowhere else but in the Circuit Court of La Crosse county. To that court therefore according to many decisions of this court, the writ of error was properly directed to bring the record here for review. Gelston v. Hoyt, 3 Wheat. 246; Atherton v. Fowler, 91 U. S. 146. It is insisted that the writ of error was not brought within time. Section 1008 of the Revised Statutes declares that " no judgment, decree, or order of a Circuit or District Court, in any civil action at law, or in equity, shall be reviewed in the Supreme Court, on writ of error or appeal, unless the writ of error is brought or the appeal taken within two years after the entry of such judgment, decree, or order." This rule is applicable to writs of error to the State courts in like manner as to Circuit Courts. Scarborough v. Pargoud, 108 U. S. 567. In the case of Brooks v. Norris, 11 How. 204, construing the same language in the judiciary act of 1789, it is said, "that the writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the Appellate Court, and the period of limitation prescribed by the act of Congress must be calculated accordingly." This language is repeated in Mussina v. Cavazos, 6 Wall. 355, and in Scarborough v. Pargoud, supra. Though the writ of error in this case seems to have been issued by the clerk of the Circuit Court of the United States on the 10th day of May, 1884, and is marked by him for some reason as filed on that day, it is marked by the clerk of the court to which it is directed, namely, the Circuit Court of La Crosse county, as filed on the 29th day of that month. It is not disputed that this is the day it was filed in his office. This must be held to be the day on which the writ of error was brought. The judgment which we are asked to review by this writ was entered in the Circuit Court of La Crosse county, May 24, 1882. It is signed by the judge on that day, and is expressly dated as of that day, and it is marked filed on that day over the signature of the clerk of that court. This is the judgment, the entry of the judgment, and on that day the plaintiff in error had a right to his writ, and on that day the two years began to run within which his right existed. It seems that the courts of Wisconsin, either by statute or by customary law, keep a book called a judgment docket. In this book are entered, in columus, the names of plaintiffs who recovered judgment, and the defendants against whom they are recovered. In another column is entered the amount of the principal judgment and the costs and the date of the judgment itself. This record is kept for the convenience of parties who seek information as to liens on real estate or for other purposes. This docket however is made up necessarily after the main judgment is settled and entered in the order-book, or record of the court's proceedings, and it may be many days before this abstract of the judgment is made in the judgment docket, according to the convenience of the clerk. It is the record of the judicial decision or order of the court found in the record-book of the court's proceedings which constitutes the evidence of the judgment, and from the date of its entry in that book the statute of limitations begins to run. It follows that the writ of error in this case was brought five days after the two years allowed by law had expired; and it must be dismissed. Polleys v. Black River Imp. Co. Opinion by Miller, J.

[Decided Jan. 12, 1885.]

MUNICIPAL BONDS-NEGOTIABLE-IOWA STATUTE-CONSTITUTIONAL LAW-SUBJECT EMBRACED IN TITLE. -The decisions of this court are numerous to the effect that municipal bonds, in the customary form, payable

to bearer, are commercial securities, possessing the same qualities and incidents that belong to what are strictly promissory notes, negotiable by the law-merchant. There is no reason why such bonds, issued under the authority of law, and made payable to a named person, or order, should not, after being indorsed in blank, be treated by the courts as having like qualities and incidents. That they are so regarded by the commercial world cannot be doubted. Manfg. Co. v. Bradley, 105 U. S. 180. But it is contended that the word "negotiable," in the Iowa statute, is qualified by that clause, in the same enactment, which provides that bonds issued under it shall be "payable at the pleasure of the district at any time before due." These words were not incorporated into the bond. But if the holder took subject to that provision, as we think he did, it is clear that this option of the district to discharge the debt, in advance of its maturity, did not affect the complete negotiability of the bonds; for by their terms, they were payable at a time which must certainly arrive. The holder could not exact payment before the day fixed in the bonds. The debtor incurred no legal liability for non-payment until that day passed. The authorities bearing upon this question are cited in Byles Bills (Sharswood's ed.), ch. 7; 1 Daniel Neg. Inst., § 43 et seq.; Chit. Bills, 525 et seq. In School-district v. Stone, 106 U. S. 183, it was held in reference to similar bonds issued by another independent school district in the same county, that their recitals were not sufficiently comprehensive to cut off a defense resting upon the ground that the bonds there in suit were in excess of the amount limited by the State Constitution, and consequently invalid. Applying that decision to the present case, counsel for the district insists, that as these bonds may be open to such a defense as was made in School-district v. Stone, they cannot be deemed negotiable by the law-merchant; in other words, that the negotiability of the instrument ceases whenever the maker is permitted, as against a bona fide holder for value, to establish a defense based upon equities between the original parties. But such is not the test prescribed by the statute defining the jurisdiction of the Circuit Courts of the United States. If a promissory note is expressed in words of negotiability, the right of the holder of the legal title to invoke the jur. isdiction of the proper Circuit Court of the United States is not affected by the citizenship of any prior holder, or by the circumstance that the party sued asserts, or is able to make out, a valid defense to the action. The Constitution of Iowa provides that "every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." The title of the statute under which those bonds were issued is, "An act to authorize independent school-districts to borrow money and issue bonds therefor for the purpose of erecting and completing school-houses, legalizing bonds heretofore issued, and making school-orders draw six per cent interest in certain cases. The act contains six sections; the fourth providing that "all school-orders shall draw six per cent interest after having been presented to the treasurer of the district and not paid for want of funds, which fact shall be indorsed upon the order by the treasurer." As there are two kinds of school-districts in Iowa, "district township" and "independent district," the latter carved out of the former, it is contended that the title to the act in question embraces two subjects: one relating to matters in which independent school-districts alone are concerned, and the other to matters in which the township district and independent districts are,