mineral lands. Defendant offered in evidence a permit from an authorized officer of the government to enter upon the lands. He also offered in evidence a receipt from the agent of the lead mines for the payment in full of the rent. Held, that the money having been paid by the defendant to the authorized agent of the government the payment was good, and was a full discharge, though the agent had not accounted for it. United States v. Gear,* 3 McL.,

571.

§ 972. to personal property.- Impending dangers give no immunity to one man to destroy the property of another. Hence in an action for the destruction of liquors, it is no defense that the building adjacent to that in which the liquors were, and the latter building with it, burned almost immediately after the destruction of the liquors by the defendant, and that they would have been lost thereby without the action of the defendant. City of Richmond v. Smith, 15 Wall., 429.

$973. A person who holds goods in virtue of a respondentia bond, with an assignment of the bill of lading, may recover damages in an action of trespass against one who takes them unlawfully to the full value of the property, though it exceeds his debt on the bond. Pacific Insurance Co. v. Conard, 1 Bald., 138.

§ 974. A third person who receives the timbers, etc., of a scow that has been tortiously broken up is guilty of trespass if he act knowing that the breaking up of the scow was tortious. Voss v. Baker,* 1 Cr. C. C., 104.

§ 975. To enable a plaintiff to maintain trespass or trover for an injury to personal property the plaintiff must have had at the time the injury was done either actual or constructive possession of the thing, as well as a general or constructive property therein. Corfield y. Coryell, 4 Wash., 371.

$96. In trespass for forcibly taking possession of personal property, when the plaintiff's case rests on proof of possession, title in the defendant is always a perfect defense. Whalen v. Sheridan,* 17 Blatch., 12.

$977. And this being a defense for the defendant, it will also be a defense for the officer under whose order the defendant took possession, although the order of the officer was illegal. Ibid.

$978.

to personal property by agents of United States.- Proof of probable cause is a good defense to an action of trespass brought by a claimant against a revenue collector who has seized property as being forfeited to the United States. Averill v. Smith, 17 Wall., 91. § 979. An action of trespass for wrongfully seizing property as being forfeited to the United States does not lie until the United States courts have determined the validity of the seizure. Gelston v. Hoyt, 3 Wheat., 246.

§ 980. by officer - Writ valid on face.- If, while the debtor and his family are temporarily absent from home, goods of his, exempt from seizure and sale by statute, are taken by an officer in execution, an action of trespass will lie for the wrongful taking. The official character of the officer, or of the officer issuing the writ under which he acted, need not be proven. Wymond v. Amsbury,* 2 Colo. T'y, 213.

$981. Distress by officer of court without jurisdiction is a trespass for which an action will lie. Wise v. Withers, 3 Cr., 331.

§ 982. A writ valid on its face will protect the officer executing it notwithstanding it may have been irregularly issued or may be voidable for want of jurisdiction. Ex parte Thompson, 15 Am. L. Reg. (N. S.), 522; 1 Flip., 507.

§ 983.

by person presenting requisition. The person who acts as the agent of the state demanding the extradition of a fugitive, in presenting the requisition to the governor of the state upon which the demand is made, is not bound to ascertain at his peril whether the indictment constituting the foundation of the requisition charges a crime within the meaning of the acts of congress authorizing the extradition. In re Titus, 8 Ben., 411.

$984. Wron:ful conversion.- Where, in an action of trespass de bonis asportatis, the question of ownership was involved, evidence showing that a sale upon which plaintiff's title depended was fraudulent was pertinent and admissible, and the exclusion of such evidence is error. Dutsch v. Wiggins, 5 Wall., 539.

§ 985. In order to sustain trover or trespass de bonis asportatis, plaintiff must have had, at the time of the alleged taking or conversion, either possession or the right to immediate possession of the goods. Abbott v. McCartney, 1 Holmes, 82.

§ 986. Owners of personal property are not obliged to treat every act of a third person who invades their right of property or possession as constituting a tortious conversion of the property, but they may, if they see fit, waive the tort, and in that state of the case they may sell the property and convey a good title, and their vendee may, upon demand and refusal, maintain trover. A sale of property is not void because the property was not in possession of the vendor. Such a sale is not a sale of the right of action, but a sale of the thing itself,

447

and good to pass the title against every person not holding the same in good faith for a valuable consideration without notice, and a fortiori against a wrong-doer. Tome v. Dubois, 6 Wall., 553. § 987.

by collector or treasury agent.- A refusal by a United States collector to deliver imported goods upon tender of the duties is a tortious conversion of them that warrants an action of trespass or trover. Conard v. Pacific Ins. Co., 6 Pet., 262; S. P., Tracy v. Swartwout, 10 Pet., 80.

$988. A treasury agent, acting under color of law or under a mistaken sense of duty, cannot be held liable in trespass for taking property under a mistake as to its character. McLeod v. Calicott,* 10 Int. Rev. Rec., 94.

§ 989.

by military officer.— A military officer cannot lawfully seize property and use it for the assistance of his forces in proceeding against the enemy. Harmony v. Mitchell, 1 Blatch., 549.

§ 990. Goods may be seized to prevent their falling into the hands of the enemy in case of war only when the danger is imminent and urgent, not remote. Ibid.

§ 991. A military officer seizing goods for public service in case of war is not personally liable therefor. The owner must seek indemnity of the government. Ibid.

§ 992. To justify a military seizure of property of a trader, to prevent it falling into the hands of the enemy, there must be an immediate, impending danger of such event. It is not sufficient to justify such seizure to show that the goods, animals and wagons seized could be advantageously used in co-operation with the army, or that the expedition will be promoted by the seizure. Mitchell v. Harmony, 13 How., 128.

§ 993. H., a trader, was allowed to follow in the rear of an American expedition into Mexico, and to trade with the people at such places as the Americans subdued. After some time he determined to leave the American forces, but their commander refused to allow him to remove his goods, wagons and animals, and retained possession of them for the use of the army. The animals died, and subsequently when the Americans evacuated a town they were obliged to leave behind them the goods and wagons, which fell into the hands of the Mexicans, and were confiscated by them. Held, that the American commander had no right to detain the trader and his goods in the first instance; that having done so unlawfully he was liable for their value, and that this liability was not divested by the refusal of the trader to accept the commander's offer to restore the goods after it became unsafe for the trader to take them, and impossible for him to retain them. Ibid.

§ 994. An action of trover cannot be maintained against a military officer of the United States who, pursuant to an act of congress, seizes a vessel laden with arms and munitions of war about to be taken to Canadian insurgents just across the boundary line,- especially where on the night succeeding the seizure the vessel was wrecked with all its stores, without the fault of the officer who seized it. Stoughton v. Dimick,* 29 Vt., 535.

§ 995. The defendant Sheridan was a major-general in the army of the United States and was in command of an army force in the Indian country. By his order a subordinate officer investigated certain irregularities in the Indian department of the Indian Territory, and found that the plaintiff had induced some friendly Indians to go and steal cattle with a view of being sold to the government under army contracts. The cattle were seized by the order of General Sheridan, and the plaintiff was confined and put under guard. Held, that the fraudulent possessor of such cattle cannot recover for them against the officer who, for such reasons, ordered their seizure. Holmes v. Sheridan,* 1 Dill., 351.

§ 996. A military commander may, under circumstances of necessity, take the private property of the citizen without being liable personally, in which case the owner must look to the government for compensation. But to justify such taking the necessity must be actual and urgent and immediately pressing. The existence of such necessity is a question for the jury. Ibid.

997. A military officer who seizes and destroys a printing press and causes the arrest and detention of the owner thereof is liable for damages. Berry v. Fletcher,* 1 Dill., 66.

§ 998. Liability of United States for torts of its officers and agents. - The United States government is liable for a tort of one of its officers done by its authority and subsequently ratified and adopted by it. Wiggins v. United States,* 3 Ct. Cl., 412.

§ 999. Where the proceeds of the sale of captured property never reach the treasury of the United States, but are given by a treasury agent to a person falsely claiming to be the owner of the property, the United States are not liable therefor to the true owner. The government is not liable for the illegal acts of its agents. Spencer's Case,* 8 Ct. Cl., 288.

§ 1000. Torts committed by an officer in the service of the United States do not render the government liable in an implied assumpsit, even though the acts done were apparently for the public benefit. Whiteside v. United States, 3 Otto, 257.

§ 1001. The government is never guilty of a tort nor liable for the tortious or unnecessarily arbitrary acts of its officers; nor are such acts an aggravation of damages in an action against the government. Johnson's Case, * 2 Ct. Cl., 391.

§ 1002. Assault and battery.— Assault is an offer to strike, beat or commit an act of violence on the person of another, without actually doing it or touching his person. Johnson v. Tompkins, 1 Bald., 600.

§ 1003. Battery is the touching or commission of any actual violence to the person of another in a rude or angry manner. Ibid.

§ 1004. An assault is an offer or attempt by force to do a corporal injury to another. United States v. Haud, 2 Wash., 437.

§ 1005. A person who beats a slave is liable to his master in trespass vi et armis. Garey v. Johnson, 2 Cr. C. C., 107.

§ 1006. A master cannot recover for beating his servant without proof of a loss of service. Voss v. Howard,* 1 Cr. C. C., 251.

§ 1007. Plaintiff, a school-master, punished one of his pupils. Defendant, the father of the boy, committed an assault and battery on plaintiff, who brought an action for damages. Held, that evidence of the circumstances attending the correction of the defendant's son by the plaintiff was not admissible as a justification, or in mitigation of damages in this action, however aggravated the case may have been on the part of plaintiff; but that evidence was admissible to show the situation of the transaction, including the account the boy gave on his father's first seeing him, and the conduct and declarations of the father from that time to the attack on the teacher (plaintiff); otherwise the jury could not decide whether the defendant acted under the influence of sudden excitement produced by the situation and story of his son, or a disposition to inflict a wanton injury or disgrace upon the plaintiff. Cushman v. Waddell,* 1 Bald., 57.

§ 1008.

action against sergeant-at-arms. To an action of trespass against the sergeant-at-arms of the house of representatives of the United States for an assault and battery and false imprisonment, it is a complete defense that the defendant arrested the plaintiff on warrant issued by the speaker upon the order of the house commanding him so to do, and that the detention of the plaintiff after such arrest was according to the express orders of the house. Anderson v. Dunn, 6 Wheat., 204.

§ 1009. — of seamen by master.- A mate accused a boy of stealing. The boy called the mate an opprobrious name, whereupon the mate whipped the boy. Held, a tort,- the whipping not being administered in the course of discipline and $20 damages awarded. Backstack v. Banks, 7 Ben., 355.

§ 1010. While the master of a vessel may have the right to punish a refractory seaman, he will be liable if he strike him with a hammer on the head, that not being a proper implement of punishment. Saunders v. Buckup, Bl. & How., 264.

§ 1011. A ship-master is liable for flogging a seaman and for hitting him with a sword without cause and without inquiry as to the nature of his supposed offense. Schelter v. York, Crabbe, 449.

§ 1012. A ship-master is liable if he punish a sailor, accustomed to the business, with unreasonable severity.

507.

especially a minor apprentice unGould v. Christianson, Bl. & How.,

§ 1013. A máte of a vessel may justify an assault and battery upon a seaman by showing that he acted by the order of the master of the ship. Sheridan v. Furbur, Bl. & How., 423. § 1014. A ship-master who flogs a carpenter for disobedience without inquiring the latter's excuse therefor is liable where the disobedience was done under an erroneous impression as to what was properly to be done. Ibid.

§ 1015. A cook who is blind in one eye and who can see but imperfectly with the other, who does not know how to cook, and who is insufferably dirty, is a fit subject for punishment on board ship, and the master will not be liable for hitting him with a dirty frying-pan, wiping a dirty knife on his face, and flogging him. Forbes v. Parsons, Crabbe, 283.

§ 1016. Where a master punishes a sailor without cause, or, where a cause exists, the punishment is excessive, the master will be liable. Ibid.

§ 1017. In admiralty a father may maintain an action for an assault and battery of his minor son upon the high seas, even though the death of the child from the injuries received ensued before the action was brought. Plummer v. Webb, 1 Ware, 77.

§ 1018. A ship-master is justified in using a deadly weapon upon one or more of his crew when they have formed a mutinous combination. Roberts v. Eldridge, 1 Spr., 54.

§ 1019. Enticing away a child or servant - Seduction.- A father may maintain a suit in the admiralty for a tortious abduction or seduction of his minor son on a voyage on the high seas in the nature of an action per quod servitium amisit, for it is a continuing tort. Plummer v. Webb, 4 Mason, 380.

§ 1020. A contract of service between master and servant gives the former such a right to the service of the latter as will enable him to recover damages for enticing away the servant; and employment is prima facie evidence of enticement. Milburne v. Byrne, 1 Cr. C. C., 239.

§ 1021. A set-off or compensation founded in contract cannot be made in a libel in admiralty for a tort. But in a suit by a parent for the wrongful abduction of his minor son, where the damage substantially is loss of service, the court may consider, in estimating damages, the advances of clothing and other necessaries to the minor during the time of the abduction. The Platina, 3 Ware, 180.

§ 1022. A tug that approaches a vessel and takes off several sailors, putting them ashore, and thereby enabling them to desert, is liable in damages for such tort; but it must be shown that the tugmen knew they were committing a wrongful act. Steam-tug Starbuck, 5 Ben., 58. § 1023. In an action for $2,000 damages, alleged to have been sustained from the loss of plaintiff's daughter's services, caused by her having been seduced by defendant, evidence was offered to prove a promise of marriage as the means of seduction. This evidence was objected to by defendant's counsel, citing Tullidge v. Wade, 3 Wilson, 18; Dodd v. Norris, 3 Camp., 519, and Foster v. Schofield, 1 John., 297. But the court held that such evidence was admissible for the purpose of showing the means by which defendant accomplished the seduction. Mudd v. Clements, 3 Cr. C. C., 3.

§ 1024. Injuries to water rights and mill privileges.- While no action lies for a case of damnum absque injuria, it is not true that an action does not lie for a case of injuria sine damno. The rule is that wherever there is a wrong there is a remedy; that every injury imports damage, and, if no other damage is proved, the injured person is entitled to a verdict for nominal damages. A fortiori this doctrine applies where there is not only a violation of the right of plaintiff, but the act of defendant, if continued, will, by lapse of time, become the foundation of an adverse right in defendant. Webb v. Portland Mfg. Co., 3 Sumn., 193. § 1025. No riparian proprietor or mill-owner has a right to divert or unreasonably retard the natural flow of water to persons below; and no lower proprietor has a right to retard it or back it up upon the lands or mills of upper proprietors, to the injury of such proprietors. Webb v. Portland Mfg. Co., 3 Law Rep'r, 374.

§ 1026. A mere temporary diversion of water will not be restrained by injunction. Ibid. § 1027. Plaintiffs and defendants were owners of different mills, in severalty, on the same mill-dam. Defendants opened a canal into the pond at some distance above the dam for a supply of water to work one of their mills, the water thus withdrawn being returned to the river immediately below the dam. Held, that both parties were entitled per my et per tout to their proportions of the whole stream on its arrival at the dam, and that neither party could divert any portion of it, though the portion diverted were a less quantity than he would naturally use in his mill on the dam. And it is no answer to such diversion by one party to show that the other has increased the quantity of water by a reservoir higher up the stream. Ibid.

§ 1028. In an action by one mill proprietor against another for backing up water upon the former's mill privilege, held, that in order to determine whether there was actually a greater backing up of water by a new dam as compared with an old one, the jury could consider the relative heights of the new and old dam, and also the fact whether the water really did back up farther with the new than with the old dam. That it was not indispensable for plaintiff to show that the water was flowed back by defendants so as actually to obstruct and stop the operation of plaintiff's mills. If there was actually such an obstruction damages should be awarded therefor; as they should, also, if a mere overflowing of land be proved. Whipple v. Cumberland Mfg. Co.,* 2 Story, 661.

§ 1029. Where the owner of an adjacent lot diverts water from a spring by digging a well and drawing off the water through pipes in such a manner as to injure the owner of the spring he is liable in damages. Dexter v. Providence Aqueduct Co., 1 Story, 393.

§ 1030. Injuries to franchises.- A town which persists in using a ferry to the detriment of a bridge company having an exclusive franchise to cross the river is liable in damages. East Hartford v. Hartford Bridge Co., 10 How., 541.

§ 1031. By act of congress the erection of a railroad bridge across the Mississippi river was authorized. It was to be built under such regulations for the security of the navigation of the river as the secretary of war should prescribe. The secretary of war required the erection of the dike for the better improvement of the navigation of the river. It was alleged by the plaintiff that the consequence of the erection of the dike was to injure lands belonging to him adjoining the river and also to impair the value of his ferry franchises. He brought suit to recover damages. Held. (1) that the plaintiff, under the laws of Illinois and according to the evidence, had no title to the lands for injury to which the suit was brought; (2) that the act of the general assembly of Illinois, granting a charter for a ferry across the Mississippi

river, under which act the plaintiff claims, did not give the grantee any right to control the channel of the river or to prevent improvement without compensation to him by the United States. Lonergan v. Mississippi River Bridge Co., 2 McC., 451.

§ 1032. Wrongful exclusion of colored children from schools. Where schools of equal excellence are provided by the officers of a city or state for all children under a certain age, the refusal of the authorities to allow children of colored parents to attend the same schools with children of white parents is not an infringement of the rights of the former under the constitution and laws of the United States. Bertonneau v. The Directors of City Schools, 3 Woods, 177.

§ 1033. Wrongful use of uncopyrighted mark. Although a man may have no abstract right to use a particular mark not copyrighted, still when such mark is used to deceive purchasers to the injury of a third party who has been using the same, an action will lie. Coffeen v. Brunton, 4 McL., 516.

§ 1034. Obstructing navigation of river.- A vessel has no right to obstruct navigation by stretching a line across the navigable water. Vessels or rafts going upon such water owe no duty to look for such an obstruction, and a recovery for an injury caused by such an obstruction may be had. McCord v. Steamboat Tiber,* 7 Ch. Leg. News, 363.

§ 1035. Where a telegraph company has a right to lay a cable across a navigable river it is, incumbent on it not only t lay the cable in such a manner that it would not catch the bottoms of vessels navigating that water in the ordinary method, but also to maintain it in that condition; and on vessels so to navigate the water as to avoid coming in contact with or disturbing a cable so laid. Stephens & Condit Tran. Co. v. Western Union Tel. Co.,* 8 Ben., 502. § 1035a. Where a propeller, navigating a river in the ordinary manner, is light, Joes not. get aground nor strike bottom, and has its screw caught in a cable stretched across the river, it is the natural and proper inference that the accident arose from the fact that the cable was out of its proper place, and the accident must be held to be the result of negligence on the part of the telegraph company in not maintaining the cable in its proper place at the bottom of the river. Ibid.

§ 1036. Exhibiting machinery - Vicious horse - Husband and wife. The defendants were trading in agricultural machinery. For a number of years in the course of their business they had placed and kept standing on the opposite side of the street from their stores a number of machines, among them separators and traction-engine. On the 4th of July they took out a traction-engine to the fair grounds for exhibition. When it was taken back it was left on the opposite side of the street from their store in a gutter designating the limit of the. street. The plaintiffs were riding in a buggy in the street and their horse took fright at the engine and ran away, overturning the buggy and causing permanent injury to plaintiff. In an action for damages the court held that, if the injury to plaintiff was not caused by the wrongful acts and neglect of defendants, plaintiff cannot recover. In order to determine this the appearance of the engine, and the necessity of exhibiting it in the usual course of trade as a means of examination, must be taken into consideration. Not every new invention in machinery is prohibited from being shown in proper places, in proper condition and at proper times, because either men or animals may become frightened at the unusual sight. The question to be determined is, Were the separators kept in a proper place where they were kept, and, was the engine kept as prudence and due regard for safety of life and property would dictate it to be kept? The manner and place in which machinery of the kind referred to had beenkept by the defendants in the past must be taken into consideration; also the fact that no regulation prohibits such keeping in the city in the place where the same was kept; not that such want of regulation justifies any wrongful and negligent keeping, but as bearing upon the general question of proper care. Separators and traction-engines had become articles of common use, and properly kept cannot be complained of because a horse may become frightened on account of them. To ascertain the causes of the injury all the testimony bearing upon this question should be considered, especially as to whether the horse is likely to become frightened at objects such as the machines described by the testimony. The jury should satisfy themselves from the testimony that the horse became frightened at the machines, smoke or steam issuing from the engine, if any, and at nothing else, and that such fright caused the running away; that the horse was managed with ordinary care and prudence; that the individual managing had not deprived himself by his own acts from a proper management of the horse. If the horse was dangerous in the sense of being disposed to run away, that fact must be considered with the rest of the testimony in arriving at the cause of the runaway. The knowledge of the husband concerning the disposition of the horse is the knowledge of the wife. If neither the husband nor wife knew the vicious character of the horse, yet, if the jury are satisfied from the evidence that the horse was vicious, and that being so caused or actually contributed to the running away and consequent injury, they must find for the defendant. Huntoon v. Trumbull,* 2 McC., 314.