If that engine was properly constructed, the company would not be liable, although the burning was occasioned by fire accidentally issuing from it: Id.

Evidence to prove defects in other engines of the company was irrelevant, and should have been excluded: Id.

On cross-examination, the inspector, who had been examined only as to 458, testified that he had sometimes found broken grates, but none within three years: Held, this answer was irrelevant; that the plaintiff was bound by it and could not contradict it by showing that broken grates had been found within that time: Id.

Rights and Liabilities growing out of a Forged Assignment of Certificates of Stock.-B. L. & Co., as private bankers, made a loan upon certain forged assignments of certificates of stock of the H. F. Ins Co. to the agent of the firm of D. & Q., of which the real owner of the cer tificates was a member, in ignorance of the forgery. These certificates were presented to the insurance company and cancelled, and a new certifi cate in lieu thereof issued in the name of and delivered to B. L. & Co About a month afterwards the firm of D. & Q. failed, and notice was given to B. L. & Co. and to the H. F. Ins. Co. that the assignments were forged. On a bill filed by the assignee in bankruptcy of D. & Q against B. L. & Co. and the H. F. Ins. Co., to compel the former to deliver up the certificate issued to them, and the latter to issue a new certificate to the complainant, it was Held, 1. That B. L. & Co. must sustain the loss occasioned by the forgery, and had no right to throw it upon the insurance company; 2. That if the insurance company were guilty of negligence in issuing the new certificate without detecting the forgery, unless that was the occasion of the loss to B. L. & Co., it would. not be sufficient to shift the loss upon it; 3 That negligence, to operate as an estoppel must be the proximate cause of the loss; 4. That the insurance company having issued the stock upon the forged name to B. L. & Co., who had before treated it as a genuine paper, and to that extent misled the insurance company, B. L. & Co. ought not to hold them accountable for the loss incurred by their own error, unless they could make it appear that they might have avoided the loss but for the negligence or oversight of the insurance company; 5. That any negli gence on its part would not render it answerable unless that were the proximate cause of the loss: Brown, Lancaster & Co. v. Howard Fire Insurance Company et al., 42 Md.

POWER. See Corporation.

As a general rule a power to sell and convey does not confer a power to mortgage. Questions of this sort must depend on the peculiar cir cumstances of the trust, and the intention of the parties as shown by the instrument: Tyson v. Latrobe, 42 Md. ́

RAILROAD. See Negligence.

Municipal Subscriptions.-Counties having no power to contract with a railway company to subscribe to its capital stock, except when authorized by a vote of the people, it follows that the county authorities cannot hold out any offer to such a company, prior to any vote, upon which the company has a right to rely: The People v. Car Co., 77 Ill.

SET-OFF. See Intoxicating Liquors.

STAMP. See Evidence.

STATUTE.

Construction-Penal Acts.-Whilst a statute is no. to be followed according to its literal terms, if it can be discovered that such was not the intention, yet the meaning must be ascertained by a reasonable construction to be given to the provisions of the act, and not one founded on mere arbitrary conjecture: Cearfoss v The State, 42 Md.

No man incurs a penalty unless the act which subjects him to it is clearly within both the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction; the law does not allow of constructive offences or of arbitrary punishment: Id.

Statutes should be interpreted according to the most natural and obvious intent of their language, without resorting to subtle or forced construction, for the purpose of either limiting or extending their operation: Id.

It is only in case the meaning of a statute is doubtful, that the courts are authorized to indulge in conjecture as to the intention of the legislature, or to look to consequences in the construction of the law. Where the meaning is plain, the act must be carried into effect according to its language, or the courts would be assuming legislative authority : Iď. STREAM. See Water and Water-courses.

TRUST AND TRUSTEE. See Corporation.

Trustee and Cestui que Trust-Principal and Agent-CorporationsTransactions between a Corporation and its Directors governed by the Rule applicable to Transactions between Principal and Agent, &c.— Burden of Proof as to a Transaction between Parties, where one bears a Fiduciary relation to the other.-As between trustee and cestui que trust, or agent and principal, the rule is inflexible that the trustee or agent cannot take the benefit of a transaction entered into in violation of his duty; or where the benefit claimed and the duty to be performed are inconsistent: Cumberland Coal and Iron Co v. Parish, 42 Md.

Directors and managers or corporations and other companies are within the rule which governs the dealings of trustee and cestui que trust, and agent and principal; such directors and managers are in fact trustees and agents of the bodies represented by them: Id.

In the case of directors of a corporation, there is an inherent obligation, implied in the acceptance of such trust, not only that they will use their best efforts to promote the interest of the shareholders, but that they will in no manner use their positions to advance their individual interest as distinguished from that of the corporation, or acquire interests that may conflict with the fair and proper discharge of their duty: ld. The burden of proof is upon a party holding a confidential or fiduciary relation to establish the perfect fairness, adequacy and equity of a transaction with the party with whom he holds such relation; and that too by proof entirely independent of the instrument under which he may claim: Id.

WATER AND WATER-COURSES.

Rights of Riparian Proprietors-Case of the Introduction of an Artificial Supply of Water into a stream running through the land of

another-Jurisdiction in Equity-Injunction -The right of every riparian owner to the enjoyment of a stream of running water in its natural state, in flow, quantity and quality, is incident and appurtenant to the ownership of the land itself, and being a common right, it follows that every proprietor is bound so to use the common right as not to intertere with an equally beneficial enjoyment of it by others: Mayor of Bultimore v. Appold, 42 Md.

As such owner he has the right to insist that the stream shall continue to run as it was accustomed to run; that it shall continue to flow through his land in its usual quantity, at its natural place, and at its usual height: Id.

But there must be allowed to all a reasonable use of that which is common; and such a use, although it may to some extent diminish the quantity, or affect in a measure the flow of the stream, is perfectly consistent with the common right: Id.

It is impossible to lay down a precise rule defining the limits which separate the lawful from the unlawful use of a stream, to cover all cases; and the question must be determined in each case by taking into consideration the size of the stream, the velocity of the current, the nature of the banks, the character of the soil, and a variety of other facts; the true test being whether the use is of such a character as to affect materially the equally beneficial use of the stream by others: Id.

An attempt to empty into a stream an artificial supply of water to the extent of 10,000,000 gallons in every twenty-four hours, is a user inconsistent with the common enjoyment of the stream by all other riparian owners: Id.

And being an unreasonable and unauthorized use of the stream, an action will lie by the party whose rights are so invaded, even though he may not have suffered any actual damage: Id.

The jurisdiction of the courts of equity in cases affecting the rights of riparian owners, is well established both in this country and in England; and rests upon the necessity of granting relief to prevent perua nent and lasting injury, or where full and adequate relief cannot be had at law, or where it is necessary to prevent a multiplicity of suits and vexatious litigation: Id.

The complainant's bill for an injunction to prevent the introduction of an artificial supply of water into a stream flowing through his land, alleged, that he was credibly informed and verily believed that the introduction of the proposed additional quantity of water would cause the stream to overflow its banks, render valueless his land, and cause great, continual and irreparable damages, &c.: Held, 1. That the averment that he was credibly informed and verily believed," together with the statement of facts upon which his belief was founded, was sufficient; 2. That he was not obliged to wait until actual damage was sustained, nor was he bound to obtain the opinion of scientific persons as to the probable consequences resulting from this artificial addition of water; 3. That it would not be enough that the injunction should merely enjoin the introduction of the proposed additional supply of water in such a way, or to such an extent, as would cause the stream to overflow its banks, or would interfere with the ordinary use of the stream by the complainants: Id.

THE

AMERICAN LAW REGISTER.

AUGUST 1876.

THE ACTION FOR CRIMINAL CONVERSATION.

I. NATURE OF THE ACTION.

BLACKSTONE says that "adultery or criminal conversation with a man's wife, though it is a public crime, left (by the law of England) to the spiritual courts, yet, considered as a civil injury, the law gives a satisfaction to the husband for it by the action of trespass vi et armis against the adulterer, wherein the damages received are usually very large and exemplary."

The actions of trespass and case are concurrent remedies for the injury; but Chitty, in his work upon Pleadings, says that, though it had been usual to sue in case, trespass was preferable, as the injury has always been described as committed with force, the law supposing force and constraint, the wife having no power to consent: Chitt. Plead. 167. In some cases the loss of services of the wife to the husband may be alleged; but, unless the wife has been enticed away, it has been said, in the case of Yundt v. Hartranft, 41 Ill. 12-17, that the real ground of recovery relates to the injury which the husband sustains by the dishonor of his bed, the alienation of his wife's affection, the destruction of his domestic comfort, and the suspicion cast upon the legitimacy of her offspring; the degradation which ensues and the mental anguish which the husband suffers. Loss of service is generally averred in the declaration, by way of aggravation of damages, but need not be proved; that is, it will not defeat the action if not proved: but where particular damages are claimed for loss of services, then they must be

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(449)

shown.

When it is doubtful whether the criminal conversation. can be proved, and the defendant has been guilty of enticing away or harboring the wife, it is advisable to add counts for such injury; but in such cases there must be an allegation that the party knew that she was the wife of the plaintiff, and it must be proved: 2 Chitt. Plead., note e. The action of crim. con. has always been and still is treated as one partaking more of a criminal than a civil character, and is a tort for which the defendant can be arrested and held to bail, and if found guilty can be taken on execution and imprisoned. The action can be maintained by the husband against a seducer of his wife, even if the wife is dead or dies pending the action. In England the action of crim. con. is now abolished by positive statute, and the seducer is made a co-respondent in all divorce cases, and damages may be recovered against him in the same action; and it should be so here, for if the evidence is sufficient to obtain a divorce on the charge of adultery with any particular person, it would be sufficient to sustain an action for damages against that person, and the matter can as well be adjusted by one action as by two.

To persuade or entice away or harbor a wife without a sufficient cause is actionable, and the old law was so strict upon this subject that if one's wife missed her way upon the road it was not lawful for another man to take her into his house unless she was benighted and in danger of being lost or drowned, but a stranger might carry her behind him on horseback to market or a justice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce. In England previous to the stat. 20 & 21 Vict., c. 85, it was customary but not necessary for the husband, learning the wife's adultery, to sue at common law the particeps criminis, before proceeding in the ecclesiastical court, and then to plead in this court the verdict; which, if in his favor, was considered as tending to rebut any presumption of connivance. But in this country, such a verdict against a seducer could not be admitted in evidence against a wife in a suit for divorce, because such a verdict, although upon the same subject-matter, would not be between the same parties, and there is no recorded case in this country where it has been so admitted.

II. DECLARATION.

A declaration for criminal conversation need not state and set forth each particular act of adultery, and it will be sufficient if it is