Duffy v. The People.

statute continued in force until the adoption of the revised statutes; and the substance of its provisions was incorporated in the title before referred to, with some extensions as to the class of persons embraced therein, so as to include common gamblers, rope-dancers, common showmen, &c. The former law is modified, however, by this title of the revised statutes, in favor of the accused, by permitting him to give security for his good behavior, and to be discharged from arrest, instead of being committed to the bridewell or house of correction for sixty days, or until the next court of general sessions, at hard labor, as authoriz

ed by the former statute. [And as the proceedings under this title of the revised statutes preserve all the rights of the accused which he before had, and give him some additional rights in a proceeding in which the right of trial by jury has never existed in this state, I have no doubt as to the constitutionality of the law, although it extends to some offences of the same nature and character, which were not embraced in the act of February, 1788.

The fifth plea, setting up the unconstitutionality of the law, and charging that the recognizance was obtained by duress of imprisonment upon an illegal arrest under the same, was therefore bad. And the judgment of the court below upon the demurrer to that plea was not erroneous. The defendant in that court, therefore, could in no event be entitled to the costs of that plea, or of the argument of the demurrer to the same. (Williams v Wright, 1 Wend. Rep. 277; 2 R. S. 617, 28.)

I think, however, the court of common pleas erred in refusing to receive evidence, on the part of the defendant, to show that the person who claimed to be the wife of Daly never was his wife, and that he had a wife and family in the city, who had lived with and been supported by him for the last six years. Even where the accused neglects to give bail, the conviction of him as a disorderly person, by the committing magistrate, is only conclusive evidence so far as to justify the commitment, and to lay the foundation for a further proceeding against the accused, by the court of general sessions of the peace. And the 8th section of the act makes it, for that purpose, merely pre

Duffy v. The People.

sumptive evidence of the facts contained therein, until disproved. (1 R. S. 639.) The justice of the supreme court who delivered the opinion in this case says, the statute authorizes the magistrate to deal with the accused in a summary way, “not to punish him for a crime committed, but to require him to give security that he will not commit a crime." (1 Hill's R. 355.) But that court, in the press of business before it, has overlooked the fact, which distinctly appeared in the bill of exceptions, that the court of common pleas held the record of the conviction not only conclusive evidence that the accused had committed the offence charged against him, but also conclusive evidence against the surety in the recognizance that the person for whose support Daly had neglected to provide was in fact his wife. This decision of the common pleas was, I think, erroneous.

The old statute not only contemplated the commitment of the accused for the purposes of preventive justice, but for punishment also. For when convicted he was to be committed to the house of correction, and kept at hard labor for the time prescribed; and no provision was made for bailing him within that time. (1 R. L. of 1813, p. 114; The King v. Brooke, 2 Term Rep. 190.) That was therefore a commitment in execution; and was not mere preventive justice, to guard against a repetition of the alleged offence. It is evident, however, that the legislature intended to change the law in this respect, and try the effect of preventive justice, to a certain extent. The revisers say, in their note to the second section, that the principle is taken from the 9th section of the act to prevent gaming; and that they believe its application to the case of disorderly persons, in authorizing sureties for good behavior to be taken, instead of committing the offenders in the first instance, will be salutary. (3 R. S. 551, 2d ed.) And it will be seen that the commitment under the section of the act of March, 1801, to prevent excessive and deceitful gaming, to which they refer, (1 R. L. of 1813, p. 154,) is unquestionably a commitment to obtain security only, as a means of preventive justice; and not a commitment in execution for the previous offence.

I think, therefore, that the record of the conviction by the jus

Duffy v. The People.

tice, in this case, for the purpose of justifying a commitment until surety for the good behavior of Daly should be given, if he refused to give such surety voluntarily, was not evidence that the person claiming to be his wife actually stood in that relation to him, in a suit for an alleged breach of the recognizance. To entitle the plaintiffs in the court below to recover, it was necessary for them to show that Daly, after the giving of the recognizance, had neglected to provide for his wife according to his means; as that allegation in the declaration was put in issue by the third and fourth pleas of the defendant. And for that purpose the conviction was not even prima facie evidence, much less conclusive against the surety, that the person claiming Daly as her husband was his real wife, and that the woman to whom he had been married for six years was an adulteress.

Without inquiring, therefore, whether this is such a case as was contemplated by the 7th section of the act of January 1833, even if Daly had been lawfully married to the woman with whom he formerly cohabited in Nova Scotia, according to the laws of that country, the rejection of the defendant's evidence was an error for which the judgment of the court of common pleas should have been reversed. I shall therefore vote to reverse both judgments, except so much of the judgment of the common pleas as overrules the demurrer to the fifth plea. If the members of this court concur with with me in opinion, a venire de novo must be awarded; and the costs on the writs of error to the supreme court and to this court should abide the result of the suit.

ROOT, Senator, delivered an opinion in favor of affirming the judgment of the supreme court.

On the question being put, "Shall this judgment be reversed ?" all the members of the court present who heard the argument, except Senators RHOADES and Roor, voted for reversal.

VOL. VI.

Judgment reversed, and venire de novo awarded. 11

Watts v. Kinney.

WATTS' administrators vs. KINNEY.

An action on the case for an injury to real property situated in another state, cannot be maintained in the courts of this state.

Where a suit was brought in the superior court of the city of New-York for an injury committed in the state of New-Jersey by diverting water from the plaintiff's mill; held, that the court had not jurisdiction.

If in such case the declaration describe the mill as situated "in the state of NewJersey, to wit, at the city and county of New-York," the defendant may avail himself of the want of jurisdiction on the trial by motion for a nonsuit; but, semble, he cannot raise the objection by demurrer.

Where, however, the objection distinctly appears on the face of the declaration, the defendant may avail himself of it by demurrer; and quere whether he waives his right to move for a nonsuit on this ground by omitting to demur.

A lease, after demising a mill site on a certain brook, proceeded thus, " together with the use of the dam now across said brook, with the privilege of using the water and water-fall created by said dam; and with the further privilege of flowing so much of the adjoining marsh as may be necessary, provided that the same be not raised higher than to flow the water back even with the bottom of the apron of the water-wheel at the mill next above as the same now lays." HELD, that the lessee did not acquire the unqualified right of using all the water which the dam would contain as it existed at the date of the lease, but that he must so use the dam as not to raise the water above the bottom of the apron at the upper mill.

ON error from the supreme court. The plaintiffs in error, administrators of George Watts deceased, brought an action on the case in the superior court of the city of New-York against the defendant in error, for an alleged injury to a certain mill and water privilege, and for obstructing a right of way. The declaration contained four counts, three of which described the water privilege and right of way as "situate and being at Newark, to wit, at the city and county of New-York;" and in the fourth count they were described as "situate, lying and being in the township of Newark in the state of New-Jersey, to wit, at the city and county of New-York." The defendant pleaded the general issue.

On the trial in the superior court the plaintiffs gave in evidence a lease for ten years from the defendant to George Watts, the intestate, dated in August, 1831, of a lot of ground, dock and water privilege, situated on the bank of the Passaic

Watts v. Kinney.

river in the state of New-Jersey, "that is to say, thirty feet front on the said river, of the dock, called and known by the name of the stone dock, being the upper end of said dock and adjoining the brook, and to run thirty feet in width, one hundred and fifty feet up the said brook from the front of said dock, together with the use of the dam now across said brook, with the privilege of using the water and water-fall created by said dam; and with the further privilege of flowing so much of the adjoining marsh as may be necessary, provided the said dam be not raised higher than to flow the water back even with the bottom of the apron of the water-wheel at the mill next above as the same now lays" &c.

It further appeared at the trial that the plaintiffs were possessed of a mill erected by their intestate on the demised premises, which was propelled by the water from the dam mentioned in the lease; that the mill next above on the brook belonged to the defendant; that after the plaintiffs' mill was put in operation their dam flowed the water back so as to raise it eleven inches on the apron of the water-wheel at the defendant's mill; that the defendant thereupon cut a trench or ditch immediately below his mill, leading from the brook around the dam of the plaintiffs, whereby the water in their dam was reduced to a level with the apron of the defendant's water-wheel; that the dam had not been altered since the execution of the lease to the plaintiffs' intestate, nor had the water been raised by it so high at any period as to overflow its top; and that the diversion of the water occasioned by the trench or ditch had greatly obstructed the plaintiffs in the use of their mill and impaired its value. Evidence was also given tending to show that a passage way leading to the demised premises was interrupted by the trench or ditch in question.

After the evidence on both sides was closed the defendant moved for a nonsuit, insisting, 1. That the action was local both by statute and at common law, and could not be tried in the city and county of New-York, nor elsewhere in this state; 2. That inasmuch as the proviso in the lease controlled the grant of water power, and reserved the right to the lessor of preventing