made in the indorsement, when the alleged payment is controverted, is upon the holder of the note, in a case where he claims that the running of the statute of limitations was suspended by the alleged payment. 3. All alterations, erasures or mutilations of paper upon which a liability is sought to be established against those who were originally bound, must be explained by the holder, when the fact of mutilation, erasures or alteration is raised in the pleading and established by the proof. 4. A mere memorandum made by a party on a note, or obligation, in his possession, can not, when the fact it purports to establish is denied, be admitted as testimony sufficient to create or continue the liability. Opinion by PRYOR, J. Affirmed.-Frazer's adm'r v. Frazer.

WHEN COMPENSATION SHOULD NOT BE ALLOWED FOR IMPROVEMENTS MADE BY A PARTY IN POSSESSION-1. When a party obtained the title and possesston of land, by fraudulent representations, he should be treated as having entered, with full knowledge that his entry was without right, should be charged with rents, and should not be allowed for ameliorations or improvements made by him, 2. Miller exchanged a tract of land, situated in Missouri, with Mosely for land in Kentucky, the latter never having seen the land in Missouri, and relying upon the representations of Miller as to its quality and value. Mosely removed from Kentucky to Missouri to settle upon the land obtained in the exchange, and ascertained on his arrival there that the land was almost worthless, and that an unconscionable advantage had been taken of him by fraudulent representations, in regard to its quality and value. On a recission at the suit of Mosely, Miller is charged with rents, and is not allowed anything for meliorations and permanent improvements made by him. Opinion by PRYOR. J. Reversed.-Miller v. Mosely.

POWER OF EQUITY TO ORDER SALE OF CHATTELS OWNED IN COMMON.-1. A lease for years is not real but personal estate. Sec. 13, ch. 21, General Statutes. 2. There is no statute authorizing the courts to sell chattels, because they are indivisible between the owners, but in courts of equity such power is inherent and independent of statute, 3. When the chancellor undertakes to supply a remedy, because the law has given none, he should give one commensurate with the exigencies of the case. 4, When the chancellor finds a party with a legal right, but without a remedy to enforce it, he should furnish an adequate remedy. 5. Indivisible chattels, real or personal, may be sold and the proceeds divided among those entitled. When a chattel, whether real or personal, is owned by tenants in common, and is indivisible in kind, the chancellor may, on the petition of a part of the owners against the others, decree a sale and division of the proceeds. The sale of a chattel real, in this case, is affirmed. Opinion by COFER, J.-Prather v. Davis.

ABSTRACT OF DECISIONS OF SUPREME COURT COMMISSION OF OHIO. December Term, 1877.-Filed December 19, 1877. HON. LUTHER DAY, Chief Justice.

66

JOSIAH SCOTT,

D. T. WRIGHT,

66

W. W. JOHNSON,

66 T. Q. ASHBURN,

Justices.

DEVISE-POWER OF SALE-PARTITION.-A testator, whose estate consisted of a single tract of land occupied as a homestead, and some personal property, devised and bequeathed to his wife one-half of all his real and personal estate, and the other half to his brothers and sisters, and the children of a deceased sister, naming each, and specifying the proportion or share of each. He appointed an executor, and au

it

thorized and empowered him to sell and convey "all said real estate to the purchaser or purchasers thereof, if necessary for the purpose of distributing 'among the devisees and legatees aforesaid." Held, 1. That this was a devise in fee, to each of the devisees by name, of an undivided estate in land, in the proportions specified, and not a bequest of the proceeds of said land. 2. That the power of sale vested in the executor was a naked power only, not a power coupled with an interest in the land, and could only be exercised, if necessary, for the purpose of making distribution among the devisees. 3. Each of said devisees holds his share as a tenant in common with the others, and is entitled to all the rights of such tenancy, subject only to the power of sale. 4. The power of sale was not absolute. It could only be exercised, if necessary, for the purposes of distributing the estate. Its excrcise must be limited to the purposes for which it was granted. 5. A devisee may sell and convey his undivided share as real estate before distribution, but the purchaser takes the same, subject to this power of sale, the same as his grantor, if its exercise becomes necessary. 6. The devisees or their grantees, have each the right to hold his share in severalty, if the same can be set-off without manifest injury to the others; but if distribution can not be made in land, and it becomes necessary to sell to make a proper division, then the executoris authorized to sell the whole, notwithstanding a prior conveyance of an undivided interest by one of the devisees. 7. By proceedings in partition the widow had her half assigned to her in land. Held, that the power of sale was not thereby defeated as to the other half, if the necessity existed for a sale, to make distribution among the other devisees. 8. The defendant acquired title to an undivided share by purchase of a devisee, the plaintiffs afterwards purchased and received a deed for the whole, including defendant's share, from the executor. The plaintiffs can not maintain their title to the share of defendant, unless the necessity existed for a sale of the whole, and a court of equity will not enjoin proceedings in partition to have such share set-off in land, unless it appears that such share can not be set-off without manifest injury to the interests of his co-tenants. Opinion by JOHNSON, J.; DAY, C. J., and SCOTT, J., dissenting.Hoyt v. Day.

The series of contemporary leading cases on criminal law, interrupted by the death of Mr. Green, has been resumed by Mr. Hawley. The present volume contains 720 pages, with a good index, and the table of cases shows that over 175 cases are reported within its covers. They are selected with care, many of them being fully annotated, and arranged according to subjects, instead of chronologically, or according to states. The pres ent volume must certainly be a sine qua non to the criminal practitioner, and, from the great number of convictions reversed on account of errors, we would recommend it to every nisi prius judge who is called upon to preside over criminal trials. The volume is printed on good paper, and is well bound.

Reg. v. Prince, 2 Cr. Cas., Res. 154, the first case in the volume,is one which, at the time of its decision, provoked considerable discussion. The prisoner was convicted of taking an unmarried female, under the age of fourteen, out of the possession, and against the will of her father.

The conviction was had under a statute making such a taking punishable by fine and imprisonment. It was admitted that the prisoner did take the girl; that she was under sixteen, and that he bona fide believed, and had reasonable ground for believing, that she was over sixteen. The jury found that she looked much above that age, and that she told the prisoner that she was so. It was held, however, by the court of criminal appeal, that this afforded no defense, and that the prisoner was rightfully convicted. Fifteen judges, among them the Chief Justice of the Queen's Bench and the Chief Baron of the Exchequer, sustained this ruling, while one (Brett, J.) dissented. Among the American cases on this subject here reported, are Osborn v. The State, 52 Ind. 526, where it was held that a statute against abduction "for the purpose of prostitution" would not sustain an abduction for the purpose of sexual intercourse; and Lyons v. The State, Ib. 52, where the court held that a statute against the abduction of females "of previous chaste character" meant of actual personal virtue in distinction from good reputation, and that the defendant might show in bar of the prosecution a single illicit connection on the part of the

woman.

State v. Williams, 75 N. C., is a novel case. The defendants were indicted for assault and battery, in having tied a rope around the prosecutrix's body, and suspended her from a wall. It appeared that the parties were members of a society called "Good Samaritans," and that this was part of the ceremony of expulsion. The court held that the defendants were liable. There is something like a touch of irony in the opinion of Bynum, J.: "If the act of tying this woman would have been a battery, had the parties concerned not been members of the society of 'Good Samaritans,' it is not the less a battery because they were all members of that humane institution." In Com. v. Collberg, 119 Mass. 351, it was held no defense to a charge of assault and battery that the defendant and prosecutor fought by mutual agreement, in the presence of from fifty to one hundred persons, until one of them declared himself satisfied, and that the injuries received by the prosecutor were given in such fight; the court citing Matthew v. Ollerton, Comb. 218; Boulter v. Clark, Bull (N. P.) 16; Stout v. Wren, 1 Hawks, (N. C.) 420; Bell v. Hansley, 3 Jones (N. C.) 131; Adams ▼. Waggoner, 33 Ind. 531; Logan v. Austin, 1 Stew, (Ala.) 476; Regina v. Lewis, 1 C. & K. 419; Rex v. Perkins, 4 C. & P. Chapman v. State, 14 Ohio St. 437, and State v. Beck, 1 Hill (S. C.) 363, are, however, authorities to the contrary.

It appears, from Delaney v. State, 41 Tex. 601, that a prisoner who burns a hole in his cell, in order to make his escape, is not guilty of arson though, it seems, that if he intended to escape in the confusion attendent on the burning, he would be. The case of People v. Wilson, 64 Ill. 195, covers nearly fifty pages. Here, the proprietor and editor of a Chicago newspaper, were brought up and fined for contempt of the Supreme Court. The opinion of the judges and the editor's note to this case contain an exhaustive review of the question of constructive contempt. In Waterman v. People, 67 Ill. 91, a letter of introduction directed "to any railroad superintendent," bespeaking courtesies toward the bearer, was held not a subject of forgery. State v. Henderson, 47 Ind., holds that betting upon the result of an election is not gaming; an election not being a game. Two cases, Doehring v. State, 49 Ind. 56 (a policeman's club), and Berry v. Com. 10 Bush (Ky.), 273, (a knife), hold that what is or is not a dangerous weapon is a question of fact and not of law.

Among the decisions on questions of criminal procedure is the case of State v. Madigan, 48 Ind. 416, where the court holds that the power of entering a nolle prosequi belongs to the circuit attorney and not

to the court. The reporter's note to this case is peculiarly happy. He cites but one authority-a story told of Lord Chief Justice Holt. The Chief Justice having committed one of a brotherhood of swindlers, who called themselves prophets, named John Atkins, to take his trial for seditious language, another of them named Lacy called at the Chief Justice's house, in Bedford Row, and desired to see him. Servant—“My Lord is unwell to-day, and can not see company." Lacy-(In a solemn tone.) "Acquaint your master that I must see him, for I bring a message to him from the Lord God." The Chief Justice having ordered Lacy in and demanded his business, was thus addressed: "I come to you a prophet from the Lord God, who has sent me to thee and would have thee grant a nolle prosequi for John Atkins, his servant, whom thou has sent to prison." Holt, C. J.—“ Thou art a false prophet and a lying knave. If the Lord God had sent thee, it would have been to the attorneygeneral; for he knows that it belongeth not to the Chief Justice to grant a nolle prosequi; but I, as Chief Justice can grant a warrant to commit thee to bear him company." This was immediately done, and both prophets were convicted and punished.

State v. Smith, 75 N. C. 580, may serve as a check upon the invectives of prosecuting attorneys,for here the judgment was reversed on account of two passages in the prosecuting attorney's speech, viz.: "The defendant was such a scoundrel that he was compelled to move his trial from one county to a county where he was not known;" and; "The bold and brazen-faced rascal had the impudence to write me a note yesterday, begging me not to prosecute him, and threatening me if I did, he would get the legislature to impeach me." "The court," it is said, "is the prisoner's constituted shield against all vituperation and abuse," which, if true, is a fact which many judges either have never known or have entirely forgotten. In Indiana, however, this safeguard would seem to be carried rather too far. In Ferguson v. State, 49 Ind. 33, a murder case, it was adjudged error, for which the verdict should be set aside, for the court to allow counsel for the prosecution, in addressing the jury, to comment on the frequency of that crime in the community, ascribing it to the lax administration of the law, and to urge them to make an example of the prisoner.

How opposite is this tender regard for the prisoner to the conduct of the old English judges in criminal trials. Take, for example, the trial of Sir Walter Raleigh, an account of which the editor has appended to the report of this last case. Chief Justice Popham had decided that, although the charge was high treason, it was sufficiently supported by the uncorroborated evidence of a single witness; that there was no occasion for the witness to be produced in court or sworn, and that a written confession by him accusing himself and implicating the prisoner was enough to satisfy all the requirements of the common and statute law upon the subject. Raleigh urged that Lord Cobham, his sole accuser, should be confronted with him. Popham, C. J.-" This thing can not he granted, for then a number of treasons should flourish." Raleigh-"The common trial in England is by jury and witnesses." Popham, C. J.-"If three conspire a treason, and they all confess it, here is never a witness, and yet they are condemned." Raleigh-"I know not how to conceive the law." Popham, C. J.-"Nay, we do not conceive the law, but we know the law." The prosecuting attorney, Lord Coke, was even more vehement. While he was detailing the charge to the jury, which he knew he could not establish, he was interrupted by the prisoner. Raleigh—“You tell me news I never heard of." Coke, Attorney-General—“Oh, Sir, do I? I will prove you the notoriest traitor that ever held up his head at the bar of any court." Raleigh-"Your words can not condemn me; my inno

cency is my defense. Prove one of these things where with you have charged me, and I will confess the whole instrument, and that I am the horriblest traitor that ever lived, and worthy to be crucified with a thousand thousand torments." Coke-" Nay, I would prove all; thou art a monster; thou hast an English face but a Spanish heart." Raleigh-"Let me answer for myself." Coke-"Thou shalt not." Raleigh-"It concerneth my life." Coke-"Oh, do I touch you!" The attorney-general's invective and abuse became at length too much for even the Bench, and one of the commissioners, the Earl of Salisbury, rebuked him, saying: "Be not so impatient, good Mr. Attorney, give him leave to speak." Coke, then, the reporter relates, sat down in a chafe, and would speak no more until the commissioners had entreated him. After much ado he went on, and made a long repetition of all the evidence, again addressing the prisoner: "Thou art the most vile and execrable traitor that ever lived. I want words to express thy viperous

treason."

The

Perhaps the most remarkable cases in this volume are State v. Biddle, 54 N. H. 379, and State v. Neely, 74 N. C. 425, the first on account of the amount of learning and research which is brought to the settlement or nonsettlement of a fact of every day observation; the second, as showing how sectional prejudice may warp the evenness of a judicial opinion. Want of space prevents us from quoting from the learned opinion in the first case. It might be read with profit and interest by the historian, the naturalist, the novel-reader, and even the distiller, who may all find here not only an entertaining sketch of the kind and nature of intoxicating liquors, but its use and abuse in every nation under the sun; its mode of manufacture and its effect not only upon men, but upon monkeys. The opinion in the second case we would fain perpetuate, as we believe it will continue to afford amusement to the profession as long as the reports of North Carolina remain extant. prisoner was indicted for assault with intent to commit rape. The prosecutrix, a white woman, having parted from a companion, started to go home alone through the woods. She heard the prisoner-a negro -call out to her to stop, and saw him running after her about seventy yards distant. She ran, and was pursued by the negro about a quarter of a mile, when, coming near a dwelling-house, he turned back and ran off, not having during the chase caught up with her. A majority of the court affirmed the conviction. opinion of the Chief Justice is certainly unique: "I see a chicken-cock drop his wings and take after a hen; my experience and observation assure me that his purpose is sexual intercourse; no other evidence is needed. Whether the cock supposes that the hen is running by female instinct, to increase the estimate of her favor and excite passion, or whether the cock intends to carry his purpose by force and against her will, is a question about which there may be some doubt; as, for instance, if she is a setting hen and makes fight, not merely amorous resistance. There may be evidence from experience and observation of the nature of the animals, and of male and female instincts, fit to be left to the jury upon all of the circumstances and surroundings of the case. Was the pursuit made with the expectation that he would be gratified, voluntarily, or was it made with the intent to have his will against her will and force? Upon this case of the cock and the hen, can any one seriously insist that a jury has no right to call to their assistance their own experience and observation of the nature of animals and of male and female instincts. Again: I see a dog in hot pursuit of a rabbit; my experience and observation assure me that the intent of the dog is to kill the rabbit; no

The

doubt about that, and yet, according to the argument of the prisoner's counsel, there is no evidence of intent. *** The prisoner had some intent when he pursued the woman. There is no evidence tending to show that his intent was to kill her or rob her, so that the intent must have been to have sexual intercourse, and the jury, considering that he was a negro,” (Is the presumption of virtue in the Caucasian a presumptio juris et de jure?) and considering the hasty flight of the woman, and the prisoner stopping and running into the woods when he got in sight of the house, and the instinct of nature, as between male and female, and the repugnance of a white woman to the embraces of a negro, had some evidence to find that the intent was to commit a rape." It is a matter of some satisfaction that two of the judges, Rodman and Bynum, J. J., were unable to concur in either the reasoning or conclusions of the Chief Justice.

NOTES.

IN England, eminence at the bar is the path to the bench. The system has much in its favor, but there is this drawback to it, that the admirable advocate sometimes proves by no means an admirable judge, chiefly because he can not put aside the peculiar sort of ability which has made him what he is. This seems to have been the trouble with Mr. Justice Hawkins, in the Penge case, which he lately tried in London. The whilom famous counsel against the Tichborne claimant, no doubt, felt an itching to be once more examining and cross-examining, and couldn't hide the advocate under his ermine. It is roundly charged against him, that he behaved like a prosecuting counsel, and there is, no doubt, a degree of truth in the allegation. A SUBSCRIBER sends us the following, which he received from a justice of the peace in an adjoining state. It is written on a postal card, and addressed to Mr. Judge W-: "Sir, i wont to ask you a question in regard to a sivel cais before a Square Can a justes ishue a summens on a Defendent that lives out of the ton Ship where the justes office is so he lives in the saim County i would like to have your advice i have looked the law over and find nothing to hinder but it is the genrel supsetion that a justes can have no jurisdic out of his T. P. to convene a, action i have had to aplication and decline pleas oblige if prudent yours adress to J. P."

A BILL has been introduced into the New Jersey Legislature entitled "An act to reduce the public expense of the courts of the County of Passaic, by requiring parties in civil causes to pay for the juries in such cases." It is based on the theory that the public should not be made to pay the cost of civil actions, and it is quite a legal novelty in its way. If passed, it will mark a decidedly "new departure" in the history of civil jurisprudence. The bill provides that: "In all actions brought in the Supreme Court or in the Circuit Court of the County of Passaic, and tried in said county, either party may demand a trial by jury, and the party so demanding a trial by jury shall be required to pay in advance, or secure to be paid to the sheriff of said county, the fees of the jurors, at the rate per diem fixed by law, for the number of days or parts of days said jurors shall be entitled to receive compensation for attendance on the courts in the hearing of said cause; and the cost of such jury, paid for, or secured to be paid as aforesaid, shall be taxed by the clerk of the court as other costs are taxed, and shall be recoverable, if judgment shall be given in favor of the party demanding the jury.,

SAINT LOUIS, FEBRUARY 8, 1878.

CURRENT TOPICS.

tiff was injured by the discharge of a pistol in the hands of an intoxicated person, and it was held, reversing the ruling below, that the seller of the liquor was, under the statute, liable, in damages, for the injury. A cause of action, the court said, is given to any one who may be injured, in his person or in property or means of support, by any intoxicated person, jointly or severally, against such person or persons who may have caused the intoxication, in whole or in part, of the person who commits the injury. An action is also given to any one who may in the same manner be injured "in consequence" of the intoxication of any one, whether habitual or other

tion, independent of legislation. It is an inherent power in such courts, and has been acted upon in this state in Rhodes v. Mosely, 6 Fla. 12, and in Pearce v. Thackeray, January term, 1870. In Douglas v. Yallop, 2 Burrow, 722, a new judgment roll, for a judgment rendered thirty years previous to a motion to supply the loss, was ordered to be

In Jackson v. Smith, 1 Caines, 496, a new nisi prius record was allowed to be made upon motion and affidavit that the original had been lost or burnt, after six years. In White v. Lovejoy, 3 Johns. 448, a fi. fa., on which a levy had been made was burnt, and the court ordered a new fi. fa. to be substituted. The power has been long and frequently exercised in Alabama. McLendon v. Jones, 8 Ala. 298; Doswell v. Stewart, 11 Ala. 629; Dozier v. Joyce, 8 Porter, 303; Williams v. Powell, 9 Porter, 493; Wilkinson v. Brandam, 5 Ala. 608; Lyon v. Bolling, 14 Ala. 753; Bishop v. Hampton, 19 Ala. 792; 3 Ph. on Ev. 1,066. Upon the destruction of any part of a record, or of the process, pleadings or orders in a suit, the loss may be supplied by making up others in their stead, provided the court be reasonably satisfied that the proposed substitute is of the same tenor. Upon that, the court where the suit is must exercise its own judgment. Harris v. McRae's, Adm., 4 Iredell, 84." See also Adkinson v. Keel, 25 Ala. 551; Evans v. Thomas, 2 Strange, 833; King v. Bolton, 1 Strange, 141.

THE "civil damage " law of Illinois came again before the Supreme Court of that state, Vol. 6.-No. 6.

intoxication. In the one case it is for the direct injury inflicted by "an intoxicated person," and in the other it is for such damages as may arise "in consequence of such intoxication. This is the plain meaning of this section of the statute as expressed in unambiguous language. The general assembly have seen fit to enact that any one who may be injured by any "intoxicated person,' either in his person or property or means of support, may have a cause of action against the parties who may have caused the intoxication of the person who commits the injury; and there exists no rightful authority by judicial construction to deprive such party of the right secured, which to him in many instances may be of the utmost value. What reason is there why there should not be an action for the direct damage done by a drunken person, as well as for damages that arise in consequence of such intoxication? The injury to the 'person" is most likely to be the direct act of the "intoxicated person." And the injury to the "means of support" would generally arise in "consequence of the intoxication" incapacitating the party for attending to business or causing him to waste his estate.

66

A CORRESPONDENT raises the question, Have probate courts in Missouri jurisdiction to issue writs of habeas corpus? Prior to the adoption of the constitution of 1875 probate courts, wherever they were courts of record, had authority to issue writs of habeas corpus, (sec. 2, ch. 155, Gen. Stat. 1865) as all courts of record and the judge thereof had such authority. Was that authority repealed by the

new Constitution, and the Probate Court Act of 1877? Sec. 34, art. 6, Const. 1875, says that a probate court shall be established in each county and shall have jurisdiction over all matters relating to probate business, granting letters testamentary, appointment of guardians and trustees, the selling and leasing of lands by administrators, and over matters relating to apprentices. It does not go on to say "and such other business as may be prescribed by law," as sec. 36 does relating to county courts. The proviso in sec. 34 further says that, "until the general assembly shall provide by law for a uniform system of probate courts, the jurisdiction of probate courts heretofore established shall remain as now provided by law." Sec. 3, schedule, says: "All county and probate courts, as now organized, shall continue with their jurisdiction until the general assembly shall by law conform them in their organization to the requirements of this constitution." Sec. 34, art. 6, and sec. 3, of the schedule, of course, mean that until the legislature acted, the old probate courts should remain as before; and it is equally clear they mean that, after the legislature had acted, the old jurisdiction ceased and the new began. In support of this, see sec. 9, art. 1, Const. U.S., which says that the privilege of the act of habeas corpus shall not be suspended, etc. unless in case of rebellion, etc.; meaning that in case of rebellion, etc., it could be suspended. Also sec. 10, art. 1: "No state shall make anything but gold and silver coin a tender," etc., meaning, of course, that a state could make gold and silver a tender. Our attachment law, sec. 1, ch. 14, Gen. Stat., says that no property or wages declared by law exempt from execution shall be attached except in case of a non-resident defendant, etc. While it does not expressly say so, it means that in case of non-residence, etc., such property could be attached. So with the constitutional provision as to probate jurisdiction. Again, why did the convention designate the jurisdiction of probate courts if it did not intend to confine them to that jurisdiction? See also secs. 1, 2 and 19 Probate Court Act of 1877. On the whole, it would seem that their jurisdiction in habeas corpus cases has been taken away.

THE Louisiana statute requiring those engaged in the transportation of passengers to

carry colored persons in the same cars, cabins, etc., as whites, has been, so far as it applies to foreign and inter-state commerce, declared unconstitutional by the Supreme Court of the United States. The following extract, from the opinion of the Chief Justice, contains the pith of the decision: "It may safely be said that state legislation which seeks to impose a direct burden upon inter-state commerce, or to interfere directly with its freedom, does encroach upon the exclusive power of Congress. The statute now under consideration, in our opinion, occupies that position. It does not act upon the business through the local instruments to be employed after coming within the state, but directly upon the business as it comes into the state from without or goes out from within. While it purports only to control the carrier when engaged within the state, it must necessarily influence his conduct to some extent in the management of his business throughout his entire voyage. His disposition of passengers taken up and put down within the state, or taken up within to be carried without, can not but affect, in a greater or less degree, those taken up without and brought within, and sometimes those taken up and put down without. A passenger in the cabin set apart for the use of whites without the state, must, when the boat comes within, share the accommodations of that cabin with such colored persons as may come on board afterwards, if the law is enforced. It was to meet just such a case that the commercial clause in the constitution was adopted. The river Mississippi passes through or along the borders of ten different States, and its tributaries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each state was at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each state could provide for its own passengers and regulate the transportation of its own freight, regardless of the interests of others. Nay, more, it could prescribe rules by which the carrier must be governed within the state in respect to passengers and property brought from without. On one side of the river or its tributaries he might be required to observe one set of the rules, and on the other