C. P.] REG. v. JAMES ANDERSON. debating or discussion, nothing dramatic or comic, or tending to the corruption of morals, or to the encouragement of irreligion or profanity. Admission to the body of the hall was gratuitous, but tickets were sold, and money taken for admission to reserved seats. The object of the promoters of the association was not pecuniary gain; on the contrary, the services were carried out at a pecuniary loss to themselves, although attended by considerable numbers of the public. Few litigants present themselves under circumstances which entitle them to greater respect. The plaintiff is honestly endeavouring to stop by this action what he deems a public desecration of the Lord's Day, and only asks judgment for a single penalty. The defendant is expending his time and money as he conceives for the public benefit. The plaintiff, however, contends that the registration of the place of meeting as a place of religious worship was a mere colourable attempt to evade the effect of the statute 21 Geo. 3, c. 49. But this is a question of fact, and we are, by the terms of the special case, to draw inferences of fact, and we think that this imputation on the defendant by the plaintiff is not well founded, but that the defendant honestly did intend to introduce religious worship, though not according to any established or usual form. We have now to determine whether the service at St. Martin's Hall, so registered, constituted it a disorderly house within the true meaning of the statute 21 Geo. 3, c. 49. The precise question therefore is, whether the service above described constituted a public "entertainment or amusement" within the meaning of the statute. It is not easy, nor indeed necessary, to define the exact meaning of the word "entertainment" in this connection, but perhaps the two words "entertainment" and "amusement" reflect light on each other. Some assistance may possibly be derived from the original Act, 25 Geo. 2, c. 36 which statute speaks of "Public dancing, music, or other public entertainment of the like kind," as constituting a disorderly house. It is not, however, necessary to express any opinion on many questions which might arise, exempli gratia whether meetings for mere instruction be within the statute; whether, for instance, a lecture on the higher branches of the pure mathematics would be an entertainment within the statute. But whatever the true definition of the expression "entertainment or amusement" may be, we think it quite clear that meetings for religious worship are not within the Act. It is not essential to such protected religious worship that it should be in accordance with the religion of the state, or even with the general religion of the nation. The worship of Jews, who deny the Christian revelation entirely, and of Mahomedans who supersede it (some millions of whom are now our fellow subjects), would not be within the statute if any of their festivals happened to fall on the Lord's Day, and persons were admitted partly gratuitously and partly by tickets, as in the case under consideration. Indeed, Jews are now placed on the footing of Protestant dissenters. The plaintiff may consider the worship to be of a dangerous tendency, or the religious element introduced to be so scanty and shadowy as to be altogether inadequate to meet the urgent necessities, or strengthen the religious instincts of human nature, but these are inquiries into which we, it is plain, cannot enter. Some stress was laid on the fact that the words sung were often in the Latin language only, and that the principal attraction was the music. But if this objection prevailed, it is easy to see that it would have a more extensive application than the plaintiff contemplates. The discourses delivered were intended to be instructive. It is true that occasionally a diverting incident or passage was introduced. But it must be remembered that the greatest preachers of the English [C. CAS. R. church, such as Bishop Latimer, or Dr. South, have not hesitated to do the same when the subject required it, or perhaps when it became necessary to sustain attention. It is sufficient to say that, in our opinion, a place duly and honestly registered as a place of public worship, in which no music but sacred music is performed or sung, where nothing dramatic is introduced, where the discourses delivered are intended to be instructive, and contain nothing hostile to religion, where the objects of the promoters may be either to advance their own views of religion, or, as they allege, "to make science the handmaid of religion," is not an "entertainment or amusement" within the statute. Our opinion being that the case does not fall within the enacting clause, it is only necessary to observe on the proviso in sect. 8, that the fact of the doors being open, although payment is made for reserved seats, does not deprive the defendant of the protection of the Toleration Act (1 Will. & M. c. 18). We are fully sensible of the inestimable value and importance to the whole nation of the statutes passed to prevent the desecration of the Lord's Day, but we think we should unduly stretch them, if we applied the statute of 21 Geo. 3, c. 49 to the case now under consideration. The judgment of the court must, therefore, be for the defendant. Judgment for defendant. Attorneys for plaintiff, Baxter, Rose, and Norton. CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law. Monday, Nov. 16, 1868. (Before BOVILL, C. J., CHANNELL, B., BYLES, REG. v. JAMES ANDERSON. A foreigner, one of the crew of a British ship, committed manslaughter on board a British_ship while it was in a tidal river in the empire of France. The ship was in a part of the river where the tide ebbs and flows, and where great ships go: Held, that the Central Criminal Court had jurisdiction to try the offender. Case reserved by Byles, J., at the October Session of the Central Criminal Court 1868, for the opinion of this court. James Anderson, an American citizen, was indicted for murder on board a vessel, belonging to the port of Yarmouth in Nova Scotia. She was registered in London, and was sailing under the British flag (a). (a) The following is an abstract of the indictment and the material parts of the evidence: James Anderson was indicted for that he being a seaman on board the Hatfield Brothers, a British ship afloat out of Her Majesty's dominions, namely, on the river Garonne, at Panillac, in France, did, on the 18th Sept., murder John Williams on board the said ship. Second count alleged that he was a British subject. Third count: That the murder was committed at Bordeaux, in France, and that the prisoner was a seaman on board the Hatfield Brothers. Fourth count same as the third, only alleged that he was a British subject. Fifth count: That the murder was committed on the high seas, and that the prisoner was a British subject. Sixth count: That it was committed on board a British ship in a foreign port, namely, Bordeaux. Seventh count same as fifth, but omitting the last allegation. Eighth count: That the prisoner was a subject of Her Majesty on land out of the United Kingdom, namely, at Bordeaux. Ninth count: Murder in the ordinary form. The first witness (Jeffery Powers) examined said: I was one of the crew of the Hatfield Brothers. I joined her on her last voyage; she sailed from Philadelphia; she belonged to Yarmouth, Nova Scotia; she carried the English [C. CAS. R. At the time of the offence committed the vessel as much subject to its laws as if they had actually was in the river Garonne, within the boundaries of been in her territory. BOVILL, C. J.-Have you the French empire, on her way up to Bordeaux, referred to Ortolan's Règles Internationales et which city is by the course of the river about ninety Diplomatie de la Mer? His Lordship then quoted miles from the open sea. The vessel had proceeded from it at pp. 269, 271 (ed. 4).] In Depardo's case, about half-way up the river, and was at the time1 Taunt. 26, the prisoner was a Spaniard, and was of the offence about 300 yards from the nearest shore, the river at that place being about half a mile wide. The tide flows up to the place and beyond it. No evidence was given whether the place was or was not within the limits of the port of Bordeaux. It was objected for the prisoner that the offence having been committed within the empire of France, the vessel being a colonial vessel, and the prisoner an American citizen, the court had no jurisdiction to try him. I expressed an opinion unfavourable to the objection, but agreed to grant a case for the opinion of this Court. The prisoner was convicted of manslaughter. J. BARNARD BYLES. Montagu Williams for the prisoner. It is submitted that the Central Criminal Court had no jurisdiction to try the prisoner, he being a foreigner and the offence having been committed in foreign parts. The Merchant Shipping Act (17 & 18 Vict. c. 104, s. 267), enacts that All offences against property or person committed in or at any place either ashore or afloat out of Her Majesty's dominions by any master, seaman, or apprentice who at the time when the offence is committed is, or within three months previously has been, employed in any British ship shall be deemed to be offences of the same nature respectively, and be liable to the same punishments respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England; and the costs and expenses of the prosecution of any such offence may be directed to be paid as in the case of costs and expenses of prosecutions for offences committed within the jurisdiction of the Admiralty of England. That enactment applies only to British subjects employed in British ships, and not to foreigners. The marginal note to the section is, "Offences committed by British seamen at foreign ports to be within the Admiralty jurisdiction." No doubt the Merchant Shipping Amendment Act (18 & 19 Vict. c. 91), s. 21, will be relied on, which enacts that, "If any person, being a British subject, charged with having committed any crime or offence on board any British ship on the high seas or in any foreign port or harbour; or if any person, not being a British subject, charged with having committed any crime or offence on board any British ship on the high seas, is found within the jurisdiction of any court of justice in Her Majesty's dominions which would have had cognisance of such crime or offence if committed within the limits of its ordinary jurisdiction, such court shall have jurisdiction to hear and try the case as if such crime or offence had been committed within such limits," &c. It is submitted that this section does not apply, for the vessel was not on the high seas at the time the offence was committed. [BLACKBURN, J.-A ship bearing a national flag is part of the territory of the nation whose flag she carries, and her crew are flag. William Hatfield was the master, the same person that I saw before the English consul at Bordeaux. On the 17th Sept., the vessel was in the Garonne. On the 18th she anchored about half-way up the river towards Bordeaux near side, she was afloat about 300 yards from the shore on the nearest side; the river is about half a mile wide at that point; the tide flows there. William Champion Parsons: I am a clerk in the Custom House, London. I produce a duplicate of the registration ofthe Hatfield Brothers, it is a certified copy. It is registered as a British ship, "Port of Registry, Yarmouth, N.S.," that is, "Nova Scotia," British built, 200 tons. Frederick Hatfield, captain and part owner, No. 51,997. taken prisoner at sea by a British vessel, and whilst abroad entered on board an Indiaman as one of the crew, sailed to China and murdered an Englishman in the Canton river; the ship at the time being in the tideway, about eighty miles from the sea. It was argued for the prisoner, on a case reserved for the opinion of the twelve judges, that he was not liable to be tried in this country because he never became subject to the laws of it, and that he did not become so, by entering on board the Indiaman. No judgment was given in the case, but the prisoner was discharged. In Rex v. De Mattos, 7 C. & P. 458, the prisoner, a Spaniard, having been employed on a British ship, left it, and became located at Zanzibar, an island in the Indian seas, under the dominion of an Arab king; while on shore, he engaged in an encounter with one of the crew, and inflicted on him blows, from the effects of which the seaman afterwards died on board the ship, and it was held that there was no jurisdiction to try the prisoner in this country. In Reg. v. Lewis, 1 Dears. & B. C. C. 122, it was held that a foreigner who kills another foreigner abroad, on land out of the Queen's dominions, or on the high seas on board a foreign ship, is not triable in England. [BLACKBURN, J. referred to Reg. v. Lopez, 1 Dears. & B. C. C. 525, which shows that if the ship had been a British one, he would have been triable here.] The learned counsel then referred to the cases of The United States v. Holmes, 5 Wheat. Rep.; Poland (Beasley with him) for the prosecution. The conviction was right. It is not necessary to contend that the section of the Merchant Shipping Act applies in its terms to this case. It may be read as dealing with subjects only, but then all persons are in one sense such if they are subject to the British laws. Lord Hale, in 1 Hale 542, P. C., says, "Though the stat. 21 Hen. 8, c. 11, speaks of the king's subjects, it extends to aliens robbed; for though they are not the king's natural-born subjects, they are the king's subject when in England by local allegiance." In Depardo's case the contention was that the prisoner was an alien enemy; and in Reg. v. Lewis, the offence was committed by one foreigner upon another in a foreign vessel upon the high seas. In Rex v. De Mattos, the prisoner was tried under a special commission issued under the 9 Geo. 4, c. 31, s. 7, and acquitted because the offence was committed on shipboard and not "on land out of the United Kingdom." The sea is, as it were, common territory, and a ship is a sort of floating island, and persons on board a British ship do not cease to be British subjects when it is in foreign parts. In Wheaton's International Law, 202 (edit. 1863), it is said, "The law of France in respect to offences and torts committed on board foreign merchant vessels in French ports establishes a twofold distinction between-(1) Acts of mere interior discipline of the vessel, or even crimes and offences committed by a person forming part of its officers and crew against another person belonging to the same, where the peace of the port is not thereby disturbed. (2) Crimes and offences committed on board the vessel against persons not forming part of its officers and crew or by any other than a person belonging to the same; or those committed by the officers and crew upon each other if the peace of [C. CAS. R. The following authorities were 1 Kent's Comm. 365 of original edition; Stats. 28 Hen. 8, c. 15, s. 1; 15 Ric. 2, c. 3; and 25 Hen. 8. the port is thereby disturbed. In respect to acts | foreign nation." of the first class the French tribunals decline also referred to: taking jurisdiction. The French law declares that the rights of the power to which the vessel belongs should be respected, and that the local authority should not interfere unless its aid is demanded. These acts therefore remain under the police and jurisdiction of the state to which the vessel belongs. BOVILL, C. J.-There is no doubt that the place In respect to those of the second class, the local where the offence was committed was within the jurisdiction is asserted by those tribunals. It is territory of France, and the prisoner might have based on the principle that the protection accorded been subject to the law of France; but at the to foreign merchantmen in the French ports cannot same time, in point of law, it was also committed divest the territorial jurisdiction, so far as the inte- within British territory, for the prisoner was a rests of the state are affected; that a vessel ad- seaman on board a merchant vessel, which, as to her mitted into a port of the state is of right subjected crew and master, must be taken to have been at the to the police regulations of the place; and, that its time under the protection of the British flag, and, crew are amenable to the tribunals of the country therefore, also amenable to the provisions of the for offences committed on board of it against per- British law. It is true that the prisoner was an sons not belonging to the ship, as well as in actions American citizen, but he had with his own consent for civil contracts entered into with them; that the embarked on board a British vessel as one of the territorial jurisdiction for this class of cases is crew. Although the prisoner was subject to the undeniable." In Rex v. Allen, 1 Moo. C. C. 494, it American jurisprudence as an American citizen, was held, that larceny on board a British ship in a and to the law of France as having committed an Chinese river is within the jurisdiction of the offence within the territory of France, yet he must Central Criminal Court," the place being one where also be considered as subject to the jurisdiction of great ships go." So that foreign rivers where the British law, which extends to the protection of tide ebbs and flows are within the Admiralty juris- British vessels, though in ports belonging to another diction. In the United States v. Wiltberger, 5 Wheat. country. From the passage in the treatise of 76 (Amer Rep.), it was held that the courts of the Ortolan, already quoted, it appears that with regard United States have no jurisdiction under the Act to offences committed on board of foreign vessels of April 30, A.D. 1790, c. 36, of the crime of man- within the French territory, the French nation will slaughter committed by the master upon one of the not assert their police law unless invoked by the seamen on board a merchant vessel of the United master of the vessel, or unless the offence leads to States lying in the river Tigris in China, thirty a disturbance of the peace; and several instances miles above its mouth off Whampoa, about 100 where that course was adopted are mentioned. yards from the shore in four and a half fathoms of Among these are two cases of American vessels water, and below low-water mark; but the court so where offences were committed on board American decided on the ground that the offence was not com- vessels while within French territory, and where, on mitted "upon the land or on the seas," within the true the local authorities interfering, the American Court construction of that statute. In the U. S. v. Coombs claimed exclusive jurisdiction. As far as America 12 Peters, 71 (Amer. Rep.), it was laid down that herself is concerned, it is clear that she, by the the Admiralty jurisdiction is limited to the sea, and statutes of 23rd March 1825, has made regulations to the tide water as far as the tide flows. In for persons on board their vessels in foreign parts, Thomas v. Lane, 2 Sumner, 1, it was held that "The and we have adopted the same course of legislation. Admiralty jurisdiction as to torts depends on locality, Our vessels must be subject to the law of the nation and is limited to torts committed on the high seas, at any of whose ports they may be, and also to the law or at farthest to torts committed on the waters of our country, to which they belong. As to our within the ebb and flow of the tide." And the vessels when going to foreign parts we have the right, marginal note also says, "It seems that torts com- if we are not bound, to make regulations. America mitted on tide waters within foreign ports are has set us a strong example that we have the right to within the Admiralty jurisdiction." In the U. S. do so. In the present case, if it were necessary to decide v. Hamilton, 1 Mason, 152 (Amer. Rep), it was held the question on the 17 & 18 Vict. c. 104, I should that larceny on board an American ship in an have no hesitation in saying that we now not only enclosed dock in a foreign port is not punishable legislate for British subjects on board of British under the statute of 30th April 1799, and Story, J. vessels, but also for all those who form the crews said, "The place where the ship lay was in no sense thereof, and that there is no difficulty in so conthe high seas. The Admiralty has never held that struing the statute, but it is not necessary to decide the waters of havens where the tide ebbs and flows that point now. Independently of that statute the are properly the high seas, unless those waters are general law is sufficient to determine this case. without low-water mark." And in the Propeller Here the offence was committed on board a British Genesee Chief v. Fitzhugh, 12 Howard, 443 (Amer. vessel by one of the crew, and it makes no differRep.), the marginal note is "The Act of Congress ence whether the vessel was within a foreign port or of the 26th Feb. A.D. 1845 (5th stat. at large, 726), not. If the offence had been committed on the high extending the jurisdiction of the district courts to seas it is clear that it would have been within the certain cases upon the lakes and navigable waters jurisdiction of the Admiralty, and the Central connecting the same is consistent with the consti- Criminal Court has now the same extent of juristution of the United States. It does not rest upon diction. Does it make any difference because the the power granted to Congress to regulate com- vessel was in the river Garonne half-way between merce, but it rests upon the ground that the lakes the sea and the head of the river. The place and navigable waters connecting them are within where the offence was committed was in a navigable the scope of Admiralty and Maritime jurisdiction, part of the river below bridge, and where the tide as known and understood in the United States when ebbs and flows, and great ships do lie and hover. the constitution was adopted. The Admiralty and An offence committed at such a place, according to Maritime jurisdiction granted to the Federal Go- the authorities, is within the Admiralty jurisdiction, vernments by the constitution of the United States and it is the same as if the offence had been comis not limited to tide waters, but extends to all mitted on the high seas. On the whole I come to public navigable lakes and rivers where commerce the conclusion that the prisoner was amenable to is carried on between different States or with a the British law, and that the conviction was right. C. CAS. R.] HARROP AND ANOTHER v. HIRST. [Ex. is amenable to the British law just as much as a British person on board an American ship is subject to the American law. My view is that when a person is on board a vessel sailing under the British flag, and commits a crime, that nation has a right to punish him for the crime committed by him; and clearly the same doctrine extends to those who are members of the crew of the vessel. CHANNELL, B.-I am also of opinion that the | therefore, that a person on board a British ship conviction was right. The 267th section of the Merchant Shipping Act (17 & 18 Vict. c. 104) has been referred to. I agree in the view taken by the Lord Chief Justice that it is not necessary to pray in aid that statute. When the question arises this Court must exercise the power which has been created by Act of Parliament to deal with the case. Nevertheless, this Court is at liberty to ascertain what the international law may be, and construe the words of the statute in harmony with that if it will bear the construction. I give my judgment on the ground that the ship was within the Admiralty jurisdiction at the time the offence was committed, and that is a sufficient ground to support the conviction. That view is supported by the decisions (Rex v. Allen and Thomas v. Lane), and is also in consonance with the text books. BYLES, J.-I am of the same opinion. I adhere to the opinion that I expressed at the trial. A British ship is, for the purposes of this question, like a floating island, and when a crime is committed on board a British ship it is within the jurisdiction of the Admiralty Court, and therefore of the Central Criminal Court, and the offender is as amenable to British law as if he had stood on the Isle of Wight and committed the crime. Two English and two American cases decide that a crime committed on board a British vessel in a river like the one in question, where there is the flux and reflux of the tide, and wherein great ships do hover, is within the jurisdiction of the Admiralty Court; and that is also the opinion expressed in Kent's Commentaries. I give no opinion on the question whether the case comes within the enactment of the Merchant Shipping Act. BLACKBURN, J.- I am of the same opinion. It is not necessary to decide whether the case comes within the Merchant Shipping Act. If the offence could have been properly tried in any English court, then the Central Criminal Court had jurisdiction to try it. It has been decided by a vast number of cases, that a ship on the high seas, carrying a national flag, is part of the territory of that nation whose flag she carries, and all persons on board her are to be considered as subject to the jurisdiction of the laws of that nation as much so as if they had been on land within that territory. From the earliest times it has been held that the maritime courts have jurisdiction over offences committed on the high seas where great ships go, which is, as it were, common ground to all nations, and that the jurisdiction extends over ships in rivers or places where great ships go as far as the tide extends. In this case the vessel was within French territory, and subject to the local jurisdiction, if the French authorities had chosen to exercise it. Our decisions establish that the Admiralty jurisdiction extends at common law over British ships in the high seas, or in waters where great ships go as far as the tide ebbs and flows. The cases Rex v. Allen and Rex v. Jemot are most closely in point, and establish that offences committed on board British ships in places where great ships go are within the jurisdiction of the Court of Admiralty, and consequently of the Central Criminal Court. In America it appears from the case of The United States v. Wiltberger, that it was held that the United States had no jurisdiction in the case of the crime of manslaughter committed on board a United States vessel in the river Tigris in China; but, as I understand the American cases of Thomas v. Lane and The United States v. Coombes, a rule more in conformity with the English decisions was laid down; and upon those authorities I take it that the American courts would agree with us. It is clear, think that it is not necessary to resort to the 267th LUSH, J.-I am of the same opinion. I also section of 17 & 18 Vict. c. 104, to support this conviction; and I offer no opinion upon the construction of that enactment. I give my judgment in this case on the ground that the offence was committed on board a British ship in a tidal river, navigable for seagoing ships, and at a spot where there is the flux and reflux of the tide, and that it was therefore within the jurisdiction of the Admiralty Court. Conviction affirmed. COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqr3., Barris tersat-Law. Tuesday, Nov. 24, 1868. HARROP AND ANOTHER v. HIRST. Right of inhabitants of district to flow of water by custom-Action for interference with flow of water— Whether maintainable by individual inhabitant without actual damage to himself. The inhabitants of a certain district were entitled by custom to the flow of water from a certain spring to a spout in the public highway, and to take water therefrom to use for domestic purposes in their habitations. The defendant, a proprietor of land through which the water flowed from the spring to the spout, abstracted and diverted the water on divers occasions so as substantially and sensibly to diminish the flow of water to the spout. The plaintiffs being inhabitants of a house within the district, brought an action against the defendant for wrongfully obstructing the flow of water. It appeared that many of the inhabitants had been put to inconvenience on divers occasions by failing to find water on going to the spout, while the flow was so diminished; but the jury found that the plaintiffs had not personally suffered any actual inconvenience or damage by want of water: Held, that the plaintiffs could maintain their action without having suffered actual damage individually, for the acts of the defendant, if continued, would be evidence of a right existing in him in derogation of the rights of the inhabitants of the district, among the number of whom were the plaintiffs. Declaration, for that from time whereof the memory of man is not to the contrary, there has been, and of right ought to have been, and still of right ought to be a certain public waterspout in a public highway called Kiln-lane, within the district of Tamewater, in the parish of Saddleworth, in the West Riding of the county of York, and during all the time aforesaid, the water of a spring arising in a certain close now called the Wharnton Grammar School Close, ran and flowed, and of right ought to run and flow from and out of the said spring, in and along a certain watercourse through divers closes unto and into the said spout, for the supply of water to the said spout for the purposes hereinafter mentioned; and during all the time aforesaid, by an ancient and laudable custom and usage of the Ex.] HARROP AND ANOTHER v. HIRST. said district, the inhabitants for the time being of | the said district residing therein and occupying dwelling-houses situate and being within the said district, have been entitled, and still are entitled to take, use and enjoy water from the said spout for their culinary and other domestic purposes, to be used in their said respective dwelling-houses, for the more convenient use, occupation, and enjoyment thereof respectively; and the plaintiffs, before and at the time of the committing of the grievances by the defendant, as hereinafter next mentioned, were and still are inhabitants of the said district, and residing therein, and jointly occupying a dwellinghouse within the said district, and entitled to take, use, and enjoy water from the said spout for their culinary and other domestic purposes, to be used in their said dwelling-houses for the more convenient use, occupation, and enjoyment thereof, yet the defendant, well knowing the premises, and contriving and intending to prejudice and aggrieve the plaintiffs and other the persons so entitled as aforesaid respectively, and to deprive them respectively of the water to which they were so respectively entitled as aforesaid, on divers days and times before the commencement of the suit, wrongfully diverted large quantities of the said water which ought to have run and flowed, and which otherwise would have run and flowed in and along the said watercourse unto and into the said spout, for the pur poses aforesaid, as such water otherwise would and ought to have done, whereby the said spout became and was, on divers days and times, imperfectly and insufficiently_supplied with water for the purposes aforesaid, and on divers other days and times, was wholly deprived of water, and by means of the premises the defendant wrongfully hindered and prevented the plaintiffs from taking from and out of the said spout, and using and enjoying divers large quantities of the said water to which they were entitled as aforesaid, and the plaintiffs were thereby put to and suffered and incurred great inconvenience, loss (and expense, and were much disturbed in the use, occupation and enjoyment of the said dwelling-house for want of the said water for the purposes aforesaid, and to which they were so entitled, and of which they were so deprived as aforesaid, and have been otherwise much injured and damnified. Pleas: Not guilty; and traverses of the principal allegations of the declaration. Issues thereon. At the trial, which took place at the Leeds summer assizes, before Bramwell, B., it appeared that the defendant was the occupier of certain land through which the spring in question flowed, and the jury found that the defendant had, by various acts extending over a space of some years, diverted and abstracted the water of the spring on its way to the spout, so as sensibly and substantially to diminish the flow of water on various occasions, and so far had infringed the plaintiffs' right, but they also found that the plaintiffs had not personally sustained any actual inconvenience from the want of water, or any inconvenience except the trouble of complaining and endeavouring to put a stop to the abstraction. It appeared that other persons, inhabitants of the district, had been put to actual inconvenience by failing to get water when the flow was so diminished. Upon these findings the verdict was entered for the plaintiffs for 40s. damages, leave being reserved to the defendant to move to enter a nonsuit on the ground that the action was not maintainable by the plaintiffs without special damage to themselves. A rule nisi had been accordingly obtained. Field, Q. C. and Wills showed cause.-It is clear that this action is maintainable for infringement [Ex. of plaintiffs' right, without damage in fact. In Wood v. Waud, 3 Ex. 748, it was held that a riparian proprietor had a right to the natural stream of water flowing through the land in its natural state; and if the water be polluted by a proprietor higher up the stream, so as to occasion damage in law, though not in fact, it gives him a good cause of action against the upper proprietor, unless the latter have gained a right by long enjoyment or grant. In that case, it was contended that the stream was already so polluted by other works, that the defendant's act made no practical difference; but the court held that there was damage in law, and that was sufficient. The only way in which the other side could succeed would be by showing that this case, being one of a right common to the inhabitants of a district there is a difference, and that an action will not lie for that reason. But this is not a case where an indictment would lie, for that lies only where the injury is to a right of common to all the Queen's subjects. This case is therefore not analogous to the obstruction of a highway: (see 1 Hawk. P. C. 696.) In Westbury v. Powel, cited by Coke, Attorney-General, arguendo in the case of Fineux v. Hovenden, it was held that where the inhabitants of Southwark had a common wateringplace, and the defendant had stopped it, and the plaintiff being an inhabitant there, brought his action upon the case, the action was maintainable: Cro. Eliz. 664; Co. Litt. 56 a. The principle is there suggested to be that "where this kind." See also Marzetti v. Williams, 1 B. & Ad. 415; Price, Q. C. and Kemplay, in support of the rule.The cases of Wood v. Waud, Sampson v. Hoddinott, and others cited on the other side, are all cases of actions by riparian proprietors, and there was in those cases a right to have the water flow uninterruptedly in its natural state. Here the plaintiffs' right, as alleged by the declaration, was only to have water sufficient for domestic purposes when |