power been limited to the geographical limits of the district or county where such commissioner may reside. The warrant by virtue of which the arrest was made, being regular on its face, was a protection to the officer executing it. For these reasons the judgment of the court below is reversed, and the case remanded to the trial court for new trial.

FITZGERALD, J., concurring.

(11 Or. 326)

SUPREME COURT OF OREGON.

STATE v. TOM LOUEY and another.

March Term, 1884.

CRIMINAL LAW-RIOT-INDICTMENT-ROBBERY-SURPLUSAGE.

Where an indictment clearly charges the crime of riot, (section 639, Crim. St.) and the indictment enters into details which show that the crime of robbery was also committed, such details will be treated as mere surplusage, when it clearly appears there was no intention to indict for that crime.

Appeal from Baker county.

L. L. McArthur, for appellants.

J. A. Stratton, for respondent.

BY THE COURT. The indictment in this case clearly charges the crime of riot under the first sentence of section 639 of our criminal statutes. See Bish. Crim. Pr., § 992. The details entered into in the indictment which go to show that the crime of robbery was also committed, when it is not the intent to indict for that crime, are but surplusage. The instructions referred to on page 5 of the appellants' brief were grounded on the subsequent provisions of section 639, which were not involved in the case before the court, and consequently were correctly refused. It is sufficient for the indictment to allege that the defendants "did encourage the other persons participating" in the said riot "to acts of violence and force." 2 Bish. Crim. Pr. S$ 74, 75, 200. The verdict follows the indictment in this last particular, and also finds the defendants guilty of riot generally, which implies a conviction of the crime of riot charged in the indictment. Crim. St. § 179.

Judgment affirmed.

MARRIAGE AND DIVORCE-CRUELTY-PROVOCATION.

The cruelty which lays a just and legal foundation for a divorce must be unmerited and unprovoked, and where the wife is ill-treated on account of her own misconduct, her remedy is a reform of her own manners, unless the return from the husband is wholly unjustified by the provocation, and quite out of proportion to the offense.

Appeal from Multnomah county.

A. H. Tanner and J. C. Moreland, for respondent.
John Catlin and Northrup & Gilbert, for appellant.

LORD, J. This is a suit for a divorce in which the plaintiff obtained a decree in the court below on the ground of cruelty. The evidence in the case is quite voluminous, and we have concluded that no useful purpose will be subserved by reviewing it. We have examined it

v.SP.no.6-23

patiently and carefully, and the conclusion reached is in conflict with the decree rendered. While it may be conceded that the defendant has not at all times acted towards his wife with consideration, forbearance, and affection, yet it must be admitted that she has been quite, if not equally, as remiss, and that much of the ill-treatment of which she complains was provoked by her own conduct. In Skinner v. Skinner, 5 Wis. 451, the court say:

"It is well settled that the cruelty which lays a just and legal foundation for a divorce must be unmerited and unprovoked. And when the wife is illtreated on account of her own misconduct, her remedy is a reform of her own manners, unless the return from the husband is wholly unjustified by the provocation, and quite out of proportion to the offense." Bish. Mar. & Div. § 764.

In regard to the acts of cruelty complained of, the testimony of the plaintiff is in direct conflict with the defendant, and is contradicted by the children in every instance where the acts are alleged to have occurred in their presence. The policy of the law is to uphold and sustain the marriage relation, and courts of equity will not lend their aid to dissolve it, unless the proof be clear and satisfactory of the truth of the charge preferred.

As a result, the decree must be reversed and the bill dismissed.

1. MILL-DAM-RIGHT TO OVERFLOW LANDS-PRESCRIPTION.

The owner of a mill-dam cannot acquire a right by prescription to overflow adjoining lands while they belong to the United States, or to the state.

2. SAME-USER.

A man can acquire no rights to overflow lands from a mere user which has not ripened into a right by prescription.

WATSON, C. J., dissenting.

Appeal from Marion county.

N. B. Knight and W. W. Thayer, for appellant.

Geo. H. Williams, for respondent.

As the owner of the Little Pudding river Stout v. McAdams, 2 But Wattier cannot,

WALDO, J. The water-rights of Wattier are such as accrue to him as owner of the soil on which his mill stands, or such as he has acquired by grant, or license, or by prescription. soil, Wattier has no right to turn the water of back upon the land of a proprietor above him. Scam. 67; Ripka v. Sergeant, 7 Watts & S. 9. under the evidence in the case, claim any water-rights except such as belong to him as the owner of the soil on which his mill stands. He sets up no grant or license to overflow the lands above them. He can acquire no right by prescription to overflow the lands of the United States or of the state. Vansickle v. Haines, 8 Nev. 164. And he failed to make out any such right against any private owner.

The appellant is cutting his ditch on land of which he is in actual possession. Wattier is not in possession, and shows no right to the possession. In such case, the authorities show that the appellant's right to the possession cannot be inquired into; for if the respondent can show title to be in the United States, or in the state, why cannot he show it to be in some third person? If Miller had brought an action on the case against Wattier for overflowing the land to which the former is asserting title, Wattier could not have defended by questioning Miller's title. Hendrick v. Johnson, 5 Port. 208. So, when Wattier attempts to prevent Miller's making such use of the land as is naturally incident to its ownership, he cannot set up that Miller is not the owner, but that the land belongs to B. & C. Miller's possession and positive assertion of ownership is good against one who can show no better title. Before he can make out his right to an injunction, Wattier must show that he himself has rights there, and this he has utterly failed to do. Weiss v. Jackson Co., 9 Or. 471; Griffin

v. Bartlett, 55 N. H. 119, 127.

The only right the appellant claims is the right to drain off surfacewater standing on his own land and such water as may have been turned back upon it by respondent's dam. So far as the respondent attempts to prevent this, he is attempting to assert an easement in another man's land, for which he has never paid a dollar, and to which he asserts no manner of title, except actual user, which has not ripened into a right by prescription. The respondent has the burden of proof upon him, and has failed to make out any right to the relief which he claims. Wattier can no more question Miller's title than Miller can question Wattier's. Miller's possession is a good title against Wattier.

It also appears that Miller has paid his 20 per cent., and has a certificate of sale from the state to this land as swamp land. This certificate conveys a present interest, for the act declares that on failure to perform subsequent conditions the land shall revert to the state. A right to the possession follows this certificate, for the object of the act is to reclaim the swamp land, and to do this possession is necessary. Whether this right to the possession has terminated or not is a question of law, which Wattier cannot inquire into. He is not in a position to compel swamp-land claimants to put their rights in issue.

It follows that the decree pronounced by the court below must be modified in accordance with this opinion.

WATSON, C. J., dissenting.

BILL OF EXCHANGE-FAILURE OF CONSIDERATION-KNOWLEDGE OF INDORSEE. A partial failure of the consideration for a bill of exchange may be set up in an action thereon by an indorsee before maturity who had knowledge of such failure, and defendant may recoup his damages though they be unliquidated.

Appeal from Marion county.

Action on a bill of exchange indorsed before maturity, drawn on the defendant, July 23, 1883, at nine months, by Fish Bros., of Racine, Wisconsin, and accepted by defendant. Defense, partial failure of consideration, known to the plaintiff when he took the draft, pleaded as follows: "That the plaintiff, before he claims to have received said draft by indorsement, had notice and knowledge of the terms of the contract and agreement between Fish Bros. & Co. and the defendant, and of its violation by the former in the respect hereinbefore set out." This allegation was denied in the reply. The court instructed the jury that "the plaintiff having notice of said claim of damages and defects before he purchased the bill, if he did purchase it, would not affect his right to recover, provided he purchased it before it became due. There being no allegation of fraud in obtaining the bill, the question of notice is not material, provided the bill was purchased for value, in the usual course of business, before it become due." Verdict for plaintiff.

William M. Ramsey, for appellant.

Mark A. Fullerton, for respondent.

WALDO, C. J. The answer set up a good defense of notice, and the court erred in the instruction which cut it off. Partial failure of consideration of a bill of exchange may be set up to an action on the bill, and the defendant may recoup his damages, though they be unliquidated. Withers v. Greene, 9 How. 213; Stacy v. Kemp, 97 Mass. 166; Wyckoff v. Runyon, 33 N. J. Law. 107. If an indorsee take a bill with notice of the failure of consideration, his right to recover cannot be superior to that of his indorser. Herrick v. Carman, 12 Johns. 159; 1 Pars. Bills & Notes, 258. Counsel for the plaintiff argued, however, that, conceding error in the instruction, the defendant could not take advantage of it, because he had not properly alleged notice in his answer in this: that he did not allege that the draft in suit arose out of the transaction on which the defendant founded his defense. The pleading is defective in the particular alleged, but the plaintiff waived the defect by taking issue on the facts alleged, as is shown in White v. Spencer, 14 N. Y. 247, and Bank of Illinois v. Brady, 3 McLean, 268.

The judgment must be reversed, and a new trial ordered.