Bennet v. Hurd
New York Supreme Court
ON certiorari. The action below was brought on the 35th section of “ the act to regulate highways,” (vol 1. p. 602.) for obstructing the Susquehannah river.
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ON certiorari. The action below was brought on the 35th section of “ the act to regulate highways,” (vol 1. p. 602.) for obstructing the Susquehannah river. On the return to the certiorari, the principal objection was,- that the plaintiff in his declaration had not negatived the right of the defendant under the proviso. cited the case of Blasdale v. Hewitt, (3 Caines, 137.) [Kent, Ch. J. That case is so stated, that it is impossible to say on what ground it was decided by the court.]
1Per curiam
The proviso in the 35th section, on which the suit was brought, formed no part of the plaintiff’s title, but merely furnished matter of excuse for the defendant. It provides that persons erecting mills on the rivers declared to be public highways, and cutting canals for the use of the mills, so as not to injure the navigation, shall not be liable to the penalties of the act. It was not necessary, therefore, for the plaintiff to negative this proviso in his declaration.
Judgment affirmed.
2Cited by10 opinions
- Rowell v. . JanvrinNew York Court of Appeals · 1896
- State v. MillerSupreme Court of Connecticut · 1856
- Myers v. CarrMichigan Supreme Court · 1863
- State ex rel. Ladd v. ClarkSupreme Court of Missouri · 1868
- Smith v. MooreSupreme Judicial Court of Maine · 1830
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