| N.Y. Sup. Ct. | Aug 15, 1808
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.