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Pearson refused to do, basing his refusal upon the allegation that the drift-way in the dam, without shutting down his working gates, afforded all the facility for floating logs by his mills that existed in the river at that place in its natural state, as much as there would be provided his mills and all of his structures were entirely out of the way. Rolfe contends that the facts were otherwise, but further contends that Pearson, even if he represents the facts truly, having it within his power to furnish more water than the natural facility and flow, was under an obligation from his situation to do so.

The counsel for Rolfe contends that the doctrine of reasonable use applies; and that if the river in its natural condition would not furnish a sufficient flow, Rolfe was entitled to the use of the river in its changed condition for his purposes. We think this position cannot be mained. Our idea is that the doctrine of reasonable use does not apply when the river is not naturally floatable; but does apply when it is naturally floatable or log-navigable, when both parties can use the natural flow and desire to use it at the same time. We are well satisfied that whenever logs caunot be driven over a particular portion of a fresh water river such as the Penobscot above the flow and ebb of the tide, while in its natural condition, such portion of the river is not at such time navigable or floatable, and that the use of the water at such time, and place, so far as he needs the same for his own purposes, belongs exclusively to the riparian proprietor. We think an examination of well settled principles, as illustrated by the decisions, affecting the respective rights of the parties in river easements and privileges, inevitably leads to such conclusion.

Rolfe unquestionably had the general right to use the river as a passage-way for his logs. All navigable waters are for the use of all citizens. In a technical sense at the common law, the Penobscot river would be regarded as navigable only so far as its waters flow and reflow with the tide. But it is navigable in fact, or in a popular sense, or according to a common law of our own, above the reach of the tides. The reason of the old common-law rule, the rule of the English courts, is the reason of the rule in this country. The germ of the doctrine is the same in both countries. We refit the rule to more extended and liberal applications, under the stimulating influences that arise from the wants and necessities of our business, the magnitude of our rivers, and the extensiveness of the internal and inter-State commerce of our country.

The Penobscot river at the place in question, as before intimated, was floatable only, floatable because capable of valuable use in bearing the products of the forests to markets or mills. A floatable stream is the least important of the classes of streams called navigable. Rolfe had the right to use the river so far as it was a floatable river, in such parts or places and at such times as it was floatable. He had the right to avail himself of its navigable capacity for floating logs. But only so far as it was navigable or floatable in its natural condition. It is the natural condition of a stream which determines its character for public use. And it must be its navigable properties in a natural condition, unaided by artificial means or devices. It is well settled in this State and elsewhere, that if a stream is not susceptible of valuable use to the public for floatable purposes, without erections for raising a head, it cannot legally be deemed a public stream, even though it might be easily converted into a floatable stream by artificial contrivances. Wadsworth v. Smith, 11 Me. 278; Brown v. Chadbourne, 31 id. 9; Treat v. Lord, 42 id. 552; Wood Nuis. (2d ed.), § 463, and cases. The log driver takes the waters as they run, and the bed over which they flow as nature pro

vides. Nor has any person the right, unless upon his own land, or under legislative grant, to remove natural obstructions from the bed of a river in order to improve its navigation. This is clear from the same authorities.

On the other hand, what rights have the adjudged cases accorded to the riparian proprietor in a merely floatable and non-tidal stream? It is settled in this State that he owns the bed of the river to the middle of the stream. He owns all the rocks and natural barriers in it. He owns all but the public right of passage. The right of passage does not include any right to meddle with the rocks or soil in the bed of the river. If rocks are taken, the owner may sue in trespass for the act, or may replevy them from the wrongdoer. Gould Waters, §§ 77, 93a, and note.; June v. Purcell, 36 Ohio St. 396; Ross v. Faust, 54 Ind. 471; Watson v. Peters, 26 Mich. 508; Braxon v. Bressler, 64 Ill. 488. Stone cannot be quarried without compensation from the bed of a private stream for the purpose of constructing a public bridge over the stream. Ober. man v. May, 35 Iowa, 89. The owner may maintain trespass quare clausum for an unlawful invasion of land covered by water. Morris Canal Co. v. Jersey City, 26 N. J. Eq. 294; Walker v. Shepardson, 4 Wis. 495; Moor v. Veazie, 31 Me. 360. Ice formed upou a floatable fresh water stream is the property of the riparian proprietors. Wash. Ice Co. v. Shortall, 101 Ill. 46; Mill River Man. Co. v. Smith, 34 Coun. 462; Paine v. Woods, 108 Mass. 173, aud cases. See for several pertinent matters, 19 Am. Law. Reg. (N. S.), pp. 145, 337, and cases there cited and discussed.

The mill-owner occupies other vantage ground. His structures are legalized and protected by the statutes of the State. A part of the public right is granted to him, for a supposed gain which the public obtains through the use of mills. He is authorized to build dams and erect mills upon the privilege and to raise a head of water for his use. His stores of water are his property. A person who casts waste into his millpond to his injury is liable therefor. Drinel v. Veazie, 44 Me. 167. A log-owner is liable if he unnecessarily incumbers the pond of a mill-owner with his logs. The log-owner's general right is that of passage, not of rest. Brown v. Black, 43 Me. 443. There may be however exceptions or qualifications to this. Rev. Stat., ch. 42, § 8.

In the light of these principles governing the rights of the parties, how can it be admissible for the log driver to claim for his purposes more of the river than the natural flow or its equivalent? Can he claim a better passage than would be possible to him were there no structures upon the privilege? If he cannot, without the land-owner's consent, erect dams himself to create a head for facilitating the driving of logs, can he impress into his service the use of dams lawfully erected for other useful purposes by other men? If he has no right to remove or interfere with natural obstructions, to the owner's injury, how can he intermeddle with legally authorized artificial obstructions which do not deprive him in any respect of the ordinary and natural flow? Each is a legal property, the natural and the artificial obstruction. Neither necessarily impairs any subsisting legal right. The only obligation which the law lays upon the mill-owner is not to injure the river passage. He is not required to make it better.

The mill act declares that an owner may erect and maintain a water mill, "and dams to raise water for working it." How can he have the water for working his mill, if others may take it without his consent for other uses? If other may take from him more than the natural flow, when and how often and in what quantities may it be thus taken? Is it to be a reasonable

use? How much is a reasonable taking by one man of another's property without compensation? Where does the doctrine of mutual concession come in, if the mill-owner is to reap no advantages from the plau? Would not Pearson be permitted to remove his structures, leaving the river in its natural state? If he can do that, cannot he hoist his mill-gates at his pleasure for business purposes, allowing the water to pass his mills in manner and quantity equivalent, as near as may be, to its ordinary condition and natural flow?

Let it be borne in mind that the complaint against Pearson is not that he kept back the natural flow, but that he refused to keep it back, that he would not shut down his gates and suspend his business in order to keep it back. The demand was that he should suspend his own sawing and shut down his millgates until the accumulation of water in the mill-pond might be enough to create a navigable flow through the public passage. It would be a curious legal spectacle to see a mill-owner mulcted for not allowing log-owners the use of his dam and mills to create, not a natural, but au unnatural flow upon the river. It would be a different thing however if Rolfe asked for only such a facility of passage as the river in its natural condition would have afforded.

The counsel for Rolfe invokes in his behalf the doctrine maintained by several cases, that where one person improves the navigability of a stream, all other persons having the right to use the stream, may use it in its improved condition. That principle must be admitted. If the channel of a floatable stream is changed or deepened by riparian proprietors for the purpose of making its navigation less difficult, any person using the stream has the benefit of the improvemeuts.. Such a result is unavoidable. The same rule applies to a highway upon land. If a man improves a highway in front of his own land, a traveller may use the improved highway. He must do so, if he uses the way at all. He can no longer use the way as it was. But this doctrine cannot apply to the cases before us. Here the navigable character of the river has not been improved. The gist of the complaint against the millowner is virtually that he would not improve it, when he had the means and power of doing so at easy hand. Here the channel is neither deepened nor widened. The case here differs widely from any case that can be cited in affirmance of the doctrine contended for. Had Pearson improved the navigability of the river for his own use, he would have bestowed the same benefit upon others. But he intended no such improvements either for himself or others. Holden v. Robinson Co., 65 Me. 215, is relied upon by counsel for Rolfe. An incidental remark in the opinion in that case was to the effect that a log owner was entitled to the water raised by a mill-dam. But it was to get down to the dam, and not to get over or past it. That authority therefore is not in the least in our way. In coming to any mill-dam, logs must necessarily pass over the water as raised by the dam. Dwinel v. Barnard, 28 Me. 554, is also relied upon, as approving the doctrine that if a new passage is substituted for an old one, the new one is open to the use of all. We entirely concur in that view. In such a case, no natural stream-in fact no stream-is left in the old channel. But in the case at bar, we are assuming for the purpose argument, that the full natural stream is left. The court, in the case referred to, places its theory upon the fact that the flow of the waters was so changed "that they could not be used as formerly." Here it is contended that they can be used as formerly without interfering with Pearson, and that the river, at the time in question, was allowed its natural aud accustomed flow, or its equivalent.

The fact that it would be a convenience to the pub

lic to use more than a natural flow from the head of water ralsed by mill erections, cannot influence the question in the least. The extra stores of water collected by the mill-owner for his use, are his own. They could be taken by the State for the public for a compensation; or the State could authorize the owner to dispose of their use for a toll. Gould Waters, § 35; Cool. Con. Lim. *592. The legal position espoused by the mill-owner in the cases presented for our decision, is sustained by the effect of the views entertained by the court in Wadsworth v. Smith, supra, and is emphatically and quite directly defended by the case of Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336; authorities relied on by counsel for Pearson.

It will be seen that we have thus far discussed the relative rights of the parties upon the supposition that Pearson's structures and his management of them did not deprive Rolfe of as good a chance of passage as the natural stream would have afforded at the time and place. We do not affirm the fact to be so. We express no opinion upon any disputed fact. We give the rule upon which the facts are to be considered. It is said that the rule may not be a just one, because of the difficulty of observing the operations of nature after the erection of mill-dams. The objection is not formidable. Other evidence may be substituted. Proof of the general character of the river, of its volume and flow above and below the place in question, would be among other things an important matter. A jury would not encounter more diffiulty than that which attends very many contested cases. At all events, the difficulty of proof does not ordinarily dispense with the necessity of proof.

Another difference of opinion exists between the parties upon the facts adduced. That is as to what their respective rights may be in the use of the water when there exists a natural flow sufficient to make a floatable stream, but both parties need the water for their different purposes at the same time, and the use of the water by one injuriously interferes with its use by the other. In such a condition of things, as before expressed, the maxim or doctrine of reasonable use applies. If they cannot both enjoy the same thing at the same time, each must take to himself and concede to the other a reasonable use of the common boon. The right of passage is the paramount or superior right, and necessarily so from the very nature of things. It is a right to move on or by. The stationary obstacle must necessarily yield in order to give it a chance to go by. It is not an exclusive right. It is not a privilege of moving at all times, with any quantities, and without any delay, and under all circumstances. The two rights come in conflict. One does not destroy the other. Each influences the other. The Legislature has surrendered some part of the public right to the mill occupiers for the supposed public good. The mill-owner must not materially and essentially prevent or delay the public passage.

The law authorizing mills necessarily puts some incumbrance upon the rights of passage.

In Cool. Torts, 583, the author says: "The reasonableness of the use depends upon the nature and size of the stream, the business or purposes to which it is mado subservient, and on the ever-varying circumstances of each particular case. Each case must stand upon its own facts, can a guide in other cases only as it may illustrate the application of general principles. Such general rule should be laid down as appears best calculated to secure the entire water of the stream to useful purposes." The same doctrine is excellently presented by Dickerson, J., in Lancey v. Clifford, 54 Me. 487, and by Rice, J., in Dwinel v. Veazie, 50 id. 479. The want of space forbids quoting from the cases at much length. In the former it is

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said: Each right is the handmaid of civilization; and neither can be exercised without, in some degree, impairing the other. This conflict of rights therefore must be reconciled. The law furnishes a solution of this difficulty by allowing the owner of the soil over which a floatable stream, which is not techuically nagivable, passes to build a dam across it, and erect a mill thereon, provided he furnishes a convenient and suitable sluice or passage-way for the public by or through his erections. In this way both these rights may be exercised without substantial prejudice or inconvenience."

In Dwinel v. Veazie, supra, it is said: "To give either interest absolute prerogative would be destructive to both. Hence the rights of each must be so exercised as not unnecessarily or unreasonably to interfere with or obstruct the rights of the other. And such is the law."

* * *

In Gould on Waters, a new and excellent work, at section 110, it is said: "The rights of the public are not superior to private rights, in streams that are merely floatable, to the same extent as in rivers which are capable of more extended navigation. In the latter the public right extends equally to all navigable portious of the river. But the right of floatage is not paramount to the use of the water for machinery, and the rights of the public and those of the riparian owners are both to be enjoyed with a proper regard to the existence and preservation of the other. In streams which are only floatable, the riparian owner is only bound not to obstruct its reasonable use for that purpose.' To this the author appends a long list of citations. It is to be noticed that the author remarks that the right of floatage is not paramount to the use of the water for machinery. That is not of such paramount character as to prevent the erection of dams, bridges, and flumes and the like, which do not prevent a reasonable chance for public passage. The right of passage is the dominant right, because it is a right that cannot be very well exercised unless the other right temporarily yields to it. But its use must not be usurping, excessive or unreasonable. Wood Nuis. (2d ed.), $$ 464, 465, aud cases. Cool. Con. Lim. (5th ed.) 731.

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With these enunciations of opinion upon the legal questions presented, we think the cases need no further attention or consideration at our hands. While the report allows us to decide the facts, we think that duty should be performed by a jury, if the parties cannot agree upon a referee or commissioner for the purpose, or cauuot settle the question themselves.

The parties would act wisely to indulge a spirit of mutual forbearance and concession in these matters. In no other way are the embarrassments and difficulties, usually incident to such contentions, avoidable. The rule that governs some of their rights is a general and necessarily an indefinite one. Emergencies may often arise when the different interests will clash. Discreet words and acts are a better resort, in the first instance, than law suits.

Cases to stand for trial. Danforth, Virgin, Libbey, Emery, Foster and Haskell, JJ., concurred.

CARRIER-UNINDORSED BILL OF LADING.

INDIANA SUPERIOR COURT, GENERAL TERM, 1884. JORDAN V. PENNSYLVANIA CO.

The delivery to the acceptor of a draft of an unindorsed bill of lading is sufficient to transfer the title to the property covered thereby.

In such case the carrier is not liable to the shipper for the value of the goods should the acceptor fail to pay the draft.

PPEAL from Marion Special Term. The plaintiff had judgment below. Defendant moved for a new trial which was denied, and they appeal.

A

TAYLOR, J. This is a suit by the plaintiff to recover the value of twelve barrels of eggs shipped by the plaintiff over the defendant's line of road, from the city of Indianapolis in the State of Indiana, to the city of Baltimore, in the State of Maryland, which the plaintiff alleges were delivered by the defendant to a person to whom the bill of lading was not indorsed, and without an order from the plaintiff for their delivery.

The defense of the defendant is, first, the general denial, and second, a special answer setting up facts in bar of the suit. The plaintiff's reply to the special answer is a general denial.

The cause was tried by the court upon agreed facts which so far as within the issue and material to state are these: The defendant was, on the 18th day of March, 1883, and for many years prior thereto, a common carrier of goods for hire, and as such was the owner and operator of a fast freight line from the city of Indianapolis, Ind., to the city of Baltimore, Md., known and designated as the "Union Line." On the 18th day of March, 1883, the plaintiff delivered to the defendant, at Indianapolis, Ind., for transportation to the city of Baltimore, Md., twelve barrels of eggs. At the time of the delivery the defendant delivered to the plaintiff its receipt for the eggs in which is acknowledged their delivery in good order, and the undertaking to deliver them in ke good order without delay to the plaintiff at the station of Baltimore, Md. On this receipt, under the head of "Murks," is the following: "J."--"Notify Henry E. Hopkins & Co., 60 Hanover street, Baltimore." The defendant at the same time delivered to the plaintiff a bill of lading for the eggs, on the margin of which under the head of "Marks" is the following: "J."-"Notify Henry E. Hopkins & Co., 60 Hanover street, Baltimore, Md." A way bill accompanied the shipment of the eggs on which was the following: "A. Jordan-Ord. A. Jordan-J.-Notify Henry E. Hopkins & Co., Hanover street, Baltimore, Md." The eggs were immediately shipped and transported by the defendant to the city of Baltimore, Md. Immediately upon receipt of the bill of lading the plaintiff forwarded to the Bank, at said city of Baltimore, his certain draft, payable one day after sight, drawn by him in his own favor upon said Henry E. Hopkins & Co., the draft being for the value of the eggs; aud the plaintiff attached to the draft and forwarded with it the bill of lading, but did not indorse the bill of lading. Heury E. Hopkins & Co., accepted the draft, and thereupon the Baltimore Bauk, to which plaintiff had sent the draft with the attached bill of lading, delivered the unindorsed bill of lading to said Hopkins & Co., and they presented it to the defendant at said city of Baltimore, and thereupon demanded the delivery to them of the eggs, and they were delivered by the defendant to said Hopkins & Co., and the bill of lading was surrendered to the defendant. Within a reasonable time after the arrival of the eggs at the city of Baltimore, the plaintiff demanded at said city of the defendaut the delivery to him of the eggs, offering to pay any and all freights and charges due thereon, and the defendant refused to make such delivery, alleging that the eggs had already been delivered to said Hopkins & Co. The eggs were of the value of $146, aud the defendant has never delivered the eggs nor any part of them to the plaintiff, and has never paid the plaintiff any part of their value; and the plaintiff has never received any compensation for the eggs from any source. The trial court found for the plaintiff and rendered judgment in his favor against the defendant for the value of the eggs. The defendant moved for a new

trial, which was refused; and the proper exception was taken by the defendant.

There is but one question to consider. Was the delivery of the eggs to Henry E. Hopkins & Co. a lawful delivery? This question auswered in the affirmative, the judgment of the trial court must be reversed; but if it is answered in the negative the judgment should stand.

The right of the plaintiff to make any reservation in the bill of lading; that he pleased to secure the payment of the value of the eggs is settled. He had the right to fix the person to whom and the terms upon which the defendant should deliver the eggs. He could instruct the bank to whom he sent the time draft with bill of lading attached not to deliver the bill of lading to the acceptors until the draft was paid; and in such case, delivery of the bill of lading before such payment would not have passed the title to such bill. It was the duty of the defendant to deliver the eggs to the plaintiff, or according to his instructions. If the defendant violated its contract for the delivery I made a misdelivery of the eggs, it is liable as for their conversion. Hutchinson on Car. 102; Benjamin on Sales (3d Am. ed.), § 382; Stollenwerck v. Thatcher, 115 Mass. 224; Jones on Pledge, §§ 257, 258; Ivatts on Car., etc., 417. The bill of lading is in the usual form, and the delivery by it as well as by the receipt and way bill is to the order of the plaintiff. The direction to notify Henry E. Hopkins & Co. may be considered as indicating that they had an interest in the eggs either as vendees or factors. In the absence of any expressed declaration it is susceptible of no other meaning. As soon as the bill of lading is delivered to the plaintiff he draws the time draft on Henry E. Hopkins & Co., attaches the bill of lading to it, and forwards the draft with the attached bill to the Baltimore Bank for presentation to Henry E. Hopkins & Co. The time draft so drawn and sent with the bill of lading attached covers the value of the eggs shipped, and is not indorsed by the plaintiff; but there is no evidence that any special instructions were given by the plaintiff to the bank to withhold delivery of the bill of lading until the draft was paid, or other conditions performed, and the question must be considered as if there were no such instructions, leaving the bank in the position of a general agent in this particular matter, with such powers and duties as that relation implies. On receipt of the draft and attached bill of lading, the Baltimore Bank presents the draft to Henry E. Hopkins & Co., who accept it, and the bank detaches the bill of lading and delivers it to said Hopkins & Co., who take and present it to the defendant and demand the delivery of the eggs; and the defendant thereupon delivers the eggs to said Hopkins & Co., and takes up the bill of lading.

The Baltimore Bauk was the agent of the plaintiff, and in the absence of special instructions to the contrary had the right to surrender the bill of lading to Henry E. Hopkins & Co., on their acceptance of the draft; indeed it is not stating the rule too strong to say that it was the duty of the bauk to do so. And there can be no question but that the delivery of the bill of lading to Henry E. Hopkins & Co., the acceptors of the time draft, by the bank agent of the plaintiff, checked by no instructions to the contrary, transferred the eggs to the acceptors, Heury E. Hopkins & Co., without its formal indorsement by the plaintiff.

If the plaintiff had not intended that the bill of lading should be delivered to Henry E. Hopkins & Co., on their acceptance of the time draft, he should have so instructed his agent, the Baltimore Bauk. The burden was upon him, and in the absence of proof to the contrary, the presumption is against the plaintiff; it is that he not only intended to but actually did part

with the title to the bill of lading, and transfer the eggs to the acceptors of the time draft. This results whether the plaintiff is to be held as a vendor and the acceptors as vendees of the eggs, or if the acceptors are to be considered as factors, agents, or as pledgees. But the correct conclusion from the facts of the case is, as it seems to me, that the acceptors of the time draft were purchasers of the eggs, and paid for them by the accepted draft; for in the absence of any showing to the contrary, the draft must be considered as a negotiable instrument, the giving up of which is presumed to be payment for whatever given.

These principles are, in my opinion, sustained by the following authorities: Daniels on Neg. Inst., § 223; Jones on Pledge, §§ 256, 257, 258, 262; City Bank of Rochester v. Jones,4 N. Y. 497, 507; City Bank v. Rome, W. & O. R. Co., 44 id. 136; Merchants Bank v. Union R. & T. Co., 69 id. 379; Michigan Cent. R. Co. v. Phil. lips, 60 Ill. 190; Holmes v. German Security Bank, 87 Peun. St. 525; Emory Sons v. Irving Nat. Bank, 25 Ohio St. 360, 366; National Bank of Green Bay v. Dearborn, 115 Mass. 222; J. M. & I. R. Co. v. Irvin, 46 Ind. 180, 186; Colebrook on Collat. Sec., § 380, 382, 409; Lambeth v. Turnbull, 5 Rob. 264; National Bank v. Merchants' Bank, 91 U. S. 92; Low v. De Wolf, 8 Pick. 101: Smith v. Bettger, 68 Ind. 254.

The intent of the plaintiff is only to be judged from what he did and what he failed to do. It was in his power to make his own terms-to give his own instructions-explicit and not the subject of doubt. This the law required of him. That he made a mistake and met with loss in trusting the acceptors, Hopkins & Co., is no evidence of an intention, pre-existent or existent at the time, that the bill of lading should be held by his agents, the Baltimore Bank, after its acceptance by Hopkins & Co., until they paid the draft. The sanction of such a rule would be the introduction of a new and uncertain if not destructive element in the administration of the law.

Therefore it is my conclusion that the delivery of the eggs, by the defendant, to Henry E. Hopkins & Co., the acceptors of the time draft, was a rightful delivery, and that the judgment of the Special Term should be reversed.

The judgment of the Special Term is reversed, and the cause remanded with instructions to enter judgment on the agreed facts for the defendant.

The other judges concurred. [See 12 Alb. L. J. 163.]

NEW YORK COURT OF APPEALS ABSTRACT.

WILL-DEVISE IN TRUST-SUSPENDING POWER OF ALIENATION-REFUSAL TO ACCEPT PROVISION IN LIEU

OF DOWER.-The will of B. devised his residuary real estate to his executor in trust, to receive the rents and income, to divide the same into four parts, and pay each of said parts to beneficiaries named during the lives of two persons designated, who were strangers to the trust. Held, that there was no unlawful suspension of the power of alienation, and that the trust was valid. Upon the argument here, as well as in the court below, the concession appears to have been made that this clause of the will did not contain a valid estate in trust upon the authority of the opinion of Comstock, J., in the case of Downing v. Marshall, 23 N. Y. 366. It is there laid down that although trusts to receive and apply rents aud profits may be created under the statute of uses and trusts, the one in question in that case was not constituted in the manner which that statute prescribes. It was there stated, after citing the statute, that "the trust must therefore be made dependent on the life of the bene

ficiary." The beneficiaries there were associations, incorporated or unincorporated, and it was determined upon the ground that admitting the trust to receive the rents and profits was void, the purposes of the will could be worked out under the power given to sell and pay over the proceeds, and hence it is not an authority upon the question considered. By a previous clause in the will the testator devised to his wife the use and in lieu of dower, income of a house and lot to his widow during life,and upon her death, it was declared that the same should become part of the residuary estate. Held, that there was no unlawful suspension of the power of alienation as to this portion of the real estate, also that upon the refusal of the widow to accept the devise, the provision became inoperative. No trust was created during the life of the wife, and she had the absolute right to dispose of her interest in the house and lot during that period. The power of alienation is therefore not suspended during her life. While she had the right to enjoy the use and income of it, she also had the right to sell her interest in the same if she so wished, and upon her death it passed, under the sixth clause, to the executor in trust during the lives named, and upon their termination as provided in the seventh clause of the will. It is insisted that the title to the house and lot did not vest until the death of three persons, the widow, Thomas Bailey and Webster Mabie, and hence there was an illegal suspension of the power of alienation and the devise was void. The gift of the use and income was equivalent to a devise of the land itself during the life of the widow, and she had a legal title and was entitled to possession of the same. 3 Wash. on Real Prop. 450; 2 Jarm. on Wills, 534; Monarque v. Monarque, 80 N. Y. 324; Craig v. Craig, 3 Barb. Ch. 76. She having refused to accept the devise made in lieu of dower and elected to take her dower, this provision was of no avail, and it must be considered as if it never had been made, and thus the house and lot became a part of the residuary estate from the beginning, and was not liable to the objection that the power of alienation was restrained during the life of the widow. Bailey v. Bailey. Opinion by Miller, J. [Decided Dec. 2, 1884.]

OVER

cars

CONTRACT-USE OF PERSONAL PROPERTY-HOLDING NO IMPLIED CONTRACT DAMAGES.-In August, 1876, the plaintiff entered into a written contract with the defendant, whereby in consideration of $1,200 per year payable in monthly installments of $100 each, he was to have the exclusive right to place advertisements in its cars for two years from the 30th day of December of that year. In pursuance of that contract he placed and kept advertisements in the for the two years, and paid the stipulated compensation. After the expiration of the two years, without any further agreement, he continued to place and keep advertisements in the cars until May 1, 1881, making the monthly payments, when in pursuance of a notice requesting him to remove the advertisements from the cars on or before that day, it removed them from its cars and refused to permit him to place any more therein. The plaintiff claims that by permitting him to keep his advertisements in the cars after December 30, 1880, and taking pay from him, the defendant must be held by implication to have renewed the original contract for another term of two years from that date; and that at least by permitting him to enter upon another year in 1881, it was bound to permit him to keep his advertisements in the cars for the whole of that year. This action was brought to recover damages from the defendant for its refusal to permit the plaintiff to keep his advertisements in the cars after May 1, 1881. He was defeated

at the trial and then appealed to the General Term and to this court. The written contract between the parties amounted either to a license or to a lease (it is unimportant to determine which) to use the defendants' cars, personal property, for a certain purpose. The law did not imply a renewal of the contract for a term of two years, because such a contract which was not to be performed, and could not be performed within one year, not being in writing, was void under the statute of frauds. The law will not imply an unwritten contract which the parties themselves could not make without writing. It will sometimes imply an obligation on the part of a person who has received a benefit under a contract condemned by the statute of frauds, to make compensation to the other party. An implied contract is one which the law infers from the facts and circumstances of the case; but will not be inferred, so far as I can conceive, in any case where an express contract would for any reason be invalid. The law will not make that valid without a writing which the law requires should be in writing. Contracts void under the statute of frauds will sometimes be specifically enforced in equity, not because they are treated as valid, but for the prevention of fraud. This is not an equitable action for the specific performance of any contract or to compel the execution of a valid lease or contract on the part of the defendant. No such relief was claimed in the complaint or upon the trial. The action is to recover damages for the breach of an alleged valid agreement, and to maintain it the plaintiff must show a valid agreement. The claim of the plaintiff that he was entitled to the benefit of the contract for the whole of the year subsequent to December 30, 1880, upon the ground that there was an implied contract for the whole of that year, is also unfounded. If the cars had been real estate leased to him, his claim would have foundation. A tenant of real estate, permitted to hold over after the expiration of his tenancy, may hold for another year upon the same terms. The landlord has his option to treat the tenant as a trespasser or as a tenant for another year. But if he takes rent, or otherwise assents to the holding over, then the tenant has the rights of a tenant for another year. Schuyler v. Smith, 51 N. Y. 309. These are technical rules applicable to real estate, which have never been applied to personal property, and so it was held in Chamberlain v. Pratt, 33 N. Y. 47. To the reasoning of that case nothing needs to be added. By using the cars after the expiration of the first term of two years, the plaintiff acquired no new rights. It was always in the power of the defendant to put an end to his occupancy of its cars at any time. The plaintiff also invokes the doctrine of estoppel in país against the defendant, but I see no basis for it to rest upon. For aught I can see his damage and his embarrassment would have been just as great if it had removed the advertisement from its cars on the 30th day of December, 1880. It did nothing to mislead him. He knew that his contract had expired, and that he was using the cars at the will of the defendant, and it simply exercised a right which he was bound to know it had. Chase v. Second Avenue Railroad Co. Opinion by Earl, J.

[Decided Nov. 25, 1884.]

CORPORATION-ULTRA VIRES-WHEN CANNOT AVAILRECOVERY AGAINST ONE JOINT CONTRACTOR IS BAR TO OTHER.-A contract was entered into between defendants jointly as parties of the first part, and plaintiff and all its stockholders, individually, as parties of the second part, it being executed by plaintiff's president on its behalf, by which the latter agreed to give the former three-eighths of plaintiff's capital stock. Two of its trustees were to resign and defendants to take

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