monstrations of hostility against his person. Suppose that the appellee, who is a judge of one of the appellate courts of this State, had by his declaration of the law upon some public question, stirred up such a feeling of hostility toward himself among a certain class of persons along the line of the railroad over which he was obliged to travel from his home to the place where his court held its sessions that he was in danger from mob violence, and that upon his application to be received as a passenger, the railroad company had declined to admit him upon its train, on the ground that his presence there might provoke an attack at some point on the road, and so cause injury to the passengers, would the company be justified in thus preventing him from going to the performance of his official duties? We see no difference between the case supposed and the case presented by the record. The law is no respecter of persons. Its glory is that it extends its protecting hand as well to the lowly workman as to the learned judge. Each one of these thirteen non-union laborers, soiled with oredust from the docks, yet willing to comply with the reasonable regulations, which require him to take his seat in the smoking car rather than in either of the passenger coaches, was as much entitled as was appellee to demand of a carrier holding its franchises at the hands of the State for the benefit of the whole public, a safe passage, at the close of a day's labor, to his home and his family. Hence it was no less the duty of the railroad company to take the thirteen laborers on the train than to take the appellee thereon.

"Appellant was not obliged to neglect its duty to the one because the performance of that duty might in some remote aud uncertain degree result in harm to the other. It is not contended, nor is there a particle of evidence to show, that the appellant had any notice that this attack would be made on its train, either at the place where it was made, or at any other point on its road. Laborers had been brought up from Joliet to Chicago in the morning, and returned to Joliet in the evening, prior to June 1, 1882, but the strikers had made no attack before this particular day upou any passenger train. They laid their plans with rare cunning and secrecy. * * * Instructions must be based upon the evidence. If it is left to the jury to determine whether or not a prudent man would draw certain conclusions from certain circumstances, it must at least appear that there was some reasonable and natural relation between the circumstances existing and the conclusions to be drawn from them. No prudent man, even in the exercise of that high degree of care which the law imposes upon the carrier of passengers, could be expected to foresee or anticipate that the animosity of union toward non-union laborers would lead to such a wanton and fiendish attack as is shown by this record to have been made in a civilized city, and under a government of law, upon a train full of peaceable and orderly passengers.

"The third instruction given for the appellee told the jury that the appellant could not justify the admission of the non-union laborers into the train, on the ground that the defendant had issued to the foreman of said laborers a ticket on which they were carried on said train.' We think that this instruction was calculated, under the circumstances of this case, to make a wrong impression upon the minds of the jury. It seems to intimate that the obligations of appellant to the laborers would be less binding in a case where their common employer paid for the passage of all of them, and purchased one ticket for them all, than such obligations would be in a case where each laborer paid his own fare and bought his own ticket. We know of no authority, and can see no reason for any such distinction. Whatever rights and privileges would inure to the benefit of the laborers by

reason of their fare being paid, would so inure whether such fare was paid by themselves or by the steel company which employed them.

"It is further claimed that there was no regular passenger station at the ore docks, and that for this reason appellant was not obliged to stop there and take on the thirteen workmen. Even if it was not obliged to stop, it will not be denied that it had the right to stop. And it is a matter of serious doubt whether the industries of a great commercial center, or the carriers and other agencies which minister to and aid in their operations, are bound to suspend the exercise of their legal rights, or cease the transaction of their lawful business, simply because there exists some disturbance in the community, which the officers of the law, either through unwillingness or inefficiency, fail for the time being to successfully quell.

"But independently of this consideration, the undisputed proof shows that the gateway of the dockyards was just south of the river, while right across the bridge, on the north side of the river, was the regular Bridgeport station; that some weeks before June 1, 1882, the steel company had made an arrangement with appellaut, by which the latter agreed to let off and take on the laborers at the docks, rather than at the station, because the men would be in danger of being injured by the mob if compelled to walk from the one place to the other across the bridge; that the taking on of the thirteen workmen on June 1, 1882, was merely one act in the performance of a previous contract between the appellant and the steel company, by the terms of which appellant was to bring men from Joliet and return them to Joliet on each and every day when their services were needed at the docks. The eighty-fifth section of the Railroad Act provides that railroad companies shall receive and deliver passengers at their regular or appointed time and place.' The eighty-eighth section provides that trains shall stop a certain length of time at each station advertised * * * as a place for receiving and discharging passengers. Hurd Rev. Stat. 1885, pp. 944, 945. These sections are merely declaratory of a general rule of the common law, that where a common carrier advertises that it will stop at certain regular and appointed stations, such advertisement constitutes a special contract between it and the public that it will so stop. Aug. Carr., § 527a. Hence the obligation to stop at a regular passenger station rests upon the basis of contract. In the case at bar the duty of appellants to stop at the docks did not grow out of a contract to be implied from its appointment and advertisement of the docks as a regular station, but it did grow out of an equally binding contract actually entered into before that time, as above stated, between appellant and the steel company. It is to be observed also that this contract was made for the benefit as well of the nonunion laborers as of the steel company. When appellant brought the men from Joliet on the morning of June 1 it landed them at the docks, with the distinct understanding that the train was to stop for them in the evening and take them home. To have refused to receive them on board in the evening would have been to leave them to the tender mercies of the mob during the night. This would have been, not only a violation of the contract, but an unmitigated cruelty. The instructions given to the jury on behalf of the appellee by the trial court kept entirely out of view the obligations which were imposed upon appellant by reason of the previous arrangement for the carriage of the workmen so made between it and the steel company. They also ignored aud kept out of view the obligations which appellant was under to take the laborers away from the docks at the close of the day by reason of having carried them to the docks at the beginning of the day. These instructions simply pre.

sented to the jury the naked question whether it was right or not for appellant to stop at the docks and take on the laborers on that particular evening, without reference to the binding force of the existing contract on the subject, and without reference to the binding force of appellant's previous contract toward the laborers themselves. They were therefore erron

eous.

"It is however contended that if the appellant was bound to take the non-union men on board, it should have provided a sufficient force to protect them against the dangers which were likely to arise under the circumstances. It is true that section 105 of the railroad law of this State provides that conductors of railroad trains shall be invested with police powere while on duty on their respective trains' (Hurd Rev. Stat. 1885, p. 948), but the object of this provision was merely to clothe such conductors with the authority to keep order among their passengers. This abundantly appears from the language of sections 106 and 107, which authorize conductors to remove disorderly passengers, and to call on the other employees of the train and the other passengers to aid them in such removal, and which also authorizes a conductor to arrest any person committing crime on the train. It was never the intention of the statute to require railroad companies to carry a force large enough to repel the attack of an outside mob. In this case the testimony tends to show that the strikers who made the attack consisted of between 100 and 200 men. The officers in control of the train were unable to do any thing against such a force, and were overpowered. The duty of protecting the citizens of the State against so large a body of rioters as is here referred to rests upon the civil authorities, and not upon the railroad corporations. To impose such a duty upon the latter would be to clothe them with a part of the functious of the government itself.

"In Railway Co. v. Hinds, 53 Penn. St. 512, the Supreme Court of Pennsylvania says: The case is that of a mob rushing with such violence and in such numbers upon the cars as to overwhelm the conductor as well as the passengers. It is not the duty of railroad companies to furnish their trains with a police force adequate to such emergencies. They are bound to furmish men enough for the ordinary demands of transportation, but they are not bound to anticipate or provide for such an unusual occurrence as that under consideration.' The doctrine here announced in the Pennsylvania case was approved and indorsed by the Supreme Court of Massachusetts, speaking through Mr. Justice Gray, in Simmons v. Steamboat Co., 97 Mass. 361. Rorer on Railroads, at page 1105, says: 'A railroad company is not liable in an action at the suit of a passenger for injuries received by mob violence in the course of his transportation on its cars, if without the power of the company to prevent the same. The duties of railroad companies as carriers do not include the obligation of providing aud carrying a police force or guard sufficient to suppress mobs who intrude into the cars. To the same effect is Shear. & R. Neg., § 2786.

*

"Tested by the principles here laid down, the first instruction given for appellee was erroneous. It directed the attention of the jury to the negligence of the defendant as alleged in the declaration.' One count of the declaration alleges that appellant was guilty of negligence, because it failed and neglected to provide a sufficient force * * to protect the said train from attack by said striking workmen.'' Sheldon, C. J., concurs in this dissenting opinion. [See Geismer v. Lake Shore, etc., Ry. Co. (102 N. Y. 563), 55 Am. Rep. 837. The reader must supply the word "that" in Judge Scott's opinion to suit himself. -ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

AGENCY-CONSIGNMENT OF GOODS-STORAGE AND PAYMENT OF CHARGES-REIMBURSEMENT.-Merchants in Manilla shipped two cargoes to New York, drawing drafts on their London house, which defendant discounted, taking bills of lading as security. The defendant, at request of the payees, turned over the bills of lading to the plaintiff, a commission merchant in New York, that the cargoes might be sold and the drafts paid, taking from him a receipt in which he agreed to store the goods as the defendant's property in a public warehouse as soon as landed, and to give the warehouse receipts to defendants; the intention of the agreement being to "protect and preserve unimpaired the lien of the defendant." When the ships arrived, in order to get the goods, plaintiff paid the freight out of his own funds. Defendant demanded the receipts of him, which he refused to deliver until his outlay for freight and insurance was paid. The consignors and their London house had failed meantime, and the drafts were not paid, and the cargoes did not sell for enough to pay the drafts and freight. Plaintiff had acted as commission man for the consignors before, had paid freight on cargoes, and reimbursed himself out of their sale. Held, that plaintiff did not act as agent for consignors in paying the freight, and was to be repaid by defendant for expenses incurred by him, including the freight, which was a lien on the cargo, which he had to pay before he could store it as defendant's property. Nov. 29, 1887. Cooper v. Hong Kong & Shanghai Banking Corp. Opinion by Peckham, J.

ASSIGNMENT FOR CREDITORS-LIENS-PRIORITY OF MORTGAGE. One of the partners in a firm sold his interest in the real estate owned by members of the firm, and took a mortgage on the property in part payment. The firm subsequently became insolvent, and made an assignment for the benefit of creditors, and the assignee conveyed the real estate in question by deed, subject to all liens and incumbrances. The assignees' grantee claimed priority to the mortgage, on the ground that when the mortgage was given there were outstanding claims of creditors of the firm, which created a lien on the property in question to the benefit of which he was entitled. Held, that the mortgage took priority of the deed from the assignees, as the firm was solvent at the time the mortgage was made; but even if the lien claimed were established, the assignees' grantee would not be benefited by it, as his deed was subject to existing incumbrances. (1) A defense to the foreclosure of a purchase-money mortgage on the part of the mortgagor, alleged to have existed at the time of its inception, can only arise when fraud has been practiced by the mortgagee in procuring its execution, or there is a failure of consideration. Thus it is held that a purchaser of land, who has given a boud and mortgage thereon to secure the purchase-money, and is in the undisturbed possession thereof, cannot resist the foreclosure of the mortgage on the mere ground of a defect of title, there being no allegation of fraud in the sale nor any eviction. Abbott v. Allen, 2 Johns. Ch. 520; York v. Allen, 30 N. Y. 105. In such case he is remitted for relief, if any he has, to the covenants contained in his deed, and if there are no such covenants, he is remediless. Banks v. Walker, 2 Sandf. Ch. 344; Parkinson v. Sherman, 74 N. Y. 88; Frost v. Raymond, 2 Caines, 188; Leggett v. McCarty, 3 Edw. Ch. 124; Edwards v. Bodine, 26 Wend. 109. "The rule," says Mr. Justice Swayne, in Peters v. Bowman, 98 U. S. 56, "is founded on reason and justice. A different result would subvert the contract of the parties, and substitute for it one which they did not make. In such cases the vendor, by his covenants,

if there are such, agrees upon them, and not otherwise, to be responsible for defects of title. If there are no covenants, he assumes no responsibility, and the other party takes the risk. The vendee agrees to pay according to his contract, and secures payment by giving a lien upon the property." A purchaser of mortgaged premises, who takes a deed thereof subject to the mortgage, and agrees to pay the same, is estopped from the contesting the consideration or validity of the mortgage; and when the mortgage is given by his grantor to secure the purchase-money, such grantee cannot, so long as he remains in possession of the premises, defend against the mortgage because of failure of title. Parkinson v. Sherman, supra; Ryerson v. Willis, 81 N. Y. 277. The mortgagee's title cannot be questioned in defense of a bill for foreclosure. If he takes by virtue of his mortgage any estate whatever which is still subsisting, he is entitled to a decree, and the court will not inquire what interest he has in the mortgaged estate. Jones Mortg., § 1492. (2) This mortgage was a valid and subsisting lien, at the time of the conveyance to Fales, upon the property described in it, for the sum therein mentioned, even though its object was liable thereafter to be defeated by the exhaustion of the fund through the enforcement of prior liens, whether legal or equitable, affecting the property conveyed. It follows, as a necessary consequence from these facts, that the defendant Fales, having acquired title to the property in question, subject to all liens and incumbrances upon it, is not, and neither can his grantors be, at liberty to question the liability of the property mortgaged for the payment of the mortgage debt. Even if it were in the power of the assignees, as representatives of any creditors, to question the lien of this mortgage, they never did so, and they transferred no right to do so to their grantees, but by making the deed subject to existing liens and incumbrances, impliedly withdrew such right from them, and made their title depend upon the payment of the mortgage. The transfer from the assignees to Fales conveyed simply an equity of redemption in the premises, and by the terms of their deed he took no greater interest in the property than such as remained after the extinguishment of the lien then resting upon it. Fire Co. v. Lent, 6 Paige, 635. The attempt of the appellants to clothe themselves with any supposed equities existing in favor of creditors has therefore no foundation in the facts of the case, as there were no such equities existing; and even if there were, the defendants have not succeeded to them. (3) But a further answer to the contention of the defendants is found in the fact that there are no such creditors asserting claims which antedate the execution of the deed and mortgage in suit. The firm existing at that time and previous thereto were solvent, as found by the referee at the date of McDonnell's deed, and the individual members of such firms had an interest in their assets capable of being sold and conveyed, and of being made the subject of security for the payment of the purchase price of the property. In so far as those interests become contributions to the capital of subsequent firms formed to carry on the same business, they could only be used for that purpose, subject to the liens already existing upon them, and the creditors of such firms could acquire no right to contest the validity of such liens, except such as belonged to the firm itself. The attempted defense of the appellants is simply a claim that, at the time of McDonnell's deed to Clark, there were outstanding claims in favor of creditors which might have been used in equity to extinguish McDonnell's legal title, and thus produce a failure of consideration for the mortgage. This defense is not sustainable, either in law or equity, or by the facts of the case. Nov. 29, 1887. McConihe v. Fales. Opinion by Ruger, C. J.

-

DEED

EASEMENT-RIGHT TO USE OF SPRING APPURTENANCES."- B. was the owner of two lots, by title obtained from different sources, at different dates, and separated by some land owned by a third party, whom he had permitted to take water from a spring on one of his lots, charging rent therefor, and allowing his tenaut on the other lot, by parol license, to take water by a pipe, supplying the intervening lot. He sold the lot without the spring to one who sold to the grantor of the plaintiff. The deed conveyed the land by metes and bounds, "with the appurtenances thereto belonging," but did not mention any water-rights. B. never intended that any right to the spring should go to the grantee, and the latter understood that he had the right to the water only by parol license. Held, that the right did not pass by the use of the word " appurtenance" in any of the deeds, nor as an easement by implication. Nothing passes by the word "appurtenance" except such incorporeal easements or rights of privileges as are strictly necessary and essential to the proper enjoyment of the estate granted. A mere conveyance is not sufficient to thus create such a right or easement. See Ogden v. Jennings, 62 N. Y. 526; Green v. Collins, 86 id. 246; Griffiths v. Morrison, 106 id. 165; 12 N. E. Rep. 580. Nor do we think, that under the circumstances, there was any implied easement which passed to the grantees under the deed from Bradbury. It must be remembered that the two premises, although at one time both owned by Bradbury, were essentially two distinct plots of ground, and the title to each vested in Bradbury from a different source. Between the two lots of ground was this intervening strip of fourteen rods in width, substantially and physically separating the premises, and making two separate and distinct lots. It must also be remembered that the spring existing on the land now owned by the defendant was owned by Bradbury long anterior to the time when he became the owner of the premises now owned by the plaintiff, and that before that time. and while the intervening lot was owned by one Beebe, permission had been obtained by Beebe, from Bradbury to take the waters from the spring across Bradbury's land to the lands now owned and occupied by Beebe, and that Bradbury had distinctly refused to grant him any permanent right, having given him simply a parol license to take it during his pleasure only, and in consideration of a small annual rent. This state of things existed at the time Merchant, who occupied at one time the land now owned by the plaintiff, was permitted to take the surplus water from the intervening lots, and conduct it to his own premises; and that was done by the mere parol license of Beebe and Bradbury. The same state of things existed at the time Rowley became Merchant's successor in the possession of the premises now occupied by the plaintiff. In the character of tenaut to Bradbury, and subsequently as his grantee, Rowley at all times understood perfectly well the terms and conditions upon which his right existed to conduct the water over Bradbury's premises to his own, and he understood that it rested simply upon the parol license of Bradbury. All the facts show conclusively that Bradbury understood his own rights in the premises, and never intended that any right to obtain the water from the spring on the premises now occupied by the defendant should accrue to the owners or occupiers, either of the intervening lot, or of the premises now occupied by the plaintiff. We see nothing in the facts found by the learned trial judge which would change the right to use the water from a right resting simply in a parol license to an absolute right, based upon an easement implied in a grant of the premises to plaintiff and her grantors. We do not think the case comes within the principle of those cases cited by the counsel for the

plaintiff, of which Lampman v. Milks, 21 N. Y. 505, and Curtiss v. Ayrault, 47 id. 73, are examples. In Lampman v. Milks the original owner of the land, across which a stream flowed, diverted the stream through an artificial channel, so as to relieve a portion of the land formerly overflowed by the stream, and that portion of the land he afterward conveyed to a third party. The court held that neither he nor his grantees of the residue of the land could return the stream to its ancient bed, to the damage of the first grantee. That is an entirely different case from the one at bar. The land which the owner conveyed after he had diverted the channel of the stream would have become worthless by being overflowed, if he or his grantees of the remaining portion had been permitted to return the stream to its original channel. The court held that under such circumstances the owner, in conveying the premises thus relieved from overflow, charged the remaining portion of the premises with the servitude of submitting to the stream running through their lands. In the course of the opinion in that case the learned judge distinguished between those easements which are continuous- that is, selfperpetuating, independent of human interventionand those which are termed discontinuous easements, the enjoyment of which can be had only by the interference of man, such as rights of way or a right to draw water. In regard to such latter kind of easements upon a severance of tenements by the owner, they only pass which are absolutely necessary to the enjoyment of the property conveyed. In Curtiss v. Ayrault the same general doctrine is held. In that case it appeared that a marsh had been drained by the owner of the whole tract by digging a ditch, which carried the water to other portions of the tract, where it made a permanent channel in which the water gathered in the marsh, flowed in a continuous stream; thus mutually benefiting the land drained, and the lands through which a supply of good water was thereby conveyed. The owner of the property, while these reciprocal benefits and burdens were in existence and apparent, divided the tract into parcels, and conveyed the parcels to different grantees, who contracted with reference to the then open and apparent condition of the land; and it was held that such condition was essential to the enjoyment of all the lands, and especially to that portion which by the digging of the ditch had been drained and made good available land. To the same effect is Adams v. Conover, 87 N. Y. 422, although that case arose under an alleged breach of covenant of warranty and of quiet enjoyment contained in the deed. It was contended that the covenant was broken because at the time of the conveyance of the premises, which consisted of a mill, a dam, and a pond which furnished water-power for the mill, they were in a certain visible condition in regard to the height of the dam; and yet a right existed in, and was subsequently exercised by a third party to compel the lowering of such dam, the effect being to substantially ruin the premises for use as a water-power, which was the sole consideration for their purchase and their chief value. The court held that the conveyance by metes and bounds, which included the dam and water-power, conveyed the dam as it then stood, at its existing and apparent height. The court said that the power of the water thus created and stored was the essential and material element of value in the mill property, which was the subject of the conveyance, and therefore there was a breach of the covenant of warranty and of quiet enjoyment, when it was shown that there was a superior right in a third person to demand a reduction of the height of the dam, and the lessening of the head of of water thereby; and it was so determined because

of the fact that substantially the whole value of the property depended upon continuing the height of the dam as it existed, openly and apparently, at the time of the conveyance. Nov. 29, 1887. Root v. Wadhams. Opinion by Peckham, J.

INSURANCE-REPRESENTATIONS-FALSITV - ESTOPPEL.- An application for insurance, drawn by defendant's agent, purported to represent the age of the insured, who at the time of making the application refused to make any statement regarding his age, saying that he did not know it, and the age, as represented, was in fact computed by the agent from data alleged to have been given by the insured; but the conclusion arrived at was not assented to by the insured, and the application was not read over to him before signature. Premiums were paid on the policy for six or seven years, when defendant repudiated the contract, on the ground of misrepresentation as to age. Held, that the defendant was estopped from setting up the falsity of the statement. In the case however of life insurance policies, it is the settled doctrine of the modern cases, that where the application for insurance is drawn up by the agent of the insurer, and the answers to the interrogations contained therein are inserted by him at his own suggestion, without fraud or collusion on the part of the assured, the insurer is estopped from controverting the truth of such statements, or the interpretation which it has given to the answers actually made by the applicant, in an action upon the instrument between the parties thereto. Plumb v. Insurance Co., 18 N. Y. 392; Rowley v. Insurance Co., 36 id. 550; Baker v. Insurance Co., 64 id. 648. It was said in Dilleber v. Insurance Co., 69 N. Y. 260, that "if a question is not answered, there is no warranty that there is nothing to answer, and so in the case of a partial answer, the warranty cannot be extended beyond the answer. Fraud may be predicated upon the suppression of the truth, but breach of warranty must be based upon the affirmation of something not true." As we have before seen, no fraud was proved or found, and the defense must rest upon the alleged breach of warranty alone. The rule applicable to such a case as the present is well settled in this State, and was succinctly stated in Mowry v. Rosendale, 74 N. Y. 363, as follows: "The principle that if the statements in the application relied upon as breaches of warranty are inserted by the agent of the insurers without any collusion or fraud upon the part of the insured, the insurer is estopped from setting up their error or falsity as a breach of warranty, seems now well settled." Baker v. Insurance Co., 64 N. Y. 648; Maher v. Insurance Co., 67 id. 283; Rowley v. Insurance Co., 36 id. 550; Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Mahone, 21 id. 152. To these might be added Grattan v. Insurance Co,, 80 N. Y. 295, and Plumb v. Insurance Co., 18 id. 392. The remarks of Miller, J., of the Supreme Court of the United States, in the case of Insurance Co. v. Wilkinson, supra, are so pertinent to the question involved here that a quotation at length is deemed appropriate : "In the case before us a paper is offered in evidence against the plaintiff, containing a representation concerning a matter material to the contract on which the suit is brought, and it is not denied that he signed the instrument, and that the representation is untrue. But the parol testimony makes it clear beyond a question that this party did not intend to make that representation when he signed the paper, and did not know he was doing so, and in fact had refused to make any statement on the subject." After stating that when an application is prepared by the party signing it, and the insurance company has acted in reliance upon its truth, and issued a policy, the applicant will not be allowed to question the truth of such

statement, he proceeds: "If however we suppose the party making the insurance to have been an individual, and to have been present when the application was signed, and soliciting the assured to make the contract of insurance, and that the insurer himself wrote out all these representations, and was told by the plaintiff and his wife that they knew nothing at all of this particular subject of inquiry, and that they refused to make any statement about it, and yet, knowing all this, wrote the representation to suit himself, it is equally clear that for the insurer to insist that the policy is void because it contains this statement would be an act of bad faith, and of the grossest injustice and dishonesty. And the reason for this is that the representation was not the statement of the plaintiff, and that the defendant knew it was not when he made the contract, and that it was made by the defendant, who procured the plaintiff's singature thereto. It is in precisely such cases as this that courts of law in modern times have introduced the doctrine of equitable estoppels, or as it is sometimes called, estoppel in pais." This case was followed by the same court in Insurance Co. v. Mahone, supra, where testimony was admitted, under objection to prove that the answers in an application, which it was admitted was signed by the assured, were not correctly entered by the agent. The court held it competent, saying: "The testimony was admitted, not to contradict the written warranty, but to show that it was not the warranty of Dilland, though signed by him. Prepared as it was by the company's agent, and the answers having been made by the agent, the proposals, both questions and answers, must be regarded as the act of the company, which they cannot be permitted to set up as a warranty by the assured." This was held to be so, although the application and answers were subsequently read over to the assured, and he then signed it. We think the evidence in this case brings it clearly within the principle laid down in the cases cited, and that there should be a new trial of the same. Nov.

29, 1887. Miller v. Phoenix Mut. Life Ins. Co. Opinion by Ruger, C. J.

WATER AND WATER-COURSES STREAM-ISSUE OF FACT- ESTOPPEL. -

DIVERSION OF (1) Plaintiff, in an action for damages for diverting the water of a stream in which it had riparian rights, introduced testimony that the whole stream at times went through defendant's tail-race instead of taking its natural course, and did not return to the stream until it had passed its property. Defendant's testimony was, that as there was no fall in the stream, the only use plaintiff had for the water was for domestic purposes, and for that there was always enough. Held, that this raised an issue which plaintiff was entitled to have submitted to a jury. (2) The grantor of plaintiff was the owner of the property while defendant was building his raceway, and knew he intended to take water from the stream, and did not object to it in any way. There was no element of fraud in the case, nor any evidence that plaintiff's grantor induced defendants to make the expenditure. Held, that the plaintiff was not thereby estopped from asserting its riparian rights. Nov. 29, 1887. New York Rubber Co. v. Rothery. Opinion by Peckham, J.

torney, conveyed the premises to one Knight, who immediately reconveyed to the husband. On July 9, 1886, the husband conveyed to defendant, and on July 27, 1886, S. conveyed to plaintiff. Held, that the conveyance to Knight, and by him to the husband were on their face fraudulent and absolutely void, and could be avoided by an action of ejectment. Such a transaction cannot stand. It bears upon its face its own condemnation. It is prima facie void, and as between the parties the principal is not bound by the deeds, and may repudiate the transaction and recover the land. Public policy will not tolerate such misdoing on the part of an agent, and courts will not stop to inquire whether a fraud was intended, but looking alone at the relation of the parties, will upon that relation appearing, declare the conveyance invalid. Gillett v. Peppercorne, 3 Beav. 78; Whart. Ag., § 232; 2 Sugd. Vend., chap. 20, § 2; Gilbert v. Burgott, 10 Johns. 457; Claflin v. Bank, 25 N. Y. 293; Obert v. Hammel, 18 N. J. Law, 74; Michowd v. Girod, 4 How. 503; Clute v. Barron, 2 Mich. 192. In very many of the cases which have been brought to the attention of the courts the agents or trustees have so covered their misfeasance as to make it necessary for the injured party to go into a court of equity to obtain adequate relief. But when the fraud appears upon the face of the papers or conveyances, the remedy can as well be administered in a court of law as in a court of equity. Thus in Claflin v. Bank, cited above, an action was brought to recover upon three checks drawn by the president of the bank and certified by its president as good. The defense that the president committed an abuse of his fiduciary relation with the bank was permitted to be shown. Judge Selden said: "The act of the agent is deemed to be unauthorized, and the contract is void; " and that "there could be no bona fide holder of such an instrument," for the reason that the want of authority in the president to bind the bank appeared on the face of the check. In Gilbert v. Burgott, 10 Johus. 457, which was a contest between the grantee of an unrecorded deed and a subsequent grantee who first placed his deed of record, the court held that actual notice to the second grantee of the existence of the unrecorded deed might be shown in an action of ejectment.Chief Justice Kent held that thelaction of the subsequent grantee in obtaining and recording a deed when he had notice of the first conveyance was a fraud upon the holder of the unrecorded deed, and he said: "Fraud will invalidate in a court of law as well as in a court of equity, and annuls every contract and every conveyance infected with it." Obert v. Hammel, supra, was a case in point, and the court held in an action of ejectment that the sale and conveyance could be avoided in a court of law, citing several English cases in support of the position. It is laid down by Sugden on Vendors and Purchasers, and supported by numerous authorities, that "when the trustee buying is the trustee for sale the purchase is absolutely void." Chapter 20, § 2 (8th Am. ed.), p. 689, bottom note n. "So careful," said Mr. Justice Manning, in the case of People v. Township Board of Overyssel, 11 Mich. 222, "is the law in guarding against the abuse of fiduciary relations, that it will not permit an agent to act for himself and his principal in the same transaction; as to buy of himself, as agent, the property of his principal or the like. All such transactions are void, as it respects his principal, unless ratified by him with a full knowledge of all the circumstances." Mr. Justice Christiancy concurred with Justice Manning. Mr. Justice Campbell assented to the general doctrine stated, that the same person cannot be vendor and purchaser, because his contract lacks the necessary element of two parties, but he also stated that "even these contracts are not univer