Beecher v. Bennett. got possession of the property he was not liable in this action. Previous to the 18th of December, and of course before the transfer under which the defendant claims title, Wardwell & Bardwell had failed in business, leaving the drafts, given upon the purchase of the clover seed and upon which the plaintiff was liable as drawer, unpaid. The plaintiff was in possession of the property, holding warehouse receipts therefor in his own name, and the defendant claims to hold the property under a transfer made by W. & B. to pay their individual debts. Whether a technical partnership existed between the plaintiff and Wardwell & Bardwell, with all the rights incident to that relation, in respect to the property at the time of the alledged transfer under which the defendant claims, or at any time, is not necessarily involved in the decision of this cause. The joint ownership of the property on the 18th of December, the indebtedness of the owners. for the same property, and the failure and insolvency of Wardwell & Bardwell, stand admitted upon the record, and there can be no doubt that the plaintiff, as well as the creditors of himself and W. & B. had a right to insist upon the application of the property to the payment of the debts contracted in its purchase. This right could not have been enforced except in a court of equity; but I apprehend that the same result might well be secured by an arrangement between the parties interested. In the absence of any conventional arrangement of the joint owners, the right to the possession would have been equal in all, and neither would have had the right to claim it from either of the others. A trust might have been created in a third person, by the act of all the parties, which would have invested such third person, as a trustee, with the possession and right of possession of the joint property, for the benefit of all concerned, and upon proceedings in a court of justice to enforce the rights of the parties and their creditors, in the application of the property to the payment of debts, a receiver of such property would have been appointed, to take possession of the property and dispose of the same under the direction of the court. I am unable to Beecher v. Bennett. see why one of the joint owners may not be made the trustee or receiver of this property, by the consent of all, and without the necessity of a formal assignment, or the intervention of a court of justice, subject only to the right of the creditors to object, and insist upon a disposition of the property which would more effectually secure their interests. The owners consenting to and actually placing the property in the custody of one joint owner for the purposes named, and advising the creditors of the arrangement, can not afterwards rescind this arrangement without the consent of all concerned. The consideration upon which it was made, is ample to sustain it; and the other joint owners, as well as the creditors, having by this arrangement accomplished all they could hope to do by legal proceedings, to wit, secured the application of the property to the payment of the debts to which by law it should be appropriated, were precluded from taking legal measures to protect those rights. (10 Paige, 205.) All that they could transfer was their interest. If a partnership had ever existed between the parties it had ceased to exist, and they were mere tenants in common; and the assignee of the interest of Wardwell & Bardwell took the assignment subject to the prior rights, legal and equitable, of the plaintiff. (Marquand v. The New-York Man. Co., 17 John. 525.) It must be irrevocable by the parties originally assenting to it, and consequently by all claiming under them by title subsequently acquired. (See Bradford v. Kennedy, 3 John. Ch. 431.) The power vested in the plaintiff was not a naked power, but a power coupled with an interest. The death of the other parties would not have revoked it, and neither will their subsequent transfer of their interest. It would be unjust to allow an arrangement of this kind, entered into to prevent the necessity of legal proceedings and to secure to parties their legal rights, and no more, to be made and unmade at the pleasure of one of the parties, and especially to allow it to be rescinded to enable a fraud to be perpetrated upon the innocent owners of the property, and their creditors. If the party in whom confidence has been reposed by all the owners of the property, is taking measures to divert and mis Beecher v. Bennett. apply the property, the other parties and all claiming under them have a remedy, but not by rescinding the arrangement and resuming the possession of the property. The question made upon this bill of exceptions was before me at special term, upon a demurrer to a complaint in the nature of a bill in equity for a due administration of this property, as the trust property of the plaintiff and W. & B., filed after the decision of this cause, and upon the ground that the remedy of the plaintiff was in equity and not at law, in pursuance of the clear instruction of the learned judge upon the trial of this cause. In accordance with the position then taken by the defendant's counsel I decided that by the agreement of the 18th of December, 1846, the joint possession of the parties was severed, and the plaintiff Wright acquired a separate estate in the property, and a right to the exclusive possession of it. Creditors of the firm might contest the bona fides of the transaction, if it was attempted to withdraw the property and place it beyond the reach of the creditors of the three, for debts created in its purchase, but as between the parties the agreement vested the property, and the exclusive right of possession, in Wright. (Ex parte Ruffin, 6 Vesey, 119. Ex parte Williams, 11 Id. 3. Coll. on Part. 509. Boynton v. Page, 13 Wend. 425; and see Story on Part. i 357, et seq. 396.) If Wright had not been in possession of the property at the time of the agreement, the transfer would have vested the title in him, and authorized him to take possession whenever he pleased, or to claim the property of any person in whose possession he should find it, not having a title valid as against him. And I then held that the plaintiff had a remedy at law, and that his defeat at the circuit did not give to a court of equity jurisdiction in the premises. (Vilas v. Jones, 1 Comst. 274. Green v. Clarke, in court of appeals, MS. Story's Eq. Jur. 897. 7 Cranch, 332. 1 John. Ch. 91.) Upon a review of the questions, which I think are the same essentially in both actions, I see no reason to change my opinion. Indeed the able counsel for the defendant did not, upon the argument of this cause, controvert the positions taken by him upon the demurrer in the equitable action; Walrath v. Barton. or passed upon on the decision of the demurrer therein. His argument was based principally upon facts and positions which we think are not properly presented upon the bill of exceptions in this cause, and which we therefore do not consider. My associates are also of the opinion that the defendant is not, as against the plaintiff, a bona fide purchaser of the property, or of the interest of W. & B. therein: that the circumstances establish very clearly the fact that he took his title with full knowledge of the legal and equitable rights of the plaintiff, and with a view to deprive him of them, and with the intent to defraud him and the creditors of the three of their just rights, and that for that reason the learned judge erred in withdrawing the case from the jury, and directing a verdict for the defendant. A new trial is granted; costs to abide the event. [JEFFERSON GENERAL TERM, July 7, 1851. Pratt, Gridley, Allen and Hubbard, Justices.] M. & D. WALRATH VS. BARTON. In an action of trespass, for diverting water from the plaintiffs' mill, the defendant, by giving evidence tending to show title to the locus in quo in the state, is not precluded, as by an estoppel, from proving that the water was taken in pursuance of the laws of the state, by the direction of a canal commissioner, for a temporary supply of water for the state canal. A superintendent of a canal may justify taking the waters of a stream, for the temporary use of the canal, in pursuance of the directions of a canal commissioner, although at the time of diverting the water he did not claim to act in obedience to the directions of the canal commissioner, and to take the water as a temporary and not as a permanent appropriation. THIS was an action of trespass, for damages to the plaintiffs' mill, situated on the Chittenango creek, in the county of Madison, and was tried before Mason, justice, at the Madison circuit in December, 1849. The injury complained of consisted in the erection of a dam at the head of the plaintiffs' flume, and taking Walrath v. Barton. boards from the top of the bulkhead, by which the water was diverted from the plaintiffs' mill into the Chittenango canal and feeder, to supply the Erie canal with water. The defendant was superintendent of the Erie canal, and as such, committed the acts complained of. After proof of the injury, the defendant gave in evidence a transcript of the map of the canal and feeder, at that point, made under the provisions of 1 R. S. 218, 4, 5, 6, and adopted by the laws of 1837, p. 518, 6. The introduction of the map and accompanying certificates in evidence was objected to by the plaintiff, and certain facts and circumstances were insisted and relied upon by the plaintiff as overcoming the presumption of title in the state, resulting from the map; and upon this evidence, under the instructions of the court, the jury found in favor of the plaintiffs. After the introduction of the map and certificates, the defendant proposed and offered to prove that the defendant took the water by direction of Jonas Earl, the acting canal commissioner on that section of the Erie canal, for a temporary supply of water for that canal. This evidence was objected to, for several reasons, and excluded by the court upon two grounds, which are referred to in the opinion of the court. The jury rendered a verdict for the plaintiff, and the defendant now moved for a new trial, on a case. T. Jenkins, for the plaintiffs. W. Hunt, for the defendant. By the Court, ALLEN, J. Several reasons were urged by the counsel for the plaintiffs, upon the trial, in support of his objection to the evidence offered by the defendant, that the water, for the diversion of which this action was brought, was taken by direction of the acting canal commissioner, for a temporary supply for the Erie canal. But as the decision of the judge was based upon two grounds distinctly put forth, and as some if not all the other grounds urged by the plaintiffs' counsel might possibly have been obviated by further evidence on the part of the defendant, it will be proper to examine solely the grounds upon which the |