This grant is an incorporeal hereditament in the nature of a franchise. To render it assignable, or descendible to heirs, it was necessary that it should extend to heirs and assigns. No such words are used in the grant. It did not, of course, descend to the heirs of the grantees; nor had they any power to assign it. It is evident that the legislature intended a personal grant, and that it terminated at their death.
The prohibitory clause in the resolve was intended to secure to the grantees the benefit of the grant, and could not operate after that had ceased; for it would be a strange construction to say that the legislature intended to prohibit *323all persons except the grantees from running a stage on the road in question after the right of the grantees had expired.
It has been urged for the plaintiff, that contemporaneous usage and the exercise of the privilege of the grant from its origin to the present time, ought to have been submitted as evidence to the jury in connexion with the grant, to shew it to be existing. But the grant having terminated at the death of the grantees, the plaintiff could have no right under it. Still he had a right to run his stage on the road in question in common with all the citizens of the state ; and the use of a public highway in such manner as all are entitled to use it, can never furnish presumptive evidence of the existence of a grant, or of an exclusive right.
No new trial ought to be granted.
In this opinion the other Judges severally concurred.
New trial not to be granted.