breach of duty, so long as none of the money gone to pay any debt for which the bank was not by the express terms of its charter liable, it has not suffered loss, and there is no damage, without which there can be no action. The cases of Hun v. Cary, Mss. Sept. 1880, Ct. of Ap.; Austin v. Daniels, 4 Den. 300; Franklin Ins. Co. v. Jenkins, 3 Wend. 130; Butts v. Woods, 37 N. Y. 318; Gillette v. Moody, 3 id. 479; Robinson v. Smith, 3 Pai. 222; Cunningham v. Pell, 5 id. 607; Comm. Bank of Penn. v. Union Bank of N. Y., 11 N. Y. 203; Osgood v. Layton, 3 Keyes 521, distinguished. (3) The action is not sustainable under 1 Rev. Stat., article 1, title 2, part 1, which forbids directors of moneyed corporations from making dividends except from surplus profits. The deposit in a savings bank is a debt, and the interest is not a dividend. Besides this statute prescribes a penalty and the action is not to enforce such a remedy. Neither does section 2, title 4, of the same chapter support the action for a similar reason. Besides those statutes became inoperative by Laws 1875, chapter 371. Miller's case, 1 Wm. Bl. 451; Butler v. Palmer, 1 Hill, 324; Hartung v. People, 22 N. Y. 95; Knox v. Baldwin, 80 id. 610. (4) The statute of 1869, supra, section 33, declares that no dividend or interest shall be declared credited or paid except by authority of a vote of the board of trustees duly entered upon their minutes, whereon shall be recorded the ayes and nays upon each vote, and whenever any interest or dividend shall be declared or credited in excess of the interest or profits earned the trustees voting for such dividend shall be jointly aud severally liable to the corporation for the amount of such excess so declared and credited. Interest was declared, as was claimed, contrary to this provision, and this defendant voted therefor. The ayes and nays were not recorded. Held, that this fact would not relieve defendant from liability. The direction to record the vote was for the benefit of the trustees. Defendant could waive the omission, it being made for his safety, but could not take advantage of it. Bond v. Trustees of Lockport, 3 N. Y. 197. (5) After a dividend had been declared and credited defendant approved of it. Held, that this was not the act forbidden by the statute. The moment a dividend is declared and credited it becomes the property of the depositor, not that of the corporation. LeRoy v. Globe Ins. Co., 2 Edw. Ch. 657; Kane v. Bloodgood, 7 Johus. Ch. 90. (6) The statute does not stand on a rule that requires that interest be paid depositors from net profits only, and that payment except therefrom would not only be a misapplication of the funds of the bank, but a violation of the statute (§ 33, supra). It would be different if fraud, intended or attempted, were shown. Excelsior Pet. Co. v. Lacy, 63 N. Y. 422; Strang's case, L. R., 4 Ch. App. 477. By section 38 the report of the corporation must state "the whole amount of interest received or earned and the amount of dividends credited to depositors." By section 33 the trustee does not overstep his statutory duty s0 long as he "declares no interest or dividend beyond interest or profits earned. It should therefore be held that if, by comparing the amount of interest earned with the dividend, it appears the latter falls short of the former, he cannot be subjected to the penalty. The provision forbidding the payment of more interest than is earned is penal, and therefore cannot be extended by implication. The plaintiff contends that a penalty has been incurred, and he must fail because he has not shown that the words of the statute distinctly enact that under the circumstances it has been incurred. Fletcher v. Lowdes, 3 Bing. 58; Garrison v. Howe, 17 N. Y. 458; Whitney Arms Co. v. Barlow, 68 id. 34; Olcott v. Tioga R. Co., 20 id. 210; Chase v. Lord, 77 id. 1. Judgment reversed and new trial ordered. Van Dyck v. McQuade. Opinion by Danforth, J. Finch, Andrews and Miller concurred; Folger, C.

J., and Earl, J., dissent; Rapallo, J., absent from argument.

[Decided Oct. 4, 1881.]

CARRIER-CONTRACT EXEMPTING FROM LIABILITY FOR INJURY TO GOODS TRANSPORTED DOES NOT RE

LEASE FROM LOSS BY OWN NEGLIGENCE.-By the terms of a contract for the transportation of sheep by railroad in consideration of a reduction in the charges for freight, the carriers were released from liability originating in the viciousness or weakness of the animals, or from delays, or in consequence of heat, suffocation, or of being crowded, “or on account of being injured, whether such injury shall be caused by burning of hay, straw, or any other material used for feeding said animals or otherwise, and for any damage occasioned thereby." There were no words expressly and definitely exempting the carrier from liability for his own negligence. Held, that under the doctrine of Mynard v. S. B. & N. Y. R. Co., 71 N. Y. 180, that when general words limiting the liability of a carrier may operate without including his negligence or that of his servants, such negligence will not lie within the exemption of the agreement. The carrier was liable for injury done to the sheep by fire, which started in the bedding of their cars, which injury resulted from the negligence of the railroad company in omitting to supply the train in which the sheep were with such appliances as would have enabled those in charge of it to have put out the fire before the injury was done. See Angell on Carriers, 214; Pratt v. Ogdensburg R. Co., 102 Mass. 557; Powell v. Penn. R. Co., 32 Penn. St. 414. The case differs from Cragin v. New York Cent. R. Co., 51 N. Y. 61, where the injury resulted from the vitality of the animals, for which the carrier would not have been liable at common law, cousequently the only liability the carrier could be exempted from was for negligence. Judgment affirmed. Holsapple v. Rome, Watertown & Ogdensburg Railroad Co. Opinion by Finch. J. [Decided Oct. 11, 1881.]

BANK

PRACTICE -ORDER REFUSING TO VACATE JUDGMENT NOT APPEALABLE TO COURT OF APPEALS RUPTCY.-The assignee in bankruptcy of W. applied to the court below to vacate a judgment entered against W. and let the assignee in to defend, and to compel the repayment into court of moneys in which W. had an interest, which had been paid out in pursuance of such judgment. The judgment was in a suit against W., pending when he was adjudicated a bankrupt, and was rendered and the moneys paid out after the adjudication. It was claimed that the judgment and payment were in fraud of the bankrupt law. The court below denied the application. Held, that an appeal did not lie to this court, it being in the discretion of the court below whether to interpose on a summary application and vacate its own proceedings, or to leave the assignee to his remedy by action. Foote v. Lathrop, 41 N. Y. 358. It has been uniformly held that an order denying a motion to set aside a judgment for mere irregularity, or for fraud or collusion, is discretionary and not appealable to this court. Stark v. Dinehart, 40 N. Y. 342; Moore v. Shaw, 77 id. 512; Birdsall v. Birdsall, 41 How. Pr. 389. The provision of section 5047, United States Bankrupt Law, entitling the assignee in bankruptcy to defend any action pending against the bankrupt at the time of bankruptcy, does not, where he omits to defend, give him a right to come in after the judgment has been rendered and executed and have it opened and set aside on a summary application. Appeal dismissed. Keck v. Werder. Opinion by Rapallo, J.

parties in this case owned adjacent lots in a street near a village but not in the corporate limits. The natural formation of the land was such that surface water from rain and melting snow would descend from various directions and accumulate in the street in front of the plaintiff's lot, in varying quantities, according to the nature of the season; sometimes extending quite back upon plaintiff's lot. In times of unusual amount of rain or thowing snow such accumulations were accustomed to run off over a natural depression in the surface of the land across defendant's lot and thence over the lands of others to a river. When the amount of water was small it would soak away in the ground. In 1871 defendant built a house on his lot, and filled up the lot and sidewalk in front of it about twelve inches or more. In 1875 there was an unusually large accumulation of water from melting snow and rains, in front of and about plaintiff's lot, so that the water ran into the cellar of his house, doing great damage. This was caused by the filling up of defendant's lot. There was no natural water-course over defendant's lot. Held, that plaintiff had no cause of action against defendant. In respect to the running off of surface water, caused by rain or snow, there is "no principle which will prevent the owner of land from filling up the wet and marshy places on his own soil for its amelioration and his own advantage, because his neighbor's land is so situated as to be incommoded by it. Such a doctrine would militate against the wellsettled rule that the owner of land has full dominion over the whole space above and below the surface." The dictum to this effect of Denio, C. J., in Goodale V. Tuttle, 29 N. Y. 467, approved and adopted. See, also, Vanderwille v. Taylor, 65 id. 341; Lynch v. Mayor of N. Y., 76 id. 60. The civil-law rule differing from the above doctrine (Corp. Jur. Civ. 39, tit. 3, §§ 2, 3, 4, 5. Domat [Cush. ed.], 616), is followed in Pennsylvania, Illinois, California and Louisiana (Code, art. 656), and, referred to with approval in Ohio and Missouri. Martin v. Riddle, 26 Penn. St. 415; Kauffman v. Griesmer, id. 407; Gilham v. Madison R. Co., 49 Ill. 484; Gormley v. Sanford, 52 id. 158; Ogburn v. Connor, 46 Cal. 346; Delahoussaye v. Judice, 13 La. Ann. 587; Hays v. Hays, 19 La. 351; Butler v. Peck, 16 Ohio St. 334; Laumier v. Francis, 23 Mo. 181. The courts of Massachusetts, New Jersey, New Hampshire and Wisconsin reject the civil-law rule and adopt the doctrine of this case. Luther v. Winnisimmet Co., 9 Cush. 171; Parks v. Newburyport, 10 Gray, 28; Dickinson v. Worcester, 7 Allen, 19; Gannon v. Hargadon, 10 id. 106; Bowlsby v. Spear, 2 Vroom, 351; Pettigrew v. Evansville, 25 Wis. 223; Hoyt v. Hudson, 27 id. 656; Swett v. Cutts, 50 N. H. 439. In Pennsylvania the civil-law rule does not seem to apply to house lots in towns and cities. Bentz v. Armstrong, 8 W. & S. 40. In Iowa, in Livingston v. McDonald, it is doubted whether the civil-law doctrine will be adopted by the common-law courts of this country. See, also, as to the interruption of percolating waters giving no right of action, Acton v. Blundell, 12 M. & W. 324; Rawston v. Taylor, L. R., 12 Exch. 369; Phelps v. Nowlen, 72 N. Y. 39. Judgment affirmed. Barkley v. Wilcox. Opinion by Andrews, J.

presented to the city by the trustee and $6,000 paid thereon, but payment of the remainder was refused. A. being unable to get the amount due, directed his trustee to foreclose and sell and bid the property in at the sale for the amount of the demand. The city still claimed the land and resisted every attempt of A. to obtain possession of it. Held, that the city was still liable to A. for the amount of the award unpaid, and that the foreclosure and sale did not extinguish its liability, and that A. was entitled to recover the same in an equitable action. Decree of U. S. Circ. Ct., N. D. Illinois, affirmed. City of Chicago v. Tebbetts. Opinion by Waite, C. J. [Decided Oct. 31, 1881.]

VERDICT.

PRACTICE TRIAL- STIPULATION AS TO SEALED - A stipulation at a trial "that the jury might, when they had agreed on their verdict, if the court should not be in session, sign and seal the same, and deliver the same to the officer in charge and disperse," held to be equivalent to an agreement by both parties, on the retirement of the jury, that the court might, when the sealed verdict was handed in by the officer, open it in the absence of the jury and reduce it to proper form, if necessary. The stipulation was, also, a waiver of the right to poll the jury if they should not be in court. Koon v. Phoenix Mutual Life Insurance Co. Opinion by Waite, C. J.

[Decided Nov. 14, 1881.]

BANKING RELATION BETWEEN BANK AND DEPOSITOR-TRUST MONEYS - BANKER'S LIEN AGENT AS DEPOSITOR - DISSOLUTION OF NATIONAL BANK PRACTICE EQUITABLE ACTION -- APPEAL.-Although the relation between a bank and its depositor is that merely of debtor and creditor, if the money deposited belonged to a third person and was held by the depositor in a fiduciary capacity, its character is not changed by being placed to his credit in his bank account. The contract between the bank and the depositor is that the former will pay according to the checks of the latter, and when drawn in proper form, the bank is bound to presume, in case the account is kept in the name of the depositor as trustee, or other fiduciary character, that the trustee is in the course of lawfully performing his duty, and to honor them accordingly; but when against such a bank account the bank seeks to assert its lien as a banker for a personal obligation of the depositor, known to have been contracted for his private benefit, it must be held as having notice that the fund represented by the account is not the individual property of the depositor, if it is shown to consist, in whole or in part, of funds held by him in a trust relation. That so long as trust property can be traced and followed into other property into which it has been converted, the latter remains subject to the trust, and that if a man mixes trust funds with his own, the whole will be treated as the trust property, except so far as he may be able to distinguish what is his own, are established doctrines of equity, and apply in every case of a trust relation, and to moneys deposited in a bank account, and the debt thereby created, as well as to every other description of property. A banker's lien ordinarily attaches in favor of the bank upon the securities and moneys of the customer deposited in the usual course of business, for advances which are supposed to be made upon their credit, not only against the depositor, but against the unknown equities of all others in interest, unless modified or waived by some agreement express or implied, or conduct inconsistent with its assertion. But it cannot be permitted to prevail against the equity of the beneficial owner, of which the bank has notice, either actual or constructive. When a bank account is opened in the name of a depositor, as general agent, and it is known to the bank that he is the agent of an insurance company; that conducting its agency is his

chief business; that the account was opened to facilitate that business, and used as a means of accumulating the premiums on policies collected by him for it, and of making payment to it by checks; the bank is chargeable with notice of the equitable rights of the insurance company, although the depositor deposited other moneys in the same account and drew checks upon it for his private use. And the insurance company may enforce by bill in equity its beneficial ownership therein, against the bank, claiming a lien upon the balance thereof for a debt due to it from the depositor, contracted for his individual use. See Duncan v. Jandon, 15 Wall. 165; Shaw v. Spencer, 100 Mass. 389; Bailey v. Finch, L. R., 7 Q. B. 34; Pannell v. Hurley, 2 Colly. N. C. 241; Bodenham v. Haskins, 2 DeG. M. & G. 903; Ex parte Kingston, L. R., 6 Ch. App. 632; National Bank v. Insurance Co.. 103 U. S. 783; Pennell v. Deffell, 4 DeG. M. & G. 388; Frith v. Castland, 2 Hem. & M. 420; In re West of Eng. Bank, L. R., 11 Ch. D. 722; Knatchbull v. Hallett, L. R., 13 Ch. D. 696; Clayton's case, 1 Mer. 572; Taylor v. Plumer, 3 M. & S. 562; Scott v. Surman, Willes, 400; Whitcomb v. Jacob, 1 Salk. 161; Farmers', etc., Bank v. King, 57 Penn. St. 202; Vau Allen v. American Nat. Bank, 52 N. Y. 1; Oliver v. Piatt, 3 How. 333; May v. LeClaire, 11 Wall. 217; Duncan v. Jaudon, 15 id. 165; Bayne v. United States, 93 U. S. 642; United States v. State Bank, 96 U. S. 30; Foley v. Hill, L. R., 2 II. of L. Cas. 35; Dillon v. Conn. Mut. Life Ins. Co., 44 Md. 386. (2) A national bank, in voluntary liquidation under section 5220 of the Revised Statutes, is not thereby dissolved as a corporation, but may sue and be sued, by name, for the purpose of winding up its business; and it is no defense to a suit by a creditor upon a disputed claim, that the creditor has also filed a creditor's bill under section 2 of the act of June 30, 1876, authorizing the appointment of receivers of National banks, and for other purposes, to enforce the individual liability of its shareholders. See Bank of Bethel v. Pahquioque Bank, 14 Wall. 383; Ordway v. Cent. Nat. Bank, 47 Md. 217. (3) Pleas in equity must allege matters of fact, and not mere conclusions of law; and if not traversable for that reason; or have been filed irregularly, for lack of the affidavit of the party, and certificate of counsel required by the 31st equity rule, may be disregarded. Rowe v. Teel, 15 Ves. 377. When an equity cause has been heard upon the merits, upon bill, answer, and profits taken, as upon issue perfected, the want of a formal replication cannot be assigned as error upon appeal. Clements v. Moore, 6 Wall. 310; Laber v. Cooper, 7 id. 569. Decree of U. S. Circ. Ct.. Maryland, affirmed. Central National Bank of Baltimore v. Connecticut Mutual Life Insurance Co. Opinion by Mathews, J. [Decided Nov. 7, 1881.]

MICHIGAN SUPREME COURT ABSTRACT. OCTOBER, 1881.*

EASEMENT NOT LOST BY MERE NON-USER - APPURTENANT TO MILL AND NOT TO LAND HOW LOST.

-The right to an easement to use a water power, held, not lost by the mere neglect to assert, use and enjoy it for the period of twenty years. There is no doubt of this upon the authorities. The easement was created by grant as an appurtenance to a mill; and there were no conditions or limitations attached which rendered its use necessary to its continuance. The grant was perpetual and without conditions; and therefore the privilege granted would continue indefinitely whether the grantee did or did not avail himself of it. accepted grant cannot be waived or abandoned, and the neglect of the grantee to enjoy the easement would be no more significant in its bearing upon his rights than the neglect to enjoy the freehold to which the

An

easement was appurtenant. Arnold v. Stevens, 24 Pick. 106; Banuon v. Angier, 2 Allen, 128; Hayford v. Spokesfield, 100 Mass. 491; Owen v. Field, 102 id. 114; Barnes v. Lloyd, 112 id. 224; Taylor v. Hampton, 4 McCord, 96; Elliott v. Rhett, 5 Rich. 405; Corning v. Gould, 16 Wend. 531; Wiggins v. McCleary, 49 N. Y. 346; Hale v. McCaughey, 51 Penn. St. 43; Ward v. Ward, 7 Exch. 838; Carr v. Foster, 3 Q. B. 581; Crossley v. Lightowler, L. R., 3 Eq. Cas. 279; S. C. on appeal, 2 Ch. Ap. 478; Cook v. Magross, L. R., 6 Eq. 177. It Iwas held however that an easement to take water from one tenement to be used for the operation of a mill situated on another, the easement being appurtenant to the mill only, and not to any parcel of laud would be lost if the mill was destroyed and not rebuilt. Day v. Walden. Opinion by Cooley, J.

NUISANCE

BURIAL PLACE POLLUTING UNDERGROUND WATER-ENJOINING BOARD OF HEALTH.

(1) The Court of Chancery has an undoubted jurisdiction to enjoin the action of township boards of health in establishing burial places, should they proceed to exercise it illegally or improperly to the injury of others. Palmer v. Rich, 12 Mich. 414; Ryan v. Brown, 18 id. 196; Kinyon v. Duchene, 21 id. 498; Merrill v. Humphrey, 24 id. 170; Clement v. Everest, 29 id. 19; Bristol v. Johnson, 34 id. 123; Marquette & O. R. R. Co. v. Marquette, 35 id. 504; Flint & P. Ry. Co. v. Auditor-General, 41 id. 635; Folkerts v. Power, 42 id. 283. But these boards have large discretionary powers, the exercise of which will not be interfered with until a clear case is made out. It must be intended, until the contrary is shown, that they are acting in good faith and in the line of their duty. Lacey v. Davis, 4 Mich. 140; Thayer v. McGee, 20 id. 195; Stockle v. Silsbee, 41 id. 615. The principle is forcibly stated in Cooper v. Williams, 4 Ohio, 253. "Although a case strong enough to justify our interposition may arise from corruption, from malicious intention or caprice, yet in the absence of these the court would pause before it will assume to control the discretionary powers the law intends to coufide to them. The security for the faithful exercise of this discretion is found, not in the superintendence of courts of justice, but in the individual reputation of the commissioners, in the tenure of their office, in their acting openly on the rights of others in the face of the people vigilant to watch and acute to discern, and in their being exposed to the overwhelming force of public opinion." (2) Complainant sought to enjoin the location of a burying ground near his residence, for the reason, among others, that it would destroy his well. Held, to be a strong circumstance against his application that he had voluntarily bought and located his residence in the immediate vicinity of a burying ground which defendants were merely proposing to enlarge without bringing it nearer. And it appearing further that complainant's barnyard was nearer the well, and more likely than the burying ground to injure it, held, that an injunction should be denied. It is a query whether there can be any legal ground for complaint for the pollution of subterranean waters when it is caused by a proper use, without negligence, of adjacent premises. If there can be any such ground of complaint it can only be when the injury is of a very positive and substantial character. It has been decided in several cases that the percolation of filthy matter from the premises of the party who suffers it, through the soil upon the premises of an adjacent owner, to the injury of the latter, is an actionable nuisance. Tenant v. Goldwin, 1 Salk. 360; Tate v. Parrish, 7 T. B. Monr. 325; Columbus Gas Co. v. Freeland, 12 Ohio, N. S., 392; Marshall v. Cohen, 44 Ga. 489; Pottstown Gas Co. v. Murphy, 39 Penn. St. 257; Green v. Nunnemacher, 36 Wis. 50. And it has been said that the liability does not depend upon negligence, but that the reasonable

precaution which the law requires is effectually to exclude the filth from the neighbor's land. Ball v. Nye, 99 Mass. 582; Hodgkinson v. Ennor, 4 Best & S. 229. But all the cases in which this doctrine has been applied were cases in which, consistent with the proper use of the premises, the exclusion was practicable; and none of them goes to the extent contended for here. All of them agree that the injury must be positive and substantial, and such as fairly imposes upon the party causing it the duty of restraint. Columbus Gas Co. v. Freeland, 12 Ohio, N. S., 392, 400. The movements of sub-surface waters are commonly so obscure that rights in or respecting them cannot well be preserved. They do not often have a well-defined channel, and it is not easy in many cases to determine in what direction their movements tend. If corrupted at one point the effect may be confined within very narrow limits, while at another, though no surface indications would lead one to expect it, the taint might follow the water for miles. In some cases a new well at a considerable distance from an old one may withdraw the water from the other and destroy it, while in other cases in which the same result would seem more likely, there is no perceptible influence. It is in view of these difficulties that the rule of law has become established that owners of the soil have no rights in sub-surface waters not running in well-defined channels, as against their neighbors who may withdraw them by wells or other excavations. Acton v. Blundell, 12 M. & W. 324; Greenleaf v. Francis, 18 Pick. 117; Roath v. Driscoll, 20 Conn. 533; Chatfield v. Wilson, 28 Vt. 49; Wheatly v. Baugh, 25 Penn. St. 528; Bliss v. Greely, 45 N. Y. 671; Chase v. Silverstone, 62 Me. 175; Frazier v. Brown, 12 Ohio St. 294; Albany, etc., R. R. Co. v. Peterson, 14 Ind. 112. But if withdrawing the water from one's well by an excavation on adjoining lands will give no right of action it is difficult to understand how corrupting its waters by a proper use of the adjoining premises can be actionable, when there is no actual intent to injure, and no negligence. The one act destroys the well, and the other does no more; the injury is the same in kind and degree in the two cases. Upjohn v. Board of Health of Richland. Opinion by Cooley, J.

MAINE SUPREME JUDICIAL COURT ABSTRACT.

CORPORATION

FEBRUARY, 1881.*

WHEN LIABLE ON NOTE GIVEN BY PRESIDENT FOR MONEY FOR ITS USE. - - A vote of the directors of a corporation that the president have full power and control of its business, authorizes him to purchase the materials to be used in its operations, and to borrow money for the corporation, and give its note for the money borrowed. In such case a note signed by him thus: " Belfast Foundry Company, W. W. Castle, President," binds the corporation. and if it did not, the corporation in this case would be liable on the money counts for money loaned to it and applied to the purchase of materials for its use or the payment of its debts. And it is immaterial whether the money is passed over to the corporation by the lender, or obtained by the president upon a deposit in a savings bank, transferred to him for that purpose. Though a corporation may not be expressly empowered to make a note, or accept a draft, yet it may do so for any debt which it may lawfully contract. Came v. Brigham, 39 Me. 35. A corporation may issue negotiable paper for a debt contracted in the course of its proper buiness. Kelley v. Brooklyn, 4 Hill, 263. If it can contract a debt it can give a note as evidence of its indebtedness. Clarke v. School District, 3 R. I. 199; Moss v. Oakley, *To appear in 72 Maine Reports.

2 Hill, 265. See, also, Whitney v. South Par. Man. Co., 39 Me. 317; Bates v. Keith Iron Co., 7 Metc. 224; Odiorue v. Maxey, 13 Mass. 178, and 15 id. 39; White v. Westp. Cot. Manuf. Co., 1 Pick. 220; Draper v. Mass. St. H. Co., 5 Allen, 338; Abbott v. Shaw. Mut. Ins. Co., 3 id. 215; Atkins v. Brown, 59 Me. 90; Slawson v. Loving, 5 Allen, 340. Castle v. Belfast Foundry Co. Opinion by Appleton, C. J.

[Decided March 11, 1881.]

TOWN LIABLE FOR MONEY HAD AND RECEIVED. An action for money had and received to his use may be maintained against a town, by one who upou representation of town officers that money was needed for municipal use has furnished them money for such use, if he goes farther and proves that that money was actually applied by such officers to the extinguishment of some of the lawful and proper debts and liabilities of the town. Bessey v. Unity, 65 Me. 342; Parsons v. Monmouth, 70 id. 264; Howe v. Clancey, 53 id. 130. Billings v. Inhabitants of Monmouth. Opinion by Barrows, J.

[Decided April 10, 1881.]

WILL WITNESS- PROBATE, WHEN CONCLUSIVETOWN MAY HOLD BEQUEST FOR EDUCATIONAL PURPOSE CHARITABLE USE-KEEPING TOMB IN REPAIR NOT CONDITION AS TO ERECTING SCHOOL BUILD

ING.- (4) An inhabitant of a town to which a bequest is made for the support of schools therein is a competent attesting witness to the will. In Eustis v. Parker, 1 N. H. 273, this precise question arose in a case where the attesting witnesses were inhabitants of a town to which a bequest for the support of schools had been made and they were held competent. Their interest as inhabitants was not direct and certain. If they might be benefitted by the reduction of taxes which might thereafter be assessed, they might die or move from the town and cease to be inhabitants of the same at the time of a subsequent assessment. Their interest was contingent. State v. Stuart, 23 Me. 111. The increased privileges of education do not constitute a disqualifying interest. Warren v. Baxter, 48 Me. 195; Hawes v. Humphrey, 9 Pick. 350. (2) The probate of a will, where the court has jurisdiction, is conclusive unless vacated by an appeal. Whether the questions arising in the probate court were correctly or incorrectly decided as to the competency of evidence, can never be made a matter of inquiry in a court of common law, to affect that adjudication. Patten v. Tallman, 27 Me. 17. The probate of a will is final and conclusive upon all parties. Dublin v. Chadbourn, 16 Mass. 433. The decisions of the judge of probate in all cases within his jurisdiction are conclusive against all the world unless vacated by an appeal. Tibbetts v. Tilton, 4 N. H. 121; McLean v. Weeks, 65 Me. 411. (3) Towns or cities may hold in trust funds given for the purposes of education. A trust for the support of schools, or of a particular school as a high school, or for any purpose of general public utility is a valid trust. So towns can hold property in trust for purposes within the general scope of their corporate existence. Thus, towns and cities may hold property in trust for the purpose of educating the poor, and the relief of those who are poor and not paupers. Sutton v. Cole, 3 Pick. 232; Webb v. Neal, 5 Allen, 575; Everett v. Carr, 59 Me. 325; Vidal v. Gerrard, 2 How. 188; Drury v. Natick, 10 Allen, 169; Second Religious Society of Boxford v. Harriman, 125 Mass. 321; Attorney General v. Butler, 123 id. 305; Stat. 1873, chap. 92. (4) A testator made a bequest of $100 to a town, in trust, on condition that the town should expend the income thereof, forever to keep his lot in a certain burying ground in good order and condition, and an iron fence around the same; and made another bequest to the town of the rest and remainder of his estate to establish a school fund, on condition that said town should

accept and perform the conditions as to his lot in the burying ground; also, that the town should erect a school building. Held, that the bequest of the $100 was not for a charitable use, and was void as creating a perpetuity; that the bequest to establish a school fund was valid, the condition to keep the testator's lot in repair was a condition subsequent; the estate passes to the town subject to the condition subsequent if valid; if void or against law, discharged of the condition; and that the town is authorized to raise the amount of money necessary for the erection of the school building. A charity is a gift to any general public use, extending to all, rich or poor. "Indeed, it is said that vagueness is in some respects essential to a good gift for a public charity, and that a public charity begins where uncertainty in the recipient begins. So, if a gift for a private purpose tends to create a perpetuity it will be void; but a gift for a public charity is not void, although in some forms it creates a perpetuity." 2 Perry on Trusts, § 687. "Charity is defined to be a general public use." 1 Jarman on Wills, 192. Courts have been exceedingly liberal in not restricting the objects to be regarded as charitable. "But," observes Gray, C. J., in Drury v. Natick, 10 Allen, 169, "the gift must be expressly or by necessary implication for the public benefit. private museum for the use of subscribers is not a charity. Carne v. Long, 2 DeGex. F. & J. 75. "A condition for keeping a tomb in repair," observes Kindersley, V. C., in Lloyd v. Lloyd, 10 E. L. & Eq. 159, is not a charitable use. See, also, Rickard v. Robson, 31 Beav. 244; Hoare v. Osborn, L. R., 1 Eq. 585, where a condition in perpetuity for such purpose was held void, Also, Fisk v. Attorney-General, L. R., 4 Eq. 521; In re Williams, L. R., 5 Ch. D. 735; In re Birkett, L. R., 9 Ch. D. 576; Swasey v. Amer. Bib. Soc. 57 Me. 527; Fowler v. Fowler, 10 Jur. (N. S.) 646; Chapman v. Brown, 6 Ves. 404; Attorney-General v. Hinxman, 2 J. & W. 270; Milford v. Reynolds, 1 Phill. Ch. 189; Giles v. Boston F. & W. Soc., 10 Allen, 355; Dawson v. Small, L. R., 18 Eq. 114; Hornberger v. Hornberger, 12 Heisk. 635; Nourse v. Merriam, 8 Cush. 11; Drury v. Natick, 10 Allen, 183; Shattuck v. Hastings, 99 Mass. 23; Cushing v. Newburyport, 10 Metc. 508. Piper v. Moulton. Opinion by Appleton, C. J. [Decided March 10, 1881.]

64

VERMONT SUPREME COURT ABSTRACT.

JANUARY, 1881.*

A

CORPORATION-LIABILITY OF DIRECTOR FOR DEBTS. -A statute relating to corporations provided thus: "No part of the capital stock shall be withdrawn, or in any manner diverted from the legitimate business of the company, nor shall the company at any time contract debts to an amount greater than threefourths of the capital actually paid in; and any director assenting to the contracting of debts to a greater amount shall be personally liable for such excess to the creditors of the company." Held, that the giving of new notes for old ones was not an increase of indebtedness in such a sense as to render the directors of a company liable in an action based upon such new notes, under the statute. And this is so, although the indebtedness exceeds the limit prescribed by the statute. National Bank of Rutland v. Page's Executor. Opinion by Royce, J.

near a driveway leading to the premises, which were farm premises long occupied as such on a public road leading through the town, with farm houses occupied on either side within half a mile, and as public a place as was in the vicinity, was a compliance with the law. The purpose of the law was to insure such publicity in the sale of property that the sale would necessarily be public. But the removal of cattle, hogs, sheep and colts from the farm on the hillside where they have been raised, to some distant village, mill, or four corners, occasions risk and labor, and does not often insure competition in the sale; and it has become a settled practice, sanctioned by the courts, to sell farm stock on the premises where attached, if on a public road, if conducted by the officer in good faith. Austin v. Soule, 36 Vt. 645. Goss v. Cardell. Opinion by Redfield, J.

WATERCOURSE ADVERSE USER BY RIPARIAN PROPRIETORS-ACCRETIONS. - - Where there is a gradual subsidence of the water in a mill-pond because of the want of repair of the dam, and the owner of a pasture contiguous to the pond turns his cattle in, and they wander from the pasture over the botton of the old pond, such possession of the land made dry by the water receding as the dam lowered would indicate that it was not adverse, but permissive. Open occupancy, to effectuate notice to the other party, is dependent on the nature and circumstances of such occupancy. The law is not the same as to alluvion, and land made dry in an artificial pond through the sinking of the dam. The one is acquired through natural causes; the other by adverse possession. Plimptou v. Converse, 42 Vt. 712, and 44 Vt. 158, approved and followed. Eddy v. St. Mars. Opinion by Barrett, J.

WISCONSIN SUPREME COURT ABSTRACT.

SEPTEMBER 27, 1881.*

DEED -DELIVERY WITH INTENT TO VEST TITLE FOLLOWED BY REDELIVERY TO GRANTOR AND DESTRUCTION DECLARATION OF TRUST IN SEPARATE PAPER.(1) The legal effect of the delivery of a deed of conveyance by the grantor to the grantee, with intent to pass the title, is not altered by its subsequent redelivery to and destruction 'by the grantor. Lowber v. Connit, 36 Wis. 176. In Hinchliff v. Hinman, 18 id. 130, it was held that "where one has executed a deed of land, and delivered it to the grantee, with intent to pass the estate, the legal effect of such delivery will not be altered by the fact that both parties supposed that the deed would not take effect until recorded, and might be revoked at any time before record." To the same effect is Bogie v. Bogie, 35 Wis. 659. In Parker v. Kane, 4 id. 1, it was held that "the cancellation or destruction of a deed of conveyance of lands, by the consent and agreement of the parties, does not operate to revest the title in the grantor." To the same effect are Wilke v. Wilke, 28 id. 296: Hilmert v. Christian, 29 id. 104; Bogie v. Bogie, 35 id. 659, (2) The grantee in a deed is not affected by a declaration of a trust as to the lands conveyed, made by the grantor in a separate paper 'not referred to in such deed, nor assented to or even known by the grantee when he took the title. Rogers v. Rogers. Opinion by Cassoday, J.

DESCRIPTION WHEN UNCERTAIN MAY BE MADE CERTAIN BY EVIDENCE OF STRIP OF LAND ALONG LINE WITHOUT LATERAL BOUNDARY FIXED, APPROPRIATION FIXES COVENANT OF SEISIN- FAILURE OF TITLE TO PART OF LAND-DAMAGES. (1) Where the description in a deed, of the land conveyed, is

*To appear in 52 Wisconsin Reports.