that the incorporation of the rector, wardens and vestrymen of St. Philip's parish divested the complainant of all title and interest in and to the lots described in exhibits B and C to complainant's bill, and that the said corporations upon their creation became invested with a perfect title to said lot. 5. In holding and deciding that complainant does not, as trustee or otherwise, hold the title to the lot described in exhibit A to complainant's bill,and that complainant did not,in reference to this lot, succeed as trustee his predecessor in the office of bishop of the Protestant Episcopal Church in the diocese of Georgia, and that complainant has no such interest in said lot as could enable him to maintain said bill. 6th. In refusing to grant the injunction prayed for. There is no issue as to the facts between these parties, and hence no review here as to abuse of discretion in the judgment of the chancellor below on the facts in refusing the injunction. But the questions presented are questions of law upon the facts admitted.

We deem it unnecessary to pass upon the three first grounds of error assigned in the record, as in our judgment a ruling on the other grounds embrace the main and controlling questions of law involved.

There are two deeds in this record conveying these lots. One by Samuel Mitchell conveying one of said lots to Stephen Elliott, Jr., bishop of the diocese of Georgia, for the use of the Protestant Episcopal Church, and the other by Stephen Elliott, Jr., conveying the other lots to the bishop of the diocese of Georgia, in trust for the use and benefit of the parish of St. Philips, in the City of Atlanta. These deeds originally vested the title of the lots in the grantees for the uses and benefits as stated.

The complainant below claims, as the successor of Bishop Elliott in the office of bishop, that he holds the title for the uses therein declared. The defendants in error claim that by the subsequent incorporation of the diocese and the parish of St. Philips the trusts became executed and the legal title held by the bishop united or merged into the use, and hence both legal and equitable title by operation of the statute of uses, known as the statute of 27, Henry VIII., passed to the trustees of said several corporations, to-wit: The diocese of Georgia, and the parish of St. Philips.

It certainly was the clear intent and purpose of the donor and grantor, in the creation of these trusts, to provide for and promote religious instruction and worship-the one in the diocese of Georgia and the other in the parish at St. Philips. When trusts are created for such a purpose, they are known and defined in law as "charitable trusts." The code defines a trust making provision for "religious instruction, or worship," a "charity" cognizable by a court of equity. Code, 3151. Perry, in his work on trusts, says: "Charitable trusts include all gifts for religious or educational purposes, in their ever varying diversity." 2 Perry, sec. 687; 4 Ga. 404; 46 Ga. 88.

The rules of charitable trusts in their establishment and administration, are very different from those that are applicable to private trusts, in giving effect to the intention of the donor, and in establishing the charity. In a private trust, if the cestuis que trust are so uncertain, or are so incapable of taking, that they can not be identified, or can not, by legal or equitable proceedings, claim the benefit conferred on them, the gift will fail and revert to the donor and his heirs. But if a gift is made for a "public charitable purpose," it is immaterial that the trustee is uncertain or incapable of taking, or that the objects of the charity are uncertain or indefinite. Still it will be sustained. A public charity begins where uncertainty in the recipient begins. Courts look with favor upon such trusts and take special care to enforce them-to guard them from assault and protect them from abuse.

"Charity in thought, speech and deed challenges the admiration and affection of mankind." "Christianity teaches it as its crowning grace and glory, and the inspired apostle exhausts his eloquence by setting forth its beauty and the nothingness of all things without it."

The support and propogation of religion is clearly a charitabie use, and this includes gifts for the erection, maintenance and repair of church edifices, of worship, the support of the ministry, etc. 2 Pom. Eq., 587-8; Law of Trust (Tiffany and Bullard), 232, 236, 39, 40.

Where the general intention is "charity" the court will not permit mere matters of form to defeat it. 30 Pa. 437; 12 La. 301.

In charitable trusts the cestuis que trust or beneficiaries are not, and need not be capable of taking the legal title; and when property is given for the poor of a parish, or for the education of youth -for pious uses or any charitable purpose, the beneficiaries are generally unknown, uncertain and incapable of taking or dealing with the legal title; but such trusts are valid in equity, and courts of equity will administer them and protect the right of the beneficiary. 1 Perry on Trust, 66. An alienation of the legal title by the holder or trustee will be considered per se as a breach of his trust. It is his duty to preserve the trust property-act favorably to the trust interest, and if he sell the trust property, he must be prepared to show the transaction was beneficial to the charity, and in the absence of such proof, the sale will be treated as a breach of trust and be set aside. Law of Trusts (L and B) 274, and authorities there cited.

Are these charitable trusts subject to the statute of uses as declared in 27 Henry VIII? Or in other words, do such trusts ever become executed so as to merge the legal into the equitable estate under that statute? The intent of the statute of 27 Henry VIII was undoubtedly to do away wholly with the separation between the legal and beneficial ownership of lands, and to abolish uses and trusts altogether; but such a construction has not been fully carried out by the courts for various rea

sons.

Mr. Dwight, in his argument in the "Rose will case," says, speaking of charitable trusts or uses: “The very nature of the case precludes the idea that a statute could have been enacted with the intent to vest the title in the poor, or in children who were the beneficiaries of the charity. The essential nature of a charity is that the property shall be kept away from the temporary beneficiaries and to preserve it for them for all time to come, as they arrive one after another. Charitable uses are neither within the scope nor the words of the statute. The only design of the statute was to convert equitable into legal estates by annexing the legal title to the equitable right of possession; but the persons for whose benefit a charity is created have no estate or interest in the lands upon which the statute could possibly operate. They are mere beneficiaries, having the right, and nothing more than the right, to compel the performance of the trust according to its terms and the intention of the donor. A valid charitable use must always remain, and can only be enforced as a trust unaffected by the provisions of the statute. Since considering it simply as a use, there is not and never can be any person in whom it can be executed. As the rents and profits are to be applied to the benefit of a succession of persons in perpetuity, there is not, and can never be a cestui que trust to whom the legal estate, if that of the trustee is divested, can be given without destroying the charity and defeating for ever the intention of the founder." The very nature of this trust makes it a continuing executory trust. There is always something for the trustee to do, not only in protecting the title, but in ascertaining the objects of the trust, improving the property and determining the beneficiaries, who are uncertain and fluctuating. 4 Wheat. 646. It is conceded that there can be no merger of the legal and equitable estate so long as the trust is executory. Does the trust become executed by the creation of these corporations?

It can not be denied that under the statute of uses, when a trust becomes executed it is a destruction of the trust estate, because an actual estate is thereby created in the beneficiary as effectually as if done by conveyance and livery of seisin at common law. 2 Washburn, 415. Under this trust the trustee is charged with the duty of promoting the cause of religion and morals, and as it is continuing and perpetual, we can not see how it can be executed, and thus terminated, without doing violence to the intention of the donor. It is impracticable for this trust to be executed in the beneficiaries, for they are ever changing, by removals, accessions, deaths and births. Is it executed in these corporations as claimed by defendants in error-that is, is the complainant, as trustee, divested of the legal title in these lots by the creation of these corporations, and does this legal title merge or unite with the equitable estate in these corporations? The cases cited by the defendants in error in support of this proposition, in 4 Wend. 497; 3 Paige, 296; 2 Wash.

(Va.) 35, and 5 Watts. & S. 323, all seem to rest on decisions made in New York, and upon a statute of that State. In that State, the statute of 27 Henry VIII, and 43 Elizabeth (known as the statute of charitable uses) were both repealed as early as 1788, and the State enacted in lieu thereof a statute that expressly provides that property held in trust for an unincorporated religious society would vest in an incorporation of such society." This New York statute declares "that the trustees of a church are authorized and empowered to take into their possession and custody all the temporalities belonging to such church congregation or society, whether the same consists of real or personal estate, and whether the same shall have been given, granted or devised, directly to such church congregation or society, or to any other person for their use. Rev. Stat. (N. Y.) 3d vol. 292. In Georgia the only statute of uses in force is that of 27 Henry VIII, as found embodied in sections 2313, 2314, 2315 of the Code.

So far as our investigation has extended, we can find no case where it has been held, under the English statute of uses, a charitable trust, such as this, continuing and perpetual, would be terminated by creating a corporation embracing the beneficiaries. On the other hand, in the case of Methodist Society of Georgetown v. Bennett, 39 Conn. 293: "Where land was conveyed to certain trustees in trust for the members of the Methodist P. church of G., to be holden by them and their successors in office for ever, for the proper use and behoof of said church, agreeably to the Methodist P. church discipline, and the book of discipline provided for the election of trustees to each church, and made it their duty to hold the property of the individual churches in trust for the use and benefit of the members thereof, with power, when authorized by twothirds of the male members over twenty-one years of age, to dispose of property so held, but on нo other condition. It was held that the legal title did not vest in the church as a corporation.

If this legal title in the complainant is by the statute of uses merged in the equitable or beneficial estate and both unite and form but one estate, then these corporations would hold this property free from any trust; for wherever this merger takes place the equitable or beneficial estate ceases, and the title is in the corporation unincumbered with the trust. For, as before stated, when, under the statute of uses, a trust becomes executed by the merger of the legal with equitable estate,” an actual estate is thereby created in the beneficiary as effectively as if done by conveyance with livery of seisin at common law. 2 Wash. 415. If this trust is executed by the creation of these corpor tions, and they take both the legal as well as the equitable title, then their actual estate is absolute, the trust is terminated, and the intention of the donor is defeated. But it is said the perfect title would vest in these corporations "according to the terms and limitations of the trust." Code, sec. 2314. The meaning of this is they would take

first such a legal estate as the beneficiaries had and held as an equitable estate, and as their equitable estate was designed in these deeds) to be perpetual, so would the legal estate be perpetual and the trust would no longer exist.

The English statute of uses-27th Henry VIII— was enacted in hostility to trust estates. Its purpose was to destroy and put an end to such estates and vest the title, both legal and equitable, in the beneficiary of the trust, and thus create in him an actual estate free of the trust, and if this trust is executed as claimed by these corporations coming into existence, they take the actual, absolute title disencumbered of any trust. To claim they would hold as trustees for the beneficiaries subject to the uses and terms of the deeds from the donors, would not be in conformity with either the letter or the spirit of the statute of uses, as applied to executed trusts. Code, sec. 2314. In 2 Michigan Reports, 113, the court decided that the creation of a corporation after the conveyance of the land in trust would not permit the corporate officers to manage the corporate property contrary to the laws and usages of the church. In Calkins v. Che-, ney, 72 Ill. 462,the court stated, "most obviously, property held in trust for the benefit or a religious denomination can not be held subject to be conveyed away or improved or used in accordance with the dictates of a society or congregation." In Watts and S. R. 25, it was held "an act of incorporation after the deed of trust is always with respect to this grant to be construed consistently with the deed, and the congregation must enjoy the land granted in subordination to the uses described in the deed." "The charter can not change the effect of the grant in any particular. The grant is a contract, the obligation of which can not be impaired by any authority." 4 Wheat. 15; 4 Id. 518, 624. But whether the title to these lots is in the trustee or the corporation it is still a trust. Section 2335 of the Code declares "trustees are not authorized to create any lien on the trust estate except such as are given by law." In Iverson v. Saulsbury, decided at the February term, 1882, not yet reported, a majority of this court held that after full notice to all parties a chancellor could not, in vacation, authorize a trustee to encumber the trust estate by mortgage."

Was there error in the court holding, as complained of in the 5th assignment of error "that the lot conveyed to Stephen Elliott, Jr., bishop,in trust for the Protestant Episcopal Church in the diocese of Grorgia, was a trust attaching to the person and not to the office of bishop, and that the trust did not pass to his successor in office?

In Georgia the courts apply liberal rules of construction to carry out the intention of the donor. 4 Ga. 404; 25 Id. 420. A bond payable to Gilmer, governor, and his successors in office is payable to the officer and not the individual. 15 Ga. 423. So if only payable to the governor. 1 Ga. 583. So by the terms of or a close analogy with sec. 2343 of the Code this trust would vest in

This

the present complainant as the successor. was evidently the intention of the donor. The trust was lodged for the benefit of a diocese in its bishop, its highest officer, and who by the rules of his church government was the regular successor of a long line of officials preceding him. No other provision was made by the deed for any other succession, and the conclusion is reasonable he intended this trust to pass to the successors in office of the first trustee.

We conclude, therefore, that the complainant, to whose predecessor these conveyances were executed, is not divested of his legal title to these lots of land by the corporation of the "Diocese of Georgia" and "the parish of St. Philip's church" under the "statute of uses," as of force in this State, and that without his consent there could be no lien or mortgage created on this trust property, and that the chancellor below erred in not granting the injunction as prayed for. Judgment reversed.

Jackson, Chief Justice, dubitante.

1. In cases of collision of vessels, where both parties are in fault, the martime rule is to divide the entire damage equally between them, and to make a decree for half the difference between their respective losses in favor of the one that suffered most, so as to equalize the burden. 2. At all events, if both parties file libels, the courts of the United States have the power to consolidate the actions, and prescribe one proceeding and pronounce one decree; which decree will be for one-half of the difference of damage suffered by the two vessels, as before stated. 3. The statute of limited liability is not to be applied in such a case until the balance of damage has been struck; and then the party against whom the decree passes may have the benefit of the statute-if he is otherwise entitled to it-in respect of the balance which he is decreed to pay. Reynolds v. Vanderbilt, U. S. S. C., November 6, 1882; 5 Morr. Trans., 48.

sen, U. S. S. C., November 6, 1882, 5 Morr. Trans., 76.

3. ARBITRATION-NEGLECT TO SWEAR WITNESS. This is a suit on an award, made by arbitrators, in pursuance of a written submission of all the matters in controversy between plaintiff and defendant arising out of a co-partnership which had existed between them, and which defendant had refused to perform. None of the witnesses who testified before the arbitrators were sworn. Held, that the arbitators having failed to require witnesses to testify under oath, and the necessity of an oath not having been waived by the defendant, the award is a nullity, and no action can be maintained upon it. Wolf v. Hyatt, S. C. Mo.

4. ATTORNEY AND CLIENT-AUTHORITY OF SOLICITOR-FRAUDULENT DEFENSE.

a

The authority of a solicitor in an action does not extend to putting in a fraudulent defense. If a solicitor, having authority to defend an action, deliver fraudulent defense (without the knowledge of his client), containing admissions on which the plaintiff obtains judgment, the court will, on proof of the fraud (although the plaintiff was no party to it), set aside the judgment, and give leave to the client to withdraw the fraudulent defense, deliver a fresh defense, and adduce evidence in support of his case; and the proper mode of obtaining relief is to move the Court of Appeal, on notice to the plaintiff. Williams v. Preston, Eng, Ct. App., 47 L. T.,265.

ATTORNEY AND CLIENT-QUALIFICATIONS of AtORNEY-IMPLICATION BY ACCEPTANCE OF RE

TAINER.

1. An attorney-at-law of the State of New York, employed there to draw a contract for building on lands in New Jersey, does not, by accepting such employment, impliedly undertake that he is aoquainted with the laws of this State respecting the necessity of filing of such contracts for protection against claims of workmen and material men under the mechanics' lien law. 2. An attorney-at-law who accepts an employment to draw such a contract, does not thereby impliedly undertake to file it. In the absence of an express undertaking to file it, he will not be liable for failure so to do. Quare, whether, when so employed, he would be liable for failing to advise his client of the risk of not filing such a contract. 3. Even if liable for breach of duty in respect to filing such a contract, the owners, who have been required to pay a subcontractor's claim, can not recover of the attorney if they have discharged the builder, who is pri marily liable, or have accepted satisfaction from him. Fenaille v. Condert, S. C. N. J., Reporter's Advance Sheets; 44 N. J. L., 286.

1. The obligation of a contract which, when made, was unenforceable by reasor. of some irregularity, but which has been validated by reason of a subsequent law, is protected by the Constitution to the same extent as if the contract had been strictly legal at first. 2. The obligation of such a contract includes the remedies which would have been available for its enforcement if it had been valid when made, or such other remedies as may have been lawfully substituted therefor. State ex rel. v. Town of Union, S. C. N. J., Reporter's Advance Sheets; 44 N. J. L., 259.

7. CONVEYANCES - COVENANT OF GRANTEE -ACCEPTANCE OF DEED.

1. The grantee in a deed, by accepting the same, becomes liable on the covenants therein purporting to be made by him, just as if he had signed and sealed the instrument. 2. A covenant by the grantee in a deed to assume a mortgage, for payment of which the grantor is personally liable, binds the grantee to pay the mortgage debt. 3. In an action for breach of the defendant's covenant to pay a debt which the plaintiff owes, the damages recoverable are the full amount of the debt, although the plaintiff may not yet have paid the same. Sparkman v. Gove, S. C. N. J., Reporter's Advance Sheets; 44 N. J. L., 253.

8. CORPORATION - SPECIAL STATUTE OF LIMITA

TIONS.

1. The clause in the charter of the defendant exempting it from suit after the lapse of a year from the accrual of the cause of action, was not repealed by the re-enactment in the revision of the act relating to the limitation of actions. 2. It is not necessary, on constitutional grounds, that the title of a charter of a railroad company, which charter contains a clause limiting the time for bringing suits against it, should refer to such provision. Vail v. Easton, etc. R. Co., S. C. N. J., Reporter's Advance Sheets; 44 N. J. L., 237.

9. EVIDENCE-ADMISSION OF PART OWNER OF A

1. A suit to enjoin two decrees obtained by different parties, entirely distinct from each other, and each involving less than $5,000, is not reviewa ble in this court. 2. The mere fact that a Federal question is involved is not sufficient to give this court jurisdiction in appeals from the Federal, Circuit or District Courts. Even in such cases the sum of $5,000 must be involved in order to give jurisdiction. Adams v. Crittenden, U. S. S. C., Nov. 6, 1882; 5 Morr. Trans., 77. 11. FEDERAL COURTS AMOUNT. Where the owner of a vessel and the owner of the cargo join in a libel for collision, and obtain a decree giving each less than $5,000, but both com. bined more than $5,000, an appeal will not lie to this court from such decree, the interests being several and not joint. In re Baltimore, etc. R. Co., U. S. S. C., Oct. 30, 1882; 5 Morr. Trans., 45. 12. INTERNALREVENUE- CAPITAL STOCK OF RAIL

ROAD.

- APPEAL — JURISDICTIONAL

A corporation issued to its stockholders a certificate reciting that the corporation had hitherto ex. pended of its earnings in various ways to increase its traffic a sum equal to eighty per cent. of its capital stock," and made it a dividend-bearing stock: Held, that under section 122 of the Internal Revenue Act of 1864 (13 Stat. at Large, 284), only that part of the earnings included in the certifi cate wss taxable which had accrued subsequent to the passage of the act; and that it was competent to the corporation to show what portion of such earnings had accrued since the passage of the act; and that in such case the face value of the certifi cates was not conclusive as to the amount taxable

1. The maxim ignorantia legis neminem excusat is not universally applicable, but only when damages have been inflicted or crimes committed. 2. B, a tenant, owing rent, agreed, for a sufficient consideration, to pay it to A provided he should not be compelled to pay it to the assignee in bankruptcy of his landlord, to whom such rent was really due, but B was in doubt as to his legal right, Held, that such contract was legal and enforceable. Brock v. Weiss, S. C. N. J., Reporters' Advance Sheets; 44 N. J. L., 241.

14. LIBEL-CORPORATION-PREVIOUS AND SUBSE

QUENT PUBLICATION.

1. An action for libel can be maintained against a corporation. 2. Previous or subsequent publica. tions are admissible in evidence for the purpose of showing the temper of the defendant's mind in the publication complained of, and it makes no difference that such publication is one, by reason of the bar of the statute of limitations, upon which no action can be maintained. 3. If the previous or subsequent publication be a privileged one, it will be no evidence of malice, and consequently will have no weight whatever. Evening Journal Ass'n. v. McDermott, N. J. Ct. of Err. and App., Reporters' Advance Sheets; 44 N. J. L., 430.

15. PARTNERSHIP-POWERS OF PARTNERS-GUAR

1. The plaintiffs were the owners of patents for improvements in metalic cotton-bale ties, each tie consisting of a buckle and a band. They granted no licenses to make the ties, but themselves made them and supplied the market. They stamped in the metal of the buckle the words, licensed to use once only." The defendants bought as scrap iron the buckles and bands at the cotton mills, after the bands had been severed to release the bale, and rolled and straightened the pieces of the bands, and riveted together their ends, and cut them into proper lengths for ties, and sold them, with the buckles, to be used as ties, notning being done to the buckles. Held, that the defendants had infringed the patents. 2. It was not decided that they were liable as infringers merely because they had sold the buckle considered apart from the band or from the entire structure as a tie. Cotton The Company v. Simmons, U. S. S. C., Nov. 6, 1882; 5 Morr. Trans., 81.

17 PENSION-EXEMPTION OF PROCEEDS FROM JUDICIAL PROCESS.

Money due for pensions, while it remains in the hands of the disbursing officer or agent for distribution, or while in course of transmission to the pensioner, is not liable to be seized by creditors under any legal process. After it has come to his hands it is so liable, like any other funds of the debtor. State v. Fairton Sav. Fund, etc. Ass'n,

8. C. N. J., Reporter's Advance Sheets; 44 N. J. L., 376.

18. REAL PROPERTY-BUILDING ERECTED ON LAND OF ANOTHER-INJUNCTION.

In this case, a perpetual injunction was decreed, restraining defendant from removing from plaintiff's lot, in the town of Boonville, a portion of a building used by defendant as a freight depot, and which had been erected thereon by defendant. Upon a full review of the evidence, the Supreme Court hold that defendant is the owner of the lot, and that the building was placed there without her consent. Held, "that in respect to property in buildings erected by one man on the land of another, if the building is erected without the assent and agreement of the land owner, it becomes a part of the realty and is the property of the freeholder. But it seems if a building is erected on the land of another under a parol contract of purchase, and there is a failure to acquire title through no fault of the vendee, the building so erected may be removed by him." Hunt v. Missouri Pac. R. Co., S. C. Mo.

19. REAL PROPERTY-RIPARIAN RIGHTS. 1. A person owning land abutting on a river through which a creek flows and empties into the river, may, as against proprietors on the opposite side of the river, change the channel and mouth of the creek upon his own land and for his own protection or canvenience, if, in so doing, both in the inception and execution of the work, he exercises reasonable care and caution not to injure the rights of others. 2. If, however, the opposite bank of the river be subject to inundation and overflow in case of unusual but not unprecedented floods in the river, such change in the channel and mouth of the creek can not be rightfully made, if, thereby, in the exercise of ordinary prudence and foresight, increased danger of inundation and overflow on the opposite side of the river might be anticipated. 3. When such change is made without fault or carelessness, and a levee on the opposite bank is broken and washed away by an unusual, but not unprecedented flood, whereby the crops growing on adjacent lands are destroyed, it is damnum sine injuria, notwithstanding a sandbar in the river at the new mouth of the creek, caused by the change in the creek, may have contributed, in some degree to the damage. Cincinnati, etc. R. Co. v. Carr, S. C. Ohio; 8 Weekly Cin. L. Bul., 278.

20. REAL PROPERTY-SALE UNDER CONFISCATION ACT-INTERVENTION OF INCUMBRANCER. Under proceedings by the United States to contiscate real estate under the act of July 17, 1862, in which the land is sold and the proceeds paid over to an incumbrancer who had intervened in the confiscation proceedings, but who had taken no other steps to foreclose his mortgage, the only effect of a sale under such proceedings was to vest in the purchaser an estate during the life of the owner free of the lien of the mortgage; and such purchaser was not subrogated to the rights of the mortgagee in such case, such payment to the mortgagee being a pro tanto payment of the mortgage. Waples v. Hays, U. S. S. C., November 6, 1882; 5 Morr. Trans., 73.

21. REMOVAL OF CAUSES-CITIZENSHIP OF FORMAL PARTIES.

1. An attachment suit brought against a party by non-residents, in which his interest in his father's estate is attached, is removable into the Federal courts, even though the executors of the father's