French v. Gapen

delivered tbe opinion of tbe court.

The State of Indiana constructed the Wabash and Erie Canal from La Fayette, on the Wabash River, through Delphi and Fort Wkyne, to the Ohio State line. To meet the expense of this undertaking .a large bonded debt was created, and secured in a general way by statutory provisions of a character similar to those contained in sect. 5 of an act of Jan. 9, 1832, authorizing the first issue of bonds, and which is- as follows: —

“That for the payment of the interest, and the redemption of the principal of the sums of money-which may be borrowed-under the authority of the General Assembly, for the construction of said canal, to the extent of the estimated cost thereof, in the first section of this act stated, there shall be, and are hereby, irrevocably pledged- and appropriated all the moneys in any manner arising from the lands donated by the United States to this State for the construction of said section of canal, the canal itself with the said portion of land thereto appertaining, or as much thereof as will realize by sale the sum borrowed, and all-privileges thereby created, and the rents and profits thereof belonging to the State, and the net proceeds of tolls collected on said canal,or any part thereof as finished; the sufficiency of which, for the purposes aforesaid, as above allowed and provided for, the State of Indiana doth hereby irrevocably guarantee.” Acts 1832, p. 2.

From the beginning, .the use of water for hydraulic purposes, when not needed for navigation, seems to have been contemplated, and ample provision was made by statute for'acquiring the necessary land and effecting leases of power. With a view to this end, the following “ Act relative to water-power at the town of Delphi ” was passed and approved Jan. 9, 1842: — .

“Sect. 1. Be. it enacted by the General Assembly of the State of Indiana, that it-shall be the duty of the engineer, or other person having charge of the Wabash & Erie Canal, on or before the first day of May next, to let by contract, to the -lowest bidder, the clearing out and removing all obstructions from the bayou which extends from the canal, at the said town, to the Wabash River, for the purpose of creating'water-power upon the said canal at that place.

“ Sect. 2. Be it farther enacted,t that said engineer or othei person, before leiting- the said work,- shall’ gjye public notice of .till

terms, conditions, and also the time of tbesaid letting, by publishing the same in the newspapers printed in the said county, for two months, at least, previous to the time of said letting: Provided, that the said works shall be finished within six months from the time of said letting. '

“ Sect. 3. Be it further enacted, that the said engineer, or person having charge of that part of the canal, shall cause the work to be estimated when the same is completed, and shall give to the persorj doing' the same a draft pr other evidence of indebtedness, specifying what the same w.as given for, and tlm amount due him as by the said contract, and for the purpose of paying for the said work, the rents that may be received by the State for water-power created by this act shall be appropriated for that purpose, and to no other purpose; and the person or persons doing the said work shall look to the said rents for their pay, and to no other source whatever; and as fast as the said'rents may be due or received, they shall be expended in paying for .the said work until the whole amoiint is paid.

“Sect. 4. Be it further enacted, that so soon as the said work is let to some responsible person, it shall be the duty of the said engineer, or other person, to lease out a portion of the water-power by this act created, not exceeding-in all what would be sufficient to propel thirty run of stones, at the same prices and upon the same terms and conditions as water-power under similar advantages is leased at other places, upon the said canal, and it is made the duty of the said engineer, or other person, .before leasing the same, to give at least two months’ notice of the time, terms, and conditions upon which the same will be leased, in the newspapers published in the said county.

“ Sect. 5. Be it further 'enacted, that it shall 'be the' duty of the said engineer, or .other person, as the agent on behalf of the State, for the purpose of securihg^to the Stape the advantages by this act ■contemplated,'to purchase of the owner or owners of land lying adjacent to the'place where said Water7power is to be located," such real estate,'not exceeding.in all four acres, as may be necessary to carry into effect' the provisions, of this act, at such reasonable prices as may b'e agreed upon by the said agent and the owner or owners thereof; and in case of disagreement at such prices, as may be fixed by persons chosen by the said agent and the said owners: Provided, that in no case shall the prices paid by the State .for,such land exceed what has heretofore been paid for. such property, under the same or similar advantages, and for such real estate so purchased the said agent shall take a conveyance to the State by deed;in fee-

simple: And provided further, that nothing in this act contained shall be so construed as to authorize any interference whatever with the navigation of said canal.

“ Sect. 6. Be it further enacted, that this law shall be in 'force from and after its passage.”

Under the authority of this act, James Spears and Reed Case entered into a contract.with the State to do the work .required upon the terms proposed, and before the 1st of De-> cember, 1848, had it ,all done. On the 19th of January, 1846,' another act was passed, by which it was made the duty of the officer having charge of the canal east of Tippecanoe to settle as soon .as possible with the contractors, and give them a certificate for the amount found their due, to be paid out' of the rents derived from the power created by what had been done, and also providing that the certificate should draw interest from the time the contract was completed until paid.

The settlement contemplated by this act was effected on the 29th of September, 1847, and the following certificate issued: —

“Delphi, Sep. 29, 1847..

“ I hereby certify that Spears & Case have performed work to the value of $10,354>f^ in cleaning out the' bayou which extends from the canal at Delphi to the'Wabash River, estimating according to .the terms of a contract between said Spears & Case and S. Fisher, commissioner of the W. & E. Canal, dated-May 1, 1842, made in pursuance of an act entitled ‘An Act relative to waterpower at the town of Delphi, in Carroll County, approved January 20, 1842.’ ' And according tq the provisions of an act entitled ‘ An Act authorizing a settlement, with Spears & Case for work done'on the side' cut at Delphi, in Carroll County, approved January 19, 1846,’ the said Spears &.Case are entitled to receive interest on said sum until paid. And I certify also that .said work was performed prior tq the first day of December, 1843.

“ S. Fisher,

“ Geril Suft W. <& M Canal”

On the twenty-ninth day of May, 1846, the State leased to George Robertson, at an agreed rent, a sufficient amount of. power made available by the work done by Spears & Case to propel three run of stone. Of this lease Enoch Rheinhayt is the present assignee and owner. - He 'still uses the water.

In the construction of the canal it became necessary to take-the water from the St. Joseph River, near Fort Wayne. In doing this .the' power: which supplied certain-mills that had been erected on that- river by Henry Johns was taken away, 'and on the 11th of February, 1843, the following statute was passed for his relief : —

“ An Act for the relief of Henry Johns.

“Whereas, Henry Johns, - of the county of Allen, previous to the commencement of the Wabash & Erie Canal, was the owner of a valuable mill privilege or water-power on the St. Joseph River, and had erected valuable mills thereon ; and whereas, the State of Indiana did afterwards erect a feeder-dam, to supply with water the summit level of the Wabash and Erie Canal, above the mills erected by said Johns, on the St. Joseph Rivet, thereby abstracting from the mills aforesaid about 5,000 cubic feet of water per minute, which, in low stages of water, is all the water, contained' in the said river St. Joseph, and renders wholly useless the mills. erected by said Johns; therefore —

“ Sect. 1. JBe it' enacted by the General Assembly of the State of Indiana, that the commissioner of. the Wabash and Erie Canal be, and is hereby, directed to cause to be supplied to the said Henry Johns, his heirs and assigns forever, from the Wabash and Erie Canal, at the town of Fort Wayne, in the county of Allen, on land now owned or to be purchased by said Johns, a sufficient quantity of water to propel three pair of burr millstones free of any toll or water-rent, and continue to supply the same for thq use of said Johns, his heirs and assigns forever, at all times when ’ the same shall hot be needed to fill the contracts heretofore made with Samuel Edsall and Hamilton & Williams, or required for the purpose of navigating said canal: Provided, that the said Johns shall, for himself, his heirs and assigns, release to the State' of Indiana all claims against the State for the abstraction of water from the St. Joseph River to supply ,the Wabash and Erie Canal, and -shall also credit in full any or all awards or judgments that shall have been recovered by said Johns against the State for the abstraction of any water-power.

“ Sect. 2. This act. shall take effect and be in force from and after its passage.”

“ This agreement, made this sixth day of July, 1843, between the State of Indiana, party of the first part, by S. Fisher, commissioner of the Wabash and Erie Canal, thereto duly authorized by law, and Henry Johns, of the second part, witnesseth:

“ That said party of the first part, in consideration of the covenants and releases hereinafter contained, arid upon the express condition that the party of the second part shall at all times comply with all and singular the limitations and conditions hereinafter contained, and shall, in every respect, perform all the stipulations of the agreement by said party to be performed, agrees to lease to said party of the second part forever, subject to the restrictions, limitations, and conditions hereinafter contained, the use and occupation of so much of the surplus water (not required for purposes of navigation, or to fill the contracts heretofore made with Samuel Edsall and Hamilton & Williams), at the town of Fort Wayne, to be used on lot'number nine (9), of the county' addition to said town, as will be sufficient, when properly applied on an overshot "wheel of sixteen'feet diameter, with the proper gearing, to be approved by the commissioner of said canal, to propel three run of four-and-a-half-feet millstones, grinding at the' rate of five bushels per hour each, to be applied to such manufacturing purposes as the said second party may choose. It is understood that the second party to this agreement is entitled to the same quantity of water, whenever there is. a surplus in the canal as above, that Allen Hamilton and Jesse L. Williams are entitled to under the lease bearing date 29th of November, 1842. The water will be taken by a head-race from the canal, at the place above' described, and after passing over the wheel will be conducted by a suitable tail-race, into the St. Mary’s River. The flow of water to the wheel'will be regulated and controlled by a permanent regulating weir, to be ' constructed in the most substantial manner, with stone side and breast walls, agreeably to a plan to be furnished by the commissioner of the canal, to be .built in every respect according to his directions, as not to endanger the safety of the canal in any manner whatever. And it is understood that the necessary regulating wem, head-race, and trunk to conduct the water to the wheel, and the tail-race to pass it from the wheel as above specified, are to be constructed by the party of the second part-at his own expense and

according to the direction of the commissioner aforesaid, and to be kept in good repair, so as to prevent the waste of water; and if at any time during the continuance of this lease, any breach or other injury shall occur to the canal in consequence of the race or trunk not being faithfully constructed, or being suffered to be out of repair, or from any negligence of any person employed about the mills, then the said party of the second part shall forfeit and pay to the State the whole cost of repairing such breach or injury; and if the said party of the second part shall refuse or neglect to rebuild, repair, or strengthen said regulating weir or other, works necessary to the security of the canal, after being notified in writing by the commissioner, superintendent, or other proper agent of the State that such removal is necessary for the safety of the canal, such refusal or neglect' shall subject the party of the second part to a forfeiture of this contract or lease at the ■ option of the commissioner or other agent of the State thereto duly authorized.,

“It is expressly understood by the parties hereunto that the first party does not agree to furnish water to the second party except at such times as- there is a surplus‘over and above what is required for purposes of navigation and to supply existing contracts with Samuel Edsall and Hamilton & Williams. And the right is also reserved by the first party to draw the water from the canal whenever it may be necessary to repair or prevent breaches, take out bars, or make any repairs whatever.

“ And the second party, for and in consideration of the right to the use and occupation of said water, agrees to release, and does hereby release, for himself, his heirs and assigns forever, all claim or claims against the State of Indiana for damages heretofore done or that may hereafter be done to any property now or heretofore owned by him, the said Henry Johns, in consequence of diverting water from the St.-Joseph River to supply the Wabash and Erie Canal and the mills erected or to be erected thereon or supplied therefrom.

“And the said Henry Johns hereby releases to the State of Indiana all his right and title to the water flowing in the St. Joseph River whenever the same may be necessary for the supply of the canal and mills aforesaid.

_ “ And the said Henry Johns acknowledges the foregoing lease as being in full payment for all awards of damages heretofore made and for all damages done or hereafter to be done by diverting the water as aforesaid.

“And it is understood by the parties hereto that the second

party is to pay no rent other than releasing the first party from the payment of damages as above; and this agreement is made in pursuance of and with a view to carry out an act of the legislature, entitled ‘An Act for the relief of Henry Johns,’ approved Feb. 11, 1848.

“ In testimony whereof we, the parties to this agreement, have' hereunto set our' hands and seals the day and year first above written.

“ S. Fisher, [seal.]

Com. W. & E. Canal.

“ Henry Johns, [seal.]

■“ Signed and sealed .in presence of—

“Alex. McCulloch.”

All the rights conferred by this agreement or grant are now owned by French, Hanna, & Co.

The State having become embarrassed by reason of its large indebtedness, growing out of the construction of this canal and other public improvements, passed an act, on the 19th of January, 1846, to provide for the-liquidation of the debt, by which new certificates of State stock were to be issued. One of these certificates, representing one half the debt, was to be provided for by taxation in the usual way, and the other, representing the other half, out of the lands, tolls, and revenues of the canal. As an instrument for carrying into effect ■ the arrangement in respect to the half of -the debt payable out of ■the tplls, &c./£he board of trustees of the Wabash and Erie Canal was created and constituted a body corporate,, to which,, on the 80th of. July, 1847, a conveyance was executed as provided for in sect. 8 of the act, which is as follows : —

“Sect. 8. So soon as said trustees shall have been elected or appointed as aforesaid, it shall be the duty' of the governor, in the name and under the seal of the State, to execute and deliver to said trustees, by the corporate name of the board of trustees of the Wabash and Erie Canal, a deed of patent for the bed of the Wabash and Erie Canal, and its extensions, finished and to be finished, from the Ohio State line to. Evansville, including its banks, margins, tow-paths, side-cuts, feeders, basins, right of wav,-locks, dams, waterpower, and structures, and all materials provided or collected for its construction; and all the property, right, title, and interest of the State in and to the same, with all its appurtenances; and also all the

lands and lots (not sold or disposed of) heretofore given, granted, or donated by tbe general government to the State, to aid in the construction of said canal, or any part of it, or which may be hereafter acquired under or by reason of any existing grant, and all moneys due and to grow due, and remaining unpaid on account of any sale or sales hez-etofore made of any canal lands-so donated, and all moneys due or to grow due on account of any existing leases of any waterpower or other privilege on said canal, its side-cuts, feeders, basins, or other appurtenances; said bp arc! of trustees to have, hold, possess, and enjoy the same as fully and absolutely as--the State can or could do; subject, nevertheless, to all existing rights and equities against the State on account of the same, or any part thereof, or liabilities of the. State growing out ofj or in relation thereto ; and the same to be held by said trustees in trust and security for the uses and purposes following, that is to say — ”

It is unimportant in this case to notice the specifications in respect to the trust any further‘than to say that the trustees were given no power to sell the canals.

The trustees took possession under this conveyance, and on the 5th of July, 1852, executed to Spears, Case, and James P. Dugan a lease of water at Delphi equivalent to three millstone powér, reserving a certain agreed rent. This lease is now ownecl and the power used by Abner H. Owen, and the trustees accounted .to Spears & Case for all rents collected under its.provisions down to Nov. 1, 1875.

On the 19th of November, 1874, Jonathan K. Gapen, a holder of certain of the certificates of stock provided for in the conveyance to the trustees, filed a bill in. equity in the court below, against the trustees, in behalf of himself and the other holders of the same class of secuz-ities, setting forth, in substance, that by reason of the failure of revenues from the' canal it was impossible to keep it in a condition for use ; that the trust was insolvent and the trust property rapidly falling into decay, and praying “ that the pledge and appropriation recited in said stocks shall be effectuated and the said canaT and its appurtenances and lands may be decreed to be sold in such manner and. on such terms as the court may deem best for the interests of those entitled to share in the proceeds thereof, and so as to bring the highest price therefor, and so as to

. To' this suit neither Spears & Case, nor Johns, nor any one representing their interests, was made a party. The trustees of the canjal were the only defendants, and on the 24th of December,' 1875, a decree was made “that the Wabash and Erie Canal, including its banks, margins, tow-paths, side-cuts, feeders, basins,- rights of way, locks, dams, water-powers, and structures, tqgether with all its appurtenances; also all lands and lots . . . belonging to the trust and vested in the trustees of the Wabash and Erie Canal,” be sold. Under this decree Ml that part of.,the main line of the canal .from the western boundary of the city of Lafayette to the Ohio State line was sold to William Fleming for #85,500. This sale was Confirmed on the 12th of February, 1877.

On the 7th of Jiily, 1877,> before any r final-distribution of the proceeds of'the sale had been made, Spears, for himself and as surviving partner of the late firm of Spears & Case, and' the widow' and children of Case, who had before that time "died, filed an intervening petition, called in the record a cross-bill, in which they set forth their connection with the watér-power at Delphi, substantially^ as has been already stated, and alleged that there was still due them from the State, on the certificate which .they held, the sum of #24,678.86. They then averred that tfaer purchasers of the canal had collected. the water-rents under the leasés owned by Kheiuhart and Bowen that, fell due after Nov. 1, 1875, and .refused to account to them, and that there was sufficient surplus water in the-canal at Delphi to supply power for the. stipulated amount of thirty run of stone, which the trustees had declined to-lease previously to the sale.

“ That upon the final hearing of' this cause the court will order, adjudge, and decree that the sum which shall be found to be due to the plaintiffs shall be paid by the said Samuel B. Gookins, as such receiver, out of the funds now in his hands ; or if the court shall be of opinion that the plaintiffs are not legally entitled to any relief hereinbefore prayed for, then they pray that it shall be ordered, adjudged, and decreed by the court that they be entitled to demand and receive from the said lessees and their assigns all sums of money'due from them for the rent of the water-power, as aforesaid, or that may accrue from the first day of May, 1877; that a receiver be appointed to take charge of the said water-power, manage and control the same, and collect the rents therefrom, and apply the same to the payment of the claim of the plaintiffs until the same is fully paid, and that the said receiver shall be authorized and empowered to make such additional leases of the said water-power as can be safely done without interfering with the navigation of the said canal, but not to exceed thirty run of stone; that the said purchasers and owners' of the said canal from the city of Loganspor.t to the city of Lafayette, as aforesaid, be required to keep and maintain the dam, lock, and canal in good condition ; t’o preserve and maintain said water-power at the said city of Delphi, and that the said receiver be required to compel the lessees of the said water-power to keep and perform the stipulations contained in the leases aforésaid, as to making of repairs of the said canal; and for all other and further relief to which the plaintiffs are entitled by virtue of matters and things hereinbefore stated.”

On the 15th of May, 1878, French, Hanna, & Co., as assignees of Johns, filed their intervening petition in the cause, also called in the record a cross-bill, in-which they set forth the facts in relation to the power .granted to Johns, substantially as has already been stated, and-then averred as follows: —

“ Your petitioners further show that, in expectation of the permanent enjoyment of said water-power, they have erected large and extensive woollen mills on said lot nine .(9) .in Fort ’Way-Tie, at a, cost of $25,000, and ..for many years'have been operating the same by- .means of said, water-power, on said

The prayer of the petition is as follows: —

“ Rut insomuch as. there is great danger that, from the abandonnient of said canal as a public highway, it may go to ruin, and your'petitioners’ claim, upon the property itself become of little value, and by reason of your petitioners’ manifest equity in.the premises, and forasmuch as this large fund, so derived 'from, the sale of said property, is'now in the custody of this

“ Your petitioners pray that they have leave to file this their intervening petition; that said parties to this original suit, the said Samuel Bv Gookins, as such receiver, and the-said William Fleming, John H. Bass, Oscar A. Simons, James Lillie, George J. Bippus, and-Roberfc Simonton, cj purchasers,’ and each of them, be required to make full and 'true answer in the premises, and show, if they can, why your petitioners should not be paid out of said fund any damages which they may sustain by reason of the abandonment of said canal hythe State and by said trustees, and why the estate of said purchasers in’ said property shall, not be declared to be servient to that of your petitioners, and upon the hearing will your Honors grant to your petitioners all such relief as may be just, equitable, and proper.”

In each of the petitions it was' stated that Fleming, the original purchaser, had transferred a part of the property to .others. All these purchasers, as well as- Fleming, the trustees of. the canal, Gapen, and’ Gookins, who in the progress of the cause had been appointed receiver, were named in- the petitions as defendants, and they all appeared and filed demurrers. These demurrers were sustained below and the petitions dismissed. From the decrees to |hat effect the present appeals were taken.

The first questions to be settled, relate to the rights of Spears & Case, Johns, and the trustees of/the canal respectively, under their several contracts with the State.

1. As to Spears & Case.

To our- minds it is dear that the effect of., what was done with these parties was to convey to. them .a property right in the rents produced by leasing the water-power made available through their work, to continue until the compensation stipulated for was paid in full. The State assumed no pecuniary obligation in the contract that was made, and Spears & Case agreed to look only to the rents for their payi To this end, the State “ appropriated,” that is to say, set apart, the rents for the use of Spears & Case, and.made itself a trustee to col

Our conclusion then is, that frbm the time Spears & Case completed- the work under their contract, the State held the water-power made available by what they had done to the ex-tént of the amount required to propel thirty run of' stone, in trust to lease on the terms and conditions specified, whenever it could be done' without .detriment to navigation, and pay over the rents as received'to’Spears'& Caáe until their claim was .satisfied. In "fact the State never became the beneficial owner of' 'the power that was created.' From the time of its creation "it belonged in equity to Spears & Case until their charge upon it was paid. The State held the legal title coupled with authority to make the contemplated leases, but this was to be for the use and benefit of Spears & Case so long as anything

2. As to Johns and his assignees.

Here, we think, was an absolute grant, for a valuable consideration, by the State to Johns, of the -right to draw water from the canal for the purpose and on the terms and conditions specified. It was not a grant of the lands on. which the canal was • built, but of the right to draw water from the canal to be used in lieu of thát which had been taken away. Originally Johns took the power directly from the river to his mill. - Under his grant he was allowed to draw it through the canal, subject to the limitations and restrictions. provided for. ' The only substantial difference between his rights and those of the other lessees of power was, that they were to pay rent at stated periods for the water they used, while he was to draw without-payment of rent, in consideration of his release of the damages he had sustained by the diversion of the water, from the river to the canal. What he got was the grant of a right to enter on the canal and draw water therefrom to his mill whenever and so long as there was a surplus over what was wanted fox-navigation and the supply of the earlier leases. This was a property right, and the legitimate subject of grant. De Witt v. Harvy, 4 Gray (Mass.), 486. Johns could.not, any more than Spears & Case, compel the. State to keep the canal in repair so as to give him the water; but is long -as the canal was maintained and the water furnished, he had the right to draw. In this petition, as in- that of Spea, = & Case, it is expressly avérred that the canal is still maintaine-1 and supplied with water.

By an express provision in the grant to the trustees their title was made subject to all existing rights and equities against the State on account of the property conveyed, or any part thereof, and to all liabilities of the State growing out of or in relation thereto. In other words, the State conveyed all its remaining interest in the canal, and the trustees took what they got, charged with the same trusts, and incumbered by the same liabilities that rested on it when the grant was made. It follows that whatever property rights Spears & Case or Johns-had in the canal before the grant, they retained after it. All that the- State was bound to do in respect to them before, the trustees must do afterwards. As the State was the trustee of the power at Delphi for the benefit of Spears & Case when the transfer was made, the trustees took the title, subject to the same trust, and became bound in respect to its management in the same way and to the same extent the State had been until that time. Rents collected after the transfer were as much the property of Spears & Case, in the hands .of the trustees, as they were in the hands of the State. So, too, in" respect to Johns. Whatever water he could draw from the canal before the transfer he was entitled to draw afterwards. All that the State could be required to do for his benéfit at the time of the transfer, the trustees were bound to do while they held the property. The obligations of the trustees in -respect to both these parties were'precisely the same as those of the State no more and no less.

It only remains to consider whether the petitioners are entitled to relief in this suit and under the form of proceeding they have adopted.

They were not originally parties to the suit. No sale of the trust property could be made in their absence which would dispose of their rights. All that could pass under such a sale would be that which was conveyed by the State to the trustees; to wit, the canal, &c., subject .to the prior rights of the petitioners. No decree binding on the petitioners could be rendered, defining what their rights actually were. A purchaser would take only what the trustees held, and be left to settle with the petitioners as best he could.

Without deciding what upon tbe final hearing should be the form of relief afforded the petitioners, we are clearly of opinion that upon the facts stated in their petitions they are entitled to have their rights in the premises ascertained and something done in their behalf. The prayer of the petition of Spears & Case is for alternative relief. If it shall be determined that their interest in the property passes by the sale, they ask to be paid its value from the proceeds. If it does* not, then they seek to have their rights, as against the purchasers, specifically ascertained and determined; the rents which have accrued and which may. hereafter accrue from the Delphi leases paid over to them, and the proper steps taken to make the unused power at that point available for the liquidation of what is still due on their certificate. French, Hanna, & Co.', the assignees of Johns, ask to be paid the value of the power which was granted to them, and for general relief. Under this prayer for general relief the court will be authorized to establish their right to the use of the water as granted, free of rent, in case it shall be determined they are not entitled to be paid the value of their power from the proceeds of the sale.

Without pursuing the inquiry further, we conclude the court was wrong in sustaining the demurrers and dismissing the petitions. The decrees dismissing the petitions will, therefore, be reversed, and the causes remanded • with instructions to overrule the demurrers and proceed thereafter as. justice may require, and in accordance- with this opinion; and it is

So ordered.

Me. Justice Gray did not sit in these cases, nor take any part in deciding them.