a bank is taxable for the amount of its deposits if the value of its assets is equal to such amount, though it receives no income from some of such assets.

2. A savings bank is not entitled to abatement of taxes because its surplus is not as large relatively as other such banks.

Petition by the Union Five Cents Savings Bank for an abatement of taxation, on the grounds (1) that it had not received the previous year, and there was no prospect that it would immediately receive, any income from a portion of its assets, amounting to $48,586.57; and (2) that it had not so much surplus, relatively, as other savings banks. The petition was dismissed, and the petitioner excepted. Exception overruled.

J. E. Young, for petitioners. J. Hatch, for bank commissioners.

CHASE, J. The first special provision for the taxation of money deposited in savings banks is found in the act of January 4, 1833 (Laws 1833, c. 108), which required the assessors of the several towns to assess the public taxes in part upon "money at interest, more than the owner pays interest for, including

* all deposits in any savings bank or institution where the whole amount of deposits exceeds one hundred dollars." At that time only seven savings banks had been incorporated, the two oldest of which (the Portsmouth Savings Bank and the Strafford County Savings Bank) had been in existence less than 10 years.

If deposits in them were previous

ly taxed, it must have been as money on hand or at interest. Under the statute cited, depositors were not regarded as creditors of the bank, but as the beneficial owners of the fund in its possession, the bank being their trustee. Each one's share of the common fund was taxable directly to him in the town where he resided, if a resident of the state, in the same manner and at the same rate as was his other taxable property. Real estate in which the deposits were invested was taxable to the bank in the town where it was situated, under other provisions of the statute.

This excep

tion to the general rule was necessary, in order to give the town containing the real estate the benefit of the tax upon it; and, to avoid double taxation, depositors were entitled to a proportional reduction of their taxes. Nashua Sav. Bank v. City of Nashua, 46 N. H. 389, 395, 396, 399; Rockingham Ten Cents Sav. Bank v. Portsmouth, 52 N. H. 17, 27; Cogswell v. Bank, 59 N. H. 43; Hall v. Paris, Id. 71, 72; Berry v. Windham, Id. 288, 289; Francestown Sav. Bank Case, 63 N. H. 138; Bank v. Albee, Id. 152, 162.

This method of taxing savings bank deposits continued in force until 1864. All prior laws on the subject were then repealed, and in place of them it was provided that treasurers of savings banks should return to the secretary of state annually, on or before May 1st, "a statement, under oath, of the whole amount of deposits and accumulations due from such

savings banks to each depositor on the first day of April next preceding, together with the name and residence of each depositor residing in the state," and should pay to the state treasurer, on or before the 1st day of July, "three-fourths of one per cent. on the amount of such deposits and accumulations," to be in full of all taxes upon the property of the bank and upon the depositors' interests therein; and that the state treasurer should pay the several towns, on or before October 1st, their proportion of such tax, "according to the amount of the deposits and accumulations held in said savings banks by the residents of said towns." Laws 1864, c. 4028. The general plan of taxation thus introduced has continued to the present time. Gen. St. c. 58, §§ 12-14; Gen. Laws, c. 65, §§ 6-9; Pub. St. c. 65, 88 4-6. The rate was changed to 1 per cent. in 1869 (Laws 1869, c. 4, § 2), and again to three-fourths of 1 per cent. upon general deposits, and 1 per cent. upon special deposits in 1895. Laws 1895, c. 108, § 1. Prior to 1872 the tax was assessed upon the amount of the bank's deposits and accumulations, without deducting the value of real estate in which any portion of them may have been invested; and such real estate was not taxable in the town where it was situated. Rockingham Ten Cents Sav. Bank v. Portsmouth, 52 N. H. 17. In that year the law was changed so as to require the assessment to be made upon the remainder of the deposits and accumulations, after deducting the value of the bank's real estate, leaving that to be taxed in the same manner as the real estate of other parties. Laws 1872, c. 17, § 2; Gen. Laws, c. 65, § 7; Laws 1881, c. 103, § 5; Pub. St. c. 65, § 5; Laws 1895, c. 108, § 1. From the record of assessments in the office of the state treasurer, it appears that the words "deposits and accumulations," in the statute of 1864- and subsequent statutes, were understood to mean the "general and special deposits on which the corporation pays interest" (Pub. St. c. 65, §§ 4, 5), or the sums due depositors, including dividends already declared and payable. Accumulations that had not been passed to the credit of depositors were not taxed. The guaranty fund created by the act of 1874 (Laws 1874, c. 71, § 5) is not taxable, because it forms no part of the sums standing to the credit of depositors. Although the tax is assessed and collected by the state treasurer, none of it is retained by the state. The portion laid upon the deposits of residents is distributed to the towns where they reside, and the balance is distributed among all the towns of the state as a part of the literary fund. Pub. St. c. 65, 6; Id. c. 88, §§ 9, 10. The tax is, in fact, a municipal tax laid upon the property of the depositors, and paid out of it by their incorporated trustee. Bartlett v. Carter, 59 N. H. 105. It differs from the tax that was assessed upon deposits prior to 1864 in the manner of the assessment and collection, and in the rate. Under the earlier statutes, as has been seen, the deposits were taxed directly to

the depositors in the same manner and at the same rate as their other property; while now they are taxed to the depositors' trustee at a fixed rate, which is lower than the rate upon other property in most towns. Under the former statutes, the only inequality between the taxation of this and other kinds of property was caused by the exemption from taxation of small deposits (sums of $100 or $300 and less) and undivided profits; while, under the existing statute, there is an inequality in the rate of taxation, besides an exemption from taxation of surplus and guaranty funds, amounting to a large sum now nearly or quite $3,000,000. The present tax, differing in these respects from that upon other property, "is an anomaly, resting upon peculiar grounds of public policy, and is universally understood to have acquired the position of an exception to the constitutional rule of equality." Boston, C. & M. R. R. v. State, 62 N. H. 648, 649. The petitioners do not object to the tax assessed against them on the ground that it is less than the tax upon other property, but on the ground that it is greater, relatively, than the tax of savings banks which have a larger percentage of untaxed property in their guaranty and surplus funds. Inequality in taxation is a result of every exemption. The case under consideration is not the only example afforded by the law. "Much property always has been, and still is, untaxed." Boody v. Watson, 64 N. H. 162, 195, 9 Atl. 794, 819. Household furniture, mechanics' tools, and libraries never have been taxed. Houses of public worship, seminaries of learning, swamp lands reclaimed for purposes of agriculture, carriages worth not more than $50, and horses and neat stock not over three years old, are not taxable. Pub. St. c. 55, § 2, 5, 7; Laws 1895, c. 101, 1. A town may exempt for a term not exceeding 10 years a manufacturing establishment proposed to be put in operation in the town. Pub. St. c. 55, § 11. From 1833 to 1843, and from 1848 to 1861, deposits in savings banks of $100 and less were not taxable, and from 1861 to 1864 deposits of $300 and less. Laws 1833, c. 108, § 2; Rev. St. c. 39, § 3, par. 3; Laws 1848, c. 737; Laws 1861, c. 2493; Laws 1864, c. 2873, § 1; Nashua Sav. Bank v. City of Nashua, 46 N. H. 389, 394-396. Of the last-named exemption, Perley, C. J., says in the case last cited (page 396): "I can have no doubt that the intention was ✦✦ to encourage and favor small deposits in savings banks, by relieving them wholly from the burden of taxation, leaving them to stand in this respect on the same footing with other large classes of personal property, which are not liable to be taxed because they are omitted from the list of taxable articles." The general object of all these exemptions is to promote the prosperity and welfare of the state. The policy is justified on the ground that the advantages arising from the exemption largely exceed the disadvantages due to the inequality

in taxation introduced by them; so that, upon the whole, the public good is promoted. The law requires savings banks to strengthen their financial ability by creating a guaranty fund amounting to 5 per cent. of their deposits (Pub. St. c. 165, §§ 16, 17), and holds out an inducement for compliance with the requirement by relieving the fund from taxation. The exemption of this fund and the other surplus from taxation does not, in effect and general purpose, differ from the other exemptions to which attention has been called. A bank whose guaranty fund is deficient has a less sum relieved from taxation, relatively, than a bank whose fund amounts to 5 per cent. of its deposits; but it has no just ground for complaint on that account. Its heavier taxation, as compared with that of other banks, results from the fact that it does not possess so large an amount of exempted property. If A.'s personal property consists of a horse worth $50 and a carriage worth $100, and B.'s consists of a horse worth $50 and a carriage worth $50, the law does not relieve A.'s horse or a part of the value of his carriage from taxation, because B.'s carriage is not taxable. Neither does it relieve part of the petitioners' deposits from taxation, because they have less exempted property than other banks. The inequality of which they complain will diminish as they set apart portions of their earnings to the guaranty fund, in compliance with the law, and will soon disappear altogether. Its temporary existence is no cause for abatement.

Another ground on which the petitioners ask for an abatement is because some of their assets have not produced an income during the past year, and are not likely to do so in the immediate future. It is not claimed that the value of their entire assets is reduced below the amount of the sums deposited and the dividends that have been declared thereon. So far as appears, the depositors may at any time withdraw the sums standing to their credit, upon giving the notice, if any, required by the by-laws. In other words, the value of their several interests in the assets of the bank is not less than the amount of their deposits. It is stated in the petitioners' brief that, according to the bank commissioners' report, the value of the bank's assets, June 30, 1894, was 21⁄2 per cent. more than the amount due their depositors. It is not claimed that this report is erroneous, or that the value of the assets has since diminished in greater proportion than the deposits. The fact that securities do not produce an income has a tendency to reduce their value; but if, after such reduction, the value of the entire assets equals or exceeds the amount of the deposits, they are taxable at that sum. The shrinkage in value merely reduces the guaranty and surplus funds. It does not affect the taxable portion of the property. Its application to reduce the latter would give the bank an ex

emption that other banks might not get, and would tend to produce greater inequality of taxation among banks. It would not be equitable, and there is no reason to believe it was intended by the legislature. Whenever it appears that a bank's assets have been reduced in value below the amount due depositors, there may be occasion for abating its tax to a corresponding extent, and also for taking steps to wind up its affairs or reduce its deposit accounts, so as to divide the loss equitably among all depositors. Pub. St. c. 162, §§ 12-20; Id. c. 165, § 26, 27; Simpson v. Bank, 56 N. H. 466. The legislature has set the example for abating taxes in such cases. Laws 1875, cc. 51, 62; Laws 1877, c. 90; Laws 1878, c. 86; Laws 1881, c. 111; Laws 1885, c. 100. Exception overruled.

PARSONS, J., did not sit. The others concurred.

DE WITT v. DE WITT.

(Court of Chancery of New Jersey. Dec. 15, 1896.)

DIVORCE-DESERTION-EVIDENCE.

1. A divorce for desertion should not be granted on the unsupported testimony of the wife.

2. A divorce for desertion will not be granted on evidence that a husband left the wife, truthfully stating that he could not support her, and telling her to go to her father's house, where it appears that she afterwards consented to the separation, in the absence of evidence that there was any ill will between the parties, or that the husband had declared that he would not live with his wife or support her.

Action by Annie C. De Witt against Alexander A. De Witt for divorce. Dismissed.

Robert I. Hopper, for petitioner.

He

GREY, V. C. The wife prays a divorce. No defense was made. The master reports that a decree should be granted. The testimony shows these facts: The petitioner and the defendant were married in 1886. failed in business in 1887. They thereafter sold and parted with their property, in order to live. The husband, according to the wife's story of their lives, failed to provide anything, but they cohabited together until December 30, 1893. Then the husband left her, and took a room jointly with a young man, a friend of his, and asked his wife to go on a visit to his mother. She had no means, and could not go. She several times asked him to let her live with him. He told her he could not; that he had no money even to pay for his own board, for which he was then in debt. On January 31, 1894, she went to his boarding house, and, at the invitation of the boarding-house keeper, she stayed, and that night slept with her husband. She told him she wanted to stay, but he insisted on her leaving; so she went away. She has not since that time seen him in private. She has, however, met him three times, once on

She

February 24, 1894, at Barclay Street Ferry, New York. She was on the way to her father's house, and her husband knew it. When she got to the ferry he was there. She asked him what he was going to do; and he said he had not anything, that he owed board money, and that, if he got anything, he would send it to her. He assented to her going to her father's house, saying, "That's the place for you." The petitioner then went to her father's house, at Hackettstown. stayed there a year. In April, 1894, she met the defendant in Brooklyn, at the house of a friend, Mrs. Halpin, with whom he had some business. This lady remained with the husband and wife during the call, and nothing was said about the wife going to the husband. On July 17, 1895, the wife saw the husband in front of O'Neill's store, on Sixth avenue, New York. She told him she wanted to live with him. He said he had not any money, and she could not. In one part of the testimony this is stated to have been July 17, 1895, and in another part on July 17, 1894. In July, 1894, the husband wrote to the petitioner that he thought he had made a mistake, and invited her to come down to talk matters over, and he would try to raise money enough for her to come down. She did not receive the money, did not answer the letter, and did not go down to see him. The husband again wrote to her, asking why the petitioner did not answer his letter, and saying it deserved an answer. This last letter was answered, asking him to send her some of her books and other articles. The husband made no provision whatever to support the petitioner for some time before their separation; and she has, since she went to her father's house, been cared for by her father, or by the proceeds of her own labor. The husband had no vices, except that the wife suspected that he gambled. They had no quarrel with each other. The wife declares that he was not willing to work, and that he was always figuring on paper about big corporations, and was not content with anything less. The foregoing narration of the facts is compiled wholly from the testimony of the wife. The mother and father of the petitioner were the only other witnesses. They have no knowledge of the cause of the separation of the parties, except that which they derived from the statement made to them by their daughter, the petitioner. They know of the fact that their daughter has lived separately from her husband since February, 1894, and that she supports herself; but they know nothing of the husband's words or actions which might define the separation as his desertion of his wife.

In such a condition of the proofs to support a decree, the court must rely wholly upon the unaided testimony of the petitioner for the evidence necessary to show desertion by the husband, if any sufficient evidence is offered in the case. The established rule is

tioner cannot entitle her to a decree. Tate

v. Tate, 26 N. J. Eq. 56, and cases cited; Pullen v. Pullen, 29 N. J. Eq. 542; Sandford v. Sandford, 32 N. J. Eq. 420. But, aside from this question as to the uncorroborated testimony of the wife as to the cause for divorce, I do not consider that the testimony of the petitioner, if accepted as needing no support, establishes the fact that her husband deserted her. There was no quarrel or ill feeling shown, no pretense of unfaithfulness, no declaration or indication of a determination on the part of the husband to desert his wife. He said to her, what is apparently admitted to be true, that he had not enough money to pay his own board bills, and could not, for this reason, have her live with him; and that her father's house was, under these circumstances, the place for her. In all subsequent conferences he made the same declarations, that he could not support his wife, so that she could live with him. Nowhere is it shown that he declared that he would not live with her or support her. No proof has been offered to show that these declarations were not true, and that they were fraudulently made, to avoid the performance of the husband's duty. The result is that the evidence shows that the separation of the parties has been occasioned, not by the willful purpose of the husband to desert the wife, obstinately adhered to during a continuous period of two years, but that he has been pecuniarily unable to meet the expenses incident to their living together, and, under these circumstances, assented to the wife's living at her father's house. She declares her opinion that he could have supported her if he had tried, but, if she were correct, mere nonsupport is not desertion. Skean v. Skean, 33 N. J. Eq. 148. The wife is now earning her own living. Their separation upon her going to her father's house was by mutual consent. No proof has been offered by her that she has tendered herself to her husband, as ready to expend her earnings to aid in meeting the expenses of living together, and that he then refused to live with her; nor that she ever invited him to come to see her; nor that she made any overtures looking to the continuance of their marriage relations, other than the request that she might live with him. This he was unable to arrange, because he had not the necessary money. Her expression of willingness to live with the defendant is by her stated only conditionally: "I would if he had supported me." case of Sandford v. Sandford, ubi supra, is in its essential facts much like that now under consideration, though offering stronger grounds to sustain a decree. The petition in that case was dismissed, because evidence that the defendant gambled, and did not support the petitioner, was held not to have shown a desertion, and because a decree must be refused where it is asked upon the uncorroborated testimony of the petitioner.

"The

REED, V. C. As I understand the testimony, the husband was paying the wife three dollars a week for her support previous to the time of the filing of the bill by the wife in this suit. In respect to the failure of the parties to cohabit as husband and wife, it is difficult to say who is most in fault. The couple seems to have been ill assorted in their marriage relations; and, in fixing the amount of support which the wife is entitled to, a court always takes into consideration the conduct of the wife, as well as that of the husband. In this case the invitation to the wife to live at Bayonne, by the husband, was, I think, for the purpose of evading the payment of additional separate support; and her visit to Bayonne does not impress me as one made with the idea of making her permanent home with her husband. In view of all the facts, I shall dismiss the bill, without prejudice to renew the application in case the husband refuses to pay the sum of three dollars a week, which he has heretofore paid.

1. While a court of equity will not, as a rule, correct irregularities in municipal procedure, it will nevertheless restrain an irregular proceeding if it threatens irreparable injury.

2. A municipality, as the representative of the public, may sue to abate or prevent a nuisance upon public property within its limits.

3. The power of a municipal officer to abate a public nuisance without statutory or judicial process stands upon the same footing as the power of a citizen.

4. The fact that a general statute for the formation of boroughs has been judicially declared to be unconstitutional in an action brought by the attorney general to test the de jure existence of one corporation formed under the act, cannot, in a collateral suit, affect the