tion later to withdraw his said motion, which application was granted by the court, and thereupon he moved to strike the petition because it was not verified, which was denied. The order of the District Court, however, in permitting Hunt to withdraw his motion to make more definite and certain did not operate to relieve him of the consequences of the waiver he had already made by filing his first motion. His motion to strike the petition was, therefore, too late.

Moreover, the presentation of the motion to strike was accompanied by affidavits which raised a question of fact as to whether the petition had not really been sworn to, and, though the record fails to disclose what determination was made of this question of fact, yet it may well be assumed, as consonant with the action of the trial court in overruling the motion, that the ground there for was a finding that the petition was in fact verified.

An amended petition was subsequently filed, which was duly verified beyond question, and it was upon this amended petition that the case was tried.

Fourth That the District Court erred in admitting in evidence in rebuttal over the objection of Hunt the contract between Pope and his associates and the City of Laramie.

It is perhaps true that the contract in question properly belonged to the case of the city in chief, and should have been offered in its case in chief. However, in such matters a trial court is vested with a sound discretion, and an appellate court will not interfere unless there has been a manifest abuse of that discretion. An examination of the record fails to disclose that the admission of the contract in rebuttal took the appellants by surprise, or deprived them of an opportunity of meeting it, or prejudiced them in any

way.

Fifth That the bond filed by the city in the District Court on its appeal from the State Board was insufficient as an appeal bond, in that it was not signed by the City of Laramie.

In the body of the bond the City of Laramie is named as the contracting party, or the party assuming the obligations.

imposed therein, and the attestation clause of the bond recites, "In Witness Whereof, the City of Laramie has caused these presents to be executed by its Mayor, attested by its Clerk, and sealed with its corporate seal this 10th day of December, 1915.”

The bond is then signed by the Mayor as such and attested by the City Clerk as such, and the seal of the city affixed. It is also signed by the surety. In executing a bond of this character, the city could act only through its proper officers, which were the Mayor and the Clerk. It was executed for and on behalf of the city by them. It was plain on the face of the instrument that the city was incurring the obligation, and, as executed, the failure to write the words "The City of Laramie" at the end of the bond would not vitiate it. (See Gottfried v. Miller, 14 Otto, 521 26 Law Ed. 851.)

Sixth That the judgment of the District Court is contrary to the evidence.

The vital question in the case was a question of fact as to whether Pope Spring was a natural spring or a spring artificially developed by means of excavations by Pope, upon whose land it was situated. From the evidence, it appears the spring was developed by digging into a subsurface stratum or formation through which and from which the waters percolated and found their way out to the surface at the point where the excavation was made. The contention of the appellants in the court below was that Pope Spring was a natural spring, but the trial court found against them and found it to be a spring artificially developed by Pope, and that its waters were private waters and the property of Pope, upon whose land it had been developed, and who, with others associated with him, had given the city the right to purchase the same by the contract heretofore referred to. These findings by the trial court are supported by ample evidence, and are binding upon this court, for it is a uniform rule that an appellate court will not disturb a finding of fact made by a trial court when there is evidence upon which the

finding may reasonably be based. (Saratoga L. & L. Co. v. Jensen, 20 Wyo. 323, 123 Pac. 415.)

Hunt, as executor, could, of course, appropriate only public waters of the state, and, as the spring in question was not a natural spring, he could acquire no rights by his application.

"The water of all natural streams, springs, lakes or other collections of still water within the boundaries of the state are hereby declared to be the property of the state." (Sec. I, Art. 8, Wyo. Const.)

Supervision of "the waters of the state" is vested in the Board of Control, subject to review by the courts. (Sec. 2, Art. 8, Idem.)

"A water right is the right to use the water of the state." (Wyo. 1910 Compiled Statutes, Sec. 724.)

Any person intending "to acquire the right to the beneficial use of the public water of the state" shall make an application to the State Engineer for a permit. (Idem, Sec. 727.)

That percolating waters developed artificially by excavation and other artificial means, as was done in this case, belong to the owner of the land upon which they are developed is supported by abundant authority. (Long on Irrigation, Secs. 93, 95 (2nd Ed.); Howard v. Perrin, 76 Pac. 460, 8 Ariz. 347; Ryan v. Quinlan et al., 124 Pac. 512, 45 Mont. 521; Vanderwork (Territory of New Mexico intervenor) v. Hemes et al., 110 Pac. 567, 15 N. M. 439; Metcalf v. Nelson, 65 N. W. 911, 8 S. D. 87, 59 Am. St. Rep. 746; Willow Creek Irrigation Co. v. Michaleson, 60 Pac. 943, 21 Utah 248, 51 L. R. A. 280, 81 Am. St. Rep. 687.)

Other matters are referred to in the brief of plaintiffs in error, but they are not, in our opinion, under the facts of this case, of sufficient importance to justify extended dis

cussion.

We are of the opinion that the judgment of the court below should be affirmed, and it will be so ordered.

Affirmed.

POTTER, J., and WINTER, DIST. J., concur.

HON CHARLES E. WINTER and HON. JAMES H. BURGESS, DISTRICT JUDGES, were called in to sit in place of BEARD, C. J., and BLYDENBURGH, J., who were unable to sit by reason of illness.

MILLER v. AMORETTI.

(No. 900; Decided June 3rd, 1919; 181 Pac. 420.)

BANKS AND BANKING-LIABILITY OF STOCKHOLDERS-STATUTORY CONSTRUCTION—AUTHORITY OF RECEIVER TO ENFORCE STOCKHOLDERS' LIABILITY IN A FOREIGN STATE-JUDGMENT OF FOREIGN STATEFULL FAITH AND CREDIT-CONSTITUTIONAL LAW.

1. Revised Codes of Montana, Section 4012, providing that the stockholders of every banking corporation formed under the Chapter of which said Section is a part shall be liable to the extent of the par value of stock owned by them for corporation debts, is not confined in its operation to banking corporations organized under the act in which said Section appears, but applies to banking corporations existing at the time the act was passed.

2. The liability of a stockholder in a banking corporation organized under the Act of which Revised Codes of Montana, Section 4012, is a part, for a debt of a corporation to the extent of the par value of his stock, is contractual and runs directly to the creditors of such corporation. Such liability is not an asset of the corporation, and cannot be enforced by a general receiver of an insolvent banking corporation by action in a foreign State, where the Statute authorizing his appointment does not empower him to bring such an action in Montana.

3. This court, in deciding whether a receiver appointed in Montana can maintain an action in Wyoming to enforce the liability of stockholders of a bank under the Montana Statute, will follow a decision of the Montana Supreme Court, holding that the Statute created a right of action in creditors alone, though the action in which the decision was rendered was brought by creditors and the question arose only incidentally on the issue of a right to set-off by defendant of a claim against the defendant.

4. Where a receiver of an insolvent bank, in pursuance of an order of the appointing court, brought an action in a court of another State, to enforce the statutory liability of a

stockholder, denial by such court of his right to recover does not violate Const. U. S., Art. IV, Section 1, requiring full faith and credit to be given in each State to the judicial proceedings of another State, since inqury into the foreign court's jurisdiction is not a denial of full faith and credit.

ERROR to District Court, Fremont County; HON. CHARLES E. WINTER, Judge.

Action by H. B. Miller as receiver of the Farmers State Bank of Bridger, Montana, a corporation, against Eugene Amoretti, Jr. Defendant demurred to the petition as amended, which was sustained, and thereupon the plaintiff excepted to the ruling and refusing to further plead, judgment was rendered and entered in favor of defendant. Plaintiff brings

error.

E. H. Fourt, for plaintiff in error.

The Montana court adjudged insolvency and directed the receiver to proceed and collect from stockholders an amount equal to the par value of their stock; this is a final judgment of the Montana Court entitled to full faith and credit under the Federal Constitution; the liability of stockholders to creditors of the bank to the extent of the par value of their stock is fixed by the Montana Statute and is therefore a part of the contract under which the shares are taken. The Montana law also provides for the appointment of a receiver. This case is to be distinguished from McLaughlin v. O'Neil, 7 Wyo. 187, 51 Pac. 243, since in that case, the Utah court had not judicially found the amount of the deficiency. In the present case the Montana court has determined the liability. Nichols v. Board, 76 Pac. 681, sustains the point. There is no other proceeding provided by the laws of Montana, which could conflict or supersede the power and authority of the receiver in the present case. (See also Childs v. Blethen (Wash.), 82 Pac. 405: Finney v. Guy, 49 L. R. A. 486; State v. Union Stock Yards Bank. 70 N. W. 752.) The assessment of stockholders of an insolvent bank is a secondary remedy. A receiver takes possession of all property for the benefit of creditors and should