author:
      Storrs, J.
      Waite, J.

text:
    The Second Ecclesiastical Society of Portland vs. The First Ecclesiastical Society of Portland.
    Since the adoption of our present state constitution, however it may have been before, it is not competent to the legislature to divide an ancient local, or territorial ecclesiastical society, into two or more such societies, or to divide the fund, owned by such ancient society, for the support of the ministry, and to assign a part of such fund to a new society, formed out of a portion of such ancient one.
    The defendants, the First Ecclesiastical Society of P, having been incorporated by the general assembly in the year 1714, as a local ecclesiastical society, with territorial limits, embracing the inhabitants within that part of the then town of M, which was on the eastern side of the Connecticut river, and having acquired by grants, devises and donations, a fund for the support of religious worship within said society, consisting of real and personal estate ; the legislature passed a resolution, in the year 1853, on the application of certain members of said society, residing in the eastern portion thereof, but against the remonstrance of said society, and of several members thereof, who resided in said eastern portion thereof, on general reasons of convenience, and expediency, and without any claim or finding that said fund had been misapplied, or otherwise forfeited by said society, by which they divided said society, and constituted the members, living in said eastern portion thereof, a new local, ecclesiastical society, by the name of the Second Ecclesiastical Society of P, with territorial limits embracing that portion, and declared that said new society should be entitled to, and by said resolution, vested in it, one undivided half of said fund belonging to the old society, and made provision for the division of said fund between the two societies, accordingly. The defendants refused to comply with said provision, or to relinquish any part of said fund. On a bill in equity, by suchnew society, to compel such division, it was held, 1. That, if the effect of such resolution was to constitute those on whose application it was passed, which was the utmost that could be claimed for it, a new voluntary society, it was ineffectual so far as it attempted to give any such new society any part of the funds, or property of the old one. 2. That, if it had not even that effect, it left the old society, in all respects, in its former condition. 3. That, consequently, such old society retained all its property and funds.
    This was a bill in chancery brought by the Second Ecclesiastical Society of Portland, against the First Ecclesiastical Society of Portland, to compel the defendants to make a division between the two societies of the fund, for the support of religious worship, and other corporate property belonging to the defendants.

      The bill alleged, substantially, that certain members of said First Ecclesiastical Society brought their petition to the general assembly of this state in May, 1853, praying that said society and the lands, and other property belonging thereto, should be divided, and a new ecclesiastical society formed of the portion of said society, so to be divided and set off, and that a portion of said lands and other property so belonging to said First Society should be set off and appropriated to said new society. That said general assembly upon full hearing of the parties, found the facts averred in said petition to be true, granted the prayer of said petition and passed the following resolution.
    “ Upon the petition of Noah Strickland and other members of the First Ecclesiastical Society of Portland, praying for a division of said society, and of the lands and property thereto belonging, for the reasons in said petition set forth; said petition was duly served and returned, and the parties, petitioners and respondents appeared and were fully heard, and upon such hearing this assembly do find :
    “ That the said First Ecclesiastical Society, of Portland, is an ancient local society, being formerly known as the First Ecclesiastical Society of Chatham, and its limits are nearly coextensive with those of the present town of Portland.
    “ That the petitioners are members of said society, and mostly reside in the eastern section thereof.
    “ That the said society are the owners of a valuable interest in the old burying-ground, so called, situate near and upon the stone quarries in said Portland, which interest said society has owned ever since its organization, which was about one hundred and fifty years since, and the petitioners, in common with other members of said society, have from time to time paid their proportion of all expenses connected with the care and preservation thereof, including heavy expenses of litigation in protecting the right of said society thereto.
    “ That said society are also the owners of a fund for the support of religious worship within the limits of said society, the amount of the same exceeding the sum of eight thousand dollars, well invested and productive.
    “ That said society are also the owners of a piece of land containing about two acres, situate in Pacouset meadows (so called) in said Portland, and formerly owned by Ezra Bevins, now deceased.
    “ That said funds accrued mainly from subscriptions and devises, more than one-half of which'were given by persons then residing in the eastern section of said society.
    “ That for many years prior to 1850, there was but one Congregational church edifice within the limits of said society; that the same was used by the members of said society for all the ordinary purposes of a church edifice, and was situate about half a mile east of the Main street in said Portland.

      “ That the above mentioned site of said church was very far west of the geographical centre, and also of the centre of population in said society.
    “ That as long ago as the year 1843, the old church edifice had become so much dilapidated that it became desirable, and the society were of that opinion, that a new church edifice should be erected, but it was soon found that a disagreement existed as to the site.
    “ The members of the society living east of the old church, for the sake of harmony, and as the then existing site had been the location of the church for many years, were willing that a new church should be erected there, yet a minority consisting of members living westerly of said site, and principally residing on the street, so called, would not agree to said location for said new buildings, and would consent to no location except upon said street, which is upon the western extremity of said society.
    “ This assembly further find that after several years of controversy, in the year 1850, two new Congregational churches were erected in said society, one on the street as above described, the other about one mile easterly from the street, and about half a mile easterly from the site of the old church.
    “ The old church about the same time was tom down, and the lot on which the same stood was sold.
    “ The new church on the street was built under a pretended vote of the society, but the assembly do not find whether the same was or was not a legal vote.
    “ The new church on said eastern site was built by the petitioners, with some aid from other persons residing within-the limits of said society: a church has been organized there, and public worship has been maintained there regularly, ever since the erection of said building, according to the Congregational form, and at the expense of the petitioners and others there worshipping.
    “ This assembly further find that the eastern church above named is nearer the territorial centre and the centre of population of said society, either than the church on the street or than the site of the old church.

      “ That the number of church members at the east church is about one hundred, and is greater than the number at the west church. That the number of families now regularly attending at the eastern church, is about eighty-six, and is greater than the number regularly attending at the western church.
    “ The grand levy of those regularly attending at each of said churches, is about equal.
    “ That the said eastern church is the only house of public worship in use' in that section of the society, while in the western section there are several other churches of different denominations, where public worship is regularly attended. That a large proportion of the population of the western portion of the society is attached to other ecclesiastical societies than the Congregational, while, in the eastern portion, most of the people attend the Congregational church. That, with a division of the fund, the institutions of the Gospel could, and would be liberally and permanently supported in each of said churches, and with more advantage to the said society and to the community at large, than if confined to but one of said churches. That the existing state of feeling, between the different portions of said society, is such that their future union is impracticable.
    “ That the funds and property of said society were originally given and received, for the benefit of the Congregational denomination within the said territorial limits of said society; and that in the event of a division of said society, the said funds and property will be more effectually continued to the uses for which the same were given, according to the true intent and meaning of the donors, by a division thereof, than if the whole were suffered to remain in the hands of a part only of said original society.
    “ That the best interests of said society, and of the Congregational denomination within said society, require a division of said society and said fund, and the division of each as made by this resolve is just and equitable.
    “ Resolved, That the present First Ecclesiastical Society in Portland be, and the same hereby is divided into two societies as follows.
    “ All the members of said ecclesiastical society, residing in that portion thereof, bounded northerly by the town of Glastenbury, east by the town of Chatham, south by Connecticut river, and west by school districts, numbers one, two and five, in said town of Portland, including such portions of district number one, as are situated east of the small stream known as Crooked brook, shall be and remain one distinct ecclesiastical society, by the name of the Second Ecclesiastical Society of Portland, with the local limits above described. And all the members of said present First Ecclesiastical Society, residing in that portion thereof situate westerly of the part above described, shall be and remain a distinct ecclesiastical society, by the name of the First Ecclesiastical Society of Portland, with the local limits last above described: each of said societies thus constituted, shall be and are hereby vested with all the powers and immunities which other ecclesiastical societies do and may possess and enjoy.

      “ The officers of said first society, as heretofore existing, shall continue to be officers, for the current year, of said first society as constituted by this resolution.

      “ The members of said second society are hereby empowered and directed to meet, at some convenient time and place within the limits of said society, to choose officers for the current year, pursuant to a warning to be given under the hands of Enoch Sage and Job Payne, or either of them, to be posted in two public places within said society, at least five days previous to such meeting.
    “ Each of said societies as hereby constituted, shall be entitled to one undivided half of the following described property, now belonging to said first society, as heretofore existing, viz.

    The interest of said first society, as heretofore existing, in the old burying-ground, situate in or near the quarry in said Portland.
    “ The piece of land, herein before described, situate in Pacouset meadow in said Portland.
    “ The fund of said society, amounting to over the sum of eight thousand dollars, and consisting, as is supposed, princicipally or entirely of promissory notes, mortgages and bank stock. One undivided half of said property as aforesaid is. hereby declared to be, and is vested, in each of said societies as constituted by this resolution, and said first society is hereby required, upon demand from said second society, to execute to said second society, in due form of law, proper and legal transfers and conveyances of the -interest of said second society, as vested in said second society, by the terms of this resolve.
    “ The Hon. John Stewart, of Chatham, is hereby appointed a committee, with full power to repair to said Portland and make an equal and just division in severalty, between said first and second societies, of the personal property constituting said fund as herein before described, he first giving notice to the committees of said societies, or to three of the principal inhabitants of each, of the time and place of his performing the duties of his said appointment, and the person or persons having the possession or control of the securities, papers, and evidences of debt relating to said fund, shall upon demand, exhibit 'the same to said Stewart, and a written division of said property as aforesaid, when made under the hands of said Stewart, and delivered to the clerk, committee, or any one principal inhabitant of each of said,, societies, shall be final and binding in the premises, and a right in severalty to their respective proportions of said personal property, shall thereupon vest in each of said societies, pursuant to said written division of said Stewart, and said first society shall thereupon, on demand, deliver and transfer to said second society the property, stocks, securities or evidences of debt so vested in said second society, in severalty as aforesaid.
    “ The said land in Pacouset meadow, and all the property connected with said fund, and hereby divided, shall forever be appropriated by each society, within their respective limits, for the purposes for which the same were originally given and granted.
    “ The said church on Portland street, and all the other property of said First Ecclesiastical Society, as heretofore existing and not herein divided, shall be and remain the property of said First Ecclesiastical Society, as hereby constituted, and the debts due from said First Ecclesiastical Society, as heretofore existing, shall be and remain the sole and proper debt of said First Ecclesiastical Society, as hereby constituted, said debt having accrued by reason of the building of said church.”
    The bill then alleged that a large portion of the members of said first society, residing within the limits assigned to said second society, met pursuant to a warning which had been previously given, and chose a society committee and other customary officers, according to the terms of said resolution, and that the plaintiffs became, and ever since had continued to be, duly constituted and organized according to law.
    That they thus became, and had ever since been justly entitled to one undivided half of the property described in said resolution; but said first society neglected and refused to make or execute any transfer or conveyances of the same, and retained the whole in their hands, and appropriated the same to their own use.
    The bill then prayed for a decree, under some suitable penalty, that said first society within such time, as said court might limit, should execute and deliver to the plaintiffs, legal and proper transfers, and conveyances of the interest of the plaintiffs, as vested in them, in and to said property by the terms of said resolution. And that said first society and their committee, and treasurer, of other officer or agent, having possession or control of said securities, papers, evidences, &c., should exhibit to said Stewart the securities, papers, and evidences of debt, relating to said fund, upon notice and demand, according to the tenor of said resolution. And that said first society, when the said Stewart should have made a written division of said property as aforesaid, under his hand, and delivered the same to the clerk, committee, or one of the principal inhabitants of each of said societies, should, thereupon, on demand, deliver and transfer to the plaintiffs, the property, stocks, securities or evidences of debt, so vested in them in severalty, with their share of the dividends, profits or interest accruing from the same.
    The defendants filed-an answer to the bill, averring substantially that they are an ancient local society, constituted in the year 1714, by the general assembly, comprehending within their local limits, the whole of the territory now claimed by the plaintiffs; that some of the plaintiffs upon, whose application the resolution of the general assembly set forth in the bill of the plaintiffs was passed, were at the time of the passing thereof, members of said first society, and resided in the eastern section thereof; that the right of the defendants to the burying-ground mentioned in said resolution, is derived from the grant, made by the inhabitants of the town of Middletown at a town meeting, held January 13th, 1712, to the defendants for a burying-place, and from the possession and continued occupation of the premises by the defendants, from the time of their incorporation in pursuance of said grant, and for the purpose aforesaid ; and that the defendants have never prohibited the plaintiffs, or any other person or persons, from using the same as a place of burial for the dead, for which use the same was granted to the defendants, and dedicated as aforesaid ; that the property, belonging to the defendants, (exclusive of the said burying-ground,) and of which the plaintiffs claimed one-half, by virtue of said resolution of the general assembly,was given to the defendants partly by Ezra Bevins, deceased, by his last will and testament; who devised to said society a portion of said real estate, for the support of the gospel ministry in said society, forever, and directed, “ That the avails and rents of ' said land and tenants be applied only for the support of the gospel ministry in said first society, by abating the rates or annual proportion of the stipulated salary, of such persons, who, in the judgment of the society’s committee, from time to time, are the most indigent, or stand in most need of assistance and relief;” partly by Jonathan Brown, who gave the same by his last will and testament, to said society in trust, with the annual rents, profits or interest of the same without diminishing the principal, to help to maintain and support a gospel ministry in said society; partly by vote of the town of Middletown, and partly by a subscription; that the funds and property of the defendants, whereof the plaintiffs claim one-half, as aforesaid, accrued wholly from the said grants, devises, bequests and subscriptions; that there never was but one Congregational church edifice, within the limits of said first society, until the year 1850, when it became necessary, in consequence of the decay of the old church, to take the same down and to erect a new one, and by a legal vote of the said first society, the site of such new church was fixed on the street in said Portland, and the same was built on the said street accordingly, and all the votes and proceedings in selecting such site, and building said new church, were in conformity to the law in such cases made and provided; that, afterwards, a íhinority of said society, being displeased with said site, although the same was much nearer to the centre of the said first society than the old church, proceeded to erect and did erect, on their private account, a place of worship in the eastern part of said first society, and thereupon presented to the general assembly, at the session thereof in May, A. D. 1853, the petition, on which the said resolution of the general assembly is professedly founded; that, after said petition had been served on the defendants, they held a special meeting, and passed votes to defend against said petition, and, in pursuance of such votes, the defendants, by their agents, appeared before the said assembly, and 'made defence against said petition, and remonstrated against the passing of said resolution; that sundry members of said first society, living within the limits assigned by said resolution to the plaintiffs, also appeared before said assembly, and remonstrated against the passing of the said resolution, and, in opposition to their remonstrance and contrary to law, they were, by the general terms of said resolution, classed with, and associated to the plaintiffs, as a religious society, by local limits, but have not voluntarily associated themselves with the plaintiffs, or separated themselves from the defendants. The defendants admitted that they constantly refused to make partition of of- said property, and to transfer one-half thereof to the plaintiffs, as required by the said resolution of the general assembly, and as prayed for by the plaintiffs; and insisted, that they are not, by law, bound to make such partition or transfer, or to consent thereto; that such partition and transfer would be a violation of the vested rights of the defendants, and of the members of their society remonstrating as aforesaid, and utterly inconsistent with the declared will and intention of the donors of said property; that the defendants are trustees of the said property for a specific object, and have no power to divide or alienate their trust; and that the said resolution is not law. The defendants averred that all the facts pretended to be found by the said general assembly, in and by said resolution, and all and singular the allegations of said bill of the plaintiffs, except those which related to the calling of the meeting, and organization of the plaintiffs as a society, and to the demand and refusal to make partition of the property aforesaid, and the inability of said Stewart to make such division, and of said plaintiffs to obtain any part of said property or any knowledge thereof, and except those which are expressly admitted to be true, were not true, and if true, were insufficient in the law.
    To this answer the plaintiffs demurred generally, and the questions thereon arising were reserved for the advice of this court.

      Perkins and McCwrdy, in support of the demurrer, contended, .
    1. That the defendants are a local, ecclesiastical society, and the constitution did not destroy, but confirm local societies. This appears, in the first place, from the constitution of the state. Secondly, from the decisions of this court. Atwater v. Woodbridge, 6 Conn. R., 223. McCloud v. Selby, 10 Conn. R., 390. Beardsley v. Smith, 16 Conn. R., 376. Jewett v. Thames Bank, 16 Conn. R., 511. 7 Greenl. Ev., 411. Thirdly, from the acts of the legislature. Rev. Stat., p. 167, 171, 297. Private Laws, 530, edition of 1837. Fourthly, from the general practical understanding of similar acts of the legislature. Fifthly, it is conceded by the pleadings.

      2. That local societies are subject to division, like towns, counties, &c. 14 Conn. R., 463.
    3. If the first society cannot now be called in a strict sense, “ local,” yet it was incorporated as such, and has been so treated and considered, and a division is justified by the immemorial usage of this state. Hanchett v. King, 4 Day, 360. It is too late to question the constitutionality of the resolution. 13 Vt. R., 402. 2 Gill, 487.
    4. The division of the funds is a necessary incident to the power claimed for the legislature and justified by the same usage. 4 Day, 360. Dillingham v. Snow, 3 Mass., 276. Private Laws, ed. of 1837, 538. Tilden v. Metcalf, 2 Day, 259.

      .Baldwin and Barnes, after remarking that the claim of the plaintiffs is founded entirely on the resolution of the general assembly, incorporating them into a new society, and directing a division of the property; and whether such act is to be regarded as a dissolution of the old society as a corporation, and the creation of two new societies, each comprising a portion of the local limits of the old, or as a special incorporation of the new society, leaving the old corporation in existence, it was valid so far as it incorporates those who have voluntarily become, or may hereafter become members of the new society; and, that, so far as it attempts to create a new located society, including members of the old, living within the local limits assigned to the new, it is an act of usurpation, not only unauthorized by the constitution, but expressly forbidden by it; contended,
    1. That, although the defendants were originally, like all the societies of the then established order in Connecticut, a public corporation to a certain extent, yet, in regard to their funds, they were invested with the rights of a private corporation. The power of such societies to receive funds is a grant from the state, accepted, and acted upon both by the society and the donors, who, on the faith of such grant, and the protection it assured, made their gifts and bequests.
    2. That the constitution, Art. X., provides that the rights and duties of all corporations, then existing, shall remain as if it had not been adopted, with the exception of such regulations and restrictions as are contained therein. By Art. VIL, it is provided, that each and every society, or denomination of Christians in this state, shall have and enjoy the same, and equal powers, and rights, and privileges, and societies, then in existence, became, whether originally located or not, mere private corporations, embracing as voluntary members all whom they then included in their associations, with perfect liberty to any members to withdraw, and form new associations at pleasure, leaving the society in the full possession of its corporate existence, or corporate rights; and, therefore, it is no longer in the power of the legislature, “by law to compel any person to join or support, nor be classed with, nor associated to, any congregation, church or religious association.”
    3. That, in pursuance of the guaranty of existing rights, so far as they were consistent with the constitution, provision was made by the law in relation to ecclesiastical societies, immediately after the adoption of the constitution, “ that all societies and congregations, which have been incorporated in local limits or otherwise, or founded by voluntary association, shall hold, possess and enjoy all real and personal property, all public buildings and funds, belonging to such societies or congregations, appropriated to the use and support of public worship, and shall have power to take care of, manage and apply the same to such purpose, and shall be capable to receive grants, &c., and by voluntary agreement, to establish funds for the same object.” Stat., 167.
    These societies, having become mere private corporations, although conferring a public benefit, which is deemed a sufficient consideration for the grant of corporate privileges, the power of the legislature over them, as corporations, for governmental institutions, ceased with the adoption of the constitution. 6 Cranch, 88. 9 Cranch, 43. 4 Wheaton, 637.
    4. That, in 1853, said first society being a corporation composed only of members voluntarily associated as a body politic, and in that capacity holding property in trust, for the support of public worship, the general assembly had no authority to undertake to dissolve, and reconstruct it. It had committed no act, by which its private rights were forfeited, and no steps had been taken to have it judicially ascertained if it had; without which it is not subject to disfranchisement. 2 Kent Com., 306. 4 Wheat., 310. Fletcher v. Peck, 6 Cranch, 88. Terrett v. Taylor, 9 Cranch, 43. 3 Peters’ Cond. R., 262. The legislature had no power to form a new society with local limits, to include members who have not voluntarily associated, nor thereby to separate from the old society any, who might choose to remain in it.
    5. That whatever changes may be made by the voluntary withdrawal of members from the old society, the corporation itself remains in the enjoyment of all its rights, and all its property, by the long established law of this state, as fully as it originally possessed them. 4 Day, 367. 2 Root, 433. 3 Conn. R., 35.
    6. That the legislature have no power to create a new religious society, with local limits, in the sense in which that term was applied to the old organization, before the adoption of the constitution. Jewett v. Thames Bank, 16 Conn. R., 516. Nor have they power to divide the funds of the defendants between the old corporation and any new society they might create. 9 Cranch, 43. 3 Pet. Cond. Rep., 260. 4 Wheat., 318.
    7. That the society itself could not, as the superior court have held, Langdon v. Plymouth Soc., 12 Conn. R., 113, give back their funds to the, donor. They were trust funds, confided to their management, and not to the control of the legislature, or of any new association they might incorporate.
   Storrs, J.

The defendants, the First Ecclesiastical Society of Portland, were incorporated by the general assembly, in the year 1714, as a local ecclesiastical society, with territorial limits, embracing the inhabitants within that part of the then town of Middletown, which was on the east side of Connecticut river, and acquired, by grants, devises, and donations, a fund for the support of religious worship, within said society, consisting of real and personal estate. In the year 1853, on the application of certain members of said society, residing in the eastern portion thereof, but against the remonstrance of said society, and of several members thereof who resided in said eastern portion thereof, on general reasons of convenience and expediency, and without any claim, or finding, that said fund had been misapplied or otherwise forfeited by said society, the legislature passed a resolution by which they divided said society, and constituted the members living in said eastern portion thereof a new local ecclesiastical society, by the name of the Second Ecclesiastical Society of Portland, with territorial limits embracing that portion, and declared that said new society should be entitled to, and by said resolution vested in it, one undivided half of said fund belonging to the old society, and made provision for the division of said fund between the two societies accordingly. The defendants refused to comply with said provision or to relinquish any part of said fund, and the object of the present bill is to compel such division between them and the plaintiffs, the said new society.

The defendants claim that, whatever was the effect of that resolution as to those members of the old society on whose application it was passed, it is unconstitutional in regard to that society as a corporation, and all the members thereof, other than those applicants, on the ground that it is a violation of the seventh article of our constitution, prohibiting any person from being compelled by law to join or support, or be classed with, or associated to, any congrega* tion, church or religious association, and also of the act of 1702, “ For securing estates given to charitable uses,” and the acts reenacting and confirming it, (with only circumstantial variations of phraseology, in each subsequent revision of our statutes, whereby its provisions have been continued in force to the present time,) by which it was provided that all lands, tenements, and other estates, that had been, or should be, given or granted, by the general assembly, or any town, or particular person, for the maintenance of the ministry of the gospel, or schools of learning, or for the relief of the poor, or for any other public or charitable use, should forever remain and be continued to the use to which they had been, or should be given or granted, according to the true intent and meaning of the grantors, and to no other use whatever. R. Stat. 1821, tit. 56, ch. 1, sect. 3. R. Stat. 1835, tit. 58, ch. 1, sect. 3. R. Stat. 1838, tit. 57, ch. 1, sect. 3. R. Stat. 1849, tit. 29, ch. 1, sect. 3.

The defendants also claim that as to the applicants for the passage of that resolution, its legal effect was not to incorporate them as a local ecclesiastical society with territorial limits, or to invest them with the attributes or qualities of such a society, but only, at the utmost, to incorporate them as a new, voluntary religious association of individuals, with the rights only of such a voluntary society, and that as such, upon being thereby so voluntarily disconnected from the old society, to which they previously belonged, they would become mere seceders therefrom, and would therefore cease to retain, and could not be legally invested with, any right to control, enjoy, or participate in any of its funds.

If the effect of that resolution was to constitute those applicants for it a new voluntary society, (a point which we deem it unnecessary to decide,) it is clear that, by virtue of it, none but those applicants would belong to that society, since, as to the other members of the old society, their consent, without which they could not be incorporated with such voluntary society, would be wanting; and therefore they would continue to be members of the old society, which would be unaffected by that resolution, excepting that the number of its members would be diminished by the withdrawal of those thus thereby incorporated into the new society. The existence or identity of the old society is not destroyed by the diminution of the number of its members; and with respect to those who voluntarily withdraw from it, it is well settled in this state, that by such secession they lose all right to hold, appropriate, participate in, or control any of its funds which it had received for the support of the ministry. Nor, if they should form a new voluntary society, would it, in our opinion, be competent for the legislature to vest in them, or appropriate to their use, any part of such funds. An attempt by the legislature to do this would be a diversion of the fund from the objects and purposes for which it was given, and would therefore be unauthorized as being in violation, of the act of 1702, before mentioned, and the acts by which its provisions have been reenacted, which have always been held by our courts to constitute a compact between the state and the donors of property to ecclesiastical societies for the maintenance of the gospel ministry, inviolable even by the state itself. And we are not informed of any instance, in which the legislature have ever undertaken to transfer any portion of the funds of a local society, given to it for that purpose, to a voluntary ecclesiastical society, formed of a part of its members, and which would be merely a private corporation.

We do not understand the plaintiffs as controverting any of these principles, or as insisting that, if they are to be considered as a voluntary society of seceders from the old society, they would have a right, under the resolution in question, to participate in any of the funds of the latter; but they claim that the members of their society, having been originally an integral part of the old society, were by that resolution, or must be deemed to have been, involuntarily separated from the latter society, and constituted another local ecclesiastical society, embracing within its limits a portion of the territory, originally comprehended within the limits of the old society, and that thus the legislature, by that resolution, only divided, for purposes of convenience and expediency, the old society; that they, the plaintiffs, having been so detached from the latter, were, on such division, equitably entitled to their equal proportion of its funds, and that it was, therefore, competent and proper for the legislature, not only so to divide the old society, but also, on such division, to divide its funds between that society, and the" plaintiffs’ new society, which was thus formed from it. And, in support of the legality of the resolution in question, in purporting to accomplish these purposes, they rely on the admitted power of the legislature, previous to the adoption of our present state constitution, to create local or territorial ecclesiastical societies, and to divide those already existing, at its pleasure, and, ori the division of such a society, to divide its funds between it, and the new society, or societies formed from it, and the constant exercise of such power, from the earliest settlement of the state down to that period, and its exercise also in several instances thereafter. And they insist that there is nothing in that constitution, which varies or impairs the former power of the legislature, in these respects.

There is no doubt that, from the earliest period of our government until the adoption of our present constitution, the general assembly constantly exercised the power of establishing and dividing local ecclesiastical societies, and on such division, of dividing the funds of the societies so divided, as claimed by the plaintiffs. During that period, provision for the support and maintenance of religious instruction and worship was considered to be a duty resting on the state, as much as the promotion of general education, the support of the poor, or the maintenance of roads and bridges; and that provision was made and carried into effect through the instrumentality of local ecclesiastical societies, established by the state, through its legislative power, as those other objects respectively were accomplished through the agency of school societies, and districts, and of towns. Each of these societies, or communities, were considered to be, and were in fact, municipal, public, political corporations. They were governmental instrumentalities, composed of individuals, as component parts of the great community, for the promotion of the general welfare of that community, and in which no person had an interest, or was to derive a benefit, of a character particular or individual to himself merely, but only in connexion with, and as he participated in, the welfare of the community generally; and not associations of individuals as such, created for their mere personal or private advantage, like ordinary private corporations ; and they were established by the general assembly for the purpose of accomplishing, within their respective limits, the objects for which they were instituted, more conveniently than they eould be accomplished, directly, by the general assembly itself. The promotion of those objects was a public duty, enjoined by law on the members of such corporations, which consisted of all the inhabitants residing within their limits, with the exception of certain individuals in ecclesiastical societies, who were, by particular provisions, excused from taxation for the religious objects of the society. And there was no legal objection to the exercise of this power by the general assembly, in which body was vested the whole legislative power of the state, and on which no restraint, in relation to either of these subjects, had been imposed by the people. To pass by those other quasi corporations, as those, and other similar territorial, or local municipal societies, are termed, it is obvious that, under that system, the maintenance and regulation of religious instruction and worship was considered to be a matter appertaining to the government of the state, and that, in the regulation of it, through the agency of these local societies, of one of which every part of the state formed a part, and every inhabitant of which was liable to be taxed for the object for which they were instituted, every person was involuntarily attached to, and made a member of one of those societies, and therefore might be compelled to contribute to that object. In these two respects, the present constitution made a radical change in our ecclesiastical polity. The first section of the seventh article of that instrument, after declaring that it is “the duty of all men to worship the Supreme Being, the great creator and preserver of the universe, and their right to render that worship, in the mode most consistent with the dictates of their consciences,” prescribes that “no person shall, by law, be compelled to join, or support, nor be classed with, or associated to, any congregation, church, or religious association.” It further declares that every person then belonging to such congregation, church, or religious association, shall remain a member thereof, until he shall have separated himself therefrom, in the manner thereinafter provided; and the second section of the same article provides the mode, by which any person may separate himself from the society, or denomination of Christians, to which he may belong. And the third section of the tenth article declares, that the rights and duties of all corporations shall remain, as if that constitution had not been adopted, with the exception of such regulations and restrictions as are contained therein. The effect of these provisions is to leave it optional with every person, whether he will contribute for the maintenance of religion to any religious society, and if he chooses to contribute to any, to which he will so contribute. This results from the provision allowing any member of a religious society to secede therefrom, in connexion with that which prohibits any person from being compelled to join or support, or be classed with, or associated to, any religious society. The latter provision is very comprehensive, embracing those who belong to some such society, as well as those who do not; and prevents not only those who belong to no society from being compelled to join or support, or be classed with, or associated to, any religious society, but also those who belong to any such society, from being compelled to remain in that society, or to join or support, or be classed with, or associated to any other. It clearly applies to the members of the First Ecclesiastical Society of Portland, the defendants in this case, and they are entitled to the immunities which were intended to be secured by it. The question then arises, whether the resolution of 1853 attempts to compel the members of that society, or any of them, to join, or support, or be classed with, or associated to any other religious society. On this point, its terms are too explicit to admit of a doubt. It purports to separate from that society that portion of its members, who reside in a particular section of it, therein defined, and to constitute them a new and distinct local society. And this it attempts to do, not only without, but expressly against the consent of the old society, and of a considerable number of its members, who reside within the limits assigned to the new society. The effect of this-act, if valid, would be not only that those dissenting members would be compulsorily classed with, and associated to a religious society, to which they did not previously belong, but that they might also be compelled to contribute to the support of religious worship, and the building and repairing of houses for that purpose, in the society to which they would be thus attached, since the constitution provides that every society of Christians shall have power to tax its members for those objects. We are therefore of opinion that the resolution, as to those members of the old society, against whose consent the resolution was passed, whatever may be its operation as to those who assented to it, is an infringement of the rights secured to them by the constitution, and void. Hence it results that it was ineffectual, for the purpose of creating a new local society within any part of the territory embraced by the old one; that the limits of the latter remain unimpaired; and that those members of it, who did not assent to the resolution, continue to belong to it. With respect to those, on whose application it was passed, and who therefore must have assented to it, it is not necessary to determine its effect. If it constituted them a new voluntary society, which is the utmost that can be claimed from it, it is invalid, so far as it attempts to give to such society any part of the funds, or property of the old one, for the reasons before mentioned. If it had not even that effect, it left the old society, in all respects, in its former condition, and it consequently retains all its funds and property.

A few instances have been adduced by. the plaintiffs, in which the legislature, since the present constitution was adopted, have undertaken to divide local, ecclesiastical societies into two or more societies of the same character, and to apportion their funds among the societies into which they were so divided. Under what circumstances, or on what grounds, this was done in those cases, we have not the present means of ascertaining. There may.have been, and it is not improbable that there were, some peculiar circumstances attending them, which relieved them from any constitutional objection, or, if not, such objection may not have been raised. However this may be, we should not consider the action of that body to be justly entitled to any decisive influence, on a question like this, which arose very soon after the constitution went into operation, and when it was a matter of uncertainty, growing perhaps, in a measure out of the terms of that instrument, how far the former ecclesiastical polity of the state was intended to be affected by it, and when also legislation wo aid naturally, and inadvertently, receive, to some degree, a east from the character of the former system.

For these reasons, a majority of the court are of opinion that the bill should be dismissed, and so advise the superior court.

In this opinion Church, C. j., and Ellsworth, J., concurred.

Waite, J.

In the opinion, expressed by a majority of the court, in this case, I am unable to concur, and as the question is one of deep interest to the people of this state, I feel it my duty, briefly to assign the reasons for my dissent.

For, if all our ecclesiastical societies, originally formed, within local limits, and which, from the very commencement of our government, have ever been treated by our legislature, and all our courts of justice, as public corporations, liable to be altered and changed, at the pleasure of the general assembly, have become transformed into private corporations, and placed entirely beyond all legislative control, so that all statutes respecting them, not made with their assent, are unconstitutional and void, then has a great change been made in our government, and a restraint placed upon our legislature, such as, in my judgment, was never contemplated by the framers of the constitution.

The principle becomes the more important, for, if evils should result from such an exemption from all legislative interference, and we need not look beyond the facts found by the legislature, in the present case, to perceive that there may be such, there is no remedy for them, short of a change in our constitution.

The great object of the first settlers of the colony of Connecticut, as well as those who settled the other New England colonies, was the support of religion. Accordingly, those who settled the first towns, brought with them their ministers, and, says Trumbull, “the general court would not suffer a plantation to be made which Would not support an able, orthodox preacher.” History of Connecticut, vol. 1, p. 200.

Whenever a town was settled and organized, it became at once possessed of an ecclesiastical as well as civil capacity. The inhabitants, in legal meeting, had power, by a major vote, to call and settle a minister, provide for his support, and for such purposes to impose taxes. Stat., ed. 1769, p. 166.

The town continued to perform these duties, until a portion of the inhabitants, living within certain prescribed limits, were, by an act of the legislature, constituted a separate ecclesiastical society, when the residue of the inhabitants became another society, usually denominated the first society of the town. Sedgwick v. Pierce, 2 Root, 433. Hanchett v. King, 4 Day, 365. Merwin v. Camp, 3 Conn. R., 41.

“ To support and maintain religious instruction and worship,” says Church, J., “through the agency of these societies, was a public duty, enjoined by law; as much so, as to promote education,1'by means of common schools; or to support the poor, and maintain 'roads and bridges, through the agency of towns.” Jewett v. The Thames Bank, 16 Conn. R., 516.

The societies thus formed, and the towns in which there was but one ecclesiastical society, were afterwards constituted school societies, with power to make provision for the support of schools, and, for that purpose, to divide themselves into school districts. ■

These towns, ecclesiastical societies, school societies and school districts, were considered to be, and in fact were, public municipal corporations, or rather quasi corporations, created for the performance of certain public duties, imposed upon them by law, and subject to such alterations and changes as the legislature might think proper to make, for the better performance of those duties. And the records of our legislature shew that such alterations and changes have, from time to time, been made, from the first settlement of the colony, to the present time, without any question as to their validity, until the present case.

The members of all these located corporations, by long usage, have ever been considered liable for the debts of the corporation, and, in this respect, no difference has hitherto been made between located ecclesiastical societies and other local corporations.

Thus, says Church, J., “ the courts of this state,’ from a time beyond the memory of any living lawyer, have sanctioned the usage, as one of common law obligation, and it has been applied, not to towns only, but also, by [legal analogy, to territorial ecclesiastical societies and school districts. Beardsley v. Smith, 16 Conn. R., 37.

And again, “ecclesiastical located societies in this state have always been considered and treated as public corporations, as much so, as towns or school societies. All laws, therefore, creating, or establishing them, may be enacted, without any petition, or preliminary action on the part of any body.” Waterbury v. Platt, 12 Conn. R., 192.

The liability of the members of such ecclesiastical societies seems also to have been recognized by this court, in other cases. Atwater v. Woodbridge, 6 Conn. R., 227. McLeod v. Selby, 10 Conn. R., 395.

The same doctrine is recognized in the states of Massachusetts and Maine. Chase v. Merrimack Bank, 19 Pick., 568. Merchants’ Bank v. Cook, 4 Pick., 414. Adams v. Wiscasset Bank, 1 Greenl. R., 361. Fernald v. Lewis, 6 Greenl. R., 264.

In the former case, the court say, “ the question,” whether on an execution against a town or parish, the body or estate of any inhabitant may lawfully be taken to satisfy it, “ appears to have been settled in the affirmative, by a series of decisions, and ought no longer to be considered as an open question.” “ And there is clearly no distinction, in this respect, between the liability of an inhabitant of a town or an inhabitant of a parish.”

In the case of Jewett v. The Thames Bank, this court held that the members of an ecclesiastical society, formed by the voluntary association of individuals, without territorial limits, were not individually liable for the debts of such society. But the counsel, who contended for such exemption, were careful to place their case upon the ground, that the society was without local limits, and therefore, not a quasi corporation, and upon that ground, the decision was based. 16 Conn. R., 511.

But it is said that the control of ecclesiastical corporations, by the legislature, has been taken away by the constitution of this state. If so important and radical a change was contemplated by the framers of that instrument, it is very remarkable that no express provision to that effect should have been inserted.

So far from that being the case, the contrary, as I think, is clearly implied from the clause, which says that “ the rights and duties of all corporations shall remain as if this constitution had not been adopted,.with the exception of such regulations and restrictions as are contained in this constitution.” Art. X., sec. 3.

The design, as it seems to me, manifestly was, to leave all corporation's, then in existence, as they previously had been, with some slight qualifications. Those that were public, or quasi corporations, were to remain such, and those of a private character were to continue private corporations.

And this appears to be in accordance with the opinion of this court in the case of Atwater v. Woodbridge, decided a few years after the adoption of the constitution, 6 Conn. R., 223. It was said by the counsel, in that case, “ that the constitution had not destroyed the local limits of ecclesiastical societies,” a position which seems to have received the sanction of the court.

The reasoning of the former chief justice of this court, in giving his opinion, in a recent ease, may well be applied to the present. The Willimantic School Society v. The First School Society in Windham, 14 Conn. R., 469. There the legislature had divided a school society and its funds, and the defendants, as in this case, claiming that the legislature had no power to make such division, refused to pay over to the new society its share of the common funds.

But the court said, “ the legislature, upon the division of towns and school societies, have always exercised the power, so far as we are informed, of making an equitable arrangement, as to the common property, and the common burthens,” and unless the power is taken away, by the constitution, it must exist, as before. That instrument provides that the rights and duties of all corporations shall remain, as if the constitution had not been adopted, except as changed by that instrument itself. That it was not intended to take away the power always exercised by the legislature, of dividing the local communities, is apparent from the fact, that the division of towns is expressly recognized in the third section of the third article of the constitution, providing that such new towns shall] be entitled to only one representative. And if the power to divide towns is not taken away, we know not where the power to divide minor communities of a similar character is taken away. And if the right remains in the legislature, of taking away from such corporations a portion of their inhabitants, for whose use the funds were given, it would seem to follow that they must have a right to apportion those funds, in such manner, as to do equal justice to all concerned.”

These remarks were indeed made in reference to the division of a school society, but they are equally applicable to the present case, unless there be something in the constitution distinguishing it from the former. An ecclesiastical territorial society was as much a public municipal corporation, or, in the language of the court, a minor local community, as a school society, and both were originally embraced within the same limits.

Stress is laid upon that part of the constitution which provides that no person shall be compelled to join any religious association, and prescribes the mode in which a member may separate himself from the society to which he belongs. But these provisions do little more than carry out principles, which had previously been recognized by the legislature, in relation to religious toleration, and are not, at all, incompatible with the full exercise, in all other respects, of all the powers previously possessed by the legislature, in reference to religious corporations. Besides, the constitution was intended, not as a grant of power to the legislature, but as a limitation of the power previously possessed, and therefore, it retains all it ever had, except so far as it has been expressly taken away. Starr v. Pease, 8 Conn. R., 547.

Again, it is said that the locality of our ecclesiastical societies is destroyed, by the laws authorizing the admission of members, residing without their original territorial limits. But such admissions do not destroy the locality of the society. That will remain, as well as that of a corporation expressly located, by the terms of its charter.

It is also said that individuals have been made members of the new society against their wishes, and in violation of that clause in the constitution, providing that no person shall be compelled to join any religious community. But the legislature, in dividing the old society of Portland, intended no compulsion upon those made members of the new society. If any one of them was unwilling to become such member, he had but to manifest his dissent, in the simple mode prescribed in the constitution, and he became at once and forever absolved from all obligations to that society.

The legislature, in incorporating a railroad company, frequently declares in the charter that certain persons therein named and their associates, shall constitute a body corporate. Yet no one ever supposed that any one of those named, was compelled to become a member of the corporation, or that his refusal to act would affect the rights of the others, who were disposed to accept the grant of corporate powers.

Another circumstance strongly confirms the view here taken of this question. The legislature in repeated instances, since the adoption of the constitution, have exercised the same power over ecclesiastical territorial communities, which they previously possessed, without question or objection, until the present case arose. This practice for so long a period, now more than thirty years, with the entire acquiescence of the community, furnishes high evidence of the true construction of that instrument, and the general understanding of the community upon the subject.

Finally, it is said that the legislature had no power to divide the funds of the original society, or take from the defendants any portion of them.

But the case, last cited, shews very satisfactorily, that if the legislature had power to divide the society, they had power also, in conformity with immemorial usage in this state, to apportion the funds in such manner as to do equal justice to all concerned: this they have done and nothing more.

The division was made at the request of certain members of the society. The general assembly, upon due enquiry, found certain facts, among which are the following, appearing upon the face of the bill. That the society had two houses for public worship; that the then existing state of feeling, between the different portions of the society, was such that their future union was impracticable; that the funds of the society were originally given for the benefit of the Congregational denomination, within the territorial limits of the society; that in the event of a division of the society, those funds would be more effectually continued for the uses, for which they were originally given, by a division of them, than by suffering the whole to remain in the hands of a part of the society; and that the best interests of the society required that a division of the society and its funds should be made.

The general assembly accordingly passed a resolution, making the division, which they found and declared to be just and equitable. If, under those circumstances, the general assembly had no power to interfere, in the manner they did, I can only say that an unfortunate restraint has been placed upon the exercise of their legislative powers, and a wide departure made from the immemorial usages of our ancestors.

For these reasons, I am satisfied that the plaintiffs’ bill is sufficient, and that the demurrer ought to be overruled.

In this opinion Hinman, J., concurred.

Bill dismissed.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    Hewitt vs. Wheeler and another.
    Where, on the trial of a scire-facias, in a process of foreign attachment, it appeared that the defendants were described in the original declaration, as the acting and contracting committee for building a Congregational meetinghouse, and that it was alleged in such scire-facias, that when copies of the original writ were left with them in service, they were, as such committee, indebted to the original plaintiff; it was held, that the addition to the names of the defendants, was surplusage, and was not a sufficient reason for setting aside a verdict in such scire-facias, against the defendants as individuals.
    Where such scire-facias alleged that the execution, in the original proceedings, was put into the hands of a proper officer, who, “ having served the same, made his return thereof, with his endorsement thereon, that he had made demand of the debtor named in said execution, of the amount mentioned therein; ” it was held, that under such allegation, proof of the alleged demand was admissible, and that it was a sufficient averment of service, especially after verdict.
    Where on the trial of such scire-facias the plaintiff, who claimed an indebtedness of the defendants under a contract signed by them, as aforesaid, obtained a verdict, which was set aside on the ground that such contract showed an indebtedness of said society, and not of the defendants; and on a new trial of the cause, the plaintiff claimed an indebtedness of the defendants, independently of such contract, and for which they were personally liable to him, in support of which claim he introduced, in evidence, certain supposed admissions of the defendants of their liability to the original debtor, but which admissions were not inconsistent with the claim that they were such agents, and which they contended were made in that capacity, and it was not satisfactorily proved that such society was indebted to the original defendant, and thereupon a verdict was again rendered in favor of the plaintiff; it was held, that such verdict ought to be set aside as being against the evidence.
    This cause, a new trial having been granted therein, (see 22 Conn. R., 557,) came on a second time for trial before the jury, at the term of the superior court for New London county, holden in September, 1853.
    The plaintiff’s declaration was as follows:

      “ Whereas Mary Hewitt, of North Stonington, in New London county, brought her action of book debt to the county court, held at New London, within and for the county of New London, on the second Tuesday of June, A. D. 1848, against Joseph Kinney, of said town and county, an absent and absconding debtor, by writ bearing date the 16th day of May, 1848, demanding the sum of three hundred dollars, in which writ the said Joseph Kinney was described as an absent and absconding debtor, and which was duly served on said Kinney, and also a true and attested copy left with Russel Wheeler and Dudley R. Wheeler, both of said North Stonington, with the officer’s doings endorsed thereon, more than fourteen days before the sitting of said court, said Russel Wheeler and Dudley R. Wheeler so being described in said writ, as acting and contracting committee for building a Congregational meeting-house-, for the Congregational society in the village of Milltown, in North Stonington, allowing debtors, agents, factors and trustees of the said Joseph Kinney, which said writ having been duly served and returned, and by legal removes said action came to the said county court, held at Norwich, within and for the county of New London, on the second Tuesday of November, A. D. 1848, when and where the plaintiff recovered judgment against the said Joseph Kinney, for the sum of two hundred and twenty-five dollars fifty-four cents debt, and the sum of twenty-seven dollars and seventy-one cents, cost of suit, and thereupon took out execution in due form of law, for the sums aforesaid with seventeen cents more for said execution, which execution was dated the 5th day of January, A. D. 1849, and signed by James Stedman, clerk of said court, and directed to the sheriff of New London county, his deputy, or either of the constables of the town of North Stonington, in said county, to serve and return, which said execution was afterwards, to' wit, on the 12th day of February, A. D. 1849, put into the hands of Lynde L. Huntington, who then was, for a long time before had been, and still is, a lawful deputy to the sheriff of said New London county, who, having duly served the same, on the 5th day of March, 1849, made his return thereof with his endorsement thereon, that he had made demand of the said debtor, Joseph Kinney, the said debtor named in said execution, of the amount of the said "execution, and of his fees thereon, and that he refused to pay the same, and that he also had made diligent search for goods and estate of the within named and aforesaid defendant, Joseph Kinney, whereof to satisfy the said, execution, but could find none, and that on the 13th day of February, A. D. 1849, he made demand of the said Russel Wheeler and Dudley R. Wheeler, the present defendants, as committee for building a Congregational meeting-house for the society aforesaid,in North Stonington, and also as individuals, agents, factors, trustees, attorneys and debtors of the said Joseph Kinney, the debtor in said execution, of goods and effects of the said debtor, Joseph Kinney, in their hands, whereon to levy to satisfy said execution and the fees thereon, and also of the moneys and debt, or debts, due from them to the said Joseph Kinney, but they, and each of them, neglected and refused to expose the goods and effects of said debtor in their hands, and refused to pay the moneys or debts due from them to said debtor, Joseph Kinney, to apply to the payment of said execution, with his the said officer’s fees thereon, amounting to the sum of three dollars and ninety-two cents, as by the files and records of said court and said execution, with said endorsement thereon, ready in court to be shown, will more fully and at large appear. Now the plaintiff says that the said Russel Wheeler and Dudley R. Wheeler, as committee, as aforesaid, at the time the copy of said writ against said Joseph Kinney was left with them in service, were indebted to the said Joseph Kinney, in a greater sum than the amount of said judgment and execution and said officer’s fees thereon; yet the said defendants would not expose nor discover any estate of the said Joseph Kinney, whereon said execution might be levied, nor pay the same, nor any part thereof, whereby the defendants have become liable in law to pay the same out of their own estate, as their own proper debt, and the plaintiff says that said judgment has never been reversed, nor has the same, nor have the officer’s fees, ever been paid, but are now due.

      “ These are, therefore, by authority of the state of Connecticut, to require you* to make the said Russel Wheeler and Dudley R. Wheeler, to know, that they appear before the county court next to be held at New London, within and for the county of New London, on the second Tuesday of June, A. D. 1849, then and there to show reason if any they have, why judgment should not be had and rendered in favor of the plaintiff, against the said Russel Wheeler and Dudley R. Wheeler, for the amount of said judgment, execution and officer’s fees, and the costs of this suit, as their own proper debt to be paid out of their estate, and execution issued against them accordingly,” &c.
    The other material facts sufficiently appear from the report of the former trial of the case, above referred to.
    On the present trial, the plaintiff read in evidence the proceedings in the original suit, in her favor, against Kinney, the defendant therein.
    To prove that the defendants were indebted to said Kinney, at the time when the copy in said original suit was left in service, they introduced the following evidence.
    1. Oliver Hewitt testified as follows: “ In May, 1848, at the instance of the plaintiff’s son, I enquired of Russel Wheeler, one of the defendants, whether he and Dudley R. Wheeler, the other defendant, had ever paid over the money to Kinney. He replied that they had not, and should not pay him, until he gave security to finish the house, or assigned over the policy of insurance. He did not say how much they had, but said they had never paid him anything. This conversation I communicated to the plaintiff’s son, and her suit was commenced. The defendants had always told me that they had refused to pay over the money, until Kinney had given security.
    “ Afterwards, when the cause was on trial in. the county court, said Russel, when asked by the plaintiff’s counsel, whether they, the defendants, had funds in their hands, said they had, and always intended to keep them, until security was given.
    “ In January, 1852, when the plaintiff was about to take the deposition of Gideon P. Grant, the said Russel was present, and- requested that the taking of the deposition might be postponed, that the defendants might have an opportunity to procure the assistance of counsel; that while there, Denison Hewitt, in the presence of several persons, asked the said Russel, if he paid the plaintiff’s debt, if it would come out of his hands, and he replied, ‘ No.’ Denison then said,£ You have the money, and it is immaterial to whom you pay it,’ and the said Russel replied, ‘ Yes.’

      “ Afterwards, said Dudley, in a conversation with me at his store, said, that after the suit against Kinney was commenced, he went to the plaintiff to pay her the debt, and spoke to her about it. She said the suit could be settled if he would pay her the amount due to her. He replied that he knew that before. And he further stated that he did not settle with her, because she would not make the deduction that others did, who copied at the same time. This was previous to the former trial in the superior court.
    “ Prior to the commencement of the original suit, the defendants always said to me that they were owing Kinney, and should not pay him, until he gave security, or assigned the policy, and requested me to sign the contract with them.” Upon his cross examination he said, “ This was stated at different times. That before the commencement of the original suit, perhaps in the month of April or May, said Russel wished me to come down, as he wanted to pay some money to Kinney, $1,500; they said they had the money. They had the funds paid into their hands by subscribers, for sums subscribed to be paid by the building committee. He wanted to pay over $1,500, and save the interest upon it. They told me they had funds to pay over to Kinney, and, at one time, the said Russel said he told Kinney that he wanted to pay him $1,500, but would not do it, unless they could do it safely. He said he had not paid, but was under an obligation to pay.” Upon being shewn the contract with Kinney, and asked if that was not the contract, he replied that he believed that to be the contract which the said Russel showed him; it was like it. He knew of no other contract.
    2. The deposition of Gideon P. Grant, who deposed as follows:
    “ In May, 1848,1 went to see Russel Wheeler, at his house. I told him I had been to see Kinney about getting my pay. Wheeler told me to go back and get an order on the committee ; he would accept one; the committee would. I told him that was of no use; I had been to see Kinney; he would not give any order. Wheeler then advised me to sue and take the same course the rest had taken. I told him who had sued, and how many; he told me there was money enough in their hands to make me whole. I said at the time of giving my former deposition there were some two thousand dollars in their hands, but I will not now state positively.”
    Questions by defendants’ counsel.
    Question. “ Did you get your pay ? ”

      Answer. “ I got the most of it; I did not get all of it; I got the pay of Dudley R. Wheeler.
    Question. “ At what time did Dudley R. Wheeler pay your claim against Major Kinney?”
    Answer. “ I cannot state the time.”
    Question. “ What deduction did you make him on your claim against Kinney ? ”
    Answer. “ I took off ten dollars from the debt and I paid the cost.”
    Question. “ In conversation with Dudley R. Wheeler, did he not say you had no claim against the committee, by virtue of your copying suit?”
    Answer. “ I can’t remember that he did.”
    Question. “Did you not feel under obligation to said Wheeler for his efforts to have your debt settled,'and have you not so expressed yourself ? ”
    Answer. “ I think I have; I thought he acted very friendly towards me.”
    Question. “ Was you not apprehensive that you might lose your debt against Major Kinney, at the time you saw him at the meeting-house, and in your conversation with Russel Wheeler, was you not so agitated, that you might not rightly have understood what he did say?”
    Answer. “ I think I was not; I felt a little uneasy about whether I should get my pay.”
    Question. “ Who informed you that sundry persons had copied the committee whom Major Kinney owed?”
    Answer. “ Sanford P. Brown first informed me.”
    Question. “ What reason did Kinney give why he would not give an order on the committee?”
    Answer. “ No reason, only he would not; said he had turned off hundreds.”
    Question. “Did he not say that the committee had refused to accept his order; that he had no right to draw; nothing was due to him ? ”
    Answer. “ I don’t remember that he did.”

      Question. “Did you not know he had tried to get money of the committee, and had failed to get it ? ”
    Answer. “ I think that I did.”
    Question. “ Are you sure that Russel Wheeler told you that he or the committee were owing Kinney two thousand dollars, or any sum, or did he say they should be owing when the job was finished?”
    Answer. “ I said, that he said there was some sum owing; I cannot say how much; enough to make me good. I don’t recollect whether he said they would be owing Kinney or not,. when the job was finished; it is some time since; I can’t remember.”
    Question. “Did you ever see, read or hear read, the contract between Major Kinney and the committee?”
    Answer. “ I never did.”
    Question. “ Can you tell what sum Kinney was to have for building the meeting-house, or doing the job ?”
    Answer. “ I am not certain how much.”
    Question. “Can you tell what Major Kinney was to furnish, or what to do in relation to that job, or any of its provisions ? ”
    Answer. “ I cannot.”
    Question. o “ When you saw Kinney at the meeting-house, when you tried to get an order, did you see what state or condition the house was in; did you examine particularly ? ”
    Answer. “ I did not.”
    Question. “ Can you give any estimate how much labor it would take to finish and fulfill his contract, materials, &c.”
    Answer. “ I should not think it would cost ovfer one hunddred dollars—it might cost that—it might cost more. I did not take particular notice.”
    Question. “ What was the amount of the debt Major Wheeler settled with you for Kinney ? ”
    Answer. “ It was about three hundred dollars, not much over that, nor a great deal less.”
    Question. “ Do you know whether Major Kinney was bound to furnish stone steps and pillars to that meetinghouse ? ”
    Answer. “ I have said I did not know anything about the specifications.”
    Question. “ Can you tell whether there were stone-steps placed, and pillars or green blinds on that meeting-house, when you went to get that order ? ”
    Answer. “ I cannot.”
    Question. “ Do you know whether his contract was ever fulfilled in building that meeting-house ? ”
    Answer. “ I do not know. I have heard it was not.”
    Question. “ Did you sue the same day you went to get an order?”
    Answer. “ I did not.”
    ■3. The plaintiff then read in evidence, the deposition of William S. Hewitt, a son of the plaintiff, who testified as follows:

      “ On the evening of January 17th, 1852, I read a notice to Major Russel Wheeler, to be present at the taking of depositions, to be used in the case between Mary Hewitt and the Messrs. Wheeler. After I read it he remarked, that the case ought to be settled, he wished it was settled; he said it was a very disagreeable thing—all were neighbors here— an unpleasant affair. Major Russel Wheeler further said, ‘ Why can’t it be settled ? Why can’t it be left out to some man or men? If you, (meaning Wm. S.Hewitt,) will settle with Joseph Kinney, we will settle this in five minutes.’
    “ Some time afterwards, Major Russel Wheeler, in the presence of Oliver Hewitt, stated again, if Wm. S. Hewitt would settle with the said Kinney, he would settle the other in five minutes; and that he was ready to pay the money to somebody.
    “ That the said Russel Wheeler at this time said, that he told Major Dudley R. Wheeler that they had bétter settle it, and make a finish of it, but that a person before two witnesses forbid their paying it, and that if they paid it to her, they would have to pay it over again to him.”

      Question by defendants’ counsel. “ Did not Major Russel Wheeler at the last conversation alluded to above, say that they had nothing in their hands to pay with, or words to that effect ? ” •
    Answer. “ Do not recollect such statement.”
    4. Denison Hewitt testified as follows:
    “ Soon after the trial of this case, in the county court, I was at the store of the said Dudley, when he commenced a conversation about the suit, and said he wished it settled. I asked him why he did not pay her, as well as the others, who copied at the same time, and soon after ? He said, the others threw off their cost, and mentioned Grant, who threw off $10. But he added that the case would assume a different aspect at the next trial.
    “ I was present at the time of taking Grant’s deposition; the said Russel, at Widow Hewitt’s store, said he wished the case could be settled; it was an unpleasant thing. ■My brother, Oliver Hewitt, said,1 Why did you not pay the debt, when judgment was rendered against you in the county court?’ He replied, that he said to Major Dudley, (Now let us go and settle it, and make a finish of it.’ (But, said he, ‘ understand me, Oliver; a man, before two good substantial witnesses, forbade our paying it,’ and repeated it three times, and at last, mentioned Kinney’s name. William S. Hewitt came in, and he said to him, ‘ William, why can’t it be settled? If you will settle your account with Kinney, I will settle it in five minutes.’ I asked him if he settled it, whether it would come out of his pocket ? He said, ‘ No, I do not know that it would.’ Edwin Hewitt said, ‘ Well, then, you stand ready to pay it to some one,’ and the said Russel said he did.”
    5. Charles E. Hewitt, a son of the plaintiff, testified:
    “ I was present at the conversation, at the time of taking Grant’s deposition. Russel Wheeler said, it was rather a disagreeable case, and wished it could be settled. Oliver Hewitt asked him why, when judgment was rendered against him in the county court, he did not come and settle with my mother? He said he then told Major Dudley, now let us go up and settle it, and make a finish of it. But, a man came up, and in the presence of two substantial witnesses forbade their paying it, and named Kinney as the man.
    “Denison Hewitt asked him whether, if they paid the claim, they would have to lose it, or pay it out of their own pockets ? He said no, he did not know that they should. I then said to him, ‘ Then you admit that you have the money in your hands, and are ready to pay it to some one ? ’ He said, ‘ Yes. ’ ”
    6. Isaac W. Miner testified: “ I was one of the jurors, that tried this case in the county court, and when Russel Wheeler was on the stand, according to my best recollections, a question was put to him by the plaintiff’s counsel, whether, if they had paid the claim of Mrs. Hewitt, they would have lost anything. To which the said Russel replied he did not believe they should, for they had money in their hands.”
    The plaintiff here rested her cause, and the defendants’ counsel moved for a non-suit, upon the ground, as they claimed, that the plaintiff had failed to make out a prima facie case of indebtedness on the part of the defendants, in the maimer alleged. But the motion was overruled.
    The defendants then introduced their evidence.
    1. Dudley R. Wheeler testified as follows:
    “We made the contract produced on the trial, and made no other contract; and had no dealings with Kinney, except what grew out of .that contract. In all my acts, I supposed I was acting for the society; I acted as the treasurer of the building committee, and was requested by them to receive the money. I had received, up to May 16th, 1848, but $1,724.44, and had paid out, and become obligated to pay, $1,867.67. The house was in an unfinished state, and hardly any part finished off according to contract, so as to entitle Kinney to any payment.” The witness then proceeded to enumerate the several sums which he had received, the sums which he had paid out, and assumed to pay, and the particulars in which the house was not built according to the contract. He then proceeded: “ I supposed I was not indebted to Kinney. The plaintiff copied us first, and Grant the next day. Kinney settled with the attaching creditors, and we paid them as fast as he did the work. We had to pay bills to prevent the materials from being attached. There were no funds in our hands for which Kinney could sue; no agreement to pay him anything except what arose under that contract, and no obligation to pay.”
    2. Russel Wheeler testified: “ I was one of the building committee, made no other contract with Kinney than the one produced, and was not indebted to him except upon that. It was understood that Dudley R. Wheeler should receive all the moneys and pay them out. I have received no money except in one instance, ten dollars, and paid it over the next day. Kinney owed Grant some $200 or $300. Grant came to my house. I told him if Kinney fulfilled his contract, we should owe him from $1,000 to $2,000. That was the substance of what I said. I did not say I had funds, or would accept an order; and had refused to accept drafts that night.
    “ I recollect going to the meeting-house with Oliver Hewitt ; was desirous of getting the .policy of insurance which Kinney had obtained; offered by way of inducement to advance him some $1,000; did it to induce him to assign the policy; never stated, that I had funds of his; have at all times been in advance to him; should not have stood about the amount to be advanced to him, had he given us security, which he refused to do. He never completed the house, to the acceptance of the building committee. The society took it off his hands, before it was completed, and it was dedicated, June 27th, 1848. The house was taken as it then was.”
    3. The deposition of Sanford P. Brown, as follows.
    “ I worked on, the meeting-house in North Stonington then being built by Joseph Kinney. I began to work May 15th, 1848, preparing for laying the steps, there being then none laid. May 16th, moved dirt sufficient today the foundation for steps and drew stones for that purpose. May 18th, placed the first step; May 19th, at work on the same; then discontinued work until May 29th, except half a day May 27th. I worked on the area wall, also worked May 29th and 31st, and three-quarters of a day June 1st, and did no more work for pay, the steps being not finished. The flagging on which the pillars were to stand, was not placed, and the buttresses at the end of the Steps were not up, and not completed. The four Ionic pillars for the front of the house were lying on the ground beside the wall. When I began work, nothing was done to the area wall; when I quit, it was about one-third finished. George W. Bentley worked on the steps when I did. When I left work there was no iron railing to the front steps. I afterwards worked inside the house, puttying nail holes, &c., for which I made no charge; the work had been primed but not grained. Can’t say the exact date, made no entry, worked part of two days, from the 19th of May, to the 29th. We were waiting for steps, which had to be brought from Hopkinton.”
    4. The deposition of Gideon P. Grant, which was as follows:
    “ I was at work for Joseph Kinney, when Russel Wheeler and Dudley R. Wheeler contracted with him to build the meeting-house in Milltown, and said Kinney became indebted to me for work. I left him a short time before said house was finished, and went to work for another man, and I was informed that persons he was indebted to had sued him and copied the committee. I wen# to see Kinney where he was at work at the meeting-house, and told him I felt uneasy about my pay, and asked him for security; he wished to know what security I wanted; I told him I would accept of an order from him on the committee; he refused giving any order; he said he would give no man an order. Then I went to Russel Wheeler’s house, and told him that I had been to see Kinney, about getting my pay, and he told me that he would not give any order to any one. I told Russel Wheeler that I was anxious to have my pay, and 1 told him who had copied, told him the number, and he told me, that they were owing Kinney, over two thousand dollars, (it was twenty-two or twenty-three hundred dollars, I think,) and if he would not give an order on the committee, that I should sue him and copy the committee; that they had money enough in their hands that belonged to him, to make me whole, and I ought to have my pay. ”
    Question by plaintiff. u Was the time you had the conversation with Russel Wheeler, the day after Mrs. Hewitt copied the two Messrs. Wheeler ? ”
    Answer. “ Yes.”
    Question by the same. “ In speaking of the committee that were copied, who do you mean ? ”
    Answer. “ Russel and Dudley R. Wheeler.”
    Question by the same. “ What time did you leave off work for Major Kinney.”
    Answer. EE The last of March.”
    Question by the same. EE Was the meeting-house at that time nearly completed?”
    Answer. EE It was very nearly.”
    Question by the same. EE At the time when you saw the meeting-house, when you called to see Kinney to get the order on the Messrs. Wheeler, from the knowledge you had of the forwardness of the house when you left work on it for Major Kinney, and what you saw on the day aforesaid, what amount do you think it would cost, to complete Kinney’s contract with the Messrs. Wheeler on said house ? ”

      Answer. “ I should think, as near as I could come at it, between seventy-five and one hundred dollars: it might be more, or it might be less.”
    Question by the same. “ Did you, the same day you saw Kinney and Russel Wheeler, spoken of above, sue Kinney, and copy the Messrs. Wheeler?”
    Answer. “ I did.”
    Question by the same. “ Who paid your demands on Major Kinney, that you sued and copied the two Messrs. Wheelers for ? ”
    Answer. “Dudley R. WTheeler.”
    5. The votes of the Congregational society, which were introduced upon the former trial of the cause, appointing the defendants their committee, and authorizing them to build and finish said meeting-house.
    The foregoing was substantially all the evidence in the case relative to the indebtedness of the defendants to the said Kinney, and there was no evidence of any indebtedness from the defendants to Kinney, except such as grew out of their dealings, in relation to the building of said meeting-house.
    Upon this evidence, the defendants requested the court to charge the jury, that if their declarations and acts, as testified to by the plaintiff’s witnesses, were made, and done, in their character and capacity of a committee, for building a meeting-house for the society, and under and by virtue of the aforesaid contract, they were not liable to the plaintiff.
    The plaintiff’s counsel, in their argument to the jury, admitted that the contract, produced in evidence by the defendants, was not binding upon them personally, but was a contract between the society and Kinney, and that it had so been decided by this court; that if the jury should find no other indebtedness to Kinney on the part of the defendants, than such as arose under, and by virtue of that contract, the plaintiff could not recover. But they claimed to have proved, by their evidence, an indebtedness of the defendants to Kinney, outside of, and independent of such contract, for which they were liable personally to Kinney, and upon which ground alone, they claimed that the plaintiff was entitled to a verdict.
    The court instructed the jury, in conformity with the admissions made by the plaintiff’s counsel, informing them, that if they should find no other indebtedness of the defendants, than such as arose under and by virtue of said contract, the defendants were not liable in the present action. That, although said contract did not bind' them personally, but only the society, whose agents they were, yet it did not preclude them, in . the course of subsequent dealings with Kinney, from becoming personally indebted to him, as claimed by the plaintiff, and that if they had in fact become so indebted, and in a manner rendering them personally liable to Kinney, such indebtedness could lawfully be attached by the plaintiff, and would entitle her to a verdict. And whether there was any indebtedness on the part of the defendants, when the copy was left with them in service, and if so whether it arose under said contract, or in some other manner, were questions of fact for them to determine from the evidence before them.
    The jury, having rendered a verdict in favor of the plaintiff, the defendants moved for a new trial.
    They also moved, in arrest of judgment, 1. Because the declaration did not aver that the defendants were, in any other way, or capacity, described in the original writ, than as acting and contracting committee for building a Congregational meeting-house, nor that any copy of the writ and declaration was left with them in service, in any other way or capacity, or that they were indebted to said Kinney, in any other way or capacity, than as said committee. 2. Because, it did not aver that the officer, into whose hands the execution, in favor of the plaintiff in the original suit, was put, ever served the same, or made demand of the defendants, of the debt, or debts, due from them to said Kinney, or of the goods, or effects, of said Kinney, in their hands; but merely averred that said officer, who served said execution, made his return thereof, with his endorsement thereon, that he made such demand, and that they refused to expose said goods, or pay said debt.
    The questions arising on both these motions were reserved for the advice of this court.

      Pomeroy and McCurdy, in support of the motion, conten-ded, that the declaration was insufficient,
    1. Because it showed that the defendants were the acting and contracting committee of the society, and averred that they became indebted as such committee. Being, therefore, agents, with a responsible principal, they were not personally liable. The argument, that because they were not liable as a committee, therefore they must be as individuals, is absurd. The averment is a material one, and cannot be regarded as surplusage. Chitt. Pl., 174. The term, “ as committee,” has already been decided not to be descriptive of the persons, but of their character.
    2. Because it contains no averment that the officer made demand, &c., but only a recital of the evidence. 1 Sw. Dig., 614. 5 Conn. R., 594.
    3. That the verdict was against the evidence. There was no transaction between the parties, except such as grew out of their dealings, in relation to the building of the meetinghouse. The defendants made a contract on this subject, covering the whole ground, as a committee, and there is no evidence that they made another contract with the same man, of precisely the same kind, on the same subject, as individuals.

      Foster and Wait, contra, contended,
    1. That the addition to the names of the defendants, in the original writ, in the suit of Hewitt against Kinney, and in the scire facias against the defendants, is merely descriptio personarum, and may be rejected as surplusage. Magill v. Hinsdale, 6 Conn. R., 464. Simonds v. Heard, 23 Pick., 125. Windsor et al. v. Griggs, 5 Cush., 210. The suit was therefore brought against them as individuals.
    2. That the declaration sets forth distinctly, that the officer, into whose hands the execution, in favor of Mary Hewitt against Kinney, was placed, made demand of the defendants as by statute required, and that they refused to pay the same, and to expose property for the officer to levy on. The form is the same that has been in use, in our state, for the last twenty-five years, and has been repeatedly approved, and sustained by our judges, on the circuit, when this question, now made, has been raised.
    3. That the jury, in the present case, having been called on to pass upon a naked question of fact, and the evidence being contradictory, and its effect depending, to some extent, on the credibility of witnesses, a new trial ought not to be granted. To justify a court in sétting aside a verdict, it must be so palpably against the evidence, as to show conclusively that the minds of the jury were not open to reason, and conviction, or that an improper influence was brought to bear on their deliberations. Our reports abound in cases, which establish this principle.
    The object in granting new trials, being to submit the facts to another jury, that they may be investigated and considered with greater deliberation and attention; then, in a case like this,, where there have been two trials, and two verdicts, the court will not set aside the second verdict, unless the verdict is such as to shock the sense of justice and right. Duggan v. Cole, 2 Texas, 381. Perry v. Robinson, 2 Texas, 490. State Bank v. Wooddy, 5 Eng., 638.
   Ellsworth, J.

We think the motion in arrest cannot prevail. The objection that the defendants cannot be made personally liable, because, as it is said, they were copied as a committee, is without foundation. They were copied as the debtors of Joseph Kinney, if at all, and could not be copied otherwise; being named as a committee, is mere surplusage. We say, if they were not personally liable as debtors, they are not liable at all, and then they could not be copied as a committee, in any intelligent or legal sense of that process. The plaintiff’, throughout the proceedings, has put her case upon the personal liability of the defendants, and for that very reason the defendants resist the claim. Magill v. Hinsdale, 6 Conn. R., 464. Simonds v. Heard, 23 Pick., 464. Windsor v. Griggs, 5 Cush., 210.

Nor is there more weight in the objection, that the declaration does not contain an allegation that the officer made demand of the debtor on the execution. The declaration contains averments, broad enough to let in such evidence, and we cannot admit that the court would have permitted a verdict for the plaintiff, if the fact of demand had not been duly proved. Besides, the allegation, that the sheriff “ duly served the execution on the 5th of March, 1849, and that he made return thereof, with his endorsement, that he had made demand of said debtor,” is sufficient after verdict. The return on the execution was, of course, before the jury, and proved the demand.

The motion .for a new trial for verdict against evidence, we think must be maintained.

On the former trial of this case, we held‘that the written contract, on which the plaintiff then relied for her claim, proved only an indebtedness of the Congregational society, and not of the defendants. We will not repeat the reasons there given.- It is now conceded, that the plaintiff cannot recover under the written contract, nor by reason of any indebtedness, growing out of it; but she claims to have proved a personal indebtedness of the defendants, outside of the contract, so that while the written contract shows that the society are the principals, and the committee are agents, in some way the agents have become principals, and the real principals have passed out of sight. This extraordinary transformation she endeavors to make out, chiefly, if not entirely, from the declarations of the defendants, said to have been made on different occasions and to different persons. We look with hesitation upon any such construction of the supposed admissions, for it is a construction alike unnatural, and without probable cause. Upon the plaintiff’s own showing, however, we see no admissions, inconsistent with the original and continued relation of principal and agent, as claimed by the defendants. They were always a committee, and, we think, should be taken to have always spoken in that capacity. What they said, what they did, what they admitted, and what they were ready to do, and wished to have done, are entirely consistent with this view of the matter, and inconsistent with any other; it would be unjust to consider the defendants as meaning to express themselves otherwise. We have carefully looked over the testimony of all the plaintiff’s witnesses, and have likewise compared it with the defendants’ testimony, and every reexamination convinces us, that, under the charge of the court, the verdict is manifestly against evidence. The testimony of the plaintiff by itself, when considered alone, is exceedingly feeble and unsatisfactory, but when the testimony of the defendants comes in and we learn that the written contract and title subsists, we are quite satisfied that the defendants should be held to stand in no new or different relation, from that created by the contract itself; and further, we are not sure that the Congregational society themselves were debtors, according to the terms of the contract, and the admissions of the defendants. The defendants uniformly denied it; but at any rate, as to themselves, and any liability because funds were in their hands, it appears that one of them had never collected but ten dollars, and that sum he had paid out, and that the other, at the service of the copying process, the 16th of May, 1848, had received $1,724.44, and paid out, and become responsible for $1,867.67. We are always unwilling to interfere with the verdict of the jury, but it is indispensable at times, and in a case so bald and palpable as this, we cannot hesitate a moment. It is not one of balanced testimony, but well nigh one, without any at all, and taking the whole together, there is not the least question in our minds, that the defendants were never the debtors of Mrs. Hewitt. For this reason we advise a new trial.

In this opinion the other judges concurred, except Waite, J., who was disqualified.

New trial to be granted.