Townsend v. P. and G. Carpenter.

enforce the payment of it. There could be no doubt of this, if it were not that courts of law, in very modern times, have been disposed, in an indirect manner, to protect the interests of the assignee when he sues in the name of an assignor; and, in consequence of this, a single court has determined that a court of chancery is deprived of its jurisdiction. Such is the decision in the case of Mosely v. Grouch, 4 Rand. 592. But I do not know another case where it has been held that a court of law having once declined jurisdiction of a particular subject matter, and afterward, in an indirect manner, entertained it, that a court of chancery, to 23] which it appropriately and originally *belonged, is, therefore, deprived of it. The course now pursued by the courts of law constitutes a part of its practice, while that pursued by the other court is not merely a part of its practice, but grows out of its original constitution and the nature of the interest which is the matter in controversy.

Story, in his treatise on Equity, does not treat this as a doubtful question. He seems to take it for granted as an acknowledged principle. "In order," he says, "to constitute an assignment of a debt, or other chose in action, in equity, no particular form is necessary. Indorsing and delivering a bond to an assignee amounts to an assignment of the bond. An assignment of a debt may be by parol as well as by deed." 2 Story Eq. 311. I think, then, that the first question-has the assignee a right to sue in chancery?-must be answered in the affirmative.

The bill alleges that on the day this note for $1,500 was assigned to the complainant, he gave notice to Paul Carpenter, and that when the note became due, and frequently afterward, the latter promised to pay him the amount. The answer admits notice a short time after the date of the note, but denies that he ever made any promise to pay, except upon the condition that Gabriel Carpenter, the assignor, would procure his discharge from his liability as security for Gabriel, or furnish him money to pay the But the depositions of Hunter and the two Townsends expressly contradict this assertion in the answer, and show that Paul Carpenter did make an express promise to the complainant to pay him. If it should be said that this promise, at any rate, gives a right to sue at law, it may be answered that a promise by the maker can not divest a third person, the assignor, of his legal

note.

State of Ohio, etc. v. Trustees of Section 29, etc.

interest, so far as to deprive a court of chancery of at least concurrent jurisdiction.

Decree for the complainant.

No arguments came to the reporter's hands.

*THE STATE OF OHIO, EX REL. PHILIP OWENS ET AL. V. THE [24 TRUSTEES OF SECTION 29, FRACTIONAL TOWNSHIP 3, RANGE 1, DELHI TOWNSHIP.

Before any denomination of Christians can be entitled to any part of the ministerial fund, arising from the rents of section 29, they must have formed themselves into a society, in the township in which the section is located, and have given themselves a name.

The agent appointed to receive said fund must have been appointed by the society, as a collective body, and not by the individual members of the society

THIS is an alternative mandamus from the county of Hamilton.

At the April term of said court, 1840, by order of court, an alternative mandamus was issued, commanding the defendants to pay over to the "Roman Catholic Church of Delhi township" an equal dividend of the rents of section No. 29, in said township, due for the years 1837, 38, 39, or to appear before the court forthwith, and show cause why the same should not be paid

over.

The defendants appeared, and time was given to make return, and on September 14, in the same year, the return was filed.

In this return the defendants allege:

1. That there is not now, and never has been, in said township of Delhi a society formed and organized by the name of the “Roman Catholic Church of Delhi township," for the purposes of religious worship; and they deny that all those who are claimed. by the relators to belong to such society are citizens of said township.

2. They deny that they have refused to pay to the Roman

State of Ohio, etc. v. Trustees of Section 29, etc.

Catholic Society of Delhi, or their authorized agent, appointed by said society, their proportion of the rents arising from section No. 29, for the years specified, but aver, on the contrary, that at all times when the agent of the relators presented himself for said years, they informed him that when he would produce evidence 25] that the relators were citizens of said township; that they were regularly organized as a religious society, by the name of the Roman Catholic Society, or Church, of Delhi township, and that the agent was appointed at a regular meeting of said society to receive said rents, they would pay the same. They allege, however, that this evidence has never been furnished, although often promised.

To this return no demurrer, plea, or answer has been filed. It stands upon the record uncontradicted, and is in no way controverted. Testimony has been taken both by the relators and defendants. As that testimony is cited and commented on in the opinion of the court, it is unnecessary here to recapitulate it.

CAREY & CALDWELL, for the relators.

STORER, RIDDLE & ROLL, for defendants.

HITCHCOCK, J. This case is presented to the court in somewhat of a singular aspect. A mandamus was issued on the relation of Philip Owens and others, claiming to be the members of the Roman Catholic Society of Delbi township, to which a return was regularly made by the defendants. The statute regulating proceedings in cases of this description, requires "that whenever a return shall be made to any such writ, the person prosecuting such writ may demur, or plead, to all or any of the material facts contained in the said return; to which the person making such return shall reply, take issue, or demur; and the like proceedings shall be had therein, for the determination thereof, as might have been had if the person prosecuting such writ had brought his action on the case for a false return." In the case before us, this provision of the statute has been entirely disregarded, and there is neither an issue in fact, nor in law, joined. It would be right to send the case back to the county, with directions to have an issue made up. But as testimony has been taken and the case argued, although we do not intend to sanction the course of practice pursued, we shall not 26] decline to go into its consideration. The counsel for the respective parties seem to have treated the case as if the return had

State of Ohio, etc. v. Trustees of Section 29, etc.

been traversed; and they also raise some questions of law, as to the effect of the return, provided the court shall consider it as having been proven to be true.

Before referring to the testimony in the case, it is proper to settle the principles of law by which it must be governed.

In the sale of land by the United States to the Ohio Company, and to John C. Symmes, section 16 in each township was reserved for the use of schools, and section 29 for the use of religion in the township. In other sales of public lands by the United States, section 16 has been in like manner reserved, but not section 29. These sections thus reserved for religious purposes have usually, in common parlance, and sometimes in legislative enactments, been denominated ministerial sections.

In section 26, of article 8, of the constitution of the state, it is provided that "laws shall be passed by the legislature which shall secure to each and every denomination of religious societies in each surveyed township, which now is, or may be hereafter formed in the state, an equal participation, according to their number of adherents, of the profits arising from the land granted by Congress for the support of religion, agreeable to the ordinance or act of Congress making the appropriation."

In accordance with this injunction of the constitution, the general assembly have, from time to time, as seemed necessary, acted upon the subject. The law now in force in relation to it, is found in the act of March 14, 1831, "to incorporate the original surveyed townships." In section 13 of this act, it is provided that "each and every denomination of religious societies, after giving themselves a name, shall appoint an agent who shall produce to the trustees a certificate containing a list of their names and numbers, specifying that they are citizens of said township; and the agent shall pay over an equal dividend of the rents within three months after they shall have been received, to be appropriated to the support of religion, at the discretion of each society; provided *that [27 all members, above the age of fifteen years, shall be entitled to have their names enrolled by any society." And in section 15 the trustees of each incorporated township are required to meet on the first Monday in January, annually, and make a dividend of the rents to cach religious society; "and in making such dividend, each society shall be entitled to receive a just proportion of the money received by the treasurer."

State of Ohio, etc. v. Trustees of Section 29, etc.

It is clear that this fund is intended for the support of religion in the township in which the section is located, from which it is derived, and can not be appropriated for any other purpose, or for the support of religion in any other place.

It is to be distributed to the different religious societies in proportion to their numbers; and in ascertaining numbers, all actually belonging, or adhering, to each society, of the age of fitteen years, or more, are to be taken into the account, provided "they are citizens of said township."

but such as But if there

Here a question is raised as to the meaning of the word “citizens," as used in this connection. That this word does not always mean one and the same thing is clear. Thus, we speak of a person as a citizen of a particular place, when we mean nothing more by it than that he is a resident of that place. When we speak of a citizen of the United States, we mean one who was born within the limits of, or who has been naturalized by, the laws of the United States. It can hardly be believed that the legislature, in using the word "citizen," in this statute, intended to make a distinction between native or naturalized citizens, and resident aliens. Why should such distinction be made? Is there not as much need of religious instruction in the one case as the other? To me it seems clear that the word citizen, as here used, should be held to be synonymous with the word resident. The legislature did intend that, in ascertaining numbers, none were residents of the township should be included. is any doubt upon the subject, that doubt must be removed upon reference to the constitution. We are bound so to construe every law, if possible, that it shall not conflict with the constitution. 28] *If it can not be so construed, then it must be rejected, for a legislative act which is in violation of the constitution can be of no binding force. The provision of the constitution, as already cited, is, that laws shall be passed, securing to each and every denomination of religious societies "an equal participation, according to their number of adherents, of the profits arising" from these lands. If a person who is not a citizen can be an adherent of a religious society, this section of the constitution has secured to him a participation in the profits of these lands. It is clear, then, that this law is not such as is required by the constitution, unless we hold the word citizen, as here used, to mean the same as resident.