Field v. Field, 9 Wend. 394

Field v. Field

9 Wend. 394 | N.Y. Sup. Ct. | 1832

By the Court,

Nelson, J.

The objection to the recovery on the ground of variance in respect to the date of the. instrument described in the declaration is untenable. There is none in substance or fact, the pleader not professing to set out the instrument verbatim.

The judge erred in excluding the testimony of Thomas Carpenter, for under no view of the case that we can take was he directly interested in the event of the suit. He had an interest in the fund in common with the other contributors or members of the purchase preparative meeting, but he was called against that interest, so far as it was immediately involved in the issue then trying; at all events, as between the immediate parties to the suit, his interest was in favor of the plaintiff, as the fund, if collected, was for the benefit of the proprietors; and as regarded his position, upon all the facts disclosed on the trial, we think he was indifferent, or at least, his interest was neutralized. It is said he was interested in sustaining the payment of the money to himself as treasurer, but we apprehend it would be difficult to shew in what way he could be thus interested. Admitting that he would be, at law or in equity, bound to refund the money to the defendant, if he could not sustain his right or title to receive it as treasurer, the result of this suit did not necessarily determine that question, as he was not a party to it, and would not be bound by it. Whether he would be bound to refund the money, would *399depend upon a suit directly between the parties themselves. A recovery by the plaintiff in this case would have, perhaps, .an essential bearing upon that question, but would not control it, and the interest, would be too remote and contingent to affect the competency of the witness. But conceding that upon the recovery by the plaintiff here, the witness was under obligations to refund, how could he be interested 1 The fund was not his, and whether he paid it to the defendant, or held or disbursed it as treasurer, so far as his own interest was involved, it was indifferent to him. If he was bound to refund, it would be confessedly upon the ground that he was not the legal treasurer or trustee of the fund, and that the present plaintiff was such legal treasurer, and so far as the witness’ original and joint interest in the fund is involved, it is the same to him, in judgment of law, whether the fund is held or disbursed by him as treasurer or by the present plaintiff as treasurer, for we are bound to believe either would perform his duty with fidelity. I am, therefore, clearly of opinion the witness was not interested, so far as to render him incompetent, on the ground, 1. As to his position as treasurer holding the fund, he was but a naked trustee, and his own interest would be unaffected, whether he retained the fund, or was obliged to repay it; and further, even supposing it to be affected by the repayment, that event was not a direct and necessary consequence of the recovery in this suit, and was too remote and contingent to exclude him ; and 2. So far as his joint and fractional interest in the fund was involved in the suit, he was called in favor of it; for the ground upon which the plaintiff claimed the right to recover was as trustee of the fund for the benefit of the proprietors, and there can be no doubt if he recovers he is bound so to hold it. The decision of this question is not very important, as probably every material fact which could have been proved by this witness was subsequently sworn to by others.

The great and important question involved in this case is, whether payment of the note was established on the trial; and this involves the enquiry as to the legality of the appointment of Thomas Carpenter as treasurer of the purchase preparative meeting school fund on the 1st January, 1830. *400If he was duly appointed treasurer, the issue under the pleadings was established in favor of the defendant, and the payment made by him was a good defence. The material facts upon which this question must depend, and upon which alone we must determine it, are not contested in the case, though the generality of them leave in a measure some of the leading features of it in a little obscurity. We should have been better satisfied if the case presented a more minute and full account of the origin, purpose, and also the manner of controlling and disposing of the purchase meeting school fund, which at the same time would necessarily have given irs, with more particularity, its connection with the purchase preparative meeting of the Friends. We must take the case, however, as we understand it from the testimony.

It was offered to be proved by the defendant on the trial that the portion of the society of Friends denominated Hick~ sites, and who continued the plaintiff as treasurer of the purchase preparative meeting, had abandoned the religious faith of the society with the view of contending that by such abandonment they had forfeited their character as Friends, and all the rights and privileges belonging to it_ We think the judge was right in rejecting this proof. In a court of law we can look only to the legal rights of the parties to control the fund in question, and they must depend upon the constitution and principles of the association of the Friends and their modes of proceeding, as the purchase preparative meeting confessedly have the exclusive management and direction of the fund. So long as the forms and modes of proceeding by the association under whose direction the original contributors placed the fund are strictly complied with in its management and control, a court of law are incompetent to interfere. If there has been, or is about to be a diversion of the fund from the original purpose and object of it, under the form of legal and constitutional proceedings by the association, or otherwise, it belongs peculiarly to the jurisdiction of a court of equity to interpose and correct or prevent the procedure. Thus, if the object of the original contributors of this fund was the instruction and educacation of their children in the faith and doctrines of the society of Friends, as understood and believed at the time it was *401placed under the direction of one of their associations or meetings, it is quite clear, both on principle and authority, that such object should be strictly observed by those who have the management of it, and that an ample remedy exists against any perversion of the fund. In such case the question is not which faith or doctrine is the soundest or most orthodox; this is not the object of the enquiry, but for what object or purpose was the fund originally established by the founders of it 1 The court proceed to enforce the observance and execution of an ascertained trust, in which rights of property are concerned, not the peculiar doctrines or faith of either party, though their existence and the nature of them may be incidentally involved in the course of the proceeding. The question arising upon this part of the case is very fully discussed by Lord Eldon, in the case of the Attorney General v. Pearson, 3 Meriv. R. 352, and the principles applicable to it are there clearly stated.

If we look at the constitution and modes of proceeding of the monthly and preparative meetings of the Friends, as detailed by the witnesses on both sides in the case, 1 cannot entertain a doubt, that Thomas Carpenter was legally appointed the successor of the plaintiff, in the office of treasurer of the purchase preparative meeting, on the 1st January, 1830. It is said that the monthly meeting in June, 1828, under which the purchase preparative meeting was held, was not the legitimate one, and that the latter, according to the system of the meetings of the Friends, was therefore, held without authority. The fact is otherwise, if we regard the only account we have of the rules and practice of their proceedings. 23". Griffin was the clerk of that meeting; this office is the most important one belonging to it 5 he decides all questions that arise, after hearing the discussions and opinions of the members, and in the language of the witnesses, according to the “solid sense” of the meeting, as understood by him, without vote, or regard to numbers. This may be a singular mode of proceeding, and of questionable merit, but the fact is undisputed, and we are not to disregard it. This officer also has a right to open and organize the meeting, according to undisputed evidence. He did open the monthly meeting, at the time *402and place appointed, according to custom, and under and in pursuance of this authority, was held the purchase preparative meeting, at which T. Carpenter was regularly appointed. It is true, by the turbulence of some of the members he was prevented from taking his seat at the table in the room prepared for the meeting, and was compelled to hold it in an adjacent place ; but this did not deprive him of his office, nor prevent the discharge of his duty, nor the orderly organization of the meeting ; much less did it legalize the tumultuous assemblage which he left, who were without the only officer that, according to their ancient and accustomed proceeding, could organize them, or preside in the transaction of their business. The question is not whether the meeting in the absence of the clerk, or his incompetency to act for any other cause, had not the power to appoint one in his place ; there can be no doubt it would have that power, from necessity, and to preserve it from dissolution. But can the meeting by mere force and caprice drive away this officer, whose term has not expired, in violation of all the forms of their proceedings and principles of their society ? It is said that a majority of the meeting concurred in this act; and the judge at the circuit supported its legality upon this ground. We cannot assent to this position. In order to maintain it the plaintiff must shew that the monthly meetings of the Friends were governed upon the principle that a majority should control. Even were we to assume, in the absence of any proof on the subject, that this popular principle was applicable to them, we are not at liberty to do so, as the contrary expressly appears. In no instance do the opinions of a majority of the members control their proceedings, according to the long established discipline and usage, but other modes of deciding all questions which arise are universally practised. Besides, even the majority principle was not applied in ejecting the clerk, in this instance. No vote was taken. None of the usages and principles of the meeting were observed. No organization of it had taken place. The act was done by force of a disorderly and promiscuous assemblage of the Friends, against established usage and acknowledged rules of proceeding, and which the members of the meeting cannot justify or legalize. Was the meeting to be broken up *403by this proceeding 1 We think not. This would be virtually giving countenance and effect to acts of tumult and violence over order and law. The clerk and those members of the meeting who desired peaceably to assemble, and transact its business according to established rules and usage, were right in withdrawing and organizing for that purpose. Could there be a doubt of the propriety or legality of this course, if the organization of the meeting at the place appointed had been prevented by an assemblage of persons other than the Friends ? And what difference in good sense or in judgment of law can there be, whether the act of force and lawlessness was committed by Friends or strangers ? In this respect one had as much right as the other; or to speak more accurately, neither could claim any right or authority thus to act or interfere. But it is said that a majority of the members of the monthly meeting did not attend at the place where the clerk opened the meeting. Neither does it appear that a majority attended at the place where the Friends first assembled ; and so far as this objection goes, it is equally applicable to both the meetings ; and if sound, neither meeting was legitimate. The true answer, however, to the objection, if applicable at all to meetings of Friends, as they do not decide questions by vote, is, that the appearance of a majority of the members of the monthly meeting is not essential legally to constitute it. The rule of the common law is where a society or corporation are composed of an indefinite number of persons, a majority of those who appear at a regular meeting of the same, constitutes body competent to transact business. Cowp. 248. Rex v. Mayor of Portsmouth, 4 T. R. 822, 3. Rex v. Bellinger, 7 Cowen, 409, 10; Ex parte Wilcox, note 1. There is nothing in the case to shew that any particular or specified number of the Friends are necessary to constitute a regular monthly meeting, and the rule of the common law therefore applies.

1 have not deemed it important to examine at large the objection to the recovery, on the ground that the defendant is a partner in the fund, and that no suit at law can be sustained against him, and that as the purchase preparative meeting is not a corporate body, the suit should be in the names of all the parties interested. I consider this objection wholly unfounded. *404Though the defendant has a right to participate in the benegtg der¡ved from the use of the fund, he has no right or claim to controI of it except according to the usage and custom of the purchase preparative meeting of the Friends, under whom the fund was placed. It is this meeting that has, by the consent of the owners of the fund, of which the defendant is one, the exclusive management of it. They have placed it in the hands of their treasurer, who has the immediate control of it. He loaned it to the defendant, who engaged, under hand and seal, to pay it to the then treasurer or his successor in office. So far as the rights of the parties are concerned upon the evidence in this case, in connection with the fund,"the defendant is to be viewed in the light of a stranger to it. He has no right to possess himself of it, or control it, any more than a stranger, and cannot in this respect be deemed a partner. This view is also applicable to every other individual memberof the purchase preparative meeting.

New trial granted, costs to abide the event..