
    *Methodist Episcopal Church of Cincinnati v. John Wood.
    Member of a religious corporation, having no individual interest, is a competent witness where such corporation is a party.
    .Answer to a bill of discovery introduces new matter, not responsive to the bill, defendant can not read it on trial.
    .In suit by corporation, its legal organization can not be questioned, unless upon plea in abatement.
    •Conveyance for lands of religious incorporated society, made to individual trustees, instead of the corporation, the individual grantees are trustees for the society, and on sale receive the proceeds to its use.
    The seceders from the Methodist Episcopal Church, who have organized a separate conference and reject the office of bishop, are not entitled to any portion of the property of the society from which they seceded.
    Tried in Hamilton county, June, 1831, before Judges Hitchcock ■and Wright.
    This was an action of assumpsit, commenced on August 17, 1829, for money had and received. Issue, non assumpsit. On. the trial of the issue to the jury, the case made by the evidence was this: The members of the Methodist Episcopal Church of Cincinnati had been incorporated under the “ act for the incorporation of religious societies,” passed February 5, 1819. See 17 •Ohio L. 121. The corporation had purchased certain ground for a burying yard, which was deeded, on March 1, 1825, to the then-trustees by name. This ground being intersected by the line of the canal, was rendered unsuitable for a burying yard, and was, by a resolution of the corporation, ordered to be sold, and new •ground to be purchased for that purpose. The defendant was-treasurer of the corporation, and as such, from time to time, received of the proceeds of said sale four thousand three hundred’ and twenty-three dollars and, ninety-eight cents, and had, in like manner, paid out three thousand eight hundred and fourteen dollars and seventy-one cents, leaving a balance in his hands on March 7, 1829, of five hundred and nine dollars and twenty-seven-cents, for which, with interest, the suit was brought.
    On January 9, 1827, “ the members of the Methodist Episcopal Church of Cincinnati, for the time being,” were, by legislative act, created a body corporate, by the name of “ the Methodist Episcopal Church of Cincinnati.” Subsequent to this act of incorporation the defendant, still being treasurer, became dissatisfied with-the government and discipline of the church, and, with a large number of other members, withdrew from the society, formed another society, with a different name, established rules for its government, built a church, and conducted worship as a distinct body of Christians. After the secession, at the annual election on May 4, 1829, the remaining members of the *Protestant Episcopal Church elected a board of trustees from their own body, who, on May 7, 1829, appointed one Lawrence treasurer, in the room of the defendant, whose term of service had expired. The new treasurer, before suit brought, demanded of the defendant the money in his hands.
    In the progress of the trial, O. M. Spencer, Esq., a member of the Protestant Episcopal Church was called as a witness for the plaintiff. The counsel for the defendant objected to his admission as incompetent, on account of his interest as a member of the corporation.
    By the Court :
    The competency of the witness depends upon the answer to the-question whether he has, at this time, an actual subsisting inter-est in the event of the suit; and whether the verdict to be rendered in this case can hereafter be used by the witness in support -of any claim of his own ? " The interest, to disqualify a witness, must be certain; one merely contingent or expectant affects only -the credit. That the witness offered is a m-ember of a charitable or pious corporation does not, of itself, render him incompetent to testify in a suit brought by such corporation. If this witness, as an individual, is to gain or lose by the event of this suit, the party objecting to his evidence must prove that fact. In cases where corporations of a public nature, comprehending the divisions of the state, or institutions for charitable or'pious, purposes, such ■as counties, towns, school districts, religious or charitable societies, .are parties to the record, or interested, the members of the corporation, having no individual interest, are competent witnesses. But where corporations of a private nature, instituted for special purposes and private emoluments, such as banks, insurance, turnpike, and canal companies, bring suit, the interest of the corporators is direct, and they áre incompetent to testify in support of their claim. Phil. Ev. 36-57; 3 Johns. Cas. 83; 9 Johns. 222; 1 Day, 35, 270; 7 Mass. 398; Swift’s Ev. 57.
    The plaintiffs having read in evidence to the jury certain *parts of the answer of the defendant to a bill of discovery filed in chancery against him in aid of this suit, the defendant’s counsel now offered to read in evidence the residue of the answer and the bill. This was objected to by the plaintiff’s counsel.
    By the Court:
    The bill, if it contain any facts useful to the defendant, is evidence for him against the plaintiff. The answer of the defendant is evidence for him, so far as it is responsive to the call in the bill for discovery, or connected necessarily with the responsive matter, or explanatory of it. So far as the answer in such a case sets •up matter not responsive to the call of the bill, or is not necessarily -connected with, or explanatory of it, it can not be used in evi-dence by the party making it.
    Starr and Hammond, for the defendant,
    in summing up, made .the following points:
    1. That the plaintiffs have not shown a compliance on their part, with the provisions of the act incorporating religious societies, without which they have no corporate rights, and can not maintain this action.
    2. That the deed for the ground, from the sale of which the' money in question was received, conveyed the title to .the individual grantees only, and so vested no interest in this corporation for the proceeds.
    3. That the money in question belonged to the defendant and the Other individuals of the church, jointly, and so the defendant is not liable at law.
    4. That the defendant, and his associates, who separated from the Methodist Episcopal Church, retain their corporate powers, and as such, have a right to retain this money.
    N. Wright and Lewis, contra.
   *Judge Wright

charged the jury:

If the defendant intended to object the want of capacity in the-plaintiffs to sue, he should have pleaded that matter specially, in abatement or bar. He has pleaded the general issue. This admits the capacity of the plaintiffs to sue in the corporate character they have described for themselves. 1 Peters, 386, 450; 4 Peters, 591; 1 Bos. & Pul. 40; 1 Mass. 482, 484; 1 Saund. 340, n. 2.

The ground assumed by the defendant, in the second proposition, must be sustained, if at all, upon strict law; in this equitable action, it is entitled to no favor. The defendant was one of the .trustees of the church, managing its concerns under the corporate powers acquired, or supposed to be acquired under the act of 1819, incorporating religious societies. 17 Ohio L. 120. The purchase was made by order of the trustees, with the means of the1 society. By the same authority it was sold, and the defendant received the money on the authority of an appointment emanating from the same source. The corporation had new powers imparted., to it under the act of February 9, 1827 (25 Local Laws, 85), in which the defendant was one of the trustees. For more than two years after the taking effect of this act, the defendant continued, under its authority, to receive and pay moneys for the corporation, as such. Having become dissatisfied with the government of the church, he seceded, and now seeks to retain the funds which came into his hands under the authority; not upon the ground of error in himself and his co-trustees, in taking the conveyanee of the ground bought with the corporate means, to themselves, individually, instead of the corporation 1 The question,, here, is not one of legal title to the land, but to the money raised by the sale of it; and the simple inquiry, under the issue, is,, whether the defendant, upon the facts disclosed, and the legal assumption taken in his behalf, has a right, in equity and good conscience, to retain the money received by him against the very authority under, and by virtue of which, it came to his hands ? We-think he has not. But if the question did touch the legal right to the land, we are not prepared to say the *law would sustain ■ the defendant’s claim. The “ act securing to religious societies a-perpetuity of title to lands and tenements, conveyed in trust for meeting houses, burying grounds, or residence for preachers,”’ passed on January 3, 1825 (23 Ohio L. 9), provides that such land, not exceeding twenty acres, that had been, or thereafter might be,. conveyed to any person or persons, in trust for the use of any religious society, should descend, in perpetual succession, to such, trustees as should from time to time be appointed by any such religious society, according to its rules, etc. This act was intended to remove all difficulty arising from defective conveyances, and seems to us amply sufficient to effect the object, whether the trust be secret and implied, or expressed in the conveyance. The case in hearing is, we think embraced within its provisions.

It is urged, further, that even if this property were held by the corporation existing before the act of January 9, 1827, no power is given by that act to the present plaintiffs to sue. That act incorporated the members of the Methodist Episcopal Church of Cincinnati, for the time being.” Section 4 (25 Local Laws, 86)-provides, “ that all estate, real and personal, now holden and possessed” by the church, be vested in the corporation thereby provided, and empowers the trustees to dispose of it, and to receive-the proceeds for the benefit of the corporation. We are not able-to discover any defect of authority in the plaintiffs under the act.

If this reasoning be correct, it seems fatal to the third objection raised in this defense; because, if this property belonged to the corporation, as such, the individual interest of the defendant or his associates, joint or several, is at an end. The whole interest they have is as corporators, not as individuals. No reasoning-will be required of us to prove that an individual corporator may be made liable at law, to the corporation of which he is a member, in the same way that any other individual would be.

The fourth and last .objection of the defendant presents the inquiry, whether the members of the church, including the defendant, after their secession, retained the corporate' powers of the church from which they seceded ? This assumption *would have rested on more plausible ground if the case made had shown the defendant and his associates, after the separation, holding themselves out as the Methodist Episcopal Church, and exercising under such claim the corporate powers of that church. The conceded points show an entire different state of things. The efforts of the dissatisfied members are not directed, within the church, to effect a reformation in its government and discipline, according to the usage of the society, to conform it to their wishes. They moved off in a body of several hundred, and associated themselves, not as the Methodist Episcopal Church, but, as is now claimed for them in argument, a persecuted body, forced from the church by the intolerable tyranny of its government. The body of persons, thus separated, agreed upon articles of association, differing essentially from the rules governing the Methodist Episcopal Church. By these articles of association they have since conducted their affairs, and, conducted worship as a distinct church, denying all accountability, alike in the spiritual and corporate power of the Methodist Episcopal Church.

In this state of facts it is difficult to perceive the ground on which the claim is now advanced, that they remain the Methodist Episcopal Church. Those remainiug in that church have continued to exercise the corporate functions in conformity with the provisions of the act of incorporation; and against a b'ody who have acted openly upon other principles, and continued so to do until this time, they must be held, in this action, the corporation. The office of treasurer, held by the defendant under the corporation, has expired, and another has been elected to the place, to whom he refused to pay over the money received as treasurer. It is not shown, or pretended even, that the defendant was treasurer when the suit was brought, appointed in any way whatever. We can discern no legal right in him to retain this money.

There was a verdict for the plaintiffs, and judgment, by consent of parties, for the amount, without costs.  