nature, held to be good and valid; and were enforced accordingly. The case, then, according to our judgment, is completely closed in by the principles and authorities already mentioned, and is that of a valid charity in Pennsylvania, unless it is rendered void by the remaining objection which has been taken to it. This objection is that the foundation of the college upon the principles and exclusions prescribed by the testator, is derogatory and hostile to the Christian religion, and so is void, as being against the common law and public policy of Pennsylvania; and this for two reasons: First, because of the exclusion of all ecclesiastics, missionaries, and ministers of any sect from holding or exercising any station or duty in the college, or even visiting the same: and second, because it limits the instruction to be given to the scholars to pure morality, and general benevolence, and a love of truth, sobriety, and industry, thereby excluding, by implication, all instruction in the Christian religion.

of worship." Language more comprehensive
for the complete protection of every variety of
religious opinion could scarcely be used; and
it must have been intended to extend equally
to all sects, whether they believed in Chris
tianity or not, and whether they were Jews or
infidels. So that we are compelled to admit
that although Christianity be a part of the
common law of the State, yet it is so in this
qualified sense, that its divine origin and truth
are admitted, and therefore it is not to be ma
liciously and openly reviled and blasphemed
against, to the annoyance of believers or the
injury of the public. Such was the doctrine
of the Supreme Court of Pennsylvania in Up
degraff v.
The Commonwealth (11 Serg. &
Rawle, 394).

It is unnecessary for us, however, to consider what would be the legal effect of a devise in Pennsylvania for the establishment of a school or college, for the propagation of Judaism, or Deism, or any other form of infidelity. Such a case is not to be presumed to exist in a Christian country; and therefore it must be made out by clear *and indisputable proof. [*199 Remote inferences, or possible results, or speculative tendencies, are not to be drawn or adopted for such purposes. There must be plain, positive, and express provisions, demonstrating not only that Christianity is not to be taught; but that it is to be impugned or repudiated.

In considering this objection, the court are not at liberty to travel out of the record in order to ascertain what were the private religious opinions of the testator (of which, indeed, we can know nothing), nor to consider whether the scheme of education by him prescribed, is such as we ourselves should approve, or as is best adapted to accomplish the great aims and ends of education. Nor are we at liberty to look at general considerations of the supposed Now, in the present case, there is no prepublic interests and policy of Pennsylvania tense to say that any such positive or express upon this subject, beyond what its constitution provisions exist, or are even shadowed forth in and laws and judicial decisions made known to the will. The testator does not say that Chris198*] us. The question, what is the public tianity shall not be taught in the college. But policy of a State, and what is contrary to it, if only that no ecclesiastic of any sect shall hold inquired into beyond these limits, will be found or exercise any station or duty in the college. to be one of great vagueness and uncer- Suppose, instead of this, he had said that no tainty, and to involve discussions which scarcely person but a layman shall be an instructor or come within the range of judicial duty and officer or visitor in the college, what legal obfunctions, and upon which men may and will jection could have been made to such a recomplexionally differ; above all, when that top- striction? And yet the actual prohibition is in ic is connected with religious polity, in a effect the same in substance. But it is asked: country composed of such a variety of religious why are ecclesiastics excluded, if it is not besects as our country, it is impossible not to feel cause they are the stated and appropriate preachthat it would be attended with almost insuper-ers of Christianity? The answer may be given able difficulties, and involve differences of opinion almost endless in their variety. We disclaim any right to enter upon such examinations, beyond what the State constitutions, and laws, and decisions necessarily bring before us.

It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania. But this proposition is to be received with its appropriate qualifications, and in connection with the bill of rights of that State, as found in its constitution of government. The constitution of 1790 (and the like provision will, in substance, be found in the constitution of 1776, and in the existing constitution of 1838) expressly declares, That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be given by law to any religious establishments or modes

in the very words of the testator. "In making this restriction," says he, "I do not mean to cast any reflection upon any sect or person whatsoever. But as there is such a multitude of sects and such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans, who are to derive advantage from this bequest, free from the excitement which clashing doctrines and sectarian controversy are so apt to produce." Here, then, we have the reason given; and the question is not, whether it is satisfactory to us or not; nor whether the history of religion does or does not justify such a sweeping statement; but the question is, whether the exclusion be not such as the testator had a right, consistently with the laws of Pennsylvania, to maintain, upon his own notions of religious instruction. Suppose the testator had excluded all religious instructors but Catholics, or Quakers, or Swedenborgians; or, to put a stronger case, he had excluded all religious instructors but Jews, would the bequest have been void on that account? Suppose he had excluded all lawyers, or all physicians, or all merchants from being instructors

1844

VIDAL ET AL. V. GIRARD'S EXECUTORS.

or visitors, would the prohibition have been fatal to the bequest? The truth is, that in cases of this sort, it is extremely difficult to draw any just and satisfactory line of distinction in a free country as to the qualifications or disqualifications which may be insisted upon by the donor of a charity as to those who shall administer or partake of his bounty.

But the objection itself assumes the proposi-
200*tion that Christianity*is not to be taught,
because ecclesiastics are not to be instructors
or officers. But this is by no means a neces-
sary or legitimate inference from the premises.
Why may not a layman instruct in the general
principles of Christianity as well as ecclesi-
astics. There is no restriction as to the relig-
ious opinions of the instructors and officers.
They may be, and doubtless, under the aus-
pices of the city government, they will al-
ways be, men, not only distinguished for learn-
ing and talents, but for piety and elevated
virtue, and holy lives and characters. And we
cannot overlook the blessings which such men
by their conduct, as well as their instructions,
may, nay must impart to their youthful pupils.
Why may not the Bible, and especially the
New Testament, without note or comment, be
read and taught as a divine revelation in the
college-its general precepts expounded, its
evidences explained, and its glorious principles
of morality inculcated? What is there to pre-
vent a work, not sectarian, upon the general
evidences of Christianity, from being read and
taught in the college by lay teachers? Certainly
there is nothing in the will that proscribes
such studies. Above all, the the testator posi-
tively enjoins, "that all the instructors and teach-
ers in the college shall take pains to instil into
the minds of the scholars the purest principles
of morality, so that on their entrance into active
life they may from inclination and habit evince
benevolence towards their fellow-creatures, and
a love of truth, sobriety, and industry, adopt-
ing at the same time such religious tenets as
their matured reason may enable them to pre-
fer." Now, it may well be asked, what is
there in all this, which is positively enjoined,
inconsistent with the spirit or truths of Chris-
tianity? Are not these truths all taught by Chris
tianity, although it teaches much more? Where
can the purest principles of morality be learned
so clearly or so perfectly as from the New
Testament? Where are benevolence, the love
of truth, sobriety, and industry, so powerfully
and irresistibly inculcated as in the sacred vol-
ume? The testator has not said how these
great principles are to be taught, or by whom,
except it be by laymen, nor what books are to
All that
be used to explain or enforce them.

we can gather from his language is, that he de-
sired to exclude sectarians and sectarianism
from the college, leaving the instructors and
officers free to teach the purest morality, the
love of truth, sobriety, and industry, by all ap-
propriate means; and of course including the
best, the surest, and the most impressive. The
objection, then, in this view, goes to this,
either that the testator has totally omitted to
instruction in
provide for religious
201*]*scheme of education (which, from what
has been already said, is an inadmissible inter-
pretation), or that it includes but partial and

his

imperfect instruction in those truths. In either
view can it be truly said that it contravenes the
known law of Pennsylvania upon the subject
of charities, or is not allowable under the ar-
ticle of the bill of rights already cited? Is an
omission to provide for instruction in Chris-
tianity in any scheme of school or college edu-
cation a fatal defect, which avoids it accord-
ing to the law of Pennsylvania? If the in-
These questions
struction provided for is incomplete and im-
perfect, is it equally fatal?
are propounded, because we are not aware
that anything exists in the constitution or laws
of Pennsylvania, or the judicial decisions of
its tribunals, which would justify us in pro-
nouncing that such defects would be so fatal.
Let us take the case of a charitable donation to
teach the poor orphans reading, writing, arith-
metic, geography, and navigation, and exclud-
ing all other studies and instruction; would
the donation be void, as a charity in Pennsyl-
vania, as being deemed derogatory to Chris-
tianity? Hitherto it has been supposed that a
charity for the instruction of the poor might
be good and valid in England even if it did
not go beyond the establishment of a grammar
school. And in America, it has been thought,
in the absence of any express legal prohibitions,
that the donor might select the studies, as well
as the classes of persons, who were to receive
his bounty without being compellable to make
religious instruction a necessary part of those
studies. It has hitherto been thought sufficient,
if he does not require anything to be taught
inconsistent with Christianity.

Looking to the objection, therefore, in a mere juridical view, which is the only one in which we are at liberty to consider it, we are satisfied that there is nothing in the devise establishing the college, or in the regulations and restrictions contained therein, which are inconsistent with the Christian religion, or are opposed to any known policy of the State of Pennsylvania.

This view of the whole matter renders it unnecessary for us to examine the other and remaining question, to whom, if the devise were void, the property would belong, whether it would fall into the residue of the estate devised to the city, or become a resulting trust for the heirs-at-law.

Upon the whole, it is the unanimous opinion of the court, that the decree of the Circuit Court of Pennsylvania dismissing the bill, ought to be affirmed, and it is accordingly affirmed, with costs.

*ORDER.

[*202

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.

Cited-6 How., 322; 9 How., 80: 17 How., 384, 397, Otto, 309; 11 Otto, 366; Taney, 359, 362;1 Wall., Jun., 398; 24 How., 505; 7 Wall., 12, 14; 17 Wall., 334: 5 216; 3 Woods, 459, 460, 477.

235

A bankrupt is bound to state, upon his schedule, the nature of a debt if it be a fiduciary one. Should ceeds of 150 bales of cotton, shipped to and This was an action of assumpsit for the prohe omit to do so, he would be guilty of a fraud, and his discharge will not avail him; but if a cred- sold by the defendant, as the property of the itor, in such case, proves his debt and receives a plaintiff, the defendant having been a factor, dividend from the estate, he is estopped from after&c. wards saying that his debt was not within the law. But if the fiduciary creditor does not prove his debt, he may recover it afterwards, from the discharged bankrupt, by showing that it was within the exceptions of the act.

to the passage of the act. This has been held | deem it to be so? Shall the creditor thus notified to be the correct exposition of the act in the lie by, and, after the adjudication of the DisOhio circuit (Matter of Lord, 5 Law Reporter, trict Court, come forward with the ob- [*206 258), in the New York circuit by the late jections which he should have made there? Judge Thompson in The Matter of Brown (5 Law Reporter, 258), and in the Massachusetts circuit, in The Matter of Tebbetts (5 Law Reporter, 259.) Decisions have been made in other circuits, of which the counsel has not seen reports in print.

This question has doubtless been maturely considered by all the members of this court, and the counsel for Forsyth would not hope to exhibit any new views of the subject.

2. The debt of a commercial factor to his principal is not an excepted debt. These factors are of various kinds, and the case 205*] *does not state whether the factor, respecting whom the question is asked, acted Lader an ordinary or a del credere commission; a point, perhaps, worthy of consideration.

The certificate of the District Court is made conclusive everywhere, except in cases where there has been fraud, or the willful concealment of property. Fraud is not suggested here. The expressions of the act in conferring jurisdiction upon the District Court, and in declaring the effect and conclusiveness of its adjudications, are most broad.

The District Court had jurisdiction to grant or refuse the discharge of Forsyth. The exercise of this jurisdiction involved the consideration of the question, whether the existence of the debt to Chapman was a bar to the discharge. Contest might have been made in the District Court on that ground, and, it is contended, should have been made there.

The decree of discharge having been made by the District Court, is it not to be held that the questions now made have been already decided between these parties, by a court of competent jurisdiction? P. S. LOUGHBOROUGH.

The excepted debt is one which has arisen "in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity." These expressions are not appropriate to commercial affairs. "Defalcation Mr. Justice M'LEAN delivered the opinion of is ordinarily used to express the misapplication the court: of the funds with which he is intrusted by a public officer, or some express trustee. Does a commission merchant act in any other such Educiary capacity as is meant by the act? The term fiduciary is a legal, not a commercial one. It has a comprehensive import, which may be given to it without including a mercantile debt; and, according to the course of trade in this country, a very common mercantile debt.

A very large proportion of the debts which have been discharged by the courts under the bankrupt law, are the debts of factors to their principals. Millions have been so discharged, which will be revived, if this court shall decide them to be fiduciary, within the meaning of the

act.

3. Upon the last point it is contended that the proceedings in bankruptcy in the District Court, when in conformity to the act, are a suit, the decision of which by the decree of bankruptcy, and the discharge of the applicant, is conclusive upon the parties thereto, who are the petitioner himself and at least all such of his creditors as are named in his list, and to whom notice is given.

Such is the nature of the proceedings authorized by the act. Process is to be served upon the creditor, or a notice in writing sent to him. In effect, the proceeding is a suit by the debtor against his creditors for a discharge.

It was not necessary for the applicant to have stated in his petition the nature or origin of the debt. It was enough that he stated, as in this case, the name of his creditor, his residence, and the amount due to him. See the first section of the act.

What is a fiduciary debt may, in a given case, be a matter of doubt. This contest shows it. Shall an applicant, acting upon his best lights, stating the name and residence of his creditor, and the sum due to him, and expressly summoning him in, to contest, if he chooses, be prejudiced because he has not denominated the debt fiduciary, when he and his counsel did not

This was an action of assumpsit for the proceeds of 150 bales of cotton, shipped to and sold by defendants as the property of the plaintiff, the defendants being factors. The defendant, Forsyth, pleaded that he had been duly discharged as a bankrupt, on his own voluntary petition. A replication was filed, to which there was a demurrer.

The suit was brought in the Circuit Court for the District of Kentucky; and on the argument of the demurrer the following points were made, on which the opinions of the judges were opposed; and at the request of the parties the points were certified to this court.

1. Could the defendant be discharged as a bankrupt from any part of his debts on his own petition, when he was indebted in a fiduciary capacity, in part, within the exception in the first section of the Bankrupt Law; that is, were all persons indebted, excluded, that held and owed moneys in the capacity of trustees (as a class), from the benefit of the act, although they owed other debts besides the moneys held in trust?

2. "Is a commission merchant and factor, who sells for others, indebted in a fiduciary capacity within the act, provided he withholds the money received for property sold by him, and which property *was sold on ac- [*207 count of the owner, and the money received on the owners' account.

3. "Whether, when the decree of discharge and the regular certificate of being a bankrupt, have been obtained without contest in the District Court, they are conclusive and binding on all persons named as creditors by the bankrupt in his petition and list of creditors; and whether a creditor, who did not prove his debt, and to whom the bankrupt was indebted in a fiduciary capacity, can come into court and sue the bankrupt for such fiduciary debt, notwithstanding the decree of discharge and certificate, the debt having been set forth in the petition and list as an ordinary debt, not due in a fiduciary character."

These questions are far less important than they would have been had the bankrupt law not been repealed. But they are still important as affecting a large class of citizens, and to a large amount.

The first section of the bankrupt law provides that, "all persons whatsoever, residing in any State, territory, or district of the United States, owing debts which shall not have been created in consequence of the defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity," shall, on a compliance with the requisites of the bankrupt law, be entitled to a discharge under it.

The cases enumerated, "the defalcation of a public officer," executor," "administrator,” "guardian," or "trustee," are not cases of inplied, but special trusts, and the "other fiduciary capacity" mentioned, must mean the same class of trusts. The act speaks of technical trusts, and not those which the laws implies from the contract. A factor is not, therefore, within the act.

This view is strengthened, and, indeed, made conclusive, by the provision of the fourth section, which declares that no "merchant, banker, factor, broker, underwriter, or marine insurer," shall be entitled to a discharge, "who has not kept proper books of accounts.' In answer to the second question, then, we say, that a factor, who owes his principal money received on the sale of his goods, is not a fiduciary debtor within the meaning of the act.

The answer of the first question leads, necessarily, to the answer of the third. For if fiduciary debts are not within the act, a discharge can in no respect affect the interest of the fiduciary creditor. Without his consent, it is clear the Bankrupt Court can take no jurisdiction of his debt. And, although the bankrupt may include the *debt in his schedule, and the [*209 discharge may be general, yet as the law gave the court no jurisdiction over the debt, it is not discharged.

The fourth section provides, "that the discharge and certificate, when duly granted. shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under the act, and may be pleaded as a complete bar," &c.

The debts here specified are excepted from the operation of the act. This exception applies to the debts and not to the person, if he owe other debts. The language is, all persons owing debts, not of the description named, may apply, &c. Now, an indebtment by an individual, not created as above stated, is within the provisions of the act, although he may be under fiduciary obligation. This is the natural import of the provision, and it is sustained by reason. It was proper that Congress should not relieve from debts which had been incurred by a violation of good faith, whilst, from other obligations a full discharge to the same person should be given. But, to have refused a discharge because the individual owed a fiduciary debt, would, by withholding a general privilege, have superadded a penalty to a past transaction without notice. That this consideration influenced the Legislature is shown by the fourth section, which provides, "that no person who after the passage of the act shall apply trust funds to his own use," shall be discharged. Now, if a per- Now, it is supposed that, if a fiduciary debt, son who owed a fiduciary debt was not entitled within the act, be placed upon his schedule by to a discharge from other debts by the first sec- the bankrupt, that it is incumbent on the credtion, this provision was useless. A misapplica-itor to preserve his right, by showing, before 208*] tion *of trust funds, as declared, covers the enumerated cases in the first section. But, whilst the first section only withholds from the jurisdiction of the Bankrupt Court fiduciary debts, the fourth declares that if such debts have been contracted subsequent to the law, the individuals shall not be discharged. From this provision the strongest implication arises, that if the fiduciary debts were contracted before the passing of the act, the petitioner would, for other obligations, be entitled to a discharge. Viewing, then, the first and fourth sections of the act, we are of the opinion that fiduciary debts, contracted before the passage of the act, constitute no objection to a discharge of the same person for other debts.

The second point is, whether a factor, who retains the money of his principal, is a fiduciary debtor within the act.

the Bankrupt Court, the nature of his debt. And that, consequently, should he fail to ap pear after notice, he will be barred, as other creditors, by the discharge.

The bankrupt is bound to show on his schedule the nature of his debts, at least so far as to enable the court to take jurisdiction of them. If, for instance, he owe a debt as executor, and he state it on his schedule as an ordinary debt, he commits a fraud on the law, and the discharge cannot avail him. If, in this respect, he suppress the truth or state falsehood, he is guilty of fraud, and this may be shown against his discharge.

But as the discharge operates only on debts, contracts, &c., which are provable under the act, it is said that consent cannot include fiduciary debts.

Such debts, without the assent of the creditor, If the act embrace such a debt, it will be dif- are clearly not within the act. But if his debt ficult to limit its application. It must include shall be found on the schedule, and he not only all debts arising from agencies; and indeed all proves it but receives his proportionate share of cases where the law implies an obligation from the dividend, he is estopped from saying that the trust reposed in the debtor. Such a con- it was not within the law. He is a privileged struction would have left but few debts on creditor, and is not bound by the bankrupt law; which the law could operate. In almost all the but he may waive his privilege. As a creditor, commercial transactions of the country, confi- he has a right to come into the Bankrupt Court dence is reposed in the punctuality and integrity and claim his dividend. He does not establish of the debtor, and a violation of these is, in a his claim as a fiduciary one, but as a debt commercial sense, a disregard of a trust. But "provable within the statute." And having this is not the relation spoken of in the first sec-done this, he can never controvert the discharge. tion of the act.

From these considerations, we are lead to say,