Atl. 132. Thus, a large portion of the estate appears, by the bill, to be without the possession or reach of the executors. Yet the bill shows that some part of the estate has not been delivered to Mrs. Taylor, and it seeks the discovery of and accounting for that part, as well as for the other. It also seeks to subject real estate which the will orders now to be converted into money by the executors, and distributed to legatees, to the payment of its proper proportion of the complainants' claim. It alleges that the executors of James Taylor are insolvent, and intent on preventing recovery by the complainants; and it consequently seeks to restrain their disposition of the estate, and to have it reduced to moneys, through the instrumentality of this court, and applied to the payment of the complainants' claim. I regard it to be fully established that such a suit is within the jurisdiction of this court, even though the complainants' claim may not be established at law. 1 Story, Eq. Jur.

546; Frey v. Demarest, 16 N. J. Eq. 236, 239; Kennedy v. Creswell, 101 U. S. 641; 2 Williams, Ex'rs, 1718, 1719; Thompson v. Brown, 4 Johns. Ch. 619, 631.

It is observed that the defendants are the surviving executors of James Taylor; John Sevars, individually and as administrator of the estate of Ella F. Davis; Sarah M. Price, Mary E. Sevars, and the children of Joseph Lawton. The surviving executors of James Taylor are made parties, so that an account may be had of their dealings with the assets of their testator's estate; the assets with which they are chargeable may be had from them; they may be restrained from further acting as executors, and may be removed from office. Sarah M. Price, Mary E. Sevars, the children of Joseph Lawton, and John Sevars, as administrator of the estate of Ella F. Davis, are made parties because they are each entitled to some share in the proceeds of the real estate to be converted into cash, which is sought to be charged with a proportional payment of the complainants' claim, and are concerned that the executors shall be fully charged for assets which came to their hands, or should have been collected, and shall not be unduly credited, for, as the balance which was available for legacies may be increased, the proportional charge, in this suit, against the legacies that have not been paid over, will be decreased. John Sevars, individually, and also as administrator, is further made a party because he is alleged to have in his possession part of the assets which were paid over to Mrs. Taylor. It is thus perceived that all the defendants, except John Sevars, individually, are interested in the proposed accounting of the executors, and the proposed disposition by this court of the assets not paid, in the place of the executors; and it follows that they are also interested in the incidental restraint of action by the executors, the removal of the executors

from office, if that be possible by this court (Leddel's Ex'r v. Starr, 19 N. J. Eq. 159), and the appointment of a receiver of the assets. All the defendants are interested in the prayer that they, or some of them, may be compelled to pay the complainants' claim. But John Sevars, individually, is not interested or concerned either in the proposed accounting of the surviving executors, or in the court's assumption of their duties, and the incidental restraint of their action, or in the removal of the executors, or in the appointment of a receiver of the assets of the estate. He is interested only in the accounting which is sought to be had from him for the property which he had from Mrs. Taylor, which, as has been seen, was paid over to her, and either belonged to her absolutely, or was to go from her directly to the taker in remainder, concerning which the executors have no duty to perform, and which is not within their reach, and in the prayer that the defendants, or some of them, may be decreed to pay the complainants' claim. As the complainants can only recover from him assets which are held by him for the executors, or which the executors may recover from him, and it does not appear that he has assets of that character, the complainants do not show any equity against him for the recovery of any portion of their claim. Hence, the bill fails to show any equity against him individually. The remaining defendants, including John Sevars as administrator, are proper, if not necessary, parties to the suit.

Upon the question whether the bill is multifarious, the statement already made of the interests of the several parties shows that, with the exception of John Sevars in his individual capacity, they are all interested in all material parts of the relief sought. The determination already reached, that the bill fails to make a case against John Sevars, individually, precludes the necessity of considering whether the bill is multifarious as to him. As to the others, it is not multifarious as to him. As to the others, it is not multifarious. The demurrers will be overruled, except so far as John Sevars, individually, is concerned; and as to him, in that capacity, his demurrer will be allowed.

STATE (POLHAMUS, Prosecutor) v. STATE. (Supreme Court of New Jersey. Nov. 8, 1894.) ILLEGAL DREDGING OF OYSTER BEDS-INDICTMENT -SUFFICIENCY-CONSTRUCTION OF STATUTE.

1. Where a party is indicted for dredging upon an oyster bed duly staked up within the waters of this state, belonging to any other person, without the permission of such owner, and the title of the act under which the indictment is found is limited to the better enforcement in Maurice River Cove and Delaware Bay of an act entitled "An act for the preservation of clams and oysters," the indictment is defective, unless it is limited to an oyster bed duly staked up either in Maurice River Cove or Delaware

Bay, and the indictment, not being thus limited, but alleging simply a dredging in an oyster bed duly staked up within the waters of the state, is defective, and should be quashed; the indictment merely charging a statutory offense, unknown to the common law, and failing to clearly state the essential fact that the violation of the statute was in Maurice River Cove or Delaware Bay.

2. The title of a statute is not only an indication of the legislative intent, but is also a limitation upon the enacting part of the law. (Syllabus by the Court.)

Certiorari to court of quarter sessions, Cumberland county; Hoagland and Hendee, Judges.

Zebulon Polhamus was indicted for a violation of the statutes relating to the preservation of clams and oysters in Maurice River Cove and Delaware Bay, and he prosecutes a writ of certiorari to the court of quarter sessions. Indictment quashed.

Argued at the June term, 1894, before DIXON, REED, and ABBETT, JJ.

Walter H. Bacon and D. J. Pancoast, for prosecutor. William A. Logue and William E. Potter, for respondent.

ABBETT, J. The writ of certiorari in this case brings up for review an indictment returned to the court of general quarter sessions of the peace for the county of Cumberland. This indictment presents "that Zebulon Polhamus, late of the township of Downe, In the county of Cumberland, on the 12th day of April, in the year of our Lord one thousand eight hundred and ninety-four, in the township of Downe, in the county of Cumberland aforesaid, and within the jurisdiction of this court, did dredge upon, and throw or cast his oyster dredge or oyster dredges for the purpose of catching oysters upon, a certain oyster bed duly staked up within the waters of this state, belonging to Luther Bateman, without the permission of said Luther Bateman, the owner thereof, contrary to the form of the statute," etc. This indictment was found under color of a statute entitled "A further supplement to an act entitled 'An act for the better enforcement in Maurice River Cove and Delaware Bay of the act entitled "An act for the preservation of clams and oysters" approved April fourteenth, eighteen hundred and forty-six, and of the supplements thereto,' which said act was approved March 21st, 1871 (Revision, p. 140), and this further supplement was approved March 8th, 1882" (P. L. 1882, p. 55, and Supp. Revision, p. 116). The indictment was found under section 10 of this supple ment of March 8, 1882, which directs "that any person who shall hereafter dredge upon, or throw or cast his oyster dredge, or any other instrument, for the purpose of catching oysters upon any oyster bed duly staked up within the waters of the state belonging to any other person, without the permission of such owner, shall be deemed guilty of a misdemeanor, and upon conviction shall be punIshed by a fine not exceeding two hundred v.50A.no.9-31

dollars, or by imprisonment for any term not exceeding one year, or both."

The indictment in question is defective, because it does not set forth the requisite facts to show that a misdemeanor was committed by the party indicted. In charging a statutory crime, unknown to the common law, every essential fact must be clearly stated. Where the indictment is silent on a material fact, no presumption against the defendant will aid it. Presumptively, all that the grand jury heard and found is in the indictment, and if, as it stands, all that is in it may be true, and still the defendant be innocent, he cannot be called to trial upon it, according to law. See State v. Malloy, 34 N. J. Law, 413; Zabriskie v. State, 43 N. J. Law, 640; State v. Smith, 46 N. J. Law, 491. The supreme court, in State v. Post, 55 N. J. Law, 287, 26 Atl. 683, held that an indictment was defective because it failed to allege that the grounds upon which the defendant was charged with having taken oysters were grounds used or occupied by citizens of this state; the offense being purely statutory, and the statute having made the citizenship of the occupant an essential ingredient of the of fense. In the indictment under consideration, it fails to allege that the oyster bed named in the indictment was in Maurice River Cove or Delaware Bay. If this act be held constitutional,-about which the court expresses no opinion,-it can only be on the ground that the general language contained in the second section is to be construed as limited to Maurice River Cove and Delaware Bay. Justice Depue, in delivering the opinion, in the court of errors and appeals, in the case of Hendrickson v. Fries, 45 N. J. Law, 563, says: "Under the provision of our constitution, the title of a statute is not only an indication of the legislative intent, but is also a limitation upon the enacting part of the law. It can have no effect with respect to any object that is not expressed in the title." The supreme court, in Dobbins v. Northamp ton Tp., 50 N. J. Law, 499, 14 Atl. 587, says: "The enacting part of a statute, however clearly expressed, can have no effect beyond the object expressed in the title. To maintain any part of such a statute, those por tions not embraced within the purview of the title must be exscinded, and if the superaddition to the declared object cannot be separated and rejected the entire act must fail.” In that case the court said: "To maintain this act in any particular, it must be construed as a law applicable only to such townships as do not contain any incorporated city or borough wholly or in part within the township limits." The indictment charges that Pollamus dredged upon a certain bed, duly staked up. within the waters of this state, without the permission of said Luther Bateman, the owner. As the act cannot stand, except as limited to Maurice River Cove and Delaware Bay, all that is alleged in the indictment might be proved, and yet

no indictable offense have been committed under the statute, which cannot stand at all, unless limited to the cove or bay named in the title of the act. Dredging in any of the waters of the state, except in Maurice River Cove or Delaware Bay, is not an indictable offense, under section 10 of the act of March 8, 1882. The indictment should be quashed.

HYSONG et al. v. SCHOOL DIST. OF GALLITZIN BOROUGH et al.

(Supreme Court of Pennsylvania. Nov. 12, 1894.) SCHOOLS-EMPLOYMENT OF ROMAN CATHOLIC SISTERHOOD AS TEACHERS.

1. The employment in the common schools, by the school directors, of nuns of the Sisterhood of St. Joseph (a religious society of the Roman Catholic Church), in the absence of proof of religions sectarian teaching or exercises, is purely an exercise of discretion of such board, is lawful, and cannot be reviewed by this court.

2. The wearing of the garb and the insignia of such sisterhood by the nuns, while teaching in the public schools, cannot be termed “sectarian teaching," and is not unlawful. Williams, J., dissenting.

Appeal from court of common pleas, Cambria county.

Bill in equity by John Hysong and others against the school district of Gallitzin Borough and others to restrain the school directors from permitting sectarian teaching in the common schools, and from employing as teachers sisters of the Order of St. Joseph, a religious society of the Roman Catholic Church. A preliminary injunction was granted. From a decree dissolving such injunction, plaintiffs appeal. Affirmed.

Following are the principal assignments of error: "(2) The court erred in limiting plaintiffs' complaints, as matter of law. to the one question of misuse of school funds and school property, and to undoubted sectarian religious instruction, admittedly and openly indulged in, and excluding the questions of free and equal enjoyment of the public-school system, without even the appearance of any thing objectionable to the conscience of any, and without any compulsory maintenance or preference of any religious establishment or mode of worship. *

(4) The court

erred in finding that the action of the defendant school directors, in the exclusive and preferring employment of sisters in such maner as to give control of the public schools and divert public school funds to maintenance and support of the sectarian order and church to which said sisters and directors belong, could not be enjoined. * (6) The court erred in finding that certificates, contracts, reports, and performance of school duties in sectarian religious names and character by sisters could not be enjoined. (7) The court erred in finding that the sisters were not so disqualified and incapacitated by their sectarian consecration, vows, and

relations as to require continuance of injunction against their employment as teachers in the public schools. (8) The court erred in finding that the employment of the Sisters of St. Joseph as teachers in the public schools, and their acting as such while wearing the distinctive sectarian habit, crucifixes, and rosaries of their order and sect, could not be enjoined. (9) The court erred in finding that the permission and use of the sectarian religious titles or addresses 'sister' and 'father' could not be enjoined. * * (12) The court erred in refusing to restrain the future employment of six sisters or nuns as teachers in the public schools under illegal certificates and in their religious relations, and who were selected and designated by the mother superior of the Order of St. Jo seph, which received the benefit of school funds paid to them. (13) The court erred in refusing to restrain the employing, permitting, and acting, as teachers in the public schools, nuns or sisters, who are required by their obligations to their church to wear garbs, including crucifix or crucifixes, which mean and teach the 'Catholic Church,' and rosaries meaning and teaching the prayers of the fif teen mysteries in the Roman Catholic Church. (14) The learned court erred in refusing to restrain the allowance of use of religious sectarian names in the public schools, and the permission of the pupils to customarily and usually address the religious sectarian teachers as 'sisters,' and their visiting and overseeing priest of the same sect as 'father,' on the ground of there being no rule of the school requiring pupils to do so. (15) The court erred in refusing to restrain the employment, permission, and acting of nuns or sisters as teachers in the public schools in nonsectarian schools, and in names, garbs, and insignia objectionable to Protestant plaintiff's, so as to compel Protestant children of plaintiffs and others to attend schools so taught by nuns or sisters, or do without education, for conscience sake."

T. H. Baird Patterson, A. D. Wilkin, and II. W. Storey, for appellants. David L. Krebbs, F. J. O'Connor, and Kittell & Little, for appellees.

DEAN, J. This bill was filed to restrain the school directors of Gallitzin borough from permitting sectarian teaching in the common schools of the borough, and from employing as teachers sisters or members of the Order of St. Joseph, a religious society of the Roman Catholic Church. What seem to us the most material averments of the bill were denied in the answer. The employment however, of the members of this society, was admitted. The court, after full hearing, found as a fact, "There was no evidence of any religious instruction or religious exercises of any character whatever during school hours." But the court further found that after school hours the school

on the question. It is none of our business, nor that of these appellants, to inquire into this matter. American men and women, of sound mind and 21 years of age, can make such disposition of their surplus earnings as suits their own notions. We might as well, so far as any law warranted it, inquire of a lawyer, before admitting him to the bar, what he intended to do with his surplus fees, and make his answer a test of admission. What he did with his money could in no way affect his right to be sworn as an officer of this court. Therefore, it would be impertinence in us to inquire.

But it is further argued that, if the appointment of these Catholic teachers was lawful, they ought to be enjoined from appearing in the school room in the habit of their order. It may be conceded that the dress and crucifix impart at once knowledge to the pupils of the religious belief and society membership of the wearer. But is this, in any reasonable sense of the word, "sectarian" teaching, which the law prohibits? The religious belief of many teachers, all over the commonwealth, is indicated by their apparel. Quakers or Friends, Omnish, Dunkards, and other sects, wear garments which at once disclose their membership in a religious sect. Ministers or preachers of many Protestant denominations wear a distinctively clerical garb. No one has yet thought of excluding them as teachers from the school room on the ground that the peculiarity of their dress would teach to pupils the distinctive doctrines of the sect to which they belonged. The dress is but the announcement of a fact, -that the wearer holds a particular religious belief. The religious belief of teachers and all others is generally well known to the neighborhood and to pupils, even if not made noticeable in the dress, for that belief is not secret, but is publicly professed. Are the courts to decide that the cut of a man's coat or the color of a woman's gown is sectarian teaching, because they indicate sectarian religious belief? If so, then they can be called upon to go further. The religion of the teacher being known, a pure, unselfish life, exhibiting itself in tenderness to the young, and helpfulness for the suffering, necessarily tends to promote the religion of the man or woman who lives it. Insensibly, in both young and old, there is a disposition to reverence such a one, and at least, to some extent, consider the life as the fruit of the particular religion. Therefore, irreproachable conduct, to that degree, is sectarian teaching. But shall the education of the children of the commonwealth be intrusted only to those men and women who are destitute of any religious belief? Our recollection extends back almost to the beginning of the cominonschool system of the commonwealth. In many counties, there never was a time when ministers of Protestant sects were not fro quently selected as teachers. Some of them wore in the school room, where children of

Catholic parents were pupils, a distinctively clerical garb. When the office of county superintendent was first created, in 1854, in many counties, preachers were chosen to fill the office. The present state superintendent of public instruction is a Protestant preacher. It is is fair to presume that high moral character, the result of Christian sectarian teachIng, as well as scholarly attainments, prompted their selection. Ordination vows binding them to a particular creed were considered no disqualification. It was not assumed that the fact of membership in a particular church, or consecration to a religious life, or the wearing of a clerical coat or necktie, would turn the schools into sectarian institutions. In the 60 years of existence of our present school system, this is the first time this court has been asked to decide, as matter of law, that it is sectarian teaching for a devout woman to appear in a school room in a dress peculiar to a religious organization of a Christian church. We decline to do so. The law does not so say. The legislature may, by statute, enact that all teachers shall wear in the school room a particular style of dress, and that none other shall be worn, and thereby secure the same uniformity of outward appearance as we now see in city police, railroad trainmen, and nurses of some of our large hospitals. But we doubt if even this would repress knowledge of the fact of a particular religious belief. That, if the teacher had any, would still be effectively taught by unselfish devotion to duty. No mere significance or insignificance of garb could conceal it. The daily life would either exalt or make obnoxious the sectarian belief of the teacher.

After a most careful consideration, we see nothing of merit in any of the assignments of error which have been so earnestly pressed in the argument. The decree is affirmed and appeal dismissed, at costs of appellants.

WILLIAMS, J. (dissenting). I can go with my brethren on all the questions involved in this case, save one. I cordially assent to the proposition that teachers should be selected for the common schools because of their fitness, and not because of their religious belief or their church affiliation. I am glad that in this state and in this country the rights of conscience are no less sacred than the rights of property, and that test oaths and religious disqualifications belong to a period further back than the memory of the present generation can reach. I hope they may never be restored. But the constitution and laws of this commonwealth provide for open free schools, for all children of the proper age, that shall be secular in charac ter; schools in which the consciences and the sectarian bias of both parents and children shall be respected, or at least not interfered with. Their purpose is to provide an elementary education that shall help to fit the rising generation for actual business, and the duties and privileges of citizenship. Is