Williams, Ch. J.
Upon the facts stated in the motion, in connexion with the laws referred to therein, and the constitution of the state, several objections are made to the decree of the superior court; some of which, not having been made in that court, require no notice here, although we see nothing to change the result, so far as they have been considered.
1. The first objection made by the defendants, is, that the act of 1733, should not have been admitted in evidence, as the act referred to in the resolve of the General Assembly is a statute of 1732 ; and it is therefore claimed, that the act of [466]*4661733 could not have been the act referred to; and a number cases have been cited to show, that where, in a declaration ...... . or plea, a statute is rms-recited, either as to the time of its enactment or in other respects, it is a fatal variance. While those cases are admitted to be good law, their application to ,. , . this case is not admitted.
It is not claimed, that in this bill, the act is mis-recited. The date of the statute, under which the plaintiffs found their claim for these moneys, is not given ⅜ but it is averred in the bill, that they are the avails of lands sold under authority of the state, and excise money appropriated for the use of public schools. But the precise claim of the defendants, is, that in the act of 1839, under which the plaintiffs claim, the act of appropriation is described as passed in 1732, and the act exhibited was in fact passed in 1733. If the technical learning applicable to pleading, were to be adopted in this case, this objection would be fatal. But there is a wide difference between the construction to be given to a legislative act and a special plea. The one is the act of a party, who, if he suffers, suffers for his own fault; and upon notice, he may, under the rules of court, ordinarily rectify his mistake, by amendment. The other is an act of a body over whose proceedings the party suffering has no controul, and which no rule of court can amend. In the one case, a mistake in a date or in amount, in description, is fatal: in the other, the court may, as in cases of contract, look at the whole instrument to discover the real meaning ; and such construction is to be given, as will give effect to the intention of the parties^ if the words they employ will admit of it, ut res magis vaJe-at, quam pereat. Jackson d. Rogers & al. v. Clark & al. 7 Johns. Rep. 217, 224. “If,” says Parsons, Ch. J. “the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected.” Worthington & al. v. Hillyer & al. 4 Mass. Rep. 205.
Examining the resolve of 1839 upon these principles, there is no difficulty in the construction to be given to it.
It is found in this resolution, that by virtue of an act of the General Court, dividing the amount arising from the sale of certain townships laid out in the Western part of the state, [467]*467for the use of public schools, and certain excise moneys, the defendants received and held the same. Had this been . , . , it would have been as general and as intelligible as the statement in the plaintiffs’ bill; but the draftsman has added to the words — “ An act of the General Court,” these words— “ passed in 1732 and there was no such act of that year Now, the real question is, whether those words are to nullify the grant; for we are bound to know, that there is no such act of 1732. But we also know, that there was such an act passed in 1733. The great fact found by the General Assembly, is, that the defendants have in their hands, moneys arising from the sale of certain Western townships, appropriated for the use of schools. The time of the appropriation is comparatively unimportant. The resolve, however, speaks of this appropriation as made in 1732. But as no such act was made in that year, the conclusion is, that there never was such an appropriation, or that the time is mistaken. And when we find, that the very next year, such an appropriation was made, there remains no reasonable doubt that the date of the act was mistaken. That act, too, does not appear in the late editions of our printed statutes; but the act of 1750 alludes to it, and in a recital of it, the year 1732 is named as the year of the lists upon which said appropriations were made, and the year 1733, the time, when the act of appropriation was passed ; from which it is apparent, that a mistake might, very naturally, have been made, by taking the date of the lists for the date of the act; and we cannot doubt that such is the fact. Now, such a mistake would not, according to the authorities cited, vitiate a deed. There being enough, without this date, to show what was intended, that would be rejected, upon the principle that utile non inu-tile vitiatur.
Here there is a complete description, which cannot be mistaken, of the source from which the defendants derived these moneys. The time mentioned might have raised a doubt, had there been an act of 1732, and of 1733, on the same subject. But there being no act of 1732 upon the subject, no doubt exists as to what was intended by the legislature; and we know of no such narrow rule of construing legislative acts, as will prevent our carrying it into effect.
Without, therefore, alluding to the consideration that this [468]*468^as ^een f°un<^ l>y a tribunal having cognizance of the matter, on a hearing between these parties, we think this objection cannot prevail.
2. It was further claimed by the defendants, that the fact that l^ere was suc^ an appropriation, did not tend to prove that moneys in the defendants’ hands were the avails of such appropriation ; and so that evidence should not have been received. That the act of appropriation to the use of the defendants, proved sufficiently, that they had received the avails of such appropriation, can hardly be contended. And on the other hand, when the claim is, that they had received moneys under an appropriation, we cannot see why the party should not prove, that there was such an appropriation. A man is charged with receiving money under the will of a deceased person. We see no possible objection to showing, that, by the will, he was entitled to receive it, though it might not prove he had received it. Flow far it would tend to prove, in the case before us, that the defendants had received the money, is not for us to determine. But if a school society can have no Way of raising funds, but from the legislature, or the donation of individuals, it would seem, that if it was shown, that they had funds in their hands, and they could not show that they were derived from individual bounty, and it was shown, that the legislature had made them a grant, as if the evidence was entitled to consideration, that this money was derived from the legislature.
3. Again, it was objected, that the receipts required by the statute to be lodged in the secretary’s office, were not produced nor the loss proved, and so no evidence could be given that the money had ever been received of the state. It is to be observed, that it was the towns and societies which were to give the receipts, and they were to be given to the agent of the state, and not to the plaintiffs. Aside from this, however, we know of no rule of law that excludes all evidence of the payment of money, when there is a receipt, except the receipt itself.
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Williams, Ch. J.
Upon the facts stated in the motion, in connexion with the laws referred to therein, and the constitution of the state, several objections are made to the decree of the superior court; some of which, not having been made in that court, require no notice here, although we see nothing to change the result, so far as they have been considered.
1. The first objection made by the defendants, is, that the act of 1733, should not have been admitted in evidence, as the act referred to in the resolve of the General Assembly is a statute of 1732 ; and it is therefore claimed, that the act of [466]*4661733 could not have been the act referred to; and a number cases have been cited to show, that where, in a declaration ...... . or plea, a statute is rms-recited, either as to the time of its enactment or in other respects, it is a fatal variance. While those cases are admitted to be good law, their application to ,. , . this case is not admitted.
It is not claimed, that in this bill, the act is mis-recited. The date of the statute, under which the plaintiffs found their claim for these moneys, is not given ⅜ but it is averred in the bill, that they are the avails of lands sold under authority of the state, and excise money appropriated for the use of public schools. But the precise claim of the defendants, is, that in the act of 1839, under which the plaintiffs claim, the act of appropriation is described as passed in 1732, and the act exhibited was in fact passed in 1733. If the technical learning applicable to pleading, were to be adopted in this case, this objection would be fatal. But there is a wide difference between the construction to be given to a legislative act and a special plea. The one is the act of a party, who, if he suffers, suffers for his own fault; and upon notice, he may, under the rules of court, ordinarily rectify his mistake, by amendment. The other is an act of a body over whose proceedings the party suffering has no controul, and which no rule of court can amend. In the one case, a mistake in a date or in amount, in description, is fatal: in the other, the court may, as in cases of contract, look at the whole instrument to discover the real meaning ; and such construction is to be given, as will give effect to the intention of the parties^ if the words they employ will admit of it, ut res magis vaJe-at, quam pereat. Jackson d. Rogers & al. v. Clark & al. 7 Johns. Rep. 217, 224. “If,” says Parsons, Ch. J. “the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance, that the intent of the parties may be effected.” Worthington & al. v. Hillyer & al. 4 Mass. Rep. 205.
Examining the resolve of 1839 upon these principles, there is no difficulty in the construction to be given to it.
It is found in this resolution, that by virtue of an act of the General Court, dividing the amount arising from the sale of certain townships laid out in the Western part of the state, [467]*467for the use of public schools, and certain excise moneys, the defendants received and held the same. Had this been . , . , it would have been as general and as intelligible as the statement in the plaintiffs’ bill; but the draftsman has added to the words — “ An act of the General Court,” these words— “ passed in 1732 and there was no such act of that year Now, the real question is, whether those words are to nullify the grant; for we are bound to know, that there is no such act of 1732. But we also know, that there was such an act passed in 1733. The great fact found by the General Assembly, is, that the defendants have in their hands, moneys arising from the sale of certain Western townships, appropriated for the use of schools. The time of the appropriation is comparatively unimportant. The resolve, however, speaks of this appropriation as made in 1732. But as no such act was made in that year, the conclusion is, that there never was such an appropriation, or that the time is mistaken. And when we find, that the very next year, such an appropriation was made, there remains no reasonable doubt that the date of the act was mistaken. That act, too, does not appear in the late editions of our printed statutes; but the act of 1750 alludes to it, and in a recital of it, the year 1732 is named as the year of the lists upon which said appropriations were made, and the year 1733, the time, when the act of appropriation was passed ; from which it is apparent, that a mistake might, very naturally, have been made, by taking the date of the lists for the date of the act; and we cannot doubt that such is the fact. Now, such a mistake would not, according to the authorities cited, vitiate a deed. There being enough, without this date, to show what was intended, that would be rejected, upon the principle that utile non inu-tile vitiatur.
Here there is a complete description, which cannot be mistaken, of the source from which the defendants derived these moneys. The time mentioned might have raised a doubt, had there been an act of 1732, and of 1733, on the same subject. But there being no act of 1732 upon the subject, no doubt exists as to what was intended by the legislature; and we know of no such narrow rule of construing legislative acts, as will prevent our carrying it into effect.
Without, therefore, alluding to the consideration that this [468]*468^as ^een f°un<^ l>y a tribunal having cognizance of the matter, on a hearing between these parties, we think this objection cannot prevail.
2. It was further claimed by the defendants, that the fact that l^ere was suc^ an appropriation, did not tend to prove that moneys in the defendants’ hands were the avails of such appropriation ; and so that evidence should not have been received. That the act of appropriation to the use of the defendants, proved sufficiently, that they had received the avails of such appropriation, can hardly be contended. And on the other hand, when the claim is, that they had received moneys under an appropriation, we cannot see why the party should not prove, that there was such an appropriation. A man is charged with receiving money under the will of a deceased person. We see no possible objection to showing, that, by the will, he was entitled to receive it, though it might not prove he had received it. Flow far it would tend to prove, in the case before us, that the defendants had received the money, is not for us to determine. But if a school society can have no Way of raising funds, but from the legislature, or the donation of individuals, it would seem, that if it was shown, that they had funds in their hands, and they could not show that they were derived from individual bounty, and it was shown, that the legislature had made them a grant, as if the evidence was entitled to consideration, that this money was derived from the legislature.
3. Again, it was objected, that the receipts required by the statute to be lodged in the secretary’s office, were not produced nor the loss proved, and so no evidence could be given that the money had ever been received of the state. It is to be observed, that it was the towns and societies which were to give the receipts, and they were to be given to the agent of the state, and not to the plaintiffs. Aside from this, however, we know of no rule of law that excludes all evidence of the payment of money, when there is a receipt, except the receipt itself. On the contrary, it is well settled, that the receipt is but evidence of the payment, and not the only evidence, and not at all necessary, when the fact can be established without it. Rambert v. Cohen, 4 Esp, Ca. 213. Southwvick v. Hayden, 7 Cowen 334. 3 Stark. Ev. 1276.
4. But the great objection to the decree, is, that the act of [469]*4691839 is contrary to the principles of the constitution, affecting the vested rights of the defendants. In support of this , , . V J . J ⅛ u .. , tion, several cases have been cited, tending to show, that when societies separate, the corporate property remains with the parent society. That the legislature cannot take away vested rights from individuals or communities, and that grants to charitable uses are to be carried into effect according to the true intent of the donor, are principles too well established and too often recognized by this court, to be intentionally departed from. The legislature, upon the divisions of towns and school societies, have always exercised the power, so far as we are informed, of making an equitable arrangement as to the common property and the common burthens ; and unless this power is taken away, by the constitution, it must exist as before.
That instrument provides, that the rights and duties of all corporations shall remain as if the constitution had not been adopted, except as changed by that instrument itself. That it was not intended to take away the power, always exercised by the legislature, of dividing these local communities, is apparent from the fact that the division of towns is expressly recognized in the 3rd section of the 3rd article of the constitution, provided that such new towns shall be entitled to only one representative. And if the power to divide towns is not taken away, we know not where the power to divide minor communities of a similar character, is taken away. And if the right remains in the legislature of taking away from such corporations a portion of their inhabitants, for whose use the funds were given, it would seem to follow, that they must have a right to apportion those funds in such a manner as to do equal justice to all concerned ; always taking care not to violate the intent of a donor thereby; which would not be allowed, even to legislative authority.
In the case before us, the funds must have been derived from the legislature; and looking to their acts, we shall see with what intent. At an early period of our history, the General Assembly were extremely solicitous about the education of the children of this state; and in 1733, they passed the act appropriating the avails of “ the Western lands,” then so called, to be divided among the towns, and as therein pointed out, for the support of their respective schools forever; and [470]*470^ ™saPPl*ed> to be forfeited. By a subsequent act, forty on a thousand pounds was also appropriated to a like use, to be forfeited in like manner. The legislature also directed the inspectors of schools, if there was any misapplication of public money allowed for the support of schools, such as would be likely to defeat the good end proposed, to lay the same before the General Assembly, that proper order might be given thereto. And by the revised acts of 1808, it appears, that more express provision had been made, that all public moneys for the support of schools should be divided among the several districts which had kept their school according to law, in proportion to their respective lists ; which principle has ever since been pursued.
The original school fund was, then, derived from the legislature, and given to the towns, where there was but one society, for the use of schools — not for one or two schools— but for all the schools; which intention has since been more explicitly manifested. And long before the adoption of the constitution, the legislature reserved to themselves the right to correct any misapplication of those appropriations. i\t what time these moneys passed from the town of Windham to the first school society, does not appear. But it does appear, that many years before the constitution, and while the legislature had all power, they ordered that those moneys should be divided among the several school districts according to their respective lists, and reserved to themselves the power, in case of misapplication, to make further order.
The towns or societies, then, had no vested rights to these moneys, except for the uses mentioned. They were the mere organs of the General Assembly to see that these moneys are faithfully applied; and they remain liable to be taken from their controul, by the General Assembly, whenever this disposition is not made. The constitution did not alter the then existing rights of the parties, nor take away any power then subsisting, as it respects this subject. It was designed to confirm existing rights, not to change them. The tenure, then, by which this money was holden by the towns, remained as before. It was holden for the respective schools in that territory, by whatever name it was called; and if not so applied, it was subject to the order of the General Assembly for their use.
[471]*471The object of the legislature was the diffusion of knowledge among all the citizens, by means of common schools ; and for this purpose, the money was given to the towns or societies, to distribute among the districts, in such a manner as to effect that object. The defendants say, no: it was J . . , . , given to the town or society that first received it, to be ais-tributed among its inhabitants so long as they belonged to that town or society, and it was called by the name it then had. Had this been the construction, every new town, where the town received the money, and every new society, where it was received by the society, would have no interest in this fund ; and thus all the towns and societies created for more than a century, would be deprived of the benefit of that fund. With as much propriety might it be said, that it was given merely for the use of those who were school children in 1733. That is the construction, under which the defendants have acted; and the General Assembly, being informed of it, consider it a misapplication of the fund, making a partial application of it; and, by virtue of their reserved right, they make “further order” That order is, not to take from them all the money, because they were unfaithful stewards ; but to take from them that portion only, which they claim to misapply. And in doing this, we think entire justice has been done, and no legal or constitutional principle violated.
If this reasoning is correct, the legislature might not only do what in such cases they have ordinarily done, i. e. divide the school funds, upon the division of the town or society holding them, but if that is omitted at the time, under the idea that those who held it, held it in trust for the districts, then the legislature must have the power to make this division afterwards, if those who hold the funds fail to make a proper distribution of them, upon the simple ground before alluded to, that there was a misapplication.
Hitherto we have supposed, that the legislature have divided this school society, upon the application of the plaintiffs; and so they are to be considered as voluntarily withdrawing from the first society. Indeed, the argument of the defendants has proceeded upon that assumption ; and it may have been so But so far as it appears to the court from the exhibits, the General Assembly, in the year 1836, by a sove-[472]*472re'Sn acb set °ff these three districts, and separated them the first society, without the application of any one; , 11 , m consequence of which, and of the act of the defendants, they have been deprived of their interest in the common fund, for the support of their schools. Thus, they are left subject , , , , , . , „ , ’ ;{ J T. to the burthen, and yet deprived of the ordinary means. If this were the actual state of facts, it seems that the plaintiffs would have a reasonable ground of complaint that their constitutional rights were invaded, and that a valuable fund had been taken from them, without consideration.
Aside from this, however, we think, that the defendants have no reasonable ground to complain that their constitutional rights are violated ; and that entire justice has been done to them; and they are not entitled to a new trial.
In this opinion the other Judges concurred, except Church, J., who was absent.
New trial not to be granted.