man runneth, &c. Its prior existence is matter of general history, of which the court will take notice as matter of law.

The extracts from the records prove the existence of the corporation in 1762, by acts which refer back to the New Hampshire charters, as grants made to the corporation then existing. The preamble of the Act of 1794, under which the defendants claim, recognizes all grants made to the society as made to an existing corporation:

484*] *The Act of the Legislature of Vermont, passed October 27th, 1785, entitled "An Act for settling disputes respecting landed property;" an act entitled "An Act for the purpose of regulating suits respecting landed property, and directing the mode of proceeding therein," passed November 5th, 1800; also the several acts to keep the acts last aforesaid in force for later periods than those contained in said act; an Act passed November 15th, 1820, entitled "An Act for the purpose of regulating suits respecting landed property, and directing Whereas, The Society for the Propagation the mode of proceeding therein;" and all the of the Gospel in Foreign Parts is a corporation statutes ever passed in Vermont, for the limi- created by, and existing within a foreign jutation of actions, and all the additions thereto, risdiction, to which they alone are amenable; as found in the several statute books, including by reason whereof, at the time of the late revothe Act passed November 16th, 1819, en- lution of this and of the United States from titled "An Act repealing parts of certain acts the jurisdiction of Great Britain, all lands in therein mentioned;" an Act passed October this State granted to the Society for the Propa26th, 1787, authorizing the selectmen of the gation of the Gospel in Foreign Parts became several towns to improve the glebe and society's vested in this State," &c. The lease of the lands, and an Act in addition thereto, passed tenant admits that the land in question was Detober 26th, 1789; an Act passed October granted by said charter to the society. th, 1794, entitled "An Act directing the ap*The New Hampshire charter of the [*486 priation of the lands in the State, heretofore ted by the British government to the Sofor the Propagation of the Gospel in n Parts;" and all other statutes of said hat either party considers applicable se, are to be considered as a part of foregoing case, the opinions of the Circuit Court were opposed upon points:

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to the right of said society in Pawlet, contain- | patents and warrants for the land, and for such ing fifty acres. other purposes as the interests of the society may require.

The cause was tried at October Term, 1828, and after the testimony on both sides was closed the jury were discharged upon the disagreement of the judges of the court on the several points herein stated, arising upon the facts agreed in the case, and stated by the counsel for the parties. The facts agreed were:

On the 26th day of August, 1761, George III., then King of Great Britain, by Benning Wentworth, Esq., Governor of the then Province of New Hampshire, made the grant or charter of the town of Pawlet aforesaid, particularly describing the boundaries thereof to the grantees, whose names are entered on said grant, their heirs and assigns forever; to be divided to and among them into sixty-eight shares. Among the grantees whose names are entered in the said charter, is one whole share for The Society for the Propagation of the Gospel in Foreign Parts.' A copy of the charter was filed among the proceedings.

At a meeting of the society held December 17th, 1773, the society agreed that it be recommended to the society to empower Mr. Cossitt to see that justice be done to the society in the allotment of glebes, &c., in New Hampshire.

The society resolved to agree that a letter of attorney be sent to the Governor of New Hampshire, empowering Mr. Cossitt to act in behalf of the society with regard to these lands, and leaving blanks for other persons whom the governor may think proper to insert.

On the 20th of May, 1785, a report was made to the society relative to their lands, and the meeting resolved that the secretary do write to some one or more members of the Church of England in each of the States of America in which the society has any property, to take all proper care in securing said property; and further to inform such persons that it is the intention of the society to make over all such property to the use of the Episcopal Church in that country, in whatever manner and form, after communication with the *several [*483 governments, shall appear to be most effectual for that purpose.

And afterwards, on the 16th of April, 1795, Ozias Clarke executed the counterpart of a lease to the selectmen of the town of Pawlet, for the time being, for and on behalf of said town, his heirs, executors, administrators and assigns, of the tract of land mentioned in the On the 16th of May, 1794, an application plaintiffs' declaration, described as follows, to was made to the society through the Bishop of wit: all that tract of land situate, lying and be- New York, by the Episcopal Convention of ing in Pawlet aforesaid, known and dis- Vermont, requesting the society to convey, for tinguished by being the first division fifty-acre the support of the Episcopal Church of that diolot laid out to the right known by the name of cese, the land held by the society in Vermont the Society, or Propagation Right, to have and under grants from New Hampshire. The comto hold the demised premises, with the priv-mittee of the society made a report as follows: ileges and appurtenances thereto belonging, The committee agreed in opinion that the &c., from the 16th of April, 1795, and onwards Bishop of New York be assured of the society's as long as trees grow and water runs-his readiness to concur in any measures which can yielding and paying yearly, and at the end of forward the establishment of an Episcopal every year, the sum of seven pounds, lawful Church. But having considered that former money, &c. A copy of the lease was annexed applications have been made from the State of and made part of this case. And thereupon Vermont, differing in their intentions from the Ozias Clarke entered into the immediate posses-present, which were rejected by the society in sion and occupancy of the said lot of land, and has been ever since in the possession and occupancy of the same; and has paid the rent aforesaid to the town of Pawlet, yearly and every year since, at the rate of seven pounds. 482* *equal to twenty-three dollars and thirty-four cents for each year; and the town of Pawlet have received the said sum as rent yearly from Ozias Clarke, and have applied the same for the benefit of schools in the town of Pawlet. And Edward Clarke, the father of Ozias Clarke, went into the possession of the lot in the spring of the year 1780; it not appearing that he had purchased any title thereto, and so continued in the possession thereof till the defendant entered.

The case agreed contains extracts from the minutes of the society, stating the proceedings thereof at their meetings in London relative to the land in Vermont, granted by Governor Wentworth to the society. The first meeting was held on the 16th of July, 1762, and these minutes show the measures adopted by the society relative to the lands from that period down to 1810.

The proceedings on the 16th of July, 1762 and the 16th of March, 1764, show an accept ance of the donation, and a resolution that agents be appointed to take charge of the

May, 1790; and at the same time, Mr. Parker, of Boston, when he obtained a deed from the society for the conveyance of their lands in New Hampshire, had signified that he should not trouble them respecting Vermont till he should know the operation of that deed; and having never since heard from Mr. Parker on that subject, are of the opinion that there is not sufficient ground for the society to execute the present deed.

At a meeting of the society on the 16th of November. 1810, the secretary of the society was directed to obtain the fullest and most particular information respecting the nature and value of the rights of the society to the lands in Vermont, with the best means of recovering and rendering the same available.

In consequence of certain votes of the society expressive of their intention to appropriate the avails of their lands in the State of Vermont for the use of the Protestant Episcopal Church in that State, the Convention of the Church in that State made application to the society for the power of attorney: and the said society executed to the Right Rev. Alexander V. Griswold, Bishop of the Eastern Diocese, and the other agents therein named, the power of attorney, dated December 5th, 1816; a copy of which was annexed to the case.

man runneth, &c. Its prior existence is matter of general history, of which the court will take notice as matter of law.

The extracts from the records prove the existence of the corporation in 1762, by acts which refer back to the New Hampshire charters, as grants made to the corporation then existing. The preamble of the Act of 1794, under which the defendants claim, recognizes all grants made to the society as made to an existing corporation:

484*] *The Act of the Legislature of Vermont, passed October 27th, 1785, entitled "An Act for settling disputes respecting landed property;" an act entitled "An Act for the purpose of regulating suits respecting landed property, and directing the mode of proceeding therein," passed November 5th, 1800; also the several acts to keep the acts last aforesaid in force for later periods than those contained in said act; an Act passed November 15th, 1820, entitled "An Act for the purpose of regulating suits respecting landed property, and directing Whereas, The Society for the Propagation the mode of proceeding therein;" and all the of the Gospel in Foreign Parts is a corporation statutes ever passed in Vermont, for the limi- created by, and existing within a foreign ju tation of actions, and all the additions thereto, risdiction, to which they alone are amenable; as found in the several statute books, including by reason whereof, at the time of the late revothe Act passed November 16th, 1819, en- lution of this and of the United States from titled "An Act repealing parts of certain acts the jurisdiction of Great Britain, all lands in therein mentioned;" an Act passed October this State granted to the Society for the Propa26th, 1787, authorizing the selectmen of the gation of the Gospel in Foreign Parts became several towns to improve the glebe and society's vested in this State," &c. The lease of the lands, and an Act in addition thereto, passed tenant admits that the land in question was October 26th, 1789; an Act passed October granted by said charter to the society. 30th, 1794, entitled An Act directing the ap*The New Hampshire charter of the [*486 propriation of the lands in the State, heretofore granted by the British government to the Society for the Propagation of the Gospel in Foreign Parts;" and all other statutes of said State, that either party considers applicable to this case, are to be considered as a part of this case.

Upon the foregoing case, the opinions of the judges of the Circuit Court were opposed upon the following points:

1. Whether the plaintiffs have shown that they have any right to hold lands.

2. Whether the plaintiffs are barred by the three years' limitation in the Act of the 27th of October, 1785, or any other of the statutes of limitation.

3. Whether, under the laws of Vermont, the plaintiffs are entitled to recover mesne profits; and if so, for what length of time.

town, of 1761, recognizes the plaintiffs as then being an existing corporation. That charter, being a royal grant, by granting the lands to the plaintiffs, made them a corporation capable of taking and holding the lands thus granted, if they were not so before. (Cited, Dyer, 100, pl. 70; The Aldermen of Chesterfield's case, Cr. Eliz., 35; 10 Mod. Rep., 27, 208.) By the Act of 1794, all grants of land to the society are recognized as grants originally valid, and so continuing until the Revolution; by reason of which, the act declares the lands became vested in this State.

The State claims the right of the society as forfeited to the State, and grants the right to the town; and the tenant, in 1795, acknowledges the right of the town by his lease, &c., and both are in under the act.

The plaintiffs contend that the defendants The case was argued by Mr. Webster for the have admitted the right of the plaintiffs (see plaintiffs, and by Mr. Doddridge for the defend-Atlantic Insurance Company v. Conard, 1 ants. Mr. Doddridge also presented the written argument of Mr. J. C. Wright, for the defendants; as did Mr. Webster an argument for the 485*] *plaintiffs, prepared by the counsel in the Circuit Court of Vermont.

For the plaintiffs, it was argued that it was not a point in issue, or on which the court di vided in opinion, whether the plaintiffs were a corporation capable of suing in this form, that being admitted by the plea of the general issue. (Cited, 10 Mod., 207; 1 Bos. & Pull., 10; 10 Co. Rep., 122, 126; 1 Saund. Rep., 340, 342; Atlantic Insurance Company v. Conard, 1 Peters's Rep., 395, 408, 460.)

1. The plaintiffs contend that if they are a corporation capable of suing, they must be capable of taking and holding land.

2. That the right to take and hold lands is incident to a corporation. (Com. Dig., 258, F. 18, 260, F. 18, 19; Co. Lit., 2 a, 2 b; Sid., 162; Co. Rep., 30-36; Sir William Jones' Rep., 168.)

3. That the corporation existed at and prior to the date of the charter of Pawlet, 1761.

It being admitted by the pleadings that the plaintiffs are a corporation, there is no presumption against its prior existence, at any period within the time whereof the memory of Peters 4. U. S., Book 7

Peters' Rep., 450), and are estopped from denying the original right of the plaintiffs at any time prior to the Revolution. (Cited, 10 Johns., 353, 358, 292, 223; 12 Johns., 182; 3 Caines. 188; 2 Schf. & Lef. 73. 109.)

The plaintiffs are not barred by the Act of Limitation of 27th October, 1785.

1. The plaintiffs contend that the statute gives no title; that it bars only the action, and not the right of entry; and that the bar has been avoided by entry of the town, and the leases between the defendants.

Clarke, the father of the defendant, entered before the 1st of October, 1780, without color of title, and (without considering the exception to the clause) the action was barred in 1788. In 1795 Clarke permitted the town to enter (which the execution of the lease supposes), accepted a lease from the town (this he acknowledges in the counterpart executed by him, and by the payment of rent), and thereby acknowledged the right of the town.

The statute bars only the remedy therein named. (Bal. on Lim., 59; 2 Salk., 422; Bro. Parl. Cas., 67; Lord Raym. Rep., 741.)

2. The defendants are estopped by their leases from *setting up this defense [*487 under this statute. The tenant, by accepting a