J? if m !^ k- ^ -^ ii ^ w w § ' 1k u m ^'

m ^ §

1*. 1* 1* P- ,» . fe i& ft & |V f- ft- ,".

■»\. » .^ i* ? , * , ■-* : jt .a if: -f ' u ? ^ i

.1^ 4

<rS- list St. vS£ n'-LS I'fes ■ Ciii -i^i' I'i: ..v.. **^ ■ .t ,*, i^ ' .V ^ v. •" ■... O'- ^- V

' ,-{* ->,. It )X ...

"^ **^^' ^- ^- 4^ ; J

t*- ^ t^ i* II i-

i'^ ....# ...i^ .if- . ^ it

. 1^ ys l^' , J

W It. 0. "^^ ■ |if

».^i^ , i^ V.^ . at J' ii.- ^ /t ^

., f -^ .4* S' . ii' f it # r^^ ' . * ^\M -.t I. t i i^ <^ i> "

^- , 4*'- ,. ^*^ ,.¥ . m h M it it ^. ^

W W .. 1^

it ^'^ #

. Ff >^: >;«• }1

If H: ->. m

it^ i^ j\. * i^ ■ z*

(r ^ ti^

m, t% ':f' it :%., !%• § ■

iit i* '1^ 'I n '■ m ■ I

.' P- i' !p ^^ ^ J "■ '

^ J^- il^ ^^- '^ ;I ' f

■ it- (® il^ =^^ .« ■ 4 '^ §

^1' * ■ il <t ' ^ ;> 1^

it It ;I ' 3 -t f^^ ■ /

^% '• VI ■■ M ^^-^ ;f ■•- -

	^ ■- i|' V ft '■ ^- «^jii' v''^. -I*'.
I'r- i^' i*- ]?		* 1$ /*' :■.% If: "' i^ ~ ■■ If. ■ '■■ i'-^ '■* if
	)» " it''

1?' ii^ il? % ;>^ [i

■ (f \i i> ^<

fi )i iv $ 1= ■ ).

" i^ ■ i* ,# ; (?^ "1

••■ -^ . il^ . II ti ^ i^ If ,1

» ■ (^ ■ .11

j§' i#- 1^ It .i^

i')

THE CIVIL LAW AND THE CHURCH

By

CHARLES Z. LINCOLN

Legal Adviser to Govemora Morton, Black, and Roosevelt, of New York.

Author of Constitutional History of New York and

The Fundamentals of American Government.

THE ABINGIION PRESS .

NEW YORK i^i : :ClNC}TjNATI

THE NEW YORK PUBLIC LIBRARY

736053

ASTOfi, ^tNCA AND

TILOEN FOUNDATIONS

R 1916 L

Copyright, 1916, by CHARLES Z. LINCOLN

^^--i

PREFACE

In the summer of 11)08, while I was liviug iu Albany, New York, I was asked for an opinion as to the powers of church trustees under specified conditions. In my studies for the l>urpose of preparing an opinion on the question submitted, I experienced some difficulty iu discovering judicial decisions in which the question had been considered. One result of niy researches was the conviction that there ought to be a book in which might be collected the principal judicial de- cisions affecting church j)roblems. I thought that in such a book the reader should be able to find under a convenient arrangement most of the cases which present judicial decla- rations on religious questions, without being obliged to ex- amine legal digests and reports covering general topics. This book is the product of my consideration of that subject. 1 have here sought to gather in one volume the principal ju- dicial decisions rendered by the courts of Great Britain, Canada, and the United States, including Federal and State Courts, in which have been considered questions relating to distinctively religious matters, and also questions affecting local religious societies. The book embodies the result of a study of the decisions which are now scattered through a large number of reports of cases and digests, and which are here placed m a form convenient for immediate reference. It is not a text-book in the ordinary sense, but is instead a digest or cyclopedia. Many delicate and important ques- tions have been considered by the courts, and I assume that the reader would i)refer the language of the court rather than a statement of the decision from my own point of view. The reader would probably prefer to know what the court said, rather than what 1 .hiuk tb.ie.coH<*t saiftV so the work is not an attempted interpretation of judicial decisions, but a statement of the decisions as i^CTua)iy rendered.

iv PREFACE

The topics are arranged in O'clopedic form, with a sub- ordinate alphabetical classification. This arrangement has been carried as far as seemed practicable in a book of this kind, but in addition to this classification I have prepared an index in which I have sought to present in detail numer- ous items which could not readily be classified in the cyclo- pedic arrangement. So far as I am aware, no attemjtt has heretofore been made to collect and present in this form the decisions covering this important field of judicial inquiry.

Denominational Articles

In preparing this work 1 found so many decisions relat- ing to particular denominations that I concluded to arrange these in separate groups under the names of the respective denominations. lOacli to])ic of this chiss is believed to pre- sent the principal judicial decisions relating to the particu- lar denomination, so far especially as tlie (juostions involved are distinctive and peculiar to that denomination; but it .should be observed that not all <lenominational cases are ]»resented in this book. At the outset of my stu<lies I thought a comprehensive list of such cases might be prac- ticable, and I collected the ca.ses for this purpose, but so many of them were found to be of merely local interest, presenting nothing new, that I concluded to omit decisions involving only factional controversies and in which the rule declared was only a repetition of well-e.stablished legal principles.

Local Statltes

I have in this book attempted to ]>resent a view of decisions relating to the ai»plication of the civil law to the .solution (•(' general q.uestions affecting the church. It has seemed im- practicable. tA. consider jn. detail decisions which relate only to particular Vrtcal,statirtjFs;'anc<|j.ii<'cordingly, I have for the most part omitted .cas^. merijy construing statutes of that class, assuming. tihtU'lKLuderit interested in such a statute

1»KKFA« i: ,

will examine the det-isious of ih** jiartinilar state or coiui- try in whith tlie statutr was imkk t»Ml, fm- a judicial interiire- tation of it. My fxaniiiiation of judicial «lccisious to be in- cluded in thiH b<M>k cloKeil on the first of July, 1915,

I'khson.vl

For \\n' last I'lfitt'ii yt-.iiT* I lia\f Immmi unable to use my own eye« in this kind of work, and «onstt|nfntly have been and am now <I«'|N'ndcnt on n-adtTs, st»Mn»^naplu*rs. librarians, and otht-rM in collect inj; materialM su|>i>os(mI to be neetled in purxuin^' my literary Htudiit<, and also in all other work involving: the uxe of eyeHight. It hax Im-imi my custom t(» liMten tn the rtnidin^; of IxMikit and other formn of litenituie iK'arinj; on the topic under consideration, and dictate to a Ktenojirapher the matter intend«nl to U' used, includinjj ex- tractM, oriffimil nuteH. und general iliKeusHionn. The value of the wnii-e I have received from those who hav«' aid«-<l me in my work (ainnot Im» meaiNunil. It has made possibb* the ai-eompliMhment of nt<ultH which might not otherwise have U-en n'a«he«l. When in 1!»0S this b<M.k was conceive«l. I was enKap-il in preparin;: an annotated etlition of the Mes Kap«»< of the fiovernorM of New York, which edition was published tlie next year. I In'jfan my studies for the present \olume early in the autumn of I'.lOiJ, and spiMit the winter of liHKMO H4*art-hing for nniteriaK usinj; for this puipo.se the rich rf>ourc«'s of the New York State library at Albany, .i[id I was aM.siste<i in my n'searches by Mr. Fre<lerick I). <'olson. then law librarian of the State Library, wlnt not only pive me the fre<Mlom t»f the library, but atT<irde<l me s|Ktial facilities for pursuing my studies by enabling me to occupy a lorner of the libniry where Inwiks mi;iht be ex- amined, and reatl aloud to me without disturbing other persons using the library. Here I com|»ib*il a large nundjer of notes iK'aring on my plan. In this preparation I was issisted by my reaider and stenographer. Miss Marguerite IClitiibeth CirlfHn. of Albanv, New York, who had rendere<1

vi PREFACE

similar service during the preceding nine years. I take this opportunity to express my appreciation of her efficiency, not only in this service but also in the preparation of previous publications.

In the spring of 1910 I changed my residence from Albany to Buffalo, and aftcM-ward with some interruptions, I con- tinued my study in the Law Library of the Eighth Judicial District, at Buffalo, New York. The librarian, Mr. George 1). Trofts, extended to me numerous courtesies while I was using the library. The assistant librarian. Miss Katherine L. Cuthbert, rendere«l valuable service by her aid in search- ing for judicial decisions. 1 take this occasion to express my acknowledgnients to Mr. Crofts and to Miss Cuthbert for their assistance in the performance of my task.

Beginning in 11)K>, my study has been carried forward without serious interruptions. Many parts of the work have been considerably expanded beyond the original plan, re- quiring new notes and the examination of additional au- thorities. In this work I have been assisted by ray present reader and stenographer. Miss Elsie Kramer of Buffalo, New York, and I hereby express my cordial appreciation of the faithfulness and accuracy aj^died by her in working out her part in the preparation of this volume.

Buffalo, New York, March 1, 1916. C. Z. L.

CONTENTS

PAGE AcnONB 1

Akmhan Mbthodibt Episcopal Church 21

AmKIUCAN HoMt: MlSi<loNAKV S<X-IKTY. 22

Akmitkatios 23

Aktk-les or Reuuion 24

A^M^MiATK Kkkdkmkd Cmitiii 25

HaKTIST ( 'HtKtH 30

Bt:LLH 39

BlHLK. 41

HisHoi' 47

liLAHI'HKMY 41)

CaMPHKI.UT13< 51

Camp MKKTis<.t* 54

Ckmltkh^ 58

Chapel ♦»?

Cbaritablk L'sk tiS

Charitt 8.3

CBRinriAN Church 92

Chrihtianitt 97

Chriktian Missionary Sorurr^ 102

Chrihtian S<-ie.\«-k KW

CaVRrH lO*''

Chcrch KoincE 119

ChI'H<-H ok K.NCil.ANU 1-0

Church ok (lot) at HAiiHisHrR<. 124

Churchwahden.h 12G

Civil (Vicrtb. . 127

COMMINITY 8oCI»7n»> 1<>7

CoNKtssioN OF Faith 17(i

C<)N<iRK«iATION . 177

Cunoh^u.ational Church 1"9

CoNJiClENCE 1^7

CoNSTITlTloN 1H9

Cumberland Presbytehian Cm Jtrii 190

Deacons 1^

Denomination 197

1 )is4 ipi» op Christ 198

1 'l.-vSK.STKlO 190

▼ii

viii CONTENTS

PAGE

Disturbing Religious Meeting 200

Doctrine 215

DowiEisM 216

DUNKERS 217

Ecclesiastical Council 219

Ecclesiastical Courts 221

Ecclesiastical Law 232

Elections 2S3

Evangelical Association 241

Evangelical Lutheran 249

Free Baptist C^hurch 250

Free Church of Scotland 252

Friends 255

Friendship Liberal League 268

German Evangelical Lutheran Church 269

German Evanc;eli(al Synod of North America 271

German Reformed Church 273

German Society 276

Gospel 277

Greek Church 278

Guardian 280

Independents 282

Injunction 283

Jews 293

Libel 295

Lutherans 297

Mandamus 308

Masses 313

Meetings 314

Members 317

Mennonites 329

Methodist Church of Canada 331

Methodist Episcopal Church 333

Mkthodist Episcopal Church, South 359

Methodist Protestant Church . 370

Ministers 372

Missions 403

Mormons 406

Mortgage 416

Mortmain 420

Municipal Ordinances 421

Music 422

New Thought Church 424

Norwegian Evangelical Lutheran Church 425

(ONTKNTS ix

v\r,r.

nuisanck . . 429

Oath 430

( )FricEUi4 431

1'akish 433

Paksosaoe 441

I'autici-lak Haptwt Church 444

Pahtition 445

Pkws 444)

I'lofs r.Hf» 4(17

1'kaykkh for the Dk:ai> 470

I'UK-'UYTKRIAN Cut'RCH 480

I'lUMiTivE Hai-tist Chuhih ')15

I'ltlMITlVK M»:th«iuiht C'hl'rcm 51t»

I'KliKA.MT^ 519

riioi'titr^ 520

I'UOTI.STANT 545

rHoTi-sTAVT Epu*<"«>fal C'mi-hch 548

(juo Warrant!) 574

IlKroRMKU ('HlRrH 575

IU:»i)RMiu> Di T< H Church 578

lit:rtiRM>U) l^HUiUYTERiAN Chuhch 587

ItKi.UiioN 589

Kr-i-Hiiors Hkukk 597

iiKLHilOt'M C«)RJn)R,^Tlo^^ 598

RKUtsioi'it Ehtabuaiimcnt t)17

Ri:utii()i'ri Frckimim i>18

KKi-Kiioih (Jamh tJ20

lU I i<.i.)i s l*Ri.\*ii-t.» 027

lC».i i.i'it -. S<M iKTir.s (')28

H) 1 I'.K'i •- '\i .1 ► 1. vims (V47

Kk.i.h.kh •* Wiiu-iur •i-*)!

IU)MAN (*athi)U<- Ciitr* h ''»-'>7

Salvation Army 090

KCHIHM 093

S rsK 0«>4

095

Sm'iakian lN!«TinTH»s 708

Skitahian lNrtTHr<-ni>N 710

Shakkk-s 719

SuANDt:H 727

Spirtital and Phiixisophical Templk 72S

SpiltlTTAUSTW 729

S«iis4RipTioN 731

-..,.^ 743

X CONTENTS

PAGE

Sunday School 789

Superstitious Use 790

swedenborgians 792

Taxation 793

Town 800

Treasurer 803

Trustees 805

Trusts 824

Unincorporated Society 844

Unitarians 847

United Brethren in Christ 852

United Presbyterian Church 864

Universalist 865

Voters 868

Wesleyan Methodist 874

Will 87&

Winebrennerians 894

Witness 895

Young Men's Christian Association 905

TAIU.K OF CASES

Aljorn€'thv v Society of the C'hunli

nf thf I'urituas :i D.ilv (N. \j I . . .453, 455, 405, 465

Al)y.s.-^ini.iii Hjiptwt Ch., He. . i:{ N. V. Supp. 919 G4()

A.kl.y V Irwm. . . 71 Misc. (N. V.; 239 381, 557, 562

Ada St. Methodist Kpis. Church v

( iiiriLHcy tit; 111. 132 18, 807

Adiiir V State i:M Alii. 183 206, 653

Adiiiii.s V Cuv 19 \ t . 3'>H 756

.V.iiitiis V Howe 14 Miuss. 340 622, 795, 795, 844

.\iljiiii-< V Kasch J Sir. (Kng.) 1133 126, 229

Ad. y V Tli<-ol)iild 1 ( "urteLs (Kne.) 373 123, 267

.\<ln:iiii V ( 'ole 6 Hvuv. (Eng.; 353 422

.\fricHii liapti-st Church v White 24 Ky. L. R. 646 234,812

African .\!.th«Mii.st li<'thcl Church,

IkdtiiiK.re V Cjirnuuk 2 Md. Ch. 143 4, 4, 616, 809

.Vfrican Meth. KpiMcopaJ Ch. v

Cl)u-k ^ 25 La. Ann. 282 21,141

.\friran .Meth'xlLHt K p i h c o |i a 1

Church V New Orleans. . 15 La. Ann. 441 21, t>49

.\ f r i c a n Meth. Kpis, Iniou

( hurch. lie 28 Ta. Sup. Ct. 193 21, 599

.\itken pj<tate, Ite l'»K Pa. 541 792

.\ldcn V St. lVter'« l*arij<h, Svea-

m..n> " ir>,S III. (Wl 81, 844

Alderman v Phelps 1.') .Mjls.-*. 225 761

Ale.xand.r v liowers 79 S. W. (Tex.) 342 132, 226

-Mex.indcr v Slavcn.-* 7 IJ. Mon. (Ky.) 351 830

.Mexandcr Pn-j^hvferian Church,

Philadelphia .Mt Pa. St. 154 531

.\1I<M V DrmiiiK 11 N. li. 133 776

All<«n V Dufhe 43 Mich. 1 610, 739, 778

Allen V North IXw Moinco Moth.

Kpis. Chu 127 la. «KJ 603, 610, 635

All Saints Church v Lt»vett. . I Mall's Sup. Ct. 195 604, HIO

AIna. InhahitantM of, v Plumnier 3 Me. 88 439, 801

-Mton Hay Camp Meeting .Xwmh

ciation V .Mton 69 N. H. 311 .55

American Bible So<-iety v Nobh- 11 Ilich. Eq. (S. C.) 156, 175 420

.\inerican Bible .Society v Wetmore 17 C<jnn. 181 881

.\mcrican Primitive Society v

Pilling 4 Zab. (N. J.) 653

236, 517, 633, 696, 813, 820, 870 .\merican .Sunday School I'nion v

Phihul.lnhia 161 Pa. St. 307 793

.\merican 'I nut .Society v At water. 30 Ohio St. 77 887

Aim-ricjui Tract .Society v Purdv

Executonj ! '. 3 Houisl. i,Dcl.) 625 120

xii TABLE OF CASES

Amesbury Nail Factory Company

V Weed 17 Mass. 54 798

Amish et al v Gelhaus, et al 71 la. 170 737, 740

Anderson v Brock 3 Me. 243 . 16, 109, 180, 547, 600, 650, 721

Anderson v Wellington 40 Kan. 173 , . . . 421, 691

Andi-ew v New York Bible and

Prayer Book Society 4 Sandf. (N. Y.) 181 80

Anonymous 2 Hill (N. Y.) 375 756, 765

Anonymous Fed. Cas. No. 446 895

Antones et al v Eslava's Heiis. . . 9 Port (Ala.) 527 20, 523, 687, 816

Antrim v Malsbury 43 N. J. Eq. 288 60

Apostolic Holiness Union of Post

Falls V Knudson 21 Idaho 589 525

App V Lutheran Cong 6 Pa. St. 201 701

Arbuckle v Reaume 96 Mich. 243 777

Ai-cher v Sweetnam Fort. (Eng.) 346 460

Arden, Matter of 20 St. Rep. (N. Y.) 865 606, 637

Argar v Holdswort h 2 Lee (Eng.) 224 120

Arnd v Amling 53 Md. 192 902

Arnold v Arnold 13 Vt. 363 430, 901, 902

Arthm- v Norfield Cong. Church . . 73 Conn. 718 183, 374, 401, 751

Arts V Guthrie 75 la. 674 706

Ash V Methodist Ch 27 Ont. App. Re. 602 155, 332

Ashby V WeUington 8 Pick. (Mass.) 524 440, 802

Aspell V Hosbein 98 Mich. 117 779

Associate Presbyterian Cong., He- bron V Hanna 113 App. Div. (N. Y.) 12 615

Associate Reformed Church v Trustees Theological Seminary,

Princeton 4 N. J. Eq. 77 27, 27, 29, 838

Association for the Benefit of Col- ored Orphans in New York v

New ^'ork 104 N. Y. 581 653

Atcheson v Everitt 1 Cowper (Eng.) 382 265, 900

Atkinson v Bell 18 Tex. 474 523

Attorney General v Bishop of

Chester 1 Bro. C. Cases (Eng.) 444 47, 877

Attorney General v Bishop of

Oxford 1 Bro. C. C. (Eng.) 444 n 831

Attorney General v Boultbee. ... 2 Ves. (Eng.) Jr. 380 86

Attorney General v Calvert 23 Beav. (Eng.) 258 72

Attorney General v Christie 13 Grant's Ch. (Can.) 495 253

Attorney General ex rel Independ- ent or Congreg. Church of Wap-

petaw V Clergy Society 8 Rich Eq. (S. C.) 190, 10 Rich Eq.

(S. C.) 604 84

Attorney General v Cock 2 Ves Sen. (Eng.) 273 33

Attorney General v Delaney Ir. 10 C. L. 104, 121 477

Attorney General v Drummond.. . 3 Dru. & War. (Eng.) 162. .97, 396, 546 Attorney General ex rel Abbot v

Dublin 38 N. H. 459 . . 73, 180, 215, 376, 377, 706

Attorney General ex rel Marselus

V Dutch Reformed Church, New

York 36 N. Y. 452 398

Attorney General v Fishmongers Company 2 Beav. (Eng.) 151 478

TABLi: or CASES xiii

Attorney General ox rr-l Ter \'ree v

OorlinKs 55 Mich. 562 149, 196

Attorney ( Icntral v Gladstone. . . 13 Sim. (Eng.) 7 883

Attorney General v Guise 2 Vern. (Eng.) 266 88

Attorney General v Hall 2 Irish K. 291, 309 (1896)

86,117,122,477,479.592

Attorney General v Herrifk .\nil). (luip;.) 712 74

Attorney General v Jolly 1 Rich i:q. (S. C.) 99. . .79, 81, 89, 832

Attorney General v Lawe.s 8 Hare (Eng.) 32 87

Attorney General v Matthew. ... 3 Ru.s.s. (Eng.) 500 238

Attorney General ex rel Bailey v

Moore's Executors ". . 18 N. J. Eq.2o6, 19 N. J.Eq.503. 77,888

Attorney General v Old South Scv

eiety in Boston 13 Allen ^lass.) 474 88, 90, 815

Attorney General v Parker 3 Atk. (Eng.) 576 439

Attorney General v Pearson 3 Merv. (Eng.) 353 843

Attorney General v Power 1 Ball «.V: B. Rep. (Ir.) 145 47

Attorney General v Projirietors of

Meeting House in Federal St . 3 Gray (Mass.) 58. . .163, 178,436,

458, 505, 534, 630, 643, 652, 799, 842

Attorney General v Smithies 1 Keen (Eng.) 289 127

Attorney CJeneral y Stepney 10 \es. Jr. (Eng.) 21 887

Attorney General v Stewart 2 Merv. (Eng.) 143 420

Attorney General y Union Society,

Worcester lit) Mass. 167 833

Attorney General v Wallace 7 B. Mon. (Ky.) 611 277, 830

Attorney General v \\ils(in HI Sim. (Eng.) 210 85

Atwater v \\'o()dhridge <> Conn. 223 796

At wood V Welton 7 Conn. 66 900

Aul)urn Theological Seminary v

Childs 4 Paige Ch. (N. Y.) 419 826

Auburn Theological Seminary v

iM'llogg 16 N. Y. 83 876

Auburn v Y. M. C. A., Auburn . 8(i Me. 244 799, 906

Auch's Succession 39 La. Ann. 1043 469

Auracher y Yerger 90 Iowa 558 135, 243

Austin V Thomas 14 Mtuvs. 338 433, 439

Avery v Bakt-r 27 Neb. 388 643

Avery v Stewiu-t 2 ( "onn. 69 776

Avery v Tyringham 3 Mass. Re. 182 219, 401

Aylw\u-d y'O'Brien 160 Mass. 118 463, 659

Ayres v Trustees Meth. Episcopal

Chu. N. Y 3 Sandf. Sup. Ct. (N. Y.) 351 ... .636

Ayres v \\'eed 16 Conn. 291 885

Backes, Matter of 9 Misc. (N. Y.) 504 473

Bailey v Lewis 3 Day (Conn.) 450 635

Bailey v Methodist Epis. Church,

Freeport 71 Me. 472 817

Bailey v Trustees, Power Street

Meth. Epis. Church 6 R. I. 491 465

Bailey v Wells 82 la. 131 109

Bak(>r v Commonwealth 5 Pa. Co. Ct. 10 752

Baker v Ducker 79 Cal. 365 576, 696

Baker v Fales 16 Mass. 488 108, 377, 703, 704

Baker v Lukens 35 Pa. St. 146 788

Baker et ai v Nachtrieb 10 How. (U. S.) 126 170

xiv TABLE OF CASES

Baka- t SicrttoB 1 Keen (lig-) 224 85

BaMwin v Fire^ M. IL Churtii. . 79 Wa^ 57S 10

Baldwm v First Panst in Fitch-

botg S Pkk. (Mass,) 4&4 43S

B^liiraavMcClincfc. 1 Me. 102.- 399

Ball V S-tat^ 67 Miss. 35S 205

BahaeH v Cimreii Home and In-

firmajy. Baltimore. 110 Mi 244 649, 612

Ban^ T Sdcbt 1 Mass. ISl 439

Bar-- - ~booip«m 24 T. L. E- (Eng-l S41 122

B^ Derfaod v Mavberrv 4S Me. 19S .774

BcLi _ _Ji T..." 4Barb. tX. Y.) SO. 74,893

Banoer t iloif 43 Tex. Gv, App. SS . .75

Baptist Chiarcli, Hartford v Witb-

erefl 3 Paiee Ch- N. Y.i 296

107. 137. 229. 374, 45a 544, 60S, 635

Baptise CoD^ V SeamveL 3 Gram's Cas. (.Pa.) 4S 2S6, S22

Baptist SodeTT, Wihcai v Wihon. 2 N. H. SOS 529

B«tim T Cal«>tt 1 Hagg. Consist. Re. (Eng.) 309. . . 65

Btttvte T Sbepberd . . 35 X. Y. 23S 796

Baiklev T DomieDv 112 Mo. 561 877

Bariley T Hayes 206 F. Mo-i 319 195

Bariioe t Ramirei 7 Philippines 41 677 ( 2)

BMBazd T Wiiippie 29 Vt. 401 466

Bmima v Firsr Pari^ Farmouth. . 6 Mass. 401 10, 99, 655

Baroes A: otJieTS Trustees First

Presbv-isian Ch-. Glens Falls v

Period 9 Barb X. Y. 3Q2 7^

Barnes t Siore- . 1 Rob. FLcdes. Rep. iF.n.g.) 3S2. .1< i

Baroert.Re 29 3S Pt. 1 L. J. Ch. (Trtg ) 871 . S2, 893

Barrett T Allai 10 C>ii>o 436 tto

Bans T Jadooc 1 PhiTtipp Ch. (Fng ) 582 136

Barry, 3k£att«- of 1&4 N. Y. 18 6S8

BaxTv T Order of C&thc& Kiugiits,

Wis 119 Wis. 362 . 320, 667

BarLboloEziev t LotfaeraB Coogre-

gati<:«i . . 35 Otic 567 646

BarJ-e-, PetJrwTiifT 163 Mass. 50© 71

Bar^ - - - -^tir« T^- Mi 5 -&, 122, 549, 561

Bto.^ -^z :.::<53^ 469

B&r ^ ^~ " 14 N- 1^ 6

Bartcm V r itipaiTKi . 65 So. ( .\la. i 390 316

Basoxa t Lazie Fed. Cas. 1089 Cir. Ct. Dis. N. Y.).

331, 334. 341, 345, 363

Bates T Bambam. . . 66 Ga. 198 34, 165. 701, S17

Bates T Sparreffl 10 Mass. 323 462

Bats^rd v EToy 44 Barb. i^J". Y.) 618 780

Baui^soo T llwiBpBOR S FMa. iPa.1, 251 138,287

BauftiaeoBiibe v Et« 9 Jut. N. S. Eng.) 210 229

BATter T Laogjey 38 L. J. Mag. Co. (N. S.) (Eng.) 1 746

Baiter t MeDoBwfl. 155 N. Y. 83

129, 152. 661, 663, 678, 827

BavbsTv vMead SO Me. 27 460

BeaA t Alleii 7 Him. (^sT. Y.) 441 540

Beadaem v Pc8-caiK>Titii Bodge. . . 68 X. H. 382 762

BeaH T SiiTviving Ex'r?. of Foi . . 4 Ga. 404 .73

TABLK OF CA8E.S iv

Beam v First Meth. Epis. Church 3 Pa. L. J. Rep. 343. 8, 63, 113, 596, 613 Bean ▼ Chnstian Church, South

Danburv 61 N. H. 260 .96, 616

Bear V Headey 98 Mkh. 279

136. 165, 229. 630, 853, 860

Beanlslv v Foot 2 Root Conn. 399 895

Beaver V Fil5on 8 Pa. St. 327 492.829

Beckett V La wTence 7 Abb. Pr. N. S. <N. Y.) 403 212. 569

Beckwith v McBnde A Co 70 Ga. 642. . 5

Bectwith V Rector, etc.. St-

Philips Parish 69 Ga. 564 79,566

Be|A)ie v Levi. ... 1 Crompt. A Jt. F.ng i 180 750

Bell V Graham 1 Nott A McG. S. C.) 168 211

BeUport Parish V Tooter 29 Barb. (X. Y.) 256

600, 615, 630. 835

Beman v Wesj^et '.^ M h "4'j 775

Benedict v BacheWer J4 MkL. 42-5 778

Bennett v Brook* 9 .Vikn Mas?. US 788

Bennett v Morgan 112 Ky 512 148. 154. 215

Bennett v Stale 1 S * jih Tenn. 411 903

Benscm v I>rake .>5 Me -^.So 7T6

Bwiiiger v Steinhaui^-r 154 Fed. 151 173

Beresfotd v Jervi^ 11 Ir. L. T. R. 128 476

Berrian v Methodist Sori*»»v V*^

York 4 .\bb. Pr N V 424 18. 431

BeTr\- V Clar\- 77 Me. 4S2 7S3

BeTr\Tnan V keese 11 B. Mon. . Kv.) 287 532,638

Bef hanv Cong. Ch. v Mo«^ 151 Iowa 521 150

I .te 109Ga.ll7 210

Congregational Society,

Miuaietown 11 Vt. 2S3 119, 325, Wl

Billiard t Board of Education.

Topeka 69 Kan. 53 HS

Bird v Merkke 144 N. Y. 544 350

Bird V St. M^zk's Church.

Waterioo 62 la. 567 48, 140. 44a 553, 560^ 561

BiBbeevEvaoe 4 Me. 374 3»4, 438

Bbooe V Thveatt 74 .\rk. 515 81

Bishop V Stone 1 Hagg. Con. Re. ^Eng.; 424 24

BlairvOdin 3 Tpx. Rep. 288 674.687,688

Blair v Seaver _V. Pa. 274 903

Blanc V .\l=bur> 6:% Tex. 489 663

BlasB V .\nderson .^7 Ark. 4S3 . . 753

Bknon's Estate, Re Briiditlv X. P. (P%.) 338 70

Bhem v Schult* 170 Pa. 563 374

BlisE V .\merican Bible Society 2 .\Uen Mass.^ 354 339, 829

Block V McMurrav 56 Miss. 217 7»

Blocker v Bumess?" 2 .\la. N. S.^ 354 899

BkMxn V Richards . . 2 Ohio St. 3S7 lOa 765, 780

Bk>unt V Viditi 1 L-. R. 42 Ireland) aS95/ Sa 471

Bloxsome v Willianas 3 Bam. A Cre. Ting) 232 779

Bhmdell's Trusts. Re 30 Be*T. ^Eng. 360 474.477

Board of Church Erection Fund,

General .\ss«nbly Pres. Church.

United States of .\merica v First

Presb>-terian Church, Seattle. . 19 Wa^ 455 416

xvi TABLE OF CASES

Board of Education of Cincinnati

V Minor 23 Ohio St. 211 715

Board of Education Normal School District v Trustees, First Bap- tist Ch., Normal 63 111. 204 536

Board of Foreign Missions of the Presbyterian Church v Mc-

Master Fed. Cases No. 1,586 (Cir. Ct. Md.)

497, 835

Board of Street Opening, Re 133 N. Y. 329 64

Bohl V State 3 Tex. Ct. App. 683 783

Bonacum v Harrington 65 Neb. 831 129 (2), 230, 291, 661

Bonacum v Murphy 71 Neb. 463 (487) . . . 130, 131, 661, 675

Bonham v Harris 145 S. W. 169 525

Booth V Baptist Church of Christ,

Poughkeepsie 126 N. Y. 215 877

Borders v State 66 S. W. (Texas) 1102 762

Bose V Christ 193 Pa. St. 13 697

Bouchier v Taylor 4 B. P. C. (Eng.) 708 136

Bouldin v Alexander 15 Wall (U. S.) 131

34, 154, 696, 821 •

Boutell V Cowdin 9 Mass. 254 183

Bow V Parsons 1 Root (Conn.) 481 899

Bowden v McLeod 1 Edw. Ch. (N. Y.) 588 159, 832

Bowen v Irish Presby. Cong. N. Y. 6 Bosw. (N. Y.) 245 16, 522

Bowman v Domestic & Foreign

Missionary Society 182 N. Y. 494 75

Boxwell V Affleck 79 Va. 402 336

Boyce v Christian 69 Mo. 492 878

Boyles v Roberts 222 Mo. 613

115, 117, 176, 189, 191, 193, 195, 693

Boynton v Page 13 Wend. (N. Y.) 425 757, 773

Bradbury v Cary 5 Me. 339 610

Bradfield v Roberts 175 U. S. 291 683

Bradshaw v Jackman 21 L. R. Ir. 12 474

Brainard v Colchester 31 Conn. 407 543

Brannigan v Murphy 1 Ir. Rep. 418 (1896) 76, 477

Breeks v Woolfrey 1 Curteis (Eng.) 509 476

Brennan v Brennan Ir. Rep. 2 Eq. 321 473

Brewster v Hendershot 27 Ont. App. 232 707, 853

Brewster v McCall's Ex'rs 15 Conn. 274 405, 880, 881

Brick Presby. Ch., Re 3 Edw. Ch. (N. Y.) 155. . .65, 448, 538

Brick Presbyterian Church v New

York 5 Cow. (N. Y.) 538 65, 538

Bridges v Bridges 93 Me. 557 784

Bridges v Pleasants 4 Iredell's Eq. (N. C.) 26 404

Bridges v Wilson 11 Heisk, (Tenn.) 458 158, 228

Bristor v Burr 120 N. Y. 427 397, 442, 823

Broad Street, Sewickley Methodist

Episcopal Ch 165 Pa. St. 475 798

Broadway Christian Ch. v Com- monwealth 23 Ky. (Part 11) 1695 797

Brock V MiUigan 10 Ohio 121 897

Brockway v Allen 17 Wend. (N. Y.) 40 14

Bronson v St. Peter's Ch., Auburn. 7 N. Y. Leg. Obs. 361 452

Bronson v Strouse 57 Conn. 147 293, 837

TABLE OF CASES xvii

Brooke V Shacklett, (Carter v

Wolfe) 13 Gratt. (Va.) 300 323, 338, 342

Brooklyn v Toynbee 31 Barb. (X. Y.) 282 763

Brothers of the order of Hermits of St. Augustine v Philadelphia

County 4 Clark (Pa.), 124, Brightly N. P.

116 533

Browers v Fromm Add. Pa. Rep. 362 476

Brown v Clark 102 Texas 323 143, 191, 195

Brown v Kolsey 2 Cash. (Mass.) 243 78

Brown v Lutheran Ch 23 Pa. St. 495 641, 831

Brown v Monroe 80 Kv. 443 367, 702

Brown v Porter 10 Mass. 93 394

Brown v State 46 Ala. 175 203

Tirown v Thompkins 49 Md. 423 404, 554

Bruce v ('<'nlr;il Methodist Epis- copal Church 147 Mich. 230 608

i^ninifitt V Roberts L. R. 5 Com. PI. (Eng.) 224 452

lirundage v Deardorf 92 Fed. 214, aff'g. 55 Fed. 839

136, 707, 831, 856, 862

liruimemneyer v Buhre 32 111. 183 383, 840

lirunnett v Clark 1 Buff. Sup. Ct. (Sheldon) (N. Y.)

500 747

Brunswick v Dunning 7 Mass. 445 438

Br>an, et al v Wat.son 127 Ind. 42 739

Bryant v Biddeford 39 Mc. 193 760

Br>-ant v McCandless 7 Ohio (Pt. 11) 135 834

Bryson's Estate, Re 7 Pa. Sup. Ct. 024 344, 405

Buettner v Frazer 100 Mich. 179 154, 326

Bulkeley v \\'orthington Ecclesi- astical Society 78 Conn. 526 404

Bullock, Re 6 Dem. Sur. Ct. (N. Y.) 335 880

Bundy v Birdsall 29 Barb. (N. Y.) 31 6, 18, 810

Burd Orphan Asylum v School

District of Upper Darby 90 Pa. St. 21 556

Burden v State 8 Ga. App. 118 209

Burke v Rector, etc., Trinity

Church 63 Misc. (N. Y.) 43, (afT'd. 132 App.

Div. (N. Y.) 930) . . 141, 565, 566, 573

Burke v Roper 79 Ala. 138 318

Burke v WaU 29 La. Ann. 38 58, 284

Burr V First Parish in Sandwich. . 9 Mass, 276 12, 147, 181,

184, 219, 220, 374, 380, 395, 397, 398

Burr Ex'rs. v Smith 7 \'t. 241 81

Burrel v Associate Ref. Church,

Seneca 44 Barb. (N. Y.) 282.. 156, 542,615, 696

Burry's Appeal 1 Monag. Pa. Sup. Ct. Cas. (Pa.)

89 747

Burt V Oneida Community 137 N. Y. 346 172

Burton v Grand Rapid.s School

Furnitm-e Company 10 Tex. Civ. Rep. 270 20

Burton v Henson 10 Meeson & Welsby (Eng.) 105. . .434

Bush V Conmionwealth 80 Kv. 244 902

Bush V State 5 Tex. Ct. App. 64 205

Bushong V Taylor 82 Mo. 660 355, 539

Bastin v Rogers 11 Cush. (Mass.) 346 778

xviii TABLE OF CASES

Butler V Kelscy 15 Johns (N. Y.) 177 774

Butler V Trustees, Parochial Fund Protestant Epis. Church, West- ern N. Y 92 Hun. (N. Y.) 96 572, 838

Button V American Tract Society. 23 Vt. 336 880

Butts V Swartwood 2 Cow. (N. Y.) 431 904

Byers v McCartney 62 la. 339 842

Cahill V Bigger 8 B. Mon. (Ky.) 211 444

Cain V Daly 74 S. C. 480 782

Calkins V Cheney 92 lU. 463 529, 558, 637, 808

CaUsen et al v Hope et al 76 Fed. (U. S.) 758 299, 306

Calvary Baptist Church v Dart. . 68 S. C. 221 37, 419

Cammeyer v United German Lu- theran Churches, New York ... 2 Sandf. Ch. (N. Y.) 208

306, 327, 603, 821 Campbell v International Life As- surance Society, London 4 Bosw. (N. Y.) 298 763

Campbell v Paddington ..... 24 Eng. Law and Eq. Re. 597 544

Canadian Rehgious Association v

Parmenter 180 Mass. 415 119, 320, 671, 808

Canajoharie and Palatine Church

V Leiber 2 Paige Ch. (N. Y.) 43 604

Candia v French 8 N. H. 133 802

Cann v Rector, etc., Chu. of the

Holy Redeemer, St. Louis 121 Mo. App. 201 2, 568

CantreU v State 29 S. W. (Tex.) 42 205

Cape V Plymouth Cong. Church. . 117 Wis. 150, 130 Wis. 174

185, 323, 516, 518, 525, 605, 830 Capital City Athletic Association

V Police Commissioners, Green- bush 9 Misc. (N. Y.) 189 749

Cargel v Grosvenor 2 Root (Conn.) 458 642

Cargill V Sewall 19 Me. 288 17, 395

Carnell's Estate, Re 9 Phila. (Pa.) 322 889

Carpenter v Crane 1 Root (Conn.) 98 776

Carpenter v Miller 3 W. Va. 174 404

Carrick V Canevin 55 Pa. Super. Ct. 233, 243 Pa.

Super. Ct. 283 666

Carskadon v Torreyson 17 W. Va. 43 443, 837

Carter v Balfour Adm 19 Ala. (N. S.) 814 885

Carter v Branson, et al 79 Ind. 14 267, 536

Carter v Green 3 Kay & J. (Eng.) 591 81

Carter v State 63 Ala. 52 896

Carter v Whitcomb. 74 N. H. 482 616, 827, 905

Gary v Abbot 7 Ves. Jr. (Eng.) 490 670

Catlett V Trustees, Meth. Epis.

Ch., Sweetser Station 62 Ind. 365 739

CatUn V Trinity College. 113 N. Y. 133 799

Cattron v First Universahst So- ciety, Manchester 46 Iowa 106 15, 818

Centenary Methodist Episcopal

Church V Parker 43 N. J. Eq. 307 842, 844

Central MiUtary Tract R. R. Co.

V Rockafellow 17 111. 541 903

Central Park Baptist Church v

Patterson 9 Misc. (N. Y.) 452 6

TABLE OF CA8ES xix

Chambers v Calhoun 18 Pa. St. 13 3, 731

Chambers v Hiegins 49 S. W. (Ky.) 436 102

Charleston v Allen G Vt. (533 374, 387, 394

Charter Church of Mother of God,

Czenstochowa, Re 5 Lack. Leg. N. (Pa.) 128 613

Cha.se v Chenev ."SS 111. .509

140, 149, 222, 224, 393, 559, 619, 652

Cha.se V Merrimaek Bank 19 Pi<-k. (Ma.ss.) 564 437

( 'hatard, Bish<)|) v O'Donovan . . . .SO Ind. 20 535

Chatham v Hrainerd 11 Conn. 60 81

Chestnut v Harbaugh 78 Pa. St. 473 757

Clu'vra Hnai Israel .\ushe Yanove und Motal v Chevra Bikiir Cho-

Um .\ushe K<xlof Sholem 24 MLsr. (N. V.) 189 293, 633

Chevra Medra-sh .\uschei .Makaver V Makower Che\Ta .\uechi Po- land <><■. X. V. Supp. 355 293, 601

Chicago V Baptist Theological

I'nion 11") III. 24.5 794

Chick V Trevett 20 Me. 402 818

Chisholm v State 24 S. W. (Tex. Grim. App.) 646. . .207

Chittenden v Chittenden 1 .\m. L. Reg. (N. Y.) 538

349 488 604

Christ Churcli v Phillii>s 5 Del. Ch. 429 '. . . .'.155

( "hrist Church v TriLstees of Dona- tions and Bequests for Church pur|H)ses: Truster's of Donaticjns

and Be(iuests v Christ Church. . 67 Conn. 554 647

Chri.stian Church v Cari)enter. . . 108 la. 647 94, 700

Christian Church of Sand Creek v

Church of Christ, Sand Creek. . 219 111. .503 52, 53, 141, 699

Christian Church, lluntsville v

Sommer 149 Ala. 145 112, 163, 286

( 'hri.stian Society, Plymouth v Ma-

comlx-r " 5 Mete. (Mass.) 155 96, 640

( 'hurch V Bullock 109 S. W. (Te.x.) 115 675, 718

Church Kxtension of the Meth.

i:i»is. ( 'hurch V Smith ......... 56 Md. 362 341, 885, 893

Church of Christ v Christian

( 'hurch. Hammond 193 111. 144 94, 826

Church of .St. Francis, Pointe

Coupee V Martin 4 Rob. iLa.) 62 162,674

( 'hurch of the Epiphany v Raine. . 10 ( )hio Dec. 449 543

( "hurch V Scibert 3 Pa. St . 282 226, 275, 309, 319

Chur.h V Well's E.xecutora 24 Pa. 249 462

( "icottc V .\nciaux .53 Mich. 227 1.57, 684

( "illev V ( 'avford Smith (N. 11. j 1.50 802

Cincinnati v Babb 29 Wkly. Law. Bui. (Ohio) 284. . . ..530

Cincinnati lioard of Education v

Minor 23 Ohio St. 211 45

City Bank, New Orleans v Mc-

rnt\Te 8 Rob Re. (La.) 467 454

City Coimcil, Charleston v Ben- jamin 2 Strobh. L. (S. C.) 508 769

Clap y Smith 16 Pick. (Mass.) 246 746

Glapp y Hale 112 Mass. .368 783

XX TABLE OF OASES

Clark V Brown 108 S. W. (Texas) 421

137, 156, 222, 318, 528, 846 Clark V Evangelical Society,

Quincy 12 Gray (Mass.) 17 841

Clark V O'Rourke Ill Mich. 108 845

Clark V State 78 S. W. (Tex.) 1078 208

Claughton v Macnaughton 2 Munf. (Va.) 513 551

Clayton v Carey 4 Md. 26 312

Cline V State 130 Pac. (Okl.) 510 201 (2)

Clinton v State 53 Fla. 98 898

Coates V New York 7 Cow. (N. Y.) 585 63

Cobb V Denton 6 Baxter (Tenn.) 235 893

Cochran v Camden 15 Mass. 296 12

Cockreham v State 7 Hump. (Tenn.) 11 208

Cocks V Manners 12 L. R. Eq. (Eng.) 574 89

Cohen v Congregation Shearith

Israel 114 App. Div. (N. Y.) 117. . . .60, 232

Coit V Comstock 51 Conn. 352 827

Colby V Northfield and Tilton

Congregational Society 63 N. H. 63 451, 463

Coleman v O'Leary 114 Ky. 388 313, 474, 672, 887

Collier v Baptist Education So- ciety 8 B. Mon. (Ky.) 68 737

Combe v Brazier 2 Desaus. (S. C.) 431 517

Commissioners of Charitable Do- nations and Bequests v Walsh. . 7 Ir. Eq. Re. 34 n 474

Committee of Missions v Pacific

Synod 157 Cal. 105 226, 512

Commonwealth v Alexander 185 Mass. 551 787

Commonwealth v Barnard Thach. Crim. Cases (Mass.) 431. .898

Commonwealth v Batchelder. .... Thac. Cr. Cas. (Mass.) 191 . . .624, 898

Commonwealth v Bearse 132 Mass. 542 57

Commonwealth v Burke 16 Gray (Mass.) 33 897

Commonwealth v Burry 5 Pa. Co. Ct. 481 762

Commonwealth v Buzzell 10 Pick. (Mass.) 153

387, 901, 902, 903

Commonwealth v Cain. 5 Ser. & R. (Pa.) 510 234, 870

Commonwealth ex rel Miller v

Cornish 13 Pa. St. 288 21

Commonwealth v Cuyler 5 Watts. & S. (Pa.) 275 393, 796

Commonwealth v Davis. ....... 140 Mass. 485 421

Commonwealth v Dupuy Brightly N. P. (Pa.) 44. . .211, 595, 772

Commonwealth v Ellenger 1 Brewst. (Pa.) 352 896

Commonwealth v Fields 4 Pa. Co. Ct. 434 769

Commonwealth v Fletcher 12 Mass. 441 266

Commonwealth v Foster 28 Pa. Sup. Ct. 400 781

Commonwealth v Fuller 4 Pa. Co. Ct. 429 652, 770, 786

Commonwealth ex rel Gordon v

Graham 64 Pa. St. 339 574, 820

Commonwealth v Green 4 Whart. (Pa.) 531 . .483, 490, 503, 507

Commonwealth v Hagan 140 Mass. 289 763

Commonwealth v Herr 229 Pa. 132 626

Commonwealth v Houston 3 Pa. Dist. Re. 686, 14 Pa. Co. Ct.

395 771

Commonwealth v Jeandell 2 Grant's Cas. (Pa.) 506 772, 777

Commonwealth v Jennings 3 Gratt. (Va.) 624 213

TABLE OP CASES xxi

Commonwealth v Kauffman 1 Pa. Co. Ct. 410 897

Commonwealth v Keithan 1 Monag. Pa. Sup. Ct. Cas. 368. . .761

Commonwealth v Kendig 2 Barr. (Pa.) 448 750

Commonwealth v Kneeland 20 Pick. (Mass.) 206 49

Commonwealth v Knox 6 Mass 76 768

Commonwealth v Louisville &

NashviUe R. R. Co 80 Ky. 291 777

Commonwealth v Lynes 142 Mass. 577 896

Commonwealth v Marzyn.ski 149 Mass. 68 752

Conmaonwealth v Matthews 2 Pa. Dist Re. 13 771

Commonwealth by Barth v Mc-

Cann 123 Ky. 247 783

Commonwealth v McDole 2 Pa. Dist. Re. 370 214

Commonwealth v Meyers 8 Pa. Co. Ct. 435 749

Commonwealth ex rel ScuU v

Morrison 13 PhUa. (Pa.) 135 870

Commonwealth v Mullins 2 Allen (Mass.) 295 896

Commonwealth v Ne.sbit 34 Pa. 398 786

Commonwealth v Robb 3 Pa. DLst. Re. 701, 14 Pa. Co. Ct.

Re. 473 771

Commonwealth v Rosseter 2 Bin. (Pa.) 360 457, 460

Commonwealth v Sampson 97 Mass. 407 781

Commonwealth v Sigman 2 Clark (Pa.) 36

100, 209, 213, 622, 650

Commonwealth v Smith 9 Mass. 107 265

Commonwealth v Spooner 1 Pick. (Mass.) 235 391

Commonwealth v Teamann 1 Phila. (Pa.) 460 .771

Commonwealth v Thomas 26 Ky. Law. Re 1128 84

Commonwealth v Trickey 13 Allen (Mass.) 559 763

Commonwealth v Underkoffer. ... 11 Pa. Co. Ct. 589 211

Commonwealth v Waldman 8 Pa. Co. Ct. 449 748

Commonwealth v Weidner 4 Pa. Co. Ct. 437 55, 751

Commonwealth v Winnemore. ... 1 Brewst. (Pa.) 356 899

Commonwealth v Woelper 3 Ser. & R. (Pa.) 29 234, 870

Commonwealth v Wolf 3 Ser. & R. (Pa.) 48 763

Commonwealth v Young Men's

Christian Association 25 Ky. Law Rep. 940 653, 799

Concord Society, Strykersville v

Stanton 38 Hun (N. Y.) 1 237, 574, 820

CondonvChurchof St. Augustine. 112 App. Div. (N. Y.) 168 684

Congregation Beth Elohim v Cen- tral Presbyterian Church 10 Abb. Pr. (N. S.) (N. Y.) 484. . .537

Congregation of the Children of

Israel v Peres 2 Coldw. (Tenn.) 620 294, 379

Congregational Home Miss. So- ciety V Van Arsdale 58 N. J. Eq. 293 184

Congregational Society Dubuque v

Fleming 11 la. 533 39

Congregational Society, Troy v

Perry 6 N. H. 164 734

Congregational Society, Bethany v

Sperry . .*. 10 Conn. 200 432

Congregational Unitarian Society

V Hale 29 A. D. (N. Y.) 396 .76, 847

Congregation of Roman Catholic

Church V Texas R. Co 41 Fed. 564 605

xxii TABLE OF CASES

ConkUn v Davis 63 Conn. 377 612

Conner, Matter of 44 Hun (N. Y.) 424, 1 St. Rep.

(N. Y.) 144 890

Connolly v Boston 117 Mass. 64 786

Connitt v Ref. Prot. Dutch Church 54 N. Y. 551

133, 134, 224, 379, 380, 381, 584 Consistory of the Reformed Dutch

Ch. of Prattsville v Brandow ... 52 Barb. (N. Y.) 228 581

Constant v St. Albans Ch 4 Daly (N. Y.) 305 815

Conway v Carpenter 80 Hun (N. Y.) 429 389, 816

Cook V Forker 193 Pa. St. 461 754

Cook V Hutchins 46 la. 706 797

Cook County v Industrial School

for Girls 125 111. 540 708, 712

Coombs V Rose 8 Blackf. (Ind.) 155 295

Cooper V McKenna 124 Mass. 284 679

Cooper V Presby. Ch.of Sandy HiU. 32 Barb. (N. Y.) 222 450, 456, 639

Copeland v Hewett 96 Me. 525 3

Corporation of Ehzabeth City v

Kenedy Bush (N. C. Law) 89 396

Cory UniversaUst Society v

Beatty 28 N. J. Eq. 570 842, 867

Cottrell V Parkes 25 T. L. R. (Eng.) 523 882

Cowan's Estate 4 Pa. Dist. Rep. 435 888

Cox V State 136 Ala. 94 206

Craig V First Presby. Ch 88 Pa. St. 42 113, 315, 789

CraigdaUie v Aikman 2 Bligh (Scotland) 529 699

Cranfill v Hayden 97 Texas 544 38

Cranson v Goss 107 Mass. 439 775

Craven v State 109 Ga. 266 777

Crepps V Durden 2 Cow. (Eng.) 640 773

Crerar v Williams 145 111. 625 84

Crocker v Old South Society 106 Mass. 489 455

Crombie v Overholtzer 11 Up. Can. 55 775

CroxaU's Estate 162 Pa. St. 579 87

Cruse V Jones 3 Lea (Tenn.) 66 3

Cubbison v M'Creary 2 Watts & S. (Pa.) 262 898

Cunningham v Mahan 112 Mass. 58 765

Curd V Wallace 7 Dana (Ky.) 190 832

Curran v White 22 Pa. Co. Ct. Re. 201 45

Currier v Trinity Society, M. E.

Church, Charlestown 109 Ma.ss. 165 816

Curry v First Presbyterian Con- gregation 2 Pittsburg (Pa.) 40 465, 808

Curtis V First Congregational So- ciety, Quincy 108 Mass. 147 464

Ciutis V Strong 4 Day (Conn.) 51 898

Cushman v Church of the Good

Shepherd 162 Pa. St. 280, 188 Pa. St. 438. . .

154, 531, 569, 622

Dahl V Palache 68 Cal. 248 236, 562

Dale V Knepp 98 Pa. 389 739

Dall V Kimball 6 Me. 171 440

Dalles City v Missionary Society

M. E. Church 6 Fed. 356 355

Daniel v Wood 1 Pick (Mass.) 102 452

TABLE OP CA8ES xxiii

Diiscomb V Marston 80 Me. 223 88

Da-shiell v Attorney Gen 6 Har. & J. (Md.) 1 87

Davidson v State 39 Tex. 129 896

Davie v Heal 86 A. D. (N. Y.) 517, aflf'd 180

(N. Y.) 545 291

Davis v Beason 133 U. S. 333 589, 592, 624-

Davis V Bradford 58 N. H. 476 725

Davis V Cong. Beth. Tephila Israel. 40 A. D. (N. Y.) 424 293, 318, 601

Davis V Owen 107 Va. 283 15

Davis V Proprietors Second Uni-

versalist Meeting House 8 Mete. (Mass.) 321 866

DavLs V State 16 So. (Miss.) 377 209

DavLs V Witts Forr. (Eng.) 14 460

Dawson v State 7 Tex. Ct. of App. 59 204

Dav, den ex dem v Bolton 12 N. J. L. 206. .328, 579, 580, 583, 585

Davton v Carter 206 Pa. St. 491 234, 483, 504

Deadcrick v Lampson 11 HeLsk. (Tenn.) 523. . . .227, 500, 705

De Camp v Dobbins 29 X. J. Eq. 36 577 (2), 611

Dedric v Hop.son 62 la. 562 900

Dees V Moss Point Bapt. Ch 17 So. Rep. (Miss.) 1 150, 320

Delamater v Miller 1 Cow. (N. Y.) 75 757

Demp.sey v North Michigan Con- ference, Wesleyan Meth. Con- nection of America 98 Mich. 444 311, 398, 874

Denni.son v Austin 15 Wis. 334 607, 819

De Ruyter v St. Peters Ch 3 N. Y. 238 599

De Sanchez v Grace Meth. Epis.

Church 114 Cal. 295 845

De Themniines v De Bonneval. . . 7 L. J. Ch. (Eng.) 35 790

Deutsch V Stone 11 Ohio Dee. 436 461

Devo.ss V Gray 22 Ohio 159 3, 84»)

De Wolf V Lawson 61 Wi.s. 469 886

Dexter v (iardner 7 Allen (Mass.) 243 258

De Zeng v Beckman 2 Hill (N. Y.) 489 809

l)icken.son's E.state, Re 56 Mi.sc. (X. Y.) 232 886

Dickerson v Kirk 105 Md. 638 521

Dick.son v Montgomery 1 Swan (Tenn.) 348 29, 832

Dieffendorf v Reformed Calvinists

Church 20 Johns (N. Y.) 12 736

Dillon V Reilly 10 Ir. Eq. Re. 152 474, 475

Dismukes v State 58 So. (Ala.) 195 112, 153

District of Columbia v Robinson. 30 App. D. C. 283 99, 767

Dochkus V Lithuanian Benefit So- ciety, St. Anthony 206 Pa. St. 25 669, 672, 681

Doe Baker v Clark 7 U. C. Q. B. (Can.) 44 878

Doe V Copestake 6 East. (Eng.) 328 74

Doe V Pitcher 6 Taunt. R. (Eng.) 363 82

Doe V Read 3 U. C. Q. B. (Can.) 244 874

Domestic and Foreign Missionary

Society's Appeal 30 Pa. St. 425 .... 75, 403, 420, 553, 884

Domestic and Foreign Missionary Society, Protestant Episcopal

Church V Gaither 62 Fed. Rep. 422 551

Domestic and Foreign Missionary Societv, Prot. Epis. Church v Reynolds 9 Md. 341 554

xxiv TABLE OF CASES

Douahoe v Ri(-hards 38 Mc. 376 45

Donnelly v St. John's Protestant

Epis. Ch 26 La. Ann, 738 14

Donovan v McCarty 155 Mass. 543 770

Doremus v Dutch Ref. Church. . . 3 N. J. Eq. 332 583

Dorn V State 4 Tex. App. 67 208

Dorner v School District No. 5 . . 137 Wis. 147 717

Dorton v Hearn 67 Mo. 301 694

Dougherty's Estate 12 Phila. (Pa.) 70 470

Douglass's Estate, Re 143 N. W. (Neb.) 299 107

Dow V Town of Hinesburgh, and

Weed 2 Aikens (Vt.) 18 389

Doyle V Lynn and Boston Rail- road Company 118 Mass. 195 785

Draper v Draper 68 111. 17 896

Dressen et al v Brameier, et al . . 56 la. 756 301

Drew V Hogan 26 App. D. C. 55 37

Drumheller v First UniversaUst

Church, Pierceton 45 Ind. 275 865

Drury v Defontaine 1 Taunt. (Eng.) 135 780

Dubs V Esher 6 Ohio Cir. Ct. 312 247

Duessel v Proch 78 Conn. 343 300, 303

Dulany v Middleton Ex'rs 72 Md. 67 78

Dulles Estate. . ._ 218 Pa. 162 833

Dutch Church in Garden St. v

Mott 7 Paige Ch. (N. Y.) 77. . . .77, 586, 634

Dwenger v Geary 113 Ind. 106

47, 60, 62, 64, 667, 669, 827

Eager v Marlborough 10 Mass. 430 434

Earle v Wood 8 Cush. (Mass.) 431 158

East Carolina Diocese v Trustees

North Carolina Diocese 102 N. C. 442 550, 555

Easterbrooks v Tillinghast 5 Gray (Mass.) 17 879

Eastman's Estate 60 Cal. 308 39

East Norway Lake Norwegian

Evangelical Lutheran Church v

Froislie 37 Minn. 447 442

Ebaugh V Hendel 5 Watts. (Pa.) 43 576

Ebbinghaus v KiUian 1 Mackcy (Dis. of C.) 247

276, 547, 575, 576, 831 Ecclesiastical Society of South

Farms v Beckwith Kirby (Corm.) 91 376

Eggleston v Doolittle 33 Conn. 396 291

Eis V Croze 149 Mich. 62 673

Eliot's Appeal 74 Conn. 586 554, 555

Ellis V State 65 So. (Ala.) 412, 10 Ala. App. 252 . .205

Elhs V State 5 Ga. App. 615 773

Elmsley v Madden 18 Grant's Ch. (Can.) 386 473

Elsas v Browne 68 Ga. 117 727

Emerson v WUey 10 Pick. (Mass.) 317 443

Emonds v Termehr 60 la. 92 685

England v Vestry Prince George's

Parish 53 Md. 466 886

Enos v Chestnut 88 111. 590 16

Episcopal Academy v Philadelphia 150 Pa. 565 556

Erwin V Kurd 13 Abb. N. C. (N. Y.) 91 453

TABLIO OF CASES xxv

llureka Stone Company v First

Christian Ch 86 Ark. 212 8

Eutaw Place Baptist Church v

Shively 67 Md. 493 789

Evangelical Association's Appeal. 35 Pa. St. 316 245

Everett v First Presbyterian

Church 53 N. J. Eq. 500 443, 496, 510, 822

Ewing V Bailev 36 111. App. 191 898

Fadness v Braunborg 73 Wis. 257. . 164, 426, 427, 706, 840, 841

Fairbanks v Lanison 99 Mass. 533 79

Fau-field v Lawson 50 Conn. 501 87

Farnsworth v Ston-s 5 Cush. (Mass.) 412 109, 115, 116

Farrell v Warren 3 Wend. (N. Y.) 254 214

Fassctt V First Parish, Boylston. . 19 Pick. (Mass.) 361 459

Faulkner v National Sailor's Home 155 Ma.ss. 458 887

Faxon v Folvey 110 Mass. 392 787

Fay, Matter of 37 Misc. (N. Y.) 532 616

Fearns.WiU, Re 27 Wk\y. Rep. (Eng.) 392 881

Feiner v Reiss 98 A. D. (N. Y.) 40 722

Feital v Middlesex Railroad Com- pany 109 Mass. 398 787

Feizel v Trustees of the first Ger- man Society of M. E. Church . . 9 Kan. 592 384, 655

FenneU v Ridler 5 Barn. & Cres. (Eng.) 406 780

Fcrnald v Lewis 6 Me. 264 324

Fernstler v Seibert 114 Pa. 196 307

Ferraria v Vasconccllos 31 lU. 1, 23 III. 456. . 139, 487, 533, 698

Festorazzi's v St. Joseph's Cath- olic Church 104 Ala. 327 475, 479

Fetter v Wilt 46 Pa. St. 4.57 210

Field V Drew Theological Seminary 41 Fed. 371 (Cir. Ct. Del.) . . 69, 344, 380

Field V Field 9 Wend. (N. Y.) 394 . . 151, 266, 641, 830

Field V Park 20 Johns. (N. Y.) 140 765

Fifield v Van Wyck's Executors. . 94 Va. .557 792

Fink V Fink Executors 12 La. Ann. 301 546

Fink V Umscheid 40 Kan. 271 664, 841, 846

Finley, Matter of 58 Misc. (N. Y.) 639 114

Finley v Brent 87 Va. 103 371

First African Methodist Episcopal

Zion Church v Hillery 51 Cal. 155 811, 823

Fiist Baptist Church, Ithaca v

Bigelow 16 Wend. (N. Y.) 28 461

First Baptist Church of San Jose

V Branhan 90 Cal. 22 15

First Baptist Chuich, Erie v

Caughey 85 Pa. St. 271 808

First Baptist Cluu-ch, Paris v Port. 93 Tex. 215 147

First Baptist Church in FrankUn-

dale V Pryor 23 Hun (N. Y.) 271 117, 541

First Baptist Church v Rapelee. . 16 Wend. (N. Y.) 605 607, 7-33

First Baptist Church v Robberson. 71 Mo. 326 878

First Baptist Ch. and Cong, v

Roase 21 Conn. 160 5

First Baptist Ch. in Schenectady v The Utica & Schenectady R. R. Co 6 Barb. (X. Y.) 313 4, 202, 429

xxvi TABLE OF CAtSES

First Baptist Ch. in Schenectady

V Troy & Schenectady R. R.

Co 5 Barb. (N. Y.) 79 4,429

First Baptist Society of Leeds v

Grant 59 Me. 245 449,449,453,543

First Ch. of Christ Scientist, AppU-

cation of 6 Pa. Dist. 745 105

First Ch. of Christ Scientist, Ap- plication of 205 Pa. 543 105

First Church of Christ Scientist in

Buffalo, N. Y. V Schi-eck 70 Misc. (N. Y.) 645, 127 N. Y.

Supp. 174 105, 789

First Congregational Church, New

Orleans v Henderson 4 Rob. (La.) 211 877

First Congregational Society

Woodstock V Swan 2 Vt. 222 742

First Congregational Church, Ionia

V Webber. . 54 Mich. 571 611

First Constitutional Presby. Ch. v

Congregational Society 23 la. 567 161, 162, 836

First Evangelical Lutheran Church

V Gardner 28 Pa. Sup. Ct. 82 732

Fust Meth. Epis. Ch., Chicago v

Dixon 178 111. 260 599

First Methodist Epis. Church. Ft.

Madison v Donnell 110 la. 5 739

First Methodist Epis. Church, At- tica V Filkins 3 T. & C. (N. Y.) 279. .4, 342, 615, 817

First Methodist Epis. Society v

Brayton. . 9 Allen (Mass.) 248 464

First Methodist Protestant Church,

Scranton, Appeal of 16 Wkly. Cas. N. (Pa.) 245 370

First National Bank, Bar Harbor

V Kingsley 84 Me. Ill 777

First National Bank, Plattsmouth

V Rector 59 Neb. 77 325

First Parish, Shapleigh, v Gilman. 13 Mass. 190 442

First Parish, Medford v Pratt 4 Pick. (Mass.) 222 436

First Parish, Quincy v Spear 15 Pick. (Mass.) 144 454

First Parish, Sudbury, v Stearns. . 21 Pick. (Mass.) 148 238, 437

First Parish, Winthrop v Town of

Winthrop 1 Me. 208 435

First Presbyterian Church, Bloom- field, Re 107 Pa. St. 543 640

First Presbyterian Ch. Wagoner v

Cumberland Pres. Ch.,Wagoner. 126 P. 197 195

First Presbyterian Church, Chi- cago Heights V McColly 126 111. App. 333 814

First Presbyterian Church of

Perry v Meyers 5 Okl. 809. .224, 376, 395, 395, 494, 630

First Presbyterian Chu. v New

Orleans . 30 La. Ann, 259 797

First Presbyterian Church, Louis- ville V Wilson 14 Bush. (Ky.) 252 . . 108, 141, 324, 509

First Piosbyterian Society of An- trim V Bass 68 N. H. 333 449

TABLE OF CASES xxvii

First Presbyterian Society, Chili

V Bowen 21 Hun (N. Y.) 389 844

First Presby. Society, Buffalo,

Matter of . . . 106 N. Y. 251 539

First Presbyterian Society, Gal-

lipolis V Smithers 12 Ohio St. 248 574, 820

First Reformed Presby. Church v

Bowden 14 Abb. N. C. (N. Y.) 356. . . .526, 810

I'irst Religious Society of Whites- town V Stone ' 7 John (N. Y.) 112 736

First Society v Brownell 5 Hun (N. Y.) 464 641

First Unitarian Sociefv, Hartford

V Hartford ' 66 Conn. 368 799, 851

First Universalist Society, Salem v

Bradford 185 M:uss. 310 799, 866

First Universalist Society, New-

buryport v Currier. . . .' 3 Mete. (Mass.) 417 735

First Universalist Societv, North

Adams & others v Fitch 8 Gray (Mass.) 421 865, 882

Fitzgerald v Robinson 112 Mass. 371 685

Fitzimmons, Matter of 29 Mis. (N. Y.) 731 . . .689, 886, 888 (2)

Fitzpatrick v Fitzgerald 13 Gray (Mass.) 400 663

Flagg V Millbury 4 Cush. (Mass.) 243 770

Flood V Ryan 220 Pa. 450 826

Flynn v Columbus Club 21 R. I. 534 745

Folds V State 123 Ga. 167 204

Foley Estate, Re 27 Misc. (N. Y.) 77 881

Follett V Badeau 26 Hun (N. Y.) 253 837

Foote V West 1 Denio (N. Y.) 544 460

Foster v Wooten 67 Miss. 540 750

FoundUng Hospital v Garrett .... 47 L. T. (Eng.) 230 120

Fourth Universalist Parish v

Wensley 5 ^^^dy. Note Cas. (Pa.) 273 867

Fox V Abel 2 Conn. 541 760

Fox V Mensch. 3 Watts. & S. (Pa.) 444 750

Foxcroft V Piscataquis Valley

Camp Meeting Association .... 86 Me. 78 55

Frahck v Lyford 107 A. D. (N. Y.) 543 730

Franch v Old South Society,

Boston 106 Mass. 479 455

Franke v Mann 106 W^is. 118 272, 525

Franklin Street Society v Man- chester 60 N. H. 342 796

Franta v Bohemian Roman Cath- olic Central Union 164 Mo. 304 670

Frazee, Matter of 63 Mich. 396 620, 691

Fredenburg v Lyon Lake Method- ist Epis. Church 37 Mich. 476 846

Fredericks v Huber 180 Pa. 572 284

Freeland v Neale 1 Robt. Eccles. (Eng.) 648 177

Freeport Bank v Egan 146 Pa. 106 14

Freligh v Piatt 5 Cowan (N. Y.) 494 464

French Adm'r. v Trustees, Gris-

wold College 60 la. 482 553

Friedlander v State 7 Tex. Ct. App. 204 206

F. V. F. (1) (1902) 1 L. R. Ch. (Eng.) 688 281

xxviii TABLE OF CAtSEH

Frierson v General Assembly of

Presbyterian Ch 7 Heisk. (Term.) 683 498, 790

Fryeburg Parsonage Fund

V Ripley 6 Me. 442 732

Fuchs V Meisel 102 Mich. 357 137, 244, 382, 833

Fulbright v Higgenbotham 133 Mo. 668 130, 196, 528

Fussell V Hail 233 111. 73 143, 191, 195

Gable v Miller 10 Paige Ch. (N. Y.) 627 (was re- versed) 144, 586

Gaff V Greer 88 Ind. 122 138, 492, 508

Gage V Currier 4 Pick. (Mass.) 399 437, 440

Gaines v State 7 Lea (Tenn.) 410 519

Gamble, Succession of 23 La. Ann. 9 457

Garrett v Nace 5 Pa. Sup. Ct. 475 246

Gartin v Penick 5 Bush. (Ky.) 110. . . 101, 116, 490, 511

Garvey v Colcock 1 Nott & McC. (S. C.) 138 819

Gasely v Separatists Society of

Zoar 13 Ohio St. 144 175

Gass Appeal 73 Pa. 39 655

Gass and Bonta v Wilhite 2 Dana (Ky.) 170 80, 721, 724, 791

Gay V Baker 17 Mass. 435 455, 457

General Assembly, Free Church of

Scotland v Overtoun (1904) Law Rep. App. Cases (Eng.)

515 108, 252, 253, 254, 864

German Evangelical Cong.

V Pressler 17 La. .\nn. 127 289

German Evangelical Lutheran

Church, Newark v Maschop ... 10 N. J. Eq. 57 164, 270

German Ref. Ch. v Busche 5 Sandf. Sup. Ct. 666 815

German Roman Catholic Church

v Kaus 6 Ohio Dec. 1028 14

Ciewin v lyit. Pilgrim Baptist

Church 166 Ala. 345 324, 845

Gibbs V Gilead Ecclesiastical So- ciety • 38 Conn. 153 9, 183, 186

Gibson V Armstrong 7 B. Mon. (Ky.) 481 359, 361

(Jilchrist v Corliss 155 Mich. 126 185

Oilman v HamUton 16 111. 225 83

Oilman v McArdle 99 N. Y.451, 12Abb.N.C.414. .475,476

Gilmer v Stone 120 U. S. 586 49?»* .

Oihnore v Lee 237 111. 402 471

Oipson V Morris 36 Tex. Civ. App. 593, 31 Tex. Civ.

App. 645, 28 Tex. Civ. App. 555. ..701

Gladstone Baptist Church v Scott. 25 Ky. L. Rep. 237 819

Olendale ll^nion Christian Society

V Brown 109 Mass. 163 604

Globe Furniture Co. v Trustees

Jerusalem Bapt. Church 103 Va. 559 17, 117

Goddard v Smithett 3 Gray (Mass.) 116 639

Godfrey v Walker 42 Oa. 562 368

Godwin v Lunan Jeff. (Va.) 96 228

Goesele v Bimeler 14 How. (U. S.) 589 175

Going V Emery 16 Pick. (Mass.) 107 78

Good V Zook 116 la. 582 892

Goodell V Union Association of the

Children's Home 29 N. J. Eq. 32 827, 893

TABLE OF CASES xxix

Gorman v Lowell 117 Mass. 65 785

Gortemiller v Rosengam 103 Ind. 414 8

Gorton v Hadsell 9 Gush. (Mass.) 508 455, 458

Goulding v State 82 Ala. 48 209

Gowan v Smith 157 Mich. 443 781

Gram v Prussia Emigrated Evan- gelical Lutheran German Society 36 N. Y. 161 .. . .289, 382, 610, 817 835

Grant v State 141 Ala. 96 727

Gray v Chi-istian Society 137 Mass. 329 318, 322

Gray v Good 44 Ind. App. C. Rep. 476 13, 638

Greater Newburgh Amusement

Company, Inc., v Sayer 81 Misc. (N. Y.) 307 749

Greek Catholic Church v Orthodox

Greek Church 195 Pa. St. 425 278, 279, 656

Green v Allen 5 Hirnip. (Tenn.) 170 358

Green v Cady 9 Wend. (N. Y.) 414 16, 20, 806

Greene v Dennis 6 Conn. 293 267, 886

Greenland Ch. & Cong. Society v

Hatch 48 N. H. 393. . . 107

Gregg V Wyman 4 Gush. (Mass.) 323 755

Gregg's Estate, Re 213 Pa. 260 890

Gridley v Clark 2 Pick. (Mass.) 403 400

Griffith V Matthews 5 Durnf. & East. (Eng.) 296 461

Griffiths V Reed 1 Hagg. Ecc. Re. (Eng.) 79 126

Griggs V Middaugh 10 Ohio Dec. 643

135, 165, 707, 853, 862 Grimes Executors v Harmon and

others 35 Ind. 198 69, 139, 158, 883

Grimes v State 105 Ala. 86 895

Grissom v Hill 17 Ark. 483 8

Groesbeeck v Dunscomb 41 How. Pr. (N. Y.) 302 123, 565

Grosvenor v United Society of Be-

hevers 118 Mass. 78 722

Grove v Trustees of the Cong, of

the Disciples of Jesus Clirist ... 33 Md. 451 218

Gudmundson v Thing\'alla Lu- theran Church 150 N. W. (N. D.) 750. . . .41, 301, 302

Guild v Richards 16 Gray (Mass.) 309 335

Gumbleton, Ex Parte 2 Atk. (Eng.) 70 265

Gump v Sibley '. 79 Md. 165 59

Guthrie v Guthrie 10. S. E. (Sup. Ct. App. Va.) 327. .489

Haacke v Knights of Liberty So- cial and Literary Club 76 Md. 429 782

Haas V Missionary Society of the

Most Holy Redeemer 6 Misc. (N. Y.) 281 608

Hackett v BrooksvUle Graded

School District 27 Ky. L. 1021 41, 716

Hackney v Vawter 39 Kan. 615 653

Hadden v Chorn 8 B. Mon. (Ky.) 70 702, 703

Hadden v Dandy 51 N. J. Eq. 154 874

Hadley V Forsee 203 Mo. 418, 16 L. R. A. (N. S.) 96. .479

Hagenmeyer v Hansehnan 2 Dem. (N. Y.) 87 313, 471

Hagenmeyer's Will, Re 12 Abb. N. C. 432 470

Hale V Everett 53 N. H. 1 98, 147, 187,

546, 632, 697, 700, 840, 851 Hall v Corcoran 107 Mass. 251 758

XXX TABLE OF CASES

Hall V Planner 1 Levinz (Eng.) 196 654

Halsey v Convention of the Prot- estant Episcopal Chm-ch, Mary- land Diocese 75 Md. 275 572

Hammel v German Cong 1 Wkly. Notes Cas. (Pa.) 411 286

Hamsher v Hamsher 132 lU. 273 905

Hancock v Supreme Council Cath- olic Benevolent Legion 67 N. J. Law 614 676

Hanson v Little Sisters of the Poor. 79 Md. 434 531, 600

Happy V Morton 33 lU. 398 72

Harbison v First Pres. Society ... 46 Conn. 529 321, 631

Hard v Wiley 87 Va. 125 292

Hardin v Trustees of Second Bap- tist Church of City of Detroit . 51 Mich. 137 321

Hargrave & Taylor (HiU. 13 W, 111) Fort (Eng.) 375. .765

Harlem Presbyterian Chinch v

New York 5 Hun (N. Y.) 442 613

Harmon v Dreher 1 Speer's Eq. (S. C.) 87

137, 298, 390, 705

Harper v Straws 14 B. Mon. (Ky.) 48 116, 541, 542

Harrel v State. . 38 Tenn. 125 901

Harriman v First Bryan Baptist

Church 63 Ga. 186 602

Harris v American Baptist Home

Mission Society 33 Hun (N. Y.) 411 890

Harris v Crosby 55 So. (Ala.) 231 195

Harris v Pounds 64 Ga. 121 56

Harrisburg Lumber Co. v Wash- burn 29 Ore. 150 8

Harrison v Brophy 59 Kan. 1 471

Harrison v Hoyle 24 Ohio 254 163, 256, 262

Harrison v Marshall 4 E. D. Smith (N. Y.) 271 755

Harrison v Powers 76 Ga. 218 753

Harrison v St. Mark's Church ... 12 Phila. (Pa.) 259 40

Harrison v State 37 Ala. (N. S.) 154 211

Hart v School Dist., Throopsville . 2 Lancaster Law Re. (Pa.) 347 . . 44, 231

Hartt V Harvey 32 Barb. (N. Y.) 55 235, 872

Hatchett et al v Mt. Pleasant Bap- tist Chu. et al 46 Ark. 291 287

Hatfield v De Long 156 Ind. 207 229

Hauck v Ingles 148 N. W. (Minn.) 100 768

Hayden v Mitchell 103 Ga. 431 768

Hayes, et al v Brubaker 65 Ind. 27 818

Hayes v Franklin 141 N. C. 599 286

Hayes v Manning 172 S. W. (Mo.) 897 195. 326

Haynes v Sledge and Maxy 11 Ala. (2 Port.) 530 774

Healy v Reed 153 Mass. 197 897

Heath v Chapman 2 Drew. Ch. Re. (Eng.) 417 478

Hebrew Cong. Benai Berith Jacob

v United States 6 Ct. CI. (Ga.) 241 645

Heckman v Mees 16 Ohio 583 301

Heeney v St. Peter's Ch 2 Edw. Ch. (N. Y.) 608 451

Hegeman's Executors v Roome ... 70 N. J. Eq. 562 882

Heisler v Methodist Protestant

Church of Mapleton 147 N. W. (Iowa) 750 544

Heiss v Vosburg 59 Wis. 532 664

TABLE OF CASES xxxi

Helbig V Rosenberg 86 la. 159 10, 304

Hellstern v Katzer 103 Wis. 391 162, 727

Helm V Zarecor 213 Fed. (Tenn.) 648 195

Henderson v Erskine Smith's N. H. Rep. 36 866

Henderson v Hmiter 59 Pa. St. 335 348, 537

Hendrickson v Decow 1 Sax. (N. J.) 577 ... .261 (2), 264, 627

Hendrickson v Shotwell 1 N. J. Eq. 577 223, 261, 264

Hendryx v People's United.Church 42 Wash. 336 150, 151, 533

Hennessey v Walsh 55 N. H. 515 664

Henry v Deitrich 84 Pa. St. 286 114

Hewitt V Wheeler 22 Conn. 557 629

Hewitt's Estate, Re 94 Cal. 376 497

HicockV Hoskine 4 Day's Rep. (Conn.) 63 639

Hill Estate Company v Whittlesev. 21 Wash. 142 418

Hilton V Houghton 35 Me. 143 776

Hilton V Rovlance 25 Utah 129 407, 412 (2)

Hinde v Chorlton 15 Law Times N. S. (Eng.) 472. . . .451

Hoare v Osborne L. R. 1 Eq. (Eng.) 585, 35 L. J.

Ch. 345 71

Hodges V Nalty 104 Wis. 464, 113 Wis. 567 .. . 734, 739

Hodges V O'Brien 113 Wis. 97 732, 733

Hodnett's Estate, Re; O'Reilly

Appeal 1.54 Pa. 485 892

Hoeffer v Clogan 171 III. 462 471

Hofer V Cowan, McClung Co. . . 55 Cent. Law Journal (Ct. App.

Kv.) 290 774

Hoffnor's Estate, Re 161 Pu. 331 891

Holbrook v Holbrook 1 Pirk. (Mass.) 248 795

Holcombe v I^avitt 124 X. Y. S. 980 103, 285, 320

Holland v Alcook 108 N. Y. 312 475

Holland V Peck 2 Iredell Eq. (N.'C.) 255 884

Hollingsworth v State 5 Sneed. (Tenn.) 518 201

HoUis V Drew Theological Sem- inary 95 N. Y. 166 800

HoUis St. Meeting House v Pier-

pont 7 Mete. (Mass.) 495 226

Hollywood V First Parish, Brock- ton 192 Mass. 269 436

Holm V Holm 81 Wis. 374 161, 428

Holmes v Mead 52 N. Y. 332 77

Holt V Downs 58 N. H. 170 108, 111, 182

Holt V State 1 Baxter (Tenn.) 192 203

Hombeck v American Bible So- ciety 2 Sandf. Ch. (N. Y.) 133 81, 585

Horsman v Allen 129 Cal. 131 157, 695, 860, 862

Horton v Baptist Ch. & Society

of Chester 34 Vt. 309 3

Horton v Norwalk Tramway Com- pany 66 Conn. 272 777

Hosford, etc. v Lord 1 Root (Conn.) 325 634

Hoskinson v Pusey, (WTiite v

King) 32 Gratt. (Va.) 428 362, 364

Houck V Ingles 148 N. W. (Minn.) 100 900

Houliston V Parsons 9 Up. Can. Q. B. 681 775

Howard, Estate of 5 Misc. (N. Y.) 295 472

Howard v Fu^t Parish 7 Pick. (Mass.) 138 456

xxxii TARL1-: OF (WSES

Howard Siinilay School A.ssofia-

tion Appeal ." 70 Fa. SU 798

Howe, Re 1 Paige Ch. (N. Y.) 213 614, 828

Howe V Stevens 47 Vt. 262 456

Hubbard v German Cath. Cong. . 34 la. 31 315, 418

Huber v German Cong 16 Ohio St. 371 599

Hughes V North Clinton Baptist

Church, East Orange 67 Atl. 66 (Sup. Ct. N. J.) 310

HuU V State 120 Ind. 153 213

Humbert v St. Stephen's Church,

N. Y 1 Edw. Ch. (N. Y.) 308. .290, 373, 563

Humphrey v Burnside 4 Bush. (Ky.) 215 344, 365

Humphreys v Little Sisters of the

Poor 7 Ohio Dec. 194 596

Hundley v Collins 131 Ala. 234 . . . .107, 310, 610, 638, 846

Hunt V State 3 Tex. Ct. App. 116 205

Hunter v Attorney General 80 Law Times Rep. (N. S.) (Eng.)

732 825

Huntington v Carpenter Kirby (Conn.) 45 800

Hussey v Georgia 69 Ga. 54 784

Hysong v GaUitzin Borough School

District 164 Pa. 629 626, 715

Iglehart v Rowe 20 Ky. L. Re. 821, 47 S. W. 575. . .

35, 150, 318 Immanuel Presbyterian Church v

Riedy 104 La. 314 803

Income Tax Commissioners v

Pemsel 61 L. J. Q. B. 265 (N. S.) 405

Inglee v Bosworth 5 Pick. (Mass.) 501 795

Inhabitants of Bucksport v Spof-

ford 12 Me. 487 439

Irvine v EUiot 206 Pa. St. 152 15, 132

Isham v FuUager 14 Abb. N. C. (N. Y.) 363

378, 493, 494, 632, 640, 809 (2) Isham V Trustees of the First

Presby. Ch. of Dunkirk 63 How. Pr. (N. Y.) 465. .288, 388, 811

Itter V Howe 23 Ont. App. Rep. 256. . . 146, 854, 862

Jackson v Gridley 18 Johns. (N. 'Y.)_98 900, 901

Jack.son v Hopkins 78 A. (Md.) 4 324

Jackson v Phillips 14 Allen (Mass.) 539 69, 84

Jackson v Roun.scville 5 Mete. (Mass.) 127 447,457

Jacob V Dallow 2 Salk. (Eng.) 551 229, 449

Jacquet, Re 40 Misc. (N. Y.) 575, 82 N. Y. S.

986 281.590

James & Parsons (Hill. 2 Anne) Forts. (Eng.) 374 .. . 787

Jameson v Carpenter 68 N. H. 62 773

Jarrell v Sproles 20 Tex. Civ. App. 387 33, 703

Jefts v York 12 Cush. (Mass.) 196 2

Jenkins v Cook L. R. 1 Probate Div. (Eng.) 80 121

Jennings v Scarborough 56 N. J. Law 401 136, 560

Jentzsch, Ex Parte 112 Cal. 468 748

Jewett V Burroughs 15 Mass. 464 438

Jewett V Thames Bank 16 Conn. 511 639

Johnson v Corbett 11 Paige Ch. (N. Y.) 265 462

Johnson v Day 17 Pick. (Mass.) 106 747

Johnson v State 1 Tex. Ct. App. 609 897

TABLE OF CASES xxxiii

Johnson v State 92 Ala. 82 211

Johnson v Welsh 42 W. Va. 18 2

Johnston v Commonwealth 22 Pa. St. 102 772

Johnston v Hughes 187 N. Y. 446 !472

Johnston v People 31 111. 469 770

Jones V Brooklyn B. & W. E. R.Co. 21 St. Re. (N. Y.) 169 '.'.'.'.'.'. !896

Jones V Gary 6 Me. 448 314, 328

Jones V Harris 1 Strobh. Law (S. Car.) 160 .902

Jones V Sacramento Ave. Method- ist Episcopal Chm-ch 198 111. 626 315

Jones V State 28 Neb. 495 323

Jones V Towne 58 N. H. 462 453, 462

Jones V Trustees of Mt. Zion

Church 30 La. Ann. 711 11

Jones V Wadsworth 11 Phila. (Pa.) 227 585

Jones V Watford . 62 N. J. Eq. 339 730

Jordon v UniversaUst Central Con- vention Trustees 107 Va. 79 865

Jiidefind v State 78 Md. 510 ^782

Juker V Commonwealth e.x rel

Fisher 20 Pa. St. 484 238, 871

Karoly v Hungarian Ref. Church. 83 N. J. Eq. 514 698

Karwisch v Mayor, etc., Atlanta. 44 Ga. 205 767

Katzer v Milwaukee 104 Wis. 16 659

Kaufman v Hamm 30 Mo. 387 775

Kavanagh's Will, Matter of 125 N. Y. 418 891

Kehoe v Kehoe 12 Abb. N. C. 427n, 476

Keiper's Estate. 5 Pa. Co. Ct. 568 576, 882

Keith V Congregational Parish,

Easton 21 Pick. (Mass.) 261 437

Keith V Tuttle 28 Me. 327 774

Kellogg V Dickinson 18 Vt. 266 451

KeUy V Nichols 18 R. I. 62 74

Kemmerer v Kemmerer 233 111. 327 491

Kemp V Wickes 3 Phill. (Eng.) 276 122

Kennedy v Le Moyne 188 111. 255 556

Kenrick v Cole 61 Mo. 572 878

Kepner v Keefer 6 Watts (Pa.) 231 775

Kerrigan v Conelly 40 Atl. (N. J.) 227 689

Kerrigan v Tabb 39 Atl. 701 472

Kerr's Appeal 89 Pa. 97 588

Keys V Keys' Estate 217 Mo. 48 765

Keyser v Stansifer 6 Ohio 363 31

Kibbe v Antram 4 Conn. 134 391

Kidder v French Smith N. H. 155 401

Kilpatrick v Graves 51 Miss. 432 364

Kimball v Second Congregational

Pari.sh, Rowlev 24 Pick. (Mass.) 347 463

Kincaid's Appeal 66 Pa. St. 420 63, 458

King V Taylor 1 Peake's N. P. (Eng.) 11 900

Kingsbury v Brandegee 113 App. Div.(N. Y.) 606.. .550, 832, 880

Kinkead V McKee 9 Bush. (Ky.) 535 134, 484

Kinney v Ivinney 86 Ky. 610 365

Kinney v State 38 Ala. 224 204

Kisor Appeal 62 Pa. 428 530

Kisor v Stansifer, Wright N. P. (Ohio) 323 161

xxxiv TAIiLK OF CASES

Klix V Si . Stanislaus Church 137 Mo. App. 347

113,606,607,609,613,659

Klopp V Moore 6 Kan. 27 810

Knapp V Parishioners of St. Mary

Willesden 2 Robertson Ecc. Re. (Eng.) 365,

369 461

Knight V Press Co 227 Pa. 185 772

Knight's Estate 159 Pa. 500 , . . .268, 590

Knights V Brown 93 Me. 557 779

Kniskern v Lutheran Ch 1 Sandf. Ch. (N. Y.) 439

215,307,526,811

Kramer v Marks 64 Pa. St. 151 57

Krauozunas v Hoban 221 Pa. 213 666, 681

Krccker v Shirey 163 Pa. 534

110, 178, 226, 243, 247 (2j, 540, 636

Kreglo V Fulk 3 W. Va. 74 357, 807

Kulinski v Dambrowski 29 Wis. 109 822

Kuns V Robertson 154 111. 394 142, 862

Kupfer V South Parish, Augusta. . 12 Mass. 185 434

Ladd V Clements 4 Cush. (Mass.) 476 235, 639

Laight St. Church v Noe 12 How. Pr. (X. Y.) 497 806

Lamb v Cain 129 Ind. 486

139, 152, 157, 523, 852, 859

Re Lampson 161 N. Y. 511 891

Lancaster v State 53 Ala. 398 205

Landers v Frank St. Church,

Rochester 97 N. Y. 119, 114 N. Y. 626

10, 349, 602

Landis Appeal 102 Pa. St. 467 329, 330

Landis v Campbell 79 Mo. 433 133, 295

Landrith v Hudgins 121 Tenn. 556

111, 161, 191, 192, 193, 194 (2), 195 Lane v Calvary Church of Sum- mit, N. J 59 N. J. Eq. 409 565

Lane v Eaton 69 Minn. 141 690 (2)

Langolf V Seiberlitch 2 Parsons Equity Cases (Pa.) 64. .

19, 608 Late Corporation of the Church of Jesus Christ of Latter Day

Saints v U. S 136 U. S. 1, 140 U. S. 665. .89, 409, 648

Lawrence v Fletcher 8 Mete. (Mass.) 153 722, 725

Lawson v Kolbenson 61 111. 405 820

Lawyer v Cipperly 7 Paige Ch. (N. Y.) 281 614

Layne v State 72 Tenn. 199 201

Leahey v Williams 141 Mass. 345 662, 680

Leblanc v Lemaire 105 La. 539 13

Leete v Pilgrim Cong. Society ... 14 Mo. App. 590 40

Leftwig & Barton, for the Method- ist Epis. Ch. V Thornton 18 la. 56 19

Leicester v Fitchburg 7 Allen (Mass.) 90 37

Lemp V Raven 113 Mich. 375 853

Lempke v State 171 S. W. (Tex. Cr. App.) 217 768

Re Lennon's Estate 92 Pac. 870 474

Leonard v Manard 1 Hall's Sup. Ct. (N. Y.) 200 895

Lepage v McNainara 5 la. 124 884

Levasseur v Martin 11 La. Ann. 684 417

TABLE OF CASES xxxv

Lewis V Voliva 154 111. App. 48 148, 216

Liggett V Ladd 17 Or. 89 364, 623

Ligonia v Buxton 2 Me. 102 391

LindenmuUer v People 33 Barb. (N. Y.) 548

99, 596, 648, 766 (2)

Linn v Carson 32 Gratt. (Va.) 170 5

Little V Bailev 87 111. 239 819

Livingston v Trinity Ch. Trenton. 45 N. J. Law 230. . . 149, 454, 551, 569

Logan V Mathews 6 Pa. St. 417 784

Londener v Lichten 11 Mo. App. 385 898

Long V Harvey 177 Pa. St. 473 198 (2)

Lord V Marvin 1 Root (Conn.) 330 794

Lord CornwalUs and Hoyle (Mich.

6 Geo. 1) Fort. (Eng.) 373 774

Love V State 35 Tex. Cr. Re. 27 204

Love V Wells 25 Ind. 503 760

Lovejoy v Whipple 18 Vt. 379 775

Lovett v German Reformed

Church 12 Barb. (N. Y.) 67 418

Lucas v Case 9 Bush. (Ky.) 297 296, 323

Ludlow V Rector, etc., of St.

Johns Ch 68 Misc. (N. Y.) 400 543

Lunsford and Witlu-ow Company

V Wren 64 W. Va. 458 18

Lutheran Congregation Pine Hill

V St. Michael's Evangelical

Church 48 Pa. St. 20 697, 702

L>Tich V Pfeiffer 110 N. Y. 33 873

Lynd v Menzies 33 N. J. Law 162 386, 563, 564

Lyon V Strong 6 Vt. 219 779

Lvons V Planters Loan and Sav-

"ings Bank 86 Ga. 485 535

Mace V Putnam 71 Me. 238 752, 754

Mack Appeal 71 Conn. 122 78, 80

Mack V Kime 129 Ga. 1 145, 191, 192, 193,

195, 225, 323 (2), 521, 524, 625 MacKenzie v Trustees of Pres- bytery of Jersey City 67 N. J. Eq. 652 505

Madison Avenue Baptist Church

V Baptist Ch. in Oliver St 46 N. Y. 131, 73 N. Y. 82. . .537, 538

Magie v German Evang. Dutch

Church 13 N. J. Eq. 77 418

MagiU V Brown Fed. Cas. No. 8, 952 (U. S. Cir. Ct.

Pa.) (Brightly N. P. 347)

71,264,267,644,676,879 Maine Baptist Missionary Con- vention V Portland 65 Me. 92 36

Males V Murray 7 0. Nisi Prius Re. 614 846

Malone et al Trustees v Lacroix . . 144 Ala. 648 534

Mancini, Matter of 89 Misc. (N. Y.) 83 281

Mann V Mullin 84 Pa. St. 297 829

Manning v Moscow Presbyterian

Soc 27 Barb. (N. Y.) 52 416

Manning v Shoemaker. ......... 7 Pa. Super. Ct. 375 248, 328

Mannix v Countv Commissioners. 9 Ohio Dec. 18 795

Mannix v Purcell 46 Ohio St. 102 664, 682

xxxvi TABLE OF CASES

Mapes V Home Missionary Society 33 Hun (N. Y) 360 22

Marie M. E. Church of Chicago. . 253 lU. 21 130, 224

Marien v Evangelical Creed Cong.

Milwaukee 132 Wis. 650 139, 245, 298, 526

Martin v Board of Directors of German Reformed Chvu-ch of

Washington County 149 Wis. 19 605

Martin v State 6 Baxter (Tenn.) 234 214

Marx V McGlynn 88 N. Y. 357 888

Mason v Lee 96 Miss. 186 387

Mayberry v Mead 80 Me. 27 611

Mayer v Temple Beth El 52 St. Rep. (N. Y.) 638 459

Mazaika v Krauczunas 233 Pa. 138 666

McAdoo V State 35 S. W. (Tex. Ct. of Crim. App.)

966 207

McAlister v Bm-gess 161 Mass. 269 36

McAllister v McAllister 46 Vt. 272 350

McAuley's Appeal 77 Pa. 397 502, 524, 588

McAuley v Billenger 20 John. (N. Y.) 89 733

McAvoy, Matter of 112 A. D. (N. Y.) 377 479, 795

McBride v Porter 17 la. 204 28, 532, 864

McCabe v Father Matthews 24 Hun. (N. Y.) 149 751

McCall, Little v Presbyterian

Church, Florence, Ex Parte 68 S. C. 489 62, 284

McCartee v Orphan Asylum So- ciety 9 Cowan (N. Y.) 437 84

McClary v Lowell 44 Vt. 116 786

McCusker, Matter of 47 App. Div. (N. Y.) 113. . . .114, 795

McDaniel v State 63 S. E. 919 652

McDonald v Fernald 68 N. H. 171 758

McDonald v Gray Ilia. 508 741

McDonald v Massachusetts Gen- eral Hospital 120 Mass. 432 608

McEh-oy V State 25 Tex. 507 208

McEntee v Bonacum 66 Neb. 651 440

McEvoy, Re 6 Dem. Sur. (N. Y.) 71 475

McGatrick v Wason 4 Ohio St. 566 767, 769

McGhee v Lose 22 Pa. Co. Ct. 371 813

McGinnis v Watson 41 Pa. St. 9 527, 623, 637

McGlade's Appeal 99 Pa. St. 338 891

McGrath v Merwin 112 Mass. 467 769

McHugh V McCole 97 Wis. 166 475

M' II vain v Christ Church, Read- ing 8 Phila. (Pa.) 507 870

Mcintosh V Lee 57 la. 356 764

McKee v Jones 67 Miss. 405 779

McKinney v Griggs 5 Bush. (Ky.) 401 366, 693

McLain v Matlock 7 Ind. 525 641, 654

McMillen's Appeal, Re 11 Wkly. Notes of Cas. (Pa.) 440. .889

McNabb v Pond 4 Brad. (N. Y.) 7 455

McNair, Ex Parte 13 Neb. 195 54

McQuire v St. Patricks Cathedral. 54 Hun (N. Y.) 207 668

McRoberts v Moudy 19 Mo. App. 26 33, 83

McVea v State 35 Tex. Crim. 1 208

Meader v White 66 Me. 90 768

Melvin v Easley 7 Jones Law Rep. (N. C.) 356 780

TABLE OF CASES xxxvii

Mercer Home for Disabled Clergy- men of the Presbyterian Faith.Re 162 Pa. St. 232 493

Meriwether v 8mitli 44 CJa. 541 756

Morriam v Stearns 10 Cush. (Mass.) 257 764

Merrill v Downs 41 N. H. 72 755

Merrill V Earle 29 N. Y. 115, Aff'g. 31 Barb.

(N. Y.) 38 753

Methodist Episcopal Ch., Newark

V Chirk 41 Mich. 730 807

Methodist Episcopal Ch., South v

Clifton 34 Tex. Civ. App. 248 364

Methodi.st Episcopal Ch., South v

Hinton 92 Tenn. 188 369

Methodist Episcopal Church, Sun

Prairie v Sherman , 36 ^^'is. 404 737

Methodist Episcopal Church, Cin- cinnati V Wood 5 Ohio 283 699

M.E. Society, Matter of, v Perry... 51 Hun (N. Y.) 104 601,634,821

Methodist Protestant Chiu-ch v

Bennett 39 Conn. 293 371

Mevers v Baker 120 III. 567 57

MicheLs v Rusteraeyer ... 20 Wash. 597 737

Miller v Ahrens l.->0 Fed. 644 729

Miller V Childs 120 Mich. 639 570

Miller v Church 4 Phila. (Pa.) 48 818

Miller V English 21 X. J. Law 317 612, 639, 812

Miller v Eschbach 43 Md. 1 236

Miller v Gable 10 Paige (N. Y.) 627 147, 273

Miller v Gable 2 Denio (N. Y.) 492 274, 597, 585

Miller v Milligan 6 Ohio Dec. 1000 37

Miller v Porter 53 Pa. St. 292 69

Miller v Roessler 4 E. D. Smith (N. Y.) 234 779

Miller v Teachout . . . .• 24 Ohio St. 525 887

Miller v Trustees of Mariner's

Church 7 Me. 51 899

Milliard v Board of Education. . . 121 lU. 297 712

Minter v State 104 Ga. 743 246

Missionary Society Meth. Epds.

Ch. V Calvert 32 Gratt. (Va.) 357 350

Missionary Society Meth. Epis.

Ch. V Chapman 128 Mass. 265 350

Mohney v Clark 26 Pa. 342 99, 773

Montague v Inhabitants First

Parish in Dedham 4 Mass. 269 440

Montgomery v Johnson 9 How. Pr. (N. Y.) 232 453

Montgomery v Walton Ill Ga. 840 814

Moore v Monroe 64 Ga. 367 .713

Moore v Rector St. Thomas 4 Abb. N. C. (N. Y.) 51 . .569, 615, 820

Moore v Taylor 147 Pa. 481 866

Moran v Moran 104 La. 216 472

Moras.se v Brochu 151 Mass. 567 679

Morgan v Gabard 58 So. (.Ma.) 902 195, 285

Morris Executors v Morris Devi- sees 48 W. Va. 430 892

Morris Street Baptist Church v Dart 67 S. C. 338 32, 132, 289

xxxviii TABLP: OF CASES

Morris v State 84 Ala. 457 115

Morton v Gloster 46 Me. 520 755

Morville v Fowle 144 Mass. 109 90, 840

Moseley v Hatch 108 Mass. 517 745

Moss V State 173 S. W. (Tenn.) 859 758

Mount V Tuttle 183 N. Y. 358 836

Mount Calvary Church v Albers . . 174 Mo. 331 803

Mt. Helm Baptist Church v Jones. 79 Miss. 488 36, 133

Mt. Zion Baptist Chui-ch v Whit- more 83 la. 138 35, 284, 636

Muck V Hitchcock 212 N. Y. 283 540

Muck V Hitchcock 149 A. D. (N. Y.) 323 522

Muckenfu.ss v State 55 Tex. Cr. Re. 229 760

Mueller v State 76 Ind. 310 752

Muh-ov V Churchman 52 la. 238 666, 794

Mm-phy v Dallam 1 Bland. Ch. (Md.) 529 893

Murray v Commonwealth 24 Pa. 270 751

Mussey v Bulfinch Street Society 1 Cush. (Mass.) 148 866

Muzzy V Wilkins Smith's N. H. Rep. 1 109,

185, 197, 282, 482, 590, 593, 617, 795 Myers v Baptist Society of

Jamaica "..... 38 Vt. 614 10

Myers y First Presbyterian

Church, Perry 5 Okla. 809 499

Also 11 Okla. 544 13, 396

Nace Appeal 11 Leg. Rec. (Pa.) 41 246

Nance v Bushby 91 Tenn. 303 149,

164, 319, 323, 326, 327, 515, 532, 533

Nash V Sutton 117 N. Car. 231 821

Neale y Vestry of St. Paul's

Church 8 GiU. (Md.) 116 638

Neely v Hoskins 84 Me. 386 826

Neill y Spencer 5 111. App. 461 9

Neilson's Appeal 105 Pa. 180 558

Nelson y Benson 69 lU. 27 428, 693

Neuendorff y Dmyea. 69 N. Y. 557. 765

New Ebenezer Association y Gress

Lumber Company 89 Ga. 125 634, 808

Newman y Proctor 73 Ky. 318 368

Newman, Ex Parte 9 Cal. 502 783

New Market Sayings Bank v GiUet 100 111. 254 819

New South Meeting House, Bos- ton, Re 13 AUen (Mass.) 497 636

New Thought Church v Chapin. . 159 A. D. 723 424

Niccolls y Rugg 47 111. 47 485, 527, 870

Niebuhr y Piersdorff 24 Wis. 316 457

Noble y People 1 111. 54 (Breese, Beecher) 899

Nobili y Redman 6 Cal. 325 667

Noftsker v Commonwealth 22 Pa. Co. Ct. 559 760

Northampton County v St. Peter's

Church 5 Pa. Co. Ct. 416 797

North Baptist Church y Parker

& others 36 Barb. (N. Y.) 171 823

North Carolina Christian Confer- ence V Allen 156 N. C. 524 182

North V Dickson 1 Hagg. Eccles. Rep. (Eng.) 310. .202

TABLE OF CASES xxxix

Xortli Presbyterian Church, Chi- cago V Jevne, et al 32 111. 214 417

Northrup v Foot 14 Wend. (N. Y.) 248 780

North 8t. Loui.s Christian Church

V McGowan 62 Mo. 279 96, 606

Northwaite v Bennett 2Crompt.& MeesonsRe.(Eng.)316. 126

Norton v Ladd 4 N. H. 444 898

Norwegian Evangelical Lutheran Bethlehem Cong, v U. S. Fidel- ity & Guaranty Co 81 Minn. 32 3

Novicky v Krauczunas 245 Pa. 86 666

Nye V Whittemore 193 Mass. 208 729

Oakes v Hill 10 Pick. (Mass.) 333 591, 872

O'Connor v Cifford 117 N. Y. 275 475

O'Connor v Hendrick 184 N. Y. 421 626

Odell V Odell 10 Allen (Mass.) 1 833

O'Donnell's Estate 209 Pa. 63 478

O'Donnell v Sweeney 5 Ala. 467 774

O'Donovan v Chatard 97 Ind. 421 681

O'Hara v Stack 90 Pa. St. 477, Appeal 98 Pa. St.

213 145,396,680

O'Hear v De Goesbriand 33 Vt. 593 447, 448, 739

Olcott V Gabert 86 Tex. 121 663

Order of St. Benedict of New Jer- sey V Steinhauser 179 Fed. (Minn.) 137, 34 S. Ct.

(U. S. Sup.) 932 173

Ormichund v Barker 1 WiLson K. B. (Eng.) 84 899

Ornstein v Yahr & Lange Drug Co. 119 Wis. 429 781

O'Rourke v O'Rourke 43 Mich. 58 776

Orthodox Congregational Church,

Union Village, Matter of 6 Abb. N. C. (N. Y.) 398 823, 888

Owen V Henman 1 Watts & S. (Pa.) 548 202 (2)

Owen V Missionary Society 14 N. Y. 384 77

Pack V Shanklin 43 W. Va. 304 497

Paddock v Brown 6 HiU (X. Y.) 530 373, 813

Page V O'Sullivan 159 Kv. 703 771

Page V Symmonds 63 N. H. 17 59

Palmer v Mayor, N. Y 2 Sandf. (X. Y.) 318 764

Papaliou v Manusas 113 111. App. 316 279

Parish of the Immaculate Concep- tion V Murphv 87 Neb. 524 386

Park V Chaplin ." 96 la. 55 32, 133, 250 (2)

Parker v Latner 60 Me. 528 762

Parker v Leach 12 Jm-. X. S. (Eng.) 911 110

Parker v State 16 Lea (Tenn.) 476 750

Parmalee v Wilks 22 Barb. (X. Y.) 539 774

Parshlev v Third Meth. Church. . 147 X. Y. 583 812

Parsonsfield v Dalton 5 Me. 217 328

Partridge v First Independent

Church 39 Md. 637 61

Pattee v Greelv 13 Mete. (Mass.) 284 750

Paulson Will, Re 127 Wis. 612 619

Payne v Crawford 97 Ala. 604 23

Peabody's Estate, Re 154 Cal. 173 496

Peabody v Eastern Meth. Society, Lynn 5 AUen (Mass.) 540 7

xl TABLE OF CASES

Peace v First Christian Church,

McGregor 20 Texas Civ. App. 85 93, 95, 146

Pearce v Atwood 13 Mass. 324 787

Peckham v North Parish, Haver- hill 16 Pick. (Mass.) 274, 19 Pick.

(Mass.) 559 184,643

Peiffer v Board of Education,

Detroit 118 Mich. 560 44

Peirce v HiU 9 Port. (Ala.) 151 768

Pendleton v Waterloo Bapt. Ch. . 49 Hun. (N. Y.) 596 11

Penniman v Cole 8 Mete. (Mass.) 496 761

Penny v Central Coal and Coke

Company 138 Fed. 769 17,521,807

People ex rel Wilson v African W.

M. E. Church 156 A. D. (N. Y.) 386 240

People ex rel Swigert v Anderson . . 117 111. 50 796

People ex rel Meister v Anshei

Chesed Hebrew Cong. Bay City. 37 Mich. 542 309

People ex rel the rector v Black- hurst 60 Hun (N. Y.) 63 431

People ex rel the Roman Cathohc

Orphan Asylum v Board of

Education 13 Barb. (N. Y.) 400 676

People v Brown 1 Wheelers Cr. Cases (N. Y.) 124 . .

653, 654

People v Busse 141 lU. App. 218 781

People V Church of Atonement. . . 48 Barb. (N. Y.) 603 568

People V Cole 163 A. D. (N. Y.) 292 103

People ex rel Hutchinson v Col-

lison 22 Abb. N. C. (N. Y.) 52 798

People ex rel Peck v Conley 42 Hun (N. Y.) 98, 3 N. Y. S. 373. .385

People V Crowley 23 Hun (N. Y.) 412 202

People V Degey 2 Wheeler Cr. C. (N. Y.) 135 202

People V Dennis. 35 Hun (N. Y.) 327 749

People V Dohhng 6 App. Div. (N. Y\) 86 553

People V Dunford 207 N. Y. 17, 20 766

People V Erste Ulaszkoweer Kran-

ken Unterstutzungs Verein 56 Misc. (N. Y.) 304, 57 Misc. 62. .151

People V Farrington 22 How Pr. (N. Y.) 294 26

People ex rel Thompson v First

Congregational Church 232 111. 158 797

People ex rel Cock v Fleming. ... 13 N. Y. Supp. 715, 59 Hun (N. Y.)

518 813,816

People ex rel Burke v Fox 205 N. Y. 490 759

People ex rel Fulton v Fulton. ... 11 N. Y. 94 6, 813, 817

People ex rel Dilcher v German

United Evang. Church 53 N. Y. 103 112, 309, 610

People ex rel Fleming v Hart. ... 13 N. Y. Supp. 903, 36 St. Reporter

874, 21 N. Y. Supp. 673

6,235,237,311

People V Haynor 149 N. Y. 195 749

People V Hoym 20 How. Pr. 76 (Sp. T.) 745

People ex rel Sturges v Keese. ... 27 Hun (N. Y.) 483 870

People V La Coste 37 N. Y. 192 237, 551

People ex rel Kieley v Lent (Y'on-

kers) 166 A. D. (N. Y.) 550 768

TABLE OF CASE8 xli

People V Mayor 63 N. Y. 291 823

People V McGarren 17 Wend. (N. Y.) 460 899

People V Moses 140 N. Y. 215 766

People ex rel Bloomquist v Nappa . 80 Mich. 484 148

People ex rel Smith v Peck 11 Wend. (N. Y.) 604 236

People V Peirson 176 N. Y. 201 649

People V Peterson 31 Hun (N. Y.) 421 400

People V. Rochester 44 Hun (N. Y.) 166 691

People V Ruggles 8 John. (N. Y.) 290 50

People V Runkle 9 John. (N. Y.) 147. . . .6/544, 812, 816

People V St. Patrick's Cathedral. . 21 Hun (X. Y.) 184 308

People V Schottey 116 Mich. 1 781

People ex rel Bobach V Sheriff .. . 13 Misc. (X. Y.) 587, 35 X. Y.

Supp. 19 749

People V Steele 2 Barb. (X. Y.) 397 145, 385

People ex rel Coppers v Trustees,

St. Patrick's Cathedral, X. Y.. . 21 Hun (X. Y.) 184 64, 668

People V Tuthill 31 X. Y. 550 868, 872

People V Utter 44 Barb. (X. Y.) 170 763

Peojjle ex rel Breymeyer v Wat-

seka Camp Meeting Association. 160 111. 576 55

People ex rel Kenney v Winans. . 29 St. Rep. (X. Y.) 651 312, 814

People ex rel Gore v Young Men's

Chri-stian A.s.sociation 157 111. 403 799

Peoples Bank v St. Anthony's Ro- man CathoUc Church . . ." 109 X. Y. 512 611, 676, 813, 815

Permanent Committee of Missions

V Pacific S>-nod 157 Cal. 105 195

Perrin v Granger 33 Vt. 101 448

Perry v Commonwealth 3 Gratt. (Va.) 632 897

Perry v McEwen 22 Ind. 440 292

Perry v Wheeler 75 Ky. 541 564

Pen-y's Adm. v Stewart 2 Har. (Del.) 37 901

Peterson v Christianson 18 S. D. 470 530

Peterson v Samuelson 42 Xeb. 161 706

Petty V State 58 Ark. 1 768

Petty V Tooker 21 X. Y. 271 605

Philadelphia, Wilmington & Balti- more R. R. Co. V Lehman 56 Md. 209 753

Phillips V Harrow 93 la. 92 883

Philomath College v Wyatt 27 Or. 390 142, 166, 859, 862

Phipps V Jones 20 Pa. 260 738

Phoenix Insurance Company v

Burkett 72 Mo. App. 1 194

Pinke v Bomhold 8 Ont. L. Re. 575 320

Plaisted v Pahner 63 Me. 576 775

Plattsmouth First Xational Bank

V Rector 59 Xeb. 77 845

Pleasant Grove Cong, v Riley. ... 248 lU. 604 195

Ponce V Roman CathoUc Church . 210 U. S. 296

669, 677, 678, 678, 683, 686

Pope V Linn 50 Me. 83 774

Porter v Pierce 120 X. Y. 217 778

Pounder v Ashe 44 Xebr. Re. 672. . . 131, 155, 534, 647

Powers V Bundv 45 Xeb. 208 131, 155

Poynter v Phelps 129 Ky. 381 34

xlii TABLE OP CASES

Pratt V Roman Catholic Orphan

Asylum 20 App. Div. (N. Y.) 352 844

Preachers Aid Society v England . . 106 111. 125 345

Preachers Aid Society v Rich. ... 45 Me. 552 76, 346

Presbyterian Church v Andruss. . 21 N. J. Law 325 466

Presbyterian Church of Albany v

Cooper 112 N. Y. 517 734

Presbyterian Church v Cumber- land Church 245 111. 74 136, 191, 195

Presbyterian Chvirch v Montgom- ery County 3 Grant's Cas. (Pa.) 245 794

Presbyterian Congregation, Erie v

Colt's Executors 2 Grant's Cas. (Pa.) 75 529

Presbyterian Cong, v Johnston. . . 1 Watts. & S. (Pa.) 9 501

Presbyterian Society v Beach 74 N. Y. 72 735, 740

Prickett v Wells 117 Mo. Re. 502 93, 139, 642

Princeton v Adams 10 Cush. (Mass.) 129 885

Proprietors v Pierpont 48 Mass. 496 128

Proprietors Union Meeting House

V Rowell 66 Me. 400 453

Prosser v Secor 5 Barb. (N. Y.) 607 400

Protestant Episcopal Education

Society v Churchman's Reports . 80 Va. 718 571

Provenchee v Piper 68 N. H. 31 751

Puckett V Commonwealth 107 Va. 844 761

Pulis V Iserman 71 N. J. Law 408 581

Rainey v Capps 22 Ala. 288 764

Ramsey Appeal 88 Pa. St. 60 513

Ramsey v Hicks 44 Ind. App. 490 195

Read v Boston & Albany R. R.

Company 140 Mass. 199 777

Read v Hodgens 7 Ir. Eq. 17 470

Read v St. Ambrose Ch 6 Pa. Co. Ct. 76 553

Rector, etc., v Blackhurst 11 N. Y. Supp. 669 16

Rector, Church of the Redeemer v

Crawford 43 N. Y. 476 542, 739, 804

Rector, St. James Ch. v Hunt- ington 82 Hun (N. Y.) 125 140, 559

Rector, etc., Christ Church v Rec- tor, etc., Church of the Holy

Communion 14 Phila. (Pa.) 61 631

Rector, etc., Church of the Redemp- tion V Rector, etc., Grace Church 68 N. Y. 570 841

Reeves v Walker 8 Baxt. (Tenn.) 277 256

Reformed Church, Gallupville v

Schoolcraft 65 N. Y. 134 522, 581

Reformed Methodist Society Doug- las V Draper 97 Mass. 349 818

Reformed Presbyterian Church v

Brown 24 How. Pr. (N. Y.) 76 741

Reformed Presbyterian Church of

the City of N. Y., Re 7 How. Pr. (N. Y.) 476 61, 63

Reformed Protestant Dutch

Church of Albany v Bradford . . 8 Cowan (N. Y.) 457 12, 156

Reformed Protestant Dutch

Ch. V Veeder 4 Wend. (N. Y.) 497 544

TABLH OF CASES xliil

Reg. V Hai^lehiirst 13 Q. B. D. (Eng.) 253 618

Rpinkc V ( Jprjiiaii Evang. Lutheran

Triniiy ( hurch 17 S. Dak. 262 609, 609

llri.s y Kohdc 34 Hmi (N. Y.) 161 820

Religious Congregational Society,

BakersHel<l v Baker 15 Vt. 119 17

R e o r g a n i /, ed Church of Jesius Christ of Latter Day Saints v

Church of Christ 60 Fed. Rei). 937 411, 415, 527

Revere v Cannett 1 Pick. (Mass.) 169 535

Re.x V Bo.>^worth 2 Str. (Eng.) 1113 41, 42, 98, 430

Rex V Brotherton 1 Str. (Eng.) 702 750

Rex V Cox 2 Burr. (Eng.) 785 747

Rex V Jotham 3 T. Rep. (Eng.) 577 311

Rex V Mavor of Lincoln 5 Mod. (Eng.) 400 265

Rex V W;usvl Kapij 15 Manitoba Re. 121 389, 700

Rex V Whitna-sh 1 Man. & Ry. (Eng.) 452 764

Rex V Woolston 2 Str. (Eng.) 834 50, 98

Rex V Younger 5 T. Rep. (Eng.) 449 747

Reynolds v Bristow 37 Ga. 283 892

Reynolds v Monkton 2 M. & Rob. (Eng.) 384 447

Re>Tiolds V U. S 98 U. S. 145 625'

Rhvmer's Appeal 93 Pa. St. 142 479, 889

Rice V Commonwealth 3 Bush. (Ky.) 14 762

Richards v The Northwest Prot- estant Dutch Church 32 Barb. (N. Y.) 42 59, 61

Richard-son v Butterfield 60 Mass. 191 603, 609

Richardson v Freeman 6 Me. 57 720

Richardson v Kimball 28 Me. 463 750

Richard.son v State 5 Texas Ct. of App. 470 202

Richardson v Union Cong. Society. 58 N. H. 187 314

Richter v Rabat 1 14 Mich. 575 286

RifTe V Proctor 99 Mo. App. 601 13

Rignev v White 4 Daly (X. Y.) 400 760

Rittenhoase E.state, Re 140 Pa. 172 567

Ritter v Bausman 2 Woodw. Dec. (Pa.) 248 65

Roberts v State Treasurer 2 Root (Conn.) 381 391

Robertson v BuUions 9 Barb. (N. Y.) 64, aff'd. 11 N. Y.

243 378, 637, 809, 823, 835

Robeson v French 12 Met . (Mass.) 24 779

Robinson v Cocheu 18 .\pp. Div. (N. Y.) 325 386, 398

Rodgers v Burnett 108 Tenn. 173 149, 249, 700

Rogers v Elliott 146 Mass. 349 40

Rose V Vertin 46 Mich. 457 661

Rosenberg v .\rrow8mith 89 A. (N. J.) 524 768

Roshi's .\ppeal 69 Pa. 462 273, 642, 698

Ross V Crockett 14 La. Ann. 811 806, 814

Roth V Hax 68 Mo. App. 283 772

Rothschild v Darien 69 Ga. 503 769

Rottman v Bartling 22 Nebr. 375 163

Rouser's Estate, Re 8 Pa. Sup. Ct. 188 351

Roy V Rowzie 25 Gratt. (Va.) 599 886

Rucker v State 67 Miss. 328 762

Ruggles V Kimball 12 Mass. 337 401

Ru-ssie V BrazzeU 128 Mo. 93 861

Ryan v Cudahy 157 lU. 108 322

xliv TABLE OF CASES

Ryan v Dunzilla 86 Atl. (Pa.) 1089 110

St. Andrews Ch. v Schaunessy ... 63 Neb. 792 107, 534, 675

St. Ann's Church, Matter of 23 How. Pr. (N. Y.) 285 539

St. James Church v Church of the

Redeemer 45 Barb. (N. Y.) 356 567

St. Louis Inst, of Christian Sci- ence, Re 27 Mo. App. 633 104, 119

St. Patricks V Abst 76 lU. 252 117, 684

St. Paul's Church, Re 30 Pa. St. 152 531, 555

St. Paul's Ch. V Ford 34 Barb. (N. Y.) 16 465

St. Paul's Ref. Ch. v Hower 191 Pa. St. 306 274, 527

St. Vincents Parish v Murphy. ... 83 Neb. 630 387, 679

Sage, etc. Committee of the First

Society, Chatham v White 2 Root (Conn.) Ill 869

Sale V First Regular Baptist

Church 62 Iowa 26 310, 610

Salter v Burt 20 Wend. (N. Y.) 205 747

Saltman v Nesson 201 Mass. 534 308

Saltmarsh v TuthiU 13 Ala. 390 750

Samuels v Cong. Kol. Israel Anshi

Poland 52 App. Div. (N. Y.) 287 459

Sanders v Baggerly 131 S. W. 49 (Ark.) 195

Sanders v Johnson 29 Ga. 526 776

Sandiman v Breach 7 Barn. & Cres. 96 782

Sanger v Inhabitants in Roxbury . 8 Mass. 265 556

Santos V Roman Catholic Church. 212 U. S. 463 67"^

Sargent B'd of Education (Roch- ester) 177 N. Y. 317 676, 708

Satterle v U. S 20 App. D. C. 393

226, 229, 232, 394, 552 Saugerties Reformed Dutch

Church, Matter of 16 Barb. (N. Y.) 239 450, 458

Saxton V Mitchell 78 Pa. St. 479 54

Sayles v Smith 12 Wend. (N. Y.) 57 761

Scanlan, Matter of 57 L. J. Ch. (Eng.) 718 281

Schilstra v Van Den Heuvel 82 N. J. Eq. 612 574

ScMichter v Keiter 156 Pa. St. 119 862

Schnorr's Appeal 67 Pa. 138 699

Schoonmaker v Ref. Dutch Church

of Kingston 5 How. Pr. (N. Y.) 265 59

Schradi v Dornfeld 52 Minn. 465 301, 525

Schriber v Rapp 5 Watts (Pa.) 351 169

Schwartz v Bruder 6 Dem. (N. Y.) 169 475

Schwartz v Duss 93 Fed. 529, 187 U. S. 8 170

Schweiker v Husser 146 111. 399 11, 247, 397

Scofield V Eighth School District . 27 Conn. 499 694

Scott V Hooper 14 Vt. 535 902

Scott V Thompson 21 la. 599 411

Sears v Attorney General 193 Mass. 551 573

Second Baptist Society, Canaan,

N. Y., Matter of 20 How. Pr. (N. Y.) 324

464, 535, 538, 540 Second Congi-egat ional Society,

Northbridgewater v Waring. ... 24 Pick. (Mass.) 304 466

Second Meth. Episcopal Chui-ch

of Greenwich v Humphrey 49 St. Rep. (N. Y.) 467 638

TABLE OF CASES xlv

Seda V Huble 75 la. 429 76, 689

Sedgw'ick, etc. v Pierce 2 Root (Conn.) 431 801

Seiberts Appeal 18 W. N. C. (Pa.) 276 473

Sellers Chapel Meth. Church, Re . . 139 Pa. St. 61 540

Sentinel Co. v Motor Wagon Co . . 144 Wis. 224 772

Sexton V B'd. Excise Com'rs., As-

bury Park 76 X. J. L. 102 55

Shaeffer v Klee 100 Md. 264 166, 302

Shannon v Frost 42 Ky. 253 149, 151, 319, 532

Shapleigh v Pilsbury 1 Me. 271 468

Sharp V Benton 23 Ky. Law Rep. 876 530

Sharp V Bonham 213 F. (Tenn.) 660 195

Shaw V Beveridge 3 Hill (N. Y.) 26 466

Shaw V Dodge 5 N. H. 462 760

Shaw V Moore 49 N. C. 25 (4 Jones) 902

Sheldon v Cong. Parish, Easton . . 24 Pick. (Mass.) 281. ..219, 378, 393, 401

Sheldon v Vail 28 Hun (N. Y.) 354 448, 822

Sherman v Baker 20 R. I. 446 474, 790

Sherman v Roberts 1 Grant's Cas. (Pa.) 261 784

Shotwell V Mott 2 Sandf. Ch. (N. Y.) 46 834, 838

Shoup, Ex parte 9 Ohio Dec. 648 697

Shreveport v Levy 26 La. Ann. 671 620

Shuman v Shuman 27 Pa. St. 90 758

Silsby V Barlow 16 Gray (Mass.) 329 109, 435

Simmoas v Burrell 8 Misc. (N. Y.) 388 890

Simpson v Welcome 72 Me. 496 77

Skilton V Webster Brightly N. P. (Pa.) 203...226, 508, 705

Skinner v Grace Church, Mt.

Clemens 54 Mich. 543 567

Skinner v Richardson, Boynton

& Co 76 Wis. 464 20

Smith V Bonhoof 2 Mich. 115 464

Smith V Bowere 57 App. Div. (N. Y.) 252, Aff'd.

171 N. Y. 669 327, 875 (2)

Smith V Charles 24 So. 968 153

Smith V Erb 4 GiU. (Md.) 437 236,239,312

Smith V Foster 41 N. H. 215 757

Smith V Nelson 18 Vt. 511 142, 222, 223 (2),

226, 230 (2), 231, 375, 513, 634, 705

Smith et al v Pedigo et al 145 Ind. 361 32, 135, 528, 636

Smith V Swormstedt 16 How. (U. S.) 288 36;^

Smith V Wilcox 24 N. Y. 353 771

Snell V Trustees, Meth. Epis. Chu.,

Clinton 58 lU. 290 741

Snyder v Nations. . 5 Blackf. (Ind.) 295 899

Society for the Visitation of the

Sick V Commonwealth 52 Pa. 125 763

Society of the Most Precious

Blood V Moll 51 Minn. 277 884

Society for the Propjigation of

the Go.s|X"l in Foreign Parts v

Town of New Haven 8 Wheat. (U. S.) 464 71-

Society of Shakers at Pleasant

Hill V Watson 68 Fed. 730 726

Sohier v Trinitv Church 109 Mass. 1 66, 450, 565

Solomon v Cong. B'nai Jesurun 49 How. Pr. (N. Y.) 263. .291, 447, 462

xlvi TABLE OF CASES

Soltau V De Held 9 Eng. L. & Eq. 104 39

South Baptist Society v Clapp. . . 18 Barb. (N. Y.) 35 417, 418

South New Market Methodist

Seminary v Peaslee 15 N. H. 317 881

Southwick V New York Christian

Missionary Society . 151 A. D. 116; aff'd. 211 N. Y. 515. .370

Sparhawk v Union Passenger Rail- way Company 54 Pa. St. 401 777

Sparrow v Wood 16 Mass. 457 868

Spead V Tomlinson 73 N. H. 46 103

Specht V Commonweahh 8 Pa. St. 312 781

Speidel v Henrici 120 U. S. 377 170!— «=

Spencer v Joint School District ... 15 Kan. 259 694

Spiller V Woburn 12 Allen (Mass.) 127 714

Spiritual & Philosophical T(>mple

V Vincent 105 N. W. (Sup. Ct. Wis.) 1026,

127 Wis. 93 327,728

Splane v Commonwealth 9 Sad. (Sup. Ct. Cas. Pa.) 201 .. . .782

Spooner v Brewster 10 Moores Rep. (Eng.) 494 66

Stack V O'Hara 98 Pa. 213 679, 680

Stackpole v Symonds 23 N. H. 229 756

Stafford v State 154 Ala. 71 201

Stanley v Colt 5 Wall. (U. S.) 119 543'—

Stanton v Camp 4 Barb. (N. Y.) 274 2

Stanton v Metropolitan R. R. Co. 14 Allen (Mass.) 485 786

Stark V Backus 140 Wis. 557 748

State ex rel Hay v Alderson 49 Mont. 387, 142 P. 210 772

State of Iowa v Amana Society. . . 132 la. 304 142, 168

State, Church of the Redeemer v

Axtell 41 N. J. L. 117 797

State V Belton 24 S. Car. 185 897

State ex rel McNeill v Bibb St.

Church 84 Ala. 23. . 156, 228, 311, 381, 383, 625

State ex rel Baker v Bird 253 Mo. 569 281, 623

State ex rel Morris v Board of Trus- tees of Westminster College. . . . 175 Mo. 52 514

State V Branner 149 N. C. 559 214

State V Bray 35 N. C. 289 391

State V Cate 58 N. H. 240 214

State V Chandler 2 Harr. (Del.) 553 50

State V Chenoweth 163 Ind. 94 103, 216, 579

State V Collett 79 S. W. (Ark.) 791 769

State V Crowell 9 N. J. L. 391 868

State ex rel v Cummins 171 Ind. 112 310, 397

State V Dilley 145 N. W. (Neb.) 999 694

State ex rel Wei-ss v Edgerton

District School 76 Wis. 177, 7 L. R. A. 330. . . .45, 718

State of Missouri ex rel Watson v

Farris, et al 45 Mo. 183 131,489

State V Getty 69 Conn. 286 822

State V Hallock 16 Nev. 373 714

State ex rel Soares v Hebrew Cong. 31 La. Ann. 205 285, 309, 310

State V Jasper 15 N. C. 323 202

State V Jones 77 S. C. 385 213

State V Kirby 108 N. C. 772 209

State V Krech 10 Wash. 166 748

TABLK OF CASES xlvii

State V Linkhaw . 69 N. C. 215 214

State V Lorr>- 66 Tenn. 95 . ! ^748

State, First Reformed Dutch

Churih V Lyon 32 N. J. L. 360 585, 798

State V Marble 72 Ohio 21 103

State V McDonogh Estate 8 La. Ann. 171 .... 467

State V Norris 59 N. H. 536 56

State V Powers 51 X. J. L. 432 627, 900

State V Ramsay 78 N. C. 448 209

State V Rogers 128 N. C. 576 ...320

State V Seheve 65 Neb. 853

43. 46, 46, 46, 592, 595, 654. 714

State V Sherwood <¥1 In. .5.50 776

State V Snyder II Ind. 429 !203

State V Stewart tl Hmi.xf. (Del.) .3.59 574

State V Townsend _' Murr. ( Del.) .543 903

State V TriLMteet* 7 < )hio St. 58 !635

State v\ rel I'oyHer v Tnurtees of

Salem ( hurrh 114 Ind. :J89 309

State V White «i-t N. H 4S 620

State V Wright 41.\rk. 410 208

State Capital Hank v Thom|)e*<jn 42 N. 11. .{69 775

Stejirii.^ V li.tlf(.nl 21 Pick. (Miw8.) 125 219

StebbiiLs V Jenningx 10 Piek. (.\Ijus8.) 171

117, 118. 181,402,637,703,801

Siebhiax V I^iwolf 3 Cash. (Mju<«.) 137 75<i

Sicphen-son V Short 92 N. Y. 4;J3 HS!)

Sterna .Apt>eal 64 Pa. St. 447 761

Stewart v Uh- 5 Del. Ch. 573 . 133

.Stewart v Triwt<'«'»< of Hamilton

College 2 Denio (\. V.) 403 733

Stewart v White 12,s Ala. 202 283

St<Hk^ V li4M)th 1 I). A' K. (Kng.) 225 460

Stogner V I>iiird 14.') S. W. r44 114

Stoke^* V I'h.iprt Miasion. 47 Hun i.N. V.) 570 484, 634

SK.ry V Klliot ,S Cowan (N. V.) 27 746, 7.58 (2)

Stoughton V Reynolds 2 Strange (Kng.) 1045 234

^tratman v ( 'otnmonwealth. 137 Ky. .500 747

Straits V (Joldsmith S Sim. (Kng.) 614 468

Straw V Ka«t Maine Conf. .\I. K.

Churrh 67 Me. 493 .349

Stryker v Vanderbilt 27 N. .1 Law Rep. ti8 756

Slubbs V N'estrv of St. John't*

Church " 9«» Md. 267 .563, .564, 615

Sumner v First Parish Dorchester. 4 Pick. (.Mass.) 361 437

Sunmer v Jones 24 \t. 317 776

Suter V .Sj)angler 4 Phila. ( Pa.) 331 584

Sutter V Ref. Dutch Ch 6 Wright (Pa.) 503 143, 580, 645

Sutter V Trustees First Ref. Dutch

Church 42 Pa. 503 639

Swann v Broome 3 Biu-. (Eng.) 1597 758, 759

Swcde^borough Ch. v Shivers. 16 N. J. Eq. 4.53 830

Swover v S<haeffer 13 Pa. Co. Ct. 346 445

S\'nod V State 2 S. Dak. 366, (14 L. R. A. 418) .. .716

'labemacle Bapt. Church v Fifth

.\ve. Baptist Church 32 Mi.se. (N. V.) 440 rA2

xlviii TABLE OF CASES

Tanner v State 126 Ga. 77 211

Tarter v Gibbs 24 Md. 323 18, 325, 422, 615

Taylor v Edson 4 Gush. (Mass.) 522 318, 439

Taylor v Morley 1 Giirteis (Eng.) 380 223

Taylor v Young 61 Wis. 314 787

Teele v Derry 168 Mass. 341 73

Terrett v Taylor 9 Cranch (U. S.) 43 . . 552, 571, 595, 625-

Teshmaker v Hundred de Ed-

mington 1 Str. (Eng.) 406 785

Tharp v Fleming 1 Houston (Del.) 580 834

Thaxter v Jones 4 Mass. 570 328

Thayer v Felt 4 Pick. (Mass.) 354 765

Third Meth. Epis. Church in the

City of Brooklyn, Re 67 Hun (N. Y.) 86 110, 605, 636

Thompson v Cath. Con. Soc 5 Pick. (Mass.) 469 12

Thompson v Swoope 24 Pa. 474 347, 349

Thompson v West 59 Neb. 677 814

Thi-enfeldt's Appeal 101 Pa. St. 186 289

Thurmond v Cedar Spring Bap- tist Ch 110 Ga. 816 8, 845

Thm-ston v Whitney 2 Cush. (Mass.) 104 902

Tillock V Webb 56 Me. 100 754

Tobey v Wareham Bank 13 Met. (Mass.) 440 434

Tomlin v Blunt 31 111. App. 234 531

Towle V Larrabee 26 Me. 464 774

Town of Londonderry v Chester. . 2 N. H. 268 392

Town of Pawlet v Clark, and others 9 Cranch (U. S.) 291 123-

Town Council, Columbia v Duke. 2 Strobh. L. (S. C.) 530 768

Tracy v Jenks 32 Mass. 465 784

Travers v Abbey 104 Tenn. 665 12, 285, 398

Trinitarian Congregational So- ciety, Francestown v . Union Congregational Society, Fran- cestown 61 N. H. 384 453, 637

Trinity Ch. v HaU, et al 22 Conn. 132 572

Trinity Methodist Epis. Church,

Norwich v Harris 73 Conn. 216 129, 339

True Reformed Dutch Ch. v

Iserman 64 N. J. L. 506 583, 642

Trustees of M. E. Prot. Church

V Adams 4 Ore. 76 16

Trustees First Meth. Epis. Church,

South V Atlanta 76 Ga. 181 651, 794

Trustees St. Jacobs Lutheran

Church V Bly 73 N. Y. 323 606, 637

Trustees of Christian Church

V Cox 78 111. App. 219 603

Trustees of Methodist Epis.

Church V Ellis 38 Ind. 3 797

Trustees v Garvey 53 111. 401 733, 734

Trustees, East Norway Lake Nor- wegian Evang. Lutheran Ch. &

others v Halvorson 42 Minn. 503

147, 148, 154, 307, 327, 431, 602, 810 Trustees of Trinity M. E. Church

V Harris 73 Conn. 216 132, 142, 342

TABLE OF CASES xlix

Trustees, Philadelphia Baptist As- sociation V Hart's Exe 4 Wheat. (U. S.) 1 75, 91"""-

Trustees of Auburn Theological

Seminary v Kellogg 16 N. Y. 83 876

Trustees Phillips Academy v King. 12 Mass. 546 837

Trustees, Catholic Church Tay-

lorsville v Offutt's Adm 6 B. Men. (Ky.) 535 885

Trustees First Presby. Cong. Heb- ron V Quakenbu.sh 10 Johns. (N. Y.) 217 447, 465

Trustees, Independent Pres. Church & Society of Buffalo Grove & Polo v Proctor 66 111. 11 290

Trustees of First Baptist Church

in Syracuse v Robinson 21 N. Y. 234 738

Trustees of the Organ Meet. House

V Seaford 1 Dev. Eq. (N. C.) 453 161

Trastees, Hanson Church v Stetson 5 Pick. (Mass.) 506 739

Trustees, First Society of the

Methodist P^piscopal Church,

Pultney v Stewart 27 Barb. (N. Y.) 553 814

Trustees of the First Cong. Ch.

V Stewart 43 lU. 81 288

Trustees v Sturgeon 9 Pa. St. 321 399, 490

Trustees Associate Ref. Ch. v

Trustees Theol. Seminary 4 N. J. Eq. 77 27, 27, 29, 642

Trustees South Bapt. Church v

Yates 1 Hoffman Ch. (N. Y.) 141 809

Tubbs V Lynch 4 Harr. (Del.) 521 341

Tucker v Alowy 12 Mich. 378 779

Tucker v St. Clement's Church. . . 3 Sandf. Sup. Ct. (N. Y.) 242, aff'd.

8 N. Y. 558n 468, 563, 828

Tuckerman v Hinkley 9 AUen (Mass.) 452 754 (2)

Tuigg V Sheehan 101 Pa. St. 363 399, 659, 681

Tuigg V Treacy 104 Pa. 493 434, 660

Turner v Ogden 1 Cox Re. (Eng.) 316 80

Turpin v Bagby 138 Mo. 7 34

Twenty Third St. Church v

CorneU 117 N. Y. 601 733, 738

Twin Valley Telephone Co. v

Mitchell 27 Okl. 388 784

Uhler V Applegate 26 Pa. St. 140 757

Union Baptist Society v Town of

Candia 2 N. H. 20 468

Union Church v Sanders 1 Houston (Del.) 100 311, 397

United Presbyterian Ch. v Baird .. 60 la. 237 733

University v Tucker 31 W. Va. 621 86

U. S. V Brooks 4 Cranch C. C. (U. S.) 427 902^^**^

U. S. V Church 8 Utah 310 76,406, 499

U. S. V Kennedv 3 McLean (U. S.) 175 903

U S. V Lee '. 4 Cranch (U. S.) 446 203 —

Updegraph v Commonwealth 11 S. & R. (Pa.) 394 100

Vail V Owen 19 Barb. (N. Y.) 22 400

Van Buren v Reformed Church of

Gansevoort, N. Y 62 Barb. (N. Y.) 495 422

Vanderveer v McKane 11 N. Y. Supp. 808 478

Van Deuzen v Presby. Cong 3 Keyes (N. Y.) 550 5

1 TABLE OF CASES

Van Horn v Talmage 8 N. J. Eq. 108 449

Van Houten v First Ref. Dutch Ch. 17 N. J. Eq. 130 449

Vanzant's Estate 6 Pa. Co. Ct. 625 67, 71

Vasconcellos, et al v Ferraria, et al. 27 III. 237 706

Venable v Coffman 2 W. Va. 310 . . 83, 338, 356, 357, 357, 541

Venable v Ebenezer Bapt. Church. 25 Kan. 177 116, 765

Vestry & Wardens of Epis. Ch. of Christ Church Parish v Barks- dale 1 Strobhart's Eq. (S. C.) 199 158

Vidal V Girards Executors 2 How. (U. S.) 127 594

Vinz V Beatty 61 Wis. 645 764

Vorhees v Presbyterian Chu. of

Amsterdam 8 Barb. (N. Y.) 135, 17 Barb. (N.

Y.) 103 450

Waite V MerriU, et al 4 Me. 90 188, 719

Wakefield v Ross 5 Mason (U. S.) 16 QOf^

Walker, Re 200 lU. 566 652

Walker v State 146 S. W. 862 208

Walker v Wainright 16 Barb. (N. Y.) 486 140

Wall V Lee 34 N. Y. 141 212, 655, 680

Wallace v Hughes 131 Ky. 445 195

Wallace v Snodgrass 34 Pa. Super. Ct. 551 13

WaUer v Childs Ambl. (Eng.) 524 86, 199

Waller v Howell 20 Misc. Re. (N. Y.) 237 134, 285

Wallis V State 78 S. W. (Texas) 231 763

Wahiut St. Pres. Ch 3 Brewst. (Pa.) 277 422

Ward V Green 11 Conn. 455 785

Wardens of the Church of St.

Louis V Blanc 8 Rob. (La.) 51

126, 550, 621, 661, 662, 666, 688

Wardens, Christ Ch. v Pope 8 Gray (Mass.) 140

235, 235, 236, 568, 569 Washburn v Parish, West Spring- field 1 Mass. 32 11

Washburn v Sewall 50 Mass. 280 832

Watson, Re 171 N. Y. 256 349, 616

Watson V Avery 2 Bush. (Ky.) 332 482, 491, 504

Watson V Garvin 54 Mo. 353 153, 486, 502, 514

Watson V Jones 13 Wall. 679-726 (U. S.) vT

136, 199, 509, 513, 516, 618, 633, 638^ '

Watson V State 46 Tex. Cr. Re. 138 773

Watts V Van Ness 1 Hill (N. Y.) 76 747

Way V Foster 1 AUen (Mass.) 408 762

Weaver v Devendorf 3 Denio (N. Y.) 116 399

Webster v Sughrow 69 N. H. 380 313, 471

Weckerly v Geyer 11 S. & R. (Pa.) 35 871

Wehmer v Fokenga 57 Neb. 510 146, 249, 300, 619

Weinbrenner v Colder 7 Wright (Pa.) 244 125, 645

Welch V Caldwell 226 Illinois 488 74

Weld V May 9 Cush. (Mass.) 181 182

Wells V Commonwealth 107 Va. 834 787

Went V Methodist Protestant

Church 80 Hun (N. Y.) 266 61

Wentworth v Jefferson 60 N. H. 158 786

West V First Presby. Ch. of St.

Paul 41 Minn. 94 494

TABLE OF CASES li

West Koshkonong Cong, v Otteson 80 Wis. 62 322, 61 1

West V Shuttleworth 2 Myl. & K. (Eng.) 684 478

West V State 28 Tenn. 66 201

Westminster Pres. Ch. vFindley. . 44 Mis. (N. Y.) 173 18, 141

Westminster Church v Presbytery

of New York 211 N. Y. 214 112, 503

WVston V Hunt 2 Mass. 500 441

Wheaton v Gates . 18 N. Y. 395 537, 819

Wheelock v American Tract So- ciety 109 Mich. 141 834

Wheelock v First Pres. Ch 119 Cal. 477 486

White and Martin (Mich. 8 W. HI) Fort. (Eng.) 375. .765

White V Attorney Cien 44 Am. Dec. 92 90

White V Miller 71 N. Y. 118 724

Whitecar v Michenor 37 N. J. Eq. 6 385

White Lick Quart. McH't., etc.,

V White Lick Quart. Meet., etc. 89 Ind. 136 114, 139, 257, 260, 326

White Plains Presbyterian Ch.,

Matter of 112 App. Div. (N. Y.) 130 794

Whitoman v Lex 17 Serg. & R. (Pa.) 93 70

Whit more v Fourth Congrega- tional Society 2 Gray (Mass.) 306 9

Whitney v First Eccles. Society,

Brookl>-n 5 Conn. 405 395, 401

Whitsitt V Trustees Preemption

Presbyterian Church . 110 lU. 125 735, 741, 807

Wiggin V First Freewill Baptist

Church, Lowell 8 Mete. (Mass.) 301 315

Wilkes-Barre v Garabed 11 Pa. Sup. Ct. 355 692

Wilkins v \\'ardcns, etc. St.

Mark's Protestant Epis. Ch. . . . 52 Ga. 351 644, 846

Wilkinson v Moss 2 Lee (Eng.) 117 450

Willard v Trustees, Meth. Epis.

Ch. of Rockville Center 66 111. 55 741

Williams, Re 57 Misc. (N. Y.) 327. . . .240, 432, 869

Williams v Paul 4 M. & P. (Eng.) 532 754

Williams v State 83 Ala. 68 209

WiUiams v Western Star Lodge. . . 38 La. Ann. 620 468

Williams v Williams 8 N. Y. 525 77

Wilson V Livingston 99 Mich. 594 864

Wilson V Perry 29 W. Va. 169 504

Wilson V Presbyterian Ch., John's

Island 2 Rich. Eq. (S. C.) 192

107 152 492 495 498 Wilson V Tabernacle Bapt. Church 28 Misc. (N. Y.) 268. . . ! . . .'.603| 804

Windham v Ulmer 59 So. (Miss.) 810 32, 132

\\indlev v McCliney 77 S. E. 226 33

Windt V German Ref. Church .... 4 Sandf. Ch. Re. (N. Y.) 502. .59, 62, 65

Winebrenner v Colder 7 Wright (Pa.) 244 113, 125

Winnepesaukee v Gordon 67 N. H. 98 54

Winslow V Cummings 3 Cush. (Mass.) 358 835

Woodall V State 4 Ga. App. 783 211

Woodworth V Payne 74 N. Y. 196 370

Worrell v First Presby. Ch 23 N. J. Eq. 96. .316, 484, 495, 500, 643

Wright V Dressel 140 Mass. 147 781

Wyatt V Beason 23 Barb. (N. Y.) 327 345, 346

lii TABLE OF CASES

Wyllie V Mott 1 Hagg. Eccles. (Eng.) 19 460

Youngs V Ransom 31 Barb. (N. Y.) 49

152, 388, 557, 563, 564

Zimmerman, Re 22 Misc. (N. Y.) 411 472

Zuccaro, Ex parte 162 S. W. (Tex.) 844 768

ACTIONS

Agent, when liable, 1.

Architect, for plans, 2.

Building Committee, 2.

Compromise, when effectual, 3.

Corporation against majority of members, 4.

Corporation, recovering property, 4.

Corporation, against trustees, 4.

Damages against Railroad Companj- for disturbing rehgious services, 4.

Debts, 5.

Ejectment, 5.

Elections, 6.

Forcible entry and detainer, 6.

Juror, 6.

Mechanic's Uen, 7.

Minister's salary, 8.

Minister, statute of Umitations, 13.

Partition, 13.

Personal judgment, when not proper, 14.

Promissory note, 14.

Quieting title, 15.

Rector, deposition, when no action for damages, 15.

Reforming deed, 15.

Replevin for seal, 16.

Shakers, 16.

Specific performance, 16.

Title, action to compel conveyance, 16.

Trespass, 16.

Trustees, 17.

Trustees, de facto, 18.

Trustees, lUinois rule, 18.

Trustees, New York rule, 18.

Trustees, restraining imauthorized acts, 18.

Trustees, right to sue, 19.

Trustees' title to office, 20.

Unincorporated associations, 20.

Unincorporated society, 20.

Agent, When Liable. A perssou assuming to act as the agent of this society (First Freewill Society, Lowell), bor-

1

2 THE CniL LAAV ANJ) THP: CHURCH

rowed mouey, giving a uote pnrpoi'tng to be the uoic of the society, but which it bad uo power to execute. It was held that the ageut was liable for money had aud received. Jefts V York, J 2 (^iish. (Mass.) 10(>.

Architect, for Plans. Au action by an architect to recover compensation for plans prepared for the erection of a church edifice, without any formal resolution by the vestry adopting such plans, was sustained on the ground that the members of the vestry had informally authorized the rector to provide plans, and the architect had accordingly made an agreement with him therefor. Cann v Rector, Etc., Church of the Holy Redeemer, St. Louis, 121 Mo. App. 201.

Building Committee. Stanton v Camp, 4 Barb. (N. Y.) 274, involved the validity of a contract for the erection of a church edifice made by a building committee of the society in the name of the society (Presbyterian, Sacketts Harbor). It was held that an action could not be maintained against the members of the committee personall}'.

A firm made a written proposition to the building com- mittee of this society (Baptist, Simmons Creek), to erect a house of worship at a price stated. The names of the building committee did not appear in the proposition. The proposition was accepted by two members of the building committee. The contractors proceeded with the work and received from the pastor money to apply on the contract. It was held that the contract was with the building committee as such, and not with the members as individuals, and there- fore a personal action could not be sustained against the members of the building committee who accepted the propo- sition to build the church. The committee were the agents of the church. Johnson v Welsh, 42 W. Va. 18.

An action was brought against the members of a church building committee as individuals to recover a balance due on a contract for repairs and additions to the church edifice. The contract was signed by the committee, with the addition of the words "Building Committee of the M. E. Church at Thomaston." It was held that the contract was personal

ACTIONS 3

and could be enforced against the members of the committee. Copeland v Hewett. !m; Me. 525.

In Chambers v Calhoun, IS Pa. St. 13, an action on a subscription to aid in the erection of a church edifice was sustained. The subscriber was a member of the building committee to whom the subscripton was made payable, and the action was brought by the other members of the com- mittiH?, who were held entithMl to maintain the action, even though the church tMlifice had been erected, and the com- mittee was out of office.

A member of a building committee who receives and uses materials in the ere<tion <»f a church building, will be per- sonally liable therefor, if he agreed to pay the debt as one of the committee, without limiting the extent of his obliga- tion. Cruse V Jones, .'» L«*a (Tenn.) <»(».

In an action against the deacons and trustees of the society (Obi Scho<»l Tresbyterian Church) on a contract made by a building committee for work and labor in the ei-ection of a church, it apjteared that the contract bound the Itiiilding ( tinimittt»e, but that there was no evidence that the deacons and tnistees had apjtoiiitetl the committee, or had assumed any personal liability nii the ccuitract. It was not sufticient to establish the liability of the deacons and trustees to sh(»w that they were the agents of the society. Devoss V (Jray. L'L* Ohio l."!».

A qucHtion having arisen as to the action of a building committee, the court hehl that it was competent for the s/>ciety by vote to ratify and ajiprove the action of the com- mittee. Norwegian Kvangelical Lutheran Bethlehem Con- gregation v Ciiited States Fidelity and Ouaran^y Company, SI Minn. :V2.

Compromise. When Effectual. \Mien a church and .society ai-e an existing organized association, acting in a collective quasi corporate character, an agreement of compromise of a suit by a majority of the members is binding upon the minority. Ilorttm v Baptist Church and Society of Chester,

:u vt. rloo.

4 THE CIVIL LAW AND THE CHURCH

Corporation Against Majority of Members. While it is an apparent anomaly- for a corporation in its artificial capacity to sue a majority of the individuals composing it in their natural capacity, it was held in Maryland that such a state of things may properly occur with regard to a particular religious corporation, and perhaps as to many others, espe- cially where the action was begun by direction of a majority of a quorum fixed by the charter, though such majority was not a majority of all the trustees. For an interesting case involving this question see African Methodist Bethel Church, Baltimore v Carmack, 2 Md. Ch. 143.

Corporation, Recovering Property. The trustees were held entitled to maintain an action to recover property, even as against a majority of members of the society. First Meth- odist Episcopal Church, Attica v Filkins, 3 T. & C. (N. Y.) 279.

Corporation, Against Trustees. In African Methodist Bethel Church, Baltimore v Carmack, 2 Md. Ch. 143, it was held that the trustees and not the congregation constituted the corporation ; also that an action could be maintained in the name of the church against a majority of the trustees in their individual capacity.

Damages Against Railroad Company for Disturbing Religious Services. In First Baptist Church in Schenectady v Troy & Schenectady R. R. Co., 5 Barb. (N. Y.) 79, the church cor- poration was held entitled to recover damages for the dis- turbance of its religious services on the Sabbath by ringing of bells, blowing off steam, and other noises of the railroad. The damages were assessed at six cents. See First Baptist Church in Schenectady v The Utica & Schenectady Railroad Company, 6 Barb. (N. Y.) 313, for a similar action by the same society against another railroad company for a sim- ilar disturbance of divine worship. In the latter case it was held that damages could not be recovered for an alleged depreciation in the church property for the reasoi- that such damages were too remote; and it was also held that an individual member of the congregation could not main-

ACTIONS 5

tain a private actiou for damages for disturbing him while attending religious service.

Debts. The property of the society was held liable for the payment of debts contracted by it in the erection of build- ings or otherwise, and creditors niiglit take proceedings for the sale of the property, and tlie apidicatiou of the proceeds for the i>aynient of such debts. Linn v Carson, 32 Graft. (Va.) 170.

In Beckwith v McBride & Co., 70 Ga. C42, it was lield that a jMM-son sMjtplyiiig materials for certain repairs in the clini'di rdilice which li.id been or(Un-ed by indivi«lnal mem- bers of the vestry, could not maintain an action against the trustee of the i»i-oj»er(y. He was not a parly to the contract, and it was also hebl that tlie vestry as such was not liable for the reason that it had not acte<l in the matter as a body, although individual niendiers had assumed to make the contract.

Ejectment. The society ma<le a contract of settlement with a jtastor, by whi» h he was to re<eive a stated salary and the u.se of the jiarsonage. Three years later, on account of differences arising in the church, the pastor and a part of the congregation withdi-ew, and worshijied first in a hall an<l then in a meetinghouse, becoming a flourishing church without any connection with the (dd s<»ciety. The remaining nuMnbeis emjdoyed a new pastor, and contiinied to occupy the original church ju-ojterty. The ohl society brought an action of ejectment against tlie former pastor, to recover possession of the jiarsonage. The court held that the facts did not .show conclusively that there had been a secession from the original soci«*ty, but that all the facts should be submitted to the jury. First Baptist Church and Congrega- tion V Rouse, 21 Conn. KJO.

A conveyance to the trustees was held to be a conveyance to the society, and sufficient to give the corporation the right to maintain ejectment. Van Dcuzen v Presby. Cong. 3 Keyes (N. Y. i 550.

Trustees of an unincorporated religious society cannot

6 THE CIVIL LAW AN]) THE CHURCH

maiutain ejectment to recover possession of church property conveyed to certain grantees as trustees of an unincorpor- ated society. Bundy v Birdsall, 29 Barb. (N. Y.) 31.

Elections. In People ex rel Fleming v Hart, 13 N. Y. Supp. 903, 36 St. Rep. 874, the court sustained an action involving the validity of the election of church wardens and vestry- men of St. Stephen's Protestant Episcopal Church of New York, a part of whom had been ousted from office, and a special election was ordered to fill the vacancies caused by such ouster, and a referee was appointed to supervise such election.

Forcible Entry and Detainer. On a division in the church resulting in the withdrawal of a portion of the members and the pastor, a majority placed the building in charge of the petitioner, who put new locks on the doors and retained the keys. On the following Sunday a large party of the dissentient members removed the locks and maintained devotional exercises. The petitioner brought an action for forcible entry and detainer. It was held under the New York Code of Civil Procedure that he was the agent of the majority who were entitled to the possession of the church, and could maintain the action. Central Park Baptist Church V Patterson, 9 Misc. (N. Y.) 452.

Trustees of the society sought to maintain a proceeding for forcible entry and detainer in their individual names, but it was held that the title of the real property being in the corporation, the proceeding must be in its name and not in the name of the trustees. People ex rel Fulton v Fulton, UN. Y. 94.

Peojjle V Runkle, 9 John. (N. Y.) 147, sustained the right of the trustees to maintain a proceeding for forcible entry and detainer against a minister and several members of the church who had broken open the building for the purpose of holding religious services therein

Juror. A member of the Lutheran Church was held not disqualified as a juror in an action in which anotlier Lu- theran churcli was a jcirty. Barton v Erickson, 14 Neb. 164.

ACTIONS 7

Mechanic's Lien. l*roperty was couveyed under special trust that it should be always secure to the Eastern Meth- odist Society in Lynn, "and such ministers of the Methodist I'^jjiscopal Church as may from time to time be stationed among them to preach and expound the word of God, to administer tlie ordinances and discipline of the church, and to hold their private relij;ious meetings unmolested accord- ing to the rules and regulations which are or may hereafter be adopted by the General Conference of the IMetiiodist Epis- copal ('hurch in the Unitetl States of America." The orig- inal trustees were held to be the legal owners of the estate, holding it for the churcli. All imi)rovements on the property attached to the freehold, and became the property of the original .surviving trustee. The churcli edifice having been destroyed by fire was rebuilt. A mechanic's lien was filed against the projterty making the church society the respond- ent, but without joining the original surviving trustee. The proceedings were deemed defective, and the lien could not be enforced. ]'ea])ody v Eastern Methodist Societj', Lynn, 5 Allen (Mas.s. i .>U).

Land was conveyed to trustees of a religious society on condition that said lot was never to be sold or to be used in any other way only for the use of a church. Trustees erected a building on the property which was used as a school and also as a house of worship. A mechanic's lien was filed on the property, and jtroceedings were instituted for the fore- closure of the lien and the sale of the property. Judgment was obtained, and the proi>erty sold by the sheriff to the judgment creditor. The grantor in the deed brought an action to set aside the sale on the mechanic's lien on the ground that such a lien could not l»e ol»tained oil property held in iierjietuity for the purpo.se indicated in the deed, and that the action of the church trustees in permitting such lien and .sale of the ]>roperty was a violation of the trust, and that the purchaser obtained no title as against the original grantor. It was held that the sale of the property under a mechanic's lien necessarily defeated tlu' object of the char-

S THE CIVIL LAW AND THE CHURCH

it}-, and that the trustees receiving the deed liad no power to create any incnnibrance which would have this effect. They could neither alienate the property voluntarily, nor subject it to a lien which might ripen into a judgment and sale, but they were required to hold the property for the perpetual purpose of the trust. Grissom v Hill, 17 Ark. 483.

In this case the rule was laid down that in Arkansas a church building was not subject to a mechanic's lien. Eureka Stone Company v First Christian Church, 86 Ark, 212.

In an action to foreclose a mechanic's lien for labor and materials furnished in making repairs to a church edifice, it appeared that the congregation appointed a building com- mittee to take charge of the improvements. This committee contracted with the plaintiff. The work was performed and materials furnished, and a mechanic's lien was filed in the proper office. The trustees defended on the ground that neither the congregation nor the trustees should be liable for the indebtedness created bj^ the improvements, which were to be paid for by voluntary contributions. It was held that the contractor was entitled to enforce his lien. Gorte- miller v Rosengarn, 10.3 Ind. 414.

In an action to foreclose a mechanic's lien on the church edifice owned by an unincorporated society, it was held that the action could not be maintained against an unincorpor- ated society, but that the members of the church, as joint promissors or partners, were liable for the debt. Thurmond V Cedar Spring Baptist Church, 110 Ga. 816.

A church edifice was held to be a building within the mechanic's lien law, and therefore subject to be sold in pro- ceedings for foreclosure of such a lien. Harrisburg Lumber Company v Washburn, 29 Ore. 150.

In Beam v First Methodist Episcopal Church, 3 Pa. L. J. Rep. 343, it was held that a mechanic's lien on a church edifice could not be enforced against an adjoining grave- yard used by the society.

Minister's Salary. A minister brought an action against

ACTIONS 9

the society for an alleged balauce of a year's salary. The salary was fixed in couiiection with his settleuient as pastor. The pastoral relation had at least in form been dissolved by the action of the association, but the severance was on the ex parte application of the local church without the minister's consent. Whether such a dissolution of the pas- toral relation was regular under the law of the church was held to be a proper question for the jury. Gibbs v Gilead Ecclesiastical Society, 38 Conn. 153.

In an action bj- a minister for his salary after he had been dismissed, it was held that the parish could not give evidence of previous immorality on his part not stated in the vote of dismissal. Whilniore v Fourth Congregational Society, 2 Gray (Mass.) 300.

The elders and deacons called a minister as pastor of the church. The call was not accepted, but the minister occu- pied the pulpit and j)orformed service as pastor for one year. In an action against the elders and deacons for his salary, it was held that not having accepted the call, he was not the regular i)astor, and was therefore not entitled to the emolu- ments of the office, and the elders and deacons were not liable. Neill v Spencer, 5 111. App. 461.

The pastor was employed by the congregation in Decem- ber, 1880, and entered on liis duties in January, 1887, and continued to serve the church until October 15, 1889, when the congregation voted that his relation to the church should be terminated. The doors of tlie church were locl^ed against him, and payment of his salary was refused. An action was brought to recover salary claimed to be due for a part of the year, the pastor alleging that his employment was for life, and not for any definite time. Under the law of tlie church the pastor must have been a member of the recognized Evangelical Lutheran Synod in the United States. The pastor claimed that his discharge was illegal. The defend- ants asserted that the pastor was not qualified, for the reason that he was not a member of a recognized Evangel- ical Lutheran Synod of the country, and that his continu-

10 THE CIVIL LAAV AND THE CHURCH

ance as pastor was in violation of the law of the church. He had a provisory relation to the synod acquired in 1886, but in 1880 his relations to the synod were terminated. His application for membership was rejected. He thereupon ceased to be a member of the synod, and at the same time ceased to have the needed qualifications to entitle him to appointment as pastor. The pastor was not entitled to recover the salary claimed. Helbig v Rosenberg, 86 la. 159.

A person employed as pastor was to receive a stated salary and the use of the parsonage. The pastor agreed to perform the service for such amount as could be raised by subscrip- tions, which were to be collected by the society, and he per- formed the service for six years. He then brought an action to recover the balance due. It was held that the society was bound to use due diligence in collecting the subscrip- tions, and that the pastor was entitled to recover the balance due, after deducting all amounts received by him, Myers V Baptist Society of Jamaica, 38 Vt. 614.

In Landers v Frank Street Church, Rochester, 97 N. Y. 119, also 114 N. Y. 626, it was held that the minister could not maintain an action against tlie society for a deficiency in his salary, it appearing that by the rules of the Methodist Episcopal Church the minister's salary is fixed by the Quar- terly Conference, and that no contract relation exists be- tween the minister and the corporation as to his salary. See also Baldwin v First M. E. Church, 79 Wash. 578.

The constitution of Massachusetts has not authorized any teacher to recover by action at law any money assessed pur- suant to the third article of the Declaration of Rights but a public Protestant teacher of some legally incorporated society. Therefore, a public teacher chosen by a voluntary association of Universalists was held not to be within the purview of this constitutional provision. Barnes v First Parish, Falmouth, 6 Mass. 401.

The pastor brought an action against the trustees of the society to recover his salary for four years. It was held that he was entitled to recover and that he was not prevented by

ACTIONS 11

the provision in the Methodist Discipline providing that effective men who have not been able to obtain their allovi^- ance from the peojde among whom they have labored may present a claim to the Conference to be paid out of the money at the disposal of the Conference, and snch claims may be paid, or any part thereof, as the Conference may determine. In no case, however, shall the chnrch or Conference be holden accountable for any dcticiency, as in case of debt. The court said the effect of the provision in the Discipline was to permit a minister to i)resent a claim for deficiency to the Conference, and to re«<'ive it as a favor, Imt not as a right. Such a deficiency <li<l not <-oiistitnte a ilebt against the church at large, but it might be used as the basis of an action against tlie local society.

The minister who Itiouglil this action was also a mechanic, and the court held that he was entitled to enforce a lien against the chui-ch for services in that ca])acity. Jones v Trustees of Mt. Zion Church, .".() La. Ann. 711.

Even if, as in some churches ( in this case the Evangelical Association), no contract was made for the payment of the pastor's salary, but he is dependent on voluntary contribu- tions for liis conijKMisation, this right to compensation is a property right in the (jflice of )»astor which a court of equity will recognize and ju-otect. Schweiker v Husser, 140 111. 390.

A j)ublic teacher of religion not ordained over a particular pari.sh or place, but only imlefinitely over a large district of conntry, including, or which may include, a nuud)er of par- i.shes or places, cannot maintain an action to recover moneys assessed for the support of piddic worship. Washburn v Parish, West Springfield, 1 Mass. ;i2.

Where money for the minister's salary had been raised by subscrii)tions, and was available for that purpo.se, the church was held liable, although the call and the agreement for the pastor's service did not conform to the provisions of the statute. I'endleton v Waterloo Bai ". Ch. 49 Hun. (N. Y.) 596.

12 THE CIVIL LAW AND THE CHURCH

When a town lias settled a niinisler an artion will lie for his salary against the town, notwithstanding there may be several unincorporated religious societies or associations within the town, the members of which may be exempted by law from contributing to the support of such minister. Cochran v Camden, 15 Mass. 296.

The pastor has no propertj' right in his salary as against the church. That is a matter of voluntary contribution by the membership, except so far as individuals may bind them- selves therefor. The pastor is not an employee of the church. Pecuniary considerations are not controlling in such relations. Travers v Abbey, 104 Tenn. 665.

The societj^, by ex parte proceedings, dissolved its relations with the pastor and prevented him from occupying the meet- ing house and pulpit. Nevertheless, he preached at private houses to such as chose to hear him. In an action by the pastor for his salary it was held that his dismission by an ex parte council was invalid, and that he was entitled to recover his salary. Thompson v Cath. Con. Soc. 5 Pick. (Mass.) 469.

The parish and the minister made an agreement by which the salary was to be regulated according to the price of the necessaries of life, increasing the salary if the prices rose, and diminishing it if the prices were reduced. The salary was to be fixed by the parish committee. This committee having determined the salary, it was held that such deter- mination was conclusive, and the minister could not, in an action to recover additional salary, show that the committee had been mistaken in estimating the prices of necessaries. The committee having acted fairly and honestly, its deter- mination was conclusive. Burr v Sandwich, 9 Mass. 277.

In Reformed Dutch Church of Albany v Bradford, 8 Cowan (N. Y.) 457, it was held that the minister was not entitled to his salary for the time during which he was under suspension for misconduct as determined by the church judicatories.

The presbytery having jurisdiction of tliis church dis-

ACTIONS 13

solved the pastoral relation between the minister and the congregation, but without any action on the part of the congregation. It was held that the etfect of the dissolution was to suspend the right of the minister to render pastoral services, and the liability of the congregation to the min- ister for compensation pending a final determination of the question as to the regularity of the action of the presbytery. In such a case the fact that the action of the presbytery was thereafter decreed to be illegal does not affect the status of the parties during the i)eriod of litigation, and if the min- ister seeks and secures other emploj'ment during such period, and never otters to resume the pastoral relation, he cannot maintain an action against the congregation for his salary during the peri()d from the dissolution of the pastoral relation to the date of the decree declaring such dissolution invalid. "Wallace v Snodgrass, 34 l*a. Super. Ct. 551.

The l*resbytery of Oklahoma appointed the minister or stated supply, and he was accepted by the church. It was held that in the absence of any legal contract the church became obligated to pay liini a fair and just compensation for his services. If it couhl obtain aid from the Home Mission Board, this was its right, and after applying the amount paid by sucli board, if there was still a balance due to make a fair and just compensation, it was bound and obligated to pay such balance. In this case it was held that tliere was no express contract between the minister and the local society. Myers v First I*resbyterian Church, Perry, llOkla. 544.

In Kifte v l*roctor, i)\) Mo. App. (iOl, it was held that the members of the local society were not individually liable for tlie i)astor's salary.

Minister, Statute of Limitations. The six-year statute of limitations ai)plies to an account of a minister for services performed for a church. Graj' v Good, 44 Iiid. App. C. Rep. 476.

Partition. In Leblanc v Lemaire, 105 La. 539, it was held that a minority of the members of the society could not

14 THE CIVIL LAW AND TIIIC CHURCH

maintain an action for the partition of the church property, consisting of a burial ground and a church site with build- ings thereon. Wliile they may have certain property rights in the church holdings, they are not considered such ones in indivision as give them a standing in court to procure against the will of the majority a partition of that which, by common understanding, is intended to remain intact for the purpose of religious worship.

Personal Judgment, When Not Proper. An action was com- menced by a member of the society, which was not incorpor- ated, against his associates to recover a personal judgment. It was held that he could not recover, and that his only remedy was in equity against the church property. German Roman Catholic Cliurch v Kaus, 6 Ohio. Dec. 1028.

Promissory Note. An action was brought against several persons to recover the amount of a promissory note given by the pastor for money borrowed, to be used in the erection of a church edifice. The defendants were called a building committee, but tliey were not parties to the note. The com- mittee did not handle any funds, and their only authority was advisory. The pastor had charge of the building of the church, raised the money, and supervised tlie erection of the building. It was held that there was no evidence of liability on the part of the so-called building committee, and the plaintiff was not entitled to recover against them on the note. Freeport Bank v Egan, 146 Pa. 100.

In Brockway v Allen, 17 Wend. (N. Y.) 40, the court sus- tained the validity ot a promissory note given by trustees of the society for a preexisting debt for materials furnished. They acted as the agents of the corporation.

A promissory note was given for material and labor fur- nished in the erection of a church. The note was signed by the senior warden and by the junior warden. In an action against the church it was held that the note had been ratified by the vestry, and that the church was therefore liable thereon. Donnelly v St. John's Protestant Episcopal Churdi, 20 La. Ann. 7?>^.

ACTIONS 15

In ratti'on v First Uiiiversalist Society, Maiichestei-, -KJ Iowa ]0(j, it was lieUl lliat an action could not be maintained on a promissory note given by tlie president and secretary of the board of trustees without any autliority from the board.

Quieting Title. It was held that the corporation was at least a de facto corporation and that its trustees could maintain an action involving the property interests, until their powers Avere questioned in an action by the attorney general. Therefore the society \\'as held entitled to main- tain an action to quiet title and protect the property. First Baptist Church of San Jose v Branhan, 90 Cal. 22,

The society, acting on permission granted by school trustees, erected a house of worship and established a cem- etery on school lands, but encroached on other lands which had been included in the school lot by mistake, and which had subsequently been conveyed to a third person by the original grantor. In an action by the church to quiet the title, it was held that the society could not hold the lands by adverse possession, i>artly because sufficient time had not elapsed since the original occupancy and partly because the occupancy was l)y mistake. Such an occupancy could not ripen into adverse possession. Davis v Owen, 107 Va. 283.

Rector, Deposition, When No Action for Damages, The societj^ having become reduced in numbers, a minister was sent to it as a missionary. After about a year's service he resigned this i)osition and was elected rector by the vestry. The rector was charged before a church tribunal and con- victed of conduct unbecoming a clergyman, and was degraded and debarred from the ministry and the bishop imposed sentence accor<lingly. The rector brought an action against a member of his congregation and the bishop for damages. At the trial it was held that there was no evidence to sustain the rector's claim that the defendants had con- spired to injure his character as a Christian minister. Irvine v Elliott, 200 Pa, St. 152.

Reforming Deed. The proprietor of land set it apart for

16 THE (nVIL LAW AND THE CTIURCH

the use and benefit of the Methodist: Protestant Church of the towu of Jefferson as a site for the erection of a house of public worship, intending to give the same to the church for tliat ])urpose, and accoi-dingly executed a deed to a third person, who subse(iuently conveyed the tilk; to the society. A house of worship was erected on the hind. Tlie transfer was valid, but the title was <lefective by reason of a mistake in the description. It was held that the society could main- tain an action to reform the deed, and correct the deed, and correct the mistake. Trustees of Methodist Episcopal Pro- testant (^hurch V Adams, 4 Ore. 7().

Replevin for Seal. The rector, church wardens, etc., of an incor]»orate(l church cannot maintain replevin for the corporate s^al against the treasurer of the church, where a rule of the church declares that the treasurer shall safely keep tiie cori)oration seal. Rector, etc., v Blackhurst, 11 N. Y. Supp. (KJO.

Shakers. An action may be maintained by <k'acons of a Hhaker Society for trespass on property. Anderson v Brock, :] Mo. 2r.\.

Specific Performance. The court decreed the sjiecitic ]>er- formance of a contract for the sale of the church ])roi)erty, which contract had been submitted to the supreme court and approved, with an order authorizing the sale and direct- ing the disposition of the proceeds by the corporation. Bowen v Irish Presbyterian Congregation, New York, G Bosw. (N. Y.) 215.

Title, Action To Compel Conveyance. A subscriber to a fund for the (M'cction of a churili cdilice donated two lots in pay- ment of his subscription, and the society erected its meeting house on the land. No deed was made, but the society can- celed the subscription, and the subscriber indicated the dona- tion on the map of a tract including these lots and others. The society was held entitled to maintain action to compel tlie conveyance of the laud. ICnos v Chestnut, 88 111. 590.

Trespass. Trustees de facto may maintaiji an action for trespass (tn pi-oix'iMy. Green v Cady, t) Wend. (X. Y.) 414.

ACTIONS 17

After thirty years of uiiinterrui)ted possession of property (Cherokee Chai)el, Fort Smith, Ark.) the society was pre- sumed to have obtained tlie title thereto. It was further held that the trustees mi«>ht bring- an action for tres- pass on the i)roi)erty, for digging- and removing coal there- from. I'enny v Central Coal and Coke Company, 138 Fed. 7G9.

• Where the fee of the church ]H'o])erty is in one society, but another society has a right to use the same for religious l)urposes, the second society cannot maintain an action of trespass; such a right of action is possessed only by the owner of the fee, or by some person or society entitled to the exclusive ])ossessi(>n. Kcligious Congregational Society, Bakerstield v Baker, 15 N't. 1 IJ).

A minister of a parish, who. by virtue of his settlement, had a freehold estate in a ministerial land, was entitled to maintain an action of tresjtass thereon. The action was personal and, therefore, did not abate by a dissolution of the I)arochial relation. Cargill v Scwall, M) Me. 2SS.

Trustees. Tcisons who i'urnishcd jk'ws and other furiiitiire for the chui'<-h brought an action against the trustees and recovere<l judgment for the amount of the debt. This did not create a lien on the ])ro]>erty, but was a claim against the trustees, and was valid as to them, 'i'hc trustees merely hold the legal title to the I'eal estate conveyed, devised, or de<licated lor the use and benetit of the religious congrega- tion, at whose instance they have been appointed, and they have no power of their own volition, and in their ca])acity as trustees, either to alien or encumber such real estate. Globe Furniture Company v Trustees, Jerusalem Baptist (liurch, 103 Va. 550.

A building contract was signed by the president of the societA^, which was not incorporated. It was held that the society was not a necessary or proi)er party in an action against the trustees on the contract. Such a contract, exe- cuted by the authority of the trustees, will be treated as their contract and mav be enforced in an action against

18 THE CIVIL LAW AND Till: riH^RCH

them. Liuisford ^V; Willirow (N)iu|»;niy v Wren, ('4 W. Va. 45S.

If the teniitoralities are niaiiaj^ed by trustees elected under the statute, the rulinj; ehlers and members of the session have no standing to maintain an action in their own name or the name ol" the c-or])oration against trustees alleged to have been suspemled by the session as communicants, and there- fore not entitled to act as trustees. Westminster Pres. Church V Findley, 44 Misc. (N. Y.) 17:1.

Several mend)ers of the society brought an action against other mendters described as trustees for an accounting of certain fuiuls belonging to the society, and for an injunction restraining the trustees from continuing the use of instru- mental music (an organ), which was alleged to have been introduced by them contrary to the custom of the church. It was held that the plaintiffs had no standing to maintain an action and that the action was not properly brought against the defendants describing them as trustees but that the action should have been brought against the corporation. Tartar v Gibbs, 24 Md. 328.

Trustees, De Facto. The trustees of a religious corporation and officers appointed by them whose elections and appoint- ments were in conformity with the formalities prescribed by the statute, and who have in fact acted and are acting as such, are at least officers de facto, upon whom alone a valid service of process can be made. Berrian v Methodist Society, New York, 4 Abb. I'r. (N. Y.) 424.

Trustees, Illinois Rule. In Illinois actions by or against religious societies must be in the name of the trustees instead of the society as such. Ada St. Methodist Episcopal Church V Garnsey, GO 111. i:»,2.

Trustees, New York Rule. Trustees of religious societies cannot sue as such except by their cor])orate name or title. Bundy v Birdsall, 20 Barb. (N. Y.) ?A.

Trustees, Restraining Unauthorized Acts. This society was incorporated in 1788 by sjiecial act. The charter was amended in 1837 by pi-ovidiiig that the church belonging to

ACTIONS 19

the Gennaii Religious Society of Roniau Catholics, called the Holy Triuity Church, iu the city of Philadelphia, shall be contiuued as a German Roman Catholic church, and con- ducted according to the provisions of the act incorporating the said church, so long as the same should be required, by at least twenty regular contributing members, qualified to vote at the elections held under the said act of incorpora- tion.

The board of trustees was regularly elected in due course according to the charter in 1850, and on the 29th of Novem- ber, 1850, executed a deed of all the corporate property owned by the society to the three pastors of the church, in trust for various purposes, including renting of pews and interments in the burial ground. All receipts and income to be applied to the support of the pastors of the church, and to the expenses of the church and to the liquidation of the existing debt. A school maintained by the society, as authorized by the original charter, was to be free by the provision of this deed.

Several members of the church objected to this transfer of the title from the corporation to the pastors, and applied for an injunction restraining its consummation and any further exercise of authority by the trustees or pastors, and also the appointment of a trustee by the court to take charge of the property. The plaintiffs alleged mismanagement by the board of trustees. The court held that the deed from the board of trustees to the pastors was iu excess of the authority vested in the board by the charter, and the deed was, therefore, invalid. The court also held that the plain- tiffs, as members of the church, could maintain an action to set aside the conveyance by the trustees, and restrain further operations by the pastors pending the determination of the issues. Langolf v Seiberlitch, 2 Parsons Equity Cases, (Pa.) 64.

Trustees, Right to Sue. In an action brought by trustees in their own names, for the use of the corporation of which they are officers, the court may render judgment for the cor-

20 THi: ("1\ II. LAW AM> TlliO CIU'RCH

poratiou. Leltwig and Bartou, for the Metli. Ep. Ch. v Thornton, 18 la. 5G.

An action on a contract was brought hv the trustees of the society. The defendant objected that the action should have been brought in the name of the society itself, but this claim was overruled, an<l the action was held good in form. It was also held that the action w:is ]>r(>it('rly brought by the successors of the trustees who nuidc llic contract. Skinner V Richardson. Koyntoii iV: Co., TO Wis. 4(il.

Trustees' Title to Office. Trustees must sliow lille to olllce in a<'tioiis iclating to church i»roi»erty. .Vntones et al v Eslava's Heirs, l> Vuv\. (Ala.i r>L'7.

Unincorporated Associations. \\\ unincorporated associa- tion is not a peison. and has not the power to sue or to be sued. Hut in the case of religions and eleemosv naiv associa- tions, llu' mendters and managing coniniilte<' who incur the liability, assent to it. oi- snl»se(|nent ly ratify it. become per- sonally liable. Uniion v (Ii'and Hapids School I'urniture Company. 10 Tex. ('iv. l{ep. L'TO.

Unincorporated Society. The trustees de t.icid of :in unin- corporated society ma.v maintain an action for trespass on the society's pro]>eity. (ireen v Cady. 1> ^\'en(l. (X. V.) Ml.

AKHK'AX MKTHODIST EPISCOPAL

• >rKanuatioit, '21. AiiifntiiDK rhartcf, 21.

Mufi. :i|punj(t tnrviinicH, 21.

Organization. In IM«; tin- Afiiraii .MttluMlist Kpisropal rininh M'|>aratc<l frnm tht* wliitr MiMluxlistH ami itromul- _'.iti*«l llu'ir H<M>k of l><Mtriiu* aiiii DiHciplinc. The doctrine I ml <liK( i|iliiM> of this rlinn h is faKliiuiitMl in a j^ri'at iiioasure iftiT lliat of the wliiii* MrilnMliKi K|MH(<i|iaI Clnirch in ling- lan«l an<l Anu>ric*a; in wliirh the elei'tiun aixl ordaining of llie pricHthiMMl !iy thr <5«inTal or Annual < 'onf«*n'iMcs, llie or«linalion itf thiMu hv hiving on of hamls by a liisliop and

• hU'rw. and the Hxing of their apiHiintnientn by the l)iNli<)|), in* ranliniil |MtintH, ih«* lant of tliiMn a distinrtive one. it IS I he r«M-k on whi«li the iluirrh in fi>nnd«M|, and on which it haM proMiM'reil. Hcniove the ehureh from it, and it eeuHes to Im* .MrtlHMliHije. Coniinoimealtli vx nd Miliar v (V)rniHh, i:5 I 'a St -JSS.

Amending Chartfr. M«-<'ting raniioi amend thaitir wiili-

• >nt |>n*viouK notir«> that aniemlment would Ih* |>ro|>osi*d. !»'«' African Meth<HliMt l^pinrnpal Tnion Cliunh, 2S I'a. -uiM«r. rt. VXl.

Ditmiiiing Pastor. l\\ \\h charter the right to di.sniiHH a pahttir is \r>.i«tl in the incorfKiraton*. African Methodist episcopal rhjinh v Tlark. 'St I^i. Ann. L'SL*.

Municipal Ordinance Against Meetings. A< tion to prevent «ily from int«*rfcring with a>*.H4*nddics nf colui'cil p«*i'.son.'* for ii'ligioUH Worship. City ordinance prohiluting sin h as.s4Mn- Idage KiiHtuine<l. African McthiMlist ICpiKcopal Church v N»\\ OrlciniH. ir> 1.^1. Ann. 111.

21

AMERICAN HOME MISSIONARY SOCIETY

Bequest, sustained, 22.

Bequest, Sustained. Tliis was ;in assorijition of ixMsoiis for cliarilable aiul religions iim-poses, but was not iiicoi-poi-atod at the death of the testator, who resided in Connecticut. The New York hiw was hehl to aj)i>ly in this case. The law of the domicile of the legatee governs the validity of the bequest. A voluntary as.sociation for charitable purposes cannot take a legacy, an<l the defect is not cured by its sub- secnuMit incorporation. Mapes v Ilonie Missionary Society,

'a:\ Uiin. (N. Y.) :;(;o.

22

AHBITRATIOX

' hun-h rule, 23.

Church Rule. An arliitraiitin ami awanl arc none the less luniiiu}; iMTiiiiNi* niaiie purNuant i*» the iv^^uhitions of a (hiireh to whirh thr |iartirH ht'htn^. in this case the arhitra- tion was aeronlin;: t(» the re;;uhitiun eontainr*! in the IHs- eiplino of the Melh«HliHt KpiKeopal Chunh. South. an<l thi' jK-rsonH inttTi'Httil wen* nienilK-rs of that ih'n<iniinat ion. I';iviM- V «'i- .u f..r.| 'i7 yi ■ t;oi

ARTICLES OF RELIGION

Description, 24.

Description. Tu Bisliop v Stono, 1 TTajii;-. dm. TJc. (Eng.) 424, coii>;idei'iiig tlie ooiiiiilaint a<;jiiii.st a clergyman for preaching doctrines contrary «)r rcjiugnant to the articles of religion, it is said that "these articles are not the work of a dark age; they are the j)rodncti()n of men eminent for their erudition and attacliment to the |)nrity of triie religion. Tliey were framed by the chief liiminaries of the reformed church, with great care, in convocation, as c()ntaining tlie fundamental truths de<lucil>le, in Iheii- jndgment, fi(»m Scripture, and the liCgislature has adoptecl and established them as the doctrines of onr church, down to the i»resent time." The i)urpose for which these articles were designed is stated to be, the avoiding the diversities of opinions, and the establishing of consent touching trne religion. The defendant was deemed to have violated the articles by preaching doctrines contrary thereto, and a sentence of deprivation was jjrononnced against him.

24

ASvSOCIATE Hi:rORMED CHURCH

llwlon' and form of guvemniont, 25.

Do^Tilj*-*!, 2ii.

Synod, jhjwit, '27.

Union of AKrto<'iat«' and A^wiriut*' Ht-fornx**! Churchoa, 27.

I'niun with I*ri:rUnl«Tiun Church, 2.S.

MiiMionM, t>rqtif<Nlit t«ut<tain<<tl, 29.

History and Form of Government. Tin- .\sso( iatf lu ronueti Churrli ill tluK coiiiitrv (>ri};iiiat«><i In iIm- union of two hodies of Srtiirh l'n'sl»vl«M iiiiis. kiiou'ii as \\n' .Vssociat«* and the Ki'foi'iii l•|•l•^^yll•l•i:l 11 I 'li nil ln'«. 'IMii«< niii«>ii wa.s acroin- idishtMl ill ITm'J.

Ill iSTili iic^oiialittiis \\«Mf «MiU*ifd into for a union of the .\HHiHiat«' and \hv AsHmialf HcfoiiiMMl ( 'liiiiilu's. 'I'hcsc iM'^olialioiiN wiTt? rniidiirh>d liy ihr };»'ii«'ial .synods ol liic t hiM'rhi*K. and at lLMi;4lh in IHTiS, ii'siilttMl in a union of iiu>M> two iMNiics, and \Uv formal ion of a j;«MU'ial as.s<nil)ly (Miihrac- in;; the |iartii-iilai' HyiitMis and pifsliytrrics of tin* Associate! and AHK4M-iali* I^'foriiicd I'hiinlics. This union was an act of th«' pMnM-al .svimmI.s of the two bodies e.vclusively.

This is a l'resl»yt«*riaii rhur«h adhering; to a <it»\«'rnnieMt l»y iirrsliyterM or iiiiiiiHierK of iMjiial ;;iad«'. and rulinj; elders ('hoM'ii liy the coii^it'^alions. This ^oNtTiiiiient is adininis- iiM'fd through rhiii'th wssioim or eoii;;n';;atioiial judica- loiirs, ihrnii;,'h pft'shy terit'K i-oiiKiKtiiij; of the ininistci-s of a ei-rtain district, lojictlicr with a ruliii;^ cldci- from each coii- ^n'j;ation. and through particuhir and pMieial synods which an* const it iittHl fnmi the presbyteries.

The SyiKMl of Nrw York has (Miiipied the position and relations of a particular .synod in the Associate Keformed Church, at least since isn."), in which year it united with other particular syiMxIs of the sjiiiie coinmuiiion, known as

25

2G THE CIVIL LAAV AND THE CHURCH

the Synods of tlie West, and a body was constituted out of the union styled the General Synod ol" the Associate Re- formed Church.

The organization of these particular synods, inclnding the Synod of New York, consists of a moderator, or presiding officer, and a clerk. The moderator is chosen by each annual sj'uod to preside during that synod, and it is also his duty to open the session of the next ensuing synod, and to con- duct its proceedings until it has itself become organized by the choice of its own moderator. The book of discipline and church government of the Associate Reformed Church expressly re(piire<l that every stated meeting of a synod shall be opened with a sermon ami i)rayer by the moderator of the last assembly, and that he shall preside until another moderator shall be chosen. This is the only ami recognize«l mode of procedure in these assend)lies; unless the last mod- erator is absent, when the oldest minister present is to take his place. Peojde v Farrington. L'L' How. Pr. (N. Y.) 204.

Described. In 18;>7 there were in New York nineteen societies, or congregations, duly incorporated under the law of that State and professing the same articles of faith, the came church discii)line, and governed by one and the same syno<l, or church ju<licatory, called "the Associate Reformed Synod of New York," and fonning a distinct body of Chris- tians, under the general denomination of the Associate Reformed Church. And their established form of govern- ment is Presbyterian, having sessions, presbyteries, and synods. In the year ISOl they had thirty congregations, with settled ministers, divided into seven presbyteries, namely : The Presbytery of Wa.shington and of New York, in the State of New York; the first and second of Pennsyl- vania; the first and second of Carolinas and Georgia, and one of Kentucky ; and those presbyteries met and formed a synod, called *'The Associate Reformed Synod." In 1802, this Associate Reformed Synod was divided into four par- ticular synods, and a General Synod was at the same time formed, to hold its first meeting at Greencastle, on the last

AssociA ri: ki.i<m:mi;i> cui kcii lt

\\'('«liu'sil;iv ul Ma\. 1M)1. Tliis (JeiKTal Synoil met annu- ally, an<l llic rliurrh i-oiitiuiUMl uikIim- this or^iaiiization until ISI'L'. In that year the (leneral Synod foniUMl a union with iIr* jitMitM-al ass«Mnl»Iy of the Tresbyterian Chui-ch. The Asso- ciate Kefornied i'huirh has existed in this (•»)untiy for many years, as a separate oi- distinct Inaiich (d* the Christian rhnr«h. in the year ITlMl it was loniixised of several jireshy- leiics. and one synod railed "the Associate l{eforine<l Synod." wliich cnn>i>ttMi of tJHtsc iireshytcries met to^«'ther for mntnal assistance, and for niana^inj; the allairs of (he «hnrch under its care. This form of ;;o\ernment by ju-esby- teries and one s\ nod. continued until ISUL'. during; all which lime this associate s\ nod was the supreme head of the rhurch, as to its ;;o\ernineiit and order. In ISOL* the synod, Ity the iiHMMiI of the |u-«*Kbyteries, res<d\ed to divide itself into four particular synods, and to form a <;eneral syno«l, which held its lirsl meeiin<;at < invmast le. in IVnnsylvania, «»ii the hist Wnlnestlay «»f May. ISIM. This j;eneral synod was <-ompos4'<l of dele;;ales from the sev»'ral presbyteries, witlj powers I'Xpri'Hsly dtdined in their <<uistittition. In ISL'L' by the articles «»f union iM'twetMi tin* Associate Reformed <'hur«h and the l'n*sbyteriaii rhurch. the Associate Ke- fonntMl Church was m»*rj;«'<l in the Presbyterian Clmrch. This attempted union was invalid. Trustees Ass«Kiale Ke- fornied ("hur<h \ Trusti-^'s Theol«>;;ical Seminary, 1 X. .1. |](|. 77.

Synod. Power. In Trustii-s Asso« iate Kefcuined ('hurch v I'rustei's TluMdo^ical Si'ininary. 1 .\. 1. I!t|. 77. it was held that the (ieiieral Syn«M| of the Associate Keformed Church had, by the constitution of the said church, no authority to lio any act. or make any ri'pdatioM which inlei-reres with the established order of the <hurch ; therefore that the mt nf union lM'tw«*eii the (Jem-ral Synod of the As.sociate Re- formed Church, and the C«'neral Assembly of the Tresby- terian Church. a<lupted on the L'Ist «Iay of May, ISL'L', is invalid.

Union of Associate and Associate Reformed Churches. The

28 THE CIVIL LAAV AND THE CHURCH

subject of union between the Associate and Associate Re- formed Churches had been agitated, contemplated, and dis- cussed by the members, sessions, presbyteries, and synods of the respective churches for a period of more than fifteen years; the subject having engaged no small share of the attention of Associate Synods since 1841, when a committee on the subject was first appointed by the synod. In 185G, by the action of the Associate Synod, tlie basis of union was sent down in overture to the presbyteries and sessions to report thereon at the next meeting of the synod. lu 1857 the Presbytery of Iowa, through wliich the sessions within its jurisdiction made their returns or reports to tlie synod, reported unanimously in favor of the adoi»tion of the basis of union without proposing any amendment. McBride v Porter, 17 la. 204. See United Presbyterian Church.

Union with Presbyterian Church. The Associate Reforme<l Church of Newburgh, New York, was incorporated under the New York religious corporations act of 181o. At the time of the decision in this case there were seventeen other Associate Reformed Churches in the State of New York, incorporated under the same act, associated with the com- plainants, professing the same articles of faith, the same church discipline, and governed by one and the same synod, or church judicatory, called the Associate Reformed Synod of New York, forming a distinct body of Christians, under the general denomination of the Associate Reformed Church, Their established form of government was presbyterial, hav- ing sessions, presbyteries, and synods. Tlie denomination had congregations and presbyteries in different parts of the country, which presbyteries met and formed a synod called the Associate Reformed Synod. A theological school w^as established in New York in 1802. The same j^ear the Asso- ciate Reformed Synod was divided into four particular synods, and a General Synod was at the same time formed. This General Synod met first in 1804, and the church con- tinued under this organization until 1822. During all this time the librarv of the theological seminarv and the church

ASSOC I ATI : i{i:f<)Kmi:i) cui kcu 29

funds were in the custody of this General Synod, who by the consent of tiie church exercises j^eneral superintendence over thcii- jdoperty and funds. In 1822 the General Synod fornicd a union with the General Assembly of the Presby- terian Church under ai-ticles of agreement which pennitted the preshyttiies of the Associate Chuich, at their election, to continue a separate oi-ganization. or amal<!;annite with the (leiieral Asscndily of flie rreshyici-ian Church, and which |iro\ idr<l lor the I oil Mil i( 1,1 1 ion of i lie 1 lieolof^ical seminaiy in Nfu N'oik and the llieolo^it;iI seminai-y at Princeton, New .lii--cy. I'oMowin;^ this consolidali»»M, the libraiy and funds of ihf lheoloji;ical seminary in New \'oiU were transferred io the seminary at i'rincelon. Sev^-ral <-onj:;re^ations of the Assoi'iale K<>foi-nied Church declined to amalj^auuite with the l'resl»\ Ifiian Assenddy, and continued their imlependent e\islen<e under the name of tin* Associate Reformed Synod of New York. In this case it was lu-ld, amonj!; other things, that "the (Jeneral Synod had no authority to do any act, or make any regiilation which shouhl interfere with the estab- lished (U-der of the church." It was the obvious intention of those who foruH'd the union, that the Associate Keformed Church should be merged in the Presbyterian Church to all intents and purposes. It was held that the unicm was invaliil. and that the Associate Keformed Church still had ilie sanu» rights and int«'re>ts in ihe Ixtoks and funds that iliev had before the adojUion of the articles of union. Asso- « iate Keformed ChuT-ch v Trustees, The(dt»gical Seminary, Trinceton, I N. .1. I!(|. 77.

Missions. Bequests Sustained. In Dickson v M(mtgonnn-y, I Swan (Teiin.i ',\\s, lMM|iifsis were sustain<'d for home and foi-eign missions and f<u- the edmation of ministers under the direction of the Associate Keformed Svnod of the South.

BAPTIST CHURCH

Articles of faith may be altered, 30.

Baptist Association, 31.

Congregation, powers, 32.

Creed, 32.

English toleration, 32.

Government, 33.

Majority may control property, 34.

Minority, right to control property, 35.

Missions, 36.

Officers, 36.

Pastor, how settled, 37.

Property, control of, 37.

Texas General Convention, 37.

Articles of Faith May Be Altered. The First Church of Dayton, Ohio, was established iu 1824, under a form of faith professed by those who called themselves Particular Bap- tists. In July, 1827, the articles of faith were abrogated. In November of the same year trustees, who had been elected in September, took title to land as trustees of the society. Under the statute, the trustees became a corporation, and the title to the land became vested in the trustees as a cor- poration. A house of worship was erected with contribu- tions from members of the society and others. In March, 1829, Mr. Keyser, one of the trustees, was excluded from the society on charges, and another trustee was elected in his place.

On the 31.st of the same montli, all former creeds and symbols were abolished by the society, and a new covenant introduced by which the New Testament was declared the only rule of faith and practice. Keyser and another trustee brought an action alleging that by the change of the articles of faith the society had ceased to be the First Baptist

30

BAPTIST CHURCH 31

Church, and that all the rights, etc., belonged to the original First Church, which they alleged consisted of themselves and their associates. It was held that a religious society does not necessarily lose its propertj'^ by ceasing to entertain certain opinions. A Bai)tist Church is in itself wholly separate and independent, and at liberty to form its own creed and looking to others for counsel and social inter- course only. The majority had the right to establish and alter, at pleasure, their articles of faith, and an alteration of such articles, or even an apparent abandonment of doc- trines formerly entertained, <lid not attect their right to con- trol the property, especially, as in this case, where the prop- erty was not ac(piired under any trust imposing specific articles of faith. Key.ser v Stansifer. »'» Ohio :>(}:].

Baptist Association. The society at Mt. Tabor, Indiana, liaviiig become divided into two factions, a controversy arose as to the title to church i>roperty. The local society had, on its organization, adopted articles of faith, and subse- quently a<lopted certain so-called rules of decorum regulat- ing procedure in various details. This local society was connected with another Bai)tist organization known as the association, and descrilK'd as the Association and Council of the IJegular Baptist Churches, which is described as an annual meeting composed of messengers carrying a letter from each church belonging to the association, which letter generally gives some expression of the continued adherence of the church to their articles of faith, and a detailed account of the condition of the church. On this letter mes- sengers are admitted or refused membershii) in the associa- tion.

This society was a member of the Danville Association, composed of twenty-two churches. A council organized on the request of the minority decided that the majority faction had departed from the faith of the church. The majority <]id not appear before this council. Afterward another council was called in the same manner, with the same attendance and result. Subsequently both factions sent

32 THE CIVIL LAW AND THE CHURCH

letters and messengers to the next meeting of the Danville Association. The letter from the minority was received, and its messenger seated. The letter from the majority was refused, and its messengers were not admitted, on the ground that the majority had departed from the articles of faith. The court liehl that while the action of the councils and association was only advisory, the decision of the asso- ciation based on letters from each faction was eiililUMl to great weight, and might safely be followed by the court. Smith et al v Tedigo et al, U5 Ind. o(il.

Windham v Ulmer, 51) So. (Miss.) 810.

Congregation, Powers. The congregation, by a large majority, adopted a resolution requesting the pastor to resign, and notice was given to the pastor accordingly, who thereafter entered the diurch on several occasions, with force and violence, and continuetl to e.\erci.se, or attempted to exercise, the functions of pastor of the church in viola- tion of the resolution. The congregation is the sole legisla- tive and judicial body of the Baptist Church. Tliose who connect themselves willi it xoluntarily assume llu' risk of the propriety and justice of congregational action, just as those who become Tresbyterians or Ei)iscopalians subject them.selves in eluirch atfairs to the authority of synods and councils. The couit sustained the resolution excluding the i)ast(>r from ollice, and enjoined him from further u.se of the church in an ollicial eapjicity. Morris Street Baptist Church V Dart, «;7 S. C. :J:J8.

Creed. The faith of the Baptist denomination is Calvin- istic, and it is briefly stated as follows: "tiie belief in orig- inal sin or total depravity, predestination, particular redem]»tion. effect nal calling and ])er.severance of the saints," Park V C]iai»lin. !m; la. .^").

English Toleration. "The Ba])tists are persons the Legis- lature have thought ]»ro]»er so far to countenance as a de- nomination of Christians as to extend the toleration to them, standing on the same footing as Quakers, another species of dissenters." A charity for the benefit of a Baptist

BAPTIST CHURCH 33

iniuister was .siistaiiu'.l in AndrueyUL'ueral v Cock, 2 Ves. Sen. (Eng.) 273.

Government. The ^'uvfiiiiueiit of Baptist churches is [uiri'ly loii^rt'jiatioiial. wherein the majority vote of the church conlr(»ls. It has its associations and conventions, voluntarily fornuMl for certain jmrposes, hut these are not iuii>owere«l. ami «li<l n<»t assunu* to exenise authority over the actions of the churclies. Cotincils are constitute*! for l»urpoHeK |»un'ly advisory to ai<l by their advice ami counsel, |»erhaps in l»rin;;in;: alnnit seftlemenls and reconciliati<»ns w Ihmi dis>i4'nsionH ariM*, hut their decisions are not binding on the thurches. The UhWMK'iation and conventions have the rij;ht to determiiii' tlwir own mendMMshiii, and this is all they assnmeil in this instance to do. They are shown not to have any |M>wer, under the orpini/ation of the chnn h, tu hind the actions or consci«'nce of the «-hnirhes and their menihers. None of tlies4' luMlirH. therefon-. fall N\itliin the class of ' liurch judicaitorieM stich as are pro\ided in the orjjaniza- ii»n of the churcheH of some of the dmoniinations to tinally iid authoritiiti\ely jM-ttle such tjisputes, and the decisions t which oil (pi«>MtioiiK of tlieoloj»\- and ecclesiastical goveni- lent are tiM-eiviHl as hindin;; hy the <ivil courts. .lancll v Sproles, !•(» Tex. Civ. App. 3S7.

Then* is no feileral head to Baptist orjjani/ations. Each liurch wM-jety iiiaiiap's ahs<dutely its affairs, temporal, l>iritual. and diMtrinal. It is an nmpialilied democracy in Ahirh the m.ijority is su|>r«Miie. .\iid this majority consists, not of the actual iiieiiilH»rship of the local body, but the majority that may chance to Im' present at any of the re;;ular or stated me<'tin^s of tin* church. .MrKol«'rts v Moudy, 11> Mo. App. LM;. Wiiidley V McCliiiey. Ui\ N. C. :I1S.

The Baptist Chunli d<M's not as a reli;;ious sect, or de- nomination, posM'ss a constitution or <r«'«'d. like the Presby- terian, MetluMlist, and many other churches. Its form of chnnh ;;overnment is ron^re;:ational. ;iml thereffU'C jnirely deiiHMratic. I'aili «huri h is a distimt or«;anizalion. inde- {K'ndent of all others. There ar» ijitermediate judicato-

34 THE CIVIL LAW AND THE CHURCH

ries, or jndicatoi'Y of final revisory ])ower, in Baptist govern- ment. Conseqnentlv, llie right of ai)i)eal does not exist. Every Baptist church is. therefore, a law nnto itself in matters ecclesiastical. While what are known as Ba])tist Associations, both district and State, exist, they i>ossess neither appellate jurisdiction nor revisory power, but may advise the churches, without in any way binding the latter to accept such advice. Tn tlie Baptist church the majority of the congregation is ordinarily cntith'd to rule, and it is but doing justice to the sect to say that the majority rarely abuses its power. To this fact and the simplicity of its gov- ernment much of the evangelistic success of the Baptist Church is manifestly due. Poynter v lMiel])s, 121) Ky. ;>S1.

Majority May Control Property. The seizure of the church edifice bj' a minority of the congregation against the wishes of the majority was condemned, and the majority was put in possession of the i)roperty. Bates v Houston, (JtJ Ga. 198.

A small minority of the society met and elected trustees who claimed the right to the church pro[)erty. It was held that the majority who adhered to the faith and practice of the Baptist Church was entitled to the custody and control of the proi)erty. Turpin v Bagby, 1.38 Mo. 7.

The withdi-awal by one part of a church congregation from the original body of it, and the uniting with am)ther church or denomination is a relincpiishment of all rights in the church abandoned. The mcic assendilage in a church where a congregational form -of government prevails of a majority of a congregation forcibly and illegally excluded by a minority from a churcli editice in wliich as part of the congregation tliey ha<1 been rightfully worshijiing. in an- other place, the majority thus excluded maintaining still the old church organization, the same trustees and the same deacons, is not such a relinquishment; and the majority thus excluded may assert, through the civil courts, their rights to the church property. Bouldin v Alexander, 15 Wall. (U. S.) 1.31.

Piflferences arose in this society over the selection of a

IIAI'TIST (IIURcn 35

pastor and soiik' association (jnt'stiuns. One (»!' ilii' mumm- hers who made tljar;j;fs against tin* pastoi- was tiit'd and • xjKdhMl fn»iii nicndnMsliip l(y tin* local cliuich. The court declined to consider the question of re«jularity of the expul- sion. Tlie conveyance of the church proi»erty was to the parties appellant, who had claimed title to it under the original iU^'*\. A small fraction, six or ei«j;ht persons out of al»out two hundred and thirty nuMnhers, assumed the pos- >eKsion and control of the projjerty. Iml it was held that ihey were not entitled to it as a;;ainsl the majority. I^le- hart V Kowe. I'O Ky. L. He. SlM, 47 S. W. r,7.">.

Minority. Right to Control Property. The .society pur ♦•liased land and erected tlicrt'oii a house of worship in IS.')!.', and ado|iied articles of faith as pidilislied in tiie minutes of ilic 1 )»'s Moines liaptist Assitcialion in 1S4S. hi 1SS,"> the |iastor (if the church and some of the memhers adopted the |»riiniple of "saiict iliiat ion l»y a s4'cond expeiience," and cer- tain nuMulK'rs who op|ios4'd this jirinciple wei'e expelled Irom the chnrch. The ext luded mend»ers, and others sym|tathi/.- in;; with them, called the pastor and sou;;ht \o obtain |»os- ^essitin <if tin* «hur<h pr(»perly. which was refu.sed. The dif lerences on the question of saiict ilicitioii were, l»y a;;ree- inent lH*twe«*n the parlies, sid)nMtle«l to a ciMincil of l?a|»tist ininiHters, which decidiil that siiid diMtrine was not in har- mony with the teacliin;;s of the Baptist denomination. It was held that the adhei-ents of said doctrine of .sanctifica- lion. Ihoujjh constitutin;; a majority of the whole number of mendK'rs of K;iid «hurch, could not ilivert the use of its l»roperty to the promul^^ation of doctrines different from the faith for the ad\an«ement «»f whi<h the churdi was orpnii/Atl, and that a ctuirt of eipiity would interfere to pro- te<t the minority in having; the trust ju-operty ajiplied in a»»ord with the <»ri;:inal intt'iit. The decision of the council was hindinj; on the majority. Mt. Zion Haptist Church v Whit more, ."<{ la. i:iS,

.V fa» tion in this .s<niety repudiated the mime "Bapti.st" and adopted in its stead "The Chunh of Cod"; rei»udiate<l

30 THK CIVIL LAW A\I> THE CHT^RCH

the Dame "Mt. Ilcliir' and a(U>i»led instead the name "Taber- nacle of Christ," tlius changing the designation of the church from Mt. Helm Baptist Church to the ''Church of God, Tabernacle of Chiist." They expressly repudiated all ereeds and denominations as man-made devices. Tliis faction elected new trustees, and directed them to i)rocure i)Os- session of the ehurch jtroperty. It was held that this fac- tion, though constituting a majority <>f the society, bad no right to the jn-ojterty, and that the minority which retained the name and faith of the original society, \\as entitled to the possession and c(»nti-ol of sutli i»i'o]>erty. Ml. Helm Ba])tist Church v Jones, T!» ]Miss. ISS.

Missions. Troperty owne«l by the Maine IJaplisl Mission- ary Convention, a corporation organized for the ]tromulga- tion and dilfusiou of Christian knowledge an<l intelligence through their agency as an institution of domestic missions, was held exemjtt from taxation. Maine Bajjfist Missionary Convent i(m v J'ortland, (I.") Me. 02.

Testatrix bequeathed the residue of her estate to the ICvan- gelical Bai)tist Benevolent and Missionary Society for the benefit of poor churches of the city of Boston and vi< inity. The society was chartered in 1S.")7 for the purjiose of secur- ing the constant maintenance in Boston of evangelical preaching for the yonng and destitute, wiili free seats; for the employment of c(»lpoi"lenrs and missiomiry laboi-ers in Boston and elsewhere; for tlie purpose of pro\iding snitable central apaitnienis to (ttliei- and Uindred l»ene\(>lent and mis- sionary societies, and for the general pnrpose of ministei-ing to the s|»ii-itnal wants of the needy ami destitute. The be- quest was held to be a public charity and was valid. Mc- Alister v Burgess, iCl Mass. 2iV.).

Officers. The only otiicers of a Baptist church are the pastor and the deacons. A Baptist church is distinct from and inde])endent of all others, having no ecclesiastical con- nection with any, though maintaining a friendly intercourse with all. The government is administered by the body of the members, where no one enjoys a preeminence, but all enjoy

iiAi'TisT rill i:» II . :m

an f^jiialilx «»f rights. I'alvaiy liapti.sl (luinli v l>art, «I8 S. C. L'L'l.

Pastor, How Settled. In New Kni^laiMl. an ordiiig to Dr. NVaylaiul. tlu* i-<Mii|»aiiy »»f liaptist woisliijuMs is divide*! into two or^auixatioiis. tin* (liiircli and the society, and these two organizations have nnirdinate jurisdirtion in the settle- ment (tf a minister. I^-iccsti'i- v I'itrldmri;, 7 Alltii (Mass.) :»o.

Property, Control of. Lam! was runvi-ycd. f(»r a noiuinal ' onsidt'ration. to [Mi-suns dr.scrihed as trustees of the (Jer- iiian Ha|)tist rliurrh to Im* eitMtrd tluT<-oi», which church -should Ih* known and d«'si^nat«><I as the Wallioiitlin^ I'nion <'hnn'h, and the Hiime to Ik- held l»y siiid tnisttH's and their sjnci'ssors in ofllce so loiij; as s;iid premises should lie oecu- |»i«Ml as a jdace of ii'lij;ious worship for said ihurch. It was held thiit the lain;:inip' of the di****! did not justify a claim that the |iarti«*H intended a union <»f peisons of dillerent r«*li- i:i«ius iM'lief**, conferrinj; on tln*m the ri;;ht t«» the >ise of the ' liun h. Tin* tnistt-^'K «»f the (terman Ifaptisi ("IhmtIi there- fort* had the ri;;lit to e\< lude others fr<»m the use <»f (he rhurch iMliiin-. Miller v Millipin. i'>ohio. Dec HUH).

It MH'niH that under the form of government a|i|dicalile to |{ajiti>.t (hurches, the «oiitroI «if the chuich pioperty is liHlp'd in the con^re;;ation and trustifs of the cliuirli. and not in the deacoiiM. l>rew v llopin. 2(i App. 1>. C Tm.

Texas General Convention. This convention, composed of many hnal »hurche.s. was incorjMjratinl und«'r the laws of Te.xas. The conKlitnlion de<liired that *Mlie object of this onvention Khali U* missionary and educational, the promo- tion of harmony of fei'lin;; and concert of action among HaptistH and a system of ojH'rative uieasures for the promo- lion of the intert'KtK i>f the KtHhfnu'r's kingdom." A board of missions was established. About 1S!U a controversy ari>s<« concerning the work and ((Hit ers «»f the boai-d. The contrtjversy relating to the administration of llie allairs of the conventiiui was carri«*d into that body at its meeting in 1SM7. The plainfilT. who was tin* editor of the leading

38 THE CIVIL LAAV AND THE CHURCH

Baptist periodical in Texas, had made some criticisms on the administration. At the meeting in 1897 his right to a seat was challenged on the ground of personal nn fitness. The challenge was sustained by tlie convention and the plaintiff was excluded from membership. The challenge was published in the minutes, and in a newsi)a[>er published by one of the defendants. It was held tliat tlie publication of charges of dishonorable con<lnct and moral unfitness was libelous per se. Cranfill v Hayden, 97 Texas 544.

BELLS

ChiiiJc, l>equo8t sustaimti, 39. lixtiin*, 39.

Injunction iigainKt rinKinK, 39. Ntiisanw, -k).

Chime, Bequest Sustained. T»'.stat»tr Ik'hikmiIumI tu tlic Nv;ir«l«Mis ami vt'stryimMi of tliis sorii'ty iiioiu'v lo he umiI lor I III' |Mir<-liaH4* of a iliiim* of Im-IIs for \\iv Immu'IiI of tin- cliiin li. riu' Kotit'ty was iiiroi-|toral(*l. Tin* (-oi-|M»ration was licM ciitithMl to take U\ will, and tlu> iMMpu'st was snst:iin<'<1. llastmaii'H KKtat**. <MI Cal. :{0S.

Fixture. A Im'II had U'vu \\si^\ in ili<- Im-Uiv oI aw old t'lniiJ li Iniildiii}; of a ii*lini<tiis sorifty. A iu*w l>\iildiii^ was erei*te<l and tin* old om* nohl. tlu* btdl Immii;: rest rviii. A towrr was criMtiNl on tin* iirw hiiildin^ for the Im-II. ami a irnijiorary framework was also »M*fct«*d on tin* lot, upon wliiili iIm' \m'\\ was idaccil and us<m1 foi- thnrcli |»nr|ios('s, with till' iiiti'ntioii on tin* part of tlii' aiitlioritit's of the sorii'ty to jdaii' it iM'rnianrntly in tlu' towrr. It ri'inaini'd in tlu' tiMnporary fraini' for nrarly a yi-ar. and was tlirn rt'iiioviMl to till' plan' di'si;:iii'd for it. It was held that it ni'MT t»'as*'<l to Ik* a lixturt'. and that it was not snhjcct to a li'vy of an ex(*<'Ution hk ikthoiuiI pro|M'rty. ('oii};ri*<;atioiial Soricty. l>td»ti(|in' \ I'lnnin^. 11 la. .".I.l.

Injunction against Ringing^. In Solt.m v Ih- Held, !i 1ji<;. L. and l!(|. KM. it was lu-ld that the rinjjinji of i-hnirh bells nii};ht in sonic instanri's In' a privali' and also a pnldic nni- sanri', and an injiinrtion was ^ranti'd on tlir ap|di(-ation of a iH'arby n'sidrnt a};ainst tin* rinjiin;! of ilinnli bells, so far as tlu'V iHiaHioiuHl an annoyanie to tlu* plaintitf and his family. The eviilence showed that Indls were run;; five times eaih day, live days in the wii'k. si.K times on S.itnnlay. and

39

10 THE C'TVIL LAW AND THE OHFRCH

ofteiier on Snmlny, at liist bcgiimiug as early as live A. M. and being rung from five to ten minutes each time.

Where it is clear that the striking of a clock, and the ringing of a chime of bells from a church tower interferes with the physical comfort of ordinary persons living adja- cent thereto, an injunction will lie to restrain the striking of the clock during the night and the ringing of the chimes except as a summons to religions worshij). Leete v IMlgrim Congregational Society, 14 Mo. App. 590.

It ap])eared that the bells of a church were hung at such a level in their ])roxiniity to surrounding buildings as to cause such an annoyance as amounted to a serious injury to the ])ersons residing in the neighborliood. An injunction was gi-anted restraining tlie ringing ol' tlie bells. Harrison v St. Mark's Church, li' Phihi. (Pa.) L'r>l).

Nuisance. A pei-son living ncai' a church in which a bell was rung for ordinary church services and pnrposes was by the ringing of the bell thrown iiit(t couNulsions while sutler- ing from sunstroke, and his recovery was thereby retar<led. It was held that Die custodian of the church, whose duty was to ring the bell, was not liable as for maintaining a nuisance. Rogers v Elliott, 14G Mass. 349.

HIHLK

Inspiration, 41.

New Tti»tHiiiriit, 41.

Not a MTtiiriiin Jxxjk 11

Old TcntaiiM'Ht. 42.

Pnitontant tnuuiliitioti- »_

S4-h«j«ib«, UK*' in, Aii.

N'lTiuonis KinK Jaiiu-M uitd iXiuay compared, 4G.

Inipiration. Stv <iii(liiiiiiMis(Mi v Tliiii;;v;illa LutliciMii Clmnh. ir»(J N. W. ( N. I >. i T.'jO. fur an iiilcicstin;; disciissioii of tin* diKtriiu* of tlu' iiis|iiratioii of ihr I>il»lr, (.'specially an apiditil by Liitlifraii.H.

New Testament. ImiI in a<lniini.s|i>rin;; oallis. \U'\ v l'.u^\v«ll•^ll. 1' Sir. iiiii^M III::.

Not a Sectarian Book. In Ilacki'tt v nrooksvilic (iraiicil Si liiMil iMKtricl. 'J7 Ky. \.. lOUl, ronsi«h'rin;i tin* (|n»'.^ii<»ii u IhMIut till' Kin^ .lainrs vrrsimi of ilu' HihU', oi- any version, <«»ulil Im' «-oMsi«l«'it'«l a s4M-i:irian l»ook, tin* <-onrt saiil :

"TImmi- is |»<*rhii|»K no IkmiU that \h .so wiiirly nstd and so lii;;lily reh|M'»i»«<| us flu* IJildt*. No othrr iliat lias Ixt-n trans- lated into ah many ton^n*'s. No otlnT that has had sin h nnirkiHl intliieiice u|Nin the hjihitK and life of the wnrhl. It is not the least of its niarvtdons attrihntes that it is so • atholir that every Mt-niin;; pha.M* of Indief liinls eoniforl in its com preiien Hive prtfeptK. Mainy fninslationK <d it. ami of parts of it. have Im-imi made from time i«i tinn* siiu«* two or three eentnrieM In'fore tlu' lM*>;innin;; of the Christian era. \ml sinee the dJM'overA- of the art of printing; and the inann- ictnre of pa|H'r in the nixttHMith eentnry a j^reat many litionH of it have Imhmi printiMl.

"The H'snlt has Imvii that whih* many editi«nis of the -••veral transhitionH have Ikimi made, those hasiMJ n|ion tin'

41

42 THE ri\IL LAW AND THE CHURCH

revision coiiipik'd uimIci- the reign of King James I, 1607- 1011, and very generally used by I'rotestants, and the one compiled at I)<may some tin\e previous, and which was later adopted by the Ronuin Catholic Churcli, as the only authentic version, are the most commonly used in this country.

"That the Bible, or any particular edition, has been a<lopted by one or more denominations as authentic, or by them asserted to be inspired, cannot make it a sectarian book. The book itself, to be sectarian, must show that it teaches the peculiar dognuis of a sect as such, and not alone that it is so comi)rehensive as to include them by the partial interpretation of its adherents. It is not the authorsliip, nor mechanical comi)Osition of the book, nor the use of it, but its contents that give it its character. The history of a religion including its teachings and claim of authority, as, for e.\ami)le, the writings of Confucius or Mohammed, might be profitably studied. Why may not al.so the wisdom of Solomon and the life of Christ? If the same things were in any other book than the Bil)le, it would not be doubted that it was within the discretion of the school boards and teach- ers whether it was expeilicnt to inclmle them in the com- mon school cour.se of strnly without violating the impar- tiality of the law concerning religious btdiefs."

Old Testament. Csed in administering oaths to Jews. Rex V Kosworlh. '2 Str. ( lOng. ) m:^>.

Protestant Translations. For more llian llirce cciitiiries it has been the boast and exultation of the Trotcstants, and a complaint and grievance of the Roman Catholics that the various translations of the Bible, especially of the New Testament, into the vernacular of ditterent peoples, have been the chief controversial wea])on of the former, and the principal cause of the undoing of the latter. For the making of such translations, Wyditte, Luther, Tyndale, and others have been commended an<l glorified by one y)arty, and de- nounced and anathematized by the other. Books containing such translations have been committed to the flames as

II I RLE 4n

lieivtiral. and llifir Haiislat(»rs, i»i-iiiti'rs. jiuhlisluM-s, and dis tribiitors i>erMe<-iit«'d. imitrisoned. tmiun'd. and |iin to dcaili for partiripatin^ in tlnMi- ]»rodnrii<»n ami distribution. Statr V St Ih-vc. <;.'» Nt'b. S').).

Schools. Use in. The diriH-tors of the i»ublic scliool jum- inittrd ih«* r«*adinj; of tin- Protestant, or Kin^ James, version of the Hilde in the srhool. an<l also the sinjjinj; of Trotestant hymns. The phiintitTs. Homan Catholie.s, jtrotested aj;ainst tlie Kin;; .lames version, insisting that the only corre* t ver sion was that known as the I»ouay version. The reading of the IJible in the mIumjI was without note or eomment, ami was not i!itende<I for the purpose of imparting religious instruction. It apiwared that a convenit'nt room was set apart for the us«* of Koiiian ('atholi<* rhildren during the <«|M'ning exerriwH. and that they wei*e not (ompcilcd to attend suth «»iM'ning exeniM's wIh-ic th«' I'ibh' was read, and the hymns iM-ing sung.

One objtM-tion made by plaintitTs to the use of ilir llihlc in the sch<Hds under defendants' eontrol is tliat. tlirv use tlu' Protestant, or King dames version, which plaintilVs l)elieve to be WM'tarian in character, and which has Ikhmi so declared Ity the lii;;ln'st ecclesiastical court of the church to which the idainlilfs Isdong; and by the .s;ime tribunal has lu>en de( lared an incorrwt translation of the original writings through whiih the I>eity has maile hims<df known to m«'n ; also that the s;iid Pr«»testant Hilde is incom|dete, many portions of the true Hible having Ikimi omittiMl or excluded therefrom; ami that the Douay version is tin* only correct (»ne. The scho«d diri'ttors maintained that tin* King dames version was moiv nearly «-orre< t than the I)ouay version. The cotirt 8uid : "We have not been able to find authority or jirefer- ence given by our law to any particular version of the Striptures of truth, and must therefore conchule that all versions Btand etpuil before the law. If the school directors have power to authorize the u.se of one version in the public .sclnwd.s. they had power to authorize the u.se of the other." The Hible is not sectarian in a legal sense.

44 THE CIVIL LAW AND THE CHURCH

The priiici[)le <»ii wliicli srhotds were established was not a regard for the ehihlren as individuals, but as a part of an organized community. The schools are a means adopted by the state to Avork out a higher civilization and freedom. They have not been founded for private benefit, but for the public weal. They are the outgrowth of state policy for the encouragement of virtue and the prevention of vice and immorality, and are based upon public conviction of what is necessary for public safety.

Education comprehends all that series of instruction and discipline which is intended to enlighten the understanding, correct the temper, and form manners and habits of youth, and fit them for nsefidness in their future stations.

The morality wliidi the state deems it im])()rtant to culti- vate must be the morality which is regarded necessary for the snpi)()rt of the laws and institntions of the state; this must be the morality on which they are based, and tliis is the morality of the Bible. It would seem to follow, there- fore, that the source of that morality is not exchided, but that the Bible may be used for moral cidture of the pupils in the public schools. Hart v School hist rid, Throoi»sville, 2 Lancaster Law Ke. (Pa.) :U7.

The use in the public schools tor fifteen minntes at the close of eacli day's session, as a sni)plemental textbook, or reading, of a book entitled "Keadings from the Bible," which is largely made nj) of extracts from the Bible, emjihasizing the moral i)recei)ts of the Ten Commandments, where the teacher is forbidden to make any comment upon the matter therein contained, and is rcHpiired to excuse from that part of the session any pui)il upon ajiidication of his parent or guardian, is not a violation of the Michigan constitution, article 4, s. 41, i)rohibiting the Legislature from diminishing or enlarging the civil or ])olitical rights, ])rivileges and ca- pacities of any person on account of his opinion or belief con- cerning matters of religion. Beifier v Board of Education, Detroit, 118 Mich. 560.

The school committee in charge of the public schools in

HlRLi: 45

llllsumih. Maiiu'. iii.ulf ;iii <»r«l»'r dii-erliii-; ilmt llie ICii^lisli I'rotestaut version of the Hilile should be used in all the |.uldic schools of that town, and tJiat all the scholars in the schools \vh(» were of sulliciiMit capacity to read therein, should he required to read that veisioii in schools. The jdaintitf's dau;;hier n-fused to read tlu' Hilde, as required, and \vasexi»elled from school. The falhei- lii-ouy;ht an action for damages, hut it was held that he coidd not maintain an action. DoiialoM- v Hichards. .",S Mr. .'I7(!.

In C'urran v White. L'l.' i'a. ( '... Ci. He. L'Ol. it was held thai mandamus was imt the i.rn|Hi- n-medy lu itnvciit the readin*; "f the Hihle in piddi*- .schools. 1 ncidentally, the court cited .luthorities to show that the readiii;: of the Hihle in schools, either the Kinj; .lanu's or ihe hoiiay version, was not in ( ontravention of any constitutional provision.

The constitution t»f Ohio do«*s not eiij(»in or re(|uire reli- ;:ious instruction, <ir tin* reading; of reli;;i«»us liooks. in the puldic schools. (Mncinnati I^»a?•d of jldncaiion v .Minor. L*:; Ohio St. I'll.

The Wisconsin coiistitniion piohihiis sctiarian inslnic- tioii in pul>lic scIkmiI.s. In Slate ex nl W.iss v l]d;;eiton histrict School. 7t; Wis. 177, 7 L. H. A. ::.;(•, it was held that the reading; of tin* Bible in sclmols is a violation of this juv)- \ision. It waM also held that the i-cadin<r of tiie liible in public schools made the schools a jdace t>\' woi'ship, as pro- hibited by the constitution, it a]qK>arin<; that no one should b«? eom|Hdl(Ml to attend a place of worship apiinst his will; al.s4» that such reading of the Hible made the si hool a reli- ;jious seminary within the i-onstitut ional |trovision prohib- iting public aid to such a seminary.

The Iliad may be nsol in the schools without inculcating a U'lief in the Olympic divinities, and the Koran may be read without teaching the Moslem faith. Why may not the IJible also l»e read without indoctrinating childicn in the I ret'<l or dogma of any sect? Its contents are largely his- torical an«l moral : its language is une(|ualed in purity and elegjinee; its style has never bet'u surpa.s.sed. Among the

4(; THE CIVIL LAW AND THE CHUKCH

classics of our literature it stands preeminent. The fact that the King James translation may be used to inculcate sectarian doctrines affords no presumption that it will be so used. The law does not forbid the use of the Bible in either version in the public schools; it is not proscribed either by the constitution or the statutes, and the courts have no right to declare its use to be unlawful because it is possible or probable that those who are privileged to use it will misuse the privilege by attempting to propagate their own peculiar theological or ecclesiastical views or opinions. State V Scheve, 65 Xeb. 853.

Whether it is prudent or politic to permit Bible reading in the public schools is a question for the school authorities to determine; but whether the i)ractice of Bible reading has taken the form of sectarian instruction in a particular case is a question for the courts to determine upon evidence. It cannot be presumed that the law has been violated ; the alleged violation must in every instance be established hj competent proof. If the use of the Bible in schools is an irritant element, the question whether its legitimate use shall be continued or discontinued is an administrative and not a judicial question ; it belongs to the school authorities, not to the courts. State v Scheve. 65 Neb. 853.

Versions, King James and Douay Compared. It has been suggested that the English Bible is, in a special and limited sense, a sectarian book. To be sure, there are, according to the Catholic claim, vital points of difference with respect to faith and morals between it and the Douay version. In a Pennsylvania case, cited by counsel for respondents, the author of the opinion says that he noted over fifty points of difference between the two versions — some of them im- portant and others trivial. These differences constitute the basis of some of the peculiarities of faith and practice that distinguish Catholicism from I'rotestantism and make the adherents of each a distinct Christian sect. State v Scheve. 65 Neb. 853.

BISHOP

First Protestant Episcopal in America, 47. Legacy to establish in America, 47. Office not a corporation, 47. Witness, meaning of canon, 48.

First Protestant Episcopal in America. Tliere was no bishop of the Protestant Episcopal Church in America until after the Revolution, Bishop ^^eabury of Connecticut, consecrated in 17S4, being the first American bishop. Bartlett v Hip- kins, 70 Md. 5.

Legacy to Establish in America. Au English legacy for the purpose of establishing a bishoj) in America, a bishop not having yet been appointed, was sustained, but the chancellor said the money must remain in court until the appointment of a bishop. Attorney General v Bishop of Chester, 1 Bro. C. Cases (Eng. ) 444. The case does not show the date of the will, nor the date of testator's death.

Office Not a Corporation. The office of bisliop in the Roman Catholic Church is not a corporation, and there is no perpet- ual succession if property is conveyed to him in trust; such trust on his decease vests in the court and not in a suc- cessor nominated by the bishop. Dwenger v Geary, 113 Ind. lOG.

The law of Ireland does not recognize the corporate char- acter of a Roman Catholic Archbishop of Cashel or of a Roman Catholic Bishop of Waterford and Lismore, and a bequest to them and to their successors was, therefore, held void, but the bequest was sustained to the extent that the bishops might, under the direction of the court, administer the trust during their joint lives. Attorney General v Power, 1 Ball & B. Rep. (Ir.) 145.

47

4S THE (MVIL LAAV ANT) THE CHURCH

Witness, Meaning of Canon. A bishop iu the I'rotestaut Episcopal Chinch is a competent witness to prove the mean- ing of tlie words "parish" and "rector" as nnderstood by the canons of tlie church. Bird v St. Mark's Church, Water- loo, 62 la. 567.

BLASPIIKMY

D«jcrib<>d, 49. lIijtturiciLl ^kl•t^b, .V).

Described. In a ca.Kf iimliT tlu' Mas.^ai liusi'tts act of 178L\ whiili ]troliiliitiM| any |MTson fmni wilfully blasphcininj; the holy name of <mmI. hy ihMiyiii;;, nirsin;;. or coiitiniirliDiisly rt'proaihinn tiixl. Iuh criMtion. ^ovcrniiuMit, or liiial jmlii iiij; of tlu* worhl. tlu' ituirt sanl that "in <;«Mirral, l»las|»lu'niy may Im* (h'srrilN'il aw tonsistin;; in s|K'akin«; rvil of llu* Dcily with an ini|iioiiH |iurpo.«i4' to tU>ro<^atr from ilir hiNlnc Maji'sty. an«l to alirnatt* tht* niin<ls of others from the l<»vf and rfviTtMiri' of <om|. It is iMirposcly nsin;; \\(»rtls con- c*enilii|; (mmI t'alciilattMl ami il('si;;niil to impair :iii<l «l(struy tlu* H'veivnrf. rt'siMM t. an«l i-onltiI<*iirc jIiu* to him as tin* iiitcl- lip'iit tfi-ator. jjoviTiior, an<l jn«lj:«' <»f Ihr wurhl. II (Miibnu't^ tilt' idea of tictrat'tion. when iisni in\\:ir<l tin- SnpitMni* Il«'in;;; us 'ralnmny* usually rarrics llm sana^ ich-a \\\n-u applied to an intliviilual."

The court alHO xjiid that the Klatutc ilid iiui pmliihit tiic fulh*st inipiirv and tin* fr«'«'st dismssion, for all honest and fair purpoM's. oiu* of whi«h is tlu* diseov<*ry of truth. It iduiitK the fn*«'st ini|uii'V. when the ;ji*n«*ial purpose is the «liKeov«*rv of truth, to whatever ii*sult smh impiiries may lead. It dot's not prt'vent the simple and sin4t*re avowal of a diHlH*lief in the existeiiee and attrihiites of a supreme, intellip'Ut lH*in^, u|h»ii suitahh* and |>roper occasions. The >«tatute prohihitin^ Idasplu'iny was not repuj^ruint to the < onstitutional (trovision ^uarant(*ein«; reli;^ious t<deration. I 'oinnionwealth v Kiiwland, 20 Pick. (Ma.s.s.) 20(1.

The fn*o, npial, and undisturlM*d, enjoynu-nt of relijjions • 'pinion. whati*ver it may Im*. and fre<' and decent discussion '■II any r«*li;;ious subject is granted and set ii red. 1ml to ie\iie.

49

50 THE CIVIL LAW AND THE CHURCH

with malicious and blasphemous contempt, the religion pro- fessed by almost the whole community, is an abuse of that right, and it was held that the use of indecent language concerning Jesus Christ was blasphemy and punishable by the common law. Peoi3le v Ruggles, 8 John. (N. Y.) 290.

Writing against Christianity by discourses on the miracles of our Saviour. Rex v Woolston, 2 Str. (Eng.) 83-4.

Historical Sketch. For a history of the crime of blasphemy see State v Chandler, 2 Harr. (Del.) 553.

CAMPBELLITES

Congregation, powers, 51. Majority, control of property, 52.

Congregation, Powers. The several churcli organizations loi'med by the follo\\ers of Alexander Campbell — and they are numerous — at the time of their organization were, and now are, purely congregational in their government; that is, there is no general conference, synod, presbytery, or other similar body which exercises supervision over said church congregations, but each organization in matters of practice, iu church government and otherwise, is sovereign, and the congregations so organized have no creed except the Bible, the view of the followers of the said Alexander Campbell being that where the Bible speaks of the congregation its several members are authorized to speak, but where it is silent, the congregation and the members thereof should also remain silent. In 1849 there sprang up among the mem- bers of said religious sect different views upon subjects of practice to be adopted by the congregations with reference to matters upon which the Bible was silent, one view being that in matters ui)on which the Bible is silent such silence should be construed as a jtositive prohibition ; the other view being that if the Bible is silent upon a given subject pertain- ing to churcli government, then the congregation may form- ulate a rule in that particular for the government of the congregation. The division along the lines above suggested seems to have grown as the church membership increased, and iu 1889 there was a wide ditference of view between the several congregations, and between the members of the same congregation, relative to many practices in the church, such as to the proi)riety of having instrumental music in the church during church services; the employment by the congregation of ministers of the gospel for a fixed time and

51

52 THE CIVIL LAW AND THE CHURCH

for a fixed salary; the organization of missionary societies and Sunday schools as separate organizations outside the regular church congregations; the raising of funds for the support of the gospel by holding church fairs and festivals, and perhaps in other matters of a similar character. The division resulted in the formation of two parties in the church : those entertaining the liberal views were called Progressives, and those entertaining the more Conservative view were called Antis. The liberal party had usually taken the name of the Christian Church, while the conservative party used the name of the Church of Christ. Christian Church of Sand Creek v Church of Christ, Sand Creek, 211) 111. 503.

Majority, Control of Property. There was a division in this society, one party taking the name of Christian Church, and the other party taking the name of the Church of Christ. The two parties met as one congregation prior to 1904, and communed together as one congregation in apparent har- mony. There were, however, some differences of opinion among members of the congregation with reference to the powers exercised by the officers of the church, and especially in 1903, whether the church building should be used for a singing school. The officers refused to permit the building to be used for that purpose. It was then discovered that the incorporation of the society was defective by reason of failure to comply' with certain legal requirements. Each party then hastened to form a corporation. The minority was incorporated as the Christian Church, and the majority as the Church of Christ. The majority were in possession of the property, and refused its use to the minority. The question in this case involved the right of possession of the property. It was held that it was not within the province of the court to ''pronounce judgment upon the doctrines taught by Alexander Campbell, and believed and practiced by his followers, or to determine which faction of the Sand Creek Congregation, in their practices in their church con- gregation, from an ecclesiastical standpoint is correct, as the

CAMPBELLITES 53

courts have uo couceru witli the question whether a religious congregatiou is progressive or conservative."

The original deed of the property was to the trustees of the Christian Church, but a large part of the business of the church was done under the name of the Church of Christ. It appeared that the Sand Creek Congregation, from the incep- tion of its organization to the time of the division in 1904, as a congregation, was opposed to any innovations in the practices of the church ; that is, the congregation only acted in matters of practice in accordance with what they believed to be the i)ositive commands of God as found in the Old and New Testaments, and the party known as the Church of Christ have since 1904 maintained that position, and appear to have maintained from the beginning, and now maintain, the tenets and doctrines which were taught in the Sand Creek Congregation at its organization, and which have been maintained and taught in tlmt congregation all through its history. The party known as the Christian Church had, since their separation, taught and practiced what were known and cliarncterized as the innovations. The court held that the majority' were the successors to the original founders of the congregation, and as such were owners of the property and entitled to its i)ossession. The minority, having seceded from the congregation, and effected a new organization, teaching and practicing the innovations objected to by the majority, must be deemed to have abandoned the property. It was further held that the societies organized by the fol- lowers of Alexander Campbell were congregational and inde- pendent, and, therefore, that the Sand Creek congregation was not bound by the action of other congregations in adopt- ing innovations in faith and i)ractice ; also that the majority party having been incorporated under the name of the Church of Christ, immediately became entitled to the property of the Sand Creek church, and their right was not affected by the incorporation of the minoritj^ party under the name of the Christian Church. Christian Church of Sand Creek v Church of Christ, Sand Creek, 219 111. 503.

CAMP MEETINGS

By-laws, 54. Easement, 54. Municipal ordinance, 54. Ocean Grove Association, 54. Sunday admission fee, 55. Taxation of property, 55. Temperance, 56. Title to property, 56. Traffic, limitation, 56.

By-Laws. A camp meeting association was authorized to make by-laws and to piircliase, hold, and convey real prop- ertj^ for its purposes. In Winnepesaukee v Gordon, 67 N. H. 98, it was held that projjerty conveyed by the association subject to rules and regulations which might afterward be adopted by it was bound b}^ reasonable alterations or amend- ments or by additional rules and regulations subsequently adopted by the association.

Easement. Testator by his will gave the use of 20 acres of land to the Methodist Episcopal Church for camp meeting purposes. It was held that the title to the land passed to the testator's heirs subject to a perpetual easement to be enjoyed by the church for camp meeting. Saxton v Mitchell, 78 Pa. St. 470.

Municipal Ordinance. When a camp meeting is located within the limits of a city or village it is subject to the ordi- nances of such city or village, and a person duly licensed by such village to sell articles of food or drink within the limits of the corporation is not required to take out a permit from the managers of such meetings to sell such articles. Ex Parte McXair, 13 Neb. 105.

Ocean Grove Association. The Ocean Grove Camp Meeting Association of Ocean Grove, New Jersey, was incorporated in 1870 by an act of the Legislature of tliat State. Its

54

CAMP MEETINGS 55

j:;iouu(ls are contiguous to the city of Asbury Park. lu 18i)6 the New Jersey Legislature passed au act which, among other things, prohibited the granting ol" a new license to sell intoxicating liquors within one mile in any direction from the outside limits or boundaries of the lands of the camp meeting association. In lUOG the excise commissioners of Asbury Park granted a hotel license, the business of which was to be carried on within one mile from the limits of the Ocean Grove Camp Meeting Grounds. The license was held invalid under the act of 1800, and that act was held not unconstitutional or local on the ground that it was special legislation. Sexton v B'd. Excise Com'rs., Asbury Park, TO N. J. L. 102.

Sunday Admission Fee. A compulsory adnussion fee to a camp meeting on Sunday was held to constitute worldly business under the statute of Pennsylvania. Commonwealth V Weidner, 4 Pa. Co. Ct. 437.

Taxation of Property. In New Hampshire the real and per- sonal estate of a camp meeting association was exempted from taxation by the act of 1874, but this exemption was held not to ai)ply to a stock of groceries and food supplies owned by the association and exjxised for sale on the asso- ciation ground. Alton Bay Camp Meetiiig Association v Alton, 09 N. H. ;]11.

I'art of camj) meeting grounds were used for stabling horses for hire, and let for victualing purposes, and for the use of cottagers. In Foxcroft v IMscataquis Valley Camp Meeting Association. SO Me. 78, it was held that the part so used was liable to taxation.

Sixteen acres of land used for religious camp meetings, owned by a corj)oration organized under the statute for the formation of corporations not for pecuniary profit, and not under that relating to religious societies, is not exempt from taxation under the statute (revi.sed statutes, chap. 120, sec. 2) which exempts certain church property. People ex rel Breymeyer v Watseka Camp Meeting Association, 100 111. 570.

56 THE CIVIL LAW AND THE CHURCH

Temperance. It was held iu t^tate v Norris, 59 X. H. 536. that whether a State temperance camp meeting was a place of religions worship nnder the New Hampshire statute was a question of fact for the jury. It appeared that the exer- cises were opened each session by reailing the Scriptures and prayer. That there were lectures, addresses on temper- ance, with singing of temperance and religions hymns. The question arose on a complaint against a person for selling beer, cigars, and other goods within two miles of the place of meeting.

Title to Property. "Where each of two parties claimed to be entitled to the possession of camp meeting property, and to liold and use it for the benefit of the Methodist Church of Warren Count}', one party claiming under an appointment bv a Quarterly Conference of the church, and the other under a grant from the superior court, it was held that the matter could not be determined on the application for an injunction, but that the parties would be left to their remedy by quo warranto. Harris v I'onuds. (J4 Ga. 121.

Traffic, Limitation. Sec. 59 of tlie Illinois Criminal Code, making it a penal offense for any one, without permission of those in charge of a camp meeting, to establish any tent, booth, or place for vending provisions or refreshments within one mile of such meeting, with a proviso that any one who has his regular place of business within such limits shall not be required to .suspend his business, is not invalid, as being in restraint of trade, or creating a monopoly, or making discriminations, but is a valid law tending to prevent disturbance and disorderly conduct. The act is a mere police regulation, and one within the legislative power.

The proviso in the act that whoever has his regular place of business within such limits is not hereby required to suspend his business, was not intended to be limited to those who might have a business within the prescribed limits at the time the act was passed but applies equally to all who may, in good faith, establish a place of business therein at

CAMP MEETINGS 57

any time wUeu no camp meeliug is iu progress or being car- ried on.

The court does not hold that a person on the eve of a meeting to be hehl will have the right to establish a booth for the sale of jjrovisions for a short period, or during a ses- sion of a meeting, and claim protection under the proviso. To avail of the law he must have established a regular per- manent business. When that has been done he will not be required to suspend during the time a meeting is held. The act does not confer power on those in charge of camp meet- ings to license the sale of provisions and refreshments. The fact that it confers on such authorities the right to consent or refuse consent cannot be held to authorize them to license. Meyers v Baker, 120 111. 5G7.

-The Pennsylvania act of 1822 prohibited the sale of ar- ticles of traffic, spirituous liquors, wine, porter, beer, cider, or any other fermented, mixed or strong drinks within three miles of a camp meeting. It was held that the prohibition was not directed against all articles of traffic, but only against liquors described iu the statute, and therefore that a seizure and the sale of other articles of traffic kept by a huckster within the prohibited distance of a camp meeting was illegal. Kramer v Marks, 64 l*a. St. 151.

In Commonwealth v Bearse, 132 Mass. 542, the court sus- tained as constitutional the Massachusetts act of 1867. chap. 50, which prohibited establishing and maintaining a build- ing for vending provisions and refreshments within one mile of the place of holding a camp meeting for religious l)urposes during the time the meeting was held, without the consent of the authorities or persons in charge of such meeting.

See the article on spiritualists for a special case under a Massachusetts statute.

CEMETERY

Access to lot, 58.

Adverse possession, 58.

Churchyard, 59.

Disint(>rment,, State control, 59.

Ecclesiastical jurisdiction, (iO.

Free burial ground, 60.

Legislatui-e, power to direct sale, 60.

Lot owner's right, 61.

Mechanic's lien, 63.

Municipal ordinance, 63.

Park, taking for, 64.

Roman Cathohc, religious test, 64.

Sale, application of proceeds, reinterment, 64.

Suicide, 65.

Title, lease or fee, 65.

Title of grantee of lot, 65.

Tomb, Enghsh rule, 65.

Tomb owner's right, 65.

Tombstone, title, 66.

Access to Lot. The purchaser of a lot in a church cemetery acquires thereby a rij;lit of access to the lot, aud the church authorities cannot obstruct an avenue as laid down on the cemetery map, which leads to the lot or is convenient for the purpose of access thereto. Such an avenue becomes a servitude, which cannot be disturbed. Burke v Wall, 21) La. Ann. :5S.

Adverse Possession. In 18.'>o land was conveyed to the trustees of tliis society intended for a burial ground, but the purpose was not stated in tlie deed. AVhile the deed was defective in not containing a statement ol' its purpose, it was held that uninterrupted occupancy of it for twenty years created a title by adverse possession. At the time of the action, the ])roperty had, in fact, been occupied sixty years.

In 1S40 the trustees of the St. John's Society conveyed the

58

CEMETERY 51)

land to the Archbisliop of Baltimore. The Maryland act of 1832 authorized the trustees of the Roman Catholic Church to convey it to the archbishop. The conveyance in 1840, based on this statute, was held to be a ratilicatiou of the original conveyance to the trustees. A subsequent con- veyance by the archbishop was held to transfer a good title to the burial lot. Gump v Sibley, 79 Md. 1G5.

Churchyard. The right of burial when confined to a churchyard, as distinguished from a separate independent cemetery, although conveyed with the common formula "heirs and assigns forever," must stand upon the same foot- ing as the right of public worship in a particular pew of the consecrated edifice. It is an easement in, and not a title to, the freehold, and must be understood as granted and taken, subject (with comi)ensation, of course) to such changes as tlie altered circumstances of the congregation or the neigh- borhood may render necessary. The selection of a place of burial in the ground forming the site of a church is always made with reference to its religious associations, and with an eye to their continuance.

The sale of a church vault gives a mere right of interment in the particular plot of ground, so long as that and the contiguous ground continues to be occupied as a churchyard. Richards v The Northwest Protestant Dutch Church, 32 Barb. (N. Y.) 42. See also Schoonmaker v the Reformed Church of Kingston, 5 How. P. (N. Y'.) 265; same rule as to town cemeteries. Page v Symmonds, G3 N. H. 17; see also Windt V. German Reformed Church, 4 Sandf. Ch. Rep. (N. Y.) 502.

Disinterment, State Control. An interment having been made in the defendant's cemetery at Cypress Hills, friends of the deceased proposed to disinter the remains for burial in another cemetery. The application was refused by the society upon the ground that such disinterment was forbid- den by the Jewish law. The question of disinterring remains in the Jewish cemetery must, in the absence of a positive rule' of the society, be determined by the court. lu this case

60 THI-: (MVIL LAW AND Till: ('lIlKlMl

a jiKlj^nieiit was rendered directing tlie removal (if the re- mains, Cohen v Congregation Sbearitb Israel, 111 App. l)iv. (N. Y.) 117.

Ecclesiastical Jurisdiction. The interment of the dead is a matter whieh, within limits, may be with entire i>r<>|»riely bronght within ecclesiastical jnrisdiction. Snch ecclesias- tical jurisdiction cannot restrict the jujlice jxjwer of the State, but it may prescribe rules for the government of a cemetery, where those in interest place the cemetery under its authority. In exercising jnrisdiction over burial jilaces the ecclesiastical authorities do not, unless they transcend their jurisdiction, usurp jxdice ]»owers, nor determine ques- tions allcM-ting pr<»perty rights. A religious organization in assuming control of a cemetery does not assume jurisdiction of secular matters, and, therefore, does n(tt \\an<ler outside of its domain into the domain of the civil law. It does not exceed its jurisdiction in assuming to establish rules f<»r the interment of the dcail. unless those ruh's contravene some rule or ju-inciple of jnrispi-iidence. A religious <lenomina- tion may, when solicited by the jtarties in interest, assume jui'isdiction over ccmi'tcrics and ju-csci-jbe rules for tlicii* government, but cannot establish any rules that contravene any j)rinciple of law. After snch rides are established the persons acquiring the use of bunal lots ()r the right of burial thei-ein take the same, subject to sucli rules. I>wenger v Geary, li:^. Tn<l. IOC.

Free Burial Ground. A religious society jturehased land and dedicated it for the juirposes of a five bui-ial gi'ound for the uses of the church under its discipline. There was no formal assignment of burial lots, but it s(»ems to have been a custom for families to approj)riate certain lots for their own use for burial pur])oses. The trustees had no power to restrict or control the burials in ])articular j)arts of the cemetery. It was in every sense a free burial ground. Antrim v Malsbury, 4P> N. J. Eq. 288.

Legislature, Power to Direct Sale. The owners of a lot in a cemetery, whatever the form of the deed, acquire only a

('i:mi:ti:i:v 61

rijjlit of luirial. ;iiiil tin* l^^'^islaimv has powiT to prohibit further iiiltTiUfiitu ami authorise thi* snW of tlie remetery, pruviHioii Immii}! iiiadi* for the rt'iiiuval of riMuaiiis, aiul com- |MMiKjitioii to lot owiu'rs. \Nriit V Metho<list Protestaiit Churrh. >M» lliiii ( N. Y. i !'♦;(;.

Lot Owner't Right. A n*Upous Koiifty purchasi'd huid for a (viiiettTy ainl inMiMMl to lot holiIiTH it»rtitU'ate« authorizing the iiM' of tin* lotH for burial purpoM-s. Tlu'se certiticati's (li«l not v<>Mt any tith' in tin* Int holilcrs. but amounted only to ii liifiiNe to iiiiikt* intcrnicnts ko Utu\i as the proi>erty \\ ms UM«*<I for burijil purp«»M*K. On a hh\v of tin* pro|K'rty by flu* WM-ifty iind«*r b-^al authority tin* lot holth-is had a ri;;ht to remove the reinaiuM of |H>rHonK intfrn-d in ihrir lots, and iiIho to n'luovc any nionunimts and other ttxturi's. P:ii-t rtdgt* V Firwt hidi'|H*nd<Mit t'hurih. .'•.!» Md. ti^JT.

In the K«'fonu»Hl l*r»i*byt«'riaii Churfh of the City of New- York. 7 Iliiw. Vr. I N. Y.I iTri. it was held that a dee«l of a burial lot ill a ifiiietery o\\ iumI liy the eorporati«)n convi-yed only the right of burial, and rould not pn*veiit a Mile of the proiM'rty. pruviition l»einj» made for the removal of nMiiains dlxiiitern*<l.

Hirhanlit v Northwe»»t l'roti*Mtanl huteh Church. 'A'2 Bail*. (N. Y.I 4.'l, Involve*! the right of burial in a rhunhyard used III roiiiHH'tlon with ii rhiinh nlillre. It was held that a lot owner aequinsl mendy the right of interment, whith could not prevent the luile of the projKTty by the lorporation. ioving the remaiiiM to another eenietery. under su« h < IIM an the court might din>et.

When a cemetery nKi««>oiation or ehunh sells particular lotM in a nnnetery the punhas^'r iMMomes the owner «>f the •oil, and nuinifwtly his right to its pos.M-.ssion pioiecis IntemientH made by him from disturbanie. It is also true. aH a pMieral pro|M>sition. that when* ground has Ihhmi de<li- cate<l to the public for u.ie an u ci'inetery. the owner cannot aflerwanl reMume |K»Km»»<Hioii. or remove the botlies interre<l therein, although he has r<Mvlveil no consideration for its uw. and the intermentM were made merely by his consent.

62 THE CIVIL LAW AM) TlllO CIUKCII

Ex Parte MtCall, Little v TiesbN tcriau ('liuicli, Floreiue, 68 S. C. 489.

One who buys a ])rivik'j;e of Imrviiij; his dead kiiisiiuMi or friends in a cemetery acquires no general rijiht of propiMly. He acquires only the ri;.:ht to Imry the dead, for he may not use the ground for any other jnirpose than such as is eon- nected with the li^ilit of stqiultnre. Beyoutl this his title does not extend. He does not accpiire, in the strict sense, an o\\ neisliip ol llie untund ; all lli;il he tloes ;n(inii'e is a rijihl to usi' the ground as a liuri;il phite. hwcnp'r v (Jeary. li:'. Ind. KMI.

Where tlie lille to the hind used Ity a reli;:iuns <orpora- tion for ceiiielery purposes remains in the rorpuraliun, and n(> (\('<'i] is ni.tde of any lot f<»r the pnrjtose of inlei-iiieiits. the sepulture of friends or relaliNcs in sucli lMn\\iu;^ ;;roiiiid confers no title Ol- i-i;;ht upon the snrviv()rs. I f the sur\ i\ors ha\e ;iiiy intei-est in the eeiiietery. ol' control o\«'i' its use and disposal, it can oidy l»e .is «"oi"|>orators in the so<"i<'ly ownin;^ the ground. Tin* only iirote<tion afforded to the renmins of the dead interr«'d in a «-emeterv of this descrip- tion is Ity the puldic laws jirohihitini: theii- removal, exccjit on presciihetl tei'uis. and in a still stronger |iulilic opinion. \\'liere vaults ol- hurying lots have been eonveyed hy reli- ;:;iinis corporations t-ij;hts of property are eoiiferre<l upon the purchasers. The ]»aynieiii of fees and <liar;jes to the cor- l>oralion or its ollicers. upon interments, gives no title to the land occupied l»y the hody interred. It cmifers the privilege <»f sepulture for such Itody in the niode used and permitted hy the corporat i»>ii : and tin* right to have the same remain nndistui-l»e(l so long as the cemeter-y shall (-ontinue to he used as such, and so long also, if its use continues, as may be riHpiin'd for the entire decomjxisition of remains; and also the right, in ease the cemetery shall he sold for .secular ])urposes. to have smh remains removed ami properly depos- ite«l in a new i)lace of sepulture. Windi v (Jciinan Reformed Church, 4 Sandf. Ch. ( N. Y. i r)(Hi.

The certilicate to purcLayers of lots in the burying ground

<"^^f^T|•I;^ c:?

of llif «-liiiri Ji \s;i.s t.» iia\i- .iiKi Jo ii(ti«l tlir said lols fur tlic iiM* ami |»ur|M»M\ aii«t hultj*** I lo tin* roiHlilioiis aiitl in'^^ula tioiiM iiMMitioiiiNl in tlu* i1«'«mI of trust to the tnisiii's of saitl < liiinh." Tliiw wax intt «*vi«lrim" of n j»iaiit «»f any iiitfirsl in I III' Hoil. Tli»" rfttilhatr wain tlir ;;raiii tif a littMist* oi* priv ilrp* to iiiaki* iiitcriiii'iitM in tlu* Itits dcsnilKMl exclusive of others. S4> Ion;; an the ;;rouiiil sliouM remain the liuryin;^ :;rouml of the diureh. Whenever, hy lawful aulhoriiy. the ;:r«Minil slioultl ii*]|m' to In* ii liuryin^ ^ronml. ilie loi owner's rij;ht ami |»ro|ierty reaM'«l. \Nhen ii lM*eiinie mM-essary t«» \iirale ttie ;;rounil for hurial, 21II the lot iiw ner eouM elaini. WiiK to lia\c iiotiif am! an o|i|N>rl unity of removing the iMMlii*}* uikI iiiofiuinentM; 011 liiM failure to ilo so they eouM Ik- reinove<l by otiien*. Kincaiil'M a|i|M*al. W I'a. St. IL'O.

A <le<il of a liurial lot iw a );rant of the um* of the lot as a |ilu(x* of buriul in MulMiniiiuitioii to the ri);ht of the corpora- tion in the Miil or fn*eho|i|. anil the truster's have a ri^ht. u|Hin r<»ni|ilyin); with the |iro\i**ions of the statute, to sell the |iro|M*rty iiiul n*ino\e the riMnaiuH of the «lea«l. if the court -Ip .11 i|e«'ni It |iro|«'r. He ]{efonne<| Presbyterian Clnirrh, 7 II..U I'r. iN. Y . I7«.

Mechasic'i Lien. In lU^ani v Fimt MethiMlist Kpiseopal fhurrh. I^tnraster. I'a . .'l I'a. I.. .1. Ilep. .'{I.!, it was hehl that :i iniM-hanic'N lien lile«l against a cliun h eilifire couhl not be iMiforei**! ainiiiiMt the ^iveyanl attaeheii to the church and tlMil by the MM-iet\ .

Maaicipal Ordinance. The «ily of N»'w York under the ad of Isi;: I'J H. 1.. li.'i. H. 'Ji'iT I had |M»w«'r to enact the by law of l.s:::^ iirtiliibiting intenuents in a ivrtain part of the <-ity under pM'jM'rilMHl |MMialtieM. InlerinentN were afterward made in the prutM-riUtl dii»iricl (including Trinity Church) by |icrHonii having a r\\iUt of interment under grants of land for i-einetery pur|N»M-s. The by law was valid as to them' inlennents. and the act undt'r whit h il was pa.s.s^nl waH nut void iiM imiMiiring the obligation of a contract. The by law WHM valid as a jMdiiv n-jjulation. (*oales v New York. 7 t 'o\v I \ Y ' ."sTi.

fi4 Tin: ("l\ II. LAW AM) Till: riUKCll

Park, Taking for. In Mjiiicr of Ilonid of Sued ( )|»»'iiiiij;, l:V.^ N. Y. '.V-.K it \v;is held that a (('iiicicrv nwiu'd by Trin- ity Church, but in \vlii<-li intiM-nimts had lu'en discontinued since 1830, might be taken by city aiillioi-ities for park ])ur- poses. Condemnation ]>roceedin^'s were sustained.

Roman Catholic. Religious Test. A cemetery established on land conveyed to tin* l>isli(»i> to be iised as a cemetery for the burial of Catholics, and which had been consecrated for that |)nr|»os(' by tin* rlniith aMtlmrit ics. could not be used as a jdace of burial of a person n\Iio was not a ('atlM>lic, and who, according; to tlie rules an<l rcgiiiations of the church, was not entitled to burial in such ci-mctrry. l>\v<'n;;er v (leary, 113 Ind. IOC.

A person received from the autli<u-itics in contr(d of a Catholic cemeterj' a certificate or jtapcr ackn<»wledgin^' the receipt of a specilied sum. beinj; the amount of pjirchase money of a j)Iot of ground, describing it. No deed was giv»'n. and it was held that no title or interest pass«'d by virtue of the icceipt. The receipt did not ann>unt to a contract of sale. Cnder the rules of the «hurch. the burial of non- Catholics or I'^re<Mnas(ms in the cenietery was forbidden. The cemetery was conseciate<l groun<l. An api»li«ant for permis- sion to bury in sjuh cemetery is bound by tiie rules and regulations of the church. an<l is presumed to make his application with reference thereto. The person who |»aid the money ami took the receipt was a Kreema.son. and upon his d(M-ease th«' c«'metery authorities refused to permit him to be bui-ied in the lot. It was held that the cemetery author- ities wouhl not be com])elled by mandamus to oj>en the grave and permit the burial. People e.\ rel Coppers v Trustees, St. Patrick's Cathedral. X. V.. L'l Hun. (N. V. i 184.

Sale. Application of Proceeds. Reinterment. The congrega- tion accpiired land in the city of Heading, which was useil as a burying ground, in which the mend)ers. by viitne of their mendiership. ha<l the right to and did bury their «lead. An act i»assed in ISC*!) authorizecl the removal and reinter- ment of the bodies, the sale of the property, and after pay-

ckmi:ti:hv •;-.

ifij; t-crtuiii exjuMiwH, tin* |»nMtiMlK werv to l«* iii'\ui»«l i^» ihc onHlicin of a uew churrli tilitit-e. The act was declarfd valid ami fuiiKiitutioiijil. Wh«rf rt*al estate has Ut'ii «UMrnattMl ill tlie tiaiitlH of tlie ^riiiitei* to rertaiii purposes, with an expreMMii retttrielioii u|hiii alienation, it is witliin tlie iH)wer of tlie I>-jjislatnre to autlioriz** a ronversiiin of the realty into money. an<l an applitntion of the latter to the original pnr|M>m*s of th<* ^nint. liittiT v llansman. '2 \V<hm1w. Oec. (I 'a. I '24S.

Snicide. >«■« K<'in.ni » liinMn Chureh, siihtitle Cemeteries.

Title, Lease or Fee. Whrre a nIi;:ions corporation has iv- rt'iveil a fe<* of tlie f^roumi on m'hieh tlie church stands and 4if the ^mvi-xard adjoining. HuhjtH-t only to the kiH>pin^ the whole to piiMin UMi(. Mich n'li};ioUH ct>r|K)ration tiiii ^laiit any lenf^th of leum*, or a fe«* of |H)rtion of the ground fur vaiiltH. Tlir j»raiilii** nill tln*n'l»y pt a f****, ami the propniy tannot be iwdd i^hile they ohjjMt to it. Matter of nri« k Vn-nby. Ch. n ¥a\w. Ch. (X. Y.) 155. See al»o Urirk Preshy teriaii t'hunh \ Ni-w York. 5 f'ow. { N. V. i .'i-'tS Knstainin;i ai by luw of the city of Nem York prohibilinL' fmtlicr infrr- iiMMitM in the cfMiii'liTV owne«I by tliiM cliiir* li

Title of Grantee of Lot. Win-re vaults or l»ui \ inji l«»ts lu»\«* Ufii con^fvttl by nli^iouM ror|Mirations, rights of projH'rty are ctinfernsl u|Min the punham-rs. The right is like that to any other real ii«late, and is as |i«'rfe«t without wpulttire an it is when* tin* grantee has us«il it for that purpose. >Vindl V <J«-rmaii lb'f..ninil rhurth. I Sandf. < 'h. ( N. Y. » .'jOli.

Tomb. Engluh Rule In Itanlin v Calcott, I llagg. Consist. H|.. (Ill .Iiiij:H w««re sustained against a imt-

iMin f«»r . ^ in a rhunhyard without authority.

Tlie rt^giilationM of the pj«tabllshwl Cliunh on the subject of tondm and tmidiHtoiH-s an* hen* fidly c«»nsidcn'd.

Tomb Owners Right. Owners of toiubs in the rlmnh build ing of a r^digioiis wK-iely haw no title in the land, but only an inten-ftt in tlw structures and in their pro|Mr use, and cannot prevent a sjile of the land and buiMing l»y tin* s<Miety. Mor the removal of the n'lnains from the t«»mbs. when such

G6 THE cniL LAW AND THE CHUKCH

removal is in otlici' respects toiiductod aciordinj; to law; as, for instance, when the le{>islatnio lias directiMl it in the exercise of its iiowers in rehition to pnblic health; and the tomb of one who devised real estate to the society in trust for keeping said tomb in good and decent repair is held by the same iisnfnictnary right and snbject to the same lia- bility to ren\oval. Sohier v Trinity (Minrch, 10!) Mass. 1.

Tombstone, Title. A tondjstone in a clnurhyard belongs to the ])erson wlio erected it or to the heirs of the deceased, in whose memory it is set up. and ti-esi)ass may be main- tained lor it'iuoving or injuring it, although the title of the laud is in the parson. S|>oout'r v Urewstcr, 10 Moores Kep. (Eng.j 4U4.

CHAPEL

l)»-firn'<i, JiT.

Defined. \N»-I.>tfr an.i W ..in-strr drliiu' a thaiicl to 1k' a place of woi>lii|» coiiiui-ttHl witli a dinnli or with siuiu' t-HfalilisliiinMit. ptihlic or privat.-, or altadiiMl to a clmrtli. or huljM-rviriil to it ; or, w«-oinl. a pla«r of worship not ton. in«<-tiHl with a rliurrli. Hoiivicr. in his |,a\v I Urtionary. savs: "('ha|H'lM an- phut-s of worship. Tht-v iiiav l.c j'iih.r privaic

• hajM'U. Hiich as an* hnilt ami iiiainiaiiinl hv a |»rivatr \h'V- son for his own uw and at his own fXiKMisi'; or free chapels. cxtMnpt from all onlinary jiiriK<lirtion ; or rhaprls of »'asi'. whiih an* >MiiIi Uy tli«> inotlu*r rhnn li for tin* rasr ainl « on- \rni»MM«' of the |iarishioiuM*s. ami rrniain nmhr its jmis

• lirtion and lontrol. Tlu-ri' ih notpu'stion that a < liapri is a |.la««' of worslii|i." Nany^int's l!>.iat«-. «i I'a. Co. i'\. di::,.

67

CHARITABLE USE

Defined, 68.

Described, 69.

History, 69.

Benevolent institutions, 69.

Bread and education, 70.

British corporation, how affected by American Revolution, 70.

Chapel, 71.

Churchyard, repair of vault, 71.

Common law, 71.

Diversion, 72.

Donor's opinions, 72.

Foreign country, 73.

Georgia, 73.

Hospitality not a charitable use, 73.

Illinois, 74.

Incorporated society, 74.

Indefinite, 74.

Limitation, cy pres, 75.

Maine, 76.

Massachusetts, 76.

Masses, 76.

New York, 77.

Orphan a^jylum, 77.

Rehgious reading, 77.

Religious services, 77.

Religious trust, 78.

Roman Catholic clergjTnan, 80.

Sermons and music, 80.

Shakers, 80.

South Carolina, 81.

Sunday school, diversion, 81.

Unincorporated society, 81.

Unitarian, 82.

Vault and tomb, repairs, 82.

Defined. A public or charitable ivwHi: i.s for tlie benefit of an uncertain class of per.sons, who are described in gen-

68

< iiai:i'iai:ij: rsi-: 69

••ral lanj;iiaj;f, aiitl i»;irtake of a quasi public cliaraiter, as, for exaini»k*. the jmmjp of a tertaiii distritt in trust of a U-nevolfiit iiatun*. or the childivn of a certain town in trust for e<lu<ational purpoM's. It is also a distinctive feature of a iharitaliie trust that it may Ik* unlimited in its duration. and iM not Kul»j«*<-t to nor controlled l»y the statutes whiili prohibit iK'riM'tuities. A U'ljuest was Kuslaine<l. the semi- nary iM'in;; simply an instrumentality f<»r carryin;; out the farrt'achinj; aim of tlie testator, namely, the promotion of relipon by Hpr«*adin^ abroad a knowled«;e of the truths of rhristianity. Field v Prew Thc.ilo;,'!* al Seminary, 11 I'ed. .{71, (Ct. r. I). iHd.t

Churitable um-h, like all other uh**s, comprise a ftusi as well as a um-. To constitute a valid use. there must be in all ciiM'H, Iir>*l, a trustiv legally com|M-tent to take and hold pn>|MTty ; nnd, WM-ondly. the us** for some purpose clearly (letineil. (iriiiu*tt KuMMitors v Harmon and t>thers, .".."» lud. 11»^.

Described. In law. relipous anil < li.tritable us(>s mean lepil aclM done for the promotion of |tiety amon<; men. or for the pur|HiNi* of ndiexin^ tlu'ir sutTerinj^s. enlightening their ipioniiict*, ami lN*tterin^ their condition; such a«*ts courts of e<|uity uphidd and elTectuate according; to the intention of the donor. Miller v Porter. .%;i Pa. St. 1*1»L*.

History. Sit- .luckium v Phillips. 1 1 Alh-n iMass. i Tt'A'.i, for a history and ex|H>Mition of the statute of 4:! IMi/^abeth c. 4 showiti^ alwi the ;:rowth and expansion <)f the system in nuMlt>rn times.

Benevolent Institutions. TcMtator devise<I the ivsi<lni' of his instate **to the di(Ten-ni institutions of charity and beneti- ivnce, constituteil and established at Philailelphia for the r«'Iief t»f the unfortuiiute anal of thos<' who live undei- the intliction i»f infirmities, ami of every sort of privations, with- out any ilistinciion of s«*<t or rtdijiion," and ex<epted from tlu>m> tlitTerent iiistitutioUH of charity and l>eneticence all thoso which are dinM-teil, conducle<l, ami a<lministered by

IM rli'«.i;isl ii v. uli:ili'\tr iii.i\ ]>*• I hi' serf tii wliirli llieV beloUiT.

70 THE CIVIL J.AW AS\) TllK Clll KCll

Omitting references to i ion religions societies, it was held that societies of a religions character, whose benefits were exclusively confiued to a particular sect, were not excluded, the true construction of the will being that all should par- ticipate, be their sect or religion what it niiglit. The mere fact that a clergj-man is one of the managers of a society does not exclude such society from the benefits of the will. Re Blenon's Estate, Brightly N. P. (Pa.) ?>:\H.

Bread and Education. Testator gave to two churches |1,000, the interest to be used for ten years in snpplying bread to the poor of the congregation of Avh'uh testator was a menlber. He also gave to these < Imrclies !ifr),000, the inter- est to be used for the e<lnration of yonng students in the miui.stry of the congregation of which he was a niend)er to be expended under the direction of the vestry of these two churches. These befpiests were snstained, the court holding that while the Englisli statute of charitable uses (4:] JOliza- beth c. 4) had not been extended to Pennsylvania, the prin- ciples of it as applied by chancery in England obtained in that State by force of its common law. Whitman v Lex, 17 Serg. and R. (Pa.) 93.

British Corporation, how Affected by American Revolution. The cajiacity of private individuals, British snbjccts, or of corporations, created by the Crown in this country, or in Great Britain, to hold lands or other property in this coun- try, was not affected by the Revolution.

The pro])erty of British corporations in this country is protected by the sixth article of the Treaty of I'eace of 1783, in the same manner as those of native i)ersons; and their title, thus protected, is confirmed by the ninth article of the Treaty of 1794, so that it could not be forfeited by an inter- mediate legislative act, or other proceeding, for the defect of alienage.

The act of the Legislature of Vermont of the 30th of October, 1794, granting the land in that State belonging to the Society for Propagating the (Jospel in Foreign I'arts to the respective towns in which the lands lie, is void, and con-

(•IlAfMTAIJIJ-: T'Sl-: 71

v«*vs no titlr umlcr it. SocuMy for i\w Propajjation of the (ios|M'l ill I'orcijxii Parts v Town of New UaviMi, S Wheat. . r. S.I ICt.

Chapel. Tt'statrix authorized her executor to jkiv a speci- tietl anioiint for the erection of a chapel to be hiiilt and con- tr(dh'd by ibc trustees of a designated church, aiul to be callt'd by ber name. Tbc bnpiest was .sustained as a valid rbarilable use. Nanzani's Instate, (i I'a. (N». Ct. (llTt.

A devis*' of the "ciiapel lot. t(» be retained and used when tbe growth <»f the vina;;e |iopiilatiou will justify tbe buiblinji: <»f a church and more prci«Mitious villa^re chapel," ami a be- quest of a sum of mom-y foi- tbe purpose ultimately of erect- iiij; upon the «haiM'l lot a chapel t<» be tis«'d by the inhabit- ants of the village for relij^ious ineetinu's and a Sunday school, are ;;ood ptiblic charitalde uifts. Harilett, IVti- tioiier. It;;: Mas.s. .')(►!».

Churchyard, Repair of Vault. Testatrix bc(|ueatlied a fuml lo Im' used in keepiii^ ill ;:ootl rt'jiair and condition foi-ever tlie monument of her moiber in a churcli ; also tbe vault in wbich she was interred, and an ornamental window, wliich sbe directed her trustii-s to place in the church in memory of Inr nioiber. and to apply any surplus of stub dividemis t<»ward kee|iin;; in repair and ornament in;; the chancel of said (biirch. The ;jift for the repair of the vault was held void, for the reason that the vault was not within the church, but was in the «hurchyar«l. Tbe icifts ftu- the memorial \\ indow and for the re|»air of the monuimni were bebl valid for tlu* reason that tlu*y were a part of the ( hiircli structure. Iluare V Osborne, I.. K. I \a[. { I'n;;. i HS.'), .".."> J,. .1. Ch. .">b~>.

Common Law. Though the I'n^lish statute of charitable ns<«s ( |:» ICliz. c. |( was not ad<»pled by llie cobmy or Stale of iVnnsylvania. the prin«iples of the common law relative lo such uses, which were restored in I^n^land by that statute, Were adopte<l as well as the principles of eipiity in the a<lmiii- istration of such trusts. The f(db)wiu«; were held to be jjood rharitablo ust»s: an annual subscription to the stock of a reli;;ious .society which is a|»plied to the luintin^ and dis-

72 THE CIVIL LAW AND THE CHURCH

soiniiiatioii of books jukI wrilin.ijs ai)i)Tove(l by such society; a gift to a religions society for llie relief of the poor members thereof ; a gift to a treasurer of a society, organized for the civiliz^ation and i]ii])rovement of certain Indian tribes for the benefit of sncli Indians; a gift to a religions society for the relief of the poor thereof and toward enlarging and improving its meeting house; a gift to a town for a fire engine and hose; and a devise or bequest to a society with whose constitution and i)urposes the testator is fanuliar, for the purjjoses of such society, such i)urposes being proper objects of charitable uses. Magill v Brown, Fed. Cas. No. 8,052, U. S. Cir. Ct. Pa. (Brightly N. P. 347).

Diversion. Courts of equity will exert their ])owers to pre- vent a misuse or an abuse of charitable trusts, and especially trusts of a religious nature, by trustees or by a majority of a society having ])Ossession of the trust pro])erty, but in all cases the trust and abuse of it must be clearly estab- lished in accordance with the rules by which courts are gov- erned in administering justice. If the alleged abuse is a departure from the tenets of the founders of a charity, their particular tenets must be stated, that it may appear from what tenets the alleged wrongdoers have departed. In like manner, it must be stated in what the alleged departure consists. There must be a real and substantial departure from the purjioses of the trust, such a one as amounts to a perversion of it, to authorize the exercise of equitable juris- diction in granting relief. IIai)i)y v Morton, li'A III. 31)8.

Donor's Opinions. In ecclesiastical charities the religious opinions of the founder are of paramount importance; in educational charities his religious opinions are only of value where some directions are given as to the religious instruction to be given ; but in eleemosj'uary charities the founder's religious opinions are wholh' to be disregarded. Attorney-General v Calvert, 23 Beav. (Eng.) 258.

In construing a bequest of money to a town with a direc- tion that the income be used for the purpose of supporting the Christian religion in the Congregational society, so called

CIIAKITABLE USE 7:J

in said town, llie inteit'sl thereof to be paid quarter yearly to the minister of the Conjj^regational persuasion, who shall he regularly ordained and statedly preaehinjjj in said society, it is sai«l it would he dinicult to establish the reli«;ious opin- ion of the donor, especially where the denomination to which he belonp'd has no creed or admitte<l confession of faith, and where there are no written articles of belief, to which it is agn^eil lie assented, nor any published and avowed statement of liis opini«Mis in existence. As to what consti- tutes a minister <»f the ( 'ungie':ational ])ersuasion, see also the articles on < 'nnj^rej^at ional Cliurch. Altnrn<'v-(}eneral ex rel Abbot v Dublin, :tS N. H. I.VJ.

Forei^ Country. Testatrix, a resi.lent of Massai Inisetis, directeil her »'\«m iitors as trustees to expend a sitecilied sum f(t!' the pMi"chas«' «»f a lot and the erect ion lliercon of a dinpid in her native |»lace in li-eland to be used for purjioses (»f jiublic worshiji nndei- tin* auspices of the Konian Catholic Clnirch. The iliaiily was suslainrd. it bejn^r ||,.i,| i],;|| (i,,. fact that the iharity woidd !»«■ adiiiini-itered in a foi-ei;fn country did not of ilsi'lf i-ender the <;ift void, and theie was nidhin}; to show that it would not be a ^ood public charity by the law of irelauil. Te«'le v I >erry. \i\S Mass. ;»41.

Georgia. In (ieor;;ia, a c«»tirt of eipiity has jurisdiction to enforce the |»rovisions of a trust imh'pendent of the statute of 4.'{ I'lizabeth. Heall \ Siii\ iviii'4 llxecutors of Fox, 4 (la. 404.

Hospitality Not a Charitable Use. Testator included the f(»llowinj; provision in his will :

"inasmuch as my house has been open diiiing my lifetime (as well as for generations batk in the lifetime of my an- cestors of the siime name) for the reception an<l entertain- ment of ministers and others traveling in the service of truth, so it shall continue to be a place for the reception and entertainment of such forever, and in conformity with the preandde of this my last will and testanient and in the dis- ( ret ion of my trustees. And my will further is, that my west fnmt ro<»m chamber shall be kept in constant readiness

74 THE CIVIL LAW A^'D THE CHURCH

to lodge such i)er8ons as shall cross over or visit this island ill the course of their labors in the gospel of Christ, and others who are not ministers, but who are traveling to meet- ings or otherwise in the service of truth, and that the said room be kept furnished with two good bedsteads, two beds, two bolsters, and two pair of pillows and other necessary furniture."

This was held to be a bequest for hospitality and not for a charitable use, and could not be sustained. Kelly v Nichols, 18 R. I. G2.

Illinois. The statute of 43 Elizabeth is in force in Illinois. Welch V Caldwell, 220 Illinois 4SS.

Incorporated Society. A bequest to an incorporated society for pious or charitable uses is valid. Banks v I'helau, 4 Barb. (N. Y.) 80.

Indefinite. A residuary devise to charitable and pious uses generally is not void, but the Crown may appoint. So also if the charitable object be uncertain. Attorney General v Herrick, Amb. (Eng.) 712.

Testator gave the residue of his estate to the people called Methodists, who worshiped at that place, such residue to be applied as directed by the trustees named in the will, and the officiating ministers of the congregation. The provision did not constitute a charitable use, and the trustees were held entitled to recover the land subject to such disposition of the proceeds as the court of chancery might direct. Doe v Copestake, 6 East (Eng.) 328.

A bequest of a sum of money to be divided equally between Indian missions and domestic missions in the Ti^nited States, without naming any trustee or any direct beneficiary, was held to be too indefinite, but the trust was not void, and could be supported and executed under the act of 18t)3, chap. 701, as amended in 1901, chap. 21)1, which in case of an indefinite trustee, vested the property in the supreme court and devolved on that court the duty of executing the trust by the appointment of a proper trustee. In this case the court suggested that the Domestic and Foreign Missionary

CHARITABLE USE 75

Society of the Protestant Episcopal Church miglit properly be designated as the trustee, for the reason that it was the only society performing general missionary service in the United States under the auspices of the Protestant Epis- copal Church, of which the testatrix was a lifelong and active member. Bowman v Domestic and Foreign Mission- ary Society, 182 N. Y. 494.

A gift to a religious society for the benefit of the "poor, lielpless, and dependent members and orphan children of said church" was suflSciently definite. The poor members could be readily identified, and the words "orphan children" were intended to include children baptized into the church, whose parents are dead. The provision in the will that the distribution should be made by the church was construed to mean the trustees of the church, and not by the society as a body. Banner v Rolf, 43 Tex. Civ. Ai)p. 88.

Charitable bequests, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot-be established by a court of equity, exercising its ordinary jurisdiction, inde- ])endent of the statute of 43 Elizabeth. Trustees, Philadel- I»hia Bafdist Association v Hart's Exe. 4 Wheat. (U. S.) 1.

"In the case of a will niaking a charitable bequest, it is immaterial how vague, indefinite or uncertain the objects of the testator's bounty may be, ])rovided there is a discre- tionary power vested in some one over its application to those objects." Domestic and Foreign Missionary Society's A].i>eal, 30 Pa. St. 42.">.

Limitation, Cy Pres. Courts of equity in the exercise of their ordinary jurisdiction cannot devote any portion of a fund dedicated to charitable uses to any object not contem- l)lated by the donor ; when property is given to a class of objects in general terms, and also directed to be applied to one of them in special terms, if its application to that one becomes unlawful or impracticable, the doctrine of cy jjres authorizes the court to devote it to one or more of those embraced in the general intent most analogous to the one

76 THE CIVIL LAW AND THE CHURCH

especiall}^ named ; the general intent may not be expressed in explicit terms if the devise or dedication in the light of the circumstances authorize the court to infer that such was the donor's wish in that event. The same rules apply when the charity is the result of contributions by a large number of people. U. S. v Church, 8 Utah 310.

Maine. The statute of 43 Elizabeth c. 4 is considered to be in force in Maine. Preachers Aid Society v Rich, 45 Me. 552.

Massachusetts. The English doctrine of charitable uses is in force in Massachusetts, and a trust to a religious society for the support of the ]3reachiug of the gospel is a public and charitable trust, and is valid, although in perpetuity, and is equally valid, although the society may be a voluntary body and not incorporated. Congregational Unitarian Society V Hale, 29 A. D. (N. Y.) 396.

Masses. The celebration of masses for a particular intent is not of itself a charitable object, even when the masses must be celebrated in public and so become an important part of public worsliip. A provision in a will was, therefore, held void as creating a perpetuity which required masses for the repose of the soul of the testator and members of his family forever, for the reason that no one could definitely find when the testator and all his family shall have ceased to need the benefit of the masses. In this case it was found that the parish i^riest could not perform the obligation imposed on him in relation to masses without neglecting his other official duties, and for this reason the performance of the obligation was impossible. A condition which is impos- sible without violation of duty is treated as simply impos- sible; and if a condition subsequent be impossible, the con- dition fails and the gift remains discharged from it. Bran- nigan v Murphy, 1 Ir. Rep. 418.

A bequest of a sum of money to trustees for the benefit of a church on the testator's farm, with instructions to hold a service there yearly for his soul is a clearly defined chari- table use, although the church had not been and could not be incorporated. Seda v Huble. 75 la. 429.

CHARITABLE USE 77

New York. The statute of Elizabeth on this subject was never in force in New York. Dutch Church in Garden St. V Mott, 7 Paige Ch. (N. Y.) 77.

The system of charitable uses, as recognized in England prior to the Revolution, has no existence in this State. Holmes v Mead, 52 N. Y. 332.

It seems that the law as to charitable uses as it existed in England at the time of the American Revolution is not in force in New York, and its courts have only such jurisdiction over trusts for charitable and religious purposes as are exer- cised by the court of Chancery in England independently of the prerogatives of the Crown and the Statute. Owen v Missionarj^ Society, 14 N. Y. 384.

The English rule as to charitable uses is in force in New York. Williams v Williams, 8 N. Y^ 525.

Orphan Asylum. A bequest for the establishment of an orjilian asylum and a hospital for sick and infirm persons is a bequest to a charitable use. This charity was eleemosy- nary in character. The propagation of religious doctrines was not the primary object of the foundation, and consider- ation of the religious faith of a testator should be excluded in ])utting a legal construction on liis will. Attorney Gen- eral ex rel Bailey v Moore's Executors, 18 N. J. Eq. 25G.

Religious Reading. Testator bequeathed the residue of his estate to two persons with directions that it be used "in the purchase and distribution of such religious l)ooks or reading as they shall deem best, and as fast as the funds shall come into their hands." The bequest was sustained, the court holding that the word "religious" as descriptive of books and reading, meant such books or reading which tend to promote the religion taught by the Christian dispensation, unless the meaning is so limited by associate words or cir- cumstances as to show that the testator had reference to some other mode of worship. Simpson v Welcome, 72 Me. 49G.

Religious Services. The maintenance of religious services in accordance with the views of anv denomination of Chris-

7S THE CTVTL LAW AND THE CHURCH

tians is a public dinrity within the meaning of the statute of charitable uses of Connecticut. Mack Appeal, 71 Conn. 122.

Religious Trust. A gift of a sum of money to be expended by two daughters and a granddaughter of the testator ''to be applied by them in their best judgment, as my bequest for charitable and religious purposes, say for the promotion of the Christian religion, without prejudice or regard to sect, and for and toward the relief of the poor," was declared to be too vague and indefinite to be executed and therefore void. Dulany v Middleton Ex'rs. 72 Md. 67.

A testator gave the residue of his estate "to the cause of Christ, for the benefit and promotion of true evangelical piety and religion," and the executor was required to sell the property and pay the proceeds to specified trustees, "to be by them sacredly appropriated to the cause of religion as above stated, to be distributed in such divisions and to such societies and religious charitable purposes as they may think fit and proper." In Going v Emery, IG Pick. (Mass.) 107, it was held that the trust was valid, that the donees were particularly^ designated, the trust was clear, its general objects suificiently indicated to bind the consciences of the trustees, and that these objects were sufficiently certain and definite to be carried into efifect by the proper judicial tri- bunal.

A bequest for the promotion of religious and charitable uses and enterprises is valid, even though there be no trustee appointed to carrj^ the same into efifect; and in such a case, the heir at law or the executor, as the case may be, becomes the trustee, or one will be appointed by a court of equity. A residuary bequest for such charitable uses as might be desig- nated by a majority of the pastors composing the Middlesex Union Association was held to be sufficiently definite, and an appointment made by such pastors was deemed to be a substantial compliance with the terms of the bequest. Brown v Kelsey, 2 Cush. (Mass.) 213.

A conveyance of property for the support and propagation

CHARITABLE USE 7t)

of religion is a charitable use, and this iuchules gifts for the erection, maintenance and repair of church edifices, for the promotion of worship, and the support of the ministry. The rules governing the establishment and administration of charitable trusts are different from those applicable to private trusts, in giving effect to the intention of the donor, and in establishing the charity. If the gift is made for a public charitable purpose, it is inmiaterial that the trustee is uncertain or incapable of taking, or that the objects of the charity are uncertain and indefinite. Courts look with spe- cial favor on such trusts. Where the title to a certain lot was vested in the bishop of a diocese for the use of the church in a certain division, and the title to other lots was vested in him for the benefit of a parish in his diocese, upon the incorporation of such diocese and parish the title was not divested from the bishop and vested in them. The trust did not attach to the person of the bishop, but to his office, and passed to his successor in office, and the property could not be mortgaged without consent of the trustee. Beckwith v Rector, etc., St. I'hilip's Parish, 69 Ga. 5G4.

A trust for the support of religion is a charitable use ; and where all sects of the Christian religion stand upon an equal footing there can be no question with respect to a supersti- tious use. Attorney General v Jolly, 1 Eich, Eq. (S. C.j 99.

A will directing the executor to invest the residue of the estate as he nmy deem best, as a fund, the annual interest of which shall be applied for the benefit of the Sabbath school library of the First Baptist Church in Shelburne, or the Baptist Home Missionary Society, whichever may be deemed most suitable, is a good charitable bequest. Fair banks v Lamson, 99 Mass. 533.

"Under a constitution which extends the same protection to every religion and to every form and sect of religion, which establishes none and gives no preference to any, there is no possible standard by which the validity of a use as pious can be determined; there are no possible means by

80 THE CIVIL LAW AND THE CHURCH

which judges can be enabled to discriminate between such uses as tend to promote the best interests of society by spreading the knowledge and inculcating the practice of true religion, and those which can have no other effect than to foster the growth of pernicious errors, to give a dangerous permanence to the reveries of fanaticism or encourage and perpetuate the observances of a corrupt and degrading super- stition." AndrcAV v New York Bible and Prajer Book Society, 4 Sandf. (N. Y.) 181.

Testator gave all the residue of his estate to the Evangel- ical Lutheran Seminary, with a provdsion for the use of a portion thereof for the purpose of erecting a house of wor- ship for the Evangelical liUtheran Society in Stamford, applying the remainder of the income to the support of the pastor, and the maintenance of the society. One of the con- ditions of the gift was that the service in the church should be in the German language. Another condition was that a memorial tablet should be placed at the main entrance of the church. It was held a charitable use, and was sustained. Mack Appeal, 71 Conn. 122.

Roman Catholic, Clergymen. Where a bequest of personal estate was made to executors in trust to apply same for such charitable purposes as the Roman Catholic Archbishop of Dublin should direct, it was held that the Archbishop might receive the fund for the purpose of applying it in part for the maintenance of Roman Catholic officiating clergymen of his diocese, "directing them as a matter of religious and moral duty, but not of legal obligation, to say masses for the testator's soul." Blount v Viditz, 1 Ir. R. 42 (1805).

Sermons and Music. In Turner v Ogden, 1 Cox. Rep. (Eng.) 316 it was held that a bequest for preaching a sermon on Ascension Dny, for keeping the chimes of the church in repair, and for a payment to be made to the singers in the gallery of the church are all bequests to charitable uses.

Shakers. For an interesting discussion of the effect of contributing property to a Shaker society and for the forma-

CHARITABLE USE 81

tion of a couiniiiiiity or eliui-ch for the beiiefK ol' the uienibeis in carrying forward cliaritable and religions worlv, see Gass and Bonta v Wilhite, 2 Dana (Ky.) 170.

South Carolina. The statute of Elizabeth in relation to charitable uses has never been adopted in South Carolina. Attorney General v Jolly, 1 Eich. Eq. (S. C.) 9U.

Sunday School, Diversion. A bequest in trust to aid in the encouragement of Sunday schools by a society organized for that purpose, was sustained in Carter v Green, 3 Kay and J. (Eng.) 501. The charity could not be defeated by the fact that the trustees might use the fund for another purpose. The bequest was valid, unless by the rules of the organization the society was required to use the fund for a purpose not sanctioned by law. A mere possibility of an- other use could not defeat the testator's intention.

Unincorporated Society. A devise to an unincorporated society is valid, and if made to the vestrymen of a church the devise is not invalid because indefinite, and the rule against perpetuities is not violated by a devise to the vestry- men and to their successors with power to sell, exchange or dispose of the property. Biscoe v Thweatt, 74 Ark. 545.

Societies or bodies of men unincorporated have ever been considered at common law as incapable of receiving gifts or legacies, to be applied to charitable uses, and it has been the invariable policy of our State (Vermont) to consider them capable. Burr Ex'rs. v Smith, 7 Vt. 241.

A gift of land for such purposes to an unincorporated reli- gious society is valid in Illinois. Alden v St. Peter's Parish, Sycamore, 158 111. G31.

Bequests for charitable purposes to unincorporated soci- eties are sustained where the object is competent, and is designated or may be clearly ascertained. Where the de- scription of the legatee is uncertain, evidence is admissible to identify the legatee intended. Hornbeck v American Bible Society, 2 Sandf. Ch. (N. Y.) 133.

A grant of land by a tow^n for a cemetery is not void because made to an unincorporated society. The grant was

82 THE CIVIL LAW AND THP] CHURCH

validated by the subsequent incorporation. Chatham v Brainerd, 11 Conn. 60.

Unitarian. A legacy to the minister or ministers of a speci- fied Unitarian chapel "to be applied in snch manner as he or thej shall think fit toward the snpport of the Unitarians" was sustained in Ke Barnett, 29 L. J. Ch. (Eng.) 871.

Vault and Tomb, Repairs. A grant of lands in trust per- petually to repair, and, if need be, rebuild a vault and tond> standing on the land, and permit the same to be used as a family vault, for the donor and her family, is not a charitable use within the statute of 0 Geo. 2, C. 36. Doe v I'itcher, 6 Taunt. E. (Eng.) 363.

CHARITY

Alteration or diversion, invalid, 83.

Beneficiaries, present or future, 84.

Defined, 84.

History, 84.

Discretion of trustees, 84.

Dissenters, 85.

Donor's intention, 86.

Foreign corporation, 86.

Identifying beneficiary, 87.

Indefinite, 87.

Irving Society, 87.

Parliamentary restriction, 88.

Poor, 88.

Principles universal, 88.

Religious exercises and self-denial, 89.

Religious instruction, 89.

Trustees to account, 90.

Uncertainty, free churches, 90.

Unincorporated society, 90.

Alteration or Diversion, Invalid. The charily must be ac- cepted uijon the terms proposed. It canuot be altered by any agreement between the heirs of the donor and the trustees or donees. But it may be carried into effect accord- ing to the intention of the donor, and in like manner the mode of its execution will be pursued when indicated, unless the one or the other becomes impracticable, and then only may it be altered cy pres. Gilman v Hamilton, IG 111. 225.

A charity given for a particular purpose cannot be altered or diverted to any other. It must be accepted and retained upon the same terms upon which it was given, and no con- currence among the donees can operate to transfer or apply it to other purposes. McKoberts v Moudy, 11) Mo. App. 2G.

83

84 THE CIVIL LAW AND THE CHURCH

A charity given for a particular purpose caunot be altered or diverted to any other. Veuable v Coffman, 2 W. Va. 310.

Beneficiaries, Present or Future. A charity may be created not only for the benefit of those who are in existence, or who may qualify themselves to become objects of the bounty. Attorne}' General ex rel Independent or Congregational Church of Wappetaw v Clergy Society, 8 Rich. Eq. (S. C.) 190.

This case appears again in 10 Rich. Eq. (S. C.) 601, where the court held that a "corporation for religious or eleemosy- nary i^urposes may, without violation of the constitution, apply for, and obtain an amendment to their charter author- izing them to apply their surplus funds to other purposes than those for which the charity was originally established."

Defined. A charity, in the legal sense, may be more fully defined as a gift to be applied consistently with existing laws, for the benefit of any indefinite number of persons, either by bringing their minds or hearts under the infiuence of education or religion, by relieving their bodies from dis- ease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself if it is so described as to show that it is charitable in its nature. Jackson v Phillips, 11 Allen (Mass.) 539 sustaining a legacy to trustees to be used in caring for fugitive slaves ; see also Crerar v Williams, 115 111. 625.

A purely public charity may be defined as one which dis- charges, in whole or in part, a duty which the commonwealth owes to its indigent and helpless citizens. Commonwealth v Thomas, 26 Ky. Law Rep. 1128.

History. For a review of decisions relative to charities and charitable uses, see the chancellors' opinion in McCartee V Orphan Asylum Society, 9 Cowen (N. Y.) 437.

Discretion of Trustees. A bequest of the residue of personal estate for such religious and charitable institutions and

CHARITY 85

purposes within the kingdom of England as in the opinion of the testator's trustees should be deemed fit and proper, is a good charitable bequest. Baker v Sutton, 1 Keen (Eng.) 224.

Dissenters. In Attorney-General v Wilson, 16 Sim. (Eng.) 210, construing two deeds by Lady Hewley, one in 1704 and the other in 1707, by which she conveyed certain property in trust ''for such poor and godly preachers for the time being of Christ's Holy Gospel, and of such poor and godly widows for the time being of such preachers, as the trustees for the time being shall think fit; and for promoting the preaching of Christ's Holy Gospel in such manner and in such ])Oor places as the trustees for the time being should think lit; for educating such young men designed for the ministry of Christ's Holy Gospel as the trustees for the time being should think fit; and for relieving such godly persons in distress, being fit objects of her own and the trustees charity, as the trustees for the time being should think fit"; the court siiid thnt Lady Hewley, being an English subject and the proj)erty Ix'iiig located in England, where her own church relations were established, the charity must be lim- ited to Englisli nonconformists. The term "godly preachers of Christ's Holy Gospel," or "godly preachers," meant those persons who answered the description of orthodox English dissenters at that time, and who resided in England; and this descri])tion was held to include those who, at the time of Lady Hewley's death or thereafter, were or should be "orthodox Englisli dissenting ministers of Baptist churches, of Congregational or lndei)eii(lent churches, and of Presby- terian churches in England, which are not in connection with, or under the jurisdiction of the Kirk of Scotland, or the Secession Church." Tlie term "godly widows" was held to mean widows of dissenting ministers above described, and the phrase, "the preaching of Christ's Holy Gospel," meant preaching by such ministers, and "the ministry of Christ's Holy Gospel" meant the ministry exercised by such orthodox English dissenting ministers; that the words

86 THE CIVIL LAW AND THE CHURCH

"godly members" included members of the church above mentioned, and that inmates of the hospital established by the deed must be poor members of such churches.

Bequests were made for the benefit of poor dissenting min- isters living in any county. It was in proof that there were three distinct societies of dissenters, and that collections were made for the poor ministers of each. It was held that the bequests were good, and that they were intended for all the ministry in general, and it was ordered that the money be paid to all the treasurers of the three denominations. Waller v Childs, Ambl. (Eng.) 524.

Donor's Intention. "The necessary public benefit is sought in the character of the purpose according to the intention of the donor. If that intention be the performance of acts which tend to benefit the public, the court never proceeds to inquire whether the result must be a benefit which it is cer- tain would not otherwise accrue to it." A gift for the sup- port of a minister tends to the advancement of religion be- cause it contributes to the support of its minister; and the court, in such a case, does not inquire into the quantum of his former stipend, or the necessity for its increase. "By analogy, a gift to a clergyman because he publicly performs Divine service ought to be deemed charitable, whether the donee was or was not previously subject to a moral, or even to a legal, obligation to perform it." Attorney-General v Hall, 2 Irish R. 291, 309 (1896).

The court will not decree the execution of a trust of a charity in a manner difterent from that intended, except so far as they see that the intention cannot be executed liter- ally, but another mode may be adopted consistent with his general intention, so as to execute it, though not in mode, in substance. If the mode becomes by subsequent circum- stances impossible, the general object is not to be defeated, if it can be attained. Attorney-General v Boultbee, 2 Ves. (Eng.) Jr. 380.

Foreign Corporation. In University v Tucker, 31 W. Va. 621, it was held that foreign corporations may take bequests

CHAIUTY 87

of charity uiidei' a will uuide iu this State, when and to the extent authorized by their charters.

Identifying Beneficiary. Testatrix bequeathed a fuud to auy iustitutiou in l*hiladelphia that will give shelter to homeless people at night, irrespective of creed, color or con- dition. The Philadelphia Society for Organizing Charity was the only claimant of the fuud. This society was organ- ized in 1878, and about five years afterward Wayfarers' Lodges were created, and shelter has been provided, and is still furnished, and will continue to be given by the society to homeless peoi)le at night in the manner specified in the will. This society was held entitled to the bequest. Crox- all's Estate, 162 Pa. St. 579.

Indefinite. Testator directed the executor to hold the resi- due of his estate in trust for the education of freedmen, the income to be paid by him to the proper officers of the freed- men's association, or disposed of as he pleases. There was no society existing under the name given in the will, and the court rejected evidence offered to show that the society intended was that organized by the Methodist Episcopal Church in Cincinnati. The bequest was, therefore, void for uncertainty. The term ^'freedmen" was said to include that class of persons who were emancipated during the late Civil War and their descendants. Fairfield v Lawson, 50 Conn. 501.

AVhere a testator, by his will, directs the trustees and guardians of his child to pay over annually a certain por- tion of the income of his estate to the trustees of the Hills- bortmgh School, to be by tliem api)lied towards feeding, clothing, and educating the poor children of Caroline county, which attends the poor or charity school established at Hillsborough, in the said county, it was held that the bequest was void for uncertainty as to the persons who w^ere to take under it. Dashiell v Attorney General, 6 Har. & J. (Md.) 1.

Irving Society. In Attorney General v Lawes, 8 Hare (Eng.) 32, a bequest of a sum to be paid annually to a bank

8S THE CniL LAW AM) Tlli: ClUKCll

for the "sole use aud beiietit of any of the ininistei's ami ineinbei's of the chiirehes iio\\' forming upon the Apostolic doctrines brought forward by the late Edward Irving, who may be persecuted, aggrieved, or in poverty, for jjreachiug or ui)holding those doctrines, or half the sum may be appro- priated for the benetit of the church founded by the late Edward Irving in Newman Street,'' was sustained as a valid charity. If there should afterward be no persons for whose benefit the fund could be applied, the charity would not fail for that reason, but the court would administer as nearly as practicable, according to the donor's intention.

Parliamentary Restriction. In Attorney-General v Guise, 2 Vern. (l>ng. i 20(1, it was held that a charity for the pur- pose of propagating in Scotland the doctrines of the Church of England could not be fully executed because of a recent act of rarliament, but the legacy- did not fall into the resid- uary estate, and the purpose of the charitj' might be exe- cuted so far as practicable in view of the act of I'arliament.

Poor. A bequest to the town of Skowhegan, Maine, for the worthy and unfortunate poor, aud to save them from pauperism, to be funded, and one half of the income of the sum to be expended by the women's aid society formed for that purpose, was sustained in Dascomb v Marston, SO Me. 223.

A gift to the poor of the town or parish, or church, is a public charity to be applied by the ministers and deacons according to the intentions of the donor. Attorney-General V Old South Society in Boston, 13 Allen (Mass.) 474.

Principles Universal. The principles of the law of charities are not confined to a particular people or nation, but prevail in all civilized countries pervaded by the s]>irit of Chris- tianity. They are found imbedded in the civil law of Rome, in the laws of European nations, especially in the laws of that nation from which our institutions are derived. A leading and prominent principle prevailing in them all is that property devoted to a charitable and worthy object, promotive of the public good, shall be applied to the pur-

CHAKITY 89

]i(ises of its dedication, and ]ji-otected from spoliation and Irom diversion to other objects. Tliongh devoted to a ])ar- ticiilar use, it is considered as f^iveu to the public, and is. therefore, taken under tlie j;uardianship of the laws. If it cannot be applied to tlie ]iarticular use for wliicli it was intended, either because the objects to be subserved have failed or l)ecause they liave become unlawful and repugnant to the public policy of the state, it will be applied to some object of kindred character so as to fiiltill in snl)>-t;iii(e if not in manner and form the purpose of its consecration. The Late Corporation of the Church of Jesus Christ of Latter Day Saints v United States, i:]G U. S. 1.

Religious Exercises and Self-Denial. A voluntary associa- tion of women for the purpose of working out their own salvation by religious exercises and self-denial has none of the requisites of a charitable institution, whether the word ''charitable" is used in its i)Opular sense or in its legal sense. Admitting that religious purposes are charitable, that can only be true as to religious services tending directly or indirectly toward the instruction or the edification of the public ; an annuity to an individual so long as he spent his time in retirement and constant devotion, would not be charitable, nor would a gift to ten persons, so long as they lived together in retirement and performed acts of devotion be charitable. Cocks v Manners, 12 L. E. Eq. (Eng.) 574.

Religious Instruction. A bequest to a widow for life, then to the church of which she might be a member at her death, for such uses as the Conference might determine, "especially for the support of Sunday schools, for the purchase of Bibles, and religious tracts, and the distribution of the same among the destitute, and for the support of mission- aries," was sustained in Attorney-General v Jolly, 1 Rich. Eq. (S. C.) 99.

A conveyance of land "in trust for the uses of a Sabbath School and for the diffusion of Christian principles as taught and practiced by Christian Evangelical denomina- tions, with power to erect, repair, and renew from time to

90 THE CIVIL LAW AND THE CHURCH

time all buildings necessary to carry out the object and pur- poses of the trust" constitutes a public charity. Morville

V Fowle, 144 Mass. 109.

Trustees to Account. Trustees of a charity may be required by the court of chancery to account for income which has been misapplied, for any length of time, without regard to the statute of limitations; but an application of such income, made in good faith and continued for many years, will not be lightly disturbed, especially after the lapse of a considerable time. Attorney General v Old South Society in Boston, 13 Allen (Mass.) 474.

Uncertainty, Free Churches. Testator devised his real estate and directed that it be sold and the proceeds "laid out in building convenient places of worship free for the use of all Christians who acknowledge the Divinity of Christ and the necessity of spiritual regeneration." It was held that the devise was void for uncertainty, the court observ- ing that the will was silent as to the place where the churches were to be erected, and that there was no owner- ship conferred on any religious congregation nor any trus- tees for it. "It seems impossible for a court to hold that a charity for religion is sufiicientlj^ specific, in which no part of the Christian world has any property, legal or equitable ; which no one has a right to manage or preserve, and in which the court would, perhaps, be daily called on to regulate the uses of the buildings, which the various sects would endeavor to concentrate, each one in itself." White

V Attorney General, 44 Am. Dec. 92.

Unincorporated Society. A bequest was made in 1790 by a resident of Virginia to the "Baptist Association that for ordinary meets at Philadelphia annually," "for the educa- tion of youths of the Baptist denomination who shall appear promising for the ministry, always giving a preference to the descendants of my father's family." The testator died in 1795. At that time the Baptist Society in Philadelphia was unincorporated, but became incorporated in 1797. It was held tliat the description of tlie association was suffi-

CHARITY 91

ciently definite, but not beiug incorporated, it was incapable of taking the trust, nor could the bequest be taken by the individuals composing the society. They could not execute the trust which was to the association and not to the indi- viduals. It was, therefore, held that at the death of the testator there were no persons in existence capable of tak- ing this bequest. The corporation subsequently formed could not take it, and the bequest became a part of the testator's residuary estate. Trustees, Philadelphia Baptist Associa- tion V Hart's Executors, 4 Wheat. (U. S.) 1.

CHRISTIAN CHURCH

Organization, 92.

Form of government, 93.

Changing doctrine, 93.

Chm-ch of Christ, 94.

Division, effect on property rights, 94.

Incorporation, effect, 95.

Officers constitute corporation, 96.

Unincorporated society, 96.

Organization. This is a bodj'^ of religious people calling themselves Disciples of Christ, or Christians, known in the aggregate as the Christian Church, and existing in inde- pendent local churches, and having no ecclesiastical tribunal superior to the local church ; said local churches being con- gregational in form of government.

These churches have no formulated creed or articles of faith, but claim to be guided in their faith and practice by the Bible, and it is and always has been a fundamental principle with them, that nothing more or less than faith in Jesus Christ as the Son of God and the Saviour of man, and obedience to his commands, is to be required to consti- tute persons Christians, and to entitle them to membership and good standing in said Christian churches.

They hold to immersion exclusively as Christian baptism, and they teach that baptism, when preceded by faith in Christ, repentance from sin, and a public confession of such faith, is for the remission of sins, but they have never required uniformity in opinions as to this purpose or design of baptism, and it has been their custom and usage from the beginning, and held by them to be in accord with their fun- damental principles above stated, to regard and treat as Christians persons from other Christian denominations

92

CHRISTIAN CHURCH 93

who have been immersed upon iirofession of their faith in Christ, and to receive such persons into membership and full fellowship in their churches, whether or not they believe that baptism is for the remission of sins.

It is also a part of their fundamental principles that mis- sionary societies, conventions, and similar voluntary or- iianizations for Christian work, as well as the use of instru- iiKMital music in connection witli their worship in the (hurches, are regarded as expedients concerning which no nilc, i>ro or con, can l)e made, but regarding which each local cliurch or coiigrcgalioii, and each individual, is allowed lihcrly in opinion :ind inarlicc; ;ind they have generally, since the beginning of tlie (Icnomination, had their general societies and conventions for missionary work, and each of sucli voluntary organizations being allowed, and having tree access to and use of their resj)ective church houses or places of worship in which to hold their meetings and transact their business. Peace v First Christian Church, McGregor, 20 Tex. Civ. App. 85.

Form of Government. Tlie government of a local society, according to the doctrine and usage of the denomination, is vested in the elders and deacons; the former a«lministering spiritual allairs, such as teaching and emi)loying preachers, while the deacons manage the finances and attend generally to the material needs of the church. The elders and deacons are selected and ordained by other elders of the church, and <anuot otherwise be appointed. Prickett v Wells, 117 Mo. Re. 502.

Changing Doctrine. Up to 1802, when the pastor died, the general accejtted doctrines of that denomination were taught; the Sunday school, in which were used the Interna- tional Sunday School leaves, })repared for the purpose of elucidating the Scrij)tures, flouri.shed ; an organ was played in the praise service; financial help was received from the Ladies' Aid Society; baskets were pa.ssed by the elders in taking up collections; the sacrament was administere<l after services, and the church had self-government. All this

94 THE CIVIL LAW AND THE CHURCH

conformed with the practices of the Christian Church. Its creed was the New Testament. Upon the advent of a new pastor all was changed. The International Sunday School leaves and the organ were denounced as instruments of the devil. The Sunday school was abandoned as not authorized by the Scriptures, though the youth were sometimes taught from the Bible. The organ was relegated to the woodhouse. Receiving contributions from outsiders was condemned, and voluntary offering made only by depositing the gifts on a stand before the altar. The rule of the elders was pro- claimed. Its belief in the use of the organ, in the Sunday school, the rule of the elders, and the methods of giving were made tests of fealty. In December, 1804, for the purpose of settling misunderstandings as to belief, all persons willing to take the New Testament as a guide of faith were invited to take the front seats. Subsequently three persons who refused to accept the new teaching were expelled without trial of specific charges. The persons making and favoring the innovations were not entitled to the possession of the church property, the court observing that the property must be held in sacred trust for the promulgation of the doc- trines of the New Testament according to the generally accepted interpretation of the Church of Christ. Christian Church V Carpenter, 108 la. 647.

Church of Christ. Land was conveyed by deed to three persons as trustees for the Christian Church. It was held that a court of equity should enforce the trust in favor of the Church of Christ, it appearing that the Church of Christ was legally incorporated, and that the persons named as trustees in tlie deed were in fact the trustees of the Church of Christ, and there was no proof that there was any legally organized or unorganized religious society or church having the name "The Christian Church" at the time the deed was nmde, nor one thereafter legally organized. Church of Christ V Christian Church, Hammond, 103 111. 144.

Division, Eifect on Property Rights. The society purchased laud on which a house of worship was erected. Some time

CHRISTIAN CHI RCH 9a

about 1885 the denomination in Texas became divided into two factions, known as the Progressive and the Firm Foundation factions, differing on the question rehiting to baptism with some other minor differences.

In September, 18!J7, there was a separation in the local church, a large majority adhering to the so-called Firm Foundation Faction, The minority obtained a charter, and brought an action to recover the pro])erty which was held by the majority faction, under the claim that it was the true Christian Church at that place. It was held that the l)laintitt's rejjresented the original society and the doctrines of the Christian Church at the time the j)roperty was acquired, and still adhered to the faith and practice of that (liMiomination ; that the doctrines of the faction known as the Firm Foundation Faction constituted a wide departure from the original articles of faith, and that the plaintiffs, members of the Progressive Faction, who still adhered to the doctrines of the original society, were entitled to the possession of the church jjropertj'. I'eace v First Christian Clnircli. :M(r,ivgor. 20 Tex. Civ. App. 85.

Incorporation, Effect. The society was organized in 1863, and continued in its unincorporated condition until 1873, when a majority voted to incori>orate. It was, accordingly, incorporated under the laws of Missouri. Prior to the in- corporation the treasurer had deposited cliuich funds in a savings institution. After the incorporation the church brought an action to recover the amount of the deposit. The persons composing a minority of the congregation at the time of the vote for incori)oration, and who had declined to sign the petition for the charter, joined in a defense by the bank claiming that they, such minoritj', constituted the real church and were entitled to the property. It was held that the incorporation was regular, and that all the mem- bers of the congregation, including the minority, were bound by it. That the new corporation succeeded to all the rights of the former unincorporated society, including the owner- ship of the certificate of deposit, of the funds in the hands

96 THE CIVIL LAW AND THE CHURCH

of the savings institution, and accordingly tliat the church was entitled to recover the deposit. North St. Louis Chris- tian Church V McGowan, 63 Mo. 279.

Officers Constitute Corporation. The trustees, deacons, and church wardens were held to constitute a corporation for the purpose of taking and holding in succession all real and personal estate given to their church. Bean v Christian Church, South Danbury, 61 N. H. 260.

Unincorporated Society. In 1824, a society was formed con- formable to the rules and usages of the denomination called Christians. The society was not organized in the manner required by the statute but the associates agreed to main- tain religious worship. The society was received in fellow- ship with other societies of the same denomination, and maintained religious worship. It was held that while the society was not organized as required by the statute, it be- came an unincorporated religious society, under the rules of the denomination, and as such became entitled to take and hold real estate, and that it might maintain an action of trespass on its property. Christian Society, Plymouth v Macomber, 5 Mete. (Mass.) 155.

CHRISTIANITY

Christian defined, 97. Blaspheni}', 98. England, 98. Law of the land, US. Massachuiietts, 99. Nation, 99. New York, 99. Ohio, 100. Pennsylvania, 100. Scope of influence, 100.

Christian Defined. The term "Christians," as used in its jiXMieral sense, means those who believe in the divinity of Christ. Attorney General v Drnniniond, 3 Dr. & War. (Eng.) 162.

The term "Christian" embraces and includes both Koman Catholic and Protestant alike; and to be of the Catholic or Protestant religion, a ]»erson must first be of the Christian religion. The grand subdivisions among Christians are:

1. The (Ireek, or lOastern Church.

1*. The Koman Catholics, who acknosvledge the authority of the P<)[)e.

r). The Protestant, or reformed churches or sects, wlio reject the authority of the Pope iKobbins, Religions of all Nati(Misi.

A Koman Catholic is a Christian \\ho admits the author- ity of the I'ope; a Protestant is a Christian who denies that anthorit}'.

Since the days of J^uther, Komanists and Protestants have constituted, and still constitute, the two great divisions of Christianity in western Europe and America. The court (quoted from the Encyclopedia of Keligious Knowledge, the statement that "the term 'Christian,' when used in its more

97

98 THE CIVIL LAW A^D THE CHURCH

strict. scriptiiraL and theological sense, denotes oue who really believes the gospel, imbibes the spirit, is infliieuced by the grace and obedient to the will of Christ"; and this it calls the sacred and proper use of the word. It mentions another use of the word which it calls the political or con- ventional use. which denotes one who assents to the doc- trines of the religion of Christ, and who. being born of Chris- tian parents, or in a Christian country, does not profess any other religion, or belong to any other of the divisions of men. such as Jews. Mohammedans, deists, pagans, and atheists; or, as is said in another part of the article. Chris- tians may be considered as nominal and real.

The court observed that the term ''Christian" was ordi- narily used in the above defined political and conventional sense in constitutions, statutes, and legal documents, in other words as nominal Christians. The idea that any man, however good, can properly be called a Christian, who does not believe or assent to the truths and doctrines of Chris- tianity, and first and foremost of all, to the doctrine that Jesus was the Christ, the true Messiah, the Christ of God, is simply preposterous. All Christians believe in Jesus Christ as the true Messiah, and the Saviour of man ; in other words, that Jesus Christ was just what he claimed to be — the "Christ of God." Hale v Everett, 53 N. H. 1.

Blasphemy. Writing against Christianity is blasphemy at cominoii law. Rex v Woolston. 2 Str. (P^ng. ) 834.

England. Christianity came in here (England) by ex- ternal spiritual force, and discipline, was introduced as a custom, and is part of the law. Lord Hale's MSS., cited in Rex v Bosworth, 2 Str. (Eng.j 1113.

Law of the Land. The declaration that Christianity is part of the law of the land is a summary description of an existing and ever-obvious condition of otir institutions. We are a Christian people in so far as we have entered into the spirit of Christian institutions, and beco)ne imbtied with the sentiments and principles of Christianits' ; and we can- not be imbued with them and yet prevent them from enter-

CHRISTIANITY 99

iug into and influencing more or less, all our social institu- tions, customs, and relations, as well as all our individual modes of thinking and acting. Moliney v Clark, 2(> i'a. 342.

Massachusetts. The people of Massachusetts, in the frame of their government, adopted Christianity as the basis of organized society. This religion was found to rest on the basis of immortal truth ; and to contain a system of morals adapted to man in all possible ranks and conditions, situa- tions and circumstances. The manner of its constitutional establishment was liberal, and consistent with the rights of conscience on religious subjects. The constitution provided for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people, and it was made the riglit and duty of all corporate religious societies to elect and support a public Protestant teacher of piety, religion, and morality. Barnes v First Pari.sh, Falmouth, G Mass. 401.

Nation. Our nation and the States composing it are Christian in policy to the extent of embracing and adopting the moral tenets of Christianity as furnishing a sound basis npon which the moral obligations of the citizen to society and the State may be established. District of Columbia v Robinson, 30 App. D. C. 283.

New York. Christianity is, in a qualified sense, a part of the common law of New York, not to the extent that would authorize a compulsory conformity in faith and practice to the creed and formula or wor.ship of any sect or denomina- tion, or even in those matters of doctrine and worship com- mon to all denominations styling themselves Christian, but to the extent that entitles the Christian religion and its ordinances to respect and protection, as the acknowledged religion of the people. ^"Christianity is not the legal reli- gion of the State as established by law. If it were, it would be a civil or political institution, which it is not; but this is not inconsistent with the idea that it is in effect, and ever has been, the religion of the i)eople." Lindenmuller v People, 33 Barb. (N. Y.) 548.

736053

100 THE CIVIL LAW AND THE CHURCH

Ohio. Christianity is a part of the comiiioii law of Eng- land, but under the constitution of Ohio neither Christian- ity nor any otlier sj^steni of religion is a part of the law of the State. The statement that all religions are tolerated in Ohio is not strictly accurate. Much less accurate is it to say that one religion is a part of the law, and all others only tolerated. There is no union of church and state, nor has the government ever been vested with authority to enforce any religious observance simply because it is religious. The power to make the law rests in the legislative control over things temi)oral and not over things spiritual. No power over things merely spiritual has ever been delegated to the government. Bloom v Richards, 2 Ohio St. 387.

Pennsylvania. Christianity is and always has been a part of the common law of Pennsylvania; Christianity without the spiritual artillery of European countries ; for this Chris- tianity was one of the considerations of the royal charter and the very basis of its great founder, William Penn ; not Christianity founded on any particular religious tenets; not Christianity with an established church, and tithes, and spiritual courts, but Christianity with liberty of conscience to all men. Updegraph v Commonwealth, 11 S. and R. (Pa.) 394.

Christianity, as it is inculcated in the Scriptures, is a part of our common law\ It has at all times been so under- stood and believed not only by divines, but also by our statesmen and people. It has been so declared by our high- est judicial tribunals. Commonwealth v Sigman, 2 Claris (Pa.) 3G.

Scope of Influence. Christianity, though an essential ele- ment of the conservatism, and a great moral power in the State, should yet only work by love, and inscribe the laws of liberty and light on the heart; and the civil government has no just or lawful power over the conscience, or faith or forms of worship or church creeds or discipline as long as their fruits neither unhinge civil supremacy, demoralize society, nor disturb its peace or security.

CHRISTIANITY 101

The political governmeut is founded on the civil consti- tution; the ecclesiastical on the Bible; but the Bible and the constitution harmonize in aim and in spirit; and reli- gion and politics should go hand in hand together, each equally free, and neither presuming to control the other in its legitimate s])here. This is the true, and oul}' true, illus- tration of the modern maxim that church and state should be kept separate. It is the vital principle of botli civil and religious liberty, and its universal prevalence would secure liberty, purify religion, and promote the welfare of man- kind. Gartin v Penick, 5 Bush. (Ky.) 110.

CHRISTIAN MISSIONARY SOCIETY

This society was unincorporated, but was commonly known as the Kentucky Christian Missionary Convention. This body regularly and annually met, and provided means and plans to carry on Christian missionary work. A be- quest to the society was sustained in Chambers v Higgins, 49 S. W. (Ky.) 436.

102

CHRISTIAN SCIENCE

Described, 103.

Expulsion of members, 103.

Healer, knowledj^e required, 103.

Medical attendance, religious belief, 103.

Missouri constitution, 104.

Pennsylvania constitution, 104.

Sunday school treasurer, 105.

Described, (.'hristiaii Science entirely excludes drugs and all material methods of treatment, and relies solely upon i)rayer as a means for the relief or cure of the sick. State V Marble, 72 Ohio 21 : It was held in this case that the giving of Cluistian Science treatment for a fee for the cure of disease was practicing medicine within the meaning of the Ohio statute, and that the statute making it a misde- meanor to give such treatment for a fee was not an interfer- ence with the rights of conscience and worship, secured by the bill of rights; see also People v Cole, 1G3 A. D. (N. Y.)

Expulsion of Members. I ii Ilolcombe v Leavitt, 124 N. Y. S. 980, an injuiution was granted against the expulsion of certain iiuMiibcrs of the s(Ki«*ty who had proposed by-laws for its govcninuMit, and who, if arbitrarily expelled, would be <l('|>T'iv»*(l of |»ntj»('rty ri;;lits.

Healer, Knowledge Required. One who holds himself out as a Christian Science healer, and is employed to treat disease according to the metluMls a(loj)ted by such practitioners, is oulj' retjuired to possess tlie knowledge, and to exercise the care and skill of the ordinary Christian Scientist. Spead V Tomlinsoii, 7:5 X. U. 4(1.

Medical Attendance, Religious Belief. See State v Chen- oweth, 103 Ind. 94 for authorities on the effect of religious

103

104 THE Cn TL LAW AND THE OHUECH

belief as a defense by pai-euts Tor alleged neglect to provide medical attendance for sick children, as required by law.

Missouri Constitution. In Ke St. Louis Inst, of Christian Science, 27 Mo. App. 633, the court denied an application for a charter on the ground that it would be a violation of the provision of the constitution of Missouri, which declared that no religious corporation can be established in this State, except such as may be created under a general law for the purjjose only of holding the title to such real estate as may be prescribed by law for church edifices; that the proposed institution was intended to proj)agate a religious belief, and that it would, therefore, become a religious cor- poration within the terms of its intended charter; also that the proi^osed charter would erect a business corpora- tion for pecuniary profits contrary to certain statutory provisions.

Pennsylvania Constitution. Considering an aj)plication for a charter by the First Church of Christ Scientist, it was held in Pennsylvania that if the jjurpose of the proposed cor- poration were only to inculcate a creed or to j)romulgate a form of worshij), no question could arise, because under the constitution of Pennsylvania private belief is beyond public control, and there can be no interference with the right of conscience. The maintenance of health and the cure of disease occupies a large space in the faith of the society. The students of the book have patients who are to be treated according to the method taught. The treatment extends to the most serious and fatal of diseases — rheumatism, scro- fula, cancer, smallpox, and consumption. The patients, young and old, are to be treated for a compensation to be paid to those who work the beneficent results. The court said that what was proposed was more than a church, since there is besides to be established a system for the treatment of disease, to be carried into effect by persons trained for the purpose, who may receive compensation for their serv- ices. The Pennsylvania statute of 1877 prohibited persons from practicing medicine who had not received a regular

CHRISTIAN SCIENCE 105

diploma from a chartered medical school. To grant this charter would be to sanction a system of dealing with dis- ease totally at variance with any contemplated by the act of 1877, and different from any taught in a chartered medical school. The court declined to grant the charter. Applica- tion of First Church of Christ Scientist, 6 Pa. Dist. 745.

A similar situation was presented by the application of First Church of Christ Scientist, 205 Pa. 543, where the status of Christian Science wa's again considered on an application for a charter for the establishment of a place for the support of public worsliip, and to preach the gospel according to the doctrines of Christ Jesus, as found in the Bible and the Cliristinn Science textlwok, Science and Health, with Key to tlie Scriptures : by Mary Baker G. Eddy. It appeared that the method to be pursued by these healers in curing the sick is simply and solely b}' inaudible prayer, whether in the presence of the sick or at a distance, being immaterial. That to qualify for the practice of healing disease according to this method nothing was necessary except the study of the system taught in Mrs. Eddy's book, no knowledge of anatomy, physiology, pathology or hygiene being required, the fundamental principle of the teaching of Mrs. Eddy being that what is termed disease has no real existence; that sickness, sin, and death are unknown to truth, and should not be recognized by man as a reality. The cliarter was refused.

Sunday School Treasurer. In First Church of Christ Scien- tist in Buffalo, N. Y. v Schreck, 70 Misc. (N. Y.) G45; 127 N. Y. Supp. 174, it was held that the treasurer of a Sunday school connected with a corporation was responsible to the corporation for funds collected for the church organ.

CHURCH

Defined, 106.

Defined, universal and particalar, 108.

Authority over members, 108.

Church purpose, 109.

Church, separate from society, 109.

Classification, 109.

Congregational, defined, 109.

Consecration, 110.

Creed and poUty, 110.

DiscipUne, subordinate" to State law, 110.

Division, 110.

Doctrinal controversy. 111.

Elements, 112.

Expulsion of members, 112.

Extinct, what constitutes, 112.

House of worship, 112.

Incorporation, effect, 113.

Independence, 113.

Lecture room, 113.

Legislative power, 113.

Liquor tax law, 114.

Majority, power, 114.

Merger, 115.

Minister, Hability for libel, 115.

Organic law, 115.

Property, beneficiaries, 116.

Relation to congregation, 116.

Rules and regulations, effect, 116.

Service, 116.

Sewing circle, 117.

Temporalities defined, 117.

Territorial Mmitation, 117.

Union, 117.

Virginia, cannot be incorporated, 117.

Who constitute, 117.

Defined. The Church consists of an indefinite number of persons, of one or both sexes, who have made a public pro-

106

CHURCH 107

fession of religion; and who are associated together by a covenant of church fellowship, for the purpose of celebrat- ing the sacraments, and watching over the spiritual welfare of each other. Baptist Church, Hartford v Witherell, 3 Paige Ch. (N. Y.) 21)6.

''The church, in the ordinary acceptation of the word, is a voluntary association of its members, united together by covenant or agreement, for the purpose of maintaining the l)ublic worship of God, observing rhe ordinances of his house, the promotion of the spirituality of its membership, and the spirit of divine truth among others as they understand and teach it. It is purely voluntary, and is not a corporation nor a quasi corporation." Hundley v Collins, 131 Ala. 234 ; see also Re Douglass's Estate, 143 N. W. (Neb.) 299.

The word "church" is understood to mean a number of Christian persons, agreeing in their faith, usually assem- bling together at one jdace, for purposes of worship, submit- ting to its ordinances, and receiving its sacraments. This is entirely distinct from the meaning of the word "cliurch" as applied to a corporation. In the former sense of tlie word, many persons are usually members of the church — and most commonly a large majority, who neither are, nor can be members of the corporation — married women, in- fants, and slaves. When persons are incorporated by the name of church this can be regarded only as a name of designation — or at most, as indicated when property is given to them, the trusts ui)on which it is given. Wilson v Presbyterian Church, John's Island, 2 Rich. Eq. (S. C.) 192. See also St. Andrews Church, v Schaunessy, 63 Neb. 792.

It is a matter of common observation that the terms "church" and "society" are popularly used to express the same thing, namely, a religious body organized to sustain public worship. Greenland Church and Congregational Society v Hatch, 48 N. H. 393.

The term "church" imports an organization for religious purposes, and property given to it by name, in the absence

108 THE CIVIL LAW AND THP] CHURCH

of all declarations of trust or use, must, by necessary impli- catiou, be intended to be given to promote tlie purposes for which a church is instituted; the most prominent of which is the public worship of God. Baker v Fales, 16 Mass. 488.

Any society claiming to be a church, and engaged in the lawful promotion or defense of religion, is a legal church. And, there being no law requiring in its formation or con- tinued existence au}^ connection with any other society, civil or ecclesiastical, incorporated or unincorporated, it may be formed and it may exist without any such connec- tion. Holt V Downs, 58 N. H. 170.

The identity of a religious community described as a church consists in the identity of its doctrines, creeds, con- fessions, formularies and tests. General Assembly, Free Church of Scotland v Overtoun (1904), Law Rep. App. Cases, (Eng.) 515.

Defined, "Universal and Particular. A universal church con- sists of those persons, in every nation, together with their children, who make profession of the holy religion of Christ, and of submission to his laws; and as tiiis immense multi- tude cannot meet together in one place to hold communion or to worship God, it is reasonable, and warranted by Scrip- ture exami)le, tliat they .should be divided into many partic- ular churches. A particular church consists of a number of professing Christians, with their offspring, voluntarily asso- ciated together for divine worship and godly living agree- ably to the Holy Scriptures and submitting to a certain form of government. First Presby. Church, Louisville v Wil- son, 14 Bush. (Ky.) 252.

Authority over Members. Churches have authority to deal with their members for immoral or scandalous conduct; and for that purpose, to hear comi)laints, to take evidence, and to decide, and upon conviction, to administer proper punishment by way of rebuke, censure, suspension, and ex- communication. To this jurisdiction, every member, by entering into the church covenant, submits and is bound by his consent.

CHURCH 109

The proceediugs of the church are quasi judicial and there- fore those who comi^laiu, or give testiniouy, or act aud vote, or pronounce the result, orally or in writing, acting in good faith, aud within the scope of the authority conferred by this limited jurisdiction, and not falsely or colorably, mak- ing such proceedings a pretense for covering an intended scandal, are protected by law. Farnsworth v Storrs, 5 Cush. (Mass.) 412.

Church Purpose. A lot was conveyed to the society by deed containing a condition that the property should be used for the purpose of erecting thereon a parsonage "or Church purpose." A parsonage was not erected, but the lot was used for hitching teams during service in the church, which was situated on an adjoining lot. This use was held to be a church purpose within the condition in the deed. Bailey v Wells, 82 la. KU.

Church, Separate from Society. "A church, separate from the society with which it is connected, has not the rights and privileges of a corporation. It is, however, a body having a distinct existence and character, in our ecclesias- tical history and usages, and as such is recognized by the law." Anderson v Brock, 3 Me. 243.

Classification. The Episcopal Church is monarchical, the Presbyterian aristocratical, and the Congregational demo- cratical. Presbyterians and Congregationalists were dis- tinct sects and formed separate religious societies at the time the constitution was made. All the Protestant churches set out together, but they parted on the road. They fell out by the way. And yet, if we coolly and impartially examine the points on which they differed and separated, they will be found few in number and trifling in amount. Muzzy V Wilkins, Smith's N. H. Rep. 1.

Congregational, Defined. A church is understood among those whose polity is congregational or independent, to be a body of persons associated together for the purpose of main- taining Christian worship and ordinances. A religious body is a body of persons associated together for the purpose of

no THE CIVIL LAW AND THE CHURCH

maintaining religions worship only, omitting the sacra- ments. A chnrch and society are often nnited in maintain- ing worship, and in snch cases the society commonly owns the property and makes the pecnniary contract with the minister. Churches are not corporated bodies, and com- monly have no occasion for the exercise of corporate powers. By the Massachusetts statutes their officers have sufficient corporated powers to enable them to hold any property that may be given to their church. Silsby v Barlow, 16 Gray (Mass.) 329.

Consecration. If a church is repaired without being totally destroyed or pulled down, some parts being left undisturbed, it does not need to be reconsecrated ; and this rule probably applied even if the church should be entirely rebuilt on the former foundations, especially if the repairs or reconstruc- tion be ordered by the church authorities. Parker v Leach 12 Jur. N. S. (Eng.) 911.

Creed and Polity. The organization of a denominational body or church involves the adoption of a religious creed and an ecclesiastical polity. Adherence to a particular body requires, therefore, adherence to both the creed and the polity. To abandon or repudiate either, is to abandon or secede from the body whose authority is thus disregarded. Krecker v Shirey, 1G3 Pa. 534.

Discipline, Subordinate to State Law. In the matter of the petition of the Third Methodist Episcopal Chnrch in the City of Brooklyn, 67 Hun. (N. Y.) 86, an order dissolving the corporation was sustained, although not made in ac- cordance with the obligation of the Discipline of the Meth- odist Episcopal Church. "No church Discipline can super- sede the law of the State."

So far as the canons of the church (Roman Catholic) are in conflict with the law of the land, they must yield to the latter; but when they do not so conflict they must prevail. Ryan v Dunzilla, 86 Atl. (Pa.) 1089.

Division. Property (communion plate) was given to this socicly for the use of the church, without any ])aroclual

CHURCH 111

coudition, limitation, or trust. The deacons ol" the society were a corporation for the purpose of taking and holding property, and they received the property in question for the use of the church. The church was the beneficiary. By a division of the church two congregations were formed, each chiiming to be the original. The defendant's party withdrew from the parish in 1S70 and afterward had con- nection with it. Tlie i)laintitf's party adhered to the parish and claimed to be the true church. The plaintiff's party was held to re})reseut the original cliurch, and was, therefore, entitled to the possession of the i)roperty iu dispute. Holt V Downs, 58 N. H. 170.

Doctrinal Controversy. One of the great facts standing out in the history of the Christian Church is that iu its long life many controversies as to doctrine and ceremonial have arisen, and there have been many divisions. While the apostles were yet alive a serious question arose concerning the necessity of continuing as a part of the Christian system a certain Jewish rite. It was a question so grave tliat it was carried for settlement to the church at Jerusalem, and was there considered by the apostles and elders, and dis- cussed and disposed of in the presence of the congregation. A decision was rendered which was transmitted, for the purpose of quieting the controversy, to all of the churches, to which it was deemed necessarj^ to send it (Acts 15). In the succeeding centuries numerous controversies arose over matters of doctrine and discipline which were settled by church councils. By means of these councils serious divi- sions were prevented until the great Refornuition of the sixteenth century, with the exception of the division between the Eastern and the Western churches, which occurred A. D. 1054, as a result of controversies which had proceeded from time to time during several centuries.

Numerous efforts have been made in comparatively recent years by various branches of the Protestant division of the church for union among themselves. Landrith v Hudgins, 121 Tenn. 556.

112 THE CIVIL LAW AND THE CHURCH

Elements. An incorporated church is composed of two distinct elements, namely, the church proper, as distin- guished from the entity created by the act of incorporation ; the corporation itself, which has relation only to the tem- poralities of the institution. The purpose of the incorpora- tion of a church is to acquire and care for the property thereof. Christian Church, Huntsville v Somnier, 149 Ala. 115, also Dismukes v State, 58 So. (Ala.) 195.

Expulsion of Members. A church is composed of those who have united together for ecclesiastical relation and purposes, and for spiritual improvement. This body is a voluntary association, having power to adopt its OAvn rules for admis- sion and discii^line, and administer them in its own way, independent of any control by the courts, while free from an intention to injure its mend^ers or those belonging to it.

A resolution passed by the church as above defined for the purpose of excluding a member from the church and the spiritual privileges enjoyed by him is effectual for the pur- pose intended, while if passed by the corporation for the purpose of depriving him of the privileges secured to corpor- ators by the Statute it is a mere nullity. People ex rel Dilcher v German United Evang. Church, 53 N. Y. 103.

Extinct, What Constitutes. The facts which constitute extinction are plainly defined in sec. 16 of the New York Religious Corporations Law, namely, "If it has failed for two consecutive years next prior thereto to maintain reli- gious services according to the discipline, customs, and usages of such governing body, or has had less than thirteen resident attending members paying annual pew rent, or making annual contribution toward its support.'' The fail- ure to maintain religious services therein mentioned does not mean an enforced failure due to the mandate of the presbytery itself. It implies, rather, the inability to carry on the ordinary services by reason of diminished income and attendance and similar causes. Westminster Church v I'resbytery of New York, 211 N. Y. 211.

House of Worship. Christianity is held to be a part of

CHURCH 113

the common law, and Sir EdAvard Coke designates a build- ing intended for the celebration of its rites as the "man- sion house of God." In this he had the authority of the Saviour, who designated the temple as "His Father's house." Beam v First Methodist Episcopal Church, Lancaster, Pa., 3 Pa. L. J. Rep. 34:5.

Incorporation, Effect. When a church has beeu incorpor- ated the regulations and customs of the communion to which it belongs regarding the disposition of secular business will be respected by the courts as far as possible; and if the mode of government in force in tlie denomination at large is not by congregations, but by superior clerical personages, assemblies, synods, councils, or consistories, the authority of these will not be displaced if it can be upheld consistently with the laws of the sovereignty. Klix v St. Stanislaus Church, 137 Mo. App. 347.

Independence. The State having prescribed no law for the action of any church, leaves each church or denomination to the guidance of its own law, and looks to that as the standard by wliidi all internal disputes are to be tried. Winebrenner v Colder, 7 Wright (Pa.) 244.

Lecture Room. Tlie Sunday school room and lecture room of a modern church are as essentially used for religious jmr- poses as the body of the church building itself. It is used for the midweek evening lectures and other services, when the attendance is not large. The expense of lighting and heating the main church building is thus avoided. But the services upon such occasions are as truly religious in their character as the sermon upon the Sabbath. The character of the use of the room is not changed by its occasional use for social gatherings incident to the church, for societies for benevolent objects, and for fairs held by the ladies to raise funds for missionary work. All these occasional uses are germane to the regular purpose of the room. Craig v First Presbyterian Church, 88 Pa. St. 42.

legislative Power. It is a matter deducible from history, as well as from the current religious literature of the times.

114 THE CIVrL LAW AND THE CHURCH

that every clmrch and every principal ecclesiastical denom- ination claiming to be founded upon Christian principles, or composed of i)ersons calling themselves Christians, has within itself some quasi legislative or supreme power hav- ing control over matters of doctrine as well as discipline, and having some jurisdiction at least over what pertains to the faith as well as the practices of its members. White Lick Quart. Meet, etc., v White Lick Quart. Meet. etc. 81) Ind. inn.

Liquor Tax Law. A two-story building the ujiper storj- of whidi was used for religious worship by a Jewish congrega- tion and the lower story for its Sunday school and also by several Jewish charitable societies, which paid rent for the use of the building, was held to be a church under the Liquor Tax Law. Matter of McCusker, 47 App. Div. (N. Y.j 113.

In matter of Finley, 58 Misc. (N. Y.) 639, it was held that where the parlor floor of a building erected for a dwell- ing house is used for the services of a church and Sunday school, while the pastor or minister in charge lives with his family on the second floor, keeping house with the usual accommodations and conveniences for that purpose, and the third floor is occupied by a woman who more or less looks after the work to be done on the premises, with her children, such building is not used exclusively as a church within the meaning of the Liquor Tax Law. It appeared that the building was erected for a dwelling house and its structure was not changed after it was i)urchased by a religious so- ciety for church purposes.

Majority, Power. A majority of a church congregation may direct and control in church matters consistently with the particular and general laws of the organism or denom- ination to which it belongs. Henry v Deitrich, 84 Pa. St. 286; see also Stogner v Laird, 145 S. W. (Tex.) 644.

On a schism or division in a church ov religious society, the members of the minority faction having been expelled by the majority, and both factions afterward assembling at

CHUKCH 1 15

the church for wortship at the same time, if the officers and members of the minority attempt to conduct religious ser- vices, they are mere intruders, and the majority may law- fully remonstrate against it, and may use such means, not amounting to needless force, as may be necessary to prevent it. Morris v State, 84 Ala. 457.

Merger. You cannot by union put one church into another having a different creed and doctrine, without forfeiting the I)roperty held in trust to such members of the body as remain faithful to the original creed and doctrine. Boyles v Roberts, 222 Mo. ()13.

Minister, Liability for Libel. A decision was agreed on in a church meeting and ordered to be promulgated by rending it before the church and congregation. The pastor of the church and minister of the congregation was acting within the scoi)e of his authority in reading a paper, which, it was proved, had been adopted in a separate meeting of the church, and directed thus to be read. One great purpose of an act of church discijjline is that it may have a salutary influence upon the whole religious body, of which the offender is a member, and the reading of such a paper by the pastor was within the scope of his authority. Parnsworth V Storrs, 5 Cush. (Mass.) 412,

Organic Law. A church, like every other organized body of citizens, must be consolidated by an organic law; and under and according to the constitution of the United States the organic law of the Presbyterian Church is a fundamental compact voluntarily made between all the mendjers of the unincorporated association for the guidance and protec- tion of each constituent church member, and necessarily inviolable by any delegated power of the aggregate church. It defines the sphere of the General Assembly as the organ- ized representative of all the members of the Presbyterian Church, as a Christian nationality, subordinate to the polit- ical sovereignty of the civil nation, which is as supreme over members of the church as over any other citizens.

The Presbyterian Churcli is certainly as much bound as

116 THE CIVIL LAW AND THE CHUKCH

Congress by the federal constitution, and all its members are subordinate to that and the State constitutions, which are supreme over all citizens in every condition. Gartin v Penick, 5 Bush. (Ky.) 110.

Property, Beneficiaries. When property is conveyed to a particular church, without reference to its connection with any other body, the majority of the church are the bene- ficiaries who remain under the organization then existing. Harper v Straws, li B. Mou. (Ky.) 48.

Relation to Congregation. The church and congregation for some purposes, form one religious society, associated under one pastor and minister for religious improvement. The church constitutes a select body, set apart for special purposes by covenant, and at the same time forms part of the congregation. Other members of the congregation may, upon suitable application, become members of the church, and all have a common interest in the general religious wel- fare of each other. In many congregations proposals for admission to the church and actual admissions take place before the congregation ; and in all societies, the ordinance of baptism is public. Farnsworth v Storrs, 5 Cush. (Mass.) 412.

Rules and Regulations, Effect. The rules and regulations of a church are, so far as church matters are concerned, a part of the law governing the members of such church. A person who voluntarily joins a church, and tacitly, at least, agrees to be bound by all the rules and regulations of such church, cannot afterward be allowed wholly to ignore and disregard such rules and regulations. As to all matters per- taining to the church, he is clearly bound by the rules and regulations of the church, unless the same are clearly illegal. Venable v Ebenezer Bapt. Ch. 25 Kan. 177.

Service. "The church is the place proper for the celebra- tion of divine service, and at common law the church is open to all parishioners. The exercise of the functions of a min- ister or preacher of the Holy AVord of God contemplates the presence of a congregation at the services celebrated by

CHURCH 117

him." Attorney General v Hall, 2 Irish Re. 291, 309 (1896). Sewing Circle. In First Baptist Church in Franklindale

V Pryor, 23 Hun (N. Y.) 271, the society was held entitled to recover a fund raised by a sewing circle connected with the church. The circle had a treasurer who received the money. The court said the money was obviously paid for the use of the church which could adopt and ratify the action of the sewing circle in raising the money. Such a fund became the property of the church.

Temporalities Defined. These are understood to be the revenues, lands, and tenements, to be managed according to the character and the by-laws; in other words, secular pos- sessions with which a church may be endowed. St. Patricks

V Abst, 76 111. 252.

Territorial Limitation. When a parish or religious society is, by its constitution, limited to any place, the church of such society, by whatever terms designated, is equally lim- ited, being necessarily associated and indissolubly connected with such religious society, and incapable of subsisting independently of it. Stebbins v Jennings, 10 Pick. (Mass.) 171.

Union. There must be identity of doctrine and faith before a majoritj^ of a church organization can take the church property into another church. Boyles v Roberts, 222 Mo. 613.

Virginia, cannot be Incorporated. Churches in Virginia are not incorporated, and under the policy of the law of that State cannot be. The property they are permitted to hold, and its use, is fixed by statute. Church trustees are crea- tures of statute, and their powers are limited by the law that authorizes their appointment. Globe Furniture Company

V Trustees, Jerusalem Baptist Church, 103 Va. 559.

Who Constitute. In whatever aspect a church, for some purposes, may be considered, it appears to be clear from the constitution and laws of the land and from judicial decisions, that the body of communicants gathered into

118 THE CIVIL LAW AND THE CHUECH

church order, according to established usages, iu any town, parish, precinct, or religious society, establislied according to law, and actually connected and associated therewith for religious purposes, for the time being, is to be regarded as the church of svich society, as to all questions of property depending upon that relation, Stebbins v Jennings, 10 Pick. (Mass.) 171.

CHURCH EDIFICE

Defined, 119.

Not subject to execution, 119.

When may be closed, 119.

Defined. A church edifice is understood to be a building in which people assemble for the worship of God, and for the administration of such offices and services as pertain to lluit worship. Ke St. Louis Inst, of Christian Science, 27 Mo. A})]). (k>;>.

Not Subject to Execution. A meetinghouse is not liable to be taken in execution for the debts of such society. Bigelow V Congregational Society, Middletown, 11 Vt. 283.

When May Be Closed. If the church is held by the associa- tion as its absolute ])roperty, without any trust whatever, it may be closed by a legal vote of the association, passed by a majority of the members present at a legal meeting called for the purpose, notwithstanding the fact that a minority of the members present desire to use the church, and vote against closing it. But if a trust for the members of the society attaches to the i)roperty in the hands of the society, the latter cannot close the church against the wishes of a minority of the society who desire to continue to worship there in accordance with the terms of the trust. Canadian Religious Association v l*armenter, 180 Mass. 415.

119

CHURCH OF ENGLAND

Clergyman, regular defined, 120.

Clergyman, neglect of duty, 120.

Communion, 120.

Established Church, 121.

Evil Liver, 122.

Maryland, 122.

Minister cannot i-efuse to bury child of a dissenter, 122.

Not a corporation, 122.

Quaker not bound to accept office of churchwarden, 123.

Sacrament, who may take, 123.

Clergyman, Regular Defined. A regular clergyman means a person who can officiate without being guilty of irreg- ularity. A clergyman of the Church of England, who had been inhibited by the Bishop of London from performing divine service in that diocese was held incompetent to per- form divine service in a chapel under lease, requiring such service to be performed by a regular clergyman of the Church of England. Foundling Hospital v Garrett, 47 L. T. (Eng.) 230.

Clergyman, Neglect of Duty. A clergyman may be prose- cuted by any one for neglect of clerical duty. Argar v Holdsworth, 2 Lee (Eng.) 224.

Communion. In a suit under the church discipline act, against the respondent, for having on the 4th of October, 1874, repelled from the holy communion without lawful cause the appellant, a parishioner, who had presented him- self after due notice, the respondent answered that he did so for and on account of the writing and publishing by the appellant of certain letters addressed to the respondent, and of his causing to be printed and published a certain volume of selections from the Old and New Testaments, and for no other cause or reason whatever. It appeared that one

120

CHURCH OF ENGLAND 121

of the letters protested against the irreligious tendency of a sermou, uot produced, which had been preached by the respondent, and that another of the letters, a private and solicited communication, explained that the construction which he, the apijellant, placed upon certain parts of the Bible not being the same as the construction which, in his opinion, was generally placed thereon, he omitted such parts from the said volume and from his family reading. It further appeared that the appellant had published a book of family prayers, compiled entirely from the Liturgy of the Church of England, and that he had stated that he valued the Book of Common I'rayer as "only second to the Bible itself." It further appeared that the appellant was of irre- proachable moral character.

It was held that no lawful cause of expulsion had been shown; that tlie a])pellant was not "an open and notorious evil liver" within the meaning of the rubric; neither was he a "Common and Notorious depraver of the Book of Common Prayer" within the meaning of the 27Th Canon. Jenkins v Cook, L. R. 1 Probate Div. (Eng.) 80.

Established Church. "In a country in which an Estab- lished Church exists the law recognizes the essential doc- trines of that church as being true; and when, according to those doctrines, a benefit, either spiritual or temporal, re- sults to the general body of the faithful, from the offering up of prayers, or the celebration of religious services, such spir- itual or temporal benefit would be recognized by the law as such a public benefit as would bring within a statute a trust to promote the service of prayers of the Established Church, even if such prayers and such services were capable of being offered up in private. But the case of a religion, the exercise of which is lawful, but which is not established by law, such as the Roman Catliolic religion, differs from that last men- tioned in this, that its doctrines, although capable of being recognized by the law as those which the members of that particular faith believe to be true, cannot be recognized, as can the doctrines of an Established Church, as being in

122 THE CIVIL LAW AND THE CHURCH

fact true; and therefore, the argument that the services of such a religion, offered up otherwise than in j^ublic, are a benefit to the public, lacks one of the essential elements which is present in the case of a similar trust as to an estab- lished religion ; and, therefore, the conclusion that there may be, in such a trust, a public benefit recognizable by the law, fails." Attorney General v Hall, 2 Irish R. 291, 309 (1890).

Evil Liver. A man who marries his deceased wife's sister is not an "evil liver" within the meaning of the rubric pre- fixed to the service of the holy communion in the Book of Common Prayer, so as to justify his repulsion from the holy communion. Banister v Thompson, 24 T. L. R. (Eng.) 841, construing the deceased wife's sister marriage act of 1907.

Maryland. By the Maryland act of 1702, chap. 1, the Church of England, with its rites, ceremonies, and sacra- ments, was declared to be the established church of the province; and provision was made for the support of min- isters. The Bishop of London had ecclesiastical jurisdic- tion in Maryland. The establishment was terminated by the State constitution adopted at the Revolution. Bartlett V Hipkins, 70 Md. 5.

Minister Cannot Refuse to Bury Child of a Dissenter. A minister of the Established Church cannot refuse to bury a child of a dissenter. Kemp v Wickes, 3 Phill. (Eng.) 270.

Not a Corporation. At common law the Church of P]ng- land, in its aggregate description, is not deemed a corpora- tion. It is indeed one of the great estates of the realm; but is not more on that account a corporation, than the nobility in their collective capacity. The i)hrase, "the Church of England," so familiar in our laws and judicial treatises, is nothing more than a compendious expression for the religious establishment of the realm, considered in the aggregate under the sui)erintendance of its spiritual head. In this sense the Church of England is said to have peculiar rights and privileges, not as a corporation, but as an ecclesiastical institution under the patronage of the

CHURCH OF ENGLAND 12;J

state. Town of Tawlet v Clark aud others, 0 Craucli (U. S.) 291.

Quaker Not Bound to Accept Office of Churchwarden. The court declined to compel a Quaker to accept the oliice of churchwarden to which he had been elected. Adey v Theo- bald, 1 Curteis (Eng.) 373.

Sacrament, Who May Take. By the discipline of this church "no person can, at the same time, be a regular com- municant in separate parishes under the care of different independent rectors. The canons of the church particu- larly direct that the sacrament shall not be administered by the rector of one parish to the parishioners of another, without the license of the rector of the latter parish, except to travelers, to persons in danger of death, or in cases of necessity." To be regular, the parishioners should commu- nicate at least thrice in every year. The only legal evidence that the parishioner is a communicant is his receiving the sacrament in the parish church, by and with the consent of the priest, and the rector cannot take notice of the receipt of the communion in other parishes. Groesbeeck v Duns- comb, 41 How. Pr. (N. Y.) 302; See also clergyman.

CHURCH OF GOD AT HARRISBURG

History and form of government, 124.

History and Form of Government. In the year 1825 a con- gregation of worshipers was formed in Harrisburg, calling itself the Church of God at Harrisburg, and professing to have no other creed than the Bible, with an independent church government. This denomination continued to flour- ish, and spread over the State, forming many congregations, having no connection with each other until the year 1830, when a confederation took place, for the mere purpose of cooperation ; by which an eldership was formed which was soon after known as the East Pennsylvania Elder- ship ; another was established in the western part of the State about the same time. This East Pennsylvania Elder- ship adopted a constitution about the year 1832, but its nature or character cannot be precisely ascertained, as no copy thereof was presented to the court. The consti- tution given in evidence, which was an amendment of the former, was adopted in October, 1852, By the year 1815 the denomination had extended over many of the West- ern States, when it was resolved to establish a general elder- ship, which was to be composed of delegates from all the elderships, who were to meet once in three years. A con- stitution for its government was adopted, and this general eldership was invested with a degree of control over all the churches; among other things, with the licensing of preach- ers, and certain appellate powers from the inferior elder- ships. The locating and removal of pastors, and arranging the limits and boundaries of congregations, was vested in the local elderships, which acted through its committees; it also seems to have been invested with power to suspend,

124

CHUKCH OF GOD AT HARKISBURG 125

and probably to expel, a clergyman for cause, as also the lay members or elders and deacons of the congregations. On the 21st of April, 1857, the East Pennsylvania Eldership was incorporated by an Act of Assembly, but no special or particular powers were conferred by the charter in regard to the government of the church. It is provided in the con- stitution of the general eldership that no person shall be an accredited minister in the Church of God without a regular license, and all the preachers in good standing shall have their licenses renewed annually by the eldership of which they are members. The constitution of the East Pennsylvania Eldership provides for ministers making an annual report, which if approved, their licenses shall be renewed. The same instrument gives a committee all the power of the eldership, except to expel or change preachers without cause. It may try, and suspend a preacher, change appointments or remove him, provided it is done through the application of a preacher, or a church acting by its elders. The stationing committee is authorized to locate the ministers by the vote of a majority, in which case the com- mittee are to take it back and report another; and all per- sons asking for an appointment as pastor are required to take the one allotted to them under penalty of not receiving one for a year. Winebrenner v Colder, 7 Wright (Pa.) 24-1. John Winebrenner was the founder of the sect, and he wrote a history and exposition of the doctrine and order of the church.

CHURCH WARDENS

Account, spiritual court cannot settle, 126. Business powers limited, 126. Ecclesiastical powers, 126. Moral guardians, 126.

Account, Spiritual Court Cannot Settle. A spiritual convt has no jurisdiction to settle churchwarden's account. Adams v Rusch, 2 Str. (Eng.) 1133.

Business Powers Limited. A churchwarden has no author- ity to pledge credit of his co-churchwardens for repairs to the church. If he orders such repairs witliout the knowl- edge of the other churchwardens, he is liable individually. North waite v Bennett, 2 Crompt. & Meesous Rep. (Eng.) 316.

Ecclesiastical Powers. The Legislature has no power to authorize the wardens to interfere in matters of mere church discipline and doctrine. It could not constitutionally de- clare what shall constitute a curate in the catholic accepta- tion of the word, without interfering in matters of religious faith and worship, and taking the first step toward a church establishment by law. Wardens of the Church of St. Louis V Blanc, 8 Rob. (La.) 52.

Moral Guardians. Churchwardens are, to a certain degree, the guardians of the moral character and public decency of their respective parishes. Griffiths v Reed, 1 Hagg. Ecc. Re. (Eng.) 79.

126

CIVIL COURTS

Charitable use, 128.

Church arbitration conclusive, 128.

Church judicatories, when action final, 128.

Church judicatories, hmits of judicial review, 133.

Civil rights only, 138.

Consolidation of churches, 141.

Constitution of church, 142.

Creed, 142.

Criterion, 142.

Cumberland Presbyterian Church, 143.

Diversion of chui-ch funds, 144.

Diversion of property, 144.

Doctrine, 145.

Dowie's successor, 148.

Ecclesiastical questions, 148.

Elections, 149.

Expulsion of members, 149.

Friends, form of government, 151.

Heresy, 151. /

Judicial notice, 152. /

Jurisdiction, true rule, 152. /

Jurisdiction, 153. ^

Members, status, 154.

Minister, 155.

Noninterference, 156.

Officers, powers, 156.

Property rights, tlu'ee classes, 157.

Property rights, 157.

Protestant Episcopal vestry, 158.

Quakers, who are overseers, 158,

Religious questions, 158.

Resulting trust, beneficiary, 102.

Salary, payment cannot be enforced, 162.

Schism, 162.

Separation, 163.

Temporalities, 163.

Trusts, 163.

127

128 THE CIVIL LAW AND THE CHURCH

United Brethren in Clirist, 165. Worship and Doctrine, 166.

Charitable Use. It is not the province of the court to determine whether ecclesiastical duties enjoined under a charitable foundation are properly performed. That is a matter of which the ecclesiastical autliorities will take cog- nizance. But in settling a scheme for the regulation of such a charity, the court must, at least, take care that the person by whom the ecclesiastical duties ought to be per- formed is in such a situation that he may perform them. Attorney General v Smithies, 1 Keen, (Eng.) 289.

Church Arbitration Conclusive. A minister and his parish submitted a controversy to an ecclesiastical counsel. The issue involved charges of immorality against the minister. These charges were not sustained by the counsel. After- ward the minister brought an action against the parish for a portion of his salary and the parish sought by a bill of discovery to reopen and reexamine the issues submitted to the ecclesiastical counsel, but it was held that the award of the counsel was conclusive and could not be made the subject of an inquiry in the civil courts. Proprietors v Pierpont, 48 Mass. 496.

Church Judicatories, when Action Final. When it appears that the whole controversy had once been submitted by the parties to the ecclesiastical tribunal which the church itself has organized for that purpose, the civil courts are justified in refusing to proceed any furtlier. The decision of the church judicatory should then be treated as a bar to the action and a good defense in law. A priest or min- ister of any church, by assuming that relation, necessarily subjects his conduct in that capacity to the laws and cus- toms of the ecclesiastical body from which he derives his office, and in whose name he exercises his functions; and when he submits questions concerning his rights, duties, and obligations as such priest or minister to the proper church judicatory, and they have been heard and decided

CIVIL COURTS 129

accordiug to the prescribed forms, such decision is binding upon him and will be respected by civil courts. He can always insist, of course, that his civil or property rights as an individual or citizen shall be determined according to the law of the land, but his relations, rights, and obligations arising from his position as a member of some religious body may be determined according to the laws and proce- dure enacted by that body for such purpose. Baxter v McDonnell, 155 N. Y. 83.

Where a local church organization is a member of a gen- eral organization, having i-ules for the government and con- duct of all its adherents, congregations, and officers, the judgments of the general organization, through its govern- ing authority, so long as they relate exclusively to church affairs and church cases, are binding upon such local organ- izations, and will not be reexamined by the courts. Bon- acum v Harrington, 05 Neb. 831.

In all ecclesiastical matters the courts are bound by the decision of the ecclesiastical tribunal. Trinity Methodist Episcopal Church. Norwich v Harris, 73 Conn. 216.

Courts will not review jndgments or acts of the govern- ing authorities of a religious organization with reference to its internal affairs, for tlie i)urpose of ascertaining their regularity or accordance with the discipline and usages of such organization. It can make no difference whether the governing authority of a religious denomination is confided to one man or to a synod or conference, nor whether the mode of procedure permitted to such person is in accord with the ordinary course of investigations or trials among laymen. Each religious organization must determine its own polity and be the judge of its own laws. Bonacum v Harrington, 65 Neb. 831.

It is well-settled law that the civil courts have and will exercise no jurisdiction to review the action of ecclesiastical bodies in matters relating purely to the faith and discipline of the church. But the members of these bodies have tlie same right as those of other voluntary associations of per-

130 THE C1\IJ. l.AW AND THE CHUKCH

sons formed tor charitable and beuevoleiit purposes, to seek the aid of civil courts to prevent a diversion of its property from the uses and trusts to which it was devoted, and to secure to the members the enjoyment of the rights of mem- bership in respect to the use of the property. It, therefore, sometimes becomes necessary for the civil courts, for the purpose of determining property rights of members, to pass upon questions which are ecclesiastical in their nature. Fulbright v Higgenbotham, 133 Mo. G68. See Marie M. E. Church of Chicago v Trinity M. E. Church of Chicago, 253 111. 21.

The civil courts will not review or revise the proceedings or judgment of church tribunals, constituted by the organic laws of the church organization, where they involve solely questions of church discipline or infractions of the laws and ordinances enacted by its ruling body for the government of its officers and members. But where a church tribunal of original jurisdiction proceeds to try and discipline or expel a member of the society, and the member proceeded against claims that the presiding judge is disqualified from acting on account of a challenge interposed before the com- mencement of the trial, and where such challenge has been disregarded and an appeal has been taken by the accused to an appellate church tribunal, the civil courts have jurisdic- tion to enjoin the enforcement of a sentence pronounced against the accused until the appellate ecclesiastical tri- bunal has disposed of the appeal. Bonacum v Murphy, 71 Neb. 463. But see a contrary view on a rehearing of this case reported in 72 Neb. 487, where the injunction was denied and the former decision reversed but without affect- ing the rule stated in the early part of the foregoing note. This rule was reaffirmed on the rehearing.

Courts of this State will not review the process or pro- ceedings of church tribunals for the purpose of deciding whether they are regular or within their ecclesiastical jurisdiction, nor will they attempt to decide upon the membership or spiritual status of persons belonging or

CIVIL COURTS 131

claiming to belong to religious societies. Bonacum v Murphy, 71 ^eb. 187.

Whenever the questions of discipline or of faith, or eccle- siastical rule, custom, or law, have been decided by the high- est of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them in their application to the case before them. I'ounder v Ashe, 44 Nebr. Re. 072, followed in Powers v Bundy, 45 Neb. 208.

The utter impolicy of the civil courts attempting to inter- fere in determining matters which have been passed upon in church tribunals, arising out of ecclesiastical concerns, is apparent. It would involve them in difficulties and conten- tions, and impose upon them duties which are not in har- mony with their proper functions. Before a court could give an enlightened judgment it would necessarily have to explore the whole range of the doctrine and discipline of the given church, and survey the vast field of the Divine Word. In matters of litigation where the title to property comes in contest, the rule would be different, as it is the imperative duty of the courts to adjudicate upon the civil rights of all parties. Happily, in this country, there is a total discon- nection between the church and state, and neither will inter- fere with the other when acting within their appropriate spheres. State of Missouri ex rel Watson v Farris et al, 45 Mo. 183. The rule as to civil rights stated in the foregoing note was applied in the same case to the election of trustees of Lindenwood Female College, bj^ whose charter the trus- tees were to be chosen by the St. Louis Presbytery. This presbytery having been dissolved for violation of a decree of the General Assembly, prohibiting the enrollment of ministers who joined in the movement represented by the so-called "Declaration and Testiraonj'," prepared in opposi- tion to the deliverances of the General Assembly on certain political questions. It was held in this case that trustees elected by such dissolved presbj^ery acquired no title to the office, and that the trustees chosen by a body composed of

132 THE CIVIL LAW AND THE CHUKCH

members of the presbytery who adhered to the General Assembly, were entitled to the oflSce.

"Where rules and regulations are made by the proper church functionaries, and such rules are authorized by the laws of the order, they will be enforced by the courts when not in conflict witli some law bearing upon the subject con- tained in the rules." Alexander v Bowers, 79 S. W. (Tex.) 34^2,

A civil court will not review the proceedings and findings of an ecclesiastical tribunal. Irvine v Elliott, 206 Pa. St. 152; see also Windham v Ulmer, 59 So. (Miss.) 810 (Baptist Church).

The civil courts will not enter into the consideration of church doctrine or church discipline, nor will they inquire into the regularity of the proceedings of the church judi- catories having cognizance of such matters. To assume such jurisdiction would not only be an attempt by the civil courts to deal with matters of which they have no special knowledge, but it would be inconsistent with com- plete religious liberty, untrammeled by State authority'. On this principle the action of church authorities in the deposition of pastors, and the expulsion of members, is final. Where, however, a church controversy necessarily involves rights growing out of a contract recognized by the civil law, or the right to the possession of property, civil tribunals cannot avoid adjudicating tliese rights, under the law of the land, having in view nevertheless the implied obligations imputed to those parties to the controversy who have voluntarily submitted tliemselves to the authority of the church by connecting themselves with it. Morris Street Baptist Church v Dart, 67 S. Car. 338.

''Whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law, have been decided by the highest church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final and as binding on them in their application to the case before them." Trustees of Trinity M. E. Chu. v Harris, 73 Conn. 216.

CIVIL COURTS 133

Civil Courts exercise no ecclesiastical jurisdiction. It accejjts what the highest ecclesiastical authority in each church promulgates as the faith and practice of that church. But the property rights of all churches are within the pro- tection of the court. Mt. Helm Baptist Church v. Jones, 70 Miss. 488.

This court ( chancery j does not sit as an ecclesiastical tribunal, or determine equality in the distribution of the alms or aids of the church or of its members. It has no jurisdiction over such matters. It will not review in any manner the action of the authorities of the church, in respect to subjects within the exclusive jurisdiction of the church or its appointed agencies. Stewart v Lee, 5 Del. Ch. 573.

Church Judicatories, Limits of Judicial Review. Civil courts will not revise the decisions of churches or religious asso- ciations upon ecclesiastical matters, but they will interfere with such associations when rights of property or civil rights are involved. And when controversies of which the civil courts have jurisdiction arise in such bodies the courts will inquire as to the purpose for which they were instituted, and the rule bj^ which they are governed, and so far as prac- ticable, they will be given effect. Park v Chaplin, 96 la. 55.

In the principal (Connitt) case the court expressed the opinion that in all cases of doubt, when there is not clearly absence of jurisdiction, the decisions of Church judicatories as to their own jurisdiction in ecclesiastical matters should receive great weight. Connitt v Ref. Protestant Dutch Church, 54 N. Y. 551.

The Civil Courts cannot review the decisions of ecclesias- tical judicatories in matters properly within their prov- ince under the constitution and laws or regulations of the church. When property rights are involved in the decisions of the church judicatories, such decisions may be reviewed by the civil courts, when properly brought before them. Landis v Campbell, 79 Mo. 433.

"WTiile the civil tribunal cannot disturb the action of

134 THE CIVIL LAW AND THE CHURCH

church courts upon matters purely religious, still civil tri- bunals, as a matter of right and justice, based upon prin- ciple and authority can interfere, and rejudge the judgments of spiritual courts where property belonging to church organizations and dedicated for religious purposes had been taken from its members by the mere arbitrary will of those constituting the judicatures of such organizations without regard to any of the regulations or constitutional restraint by which, according to the principles and objects of such organizations, it was intended that such property rights should be protected; that those having control of church property under a particular church organization have no power to transfer this property to a different sect or de- nomination, or divert it from the purposes for which it was dedicated, when in violation of the fundamental law upon which the organization is based. Kinkead v McKee, 9 Bush (Ky.) 535.

Where no right of property or civil right is invaded all matters of a religious or ecclesiastical nature are left en- tirely to the jurisdiction of the ecclesiastical judicatories, and the courts will not interfere with the decisions of the church tribunal. All questions of faith, doctrines, and dis- cipline belong exclusively to the church and its spiritual officers, and the courts will neither review their determina- tion on the facts nor their decision on the question of juris- diction. Waller v Howell, 20 Misc. Re. (N. Y.) 237.

The ecclesiastical judicatories having had jurisdiction in the case, the civil courts will not inquire whether they have proceeded according to the laws and usages of their church, nor whether they have decided the matter correctly. It is the settled law of this country, repeatedly announced by the most learned judges and highest courts, that in such cases the civil courts must take the decisions of the ecclesiastical courts as final and binding upon the parties. Counitt v Ref. Protestant Dutch Church, 54 N. Y. 551.

Wliile the courts of this State have no ecclesiastical juris- diction whatever, yet they are charged Avilh the duty, and

CIVIL COURTS 135

clothed with the jurisdiction of protecting property rights of religious societies, corporations, and churches, as well as that of individuals, and thereby of necessity, they may be conii)elled to decide a question of ecclesiastical law when that law becomes a fact upon which property rights depend. Smith et al v Pedigo et al 145 Ind. 361.

^'It is not the province of temporal courts to assume ecclesiastical jurisdiction. The decisions of proper church tribunals must be accepted as conclusive, and are not sub- ject to review." Ai)])lying this rule, it was held in Auracher V Yerger, 00 Iowa 558, tliat the appointment of a place for the meetiug in 1891 of the General Conference of the Evan- gelical Association of North America in accordance with the action taken by the General Conference of 1887, referring the question of the place to the board of publication, was merely an ecclesiastical nmtter which involved no property or civil rights, and over which the highest judicatory of the church has supreme control.

The civil courts have jurisdiction only in case of a perver- sion of trust ; on matters of form and discipline, the decision of the supreme authority of the church is binding on the courts. Griggs v Middaugh, 10 Ohio Dec. 643.

It is the settled law of this country that the judgments of the judicial tribunals of church organizations upon matters of faith and discipline, and the general polity and tenets of the church are binding upon the civil courts. Civil courts will not interfere in these controversies, even in cases where rights of property are involved, except in the case of a clear and palpable violation of trust. The question here involved is one of ownership of ])roperty. These proceedings are instituted to recover possession and control of that property. In this class of cases the conclusive effect of church authority, acting within the scope of its powers, is fully recognized by all the cases, and it is as well settled that civil courts will not review the decisions of ecclesias- tical judicatories upon the merits ; but the proposition that the judgments of church judicatories as to their own powers

136 THE CIVIL LAW AND THE CHURCH

or jurisdiction, or the lawfulness of their methods, are con- clusive, is not sustained by reason or the weight of au- thority. Bear v Heasley, 98 Mich. 279.

Civil courts in adjudicating upon civil and property rights in those classes of church contentions to which this case belongs are bound by the adjudications of the ecclesiastical court as to which of the contending factions in the church is the true representative of the church and which faction is outside of and beyond the pale of the church, and that the civil courts will decree the title of church property to belong to the faction in the church which the ecclesiastical courts have held to be the true representative of the church. Pres- byterian Church V Cumberland Church, 245 111. 74.

Courts of law will not interpose to control the proceed- ings of ecclesiastical bodies in spiritual matters which do not afifect the civil rights of individuals, nor will they inter- fere with the action of the constituted authorities of reli- gious societies in matters purely discretionary. Jennings v Scarborough, 56 N. J. LaAv, 401.

The rule of action which should govern the civil courts, founded in the broad and sound view of the relations of church and state, under our system of laAvs, and supported by a preponderating weight of judicial authority, is that whenever the questions of discipline or of faith or ecclesias- tical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final and as binding on them. Watson v Jones, 13 Wall. 679-726, cited in Brundage v Deardorf, 92 Fed. 214, aff'g 55 Fed. 839.

If the sentence of an ecclesiastical court in a suit for administration turns upon the question of which of the parties is next of kin to the intestate, such sentence is con- clusive upon that question in a subsequent suit in the court of chancery between the same parties for distribution. Barrs v Jackson, 1 Phillips Ch. (Eng. ) 582, citing for a simi- lar state of facts, Bouchier v Taylor, 4 B. P. C. (Eng.) 708.

CIVIL COURTS 137

It belongs not to the civil power to enter into or review the proceedings of a spiritual court. The judgments of religious associations bearing upon their own members are not examinable here. In this country no ecclesiastical body has any power to enforce its decisions by temporal sanc- tions. Such decisions are in this sense advisory — they are addressed to the conscience of those who have voluntarily subjected themselves to their spiritual sway, and, except when civil rights are dependent upon them, can have no influence beyond the tribunal from which they emanate. Where a civil right depends upon an ecclesiastical matter, it is the civil court, and not the ecclesiastical, which is to decide. The civil tribunal tries the civil rights, and no more, taking the ecclesiastical decisions out of which the right arises as it finds them. Every competent tribunal must of necessity regulate its own formulas. Harmon v Dreher, 1 Speer'sEq. (S. C.) 87.

That civil courts will not undertake to exercise any eccle- siastical authority, or to review proceedings of church courts upon questions which involve matters of discipline or the application or enforcement of their own laws, is well settled in this country. Clark v Brown, 108 S. W. (Texas) 421.

Civil courts will not set aside the decrees and orders of ecclesiastical courts, involving the construction of their own articles of faith or discipline. Fuchs v Meisel, 102 Mich. 357.

In New York the legal or temporal tribunals do not pro- fess to have any jurisdiction whatever over the church as such, except so far as necessary to protect the civil rights of others and to preserve the public peace. All questions relat- ing to faith and practice of the church and its members belong to the church judicatories to which they have volun- tarily subjected themselves. It must be a plain and pal- pable abuse of power Avhich will induce a court to interfere as to any dispute growing out of religious or sectarian con- troversies. A civil judge should not assume the responsi- bility of deciding upon the correctness of the religious

138 THE CIVIL LAW AND THE CHUKCH

tenets of others, either in matters of faith or otherwise. Baptist Church, Hartford v Witherell, 3 Paige Ch. (N. Y.) 296.

Civil tribunals will interfere in matters connected with disputes or contests arising out of things ecclesiastical, only, however, in so far as it is necessary to ascertain if the governing body has exceeded its power, or, in otlier words, has acted within the scope of its authority. Batterson v Thompson, 8 riiila. (Ta.) 251.

Differences of opinion as to local church management arose in the society, resulting in the formation of two parties, one of which adhered to the pastor in office who had been chosen to this position, and put in possession of the property. A question as to the local situation was pre- sented to the presbytery, from which it ap])eared that the presbytery recommended that the j)astoral relation be sus- pended, and that, in view of the differences in the local society, his longer continuance in the office of pastor was unwise. He was reelected to the office of pastor, as a stated supply for two years, but it was claimed that this meeting was irregular and void, for the reason that several persons were denied the privilege of voting. The pastor's party pro- tested against the action of the presbytery in recommending the discontinuance of his service, and they withdrew from the presbytery. The presbytery thereupon declared that this withdrawal amounted to a secession of this party, and that the remaining members constituted the true local church. The civil courts declined to entertain jurisdiction to determine this question on the ground that the ecclesias- tical body having jurisdiction must be presumed to have decided correctly, and the question could not be reviewed by civil tribunals. Gaff v Greer, 88 Ind. 122.

Civil Rights Only. Civil courts in this country have no ecclesiastical jurisdiction. They cannot revise nor question ordinary acts of church discipline, and can only interfere in church controversies where civil rights or the rights of prop- erty are involved. Where a civil right depends upon some

CIVIL COURTS itl

matter pertaining to ecclesiastical affairs, the civil tribun;^ tries the civil right, and nothing more, taking the ecclesiats tical decisions, out of which the civil right has arisen, as it finds them, and accepting those decisions as matters adjudicated by another jurisdiction. The civil courts act upon the theory that the ecclesiastical courts are the best judges of merely ecclesiastical questions, and of all matters which concern the doctrines and discipline of the respective religious denominations to which they belong. White Lick Quart. Meeting, etc., v White Lick Quart. Meet, etc., 89 Ind. 136. See also Lamb v Cain, 129 Ind. 486.

While the courts will decide nothing affecting the ecclesi- astical rights of a church, yet its civil rights to property are subjects for their examination, to be determined in conform- ity to the laws of the land, and the principles of equity. Ferraria v Vasconcellos, 23 111. 456, 31 111. 1.

Prickett v Wells, 117 Mo. 502 involved several questions arising from a division of the society, resulting in a claim of title and possession of two parties. The court asserted the general rule that civil courts will not interfere with the affairs of a religious society where only questions of dis- cipline are involved, and which did not include rights of property.

Over the church as such, legal tribunals do not have, or profess to have, any jurisdiction whatever, except to pro- tect the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatures to which they have voluntarily subjected themselves, but the civil courts will interfere with churches and religious asso- ciations and determine upon questions of faith and practice of a church when rights of property and civil rights are involved. Grimes Executors v Harmon, and others 35 Ind, 198.

The only concern of courts with the differences of creed or belief within or between religious organizations is when some property or contract rights are involved and demand

13!b THE CIVIL LAW AND THE CHIRCH

tQ'otectioii. Maiieu v Evangelical Creed Cougregatiou, Mil- I^aiikee, 132 Wis. 650.

The civil courts will interfere with churches and religious associations when rights of property or civil rights are involved. But they will not revise the decisions of such associations upon ecclesiastical matters, merely to ascertain their jui-isdiction. Chase v Cheney, 58 III. 509.

The only ground upon which the supreme court can exer- cise any jurisdiction, to restrain the bishop from prosecut- ing a sentence of an ecclesiastical tribunal against a clergy- man, by pronouncing judgment of displacement from the ministry, is that the threatened action of the defendant may affect the civil rights of the plaintiff, for the protection of which he has a proper recourse to the civil courts, namely, exemption from taxation, and the performance of certain civil duties. Conceding that this is sufficient ground for the action of the court, the only cognizance which it will take of the case is to inquire whether there is a want of jurisdiction in the defendant to do the act which is sought to be restrained. The court will not review the exercise of any discretion on the part of the bishop, nor inquire whether his judgment, or that of the subordinate ecclesiastical tri- bunal, is justified by the truth of the case. It will only inquire whether the bishop has the power to act; not whether he is acting rightly. Walker v W^ainright, 16 Barb. (N. Y.) 486.

The right of civil courts to interfere in ecclesiastical matters is considerably limited. The general rule is that such right exists only where there are conflicting claims to church property, or funds or the use of them, where civil rights are involved. Rector St. James Church v Hunting- ton, 82 Hun (N. Y.) 31.

The civil courts will not revise the decisions of churches or religious associations upon ecclesiastical matters, but they will interfere with such associations when rights of property or civil rights are involved. Bird v St. Mark's Church, Waterloo, 62 la. 567.

CIVIL COURTS 141

See Westminster l*resl>yterian Churcli of W. 23rd St. v Fiudley, 14: Misc. (N. Y.) 173, for a statement of the rule that civil courts will not interfere in ecclesiastical matters unless there are conflicting claims to church property or funds, or the use of them, or where civil rights are involved.

"Courts of justice in this State (Louisiana) sit to enforce civil obligations only, and never attempt to exercise juris- diction over those of a spiritual character." African Meth- odist Episcopal Church v Clark, 25 La. Ann. 282.

Secular courts are powerless to pass upon questions of difference between contending factions of a church congrega- tion, except in so far as property rights are involved. Chris- tian Church of Sand Creek v Church of Christ of Sand Creek, 219 111. 503.

Religious societies are regarded by the civil authority as other voluntarj' associations, the individual members and sei)arate bodies of which will be held to be bound by the laws, usages, customs, and principles which are accepted among them, upon the assumption that in becoming parts of such organisms they assented to be bound by those laws, usages, and customs, as so many stipulations of a contract between them. It is onh^ by so regarding the association of individuals or bodies for religious purj^oses that the civil authority in this country can interfere at all, and then it can interfere onlj' so far as may be necessary to decide upon and protect rights of pro[)erty dependent upon the contract between the parties. And when that contract has been con- strued bj' the parties the courts will, as in other cases, fol- low their own construction. First Presbyterian Church, Louisville, v Wilson, 14 Bush. (Ky.) 252.

The judicial power is reluctant to interfere in matters of religious or ecclesiastical arrangement, and will do so only when rights of property or civil rights are involved. Burke V Rector, etc., Trinity Church, 63 Misc. (N, Y.) 43, sustain- ing the action of the vestry of Trinity Church, New Y^ork, in closing St. John's Chapel.

Consolidation of Churches. In Trustees of Trinity M. E.

142 THE CTVTL LAW AND THE OHUKCH

Church V Harris, 73 Conn. 216, it was held that the action of Bishop Walden consolidating three Metliodist Episcopal churches in Norwich, Conn., nnder a new name was a matter of ecclesiastical law and practice and the bishop's decision was binding on the civil courts of Connecticut.

Constitution of Church. A church constitution generally acquiesced in by the official bodies and members as the supreme law of the church for many years, during which no legal steps were taken to determine its validity, will not be declared void by a court, even upon clear proof of irregu- larity in its adoption, except when justice, morality, or public policy requires it. All questions of doctrine, prac- tice, and jurisdiction within a church must be determined by the church judicature, and the secular courts of this State have no authority to adjudicate upon them. The decision of the highest legislative and judicial body of a church that an old confession of faith and constitution had been superseded by a new one is conclusive upon the civil courts. Kuns v llobertson, 154 111. 894.

"I cannot recognize any constitution, laws, ordinances, or sentences of any ecclesiastical tribunal, or of any voluntary society as having any efficacy or power over the civil rights, immunities, or contracts of individuals." Smith v Nelson, 18 Vt. 511.

Acquiescence in and use of the constitution of a church for more than fifty years is conclusive on the civil courts as to its validity. Philomath College v Wyatt, 27 Or. 390.

Creed. It is not within the province of any department of the government to settle differences in creeds, and the courts ought not to arrogate to themselves the power to restrain or control the free exercise of anj^ so long as this shall be harmless. It is not for them to determine what ought or ought not to be an essential element of religious faith. State of Iowa v Amana Society, 132 la. 304.

Criterion. Before civil authority the question is, not which party has the authoritj^, but whidi is right according to the law by which the body has hitherto consented to be

CIVIL COURTS 143

governed. The majority may direct and coutrol consisteutly with the particular and general laws of tlie organization, but not in violation of them. Sutter v Ref. Dutch Ch. G Wright (Pa.) 503.

Cumberland Presbyterian Church. The General Assembly of the Cumberland Presbyterian Church had power, upon the approval of two thirds of the presbyteries represented in it, to change the Confession of Faith. An action having been taken whereby it was declared that the change made in the Confession of Faith of the mother church (I'resbyte- rian Church of United States) removed all obstacles to reunion and union of the two bodies, that decision is final ui)on the civil courts. The General Assend)ly of the Cumber- land Church had authority to determine from the provisions of the constitution Avhether it had the power to enter into the union with the Presbyterian Church, and having decided that it had such authority, and having acted upon that decision, the civil courts have no power to review that action. The General Assembly, the highest court of the church to which the decision of these questions is committed, decided that all practical differences between the articles of faith of the two churches had been eliminated, and there existed no reason why the union should not be effected. That court had exclusive jurisdiction of the question, and having decided it, there is no ground for action by this court. The court stated the same rule as to the admission of Negroes to participate in certain proceedings in courts of the I'resbyterian Church, which practice was not per- mitted by the (Cumberland Church. This question could not be reviewed by the civil courts. Brown v Clark, 102 Texas ^2:\.

Fussell V Hail, 2:33 111. 73, was an action brought to restrain the General Assembly of the Cumberland Presby- terian Church from consummating a proposed union with the Presbyterian Church according to negotiations initiated in 1903, and apparently ratified in 1905. Tlie object of the bill is to have a court of chancery, by its process, assume

144 THE CIVIL LAW AND THE CHURCH

control of the action of an ecclesiastical tribunal, declare the extent of its jurisdiction, examine the regularity of its proceedings, and revise its judgments. The civil courts deal only with civil or property rights. They have no jurisdic- tion of religious or ecclesiastical controversies. Religious freedom cannot be maintained if the civil courts may inter- fere in matters of church organization, creed, and discipline, construe the constitution, canons or rules of the church, and regulate and revise its trials and the proceedings of its governing bodies. The civil courts afford no remedy for any abuse of ecclesiastical authority which does not follow a civil or property right. Church tribunals ought to perform their functions honestly, impartially, and justly, with due regard to their constitutional powers, sound morals, and the rights of all who are interested; but if tyranny, fraud, oppression, or corruption prevail, no civil remedy exists for such abuse, except where it trenches upon some property or civil right. The ordinary courts have no cognizance of the rules of a religious organization or other voluntary association, and cannot consider Avhether they have been rightly or wrongly applied. 8ee also the article on the Cumberland Presbyterian Church.

Diversion of Church Funds. In Gable v Miller, 10 Paige Ch. (N. Y.) G27 it was held that the court of chancery had jurisdiction to prevent a diversion of the temporalities of a church from the purposes for which they were given by the donors, and to require them to be ai:»propriated to the sup- ))ort of tliat foini of worship and to tlie teaching of those doctrines for which they were originally intended.

Diversion of Property. When an ecclesiastical organiza- tion acquires proi)erty by deed or will, or other instrument, and the instrument in express terms, provides that the prop- erty shall be devoted to the teaching, support, and spread of some specific form of doctrine or belief, the civil courts have authority to interfere in the affairs of the organization for the purpose of preventing a diversion of the property from the use to which it was, by the instrument, devoted.

CiVlL COUKTS 145

But where property is acuiuired by au ecclesiastical organ- ization, and there is nothing in the instrument under which the title passes to the organization, or to trustees in its behalf, which imposes a limitation upon the uses to which the property shall be devoted, it is to be presumed that it was the intention of the donor that the property was to be devoted to religious purposes, in such manner and in such way as the governing body of the organization, whatever it may be, shall, under its constitution and rules, determine; and so long as any existing religious organization can be asserted to be that organization, or its regular legitimate successor, it is entitled to the use of the property.

In case of a schism in such an organization no inquiry will be had into the existing religious opinions of those who cuni]»rise the leg;il iuid i-egular organization; the ])roper inquiry is, Wliich of the two factions constitute the church? and those who adhere to the acknowledged organization are entitled to the use of the propert}', whether adhering or not to the doctrines originally professed. Mack v Kime, 129 Cji. 1.

Doctrine. In all matters of faith and doctrine churches ai*e left to speak for themselves. Wlien rights of property are in (piestion civil conrts will iiKpiire whether the organic rules and forms of i)roceeding i>resci-ibed by the ecclesias- tical body have been followed, and if followed, whether they .-ire in conflict with the law of the land. A priest in the Roman Catholic Church, who receives no stated salary, but derives an income from pew rents, Sunday collections, sub- scrijdions, and otferings hns a ])roperty, in these sources of income. His profession is his property, and the priest was not only deprived of his right of property as pastor of that particular church, but he was also prohibited from exercis- ing any pastoral functions as a means of support elsewhere. O'Hara v Stack, 90 I»a. St. 477 ; but see this case on appeal in 98 Pa. 213, where the foregoing decision is explained.

In I'eople v Steel, 2 Barb. (N. Y.) 397, the head note con- tains the statement that courts can only inquire into the

146 THE CIVU. LAW AND THE CHURCH

tenets pronnilgated in a particular church, in connection with a right of property, or a trust to be administered. They have no power to determine as to the scriptural truth of those tenets.

The courts of this country have no power to determine for religious bodies ecclesiastical or doctrinal questions, and they have never evinced a disposition to invade that donuiin, and will only inquire into such questions when property rights become involved and are the subject of lit- igation, and then only so far as to determine those rights. I'eace v First Christian Church, McGregor, 20 Tex. Civ. App. 85.

Civil courts Avill deal with questions of church doctrine and beliefs only in so far as it becomes necessary so to do to determine civil rights. Where a dispute arises as to which of two bodies represents a particular church in trust for which property has been granted, a question of ecclesiastical identity arises, and those who claim that the trust has been violated must show that their opponents have so far de- parted from the fundamental principles of the church in question as to be in effect no longer members thereof. Itter v Howe, 23 Out. App. Rep. 256.

It would be an unseemly thing for the secular courts to assume to themselves the right to decide in the first instance whether a certain doctrine or tenet of faith possessed and practiced by one religious organization was contrary to the organic and fundamental doctrines and creed of another religious organization. Wehmer v Fokenga, 57 Neb. 510.

If church property is intended to be used to promote the teaching of particular religious doctrines and an attempt is made to divert such property to the support of different doctrines, civil courts should interpose for the purpose of carrying such trusts into execution according to the inten- tion of the donors ; and in case of a clear violation of such a trust the courts are bound to interfere on the application of a minority against a majority of the congregation. Miller

CIVIL CUUKTH 147

V Gable, 2 Deu. (N, Y.) 402. Appaieiitly reversiug 10 I'aige ( N. V.) 627, but see note in Denio p. 570.

It is not within the province of courts to determine which of two factions is right from a biblical or theological point of view, nor which conforms to the faith originally adopted by the church, except when that is in explicit terms made a condition of the donation. First Baptist Church, Paris v Fort, D:J Tex. 215.

While adherence to the doctrines adopted by the congre- gations (Lutheraii) may be considered a condition of be- coming or remaining a mend)er, it is not so with any new matter of doctrine that may arise, or with any honest inter- pretation of tlie statements of former doctrines. A civil court could not determine tliat by adopting any particular opinion of such new doctrine, or such interpretation a mem- ber, ipso facto, ceases to be a mend)er of the congregation so as to lose his rights in tiie corporation. Trustees, East Norway Lake Norwegian Evangelical Lutheran Church and others v Halvorson, 42 Minn. 503.

Questions of dognmtical theology are not within the jurisdiction of civil courts, but courts may determine wliether a complaint exists as to a change of religious belief by the minister. The truth and importance of the question are within the jurisdiction recognized by the uniform and immemorial usage of congregational churches. Courts have no means of determining points of doctrine. Burr v Sand- wich, 9 Mass. 277.

It is not tlie province of courts of justice to decide, or to inquire what system of religious faith is most consistent, or what religious doctrines are true, or what are false, in any case, and it seldom becomes necessary for courts to dis- cuss, or to examine the creeds, or confessions or systems of faith of the ditierent religious sects in determining ques- tions of law, except in cases where they are called upon to see that a trust or charity is adnnnistered according to the intention of the original founders. Hale v Everett, 53 N. H. 1.

148 THE CIVIL LAW AND THE CHURCH

Civil courts uever assume the abstract truth or falsity of any religious doctrine. The most they can do is, when rights of property are dependent on adherence to, or teach- ing of a particular religious doctrine, to examine what, as a fact, the doctrine is, and whether, as a fact, the particular person adheres to or teaches it. When the contract pro- vides, or by implication contemplates, that what is accord- ing to or consistent with the particular doctrine shall be determined by some religious judicatory, the determination of such judicatory, duly made, when the matter is properly brought before it, is conclusive on the civil courts. Trustees, East Norway Lake Norwegian Evangelical Lutlieran Church, and others v Halvorson, 42 Minn. 50:}.

Differences of opinion having arisen on doctrinal ques- tions and as to church government, the majority expelled the minority. Tliis action was sustained, and it was held that there was no right of api^eal to civil courts. Bennett v Morgan, 112 Ky. 512.

Bowie's Successor. In Lewis v Voliva, 154 111. App. 48, the court declined to consider the question as to who was the rightful successor to John Alexander Dowie as the leader of the Christian Catholic Apostolic Church of Zion founded by him. Two persons claimed the leadersliip by virtue of an alleged appointment by Mr. Dowie as his successor. The court said that if there was an organized body of persons who constituted the church, it must be left for that body to determine this question in accordance witli its laws and usages, free from interference by the courts. The court held that there was no propert}^ question involved in the case.

Ecclesiastical Questions. It would be quite unseemly as well as detrimental to the best interests and harmony of religious societies if courts should interfere with their in- ternal affairs when no property rights are involved, simply because the regularity of their proceedings may be open to question by some disaffected party. I'eople ex rel Blomquist v Nappa, 80 Mich. 484.'

Civil tribunals cannot revise or question ordinary acts of

CIVIL COURTS 149

cljurcb fliscii)line or excision, but may decide conflicting claims of tlie parties to the clinrch property, and the use of it. Shannon v Frost, 42 Ky. 253.

As to tlie rule that civil courts will not interfere in eccle- siastical nuitters, see Kodgers v Burnett, 108 Tenn. 173 fol- lowing Nance v Bushby, 91 Tenn. 305.

See Chase v Cheney, 58 111. 509 for a discussion of the principles applied by civil courts in considering questions relating to ecclesiastical affairs. The case reiterates the doctrines frequently cited in these notes. See this case also page 304 for a collection of authorities relating to the juris- diction of civil courts in ecclesiastical matters.

Elections. Courts of law will interpose to control the proceedings of ecclesiastical bodies when a right to property is involved, but in no other instances. A court of law will inquire into the regularity of the election of trustees of a religious corporation, to whom the property of the corpora- tion is committed, and will determine the qualifications of the voters who are allowed to vote at such an election. It will also, when the right to property is in issue, institute an inquiry into the doctrines and opinions of a religious society as facts nj)on which the ownership of property may depend. But with res])ect to spiritual matters, and the administra- ti(m of the s]tiiitual and tem])oral affairs of the church, not affecting the civil rights of individuals or the property of the corporation, the ecclesiastical courts and governing bodies of the religious society have exclusive jurisdiction, and their decisions are final. A court of law will not interfere with the rules of a voluntary religious society adopted for the regulation of its own affairs, unless to pro- tect some civil right which is infringed by their operation. Livingston v Trinity Church, Trenton, 45 N. J. Law 230.

In Michigan it was held that a court could not inquire into the regularity of an election of a deacon in the Dutch Reformed Church of Holland. Attorney General ex rel Ter Vree v Geerliugs, 55 Mich. 562.

Expulsion of Members. Considering a question relating to

150 THE CIVIL LAW AND THE CHURCH

the expulsion of a iiieniber of the Baptist Church at Moss Poiut, Mississippi, tlie court saicl this society was a pure democracy. Its determination of questions of doctrine and discipline is exclusive and final. There is no appeal to any superior ecclesiastical court, and over things spiritual or ecclesiastical, the civil courts, ordinarily, may not take jurisdiction. The civil government must be free from all ecclesiastical interference, and the Church of Jesus Christ, except in property rights, is not to be controlled by State authority. Dees v Moss Point Baptist Church, 17 So. Rep. 1. (Miss.).

Courts cannot and will not supervise or review the action of any religious society as to whether in excluding members they acted wrongfully or justly. Igiehart v Rowe, 20 Ky. L. Rep. 821.

"We cannot decide who ought to be members of the church, nor whether the excommunicated members have been justly or unjustly, regularly or irregularly cut oJf from the body of the church. We must take the fact of expulsion as conclusive proof that the persons expelled are not now members of the repudiating church ; for, whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this court. Having once associated themselves with many others, as an organized band of pro- fessing Christians, they thereby voluntarily subjected them- selves to the dis('ii)linary and even exi)idsive power of that bod3\ The voice of the majority has i>revailed against them. They by that fiat of their membership ceased to be members of that association, and with the loss of their membershi]) they have lost all the privileges and legal rights to which, as members, they were ever entitled. Their only remedy is, therefore, in their own bosoms, in a consciousness of their own moral rectitude, and in the consolations of that reli- gious faith and those Christian graces which, under all temporal trials, will ever sustain the faithful Christian an<I adorn the pathway of his earthly pilgrimages." Bethany Cong. Ch. V Morse. 151 Iowa 521. Cited Hendryx v People's

CIVIL COURTS 151

United Cburcli, 42 Wash. 336 and Shannon v Frost, 3 B. Mon. (Ky.j 253.

People V Erste Ulaszkoweer Kranken Unterstutzungs Verein, 5G Misc. (N. Y.j 304, 57 Misc. 62, considers the power of civil courts to review and revise the action of religious societies, asserting the general rule of noninter- ference, but an exception was applied in this case because the society' was also a benevolent or benefit society, with special provisions for the welfare of its members ; therefore the court assumed jurisdiction to determine the validity of the expulsion of a member.

If it appears that there is a fraudulent scheme to expel members so as to obtain control of tbe property of the organ- ization and divert it from its original channel-, the law will not permit the fraud to be consummated. Notwithstand- ing the rule of the organization to permit an expulsion in projH'r cases, there is an implied obligation or contract that the members will be fairly treated, and that good faith will be maintained between them. Courts will not assume to decide purely ecclesiastical questions, and substitute their views for the views of the ecclesiastical authorities or judi- catories. If mend)ers are expelled for a fraudulent purpose to carry out a fraudulent sclieme, the eximlsion is a void act, an«l of no force or ell'ect whatever. Hendryx v People's T'nited Clmrdi. Spokane, 42 Wash. 336.

Friends, Form of Government. In Field v Field, D Wend. (N. Y.) 304, the court took cognizance of the form of govern- ment ad<>]tted l»y the Society of Friends, especially as to the method of organizing and conducting business meetings, and considered the etlect of a division of the Society in 1828. See the article on Friends.

Heresy. The law knows no heresy, and is committed to the sui)port of no dogma. Everyone has the legal right to enter- tain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality or property, and which does not in- fringe the personal rights of others, which may seem to

152 THE CIVIL LAW AND THE CHURCH

liiin right and proper, without any interference from the courts. The law recognizes the right of the people to organ- ize voluntar}^ religious associations, to assist in the dis- semination of any and all religious doctrines, with the excep- tions above named, and to create tribunals for the decision of controverted questions of faith, and for ecclesiastical government of all the individual members, congregations, and officers within the general association. Lamb v Cain, 129 Ind. 48C.

The civil tribunal possesses no authority whatever to determine ecclesiastical matters on a question of heresy, or as to what is orthodox or unorthodox in matters of belief. Wilson V Presbyterian Church, John's Island, 2 Rich. Eq. (S. C.) 192. .

Judicial Notice. "The canons, rubrics, or rules of this or any other church among us, are not laws; they are merely regulations for the conduct of its ministers and members, dependent for their force upon vows of the one and the con- sciences of the other, so far as they are within the limits of the rightful powers of such bodies. We know nothing of them judicially." The court cannot take judicial notice of the meaning of the terms "institution" and "induction" as applied in the Protestant Episcopal Church, nor of any rights or disabilities which might result from their observance or neglect. Youngs v Ransom, 31 Barb. (N. Y.) 49.

The court will not take judicial notice of the civil riglits and powers of a Roman Catholic Church. Baxter v Mc- Donnell, 155 N. Y. 83.

Jurisdiction, True Rule. The true ground why civil courts do not interfere with the decrees of ecclesiastical courts, where no property rights are involved, is not because such decrees are final and conclusive, but because they have no jurisdiction whatever in such matters, and cannot take cog- nizance of them at all, whether they have been adjudicated or not by those tribunals. This principle forms the founda- tion of religious liberty in republican governments. The

CIVIL COURTS 153

civil authorities liave no power to pass or enforce laws abridging the freedom of the citizen in this regard, and hence, in matters purely religious or ecclesiastical, the civil courts have no jurisdiction. A dei)osed minister or an ex- communicated member of a church cannot appeal to the civil courts for redress. They can look alone to their own judicatories for relief, and must abide the judgment of their higliest courts as final and conclusive. But when property riglits are concerned, the ecclesiastical courts have no power wliatever to pass on them so as to bind the civil courts. If they expel a member from his church, and he feels himself aggrieved in his rights of property by the expulsion, he may resort to the civil courts, and they will not consider them- selves precluded by the judgment of expulsion, but will examine into the case to see if it has been regularly made upon due notice, and if tliey find it to be duly made, they will let it stand, otherwise they will disregard it, and give the proper relief. Watson v Garvin, 54 Mo. 353; see also Dismukes v State, 58 So. 105.

Jurisdiction. This suit originated from a controversy be- tween two factions of tliis church over the church property, and involved the right of one faction to enjoin the other faction from usijig tlie i)roperty until the latter should con- form to the laws, usages and customs, faith and doctrine of the church. The court held that it had no jurisdiction of this question, and could not compel one faction to cease worshiping in the church because of an abandonment of the faith, laws, usages, and customs of the church. Smith v Charles, 24 So. 9GS.

A house of worship had been erected by the local society as a memorial to Bishops Bowman and Kemper. A move- ment to change the location of the church from Radnor to Merion, take dow^n the church edifice, and use its materials in the erection of a new building at the latter place was resisted by certain members of the church. The destruction of the memorial building was held to involve a question of good faith and not siujply a question of ecclesiastical polity.

154 THE CJXllu LAW AND THE CHURCH

The matter was, therefore, withiu the jurisdiction of a court of equity. Cushnian v Church of the Good Shepherd, 1G2 Pa. St. 280.

Members, Status. The right to a share in the government of a corporation is a civil right which the law will protect, and the courts will therefore determine who are members of the corporation. And where, as is usually the case with local church organizations, all the adult members of the religious body, the congregation, and no others, are members of the corporation, so that when one becomes a member of the religious body he becomes a member of the corpora- tion, and when he ceases to be a member of the religious body he ceases to be a mend)er of the corporation and lias no further rights in it and in tlie property owned by it, the court, to determine on the civil right claimed — that to be a member of the corporation — must determine on mem- bership in the religious body, the congregation. It must determine this by the rules which the congregation has adoi)ted for its membership. If the rules make adherence to particular doctrines a condition of membership, then, so long as those rules continue, the rei^udiation of such doc- trines would seem to determine a member's right to remain in the congregation. Trustees, East Norway Lake Nor- wegian Evangelical Lutheran Church and others v Halvor- son, 43 Minn. 503.

On a question relating to membership in the corporation, it was held that while the statute indicated who might become mend)ers of tlie corporation, it did not determine the qualifications of church members. I'arties interested in the controversy must first exhaust their remedies in the church judicatories before civil courts would consider the questions involved. Buettner v Frazer, 100 Mich. 179.

Where differences of opinion arose in a local society on doctrinal questions and church government, and the major- ity expelled the minority, this action was held to be final and conclusive, and was binding on the courts. Bennett v Morgan, 112 Ky. 512.

CIVIL COUKTS 155

The civil court will not decide who ought to be uieiiibers of a church, nor whether the persons have been regularly or irregularly excommunicated. The fact of excommunication must be taken as conclusive proof that the persons excluded are not members, but courts may inquire whether the reso- lution of expulsion was the act of the church or of persons who were not the church, and who consequently had no right to excommunicate others. Bouldiu v Alexander, 15 Wall. (U. S.) 131.

Minister. I*owers v Bundy, 15 Neb. 208 involved rival claims of two unnisters each claiming to be the regular pastor of the church, but it was held that the title of the claimants was an ecclesiastical matter to be determined by the proper church tribunals and that the civil courts could not interfere.

A minister was appointed to this local society according to the rules of the denomination. Subsequently charges were preferred against him, and a trial was had before a tribunal constituted according to the laAV of the denomina- tion. The charges were sustained and the decision was con- firmed by the Annual Conference, and the minister was thereupon discharged from the ministry and expelled from the church. It was held that the action of the church tri- bunal was binding on the civil courts, and that they had no power to review and revise such decision, and a perpetual injunction was granted restraining the minister and others in the local church from continuing to occupy the church property. Pounder v Ashe, 44 Neb. 672.

In Christ Church v Phillips, 5 Del. Ch. 429, the court declined to consider the question of the status of the rector of a Protestant Episcopal church. The relation of a rector to the church is to be determined by the ecclesiastical authority of the diocese.

Considering the status of a minister of the Methodist Church of Canada, the court, in Ash v Methodist Church, 27 Out. App. Ee. (Can.) 602 said that the ^'question whether a minister is acceptable or inefficient is peculiarly one for

15G THE CIVIL LAW AND THE CHURCH

the judgmeut of the Conference, and by the Discipline that body is made the sole judge on the subject/'

Courts have no power to control the action of religious society in the employment or payment of a minister. Burrel V Associate Eeformed Church, Seneca, 44 Barb. (N. Y.) 282.

"Courts of law do not interfere with the discipline of the church, or the punishment of ministers, by sentences of the ecclesiastical authorities." Reformed I'rotestaut Dutch Church of Albany v Bradford, 8 Cow. (N..Y.) 509.

Noninterference. In the absence of a valid legal contract the courts are prohibited to compel llie payment of a min- ister's salary or contributions for the support of the min- istry or the church. In accordance with the principles of our institutions and the organic law, tlie courts refrain from interfering when the office or functions are j^urely ecclesias- tical or spiritual, disconnected from any fixed emoluments, salary, or other temporalities. In sudi case there is no legal temporal right of which the civil courts can take jurisdic- tion. State ex rel McNeill v Bibb St. Ch. 84 Ala. 23.

Officers, Powers. When church officers undertake to make fundamental alterations in the organization and its plan of operation, such as affects the entire membership and their status, the civil courts should for themselves ascertain the authority of such officers when this is called in question Ijy the proper j^arties and in proper proceedings. Especially will this be done when the authority challenged affects the integrity of the organization and dissolves the relation- ship theretofore existing among the members and the sub- ordinate bodies of the church. Such an inquiry does not imply that civil courts will restrain or interfere with what a church tribunal may have done in excess of its authority. This might be considered as taking cognizance of an ecclesi- astical matter ; but they may declare the legal effect of such action upon the property rights of the members, and award the common i)roperty to that faction, which has rebelled against the wrongful authority sought to be exercised over them. Clark V Brown, 108 S. W. 421, 451 (Texas).

CIVIL COURTS 157

Courts of equity cau ouly iuterfere with the action of such officers as have been placed by the corporation itself in the control of its affairs, unless either in excess of their discre- tion or in aggrieved cases of misconduct amounting to actual or constructive fraud. Cicotte v Anciaux, 53 Mich. 227.

Property Rights, Three Classes. Courts are in no way con- cerned with the transactions of ecclesiastical bodies except in so far as tangible rights of persons or property are affected. Questions relating to these are divided by the court into three classes; the first is where property, by the express terms of the gi-aut, is devoted to the teaching, sup- port, or spread of some specitic form of religious doctrine or belief; the second, where it is held by, or in trust for, an independent congregation; aud the third, where it is held by, or in trust for, a congregation or other association subor- dinate to some general church organization. Horsman v Allen, 129 Cal. 131.

The questions which have come before the civil courts con- cerning the rights to property held by ecclesiastical bodies have been divided into three classes, namely, first, cases where the property which is the subject of controversy has been by deed or will, of the donor, or other instrument by which the property is held, by the exjjress terms of the instrument, devoted to the teaching, support or spread of some specific form of religious doctrine or belief; second, to property held by a religious congregation which by the nature of its organization is strictly independent of other ecclesiastical associations, and so far as church government is concerned owes no fealty or obligation to any higher authority ; third, to cases of property held by a religious congregation or ecclesiastical body, which is a subordinate member of some general church organization in which there are superior ecclesiastical tribunals, with general ultimate jiowers of control, more or less complete, in some supreme judicatory over the whole membership) of that general organ- ization. Lamb v Cain, 129 Ind. 48G.

Property Eights. The personal and property rights of

158 THE ClVlh l.AW AND THE CHUKCH

cliurolies and their members are civil, and of them the courts of the State have exclusive jurisdiction. Ecclesiastical courts have no jurisdiction to decide the rights of property and enforce its protection. Bridges v Wilson, 11 Heisk. (Tenn.) 458.

Protestant Episcopal Vestry. Considering a question relat- ing to the appropriation of the funds of a I'rotestant Epis- copal church in South Carolina, the court in Vestry and Wardens of Episcopal Church of Christ Church Parish v Barksdale, 1 Strobhart's Eq. Ke. (S. C.) 191), said: "This court has no authority to interfere with or control the dis- cretion of the vestry and wardens unless they transgress the limits of their charter. However unwisely they may exercise the power, they are responsible only to their con- stituents."

Quakers, Who Are Overseers. The question. Who are the overseers of a monthly meeting of Quakers? within the meaning of Massachusetts statute of 1822, chap. 92, is to be determined according to the discipline of that people, ex- pounded by the general usages of those persons of most experience and judgment who have acted under it and ac- knowledged its authority. It was held that the decision of a Yearly Meeting as to the status of subordinate officers was conclusive on the court. Earle v Wood, 8 Cush. (Mass.) 431.

Religious Questions. When rights of property or civil rights as contradistinguished from ecclesiastical rights are involved, and such rights depend upon the religious faith or orthodoxy of citizens, or the rules, discipline, and practice of churches, or religious denominations, the courts of this State may hear evidence and determine judicially all such questions so far as they affect the rights of persons or reli- gious denominations to property or civil rights. Grimes Executors v Harmon and others, 35 Ind. 198.

Courts have nothing immediately to do with religious societies so far as relates to their spiritual concerns, church government, discipline, faith, doctrines or modes of worship. These are matters which are to be left to the regulation of

CIVIL COURTS 159

their own peculiar tribunals and the ecclesiastical judica- tories of each church. But courts have power to inquire into tenets openly and publicly expressed in reference to the place in which they are promulgated. Where a religious society is formed, a place of worship provided, and either by the will of the founder, the deed of trust through which the title is held, or by the charter of incorporation, a particular doctrine is to be preached in the jjlace, and the latter is to be devoted to such particular doctrine and service, in such a case it is not in the power of the trustees of the congrega- tion to depart from what is thus declared to be the object of the foundation or original formation of the institution, and teach new doctrines, and set up a new mode of worship there. At least this cannot be done without the consent of all the members of the church or congregation, because it would be an infraction of the will of the founder, be contrary to the spirit of the deed, or act of incorporation, and a per- version of the original object and design of its institution. Upon the complaint of any party aggrieved it may be made the duty of this court to inquire into the doctrines taught, with a view to ascertain whether there is such a departure, and to restrain and bring them back to the original prin- ciples of faith and doctrine if they will continue to wor- shi]) in that place. Bowden v McLeod, 1 Edw. Ch. (X. Y.j 588.

The civil courts have no power, under the constitutions by which they exist, in this country, to intermeddle with reli- gious matters ])urely as such, or to assume to settle for con- tending parties in churches any question of doctrine, dis- cipline, or organization. These are things wholly apart and aside from the i)aths to which civil courts are accustomed, and the fields in which thej^ are wont to work. But when church organizations buy and take title to propertj'^, then they enter the domain wherein civil courts control. In case any questions arise between contending parties or individ- uals as to such property, the title, riglit of possession, or use, that question must be decided by the civil court. It

160 THE CIVIL LAW AND THE CHURCH

must be decided like any otlier question, according to the contract on which the right is based. In order to ascertain the terms of that contract, and its true construction, it may become necessary to decide ecclesiastical or theological ques- tions. If such question has not previously been decided by any tribunal within the church organization, the civil court will decide it according to the best lights attainable. If it has been already decided by any tribunal of the church ap- propriate for its decision under the contract, before the con- troversy arose on Avhich the subsequent litigation was based, the civil court will give that decision very great, if not con- trolling, weight. To give weight to a rule laid down, or an interpretation rendered, by one of the parties to the contro- versy, after the controversy had arisen, would be abhorrent to every sense of right; it would be tantamount to making one i)arty a judge in his own case against the other. The civil court in deciding a property right should honor the deliverances of the ecclesiastical court with the greatest attention and respect, but should not follow it unquestion- ingly in every case. If the civil court can see clearly and satisfactorily that the ecclesiastical court was in error, then it should say so and adjudge accordingly. It can do no less in view of its obligation to do justice between the parties. It cannot, in discharging its duty to decide on questions of ]»roi)erty, hand over its conscience to the keep- ing of any church organization. The civil court cannot rightly evade the labor of investigating the questions that arise in such controversies, no matter how difficult or unfamiliar the questions may be, nor can it escape the re- sponsibility no matter how embarrassing. It is proper that the civil court should act with diffidence, it is true, on such questions, yielding all respect due to the opinions of experts, as upon any subject on which expert evidence is required, but when it clearlj^ appears that the ecclesiastical tribunal is wrong it should not be followed. If the civil court looks wholly to the ecclesiastical courts for the settlement of the principle, or, as the case may be, the facts on which the

CIVIL COURTS 161

right of i>r()j)erty turns, then the former court abdicates its functions in favor of the latter. The civil court cannot invade the sacred inclosure of the church and assume to direct her teachings or the administration of her rites and ceremonies, or to hinder the imposition of her censures; but where i)roi)erty rights are involved the cliurch, as to these, stands on the same jilane with all other persons, natural and corporate, no higher, no lower. The law is over all. Land- rith V Ilndgins, 121 Tenn. 550.

While it may be true, that the religious belief of the grantor should not be inquired into for the purpose of as- certaining the nature and extent of the trust (Attorney General v Pearson, 7 Sim. ( lOng. 70S), yet it is clear, that the circumstances surrounding the making and accept- ing of the conveyance, may be in(piired into for the purpo.se of ascertaining the oltjcci of the trust. First Constitutional I'rcsbyteriMn Chui-ch \- Congregational So- ciety, LM Iowa .""((IT.

A question having arisen as lu the right to control church proj)erty, it was held that wliik* as a general i)r()position no man could be called in (pieslion for his leligions belief, yet smh an impiiry was eonslilulional in a case involving the title of chnrcli ]tro|)eity depending on the belief, faith and do<li-ines of tin* sdciety. The (jnestion in this case was n<)t one of conseienc*', bnl of prctperty. and therefore was a piopei- subject of ju<li(ial investigation. Kisor v Stancifer, Wright N. r. (Oiiioi :\'S.\.

Courts (h'al with tangil»!e rights, not willi spiritual con- cejttions, unless they are incitlental and necessarily' involved in the determination of legal rights. Holm v Holm, 8L Wis. 374.

In Trustees of the Organ Mei'ting House, v Seaford, 1 Dev. Kq. (N. C. i 45:5, it was held that a court of e([uity would not, uj>on a dispute respecting the title to church property, decide a religious contr()versy between its mendjers.

The Wisconsin Supreme Ct>urt has repeatedly disclaimed all right to determine mere questions of faith, doctrine, or

162 THE CIVIL LAW AND THE CHURCH

schism not necessarily involved in the enforcement of ascer- tained trusts or the determination of legal rights; and has also disclaimed any right to all interference with mere church discipline in the absence of any invasion of the legal rights of persons or property. Hellstern v Katzer, 103 Wis. 391.

Kesulting Trust, Beneficiary. Courts of law will not enter into the examination or discussion of purely theological questions in order to ascertain the proper beneficiary of a resulting trust ; but if the trust was created for the benefit of those adhering to a particular denomination, courts of law will accept and follow the determinntion of the proper ecclesiastical tribunals as to who are adhering and in subor- dination to that denomination. First Constitutional Presby. Church V (/on. So. 23 la. 507.

Salary, Payment Cannot Be Enforced. A tariff jjrescribed by a bishop of the Roiiuni Catholic Church may be binding on the conscience of those immediately affected by it, but resort cannot be had to courts of justice to enforce compli- ance. Discussing this question, the court said: "It appears from the eighth decree of the first provincial council, held in Baltimore in the year 1829, that the right reverend mem- bers of tliat body doubted whether the payment of the salary could be coerced in temporal courts; since they enjoined upon each bishop of the different dioceses of the United States to interdict every church to retain the whole or a part of the usual salary of the curate. Tlie courts of justice of a State, in whicli the jteojjle recognized no j)ower of tax- ing tiieni, in any branch of the government, but that in which they are represented, cannot easily be persuaded to acknowledge the power of fixing sums (o be drawn from the pockets of suitors by the mandate of the pope, or of any bishop appointed by him." Church of St. Francis, Pointe Coupee v Martin, 4 Rob. (La.) 62.

Schism. A court of equity will not attempt to enforce the particular faith or doctrines of either party, though their existence and nature may incidentally be involved in an

CIVIL COURTS 163

inquiry relative to the rights of the society. Rottman v Bartlinj:. 'I'l Nebr. 375.

Separation. Civil courts iu determining the question of legitimate succession, in cases where a separation has taken jilace in a voluntary religious .society, will adopt its rules, and will enforce its policy in the spirit and to the ettect for which it was designed. Harrison v Hoyle. 21 Ohio 254.

Temporalities. As regards the purely ecclesiastical or si»irilu:il Icatinc of the church, civil courts have steadily as.serted tlicir iiltei- want (»!' jurisdiction to hear and deter- mine any contr«tv<isy i»ertaiiiing thereto. On the other hand, the civil «(nnts have, witliout hesitation, exerci.sed their jurisdiction l<» |>rnit(t the temporalities of the diurcli. Christian Church. IluntsviUe v Sommer. 4^} So. (Ala.) 8.

Trusts. "A court of e(|Mily. under its general power and duty to see that trusts ;ire not |>erverted, and upon the a|»|»li- cation <)l" judper |)arties, and u]m»ii projier issues, may be ol>lige<I to in(piire into tin* fact whether doctrines specially (h'signated in a tiiist hasc been professed and promulgated, or forms of woi-sliip specinlly prescribe<l have been adopted or r»'jected. N«tt to decide wiietluM- such doctrines are sound, but whether the truste<' has conscientiously done that w ilii out which he has no good right to liohl the projKM-ty, or to use it as he has done." Attorney (Jeneral v Proprietors of -Meeting House in Federal Street, '.\ Cray (Mass.) 58.

"The jurisdiction of civil coiirts to adjudge any ecclesias- tical inattiM- must result as a m«M-e imident to the determina- tion of some property right. Tlius, where jjroperty has been <onveyed to suxm" religious use, and that use is express and s|»ecifi<-, ami has Ihhmi indicated by the donor and is .set out in the conveyance, a trust ari.se.s, and a court of equity will, upon application of the beneficiaries, as it would in case of any other sort of valid trust, prevent any diver.sion of such pro|)erty to any other than the i)urposes of the founders of the trust. In the case of a definite trust for the maintenance of a particular faith or form of wor.^^hip, the court will eveu go .so far as to prevent the <li version of the property by the

164 THE CIVIL LAW AND THE CHURCH

action of a majority of the beneficiaries; and, if there be a minority wlio adhere to the original principles, such mi- nority will be held to comprise the exclusive beneficiaries, and entitled to the control and enjoyment of the property without interference by the unfaithful majority." Nance V Bushby, 91 Tenn. 303.

It is not the province of the courts of equity to determine mere questions of faith, doctrine, or schism not necessarily involved in the enforcement of ascertained trusts. Courts deal with tangible rights, not with spiritual conceptions, unless they are incidentally and necessarily involved in the determination of legal rights. Such trusts, when valid and so ascertained, must, of course, be enforced ; but to call for equitable interference there must be such a real and sub- stantial departure from the designated faith or doctrine as will be in contravention of such trust. Fadness v Braun- borg, 73 Wis. 257.

The court has no right to institute an inquiry into the doctrines or mode of worship of any religious society, except such inquiry shall become absolutely necessary for the pro- tection of trust property. If property is given to a partic- ular denomination of Christians adhering to certain doc- trines and forms of worship, and an attempt is made to per- vert the property to any use, religious or otherwise, different from that to which the donor devoted it, it is the duty of the court to restore the property, and to protect it in its original use. To do this it frequently becomes necessary for the court to inquire into the peculiar tenets and doc- trines of different societies claiming the property under the same trust. It is not the province of the court, in pursuing such an inquiry, to decide which doctrines are correct, but which society maintains the doctrines, to support and pro- mulgate which the donor dedicated the property. German Evangelical Lutheran Church, Newark v Maschop, 10 N. J. Eq. 57.

When property is devoted to a specific doctrine the civil courts will, when necessaiy to protect the trust to which

CIVIL CUUKTS 165

the property Iuik been devoted, inquire into the religious faith and practice of the parties claiming its use, and will see that it shall not be diverted from that trust. Bates v Houston, 06 Ga. 198.

Civil courts have power to consider questions relating to the alleged perversion of trusts by ecclesiastical bodies, and may incpiire whetlier an ecclesiastical body has, in its action, transcended its powers or jurisdiction as a legisla- tive, judicial, or executive body. Civil courts may look into and deteriiiinc the (picstion whether there has been, by the action of such a body, a substantial and evident departure in essential niiillcrs of I'ailh, since such action would affect llic tith' to the properly licbl by the church for its uses. But sucii departure must be from essential faith, and must be obvious, and not reasonably open to controversy.

The general rule is that the doctrinal decisions and judi- cial constructions of a church constitution and legislation under it, of the highest judicatory of a church, are binding u|)on the civil courts, an<l the latter having no power to review or reverse them. Griggs v Middaugh, 10 Ohio Dec. (It:;.

United Brethren in Christ, in Bear v IIeaslej% 98 Mich. L'79, considering the powers of the General Conference, the courts say that the (Jeneral Conference is the highest judi- catory of the church, and is intrusted with the general super- vision of its allairs. both tenii)oral and sinritual. In all uiattcrs, therefor*', in which it has jurisdiction its judg- ments are binding upon the church, its clergj', and its mem- bers, and will not be reviewed by the civil courts.

The action of the highest ecclesiastical body of a religious .sect, in adoi»ting the rei»ort of a committee appointed to determine the validity of a constitutional amendment, and to submit it to a vote of its members, the amendment being adopted by the adoption of the report, is legislative, and not an adjudication binding on civil courts, within the rule con- cerning the l)in<ling ellect of decisions by church tribunals on questions of faith or of ecclesiastical law or custom. The

166 THE CIVIL LAW AND THE CHUKCH

action, then, of General Conference of 1889 of the church of the United Brethren in Christ in adopting the report of the committee of seven, to the effect that the revised confession of faith and constitution proposed by the General Confer- ence of 1885 had been adopted and carried at the election in November, 1888, and should be so recognized upon the proc- lamation by the board of bishops, was purely legislative and open to review in the civil courts. Philomath College v Wyatt, 27 Or. 390.

Worship and Doctrine. Civil courts liave no jurisdiction to determine mere ecclesiastical questions. Tlie Maryland court, therefore, declined to entertain jurisdiction and de- termine questions relating to the alleged violation by a Lutheran congregation of provisions in its articles of incor- poration, requiring the worship and service to be in the German language, and also requiring ministers to hold to the Augsburg Confession and the Symbolical Books of 1580. The determination of these questions was exclusively within the jurisdiction of the i)roper authorities of tlie denomina- tion. Shaetter v Klee, 100 Md. 204; see also Ecclesiastical Courts.

COMMUNITY SOCIETIES

Amana Society, 107.

H;iniiuny Society, organization, IGS.

Jehovah Presbytery of Zion. I'reparation, Iowa, 170.

Oneida Comnmnily, 171.

Order of St. Henetlict, 17:.'.

Separati.st.s, 173.

Shakers, 175.

Amana Society. This is a i'olin;ioii!«; organization. The IM'caiiildc to th«* consl ii ulion, wliieli is the t'oundation of all the aiticles «d" iiii<)i|iorat ion. recites the eini<j;ration of the Coinnniniiv of 'I'nic I nsjiii alion from Germany to this count rv in ISi;*,. for the salve of civil and reli<!:ious liberty; its settlement at lOhenezer, near Butlalo, New York, and removal therefrom to Iowa County, according to the known will of (lod. The constitution i>rovi<led, among other things, that agriculture and raising of cattle and other domestic animals, in connection with some manufacturing and trades, shall, under tlu' blessing of (Jod, form the means of suste- nance of this society. The ex|»enses of the society were to be |>aid from the income, antl the surplus applied to the im- provement of the common estate of the society, meeting- houses and schoolhouses. i»rinting establishments, the care of aged members, the establishment of a business and safety fund, and to benevolent purposes in general.

^rembers of the society were entitled not only to support and care, luit an annual sum for maintenance for them- selves and their families, and the members relinquished to the society all <laims for wages, and any interest in the jti-operty. No dividends were declared, and no money was given to any member, save to meet the bare necessities of the most economical existence. No compensation was made lor work.

167

168 THE CIVIL LAW AND THi] CHI KCH

In 1906 the society consisted of abont 1 J50 members, and it owned about 26,225 acres of land in Iowa and Johnson Counties, of the estimated value of |40 an acre. There were seven villages and numerous buildings devoted to manu- facture, besides a large number of dwelling houses. The society owned stock estimated to be worth |70,000, and its annual income was about |80,000.

In a proceeding against the society, charging it with wrongful exercise of corjjorate powers, it was held that the corporation was a religious corporation, although carrying on various operations of a secular character, and that its members had a right to establish and maintain the com- munity of property, and that the corporation could not be dissolved on the application of the attorney -general. State of Iowa V Amana Societ}', 132 la. 304.

Harmony Society, Organization. The society was organized by articles of association made between several persons in 1821, and by other articles in 1827. According to the latter articles, the society was formed "on the basis of Christian fellowship, and the principles of which being faithfully derived from the Sacred Scriptures, inclnde the government of the patriarchal age, united to the community of property, adopted in the days of the apostles, and wlierein the single object sought is to approximate, so far as human imperfec- tion may allow, to the fulfillment of the will of God, by the exercise of those affections, and to the practice of those virtues which are essential to the happiness of man in time and throughout eternity." The associates conveyed to tlie leader, George Rapp, and others, all their property as a free gift or donation, for the benefit and use of the association or community. The associates agreed to obey the laws of the society. It was further agreed that any associate who might desire to withdraw should be at liberty to do so, but should not claim compensation for services. Rapp and others, constituting the leaders, agreed to supply the asso- ciates with the necessaries of life, including clothing, meat, drink, lodging, etc., for themselves and their families, con-

COMMUNITY S0CIP:TIES 169

tinning dnring life, in sickness as well as in health, and including medical attendance. But if any person should not be able to comply with the regulations of the society, he might withdraw, and would be entitled to receive the value of the properly turned over to the association by him with- out interest.

By an earlier agreement, IcSOu, the signers transferred to George Kapp and his associates, all the property owned by the associates as a free gift, or donation, for the benefit of tiie community in Harmony, Pennsylvania, renouncing all their interest in the property, and making it subject to the jurisdiction of the superintendent of the community to the same extent as if they had never owned it. Withdrawals were jtermitted, but without the right to claim property given to the society. In each of these articles Kapp and other leaders adopted the signers of the documents as mem- bers of the society, with the privilege of being present at all religions meetings. The agreement of ISO.") contained substantiiiliy tlie s;inie |n<»\ isions as the agreement of 1827. A similar agreement \\as made in 1S21.

The c<»ui-t said the association was not a partnership, and that tlie agreenuMils were \alid and not repugnant to any principle of modern law. In this action, brought by a per- sonal representative of one of the associates, against Kapp and others for an accounting, it was alleged that because the snbscri]>er might, under the tei-ms of the articles, with- draw the contributions made by him, his personal rciiresen- tatives had the same right. The right to withdraw was not transmissil)le; and even if it were transmissil)le, the sub- scriber's release on joining the association would be a bar to any claim by his heirs or next of kin. Schriber v Kapp, 5 Watts (Ta.) r.ni.

The society was comi»osed at first of Germans, who emi- grated to the United States in 1805, under the leadership of George Kapp. The members were associated and com- bined by the common belief that the government of the patri- archal age, united to the community of property, adopted

170 THE CIVIL LAW AND THE CHURCH

ill the days of the apostle;^, would conduce to promote their temporal and eternal happiness. The founders of the society surrendered all their property to the association for the common benefit. The society was settled originally in Penn- sylvania, was removed in 1814 and 1815 to Indiana, and again in 1825 to Economy, in Pennsylvania.

The organic law of the society in regard to their property is contained in two sections of the articles of association, adopted in 1827 by the associates, of whom the plaintiff was one. They are as follows :

"All the property of the society, real, personal, and mixed in law or equity, and howsoever contributed and acquired, shall be deemed, now and forever, joint and indivisible stock; each individual is to be considered to have finally and irrevocably parted with all his former contributions, whether in land, goods, money, or labor, and the same rule shall apply to all future contributions, whatever they may be.

"Should any individual withdraw from the society, or depart this life, neither he, in the one case, nor his represen- tatives, in the latter, shall be entitled to demand an ac- count of said contributions, whether in land, goods, money, or labor, or to claim anything from the society as matter of right. But it shall be left altogether to the discretion of the superintendent to decide whether any, and, if any, what allowance shall be made to such member, or his representa- tive, as a donation."

Baker et al v Nachtrieb, 19 How. (U. S.) 120, plaintiff settled with the community and withdrew receiving a dona- tion, which was authorized by the plan of government. He sought by this suit to recover a share of the property, but it was held that his previous settlement, not having been im- peached, was conclusive, and that he could not recover.

For other cases involving various aspects of the Harmony Society see Schwartz v Duss, 93 Fed. 529, 187 U. S. 8, Speidel V Henrici, 120 U. S. 377.

Jehovah Presbytery of Zion, Preparation, Iowa. This so-

COMMI XITY SOCIETIES 171

ciety, which embodies the coiiimuuity idea, is noted in the artic le <»n ^foi-inons.

Oneida Community. Tliis eoniniunity was formed at Oneida, New York, in the year 1848. Plaintiff at the age of four years l)e( anie a jirovisional member of the community, and on reaciiing his majority he formallj' assented to its articles of covenant and remained a member until 1880, when he left the service of the commnnity and engaged in other busin«'ss. The administrative counsel of the commun- ity con.strne<l his conduct as a withdrawal and adopted a resolution accordingly, which was con tinned by tiie com- munity at a family meeting. In 1884 the plaintiff began an action against the community and a new corporation forme<l therefrom to jjrocure a judgment, declaring that he was still a mend>er of the conmmnity, and entitled to share in its jirojierty, and also for an accounting and a division of the property among the members. It was held that he could not maintain the action. On signing the articles the property of each subscriber immediately be- came an in.separable part of the community's capital, and while no one was comj)elled to toil, yet labor was enjoined as a religious duty, and the earnings of all were mingled in the common treasury. Every member was at liberty to withdraw at any time upon his own motion, but he could not take with him or demand as a right any share of the joint property; all must be left intact for the use and enjoyment of those who remained loyal to the pur- poses of the organization. An account was kept of the property contributed by a member upon his admission, and if he withdrew, it was the practice to refund it or its equiv- alent in value without interest or increase. This was not regarded as a liability, and the time and manner of refund- ing rested in the discretion of the community, through the voice of its members, but the education, subsistence, cloth- ing, and other necessaries of life furnished them and their children were to be received as just equivalents for all their labor and services, and no claim for wages was to be made

172 THE CIVIL LAW AND THE CHURCH

by auy witlidrawiiig iiieiiiber. There was a mutual stipula- tion that no member or his heirs, executors, administrators, or assigns would ever bring any action, eitlier at law or in equity, or other process or proceeding for wages or otlier compensation for services, nor for the recovery of any prop- erty contributed at any time, or make any claim or denumd therefor of any kind or nature whatsoever. Burt v Oneida Community, 137 N. Y. 346.

Order of St. Benedict. This order was founded by St. Benedict in Italy about the year A. D. 525. A civil corpora- tion known as the order of St. Benedict of New Jersey was chartered in that State. Augustin Wirth became a member of the order at the monastery of St. Vincent in Pennsyl- vania in 1852. In 1SS7 Wirth transferred his stability from the abbey of St. Benedict in Kansas to the abbey of St. Mary in Newark, New Jersey, and tlierefore to the order of St. Benedict of New Jersey. Wirth died at Springfield, Minnesota, December 19, 1901. It was held that he was a member of the New Jersey order at the time of his death. This action was brought by the New Jersey corporation to recover certain property held by Wirth at the time of his death, and which it was claimed belonged to the corporation by virtue of the vow of poverty taken by Wirth when he became a mend)er of the corporation. TTuder this vow Wirtli could not hold any jtroperty as his own ; he was entitled only to a decent su]»i)ort as a mendier of the corporation, and by becoming a member of it he agreed to give it every- thing which he then had, and everj^thing which he might thereafter acquire. During his later years Wirth wrote and published several books under contracts for royalty or other- wise, and performed other services for which he received comi^ensation, and he was allowed by the order to expend the sums received for his books for charitable purposes as the agent of the order. At the time of his death there was money on hand and also copyrights and other property. It was held that all the property acquired by him and money not disposed of at his death belonged to the order of St.

COMMUNITY SOCIETIES 17a

Beuedict of New Jersey, aud not to his administrator, uor to his heirs or next of kin, and that an action could be main- tained by the order to recover this property. The court also held that the contract included in the vow of i)overty was not void as alleged on the ground of public policy but was a valid contract. By it all that he acquired during his life- time became the projierty of the order. When he died every- thing that he left belonged to tlie order, and though the title to it stood in liis name that fact did not make it the property of his heirs. Order of St. Benedict of New Jersey v Stein- hauser, 179 Fed. (Minn.) 137. See same case in 34 S. Ct. (U. S. Sup.) !)32.

The ju<lgnient in tliis case was reversed by the Circuit Court of Apj)eals ( Steiiihauser v Order of St. Benedict, 194 Fed. 289, March, 1912) and it was there held that the canon law is of no intrinsic authority outside the jurisdiction of its origin or countries observing that system of hiw, except as it is sanctioned by statute or immemorial usage; that in this country it is the inherent aud natural right of every j)erson to acquire and hold property' in his own right and this right must be maintained by the state; that the legal title to a possession of the property in controversy was in Wirth at the time of his death, and under the statute of Minnesota would descend to his legal heirs, and that the order of St. Bene<lict was not entitled to such property.

Various questions relating to Fatlier Wirth's membership in the order, the rights of his administrator and of the pub- lishers of his books, including also the rights of the order itself were considered in Benziger v Steinhauser, 154 Fed. 151, where the character of the order is again described.

Separatists. In 1817 members of an association called Sep- aratists emigrated from Wiirttemberg, in Germany, to the United States. In Germany they had been persecuted on account of their religion. In that country they sought to establish themselves by purchasing land, but they found that the laws would not allow them this privilege. Dis- heartened by persecution and injustice, they came to this

174 thp: civil law and the church

country in pursuit of civil and religious liberty. They ar- rived in Philadelphia in a destitute condition, and were aided by the Quakers in Philadelphia and London, and en- abled to travel to Ohio, where they settled, A large majority of the society consisted of women and children. TVTiile the society was in Philadelphia they purchased, in the name of the chief member of the society, 5,500 acres of land in Zoar, Ohio, They found the property practically a wilderness. They were economical and industrious. In April, 1819, the society prepared articles of association, signed by 53 males and 104 females. Among other things the articles provided for a community of property. The members renounced all individual ownership of property. The business was to be conducted by three trustees elected annually, and members who might leave the society were to receive no compensation for labor or property, except by a vote of the majority. Amended articles of association were formed in 1824, The articles contained numerous details rehitive to the owner- ship of the property, and the administration of the society's affairs. In 1832 the society was incorporated by the law of Ohio.

At first there was a division of the property, each family selecting as many acres as it could reasonably improve, but it was abandoned before the first articles of association were adopted. "It appears that by great industry, economy, and good management and energy, the settlement at Zoar has prospered more than any part of the surrounding country. It surpasses probably all other neighborhoods in the State in the neatness and productiveness of its agriculture, in the mechanic arts, and in manufacturing by machinery. The value of the property is now (1852) estimated to be more than a million of dollars. This is a most extraordinary advance by the labor of that community, about two thirds of which consists of females."

An action was commenced by heirs of one of the original proprietors for a partition of the property, but it was held that all individual rights of property became merged in the

COMMUNITY SOCIETIES 175

titk' of the ussocialioii. There was uo descent of property in the ordinary sense upon the death of a member of the coMinninity. If inenibers separate themselves from the so- ciety, their interest in the property ceases, and new mem- bers that may be admitted under the articles enjoy the advantages coiiimon to all. The action for partition could not be maintained, (loesele v Bimeler, 14 How. (U. S.) 589.

For a later case involving the same subject, and with the .same result, see (Jasely v Separatists Society of Zoar, 13 Ohio St. 144.

Shakers. See the separate article on this topic below.

CONFESSION OF FAITH

Defined, 176.

Defined. A confession of faith is simply the construction which a particular religious organization gives to the Holy Book. Boyles v Roberts, 222 Mo. 613.

176

CONGREGATION

Public, defined, 177. Defined, 177. Government, 178.

Public, Defined. Wliat is necessary to constitute a con- grej^ation has not been very .strictly defined, but it has been commonly considered that "where two or three are gathered together" there is the sutlicient number to constitute a con- gregation. Barnes v Shore, 1 Kobertsou's Eccles. Eej). ( Eng. ) :i82.

Followed in Freeland v Xeale, 1 Robt. Eccles. (Eng.) G48, where proceedings were takt-n against a clergj-man for pub- licly reading prayers, ])reaching, and administering the sacrament of the Lord's Supper in an unconsecrated build- ing called Sackvillc College Chapel, without a license of, and contrary to the inhibition of the bishop of the diocese. It was claime<l in defense that the reading of prayers in the college chajiel, was not a jfublic reading, for the reason that the members of the college constituted a private family or hou.sehold. But it also appeared that strangers were some- times i)resent at chai)el service. The court said it was impossible to .say that the a.ssemblage was a private family, and under the circumstances the reading of prayers was a [)nl)lic leading and contrary to the rules.

Defined. -The congregation, before the sale of pews, con- sists of those who have in fact united together, and by mutual agreement under seal, or by any less formal mode, by the subscription ()f i)apers or otherwise, have agreed to form a religious society, and have contributed, or bound themselves to contribute, toward the cost of buildings and the support of jniblic worship." "^AHiere pews have been .sold or have been assigned and set apart, to be held in

177

178 THE CIVIL LAW AND THE CHURCH

severalty, this is conclusive evidence that such pewholders are members of the congregation." Attorney General v Pro- prietors of Federal Street Meeting House in Boston, 3 Gray (Mass.) 1, 44.

Government. An independent congregation may be gov- erned by the majority of its own membership, but a congre- gation connected with any given denomination must submit to the system of discipline peculiar to the body with which it is coiinocted. Krecker v Shirey, 163 l*a. 534.

CONGREGATIONAL CHURCH

Definition, 179.

Described, 180.

Organization, general principles, 183.

Advisory councils, 183.

Deacons, status, 183.

Home Missionary Society, 183.

Minister, mode of settlement, 184.

Minister, contract of settlement, 184.

Missions, 185.

Platform, 185.

Ilepublican govermnent, 185.

Saybrook platform, 185.

Definition. "The term 'Cougregationalist,' as used to (Icsifjiiiite a religious sect, is not unknown in England; but in I'ligland, Congrcgationalists and Independents are now aiul always have been one and the same dcMioniination ; and the two terms are there used indilferently, to signify the same seet and the same system of ecclesiastical polity." "At the time of the lirst emigration to New England the colonists were Congregational and independent in their opinions." As early as 1(140 the churches in New England were denominated Congregational, and were not known as Independent. Congregaticnialists and Independents were ill their origin the same religions sect; they sprung in the tonimencement from the same principle, to wit, that each church and congregation were independent of all others. It was ui»on this fundamental principle of church polity and discipline that Congregationalists separated from Pres- byterians and Episcopalians, and formed themselves into a new and distinct denomination, and not on account of any difference in matters of faith and doctrine, for in doctrine they agreed substantially with the other Protestants. "They held that the Scriptures were the only standard and test of

179

180 THE CIVIL LAW AND THE CHURCH

religious truth ; that no church was bound by any general creed or confession of faith, which might be set forth as an exposition of the doctrines taught in the Scriptures; that it was the right and duty of each church, and of each individ- ual to resort directly to the Scriptures as the source of Divine truth; that each church was at liberty to settle its own articles of belief, provided they were founded on the Scriptures, and acknowledged Christ as head and Master." "Each church had the right to choose and change its own standard of religious character and doctrine, for member- ship and fellowship." "The system of fellowships and asso- ciations among churches and ministers appears to have been unknown for some years after the first settlement of New England, but began to come into use as early as 1631." "The ministers united in associations; they assembled in councils, and synods, and recommended with all the author- ity of united opinion in a body of men who then had the real control in matters civil as well as religious, rules of discipline and articles of faith." From the opinion of Judge Perley in Attorney General ex rel Abbot v Dublin, 38 N. H. 459.

"A Congregational church is a voluntary association of Christians united for discipline and worship, connected with, and forming a part of some religious society, having a legal existence." Anderson v Brock, 3 Me. 243.

Described. The church is composed of those persons, being members of such parish or religious society, who unite them- selves together for the purpose of celebrating the Lord's Supper. They may avail themselves of their union and association, for other purposes of mutual support and edi- fication in piety and morality, or otherwise, according to such terms of church covenant as they may think it expe- dient to adopt. But such other purposes are not essential to their existence and character as a church. The body of communicants gathered into church order, according to the established usage in any town, parish, precinct, or religious society established according to law, and actually connected

CONGREGATIONAL CHURCH ISl

aud associated therewith, for religious purposes for the time being, is to be considered as the church of such society as to all questions of property depending upon that relation. Stebbins v Jennings, 10 Tick. (Mass.) 172.

A parish and church are bodies with different powers. A regularly gathered Congregational church is composed of a number of persons, associated by a covenant or agree- ment of church fellowship, principally for the purpose of celebrating the rites of the Supper and of baptism. They elect deacons; and the minister of the parish is also iidnntted a member. The deacons are made a corporation, to hold property for the use of the church, and they are accountable to the members. The members of a church are generally inhabitants of the jiarish ; but this inhabitancy is not a necessary qualification for a church member. This body has no power to contract with or to settle a minister, that power residing wholly in the parish, of which the mem- bers of the church, who are inhabitants, are a part. The parish, wheii the ministerial office is vacant, from an ancient and respectable usage, wait until tlie church have made choice of a minister, and have requested the concurrence of the parish. If the parisli concur, then a contract of settle- ment is made wholly between the parish and the minister, and is obligatorj^ only on them. The proceedings of the church, so far as they relate to the settlement, are only a nomination of a minister to the parish, which may be con- curred in or rejected. This view of the subject must be confined to parishes created by the general laws of the land, and not extended to parishes incorporated specially with different powers. Burr v First Parish in Sandwich, 9 Mass. Re. 27G.

The character, powers, and duties of churches gathered within the various Congregational parishes and religious societies in this commonwealth have been definitely known and understood from the earliest period of its existence. Indeed, the main object of the fir.st settlers of the country, in their emigration hitlier, was to manage their religious

182 THE CIVIL LAW AND THE CHURCH

affairs in their own way. The earliest thing they established was a congregation and Congregational chnrch, The legal character of the Church was well understood. It was a body of persons, members of a Congregational or other reli- gious society, established for the promotion and support of I)ublic worship, which body was set apart from the rest of the society, for peculiar religious ob.servances, for the cele- bration of the Lord's Supper, and for mutual edification. Tliey were usually formed and regulated by a covenant, or articles of agreement, which each separate church formed for itself, sometimes with the advice of other churches, by which they mutually stipulated to assist each other, b}' advice and counsel, in pursuing a Christian course of life, to submit to proper censure and discipline for any devia- tion therefrom, and, generally, to promote the essential growth and welfare of each other. They might consist of all or only a portion of the adult members of the congrega- tion with which they were connected. The earliest statutes of the colony recognize the churches, not as corporations, or even as quasi corporations, but each as an aggregate body of Christians in each religious society, collected together and united by covenant and by usage and recognized by law; and these statutes provide that their rights and usages shall be respected, and that they shall be encouraged in the exercise and maintenance of the same. Charters and General Laws of the Colony and Province of Massachusetts Bay, 100. Weld v May, 9 Cush. (Mass. i 181; see also North Carolina Christian Conference v Allen, 156 N. C, 524.

"A Congregational church is, by the institution of Christ, a part of the militant visible church, consisting of a company of saints by calling, united into one body by a holy covenant, for the public Avorship of God and the mutual edification one of another, in the fellowship of the Lord Jesus." Cam- bridge Platform quoted in Holt v Downs, 58 N. H. 170, where it was further said that what the Congregationalists established in Massachusetts was, not the reign of the parish over the cliunli, but the reign of the church over the

CONGREGATLOXAL CHURCH ls:5

parish and every other civil iii.stitution. "We cannot but take judicial notice of the historical fact that American Congregationalism has always been a vehement and uncom- ])romising protest against a union of a church and a secular body, nut revocable at the pleasure of the church."

Organization, General Principles. The fundamental idea of Congregational polity under which the churches of New England were gathered, was that the particular estates of visible saints who under Christ, their head, are statedly joined together for ordinary communion with one another in all the ordinances of Christ, are particular churches, hav- ing right to choose their own officers, and discipline, admon- ish, and excommunicate scandalous and otfending members. Gibbs V Gilead Ecclesiastical Society, 38 Conn. 153.

Advisory Councils. The system of advisory councils is an integral and vital part of the polity of the Congregational Church, and in this case is expressly recognized by the con- stitution of the local church. Arthur v Norfield Congrega- tional Church, 73 Conn, 718.

Deacons, Status. In Boutell v Cowdin, 9 Mass. 254, it was held that the deacons of the society did not constitute a cor- poration for the purpose of receiving and managing a fund for the support of a minister, and that a promissory note given to the deacons in aid of a fund for the support of a minister of a parish was void as without consideration.

Home Missionary Society. The testatrix made a bequest to the Home Missionary Society of America. There was no society bearing the name mentioned in tlie will. The ques- tion in this case involved the identity of the society intended as the object of her bounty. The legacy was claimed by the Congregational Home Missionary Society. This society was organized in New York in 1871, under the name of the American Home Missionary Society. Originally, this asso- ciation, then unincorporated, beginning in 1826, had been composed of representatives or members of four church bodies, namely, the Congregational, Dutch Reformed, Pres- byterian, and Associate Reformed ; but in 1837 the l*resby-

184 THE CIVIL LAW AND THE CHURCH

terian Church divided into two branches, known as Old and New Schools, and only the New-School branch con- tinued the connection with the mission work carried on by the American Home Missionary Society. The local Presby- terian church to which the testatrix belonged for many years made contributions to the American Home Missionary Society.

A will giving a legacy to the American Home Missionary Society was made in 1892, and another in 1896, but it did not appear that the testatrix knew that in 1893 the name of the society had been changed. The court held that the Con- gregational Home Missionary Society, being the corporate successor of the society named in the will, was entitled to the legacy. Congregational Home Missionary Society v Van Arsdale, 58 N. J. Eq. 293.

Minister, Mode of Settlement. From the ancient and im- memorial usage of Congregational churches, before the par- ish settle a minister he preaches with them as a candidate for the settlement, with the intent of declaring his religious faith, that his hearers may judge whether they approve his theological tenets. And if he is afterward settled, it is understood that the greater part of the parish and the min- ister agree in their religious sentiments and opinions. Burr V Sandwich, 9 Mass. 270.

Minister, Contract of Settlement. In a contract by which a minister is settled over a Congregational parish, it seems that a stipulation that the contract shall be binding on the parish until the minister shall be dismissed by a mutual ecclesiastical council, which shall be called for that purpose by a majority of the church belonging to the parish, is not illegal ; but if it be illegal and void, still the parish cannot dissolve the contract at their own pleasure, without some misconduct on the part of the minister. Peckham v North Parish, Haverhill, 16 Pick. (Mass.) 274.

An action to recover the income of the parish fund will be found reported under same title in 19 Pick. (Mass.) 559. It was held that the plaintiff was not entitled to recover.

CONGREGATIONAL CHURCH 185

Missions. Testatrix gave certain funds to be used for carrying on wonieu's work in foreign lands and to women's work in home lands "not Tank Home." The bequest for work in home lands was held payable to the Women's Home Missionary Union of the Congregational Churches of Michi- gan, The bequest for foreign lands was held payable to the Women's Board of Missions of the Interior. Both soci- eties were organized under the auspices of the Congrega- tional Church.

There was also a bequest for Protestant Missionary Work among poor colored people of the South. This bequest was held payable to the American Missionary Association. Gil- christ V Corliss, 155 Mich. 12G.

Platform. Congregationalists have their code, called the Platform of Church Discipline, agreed upon at Cambridge in 1648, and afterward ratified in 1080. They have also their confession of faith, in substance agreeing with the Presbyterian and the Episcopal, and differing little from the Romish. Among Congregationalists each church is inde- pendent if it chooses to be so. Each chooses and expels its members and its officers, and the sentence is final. Each Congregational church acknowle<lged no superior on earth. Muzzy V Wilkins, Smith's N. H. Rep. 1.

Republican Government. The distinguishing feature of the churches of the Congregational denomination is that each is a complete and independent republic, and adopts its own laws, its own constructions of the Scripture doctrine, its own church polity; and in none of these respects is it subject to any control by any other or more comprehensive organization. Cape v Plymouth Congregational Church, 1.30 Wis. 174.

Saybrook Platform. In order to establish a more energetic government the General Assembly provided for the calling of a sjTiod at Saybrook. The synod met pursuant to the act, and adopted a confession of faith, heads of government, and articles of discipline, together constituting the plat- form, and the object and purpose, it thus appears, was to

186 THE CIVIL LAW AND THE CHURCH

confederate the churches into a permanent establishment, and provide for a good and regular issue in cases of diffi- culty or ecclesiastical discipline, the regular introduction of candidates into the ministry, and the promotion of order and harmony among the ministers and churches. This was not simply a constitution, but an instrument for the con- federation of the churches under standing authoritative councils, for the perfection of discipline, the easing of diffi- culties, the preservation of the faith, and the rendering of assistance on all occasions ecclesiastical. Gibbs v Gilead Ecclesiastical Society, oS Couu. 153.

CONSCIENCE

Right inalienable, 187. Rule, 187.

Right Inalienable. The rights of conscience are inalien- able. Mere civil or political rights could be surrendered to the government, or to society in order to secure the protec- tion of other rights ; but the rights of conscience could not be thus surrendered ; nor could society or government have any claim or right to assume to take them away, or to inter- fere or intermeddle with them, except so far as to protect society against any acts or administrations of one sect or persuasion, which might tend to disturb the public peace or affect the rights of others. But when the rights of con- science come in question, the right of worshiping God either privately or publicly ; the right of making profession of any religion, privately or publicly, the entertaining of any reli- gious sentiments and the proper expression, maintenance and vindication of them whether in private or in public; the right of belonging to any persuasion, which word, in the sense in which it is here used, means a creed or belief, or a sect or party adhering to a creed or system of opinions, the belonging to any sect or denomination entertaining and pro- fessing and in a proper way striving to maintain and to teach both privately and publicly any religious creed or belief whatsoever, these rights are all held to be unalienable, are secured and guaranteed by the constitution. Hale v Everett, 53 N. H. 1.

Rule. In this land of libertj^, civil and religious, con- science is subject to no human law ; its rights are not to be invaded, or even questioned, so long as its dictates are obeyed, consistently with the harmony, good order, and

187

188 THJ<] CIN'IL LAW AND THE CllUKCH

peace of the coniiuiiiiity. With us modes of faitli aud wor- ship must always be numerous and variant ; and it is not the province of either branch of the government to control or restrain them when they appear sincere and harmless. Waite v Merrill, et al, 4 Me. 90.

CONSTITUTION

Defined, effect, 189.

Defined, Effect. The constitution is the contract of asso- ciation in churches and all unincorporated societies. It is binding upon all portions of the church, as well as all judi- catories thereof. It is the supreme law of the church and must be adhered to by every part thereof. Boyles v Roberts, 222 Mo. 613.

189

CUMBERLAND PRESBYTERIAN CHURCH

History, 190.

Courts, 191.

General Assembly, 192.

General Assembly, powers, 192.

Name, doctrines, etc., how changed, 193.

Presbytery, 193.

Session, 193.

Synod, 194.

Unincorporated society, liability, 194.

Union with Presbyterian Church, 194.

History. The Cumberland Presbyterian Chiircli was or- ganized in Dickson Comity, Tennessee, February 4, 1810. It was the outgrowth of the great revival of 1800, one of the most powerful revivals that this country has ever witnessed. The founders of the church were Finis Ewing, Samuel King, and Samuel McAdow. They were ministers in what is now commonly known as the Northern I*resbyterian Cliurch, but they rejected the doctrine of election and reprobation as taught in the Westminster Confession of Faith. These three ministers, on the date above referred to, met in a log cabin, and organized an independent presbytery, calling it the Cumberland Presbytery, and this was the beginning of the Cumberland Presbyterian Church. In three years the church had become sufficiently large to form three presby- teries, and these presbyteries in 1813 met and constituted a synod. This synod, in a paper called the "Brief Statement," set forth the points wherein the Cumberland Presbyterian dissented from the Westminster Confession. They were as follows: "I. That there are no eternal reprobates. 2. That Christ died not for a part only, but for all mankind. 3. That all infants dying in infancy are saved through Christ and the sanctification of the Spirit. 4. That the spirit of God operates on the world, or as coextensively as Christ has

190

CUMBERLAND PRESBYTERIAN CHURCH TJl

made atouemeut, in such a maimer as to leave all men inex- cusable."

In 1814 the synod revised the Westminster Confession of Faith in the particulars above referred to. Subsequently the General Assembly of the Cumberland I'resbyterian Church was formed; and in 1829 this judicature made such dianges in the form of government as were demanded by the formation of this church court.

The Cumberland I'resbyterian Cliurch grew in numbers and in influence, especially in the State in which it was or- ganized, and adjacent States, but its territory was not lim- ited to these. In 1906 it contained 17 synods, 114 presby- teries, and a total membership of nearly 200,000.

In 1903 committees were appointed by this denomination and by the regular I'resbyterians to consider the question of a union of tlie two denominations. This plan of union was consummated by the adoption of the report on union by the General Assembly held in Decatur, 111., in May, 1906. This General Assembly thereupon adjourned to meet there- after only as a component part of the General Assembly of the Northern Presbyterian Church. This plan of union had previously been adopted by a vote of the presbyteries, 60 voting in favor, and 51 against.

The dissenting members of the Decatur Assembly pro- tested against the action of the majority and declared them- selves to be the true General Assembly of the Cumberland Presbyterian Church. Mack v Kime, 129 Ga. 1. See also Pres. Ch. v Cumberland Ch., 245 111. 74., Landrith v Hudgins, 121 Tenn. 556, Boyles v Roberts, 222 Mo. 636, Fussell v Hail, 233 111. 73, Brown v Clark, 102 Tex. 323.

Courts. The constitution of the church creates certain church courts. It declares that the government of the church is to be exercised in some certain and definite form, and by various courts, in regular gradation. These courts are denominated church sessions, presbyteries, synods, and the General Assembly. The jurisdiction of each of these courts is defined in the constitution. Tlie church session

192 THE CIVIL LAW AND THE CHURCH

has jurisdiction of a single church. The presbytery has jurisdiction over the church sessions within a prescribed district. The synod has jurisdiction over three or more presbyteries. And the General Assembly has jurisdiction over such matters as concern the whole church. Every court is declared to have the right to resolve questions of doctrine and discipline seriously and reasonably proposed. And although each court exercises exclusive and original juris- diction over all matters especially belonging to it, the lower courts are subject to the review and control of the higher courts in regular gradation. The General Assembly has jurisdiction to review and decide all references and com- plaints regularly brought before it from the inferior courts, and to decide all questions respecting doctrine and dis- cipline, and to receive under its jurisdiction other ecclesias- tical bodies whose organization is conformed to the doctrine and order of this church. Mack v Kime, 129 Ga. 1.

General Assembly. The General Assembly is the highest court of the church and represents, in one body, all the particular churches thereof, and constitutes the bond of union, peace, correspondence, and mutual confidence among all its churches and courts. It must meet at least every two years. It consists of commissioners from several presby- teries according to a ratio specified in the constitution. Each presbytery is entitled to be represented by one min- ister and one ruling elder. Landrith v Hudgins, 121 Tenn. 556.

General Assembly, Powers. Certain members of this society brought an action against certain other members claiming to be adherents of the Northern Presbyterian Church in consequence of the action of the Decatur Assembly in adopt- ing the proposed plan of union. The court held that on the question as to whether there should be a reunion of the Cumberland Presbyterian Church and the Northern Pres- byterian Church it was for the determination of the General Assembly whether these two organizations were in accord with each other as to doctrine and order. The question was

CUMBERLAND PRESBYTERIAN CHURCH 193

decided by the General Assembly which was the only tri- bunal having jurisdiction, and the civil court would not attempt to revise the conclusions and findings of the Gen- eral Assembly. The General Assembly determined that there was no substantial difference between the doctrines and teachings of the Cumberland Presbyterian and the Northern I'resbyteriau Church, and therefore the General Assembly might, according to its sound judgment, deter- mine the further question whether it was expedient for the two denominations to form a union. The reunion of the two churches was valid, and tliose members of the local church who adhered to the new organization were entitled to the possession and control of the church propert3\ Macli v Kime, 129 Ga. 1.

Name, Doctrines, Etc., How Changed. The only way under section (50 of its constitution by which the General Assembly of the Cumberland Presbyterian Church would change the name of that organization, or change its doctrines or faith, was by proper amendments offered ;ts to their own con- fession of faith and organic law. It has no inherent power to wii^e out the name "Cund)erland Presbyterian Church," until by a two-thirds vote of the Assembly it has asked its presbyteries, by way of a proposed amendment, whether or not they will so permit. At all events, the people of the church were entitled to have the whole question submitted to the presbyteries. We do not think that the General Assembly had power to determine this question without a submission to the presbytery. There is nothing in any part of the constitution of the church which confers tins power upon the Assembly, and by section 25 that body is denied all powers not expressly conferred. Boyles v Roberts, 222 Mo. 613.

Presbytery. A presbytery consists of all the ordained ministers and one ruling ehler from each church within a certain district. Landrith v Hudgins, 121 Tenn. 550.

Session. The session is the governing agency of the con- gregation. The session, so far as composed of elders, is

194 THE CIVIL LAW AND THE CHURCH

created by the voice of the people who compose the congre- gation ; and by the combined voice of the presbytery, the session, and the people, the minister is attached to the con- gregation. Thus the session, composed of the leaders and the minister, is created by the joint action of the individual congregation, and the presbytery. The congregation is represented in the presbytery by an elder whom the session elects to that body. So far as it may be thought necessary, ujion any subject, to obtain the voice or know the will of the congregation, this is accomplished by the session bring- ing the mattei* before the congregation, and in some proper form obtaining the sense of that body. The church session consists of the minister in charge and two or more ruling elders of a particular church. Landrith v Hudgins, 121 Tenn. 556.

Synod. The synod consists of all the ordained ministers and one ruling elder from each church in a district compris- ing at least three presbyteries. Landrith v Hudgins, 121 Tenn. 55G.

Unincorporated Society, Liability. A note was given by individuals who were, in fact, trustees of the society, and gave the note in behalf of the society; but the society was unincorporated, and was therefore not liable on the instru- ment. Phcenix Insurance Company v Burkett, 72 Mo. App. 1.

Union with Presbyterian Church. In 1903 negotiations were instituted between the Cumberland Presbyterian Church and the regular Presbyterian Church for the reunion and union of the two bodies under the name and style of the Presbyterian Church in the United States of America. The plan of union was prepared by a joint committee of the two denonunatious, and was submitted to the presbyteries thereof, and was approved by a majority of such presby- teries, taking effect in 1906. By this plan the Cumberland Presbyterian Church accepted the revised confession of faith adopted by the Presbyterian Church in 1908, and the Gen- eral Assembly of each denomination adopted appropriate

CUMBEKLAND rPvESBYTERIAN CHURCH 11)5

resolutions in 1900 declaring the result of the vote and that the union of the two denominations had become effective. A large minority of the Cumberland General Assembly of 1906 protested against the union, and in several States litigation arose concerning the effect of the alleged union on the title to church property. In the following States the validity of the reunion and union was sustained, namely : Georgia, Mack v Kime, 129 Ga. 1 ; Texas, Brown v Clark, 102 Tex. 323 ; Kentucky, Wallace v Hughes, 131 Ky. 445 ; California, Permanent Committee of Missions v Pacific Synod, 157 Cal. 105; Indiana, Ramsey v Hicks, 44 Ind. App. 490; Illinois, Presby. Ch. of Lincoln v Cumb. Pres. Ch., 245 111. 74, Pleas- ant Grove Congregation v Riley, 248 111. 604; Arkansas, Sanders v Baggerly, 131 S. W. 49; Hayes v Manning, 172 S. W. (Mo.) 897, and Alabama, Harris v Crosby, 55 So. 231; also Morgan v Gabard, 58 So. (Ala.) 902; Oklahoma, First I*res. Ch. Wagoner v Cumberland Pres. Ch., Wagoner, 126 P. 197. In the following States the union was declared invalid : Missouri, Boyles v Roberts, 222 Mo. 613 ; Tennessee, Landrith v Hudgins, 121 Tenn. 556. The opinions in the foregoing cases include much historical matter and also interesting discussions of I'resbyterian forms of govern- ment, confessions of faith, and doctrinal standards, and the relations between civil judicial tribunals and church judi- catories in determining various ecclesiastical questions. The eleven cases above cited present a comprehensive study and review of numerous problems affecting the Presbyterian family of churches. In Fussell v Hail, 233 111. 73 the court considered the union of the two churches, but declined to entertain jurisdiction of the action on the ground that it involved only an ecclesiastical question which was not sub- ject to the supervision of civil courts.

The union was sustained in Barkley v Hayes, 208 F. 319 (Mo.), August, 1913. It was there held that the united church became vested with all property rights of each con- stituent; see also Sharp v Bonham, 213 F. (Tenn.) 660. Helm V Zarecor, 213 Fed. (Tenn.) 648.

DEACONS

Baptist Church, 196. Ecclesiastical officer, 196.

Baptist Church. Deacons of a Baptist Church are ex officio trustees, and have charge and control of its property, records, etc. Fulbright v Higginbotham, 133 Mo. 6G8.

Ecclesiastical Officer. The office of deacon "is an office not created or expressly authorized by State law, but is one created by an unincorporated ecclesiastical body, and filled by election by a body which possesses no corporate powers or functions. Over the office, and over the election to it, the courts of the State have no authority whatever; they are controlled exclusively by an unincorporated menibershii3 in an organization whose unincorporated tribunals decide for themselves, and decide finally upon the election." Attorney- General ex rel. Ter Vree v Geerlings, 55 Mich. 562.

196

DENOMINATION

Defined, 197.

Defined. I'ersuasion refers to the opinion, conviction or belief which occasions the sei>aratiou. Sect means the party persuaded, or who, entertaining opinions different from the rest, are cut off, or separated from the main body. Denom- ination is the next stej) in the process. It signifies the name the sect acquires when actually separated, and which is generally descriptive of the principal points in difference. Muzzy V Wilkins, Smith's N. H. Kep. 1.

197

DISCIPLES OF CHRIST

Government, 198.

Meeting, powers of minority, 198.

Government. Every Disciples congregation is practically independent ; other congregations of the same denomination may advise, but there is no superior tribunal of appeal. Alexander Campbell, the Disciples' greatest preacher, if not their founder, is quoted as saying, "It (the church) knows nothing of superior or inferior church judicatories, and ac- knowledges no laws, no canons or government, other than that of the Monarch of the Universe and its laws." Long v Harvey, 177 Pa. St. 473.

Meeting, Powers of Minority. This society was organized in 1832 and was not incorporated. A report was made to the Pennsylvania conference in 1889 showing that there were only 15 members in good standing, the remaining mem- bers having been excluded without notice or hearing. In 1890 a movement was initiated for the purpose of a hearing, by an appropriate tribunal, to adjust differences existing in the society. The result was an attempted meeting of the congregation in June, 1890, but the majority prevented the meeting, and refused to permit it to be held in the church. It was held in front of the church hj a minority which elected certain officers who assumed to transact other busi- ness. Kepresentatives of this minority brought an action against the majority to obtain possession of the church prop- erty. Ke]n-esentatives of four other congregations appeared and assumed to take part in the meeting of Jane, 1890, and that meeting proceeded to depose certain trustees and officers of the society who had been chosen by the majority. This proceeding by outsiders was irregular, and had no bind- ing effect on the society, nor on the officers diosen by it. Long V Harvey, 177 Pa. St. 473.

198

DISSENTERS

England, 199.

England. The dissenting church in li^ngland is not a free church in the sense in which we apply the term in this country, and it was much less free in Lord Eldon's time than now. Laws then existed upon the statute book ham- pering the free exercise of religious belief and worship in many most oppressive forms, and though I*rotestaut Dis- senters were less burdened than Catholics and Jews, there did not exist that full, entire, and practical freedom for all forms- of religious belief and practice which lies at the foundation of our political principles. And it is quite ob- vious, from an examination of the series of cases growing out of the organization of the Free Church of Scotland, found in Shaw's Reports of Cases in the Court of Sessions, that it was only under the pressure of Lord Eldon's ruling, established in the House of Lords, to which final appeal lay in such cases, that the doctrine was established in the Court of Sessions after no little struggle and resistance. Watson V Jones, 13 Wall. (U. S.) G79.

In 1765 the Protestant dissenters in Great Britain were distinguished by the several denominations of Presbyterians, Indei)endents, and Baptists. Waller v Childs, 2 Ambl. (Eng.) 524.

199

DISTURBING RELIGIOUS MEETING

Assembly, what constitutes, 200.

Camp ground, traffic, 201.

Christmas festival, 201.

Christmas tree celebration, 201.

Church trial, 201.

Common law, 202.

Conduct, 202.

Damages not recoverable, 202.

Decorum required, 202.

Defined, 202.

Described, 203.

Dispersion of congregation, 203.

Evidence, 205.

Extent, 208.

Extent, one person, 208.

Father removing child, 208.

Fighting, 203.

Grantor preventing occupancy of property, 209.

Intention, 209.

Interruption by expelled member, 209.

Intoxicating liquor, 209.

Intoxication, 210.

Meeting prevented, 211.

Motive, 211. _

Patrolman's vmreasonable interference, 211.

Preaching by rival, 211.

Protest against minister, 211.

Removal of disturber, 212.

Riot, 213.

Salvation Army, 213.

Scope of statute, 213.

Singing, 213.

Singing by choir, 214.

Statutes, constitutional, 214.

Summary conviction, 214.

Sunday School, 214.

Assembly, What Constitutes. In its true sense a religious meeting is an assemblage of people met for the purpose of performing acts of adoration to the Supreme Being, or to

200

DISTURBING RELIGIOUS MEETING 201

perform religious services in recognition of God as an object of worship, love, and obedience; it matters not the faith with respect to the Deity entertained by the persons so assembled. The law affords equal protection to the religious views, rites, and forms of worship of all denominations, all classes, and all sects, and does not undertake to state of what they shall consist, or how such services shall be con- ducted. Therefore, as to whether or not a congregation of persons constitutes a religious meeting assembled for reli- gious worship is necessarily largely a question of fact to be determined by the jury from the evidence and under proper instructions from the court. Cline v State, 130 Pac. 510 (Okl.).

Camp Ground, Traffic. The defendant sold ginger bread on a camp ground near a congregation engaged in religious service in violation of a statute which prohibited such a sale within one mile of a worshiping assembly. A conviction was sustained on appeal. West v State, 28 Tenn. 6G.

Christmas Festival. Section 4853 of the Tennessee Code is intended to protect assemblies met for religious worship. A meeting held for the enjoyment of a Christmas festival, though it was especially intended for Sunday school schol- ars and their teachers and friends, does not change its char- acter, nor make it an assembly for religious worship. Layne V State, 72 Tenn. 199.

Christmas Tree Celebration. The Christmas tree service which was intended to celebrate the birth, life, death, and resurrection of Christ, and in commemoration of the begin- ning of the Christian era, was held to be a religious service, and one who disturbed it by improper conduct was held liable to punishment therefor. Stafford v State, 154 Ala. 71; see also Cline v State, 130 Pac. (Okl.) 510.

Church Trial. Church autliorities, convened for the trial of a member of the society, are entitled to the protection of the law against llie disturbance of religious meetings, and a person who disturbs such a trial is liable to punishment therefor. Hollingsworth v State, 5 Sneed. (Tenn.) 518.

202 THE CIVIL LAW AND THE CHUKCH

Common Law. This is an offense at common law, People v Degey, 2 Wheeler Cr. C. (N. Y.) 135, and is indictable. People V Crowley, 23 Hnu. (N. Y.) 412.

Conduct. In State v Jasper, 15 N. C 323 it was held that laughing and talking, and indecent actions and grimaces, during the i)erformance of divine service, was a misde- meanor, and indictable.

Damages Not Recoverable. A person alleged to be dis- turbed in a religions service b}'^ noises, talking or singing or other demonstrations, has no cause of action for damages against the persons causing the disturbance. The law pro- vides a summary remedy for disturbing religious meetings. Owen V Henman, 1 Watts & S (Pa.) 548.

A private action cannot be maintained by an attendant upon divine worship. He does not receive special or par- ticular damage. If one can, every one may maintain a suit. First Baptist Church of Schenectady v The Utica & Sche- nectady Railroad Company, 6 Barb. (N. Y.) 313. Citing Owen v Henman, 1 Watts. & S. (Pa.) 548.

Decorum Required. "It must be understood that jjeople who go into a church, whether for the purpose of attending divine service, or of being present at a vestry, must keep themselves under restraint, and not depart from that de- corum which should always be preserved within conse- crated walls." Provocation is no defense to a charge of dis- turbing a meeting. North v Dickson, 1 Hagg. Eccles. Rep. (Eng.) 310.

Defined. To constitute the offense there must be a congre- gation assembled for religious worship, and that congre- gation, so assembled, must be disturbed, tliat is, agitated, aroused from a state of repose, molested, interrupted, hin- dered, perplexed, disquieted, or turned aside or diverted from the object for which they are assembled ; and the act which causes the disturbance must be willfully done. Rich- ardson V State, 5 Texas Ct. of App. 470.

To constitute a disturbance there must be not only an actual interruption or disturbance of an assemblage of

DISTUEBING RELIGIOUS MEETING 203

people met for religious worship, by noise, profane dis- course, rude or indecent behavior, or by some other act or acts of like character, at or near the place of worship, but such interruption or disturbance must be willfully made by the person or persons accused. The intent is of the very essence of the offense, and to be willful, it must be something more than mischievous, it must be in its character vicious and immoral. Brown v State, 40 Ala. 175.

The substance of the offence consists in the indulgence of improper conduct, and attracting the attention of any part of the assembly thereby ; and when these facts concur the offense is complete. Holt v State, 1 Baxter, (Tenn.) 192.

Described. It is an offense which tends to subvert those principles of morality which are the foundation of all good government, of all social order, and of all confidences be- tween man and man ; for the strongest sanction of those principles has, in all ages and countries, and under all forms of government and of religious worship, been found in reli- gious faith; in that relation which subsists between man and his Maker, the duties of which relation are in a par- ticular manner the subject of all religious instruction. U. S. v Lee, 4 Cranch ( U. S.) 446.

Dispersion of Congregation. After the benediction and before the people had left the house, the defendant assaulted the minister and used toward him rude and insulting lan- guage. It was held that it was for the jury to determine as a mixed question of law and fact, whether the congregation should be deemed dispersed at tlie time of the occurrence. State V Snyder, 14 Ind. 429.

After the church was dismissed, and the pastor and part of the congregation on their way home, the defendant, with others, engaged in a broil, and defendant, by cursing and swearing, disturbed those then on the ground; defendant behaved in an orderly manner so long as the pastor was present on the ground. The defendant's conduct was held to constitute a disturbance of worship, the court observing

204 THE CIVIL LAW AND THE CHURCH

that tlie purpose, spirit, and letter of the law are to protect the religious assembly from disturbance before and after services, as well as during the actual service, and so long as any portion of the congregation remains upon the ground. Dawson v State, 7 Tex. Ct. of App. 59.

To constitute an interruption or disturbance of an assem- blage of people met for religious worship, it is not necessary that the interruption or disturbance should be made during the progress of the religious services ; if made after the con- clusion of the services and the dismissal of the congrega- tion, but while a portion of the people still remain in the house, and before a reasonable time has elapsed for their dispersion, the offense is complete. Kinney v State, 38 Ala. 224.

An offense is established where it appears that the disturb- ance occurred even after the services were closed, and while the congregation were passing out of the house. Love v State, 35 Tex. Cr. Re. 27.

Where a congregation assembled for divine worship had, after the morning service adjourned for dinner to be served on the church grounds, with the intention of returning after the meal to the church house for an afternoon service, the congregation had not, in contemplation of the statute, dis- persed while partaking of their dinner, but were still as- sembled for the purpose of divine worship. A person who discharged a pistol in or near the place where the congre- gation was assembled for dinner was held properly convicted under the statute against disturbing religious meeting. Folds V State, 123 Ga. 167.

The congregation, which had been holding religious serv- ices, in the forenoon, took a recess until the afternoon serv- ice, and during this interval partook of a basket dinner just outside the church building. While the congregation was thus engaged, the defendant used language calculated to dis- turb the worshipers. He was held liable under the Ala- bama Statute, which the court said was not limited to dis- turbances during the actual progress of religious serv-

DISTURBING RELIGIOUS MEP:TING 205

ices, but the congregation was entitled to be protected against disturbance during tlie intermission. Ellis v State, 65 So. (Ala.) 412, 10 Ala. App. 252.

Evidence. Talking and beating on a tin can constitutes a disturbance under the Texas statute. Cantrell v State, 29 S. W. (Tex.) 42.

A camp meeting was disturbed at night. A conviction was sustained on evidence that the defendant was arrested at two o'clock in the morning, having in his possession a pistol, and that he was in company with one of the parties causing the disturbance; no explanation being given of his being out at that hour in such company-, and there were other circum- stances indicating his participation in the disturbance. Ball v State, 67 Miss. 358.

To constitute the statutory offense of disturbing religious worship, the act or discourse charged must have been inten- tional, and its natural tendency must have been to disturb the assemblage, to derange its quiet and order. It is not necessary that the assemblage should have been actually engaged in worship at the moment of the discourse, or of tlie conduct complained of. The statute applies to assem- bhiges wlien in the act of gathering together and until there has been a dispersi<m of the ]>ersons met for worship and they cease to be an assend)lage or congregation. Leave to speak given a member of the assemblage and the religious organization by the conductor of the services cannot justify or excuse a violent, passionate, and insulting discourse and deliberately made, and which hj its violence offends the order and decorum essential to Christian worship; nor is it any excuse or justification that the defendant while making such discourse was not called to order. Lancaster V State, 53 Ala. 398.

A charge of loud and vociferous talking and quarreling in a religious meeting was held sufficient to sustain an indict- ment under the Texas statute. Bush v State, 5 Tex. Ct. App. 64.

The cracking and eating of nuts during religious services

200 THE CIVIL LAW AND THE CHURCH

and thereby disturbing members of the congregation, may constitute a disturbance of religious worship. Hunt v State, 3 Tex. Ct. App. 116.

The defense showed that the persons charged with mak- ing the disturbance were members of the congregation as- sembled for religious worship. That during the service appellants were guilty of repeated acts of nusbehavior, and that in the closing prayer, after the conclusion of the ser- mon, one of them groaned aloud, which caused the minister to be disturbed, according to his testimony. It further appeared, and presumably from evidence, that during prayer appellants were laughing and talking together to such an extent as to distract the attention of persons in the con- gregation, and cause them to turn their thoughts from wor- ship to ascertain the cause of the disturbance. A conviction was sustained on appeal. Friedlander v State, 7 Tex. Ct.

App. 204.

''If the persons without the house had separated them- selves from those within, who were engaged in religious worship, and no longer participated in the purposes for which the congregation had met, but had wholly discon- nected themselves from the assemblage, with no intention of again participating in the purposes of the meeting and were engaged in the discussion of other matters," then the disturbance of one or more of such persons would not come within the proliibition of the Alabama statute. Adair V State, 134 Ala. 183.

The conduct alleged as a disturbance must in fact have disturbed the meeting, and conduct of a person, however reprehensible and indecent, which does not in fact disturb the assembly of people met for religious worship, and though committed at or near the place of worship, is insufficient to authorize a conviction under the statute. Cox v State, 13G Ala. 94.

In a trial for disturbing religious worship evidence that defendant, together with others, disturbed the congregation by talking and laughing is admissible as when he and the

DISTUKBING KELIGIOUS MEETING 207

others couversed among themselves; the act of one was the act of all.

On a prosecution for disturbing religious worship, evi- dence that, after the preaching was over, defendant in answer to a remark that the preacher would bust him, stated that if the preacher fooled with him he would shoot him, is admissible to show that his talking during the preaching was maliciously done.

Where defendant knows that the remark addressed to him referred to a probable prosecution for disturbing the preach- ing his answer is admissible as a tacit admission that he was connected with the disturbance.

On a prosecution for disturbing public worship, testimony that the preacher ceased preaching and spoke to the defend- ant and the others participating in the disturbance about their talking, is not admissible as hearsay. McAdoo v State 35 S. W. (Tex. Ct. of Crim. App. ) 966.

The disturbance consisted of various acts by the defendant intended to exhibit not only his dissent from the faith and practices of those conducting the meeting, but also to show his contempt therefor. This was done by deriding and mak- ing sport of the same, stating to a person engaged in prayer "to pray louder; peradventure your God is asleep, or has gone on a journey." Chisholm v State, 24 S. W. 64G (Tex. Crim. App.)

The African Congregational Church in Paris, Texas, being tlie owner of the church edifice, permitted the use of it by Methodist and Baptist congregations in the same town on days agreed upon. One Sunday, when the Baptists were occupying the church, the sexton of the African Society entered the church while service was in progress, and the minister was preaching, and called out a member of the society, and the two outside the door had an altercation A\;liich disturbed members of the congregation, and a min- ister sitting in the pulpit went out to ascertain the cause of the disturbance. The sexton was arrested for disturbing a meeting, and claimed in defense that on that day the

208 THE CIVIL LAW AND THE CHURCH

Methodists were entitled to the use of tlie cliiiroh. His con- duct was held to be a disturbance of the meeting and he was convicted. Horn v State, 4 Tex. App. G7.

A prima facie case was deemed made where it appeared that two witnesses testified that the defendant entered the church with a large stick, remaining within but a short time, and afterward was heard by them talking out of doors, occasionally using profane language in the tone of voice loud enough to be heard over the church, and that they were disturbed, but did not notice that it particularly dis- turbed the remainder of the congregation. McElroy v State, 25 Tex. 507.

Extent. The congregation need not all be disturbed. A noise audible iu all parts of tlie house, and which disturbs a considerable part of the congregation, constitutes a dis- turbance within the statute. Clark v State, 78 S. W. (Tex.) 1078.

Extent, One Person. The disturbauce of one person only while a member of a congregation engaged in religious wor- ship is a violation of the statute. State v Wriglit, 41 Ai^. 410, Walker v State, 146 S. W. 8G2.

It is a violation of the Texas statute against the disturb- ance of religious worship if but one worshiper be disturbed by the loud talking or abusive language, and it is not error for the court to so instruct the jury. McVea v State, 35 Tex. Crim. 1.

Every individual worshiper in the congregation, as well as the entire congregation, is protected by the statute from rude and profane disturbauce during the solemn moments of public worship. It was therefore held that profane lan- guage addressed to- one person in the congregation was suffi- cient to constitute the offense. Cockreham v State, 7 Hump. (Tenn.) 11.

Father Removing Child. A father has no right to enter a church, and during divine service take away by force and violence his minor child, in such manner as to disturb the congregation. In this case the child was a daughter about

DISTURBING RELIGIOUS MEETING 20!)

lifteen years of age, aud was participating in the service wlien lier lather entereil and took her by the ami aud told her to come iioiiie. (J'oiiiiiioiiwealth v Signuui, 2 Clark (Pa.)

Fighting. A conviction wa,s deemed made out for <listurb- ing religions worship on proof that the defendant willfully and intentionally engaged in a fight, without lawful excuse, or necessity, at or near a ])lace at which ])eople were en- gaged in worshij), even though he did not bring on the difficulty, nor strike the first blow. Goulding v State, 82 Ala. 48.'

The defendant was engaged in a fight with another per- son, some thirty-five yards from the place where the reli- gious .service was being held. Somebody notified the congre- gation that there was a fight. It was held that the defend- ant's act of fighting did not disturb the congregation, which could not have known of the fight exce])t for the notice by a third ]>ei-son. State v Kirby. 108 N. C. 772.

Grantor Preventing Occupancy of Property. A j>erson who lield u deed of the land on which a meeting hou.se had been erected, claiming title thereto, locked the door and pre- vented services from being held. This was not a disturbance of religious worship. Davis v State, 16 South. (Mi.ss.) 377.

Intention. The defendant cannot prove a secret intention not to distull) the assenddage, although he may rebut the ](resumption of guilty intent by proof of a lawful excuse. Williams v State. S:! Ala. t;8.

Interruption by Expelled Member. It was held to be a dis- turbance for an expelled member to interrupt the service by calling attention to his recent expulsion and protesting against it, and j)ersisting in this interrui)tion against the remonstrance of the minister aud others. State v Ramsay, 78 N. 0. 448.

Intoxicating Liquor. In Burden v State, 8 Ga. App. 118, it was held that persons who go to churches must not carry liquor or have liquor either on their insides or on their out- sides.

210 THE CIVIL ].AW AND THE CHURCH

The Georgia Penal Code, sectiou 438, foi'bi<ls any person from carrying to a clmrcli, or other place where the people have assembled for divine worship, an}^ liqnor or intoxicat- ing drink. But by section 441, it is not unlawful to use in- toxicating liquors at such places in case of accident or mis- fortune, nor are practicing physicians prohibited from carrying and using such liquor as they might deem necessary in their regulnr practice. The defendant attended a church service with his wife, and left his buggy between one hun- dred and two hundred yards from the church, and left in the buggy some whisky in a bottle, which he snld lie carried on the advice of a phj^siciaji on account of the illness of his wife so as to have the medicine ready in case of a sudden attack. The court overruled the defense, saying among other things that the prohibition contained in the statute was imperative, and forbids its introduction not only into a religious semice, but also to a place in such immediate proximity to the church building as to make it readily accessible to those who may desire to use it. Bice v State, 109 Ga. 117.

The Pennsylvania act of 1822, forbidding the sale of any kind of articles of traffic, spirituous liquors, wine, porter, beer, or any fermented, mixed or strong drink, within three miles of any place of religious worship during meetings for that purpose, was held to apply to the sale of such articles as would have a tendency to produce intoxication and con- sequent disturbance ; the sale of articles of food that could have no tendency to intoxicate is not within the prohibition. Fetter v Wilt, 46 I'a. St. 457.

Intoxication. Defendant, while under the influence of liquor, went into a church after the services had begun, talked loud enough to attract attention, used profane lan- guage, and said he could pray as well as the preacher, and would do it. His conviction was sustained, the court on api)eal holding that the trial court properly refused a re- quest to charge that the jury must find defendant not guilty "if they believe from the evidence that what he said and did

DISTURBING RELIGIOUS MEETING 211

was said aud done heedlessly or recklessly, that is, care- lessly, without thiukiug of the probable consequence." Johnson v State, 92 Ala. 82.

Meeting Prevented. A person w^ho took possession of the doorstep of a church aud by threats and violence prevented the congregation from holding a service as intended, in con- sequence of which they dispersed without entering the build- ing and engaging in worship, was held guilty of disturbing 51 religious meeting under the Georgia statute. Tanner v State, 120 Ga. 77.

I'ersons entered the church, locked the door, and pre- vented worshri>ers from assembling. Preventing a meeting from assembling is not a disturbance within the meaning of the I'ennsylvania statute. There could be no disturbance unless the worshipers had assembled. Commonwealth v Underkotfer, 11 Pa. Co. Ct. 589.

Motive. To constitute the statutory offense of disturbing religious worship the act must be willfully or intentionally (lone; it is not sufficient that it was done recklessly or care- lessh'. Harrison v State. 87 Ala. ( N. S. ) 154.

Patrolman's Unreasonable Interference. An unlawful or unreasonable interference by a patrol in the service of a religious meeting constitutes a disturbance thereof. Bell v Graham, 1 Nott & McC. (S. C.) 168.

Preaching by Rival. A preacher who occupied the pulpit and preached to the congregation, instead of permitting a rival to preach tlie sermon, was held not guilty of disturbing the meeting. The church was divided into two factions, each of which claimed the right to conduct the service. The l>reacher wlio first obtained possession of the pulpit aud preached the sermon did not thereby commit any offense. Divine w'orship was not prevented, but was actually carried on. \A^oodall v State, -1 Ga. App. 783.

Protest against Minister. The defendants w^ere held indict- able for attending a religious meeting for the purpose of protesting against the preaching of a certain minister whose authority to act they disputed. In consequence of this pro-

212 THE CIVIL LAW AND THE CHURCH

test there was a disturbance of the meeting, and the min- ister was forced to withdraw from the church. Common- wealth V Dupuy, Brightly N. P. (Pa.) 44.

Removal of Disturber. A person disturbing a religionis meeting and interrupting its order and decorum, may be removed therefrom by the application of force suflScient for that purpose. The disturbance need not be willful. Where in a Roman Catholic meeting a person rose in his place and demanded of the priest an explanation of a part of his ser- mon, and on being rebuked and ordered to leave the room refused, it was held that the priest, as presiding officer of the meeting, had authority to remove the disturber by the application of needed force, and for that purpose might call to his aid other members of the congregation, and that a priest, who had attempted to remove a person so disturbing the meeting, was not liable to an action for assault. Wall vLee, 34N. Y. 141.

Vestrymen have authority to preserve order at public services, and to remove, or cause the removal of a person disturbing such services. Beckett v Lawrence, 7 Abb. Pr. N. S. (K Y.) 403.

Every congregation of worshiping Christians must neces- sarily have authority to preserve order and decorum during the time of religious worship. If any man were to force himself into the church during divine service, and by noise and violence disturb the congregation, the officers of the church might request him to be quiet, or to go out, and if he would not, to put him out by force, taking care to do him as little injurj^ as possible. If he should commit acts of violence, and a breach of the peace, the officers of the church or members, or both, might resort to any means of defense which they might reasonably deem necessary to defeat the assailant's ])urposes and rid the house of such nuisance. In this case it was held that a father had no right to enter a church, and during divine .service take away by force and violence his minor child, in such manner and under such cir- cumstances as to <listurb the congregation. The members

DISTURBING RELIGIOUS MEETING 213

of the coiigTegation have their rights; the house is theirs, and is dedicated to the worship of Aluiighty God. Com- mou wealth v Sigmau, 2 Clark (Pa.) 36. See note on Father Removing Child.

Riot. In State v Jones, 77 S. C. 385, it was held that engaging in a riot forty feet from a congregation in reli- gions worshij) was so certain to disturb the congregation as that it must be held to have been within the contempla- tion and intention of all participants.

Salvation Army. One who enters a religious service con- ducted by the Salvation Army and, keeping his hat on and a cigar in his mouth, persists in conducting himself in an offensive manner, and so diverts attention from the services then in progress, violates the statute against the disturbance of religious meetings and is liable to punishment therefor. Hull v State, 120 lud. 153.

Scope of Statute. The statute is applicable, not only to disturbances which are made while the religious services are progressing but at a camp meeting, and after the reli- gious services are closed for the day, and the congregation has retired to rest. In this case the defendant was charged with going about on the camp ground, among the tents, blowing a horn after the worshipers had retired for the night. A conviction was sustained. Commonwealth v Jen- nings, 3 Graft. (Va.) G24.

Singing". The defendant's alleged offense consisted in his singing which was described to be so peculiar as to excite mirth in one portion of the congregation and indignation in the other, his voice being heard at the end of each verse after all the other singers had ceased. To the expostulations against his method of singing he replied that he would wor- ship his God, and that as a j)art of his worship it was his duty to sing. Defendant was a devout member of the church and a man of most exemplary deportment. The prosecution admitted that he did not intend to disturb the meeting. A conviction was reversed on appeal, the court observing that the defendant might be a proper subject for discipline by

214 THE CIVIL LAW AND THE CHUECH

his church, but not for discipline by the court. State v Linkhaw, 09 N. C. 215.

Singing by Choir. Singing by a church choir according to the usual custom and in a quiet and orderly manner, though contrary to the announcement of the pastor of a Methodist Protestant congregation that there would be no singing at that service, did not constitute a disturbance of a religious meeting. Commonwealth v McDole, 2 Pa. Dist. R. 370.

Statutes, Constitutional. A statute prohibiting certain kinds of business within a specified distance from the place where religious services are being held is constitutional, and is in aid of the provision of the constitution securing liberty of religious worship. State v Cate, 58 N. H. 240.

Summary Conviction. Under the New York act of 1813 as amended in 1824 relative to the disturbance of religious meetings, it was held that a justice of the peace might order an offender into the custody of a constable without warrant and proceed to a summary conviction for the offense, it ap- pearing that the offense was committed in the presence of the justice of the peace. Farrell v Warren, 3 Wend. (N. Y.) 254.

Sunday School. A person who willfully disturbs a Sun- day school is indictable at common law, and the North Carolina statutes are amply sufficient to cover such a case. State V Branner, 149 N. C. 559.

A Sunday school, where the Bible and the precepts of religion are taught, is a place of public worship within the statute prohibiting the disturbance of religious meetings. Martin v State, G Baxter (Tenn.) 234; see the article on Religious Worship, sub title, Sunday School.

DOCTRINE

Civil courts no jurisdiction, 215. How ascertained, 215. Predestination, 215.

Civil Courts No Jurisdiction. What is theologically true in religion it is agreed on all hands that the courts are not couiijetent to decide; nor have they power to deternnne what is really and intrinsically substantial and essential in matters of doctrine. Attorney-General ex rel Abbott v Dublin, 38 N. H. 450.

How Ascertained. "Where a trust is created by deed for the use of a congregation of Christians designating such congregation by the name of a sect or denomination, without any other specifications of the religious worship intended, the intent of the donors or founders in that respect may be implied from their own religious tenets, from the prior and contemporary usages and doctrines of the sect or denomina- tion to which such congregation belongs. In ascertaining the early and contemporary usage and doctrines of such sect resort may be had to history, and to standard works of theol- ogy of an era prior to the existence of the dispute of con- troversy." Kniskern v Lutheran Church, 1 Saudf. Ch. (N. Y.) 439.

Predestination. The doctrines of absolute predestination and of limited predestination are both taught in substance in churches of good standing in the associations of the Prim- itive Baptist Church in Kentucky, and as there is no una- nimity upon the subject in the teachings of those recognized as learned in the doctrine of the church, the teaching of either of these doctrines is not a departure from the faith as understood in 1845, at the time church property was con- veyed for the purposes of a church of that denomination. Bennett v Morgan, 112 Ky. 512.

215

DOWIEISM

Leadership, question of succession, 216.

Religious belief as excuse for parental neglect, 216.

Leadership, Question of Succession. This question was con- sidered in Lewis v Voliva, 154 111. App. 48, where it was held that the civil courts would not decide the question of leadership, but that the question must be left to the church to be determined according to its laws and usages, no prop- erty right being involved in the controversy.

Religious Belief as Excuse for Parental Neglect. See State V Chenoweth, 163 Ind. 94 for a case where the defendant charged with manslaughter on account of the death of his infant child eight months old excused his neglect to provide medical aid for the child on the ground that he believed in divine healing without the aid of medicine, according to the views maintained by John Alexander Dowie. The case con- tains a review of authorities bearing on the question whether religious belief is a valid excuse under such circum- stances. The court directed a verdict of acquittal for fail- ure of evidence.

216

BUNKERS

Deed, license, trust, 217.

Deed, License, Trust. In 1787 land was conveyed to nine persons as trustees of the local societj^ known as German Baptists, commonly called Bunkers, for the exclusive use forever of the German Baptist Society. The deed did not express that it was for a church, and it was held void under the 34th article of the Maryland Declaration of Eights.

In 1808 the same grantor, for the purpose of correcting defects in the original deed, made a new deed in which it was declared that tlie land was intended as a burial ground for members of the German Baptist Society, commonly called Dunkers, and such other persons as the trustees might l)ermit to be buried therein, and any house of worship to be erected on the land was to be used by the society and others.

No house having been built on the lot, an agreement was made by the German Baptist Society in 184U with the trus- tees of the congregation of the Disciples of Christ, by which the latter agreed to erect on the lot a house of worship, to surround the land with a brick wall, and also erect a vault on the i)remises. The building was to be used exclusively by the second society as a jdace of worship, or such society might, at its oi)tion, permit the building to be used by other l)ersons. The building was erected and used. The present action was brought by the trustees under the original deed to recover possession of the i)roperty, on the alleged invalid- ity of the license under whicli the second society procured its right to erect the house of worship and take possession of the property. It was held that the license was valid, and that the action to set it aside could not be maintained.

217

218 THE CIVIL LAW AND THE CHURCH

Whatever remedy the grantors of the license may have had by way of forfeiture of the property nmst have been resorted to in a court of law and not in a court of equity. Grove v Trustees of the Congregation of the Disciples of Jesus Christ, 33 Md. 151.

ECCLESIASTICAL COUNCIL

Defined, 219.

Described, 219.

Minister, change of religious tenets, 219.

Defined. An ecclesiastical council is a judicial tribunal whose province it is, ujjon the proper presentation of charges, to try them on evidence admissible before such a tribunal. They have no power to dissolve a contract, or to absolve either party from its obligation. Sheldon v Congre- gational Parish, Easton, 24 Pick. (Mass.) 281.

Described. An ecclesiastical council is a tribunal well known in the history of our commonwealth, and recognized and regarded in judicial decisions. It is one frequently resorted to in the settlement of clergymen, in reconciling and healing differences and divisions in churches, and in adjusting and terminating controversies between pastors and their churches and parishes. But notwithstanding the frequency of their occurrence, it is not easy accurately to define their powers or to ascertain the precise force and effect of their adjudications. It is frequently called an advisory court. Its determination or result is often called advice, and is usually, if not uniformly, given in the form of counsel to the parties. And the benefits so often derived from the action of these tribunals depend more upon the respectability of the mendjers and their collective and indi- vidual moral influence than upon any legal efl'ect which can be given to their decisions. Stearns v Bedford, 21 Pick. (Mass.) 125; see also Avery v Tyringham, 3 Mass. Re. 182 and Burr v First Parish in Sandwich, 9 Mass. 276.

Minister, Change of Religious Tenets. If after a minister is settled he adopts a new system of divinity, the parish re-

219

220 THE CIVIL LAW AND THE CHURCH

taiuing their former religious belief, so that the miuister Avould not have been settled on his present system, the parish has good cause to complain. By the change in the opinions of their minister they are obliged to hear doc- trines which they disapprove, and which they do not believe. This makes a proper case for the advice of an ecclesiastical council. Burr v First Parish in Sandwich, 9 Mass. Re. 270.

ECCLESIASTICAL COURTS

Arbitrary proceedings, 221.

Denominational rules, 222.

Ecclesiastical question, defined, 222.

England, description, 222.

England, jurisdiction, 223.

Friends, 223.

Judges, should be impartial, 223.

Judgment, effect, 224.

Judgment, how enforced, 226.

Judgment, when binding on civil courts, 227.

Judgment, when conclusive, 227.

Jurisdiction, general rule, 227.

Jurisdiction, when exclusive, 227.

Legislature, jurisdiction, 228.

Mandamus, 228.

Members, trial, 228.

Object and purpose, 229.

Pcwholder's right, 229.

Power limited, 229.

Power, necessity of limitation, 229.

Scotland, 230.

Secret investigations, 230.

State not bound by decisions, 230.

Vermont, 231.

Arbitrary Proceedings. Where a presbytery was consid- ering the appeal of a minister from a sentence of sus- pension an attemx)t was made to exclude two members of the presbytery from acting by adopting a resolution declar- ing that they were incapacitated b^^ reason of aifinity and partiality, the charge of affinity applying, however, to only one of them, while botli were charged with partiality. They were both included in one resolution, Avliich prevented either from voting. B}* the casting vote of the moderator they were declared excluded. The method of excluding these two

221

222 THJ] C1\'IL LAAV AND THE CHUKOH

members of the presbytery was declared to be wholly iiu- warrantable and as vitiating the subsequent proceedings of the presbytery based on the action of the majority obtained by this illegal exclusion, Smith v Nelson, IS Vt. 511.

Denominational Rules. Under the canon of the Protestant Episcopal Church relative to the investigation of charges against a rector, it was held that no commission need be issued by the bishop. The bishop is required to appoint three persons to examine the case and make a presentment, but the method of making the appointment was left to his discretion. The court on i^resentment and due notice, had power to take cognizance of the case. The presentment should not be tested by the strict rules of criminal pleading. The court, in this instance, was not authorized by the stat- ute, but was the creature of the law of the church, and must be governed and judged by the canons of the church. Chase v Cheney. 58 111. 509.

Ecclesiastical Question, Defined. An ecclesiastical matter is one that concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a reli- gious association of needful laws, rules, and regulations for the government of the membership, and the power of exclud- ing from such associations those deemed unworthy of mem- bership by the legally constituted authorities of the church. All of these matters are within the province of church courts, and their decisions upon them should be respected by civil tribunals. Clark v Brown, 108 S. W. 421. (Tex.)

England, Description. In England the ecclesiastical law and the ecclesiastical courts are established by legitimate authority and become a part of the law of the land. By the common law the king is the head of the church, which means that all ecclesiastical power and authority is established by him and not by a law. No canons can be made except by his consent. Ecclesiastical courts and ecclesiastical law are adopted as part of the common law. Their proceedings are according to the forms of the civil law, and the king may pardon all offenses within tlie Jnrisdiction of the spir-

ECCLESIASTICAL COURTS 223

itnal courts. The courts of common law have and exercise a sui)eriiiteu(leuce over their proceedings, and may keep them within their jurisdiction, and control them by man- damus, prohibition, etc. The sentences of these courts are there entitled to the same consideration as the sentences of any other inferior tribunal. Their decisions are final and conclusive on all subjects within their jurisdiction, but they may be controlle<1 and examined into by the courts of law. Smitli V Nelson, IS \'t. 511.

England, Jurisdiction. In England such courts have juris- diction of ollVnscs of biawiiiig, independent of statute con- ferring jurisdiction on temporal courts. Taylor v Morley, 1 Curteis (Eng.) 380.

Friends. In Hendrickson v Shotwell, 1 N. J. Eq. 577, the following observations are quoted from Barclay's treatise on church government: "Whether the Church of Christ have ])ower, in any cases that are matters of conscience, to give a positive sentence and decision which may be obligatory u|)on believers, I answer affirmatively, she hath. All prin- ciples and articles of faith which are held doctrinal are, in respect to those that believe them, matters of conscience. Now, if any one or more so engaged with us should arise to teach any other doctrine or doctrines contrary to these whicli were the ground of our being one, wlio can deny but the body had ]>()wer in such a case to declare this is not according to the truth we profess, and, therefore, we pro- nounce such doctrines to be wrong, with which we cannot have unity, nor yet any more spiritual fellowship with those that hold rheni."

Judges, Should Be Impartial. Where in a proceeding before a presbytery a minister remarks tliat some mend)ers of the presbytery were unfit to sit in any court, and the minister was rebuked and suspended by the presbytery by the votes of four of the i)ersons included in his criticism, it was said that a sentence of suspension pronounced under such cir- cumstances was imi)roper and could not be sustained. Smitli V Nelson, 18 Vt. 511.

224 THE CIVIL LAW AND THE CHURCH

Judgment, Effect. The decision of an ecclesiastical court upon an ecclesiastical matter as to its own jurisdiction is conclusive upon the civil courts. Connitt v Eef. Protestant Dutch Church, 54 N. Y. 551, citing Chase v Cheney, 58 111. 500, where it is said that the civil courts will interfere with churches or religious associations when the rights of prop- erty or civil rights are involved, but they will not revise the decisions of sucli associations upon ecclesiastical mat- ters merely to ascertain their jurisdiction ; see also Marie M. E. Church of Chicago v Trinity M. E. Church of Chicago, 253 111. 21.

Wherever religious associations have been organized in society for the expression and disseininatiou of religious doctrine, and have created for their direction in matters of doctrine, church government and discipline, tribunals within the association, the final and controlling etfect of the eccle- siastical polity thus formed ui)on tlie individual members and congregations and officers witliin the general association will not be questioned but will be given effect in the civil courts. And all who unite themselves to such a body do so with the implied consent to submit to the system of ecclesias- tical control, and are bound by it, and it would be vain con- sent, and would lead to the total subversion of such reli- gious bodies, if anyone aggrieved by one of their decisions should appeal to the secular conrts, and could thus have that voluntary control, which they had themselves agreed to, reversed and destroyed. It is of the essence of these reli- gious unions, and it is their right thus to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesias- tical cognizance in matters of doctrine and discipline, and this control goes to the extent of controlling the terms upon which the pastoral relation shall be formed, and the salary accompanying it shall be demanded. First Presbyterian Church of Perry v Myers, 5 Okl. 809.

The weight of authority is to the efifect that if a religious organization has, under its form of government, a tribunal

ECOLESlAiSTlCAL COURTS 225

coustituted with jurisdiction to decide differences between its members as to creed, teaching, or doctrine, the civil courts will not undertake to review or revise the judgment of the church tribunal in reference to such matters. If the matter relates to creed, doctrine, or teaching, the judgment of the constituted churdi tribunal is absolutely conclusive upon the civil courts, whether in the opinion of the judges of such courts the decision appears to be right or wrong. Where a right of pro])erty turns upon such a decision the civil courts will allow the property to go in that direction in which the decision of the church tribunal carries it.

The constituted tribunal of the religious organization has jurisdiction to determine all ecclesiastical questions which are submitted to it under the law and usages of the society. It has also the autliority to determine for itself whether it has jurisdiction in a given case. The highest church court of a religious society is like the highest civil court. It has submitted to it not only questions growing out of contro- versies, but it has of necessity, imposed upon it the duty and responsibility of determining what are within the limits of its jurisdiction. The judgment of the ecclesiastical tri- bunal is final and conclusive if within its jurisdiction; in other cases the civil courts will incpiire into the scope, char- acter, and effect of the powers vested in the church tribunal. Mack V Kime, 129 Ga. 1.

There cannot, in this country, be attributed to the deci- sions of a synod or the decisions of any ecclesiastical judi- catory either infallibility or freedom from error, nor can they claim rightfully unlimited obedience; and when it is attempted to give to their adjudications the same effect as is given to the sentence of ecclesiastical courts in England, or the sujterior courts of common law, the attempt must be unavailing.

The proceedings of an ecclesiastical court in England and Scotland may be inquired iiilo collaterally, and when they proceed illegally, even those who ])ronounced their decrees are not exempt from responding for any damages which au

226 THE CIVIL LAW AND THE CHURCH

individual may sustain in consequence of their illegal acts. Likewise in this country the proceedings of any self-consti- tuted ecclesiastical tribunal, not recognized as a part of our jurisprudence, may be examined, disregarded, and declared void whenever the subject comes before our courts of law, whether directly or collaterally. The proceedings of the synod, or of any other ecclesiastical tribunal in this coun- try as a court of the last resort, are not to be held con- clusive and absolute when they come in question in courts of law. Smith v Nelson, 18 Vt. 511.

"Where rules and regulations are made by the proper church functionaries, and such rules are authorized by the laws of the order, they will be enforced by the courts when not in conflict with some law bearing upon the subject con- tained in the rules." Alexander v Bowers, 79 S. W. 342. (Tex.)

The decisions of ecclesiastical courts, like those of every other judicial tribunal, are final, as they are the best judges of what constitutes an offense against the Word of God, and the discipline of the church. A party thinking himself aggrieved by the decision of a lower church tribunal should appeal to a higher. Skilton v Webster, Brightly N. P. (Pa.) 203.

Where a minister- and his parish submit a controversy between them to an ecclesiastical council the decision of such council, if not impeached for good cause, is a justifica- tion of the party conforming to it, though it does not oper- ate as a judgment. Hollis Street Meetinghouse v Pierpont, 7 Mete. (Mass.) 495.

Upon questions arising under the discipline, as upon those arising under the articles of faith, the decisions of the ecclesiastical courts are ordinarily final, and they will be respected and enforced by the courts of law. But if such decisions plainly violate the law they j^rofess to administer, or are in conflict with the laws of the land, they will not be followed. Krecker v Shirey, 163 Pa. 534.

Judgment, How Enforced. Ecclesiastical courts could only

ECCLESIASTICAL COURTS 227

inflict spiritual censures or pass judgment on the moral aspects of the question, for if they should determine and adjudge the right to possession in favor of one part as against the other, they are utterly powerless to enforce their judgments. Deaderick v Lampson, 11 Heisk. (Tenn.) 523.

Judgment, When Binding on Civil Courts. Whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of the church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. Committee of Missions v Pacific Synod, 157 Cal. 105.

Judgment, When Conclusive. Where the subject-matter of the judgment or determination of the ecclesiastical court attempted to be brought under review by a civil court is of ecclesiastical cognizance, the judgment of the ecclesiastical court is conclusive, and no civil court has jurisdiction or ])ower to revise it or to question its correctness. Satterlee V U. S. 20 App. D. c. .ion.

Jurisdiction, General Rule. The decisions of ecclesiastical courts, like every other judicial tribunal, are final, as tliey are the best judges of what constitutes an offense against the Word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discijdine, and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt, which would do anything but improve either religion or good morals. Ch. v Seibert, 3 Pa. St. 282.

Jurisdiction, When Exclusive. Ecclesiastical courts have exclusive jurisdiction in matters of church government, church organization, religious tenets, and the laws of reli- gious judicatories; with these the civil courts must not and cannot interfere, but must leave them to the free, uncon- trolled jurisdiction of the tribunals established by the church, for they are matters of religious faith and con-

228 THE CIVIL LAW AND THE CHURCH

science, and are subjects for determination by a jurisdiction ordained and inspired by a power above a creator of polit- ical institution. Bridges v Wilson, 11 Heisk. (Tenn.) 458.

legislature, Jurisdiction. In October, 1771, the General Court of Virginia entertained jurisdiction to hear charges of improper conduct presented against a rector of the parish forming a part of the Established Church. Godwin v Lunan, Jeff. (Va.) 9G.

Mandamus. When the organic law of the church or eccle- siastical organization to which it belongs has provided rules and regulations for the settlement of disputes between a minister and his congregation, or the church trustees who have control of the building and property, the courts will not interfere by mandamus until there has been a final deci- sion by the proper church authorities. State ex rel Mc- Neill V Bibb St. Church, 84 Ala. 23.

Members, Trial. A member by joining a church agrees that the church shall be the exclusive judge of his right to continue. For the purpose of trying a member on charges of having violated the rules of the church, or the laws of God, the church is the tribunal created by the organic law. The member has consented that for all spiritual offenses he will abide the judgment of the highest tribunal organized under the constitution of the church, but he has not consented to submit to usurpation. The inquiry whether or not the tri- bunal has been organized in conformity with the constitu- tion of the church is not ecclesiastical. Where a member of a church was tried on charges, and appealed from the judgment to an appellate tribunal provided by the law of the church, it was held that he was entitled to have such appellate tribunal constituted as required by the law of the organization, and it appearing that the tribunal was not so constituted, but was apparently constructed with a view of defeating instead of promoting justice, the appellant was entitled to an injunction restraining such illegal tribunal from proceeding in the matter. The civil court has juris- diction to determine whether an ecclesiastical tribunal is

ECCLESIASTICAL COURTS 229

coustituted as required by the law of the denomination. Hatfield v DeLong, 156 Ind. 207.

Object and Purpose. The object and purpose of a proceed- ing of the ecclesiastical court, in cases of crime or immor- ality, are quite dilferent from that of proceeding' and con- viction for crime in the temporal courts. Sentences of the ecclesiastical courts in criminal prosecutions consist of spir- itual admonition, suspension, or total deposition from office. All the in-oceedings of these tribunals in criminal causes are professedly pro salute anima'; and there is not power to fine or imprisonment. Satterlee v U. S. 20 App. 1 ). C. 'V.):\.

Pewholder's Right. In Jacob v Dallow, 2 Salk. (Eng.) 551, it was held that a person who had a prescriptive right to a pew, being disturbed in liis right, might sue in a spir- itual court to have his possession quieted.

Power Limited, Cliurch judicatories cannot usurp legis- lative powers. Tlie creation of church judicatories and their investment with authority is one of the functions of the sovereign power. Bear v Heasley, 98 Mich. 279.

Such a court has no jurisdiction to settle a church- warden's account. Adams v Rusch, 2 Str. (Eng.) 1183.

As a general jirinciple, ecclesiastical judicatories cannot interfere witli the temporal concerns of the congregation or society with which the church or the members thereof are concerned. Baptist Church, Hartford v Witherhell, 3 Paige Ch. (N. Y.) 29(5.

An ecclesiastical court cannot entertain a suit as to the allotment of seats in a place of divine worship unless such place is a legally consecrated buibling. Battiscombe v Eve, 9 .Inr. N. S. (Eng. I 210.

Power, Necessity of Limitation. The doctrine that courts of the cliurch may exercise coordinate jurisdiction with the sui»erior courts of justice is one of the great engines by which the i>ower of the papacy was ni)held and its spiritual despotism extended over Europe. The spiritual courts unite the legislative, judicial, and executive functions — the uncon-

2:J0 THE CIVIL LAW AND THE CHURCH

trolled exercise of such a power would invest them with au authority the most irresistible aud appalling, and conse- quently can never be tolerated in a free country. Smith v Nelson, IS Vt. 511.

Scotland. The Kirk is the established church of Scotland — the jurisdiction of their judicatories was conceded or con- firmed by act of Scottish Parliament at an early day, and was confirmed by the act of Union. If a person disobeyed their order, the aid of a civil court, the Lords of Sessions, might be obtained to put him to the horn. The decisions of these church courts, like the decisions in common law reports, form a body of ecclesiastical law which would be recognized in the other courts. These judicatories derive their anthority through the acts of the civil Legislature; and in this resi)ect they stand in the same foundation as tlie«Cliurch of England. Tt was claimed for them that their General Assembly was a superior coordinate ecclesiastical court — that they had a right to judge absolutely and with- out control, and exclusively, on all subjects which they held to be within their jurisdiction. Their claim, however, was rejected and entirely repudiated both in lOiigland and by the courts of Scotliind. Smith v Nelson. IS N't. 511.

Secret Investigations. ''While Angh>-Saxon notions of fair play may lead us to look with disfavor upon secret investi- gations, and summary determinations by one person, we must not forget that contentious methods of investigation are largely English, and that the Roman system, from which the Roman Church has derived its procedure, has always been and still is to a large degree inquisitorial. However much we may think that open and public proceedings and hearings upon due notice ought to be had in every investi- gation of every sort or charge or issue, we must remember that it is not our province to impose our views as to such matters ui)on religious denominations." Bonacum v Har- rington, (;5 Neb. S81.

State Not Bound by Decisions. Tlie decisions of ecclesias- tical courts do not bind the stale. Such courts Imve jtowcr

ECCLESIASTICAL COURTS 231

over the eoiiseieiices of those who admit their authority; and their decisions must be taken a« conclusive evidence as to the conscientious convictions of their subjects. But temjioral courts could not be boun<l by the construction <;iven by ecclesiastical courts to the nieanin<>- of a term used in the ( ivil constitution. Hart v School District, Throops- vilh'. 1' Lancaster Law Kev. (Pa.) 'Ml.

Vermont. In this State there is no religious establish- ment, no ecclesiastical law or courts, established by any antlntrity. All their laws are wanting in this essential re(|uisite. to give them any authority, that they are not i»re- sdibed by the su|)reme jiower in the State, aud though they may form constitutions, enact canons, laws or ordinances, establish courts, or uuike any decisions, decrees or judg- ments, yet they can have only a voluntary obedience, cannot affect any civil rights, immunities, or contracts, or alter or dissolve any i-elations or obligations arising from contracts. Smith V Nelson, 18 \'t. 511 ; see also Civil Courts.

ECCLESIASTICAL LAW

Origin, 232.

Subordinate to civil law, 232.

Origin. The origin of the canon or ecclesiastical law is said to be coeval with the establishment of Christianity, under the apostles and their immediate successors, who are supposed to have framed certain ordinances or canons for the government of the church and its members. These rules or ordinances are called, in the history of the primitive church, the apostolical canons; and though the fact of their being the work of the apostles does. not admit of positive proof, yet there is no doubt that they belong to a very early period of ecclesiastical history. They grew and accumu- lated from the exigencies of the church organization, and ])ecanie binding upon its members, and, in fact, constituted the basis of the modern ecclesiastical law. Satterlee v U. S., 20 App. D. C. 393.

Subordinate to Civil Law. Ecclesiastical law is not a part of the law of this State, nor are equitable rights to be deter- mined hy it ; on the contrary, Avhen a court of equity exer- cises its powers it does so only upon equitable principles, irrespective of ecclesiastical or any other law. Cohen v (Congregation Shearith Israel, 114 A. D. (N. Y.) 117.

232

ELECTIONS

AdjoiuTiment, 233.

Burden of proof, 234.

By-laws, 234.

Certificate cannot be modified, 235.

Hand vote, 235.

Illegal votes, 235.

Mandamus, requiring notice, 235.

Meeting, justice may call, 235.

Method, congregation may regulate, 235.

Nominations, 236.

Notice, 236.

Place, 236..

Presiding officers, 236.

Referee, 237.

Regularity, qualifications of voters, 237.

Rescinding vote, 238.

Silence, effect, 238.

Validity, notice, 239.

Validity, other meeting at same time, 239.

Voter, right cannot be reconsidered, 240.

Adjournment. In March, 1900, the session attempted to postpone the annual election of elders from the regular time in April until after the meeting of the General Assembly, which liad under consideration a question relating to the l)astor of the church. The meeting of this session was held at the residence of one of its members, but not on the re- quired notice. The pastor was not present, and one of the elders acted a^ the moderator pro tem. The law of the church required the pastor to preside at all meetings, except in certain specified cases, of Avhich this was not one. The nieeting Wiis held irregidar, and its action ineffective. Not- withstanding this attempted action by the session, regular annual meetings were held in 1900, 11)01, and 1902. The

233

2:?4 THE CIVIL LAW AND THE CHURCH

oliicers elected at these meetings were declared to be the regular officers of the society. Dayton v Carter, 20G Pa. St. 491.

In Stonghton v Reynolds, 2 Strange (Eng. ) 1045, it ap- peared that the vicar had the right to nominate one church- warden and the congregation or jjarish had the right to chose another. At an election where the choice was to be made the vicar, against the protest of members of the con- gregation present, adjourned the meeting. Such members thereupon continued the meeting and elected a church- warden. It was held that he was entitled to the office, and that the right to adjourn the meeting was in the parish.

Burden of Proof. The burden of proof is on the persons claiming to have been elected trustees. African Baptist Church v Wliite, 24 Ky. Law Rep. 646.

By-Laws. Where the charter vested in the congregation power to make by-laws, a by-law was held valid authorizing the president of the corporation to appoint inspectors of election. A by-law was also held valid which provided that a ticket should contain nothing but the names of candidates. Commonwealth v Woelper, 3 Ser, & R. (Pa.) 29.

A by-law of the society restricted the right to vote to persons who had been membei^s of the church twelve months preceding the election. A subsequent by-law prohibited per- sons from voting who were in arrears two years on pew rent. This by-law was sustained in Commonwealth v Cain, 5 Ser. and R. (Pa.) 510.

Certificate Cannot Be Modified. At an election of trustees of the society known as the Church of the I*uritans the in- spectors declared, at the close of the election, that certain candidates had received a specified number of votes, being a majority of the votes received. Afterward, the inspectors made a certificate in Avhich they reviewed and revised the result of the election, declaring that certain votes assumed to have been cast for the successful candidates were illegal. This attempted review by the inspectors was without author- ity, and the persons receiving the highest number of votes

ELIOCTIONS 235

were held to have been legally elected. Votes received and counted cannot afterward be rejected as invalid. Hartt v Harvey, 32 Barb. (N. Y.) 55.

Hand Vote. In Wardens, Christ Church v Pope, 8 Gray (Mass.) 140, an election of officers was sustained though elected by hand vote instead of by a written vote, as pre- scribed by a previous rule adopted by the congregation at an annual meeting. Such a meeting could not bind its suc- cessors as to the method of conducting an election. The officers so chosen were declared regularly elected. A resolu- tion to increase the number of vestrymen could not affect the existing organization until the new officers were elected.

Illegal Votes. The reception of illegal votes at the elec- tion of officers of a religious society does not invalidate the election if it does not affect the result. Wardens, Christ Church V Pope, 8 Gray (Mass.) 140.

Mandamus, Requiring Notice. The rector may be required by mandamus to give notice of an election of vestrymen. People ex rel Fleming v Hart, 36 St. Rep. (N. Y.) 874, 13 N. Y. Supp. 903.

Meeting, Justice May Call. In the absence of a provision in the charter for calling meetings for the election of trus- tees such a meeting may be called by a justice of the peace on the apjdication of five members of the society. Ladd v Clements, 4 Cush. (Mass.) 47(5.

Method, Congregation May Regulate. In 1724, at a meeting of the congregation, a rule was adopted that thereafter the churchwardens and vestry be always chosen by a written vote. This meeting had no power over the election of officers at a succeeding meeting, and the rule adopted relative to the method of voting could not bind the congregation at a subsequent election. • Persons assembled at any meeting had full power to regulate the method of conducting elec- tions, and were not bound by the action of a previous meet- ing. Therefore an election at a subsequent meeting by hand vote, instead of written ballot, was held valid, and the per-

236 THE CIVIL LAW AND THE CHURCH

sons declared elected were entitled to the office. Wardens, Christ Cbnrch v Pope, 8 Gray (Mass.) 140.

Nominations. It had long been the custom in this society for the consistory to nominate candidates for deacons and elders, and for the minister to announce the nominations from the pulpit a specified time before Easter Monday, when the election occurred. The complainant was elected as elder at a reg:ular meeting but without such nomination. Having been refused induction into office, and having applied for a writ of mandamus to compel such induction, it was held that the custom of the society and consistory as to nomina- tions was valid and binding on all members, and that there- fore the election of the complainant was irregular. Miller V Eschbach. 43 Md. 1.

Notice. Where the charter makes the minister president of the vestry and requires notice of an election to be given by the president, such notice is necessary to constitute a valid election. Smith v Erb, 4 Gill. (Md.) 437.

Where the law of the church required the election of vestrymen to be held on Easter Monday, and notice thereof to be given at regular divine service on the preceding Sun- day, and an election was not held on that day, but on the 30th of July following, pursuant to a notice given at an irregular church service on the preceding Sabbath by a rector who had been superseded, but who intruded into the church for the purpose of holding service, the election held on the 30th of July was held to be irregular and invalid. Dahl V Palache, 68 Cal. 248.

Place. The election must be held at the usual place of meeting. American Primitive Society v Pilling, 4 Zab. ( X. J. ) 653.

Presiding Officers. In People ex rel Smith v Peck, 11 Wend. ( X. Y. I 604, a Baptist minister was held not to be an elder within the meaning of the statute requiring two elders to preside at a church election.

This case involved the validity of a church election, it appearing that there were two sets of presiding officers, two

ELECTIONS 237

polls, and the alleged election of two sets of trustees. At one of the elections a minister of the church was one of the presiding officers. At the other election two elders presided, as required by the statute. It was held that the alleged election at which the minister acted as one of the presiding officers was irregular and illegal, because he was not an elder within the meaning of the statute. The other election, presided over by two elders, was sustained.

Under the New York religious corporations act of 1813 it was held that two i>ersons chosen by the members of the congregation present should preside at an election. Con- cord Society, Strykers\ille v Stanton, 38 Hun. N. Y., 1.

See People v La Coste, 37 N. Y. 192, invohing the validity of the election of churchwardens and vestrymen holding, among other things, that the rector is both the presiding and returning officer, and that his certificate of election is pre- sumptively valid.

Referee. The court has power to appoint a referee to supervise a special election ordered on granting a writ of mandamus directing the rector to join with the trustees in giving notice of a special election to fill vacancies. People ex rel Fleming v Hart, 30 St. Rep. 874, 21 N. Y. Supp. 673.

Regralarity. Qualifications of Voters. The case involved the question of the regularity of the election of trustees, each party claiming to have been lawfully elected. Two elections for trustees were held on the 9th of June, 1851, one in the schoolhouse near the church, the other in the open yard. The respondents were elected at the poll in the schoolhouse, the relators at the other poll. The act of incorporation is silent as to the mode of conducting charter elections. It fixed the date of the election but did not direct who should conduct it. No by-law on this subject was adopted. It was held that the only legal election on Monday after ^^^litsun- day was that which was held by officers duly chosen on the previous Thursday to conduct the election, and the trustees elected at an unauthorized and irregular poll could not hold

2?»S THE riVIL LAW ANT) THE CHUKCH

the office, even if they were chosen by a majority of the voters.

The court said the chief question in the case involved the right of members of this Roman Catholic Church to vote at a preliminary election of presiding officers, such right to vote being determined by the contributions of members. Under the act of incorporation the right to vote depended on the fact that a member had either contributed to the erection of the church or had annually thereafter contributed not less than 10s. for the current expenses. The contributions must have been annually or yearly, and the requirement of the act was not satisfied by payment on the day of election for the purpose of qualifying the person as a voter. Hence election officers were justified in refusing to receive the votes of such persons. The trustees chosen at a meeting held by the election officers regularly elected by legal voters were declared to be the lawful trustees of the society. .Inker v Commonwealth ex rel Fisher, 20 Pa. St. 484.

Rescinding Vote. A board consisting of the vicar (pre- siding), two churchwardens, and four overseers of the poor met for the purpose of electing a master of a charity school. A candidate was chosen by a vote of four to three, the vicar giving the casting vote in his favor. Subsequently a ques- tion arose as to the candidate's ability to accept the office, and by a vote of five to two his election was rescinded and the meeting adjourned. It was held in Attorney-General v Matthew, 3 Russ. (Eng.) 500, that so long as the board was in session it had power to rescind the action, provided it acted in good faith, and for the welfare of the charity.

Silence, Effect. A majority of the legal voters who choose to vote always constitutes an election. When a majority expressly dissent but do not vote, the election by the minor- ity is good. It is no objection to an election that illegal votes were received unless the illegal votes changed the majority. The mere fact of their existence never avoids an election. First Parish, Sudbury, v Stearns, 21 Pick. (Mass.) 148.

ELECTIONS 231)

Validity, Notice. Tlie society was iueorporated by legis- lative act in 1797. The charter provided for the election of four elders and four trustees, who were to compose the vestry. The minister was to be president of the vestry, and he was required to give notice of elections. A controversy arose in the society resulting in the election, in 1843, of two sets of elders and trustees, each claiming to be regular, one set claiming to represent the original society and its min- ister duly chosen, while it was claimed that the other set represented a party which had in eifect usurped the power and jurisdiction of the congregation, and that these elders and trustees were not regularly elected. It was held that even if the election of 1843, at which certain elders and trustees were chosen was invalid, subsequent elections, held on due notice, could not be questioned, and the court could not declare them invalid. It was held that both elections in 1843 could not be valid, because one of them was held without a notice of the election given by the pastor as re- quired by the charter; consequently, persons claiming to have been elected without such notice could not lawfully take the offices. Whatever might be the situation as to the validity of the election, it was held that mandamus was not the proper remedy, for the reason that a legal remedy existed by which the persons entitled to the management of the corporation could obtain possession of its property. Smith V Erb, 4 Gill. (Md.) 437.

Validity, Other Meeting at Same Time. An election of trus- tees was held on the Gth of January, 1013, under a notice regular in form, but with this notice an additional notice was given that a class meeting would be held in connection with the corporate meeting. The election notice contained no reference to a class meeting. The election at such a meeting was sustained, the court observing that even if both meetings were called for the same hour and at the same place, this would not affect the regularity of the cor- porate meeting unless the rights of some persons entitled to attend and participate therein were affected. This did

240 Tin: CIVIL LAW AND THE CHURCH

not appear to be the case. People ex rel Wilson v African W. M. E. Cliiirch, 15(5 A. D. (N. Y.) 386.

Voter, Right Cannot Be Reconsidered. A person voted at a church election without challenge and received a majority of the votes cast for the office of churchwarden, and the result was declared accordingly. It was held that the pre- siding officer could not afterward reconsider the matter, declare the person not qualified as a voter, and therefore not entitled to the office, A mandamus was granted requir- ing the rector to recognize as a churchwarden the person so elected. Re Williams, 57 Misc. (N. Y.) 327.

EVANGELICAL ASSOCIATION

History and form of government, 241.

Organization, 243.

Description, 244.

Division of property, effect, 245.

Expulsion of member terminates office, 245.

General Conference, place of meeting, 246.

Minister, power of appointment, 247.

Secession, when seceders cannot control property, 247.

History and Form of Government. This association was organized about the year 1800, and is a voluntary unincor- porated religious denomination. Its doctrine, discipline, and church government are similar to those of the Methodist Episcopal Church. "Its ecclesiastical organization consists of the society or congregation divided into classes. Each congregation holds its Quarterly Conference, which is the local governing body of each church, and it meets four times each year. The General Association is divided into what are known as 'Annual Conferences,' of which there are twenty-five in number, each of which holds a session annually, and its membership consists of all fully ordained ministers who have been in the itineracy. These Annual Conferences are under the control of what is known as the General Conference, which meets once in four years. The Annual Conferences are subordinate to, and are established or abolished, reorganized or their boundaries changed by the General Conference. The Annual Conferences are pre- sided over by a bishop, if one is ])resent. In the absence of a bishop the members of the Conference are required to elect a president, and the president and the presiding elders of the Conference assign the preachers to their respective charges. Members of the General Conference are elected

241

242 THE CIVIL LAW AND THE CHURCH

from the Aimnal Conferences on a prescribed ratio. The General Conference elects the bishops for a term of four years. The law or constitution of the church is contained in a book called the Discipline, in which the powers of the different official bodies of the church are prescribed." By the Discipline, the time and place of holding the General Conference was to be determined by the bishops with the consent of the majority of the General Conference, or if there is no bishop present, the General Conference may, by vote, fix such time and place ; or if no action is taken at the General Conference, then the oldest Annual Conference was authorized to fix the time and place of the meeting of the next General Conference, and was required to notify other Annual Conferences accordingly. At the General Conference held in Buffalo, in 1887, a resolution was adopted fixing the time of the meeting of the General Conference in 1891, and there being no invitation for the next General Conference, authorized the Board of Publication of the church to fix the place. The Board of Publication was composed of the bishops of the church and eight other persons selected from eight districts, into which the general association is divided. In 1890 this board fixed the place of the meeting of the next General Conference at Indianapolis, Indiana. In February, 1891, the East Pennsylvania Annual Conference, claiming to be the oldest Annual Conference, adopted a resolution fixing the place of meeting of the next General Conference at Philadelphia. This action resulted in a division of the denomination, and in October, 1891, the time fixed by the previous General Conference for the next General Confer- ence, two General Conferences were held, one at Phila- delphia and one at Indianapolis. Prior to these General Conferences, and apparently prior to the action of the Board of Publication in designating Indianapolis as the place of meeting of the General Conference of 1891, a church court had been held by which all the bishops were deposed from oflSce. The Indianapolis General Conference reversed the action of this church court and held that the judgment of

EVANGELICAL ASSOCIATION 2V,l

.su(si>eufsioii was void, and reelected two of the bishops for the next four years. The I'hiladelphia Conference ratified the suspension and elected three bishops, including Bislioj) Dubs, who had been suspended. Eighteen Annual Confer- ences sent delegates to the Indianapolis General Confer- ence; the other Conferences were divided, some of them sending delegates to this Conference, and others to the I'hil- adelphia Conference.

In 1890 the Des Moines Annual Conference was divided on a question involving a status of the bishops. In 18!)2 the majority party in that Conference brought an action to re- strain the preachers representing the seceding party from attempting to occupy the jjulpits of certain church buildings as ministers of the Evangelical Association, because the plaintiffs were invested Avith that right, being the regularly appointed preachers in charge. It was held that the action of the General Conference of 1887 in referring to the Board of Publication the question of designating the place for the next General Conference was a valid exercise of power; that the Indianapolis Conference was the lawful high church court of the association, and was authorized by the con- stitution of the church to review and declare void the pro- ceedings which resulted in the alleged suspension of the bishops, and to elect others for the Constitutional period and that the Annual Conferences over which they presided were the lawful Conferences of the association. It was held in substance also that the plaintiffs, composing a majority of the Des Moines Conference, were in fact the seceding party, and irregular, and that the minority of that Con- ference, presided over by a bishop whose suspension was declared illegal, constituted the regular Conference. Au- racher v Yerger, 90 la. 558; see also Krecker v Shirey, 1G3 Pa. 534.

Organization. The Evangelical Association of North America is a religious denomination organized about 1800, under the connectional or associated form of church govern- ment, founded upon that of the Methodist Episcopal Church,

244 THE CIVJL LAW AND THE CHUECH

and having a system of graded executive, legislative and judicial ecclesiastical bodies and officers, and a code of rules known as the Discipline. The territory covered by said denomination is divided into Annual Conference districts, in each of which is held a yearly meeting of the preachers of the denomination located in such district. For certain purposes of local administration each Annual Conference exercises jurisdiction over all its own members and over the congregations within its limits. By the General Conference, held every four years, bishops are elected for a term of four years. It is the special duty of a bishop to preside over the Annual Conference, and, with the aid of the presiding elders thereof, to appoint at the Conference session the preachers to their respective pastoral charges for the ensu- ing year, the same being the only recognized method of appointing ministers in use in said denomination since its origin. Neither the lay members of the several congrega- tions nor the trustees thereof, according to the Discipline of said denomination, have any voice or vote in the selection of their pastors, nor any power to reject a pastor who has been ajipointed in the manner aforesaid.

Under the Discipline a presiding elder is required to superintend the spiritual and temporal affairs of the de- nomination within his district, to enforce all disciplinary provisions, to hold services, and otherwise to officiate in the various houses of worship in his district, and once in every three months to call and preside over a quarterly Conference held in the house of worship of each pastoral charge. In this denomination a pastor's appointment over any partic- ular charge lasts for one year only, though he may be reap- pointed at an Annual Conference, but not more than three times in succession. Every pastor who is a married man is entitled to occupy the parsonage belonging to his congrega- tion. Fuchs V Meisel, 102 Mich. 357.

Description. Tliis association was an unincorporated society, composed of about oO,000 members, residing at dif- ferent places in several States and in Canada, who hold to

EVANGELICAL ASSOCIATION 245

a defined system of faith, who are united in Quarterly, Annual and General Conferences, and who are governed by a certain prescribed Discipline, and by rules of order adopted from time to time by the legislative power of the association. Its organization is as complete and minute as that of any existing religious society in the country. And it is strictly and exclusivel}- a religious association, existing only for religious purposes. Bequests to this association were sustained in Evangelical Association's Appeal, 35 Pa. St. 310.

Division of Property, Effect, This corporation was organ- ized to support the faith of, and to be connected with, the German Evangelical Synod of North America, especially with the division known as the Wisconsin District. The corporation took title to its property charged with a law- ful trust, and they could not divert the property to incon- sistent uses against the protest of any member. There was also an Evangelical Lutheran Synod of Wisconsin, distinct and separate from, but holding views somewhat similar to the Evangelicals. Dissensions arose in the society regarding faith and doctrine. Persons in control of the society changed its name to the Evangelical Lutheran Creed congregation, used books in the Sunday schools not authorized by the Evangelicals, and dissolved the relations existing between the society and the Wisconsin District, and declared that the congregation shall be and remain Evangelical Lutheran, and that the property in case of schism or division shall be enjoyed only by those who adhere to the constitution as so amended. It also appeared that the society was employing a pastor who had departed from the Evangelical faith. The plaintiffs sought to obtain possession and control of the property on the ground of its diversion by the managers of the corjjoration. It was held that the plaintiff's claim had been sufficiently established. Marien v Evangelical Creed Congregation, Milwaukee, 132 Wis. G50.

Expulsion of Member Terminates Office. Differences having arisen in the local society, one party seceded from the church

246 THE CTVTL LAW AND THE CHURCH

and joined an association known as tlie United Evangelical Church. They Avere subsequently expelled from the church and were cut off from all church rights and privileges by the regular ecclesiastical authorities of the Evangelical Association of North America. They brought an action to secure control of the church proxjerty, but it appeared that their offices as trustees had become vacant before the bill was tiled. By their secession from the church they were no longer entitled to the control of the church property. The diurch propertj^ was bought under tlie condition that it should be subject to the rules of the Evangelical Association of North America. The plaintiffs had no standing in court and were not entitled to the relief demanded. Garrett v Nace, 5 Pa. Sup. Ct, 475, Nace Appeal, 11 Leg. Rec, (Pa.j 41.

General Conference, Place of Meeting. The Conference of 1887 appointed the usual Board of Publication, composed of the bishops and eight other persons, who were respectively selected from the eight general districts, with ]iower to select the place of meeting of the next General Conference. The Board named Indianapolis as the place of meeting of the General Conference of 1801. After the Board of Publi- cation had designated Indianapolis as the place of meeting of the next General Conference, the East Pennsylvania Annual Conference met at Allentowu, and declared illegal the action of the General Conference of 1887 in delegating to the Board of Publication power to designate the place of meeting of the next General Conference. This Annual Con- ference then designated I'hiladelphia as the place of meet- ing of the next General Conference. This action by tlie oldest Annual Conference was nugatory, for the reason that the place of meeting had already been fixed by the body charged with that duty by the General Conference.

Eighteen Annual Conferences sent delegations to the Indianapolis General Conference, and two sent delegations to the l»hiladelphia Conference. The remaining five sent delegates to each Conference. The Indianajtolis General

EVANGELICAL A!r>SO(UATION 247

Conference had a quonini of legal representatives of the Annnal Conferenies. The I'hihidelphia Conference had less than a quorum.

The court held that (those) members of the denomination who adhered to the Indianapolis General Conference consti- tuted the Evangelical Association. The alleged Conference which met in Philadelphia was unauthorized, its assumption of ecclesiastical authority was an act of rebellion against the organization with which its members had been con- nected, and whose name it adopted. It was further held that property which prior to 1891 belonged to the Evangel- ical Association, now belonged to, and must be controlled by those who still constitute that organization. The Annual Conference which did not adhere to the Indianapolis Gen- eral Conference, but assumed to act under authority of the Philadelphia Conference, had no valid standing in the denomination, and had no authority to appoint ministers to particular local churches. Krecker v Shirej, 1G3 Pa. 5o4, see also Dubs v Esher, G Ohio Cir. Ct. 312 Schweiker v Husser, U(i 111. 399.

Minister, Power of Appointment. The East Pennsylvania Annual Conference, which refused to adhere to the General Conference at Indianapolis in 1891, appointed a minister to this church. The court held that his appointment was irreg- ular. Members of this Annual Conference who adhered to the Indianapolis Conference met and appointed a minister. This action was afterward ratified by the Indianapolis Gen- eral Conference. The court held that this ratification vali- dated the appointment made by the provisional Annual Con- ference, and therefore that the minister appointed by that provisional Conference was entitled to the office as i^astor of the Immanuel Church, and was the only pastor that church was authorized to receive. Krecker v Shirey, 163 Pa. 534.

Secession, When Seceders Cannot Control Property. The Salem's Aid Society was an unincorporated religious asso- ciation, and an independent society with absolute power over

248 THE CIVIL LAW AND THE CHURCH

its property. The society liad power under its coustitution to dispose of its fuuds according to its own judgment. After the election of officers of the society in 1891 certain disaf- fected members withdrew, and formed a new^ society. They brought an action against the original society to obtain possession of the funds then on hand. The court held that the original society was entitled to the possession and con- trol of the fuuds. Manning v Shoemaker, 7 Pa. Super. Ct. 375.

EVANGELICAL LUTHERAN

Historical sketch, 249.

Division of society, effect on property rights, 249.

Historical Sketch. The Evangelical Lutheran Church in the United States is a descendant of the Lutheran Church of the sixteenth century — the first church of the Reforma- tion. It takes its name of Lutheran from the great founder and apostle of Protestantism, and seems to have been called "Evangelical" to distinguish it from the Reformed or Cal- vinistic Lutherans. In the United States there are several families of this Lutheran Church — the Dutch Lutherans, the Swedish Lutherans, and the German Lutlierans. The organic or fundamental creed of these various branches of the Lutheran Church is the Augsburg Confe.ssion. Wehmer V Fokenga, 57 Neb. 510.

Division of Society, E£fect on Property Rights. This church, which at one time was attached to the Holston Synod, was afterward divided into two factions, one of which withdrew it.self from the Holston Synod and attached itself to the Missouri Synod. It was held that by such withdrawal this faction forfeited its interest in church property which had been conveyed to it to be held and occupied so long as the society continued subordinate to the Holston Synod. Rodg- ers v Burnett, 108 Tenn. 173,

249

FREE BAPTIST CHURCH

Creed, 250.

Property, when transfer to regular Baptist Church invaHd, 250.

Creed. The Free Baptist faith is based n]»OTi the doctrines of Arniinins, and is stated to be: "1. Conditional election and reprobation in o]>position to absolnte j)redesti nation. 2. Universal redemption, or that the atonement was nuKh' by Christ for all mankind, thongh none but believers can be partakers of the benefit. 3. That man in order to exercise true faith must be regenerated, and renewed by the opera- tion of the Holy Spirit, which is the gift of God. 4. That the grace which confers this is not irresistible. 5. That men may relapse from a state of grace, and die in their sins." Park V Chaplin, 96 la. 55.

Property, When Transfer to Regular Baptist Church In- valid. The society was incorporated as a Freewill Baptist Church, but soon afterward the articles of incorporation were amended by changing the name to the Free Baptist Church. It was at that time connected with the quarterly meeting of that denomination. A resolution was adopted by the congregation to join the regular Baptist denomina- tion, and steps were taken for such union. About the time of its incorporation the society had received a conveyance of land on which to erect a house of worship for the diffu- sion of the gospel, according to the faith and practice of the Freewill Baptist denomination. It was said by the court that the religious belief and the articles of faith of the Baptist Church or denomination were radically different from those of the Free Baptist Church, and each had a separate and distinct organization, and was governed by its own oflScers, laws, and rules. It was held that the property was acquired for the benefit of the Free Baptist Church,

250

FREE BA1»TIST CHUKCH 251

aud that such property could uot be transferred to the Baptist denomination against the protest of members of the local society. Such members who still adhered to the Free Baptist faith had a right to j)rotect the property and ob- tain an injunction against its transfer. The religious so- ciety as such could dissolve its relations with the Free Bap- tist denomination and join the Baptist, but the society could not take with it the property acquired by a civil corporation directly connected with the Free Baptist Church. Park v Chaplin, 96 la. 55.

FREE CHURCH OF SCOTLAND

Organization, 252.

Diversion of property, 252.

Minority's right, 253.

Union did not affect freedom of private opinion, 254.

Organization. The Free Cluirch of Scotland was formed iu the year 1843 by what is called "the disruptiou," or, in other words, the secession from the Established Church of Scotland of a large body of the ministers of the Established Church, who renounced entirely the pecuniary benefits of their connection with the establishment in amendments of a protest which they had made against the interference by the civil courts with rights which they considered to be the rights of the church. It was the feature of the Free Church (prior to the Union) which distinguished it from all other Presbyterian churches in Scotland, that it was the only Presbyterian Church not connected with the state which professed to hold the establishment principle. General As- sembly of Free Church of Scotland v Overtoun (1904), Law Keports, Appeal Cases (Eng.) 515.

Diversion of Property. In 1900 acts of assembly were passed by the majority of the Free Church, and unanimously by the United Presbyterian Church, for union, under the name of the United Free Cliurch, and the Free Church prop- erty was conveyed to the new trustees for behoof of the new church. The respondents contended that the Free Church had full power to change its doctrine as long as its identity was preserved. The appellants, a very small minority of the Free Church, objected to the union, maintaining that the Free Church had no power to change its original doc- trines, or to unite with a body which did not confess those doctrines, and they complained of a breach of trust, inas- much as the property of tlie Free Church was no longer

252

FREE CHURCH OF SCOTLAND 253

used for behoof of that church. They brought this action in the name of the General Assembly of the Free Church, ask- ing, substantially, that they, as representing the Free Church, be declared entitled to the property.

It was held that the establishment jjrinciple and the Westminster Confession were distinctive tenets of the Free Church ; that the Free Church had no power, where property was concerned, to alter or vary the doctrine of the church; that there was no true union, as the United Free Churcli had not preserved its identity with the Free Church, not having the same distinctive tenets; and that the appellants were entitled to hold for behoof of the Free Church, the property held by the Free Church before the Union in 1900. General Assembly, Free Church of Scotland v Overtoun, Law Rep. App. (1908) cas. (Eng.) 515.

Minority's Right. The owner of land made a contract with certain persons, members of the Presbyterian Church, in connection with the Free Church of Scotland, for the sale and conveyance of a piece of land for a site of a burial ground, and a church in connection with the Free Church of Scotland — in case a congregation of that church would be assembled together; the parties entered upon the land and erected a church in which such a congregation did assemble for divine worship. Several years afterward the great body of the congregation ceased to be in connection with the Free Church, and they, in concert with the vendor, sought to hold possession of the church and land to the exclusion of such of the members as still adhered to the Free Church. It was held that so long as any one remained to claim the site and church on behalf of the Free Church the right of the latter body continued, notwithstanding the change of opinion in the body of the members. No other denomination had a right to take possession of the church and insist on holding and using it; and an injunction was granted restraining such attempted possession and use, as against the minority who still adhered to the Free Church of Scotland. Attorney- General v Christie, 13 Grant's Ch. (Can.) J:95.

254 THE CIVIL LAW AND THP] CHUKCH

Union Did Not Affect Freedom of Private Opinion. This orgauization was foniied in 1900 by a union composed of a great majority of the ministers and elders of the Free Church of Scotland with the ministers and elders of the United Presbyterian Church of Scotland. The act of union left ministers and laymen free to hold opinions as regards the establishment principle, and the predestination doctrine in the Westminster Confession as they pleased. General As- sembly, Free Church of Scotland v Overtoun (1904), Law Kep, App. Cas. (Eng.) 515.

FRIENDS

History, 255.

Tliree groups, 256.

Described, 257.

Business, how transacted, 260.

Creed, 261.

Ohio Yearly Meeting, 261.

Philadelphia Yearly Meeting, 262.

Preparative Meeting, only one regular, 264.

Affirmation, 265.

Division of society, effect, presiding officer, 265.

Exemption from miUtary duty, 266.

Meetings, 266.

Office, when not bound to accept, 266.

Title, not forfeited by removal of building, 267.

Unincorporated, may take by will, 267.

History. The di-stiiictive doctrines of Quakerism were first taught in England shortly after the middle of the seven- teenth centur}'. The earliest meetings of this sect of Chris- tians were no doubt for the puri^ose of worship only, and it was not until the year 1G82 that the Society of Friends was fully organized for the purpose of discipline or church gov- ernment. In that year a form of ecclesiastical government was matured and adopted. The system then adopted, which has been continued ever since, embraced four grades of church judicatories, called meetings, namely, the Prepar- ative, the Monthly, the Quarterly, and the Yearly. These were connected and subordinated in the order named — the preparative to the monthly, the monthly to the quarterly, tlie quarterly to the yearly. The London Yearly Meeting, the only yearly meeting at that time established, was in- vested with paramount and final jurisdiction over all the subordinate meetings of the society. The jurisdiction of the Yearly Meeting was both appellate and advisory. Ap- peals from the decisions of the Quarterly Meetings were

255

25(; THE CIVIL LAW AND Till'] CHURCH

eutertaiued by the Yearly Meeting. Each Quarterly Meet- ing was invested with like jurisdiction over all the Monthly Meetings within its prescribed territorial limits, and each Monthly Meeting with like jurisdiction over Preparative Meetings within its territory.

Under this system a Preparative Meeting cannot be "set up" or "laid down" within the bounds of a Monthly Meet- ing without the consent of the Monthly ; a Monthly Meeting without the consent of the Quarterly Meeting to which it is accountable, or a quarterly without the consent of the Yearly Meeting. All meetings for worship are promiscu- ous, being composed of members of the society without regard to sex, and open to all persons who may desire ad- mission. In the scheme of Quaker government no superior judicatory has been organized for the exercise of discipline over its Yearly Meetings. Harrison v Hoyle, 24 Ohio 254.

Three Groups. Those known by the general name of Friends, and residing upon the American continent, are divided into three principal groups of Y^'early Meetings. The first of these groups comprises all of the l^early Meetings, which are in correspondence and in regular fraternal rela- tions with the London l^early Meeting, and to which we have already referred. Of this group the New England, formerly known as the Rhode Island, Y^early Meeting is the oldest American Yearly Meeting. The second embraces those Y'^early Meetings which have their origin in a division of the society of Friends, commencing in the year 1827, in which Elias Hicks, a minister of the society, bore a promi- nent part. Those constituting these meetings are known in common parlance by the distinguishing name of Hiclcsite Quakers. The third is comi)osed of a class of Yearly Meet- ings which, in the matter of their immediate organizations, are of a still more recent date. Those uniting with this class of Y^'early Meetings, as between themselves and others claim- ing to be Quakers, prefer to be known as orthodox Friends.

These Y^early Meetings base their claims to regularity in their organizations upon their avowed adherence to the

FRIENDS 257

ancient principles of Quakerism, and upon the orthodoxy of tlieir sentiments as Quakers on the general subject of religion. The position of the Philadelphia Yearly Meeting is somewhat anomalous. It is next to the oldest, and, in some respects, has been, and perhaps continues to be, one of the most influential Yearly Meetings on this continent, and on terms of courtesy and friendship with many other Yearly Meetings ; yet, owing to some internal difficulties and disagreements as to what relations it ought to sustain to certain other bodies claiming to be Yearly Meetings, it has ceased to have regular correspondence with any other Yearly Meeting. We, consequently, find it difficult, if not imprac- ticable, to classify it with any one of the groups of Yearly Meetings to which we have referred. White Lick Quart. Meet, of Friends v White Lick Quart, etc., 89 Ind. 13G.

Described. The society consists of a series of what are termed meetings — the word being used not only to desig- nate assemblies of the people for worship, but also the jurisdiction and authority of these bodies. The lowest of these in order, which are called Particular Meetings, are local assemblies for the purpose of worship only. Some- times several of these exist in a single town. They are sim- ilar to what some other sects call congregations. Next in order are Preparative Meetings. These consist of tlie mem- bers of one or more particular meetings. They assemble for worship, and also for the transaction of business to a limited extent. They usually include more than one I*articular Meeting. Next above these are Monthly Meetings. They consist of as many Preparative Meetings as may be conven- ient and assemble monthly. From among the members of each Preparative Meeting belonging to them, they annually elect two or more males and two or more females as over- seers. These overseers superintend the discipline and man- age the funds and business of the Monthly Meetings; and the members which belong to each preparative meeting superintend its discipline and nmnage its funds and busi- ness.

258 THE Cnih LAW AND THE CHURCH

By the Massachusetts act of 1822 corporate powers were conferred iijiou these bodies, and they have ever since been intrusted with corjiorate powers to take and hold property in succession. The Monthh' Meeting is subordinate to a Quarterly Meeting, which is composed of as many Monthly Meetings as may be thought fit to constitute the same; and each of the Monthly Meetings elects delegates to it. It meets quarterly. Over all these meetings is a Yearly Meet- ing, which includes within its jurisdiction all the meetings of the denomination of Friends in Xew England, except those in Vermont. It meets annually, in the sixth mouth, in Rhode Island, and each Quarterly Meeting elects delegates to it. Dexter v Gardner, 7 Allen (Mass.) 243.

Besides the delegates and representatives, the members of the society generally are entitled to attend all the meet- ings and to participate to a greater or less extent in their proceedings. Tlie greater jiart of the merely disciplinary and administrative business of the society is transacted at the Monthly Meetings, but their proceedings may be reviewed by the Quarterly Meetings and appeals may be still further taken to the Yearly Meetings. Each Yearly Meeting has a final and controlling jurisdiction in all matters of faith, religious duty, administration, and discipline within its territorial limits, and is regarded as a coordinate supreme judicatory with other Yearly Meetings, all constituting the ecclesiastical system knowm as the Society of Friends.

This general plan of organization is adhered to by all classes of English-speaking people claiming to be Friends, but more generally known as Quakers. Instead of general conventions, general conferences, or other general assem- blages of some kind, as is provided for in most other reli- gious organizations, the society of Friends has adopted a system of correspondence and fraternal communication be- tween its Yearly Meetings in unity and general accord with each other, which is carried on by means of epistles, liberat- ing certificates, visits, interchanges of ministers, and general letters of recommendation. By this system of intercom-

FRIENDS 259

munication each Yearly Meeting receives information from time to time as to the general condition of all the other Yearly Meetings with which it is in correspondence, and is afforded an opportnnity of consulting such other Yearly Meetings in all affairs of serious difficulty or of grave im- portance.

In matters of correspondence, and of an advisory char- acter merely, the Yearly Meeting of England, which as- sembles at London, and which was organized and established more than two hundred years ago, has usually had accorded to it that kind of precedence which is quite frequently, if not usually, conceded to the oldest member of a family, and correspondence with, and consequent recognition by, that Yearly Meeting has been regarded by most, if not all, the Yearly Meetings on this continent, as a matter of consider- able, if not of very great imj)ortance.

In the peculiar phraseology of the Society of Friends, a meeting is said to have been "set up" when it hns been organ- ized according to the usages of the society, and to have been "laid down" when it has been formally dissolved.

A new Yearly Meeting is set up by some contiguous or convenient Yearly Meeting, but only with the consent of all the Yearly Meetings with which such contiguous or conven- ient Yearly Meeting is in unity and fellowship.

When a new Yearly Meeting is set up it acquires juris- diction over all subordinate meetings already established within its territory. Quarterly Meetings are set up by the proper Yearly Meeting; Monthly Meetings are set up by the Quarterly Meetings, and the Preparative Meetings are set up by the Monthly Meetings.

The clerk of the meeting is in a qualified but, neverthe- less, in a general sense, its presiding officer, as well as the recorder of its proceedings, and during his term in office he stands at the head of the organization which constitutes the meeting. The meeting itself is frequently contradistin- guished from others by a reference to him as its clerk. When, therefore, a clerk has been regularly aj^pointed the

260 THE CIVIL LAW AND THE CHUECH

meeting is fully organized and ready to proceed with its business. White Lick Quart. Meet, of Friends v White Lick Quart. Meet, of Friends, 89 Ind. 103.

Business, How Transacted. One of the peculiar and distin- guishing characteristics of this people consists in their mode of transacting business and arriving at conclusions, in which, rejecting totally the principle that a majority as such is to rule or decide, or govern, they arrive at a unity of resolution and action, in a mode peculiar to themselves, and entirely different from that common to all civil or polit- ical, and to most ecclesiastical bodies. They look and wait for a union of mind; and the result is produced not by a vote or count of numbers, but by a yielding up of opinions, a deference for the judgment of each other, and an acquies- cence or submission to the measure proposed. Where a divi- sion of sentiment occurs the matter is postponed for further consideration, or withdrawn, or dismissed entirely ; or, after sometimes temperate discussion and sometimes silent delib- eration, those who support, or those who oppose a measure, acquiesce in the sense of the meeting as collected and minuted by the clerk ; and they believe the "spirit of truth" when the meeting is "rightly gathered" will be transfused through their minds, and they will be guided and influenced by a wisdom and judgment better than their own, and that their clerk will be led to act under the overshadowing of that power, which is not at his command, which will enable him to make proper decisions.

Quoting from Clarkson's Portraiture of Quakerism, the court said : "When a subject is brought before them it is canvassed to the exclusion of all extraneous matter, until some conclusion results ; the clerk of the meeting then draws up a minute, containing, as nearly as he can collect, the substance of this conclusion ; this minute is then read aloud to the auditory, and either stands or undergoes an altera- tion, as appears by the silence or discussion upon it, to be the sense of the meeting; when fully agreed upon it stands ready to be recorded."

FRIENDS 261

The coustitutipii of tliis society neither recognizes nor makes provision for a vote or a decision on the principle of numbers in any instance or predicament. Hendrickson v Shotwell, 1 N. J. Eq, 577; see also Hendrickson v Decow, 1 Saxton (N. J.) 577.

Creed. Although the Society of Friends have seldom made use of the word trinity, yet they believe in the existence of the Father, the Son, or Word, and the Holy Spirit; that the Son was God, and became flesh ; that there is one Lord Jesus Christ, by whom all things were made, who was glori- fied with the Father before the world began, who is God over all, blessed for ever, that there is one Holy Spirit, the promise of the Father and the Son, the leader, and sancti- fier, and comforter of his people, and that these three are one, the Father, the Word and the Spirit. They also believe in the doctrine of the atonement; that the divine and human nature of Jesus Christ were united ; that thus united, he suffered, and that through his sutferings, death, and resurrection he atoned for the sins of men. They also believe that the Scriptures were given by inspiration, and when rightly interpreted are unerring guides. They believe that the Spirit still operates upon the souls of men, and when it does really and truly so operate it furnishes the primary rule of faith. Hendrickson v Decow, 1 Sax. (N. J.) 577.

Ohio Yearly Meeting. In 1832 land in Jefferson County, Ohio, was conveyed to trustees for the use of the Ohio Yearly Meeting of the Society of Friends. The property was intended for a boarding school and suitable buildings were soon afterward erected, and a school was maintained there.

The Ohio Yearly Meeting was unincorporated, but exer- cised supervision over affairs relating to the Society of Friends in Ohio. In 1854 a division occurred in the Ohio Yearly Meeting, resulting in the organization of two soci- eties under the same name, each claiming to be the Ohio Yearly Meeting entitled to the trust property described in said conveyance.

262 THE CIVIL LAW AND THE CHURCH

The Ohio Yearly Meeting was established in the regular order of the Society of Friends in 1812. The territory placed under its care had formerly been within the jurisdiction of the Baltimore Yearlj^ Meeting.

The division in the Ohio Yearly Meeting of 1854 was apparently the result of a division which had previously occurred in New England Yearly Meeting. Out of this dis- sension there were formed in 1845 two New England Yearly Meetings. There were two parties in the Ohio Yearly Meet- ing respectively sympathizing with the larger and small party in the New England division. The controversy in 1854 grew out of the election of a clerk, resulting in the declaration of election of two clerks by opposing factions. After this division each party met in a separate meeting. One of those meetings was known as the Binn's Meeting, and the other as the Hoyle Meeting. The Binn's party maintained the history, traditions, and customs of the Yearly Meeting of the Society of Friends, while the Hoyle party was, so far as practicable, excluded from associa- tion with the other party.

The court held that the Binn's party was entitled to be considered the true Yearly Meeting, and that the Hoyle party had not conformed to the rules of the society in attempting the election of a clerk and assistant in the manner pointed out in the opinion. It appeared that nearly all other Yearly Meetings of Friends in this country recog- nized the validity of the Binn's election and the status of the Binn's party. This was deemed of great weight by the court in determining the question as between the Binn's and the Hoyle factions. The Binn's party was held entitled to the property conveyed to the Ohio Yearly Meeting in 1832. Harrison v Hoyle, 24 Ohio 254.

Philadelphia Yearly Meeting. In the latter part of the seventeenth century, and at a very early period in the prog- ress of the settlement of New Jersey and Pennsylvania, the number and condition of the followers of George Fox, or the people called Quakers, rendered it desirable they should

FRIENDS 263

be brought under a common head, according to the form of ecclesiastical government adopted in England, and already existing in some of the more ancient colonies. In the year 1681 or 1685 (the precise time seems to be controverted) a Yearly Meeting was established, comprehending the prov- inces of New Jersey and Pennsylvania, and the members of that religious society and their already organized meetings and judicatories of inferior grades. This body was not a mere incidental, casual, disconnected assemblage, convening without previous arrangement, ceasing to exist when its members separated, and formed anew when individuals came together again at some subsequent time. It was a regularly organized and established body, holding stated sessions, corresponding with other bodies of the same reli- gious denomination, consulting together for the welfare of a portion of their church and its members, the ultimate arbiter of all differences, and the common head and governor of all belonging to the Society of Friends, within its juris- diction, which extended over tlie territories just mentioned, while they were called provinces, and since they assumed the name and rank of States. The meetings of this body were held annuall3% as its name imports, and as long and steady usage has wrought into a part of its essential struc- ture. The time and place, however, when and where only the body can constitutionally assemble and act, must when fixed, so remain, until "the voice of the body," "in a Yearly Meeting capacity'," which alone has the power and right "to govern its own proceedings," shall resolve on and enact a change. From the year 1685, for nearly a century and a half, this body held its periodical sessions; for years, alter- nately at Burlington and Philadelphia, and finally in the latter city alone ; and there, successively, at their houses on Pine Street, on Keyes' Alley, and on Arch Street; in the year 1826, at the prescribed time and i)lace, a meeting was held. After the transaction of its business it adjourned, according to the ancient and wonted form, "to meet in the next year at the usual time." This body, thus convened and

2(14 THE CIVIL LAW AND THE CHURCH

thus adjoiirued, was, without dispute, the Philadelphia Yearly Meeting of Friends. Heudrickson v Decow, 1 Sax. (N. J.) 577. ■

This was declared to be a body politic or corporate by prescrix)tion, and its right of taking and enjoying property could not be impaired by inquiry into the separate capacity of its component members. Magill v Brown, Fed. Cas. No. 952 (U. S. Cir. Ct., Pa.) Brightly N. P. 347.

Preparative Meeting, Only One Regular. For some time prior to 1827 there was a preparative meeting at Chester- field, New Jersey. In December, 1827, there was a separa- tion among the members of this meeting, and two meetings were formed, each calling itself the Chesterfield Preparative Meeting. One of the meetings elected a treasurer of certain school funds, and the other continued the former treasurer in office. Each of these Preparative Meetings was con- nected with one of two Yearly Meetings in Philadelphia. But while there were two meetings claiming to be the true Yearly Meeting, it was conceded that by the law of the society there could be only one true Yearly Meeting in Philadelphia.

It was held that there could be only one Preparative Meeting at Chesterfield, which must be connected with one Yearly Meeting in Philadelphia. It was also held that the separation in 1827, by which the Philadelphia Yearly Meet- ing was divided, a minority organizing another Yearly Meeting, did not have the effect to change the status of the original society, which was continued by the election of officers, and the transaction of general business; and this Y'^early Meeting was held to be the true Yearly Meeting. The Chesterfield Preparative Meeting, which continued in office the former treasurer, was held to be the regular Pre- parative Meeting, duly connected with the Philadelphia Yearly Meeting, and that this treasurer was entitled to recover the amount due on a mortgage given to him for the loan of money belonging to the school fund. Hendrickson v Shotwell, 1 N. J. Eq. 577.

FRIENDS 265

Affirmation. In Rex v Mayor of Lincoln, 5 Mod. (Eug.) 400, a Quaker was admitted to the freedom of the City of Lincoln on his aflflrmatiou.

In Ex Parte Gumbletou, 2 Atk. (Eug.j 70 Lord Chancellor Hardwicke held that under the act of 7 and 8 W. 3, a Quaker could not by affirmation without oath present articles of the peace against her husband, and it was suggested that the woman, "as she goes in danger of her life," might overcome her scruj)les and take the required oath,

A Quaker's testimony on his affirmation is admissible in an action on debt on statute, 2 Geo. 2, c. 24, against bribery. Atcheson v Everitt, 1 Cowper (Eng. ) .382.

Quakers may serve as grand jurors and the affirmation administered to them is equivalent to the oath to be admin- istered to other persons. Commonwealth v Smith, 9 Mass. 107.

Division of Society, Effect, Presiding Officer. Members of a Society of Friends formed an association known as the "Purchase Preparative Meeting," to whom belonged a school fund of about .fSOO in cash, raised by contribution, and 150 acres of land devised by an individual. In 1828 a separa- tion took place in the Society of Friends, at their Yearly Meeting in the city of New York, about 250 persons out of an assemblage of 1,200 withdrawing from the Friends Meet- ing house in the city of New Y'^ork, and organizing a separate Y'early Meeting; the section withdrawing was called the Orthodox, and those remaining the Hicksites. Under the rules of the society the clerk of the meeting is its presiding officer, and the meeting is not deemed organized until he is in his place. At a meeting held in 1828 the Hicksites were a large majority, and they refused to permit the clerk to preside, for the reason that he had joined the Orthodox party; thereupon the clerk and several members withdrew and held a meeting in another place. At this meeting the Orthodox Friends were directed to separate from tlie Hicks- ites. On the withdrawal of the clerk, as above pointed out, the Hicksites elected another clerk and afterward held

266 THE CIVIL LAW AND THE CHURCH

regular meetings. The Hicksites retained possession of the meetinghouses and schoolhouses, and control the schools and support them. It seems that by one of the rules of the Society of Friends questions at a meeting are not decided by vote, but by the clerk, who gathers as best he may the opinions of the members present and decides it according to his judgment. The court sustained the validity of the meet- ing held by the excluded clerk, notwithstanding a majority of the persons present at the opening of the meeting re- mained, and elected another clerk. The regular clerk could not be excluded from his office, nor prevented from exercis- ing his functions by the action of the meeting. He was its legal head under the rules of the society, and authorized to act as its presiding officer. The plaintiff as treasurer of the Purchase Preparative Meeting in 1817, having loaned to the defendant a part of the fund on his promissory note, was held entitled to recover notwithstanding a subsequent division of the society. The plaintiff represented the original so- ciety, and the title to the fund was not affected hj the seces- sion of a portion of its members. Field v Field, 9 Wend. (N. Y.) 394.

Exemption from Military Duty. A Quaker who claims an exemption from duty in the militia must prove that he is a member of a society of that denomination, and that he fre- quently and usually attends with such society for religious worship. Commonwealth v Fletcher, 12 Mass. 441.

Meetings. The meetings in the Society of Friends are of two kinds — for worship and for discipline, as they are sometimes called ; or, in other words, for business. Every meeting for discipline is in truth a meeting for worship, since he cordially and faithfully performs any ecclesiastical duty ; does thereby pay an act of adoration to the Almighty. The meetings for business are four in number, marked and distinguished by peculiar and characteristic differences — preparative, monthly, quarterly and yearly.

Office, When not Bound to Accept. The court declined to compel a Quaker to accept the office of churchwarden to

FRIENDS 2G7

which he had been elected in the Established Church. Adey

V Theobald, 1 Curteis (Eng.) 873.

Title, Not Forfeited by Removal of Building. Property con- veyed to the society for its use so long as it was needed for meeting purposes, with a provision that it should revert when no longer needed for such purposes, was not forfeited by the removal of the buildings erected by the society on the lot. Such a removal did not constitute a forfeiture. Carter

V Branson et el, 70 Ind. 14.

Unincorporated, May Take by Will. In Magill v Brown, Fed. Cas. 8, 952 (U. S. Cir. Ct., Pa.) (Brightly N. P. 347) Judge Baldwin, considering the provisions of a will making numerous bequests to Societies of Friends for charitable purposes, said : "It is not conceivable that the Quaker settlers of this province should have introduced those laws of the mother country, which would incapacitate them as indi- viduals, or a religious society, from taking, holding, or enjoy- ing property as a matter of right without a charter ; or expose to a forfeiture to the proprietor, or mesne landlord, lands conveyed to them for the purposes of sei)ulture, religious wor- ship, or charity, and above all, that William Penn should have adopted the statutes of Henry VIII declaring the celebration of divine service according to the rites of the Catholic Church to be superstitious, and a conveyance for its use illegal and void ; and the statutes of mortmain which make the enjoyment of property by a religious body de])en<l- ent on the pleasure and permission of the lord of the fee, while at the same time he excludes the Statute of 43 Eliza- beth, and the mild and beneficent principles of the common law which that statute has been held to have restored." The history of the Society of Quakers presents no instance of an incorporation. The societies of Friends, though never form- ally incorporated, are capable under the constitution and laws of Pennsylvania, of taking property by devise or bequest for the purposes of their organization. But in Green v Dennis, 6 Conn. 293, a devise to an unincorporated Quaker society' was rejected.

FRIENDSHIP LIBERAL LEAGUE

Description, 268.

Description. Testator gave a legacy to the league but did not specify the use to which it was to be applied. The league was organized for the purpose of uniting socially for the improvement of their intellectual and moral condition by the dissemination of scientific truths by means of literature, music, lectures, and debates. It did not claim to be a Chris- tian organization, but it represented nevertheless the belief of its members about religion, and their practices as to the observance of the Sabbath and similar subjects. It was an organization that had about it no element of personal or corporate gain. It had no capital stock and no stockholders. Its meetings were usually held on Sunday. It was held that money given to this league was given for religious use within the act of 1855. Knight's Estate, 159 Pa. 500.

268

GERMAN EVANGELICAL LUTHERAN CHURCH

Diversion of property, 269.

Diversion of Property. Propertv'^ was convej'ed to the society in trust to be held as an Evangelical Lutheran Church forever, in which the doctrine of the Augsburg Con- fession and Luther's Smaller Catechism shall be taught and adhered to. Provision was also made for conducting the service in the German and also in tlie English language. The local society enacted a constitution providing for the election of seniors and wardens, and that the pastor must be a regular dergjinau connected with some Evangelical Lutheran Sjnod in the United States of America.

About 1853 the pastor, as alleged, began a sj'stematic effort to lead the congregation to adopt i)ractices in church worship which are not api)roved or practiced by those churches which are connected with the Evangelical Lutheran Ministerium of the State of New York and adjacent parts, among which practices was the use of lighted candles during the services in the church in the daytime, the use of the wafer at the sacrament of the Lord's Supper, auric- ular confession, and the use of the sign of the cross, and such Romish practices as are disapproved by the Evangel- ical branch of said denomination.

The trustees gave the pastor notice of the termination of his pastoral relations after three months. The trustees at- tempted to get possession of the property. They demanded the key of the sexton, who refused to deliver it. Proceedings were commenced against the pastor and some of the trus- tees and members adhering to his interests, to restrain them from taking possession of the property or from exercising

269

270 THl"] CIVIL LAW AND THE CHURCn

any functions therein. It was held that plaintiffs were entitled to the possession of the properly, and the pastor's adherents were not entitled to continne in possession thereof. German Evangelical Lutheran Church, Newark v Maschop, 10 N. J. Eq. 57.

GERMAN EVANGELICAL SYNOD OF NORTH AMERICA

Property, separation, injunction, 271.

Property, Separation, Injunction. A local society was or- ganized, but the papers were defective. Trustees, were choseu, a corporate organizatiou was maintained, the riglit to be a corporation asserted, and the corporate franchise accordingly used down to the coniniencenient of this action. The corporation was under the jurisdiction of the German Evangelical Synod of North America, and was presided over by ministers of that denouiination. Land was conveyed to trustees of the local society, on which the church edifice was erected and dedicated, as property of a society of the Ger- man Evangelical Synod of North America, and used in har- mony therewith until some time in 189G. Owing to the difficulty attending the employment of a minister, the society employed one who was a member of the Lutheran Church, a sect materially different in its religious belief and distinct from that of the Wayne Society. This employment was for one year; at the end of that time a majority again employed the same minister. The minority protested on the ground that they desired and were entitled to have a minister in harmony with the views of the German Evangelical Synod of North America. The majority controlled the possession of the church, and refused its use by a minister of the denomination to which the society belonged. It was held that the property could not be diverted to uses not contem- plated in the original acquisition, and this diversion could not become effective even with the sanction of a majority. On the application of a minority, who adhered to the

271

272 THE CIVIL LAW AND THE CHUKCH

original society, au injunction was granted prohibiting tlie majority from diverting the property from the use to which it had been devoted at the time of its acquisition, and the erection and dedication of the church edifice. Franke v Mann, 106 Wis. 118.

GERMAN REFORMED CHURCH

Description, 273.

Dissolving; relation to Classis, effect, 273. Joint title, division, effect, 274. Judicatories, 274.

Description. The German Reformed Church, founded in 150:^, was a distinct ecclesiastical organization, not merely having adopted the Heidelberg Catechism as the confession of its faith, but having a written constitution, a settled form of government by ecclesiastical judicatories, four in number, in regular gradation, from the lowest to the highest, having cognizance of ecclesiastical matters though their j)ower, of course, was wholly s])iritual. First, the Consis- tory, the primary governing body of each church or congre- gation, composed of the nnnister or ministers of that church, together with the elders and deacons as the representatives of the people; second, the Classis, consisting of all the min- isters and delegated elders of the congregations within a certain designated territorial district; third, a Synod, con- sisting of the ministers and lay delegates of the several classes end^raced within its prescribed geographical limits; and, fourth, the General Synod, the highest judicatory of the church, and the court of last resort, composed of min- isterial and lay delegates elected by all the classes respec- tively, according to a prescribed ratio of representation. Roshi's App. 00 l»a. 4C2.

Dissolving Relation to Classis, Effect. According to the head note in Miller v Gable, 10 I'aige (N. Y.) 627, where the trustees of a German Reformed Church which was in ecclesiastical connection with, and subject to, the church judicatories of the Dutch Reformed Church in the United States, attempted to dissolve the connection of such church

273

274 THE CIVIL LAW AND THE CHL'RCH

with the classes to which it belonged, and employed German Lutheran pastors, without the consent of a large portion of the church and congregation, or of the classes with which the church was connected, and refused to permit the stated supplies provided by the classes to occupy the pulpit. Held, that such conduct of the trustees and their adherents was a diversion of the funds and property of the church from the purposes for which they were contributed by the original donors. See this case on appeal 2 Denio (N. Y.) 41)2, 570.

Held also, that those members of the church and congrega- tion who adhered to the original doctrines of the church, and who had continued their ecclesiastical connection with the church judicatories to which they were subordinate when the property of the church was acquired, and who had also kept up a proper corporate organization, by the regular election of the proper church oflScers, as trustees of the corporation, from time to time, were entitled to the tempo- ralities of the church and to its books and papers.

Joint Title, Division, Effect. The German Reformed So- ciety' and the Lutheran Society occupied land together for many years, using the same church building. The original tract of land thus occupied contained about eight acres. After a long period of joint occupancy the German Reformed Society concluded to erect a separate house of worship, and for that purpose took possession of about three quarters of an acre at one end of the eight acre tract, sufficiently dis- tant from the other house of worship, so that neither congre- gation interfered with the service of the other. In St. Pauls Ref. Ch. V Hower, 101 Pa. St. 300, it was held that although those who erected a new church could not without the con- sent of the other party take lawful possession of a portion of the land, the Lutherans objecting were estopped from claiming title to the new building, which had been occupied about ten years without objection.

Judicatories. The Judicatories consist of three heads ; the Consistory, the Classis, and the Sj'uod. And by the sixth article of the Discipline it is provided that when any person

G1:KMAN KEFOiniED CHURCH 275

may think himself aggrieved by the decision of a lower judi- catory, he has a right to appeal to a higher; and whatever is concluded in such judicatory' by a majority of votes, is valid and binding, unless it can be shown to be contrary to the Word of God and the constitution of the church. Church V Seibert, 3 Pa. 282.

GERMAN SOCIETY

Washington, D. C, 276.

Washington, D. C. About the year 1832 a hirge number of Germans found themselves domiciled in the city of Washing- ton, which then contained no church where the services were performed in their own tongue. The bond of nationality proved stronger than devotion to religious forms, and they all, from time to time, assembled in common worship con- ducted in the German language by some of tlieir members ; and the testimony disclosed the rather remarkable fact that this company of foreigners, composed of Jews, Roman Cath- olics, Lutherans, and Calvinists, for a considerable time con- tinued in harmony to attend the same religious exercises. Ebbinghaus v Killian, 1 Mackey (Dis. of C.) 247.

276

GOSPEL

Defined, 277.

Defined. "(Jospel, accoidiuj; to the conimon and more gen- eral acceptation of the teini, is synonymous with Chris- tianity or the Christian religion." Attorney-General v Wallace, 7 B. Mon. (Ky.) 611.

277

GREEK CHURCH

Comparison with other Catholic Churches, 278.

Diversion of property, 278.

Priest, appointment and removal, 279.

Comparison with Other Catholic Churches. The United Greek Church is an organization separate and distinct from the Orthodox Greek Catholic Russian Church, and its doctrines, tenets, rules, etc., are the same as the Roman Catholic Church, except in some matters of discipline, al- though acknowledging the pope as the ecclesiastical head of the church, and acknowledging the authoritj^ of the bishops appointed by him. The Orthodox Greek Catholic Russian Church differs in many respects in its faith, doc- trines, tenets, rules, etc., from the United Greek Catholic Church, and acknowledges as its spiritual or ecclesiastical head, the Synod of Russia, consisting of bishops appointed by the Czar of Russia. These two sej^arate and distinct churches have existed and had these marked differences in their beliefs and government for a long period of time. Greek Catholic Church v Orthodox Greek Church, 195 Pa. St. 425.

Diversion of Property. In 1889 a deed of land was made on Mdiich a church had been erected, and was then being- used by a society with a regular pastor, worshiping accord- ing to the forms of the United Greek Catholic Church. It was held that the trust contained in the deed of tlie cliurch property was created for the Greek Catholic Church at Wilkes-Barre, as it was then being conducted. A new pastor, who came to his position in 1892, taught new doctrines and forms, and required of the congregation and trustees that they renounce their belief in the doctrines and dogmas of

278

giu:ek chukch 2?.)

the Uuited Greek Catholic Church. A portion of the con- gregation, led by the pastor, attempted to transfer the society and its property to the Orthodox Greek Catholic Kussiau Church. An injunction was granted preventing such transfer. Greek Catholic Church v Orthodox Greek Church, 195 Pa. St. 425.

Priest, Appointment and Removal. In Papaliou v Manusas, 113 111. App. 310, it was held that the board of trustees had power to appoint and dismiss a priest, and that the power was not vested in the congregation. There was no evidence of any law of the denomination prescribing any other method of appointmeiit or removal. There was no evidence to show that either in this country or in Europe a priest had ever been elected by the vote of the church or congrega- tion, or that there was any law of the church providing for such election.

GUARDIAN

Removal on change of religious faith, 280. Ward's religious education, 281.

Removal on Change of Religious Faith. Testator, who died in ISJJG, by his will appoiuted his sister guardian of his infant daughter, eleven years of age. In 1900 the guardian became a Koman Catholic. Under the circumstances, the court considered this change of religious faith a sufficient ground for the removal of the guardian. The ward, who had been brought up a Protestant, objected to remaining longer under her aunt's charge. The court observed that the father's religion is prima facie the infant's religion, and the guardian's duty is to see that the ward is brought up in that religion, and is protected against disturbing influences by persons holding the tenets of a different faith. The court also said that in considering questions of guardianship, it has regard, before all things, to the infant's welfare; and expressly declared that there was no imputation against the guardian who had changed her religion from conscientious motives.

"One of tlie first and most sacred duties of the parents is to ind)ne the mind of the child with some religious belief, and this is done, not merely bj^ precept and instruction, but by the unconscious influence of everyday life and conduct. Tlie child is entitled to this care, and the opportunity of resorting to the guardian for assistance and instruction in the doubts and difficulties that assail the youthful mind, and they usually become more marked and urgent as she develops from girlhood to womanhood. But if the guardian changes her religion, she de])rives the ward of this protec- tion and refuge." "1 accei»t the guardian's tissurance that

280

GUARDIAN 281

she has not attempted, and will not attempt in any way to iuflneuce the ward; but this means that the subject of reli- gion is excluded from their conversation, and that the ward is deprived of all the jjrotectiou and assistance in religious matters which she is entitled to expect from her guardian. Further than this, the disturbing influence arising from the sight of the guardian worshiping in a dift'erent church, and consulting the priests of another faith, may well be prej- udicial to tlie ward's peace of mind and secure confidence in her own religious belief." F. v F. (1), 1 L. R. Ch. (Fug.) ()S8 (1902).

In State ex rel Baker v Bird, 25?» Mo. 509, it was hebl that under the Missouri Revised Statutes of 1909 a guardian could not be removed merely because he was of a dili'erent religious faith than that of his ward or his ward's parents.

Ward's Religious Education. Such education should be according to the religious preference of the parents, if any have been expressed, and such j^reference should be con- sidered by the court in appointing a guardian. Re Jacquet, 10 Misc. (N, Y.) 575, 82 N, Y. S, 98G. Citing Matter of Scanlan, 57 L, J, Ch. (Eng.) 718, in which the court refers with approval to an authority holding that the guardian was to have sacred regard to the religion of 1h(! father, whatever that religion may have been.

In Matter of Mancini, 89 Misc, (N, Y.) 83, a Catliolic girl, an ori)han, fourteen years of age, requested the api)ointment of a Protestant in whose family she had lived for five years. The Surrogate recognized the claim of her family that she be educated in the Catholic faith, and directed the appoint- ment of the proposed Protestant guardian, on condition that he place her in a Catholic residential educational insti- tution.

INDEPENDENTS

Definition, 282.

Definition. Independents are so called for maintaining, in opposition to Pipiscopalians and I'lesbyterians, that each congregation is a com2)lete church, and is in no respect sub- ject to the control of others. The Independents are a sect of modern date. The hierarchy established by Queen Eliza- beth, the vestments worn by the clergy in the celebration of divine worship, the Book of Common Prayer, the sign of the cross used in baptism, etc., were considered by many persons as too nearly resembling popery, and a purer worship and more perfect reform were demanded. These persons were called I*uritans. They divided from tlie church, or, rather, the church cast them oat. Brown first, Robinson afterward, molded a certain portion of this mass into the sect now known in England by the name of Independents. From thence sprung Cougregationalists in this country. Born in the Old World and in this, Presbyterians, Independents, or Cougregationalists form distinct religious societies or churches. Muzzy v Wilkins, Smith's N. H. Kep. 1.

282

INJUNCTION

Baptism, use of stream for, 283.

Cemetery, obstructing access to lot, 283.

Cemetery, removal of bodies, 284.

Diversion of property, 284.

Ecclesiastical bodies, 285.

Expulsion of members, 285.

Lease, 286.

Members, interfering with property, 286.

Members, interfering with trustees, 286.

Minister, dissolving relations, 287.

Minister's occupancy of church, 287.

Minister, restraining call, 290.

Pews, rearranging, 290.

Priest, restraining exercise of functions, 291.

Removal of building, 291.

Restraining increase of salary, 291.

Sale of property, 291.

Use of building, 292.

Baptism, Use of Stream for. The trustees sought an injunc- tion restraining the niaiuteuauce of a mill dam, alleging that the back flow of the water covered a place in the creek which had been given to the church and used by it for bap- tismal purposes, and that such use was interrupted and prevented by the dam. Tlie trustees claimed a right under a deed of certain land including the creek which assumed to reserve the right to use the creek for baptismal purposes without conveying any express title. It was held that the church acquired no right by prescription or otherwise to a perpetual use of the water of the spring or creek for bap- tismal purposes, and the injunction was denied. Stewart v White, 128 Ala. 202.

Cemetery, Obstructing Access to Lot. An injunction was granted restraining the church authorities from obstruct- ing an avenue in a cemetery in which a lot had been sold by

283

284: THE CIVIL LAW AND THE CHURCH

lliciii to the plaintiff, and on which he Iiad erected a family tomb. The plaintiff had a right of access to the tomb which could not be obstructed by the society. Burke v AVall, 29 La. Ann. 38.

Cemetery, Removal of Bodies. A church which has per- mitted its members and others to bury their dead on its lot for twenty years has thereby dedicated such part of its lot to that purpose, but in a proper case it will not be enjoined from selling the lot and removing the bodies to another l)]ace. Ex Tarte McCall, Little v Presbj^terian Church, Florence, G8 S. C. 480.

Diversion of Property. In 1856 the Little Schuylkill Navi- gation Railroad and Coal Company conveyed to the First Baptist Church of Tamaqua land for the use of public wor- ship, according to the usages and ceremonies of the Baptists only, with a condition of forfeiture if used for any other purposes. Afterward the land and improvements were transferred by the members of the Baptist Church to the Salem Church. In 1894 the Schuylkill Company, under its right to reenter for condition broken, granted and conveyed the land to the respondents, and secured possession of the property. They thereupon applied for an injunction, and a nmndatory injunction was granted. It was alleged that the complainants, claiming to be pastor and officers of the Salem Church, had withdrawn therefrom many years before, and were not members of the society; that the Salem Church was not a member of the Evangelical Association, but was and had been for years an independent organization. With- out disposing of the questions directly on account of the form of the remedy sought, the court on appeal dissolved the mandatory injunction and dismissed the proceedings. Fred- ericks V Huber, 180 I'a. 572.

In Mt. Zion's Baptist Church v Whitmore, 83 Iowa 138 it was held tlmt a majority of a church had no power to divert tlie church property to the propagation of doctrines contrary to Baptist articles of faith and church covenant, and an injunction was held proper to prevent the majority

INJUNCTION 285

from effectiug such a diversion. See also Morgan v Gabard, 58 So. (Ala.) 902.

Ecclesiastical Bodies. A minister was regularly appointed by the bishop as pastor of this church. The presiding elder removed this minister, assigning him to another church and appointing another minister in his place. The pastor and a board of stewards, who, it was alleged, had been ignored by the presiding elder, began a proceeding against a new board of stewards to procure an injunction restraining the new stewards from preventing the use of the church by the [tastor and former stewards. The injunction was denied, the court holding among otlier things that the questions in- volved were ecclesiastical only, and that the civil courts had no jurisdiction in the matter. Travers v Abbey, 104 Tenn. G65.

The principle nmy now be regarded as too well established to admit of controversy, that in the case of a religious con- gregation or an ecclesiastical bodj", which is itself but a subordinate member of some general church organization, having a supreme ecclesiastical judicatory over the entire membership of the organization, the civil tribunals must accept the decisions of such church judicatory as final and conclusive upon all questions of faith, discipline, or ecclesias- tical rule, and the party aggrieved cannot invoke the aid of the civil courts to have such proceedings reversed. High on Injunctions, sec. 233. State ex rel Soares v Hebrew Cong. 31 La. Ann. 205.

Expulsion of Members. In Holcombe v Leavitte, 124 N. Y. S. 980 an injunction was granted against the expulsion of certain members of the societj^ who had proposed by-laws for its government, and who, if arbitrarily expelled, would be dej)rived of property rights.

In Waller v Howell, 20 Misc. (N. Y.) 230, the court de- clined to interfere by injunction to prevent the rector from striking the names of the plaintiffs from the parish register, on the ground that the question involved was purely eccle- siastical and beyond the jurisdiction of Civil Courts.

280 THE CIN'IL LAW AM) THE CHUKCII

The complaiuaut claimed that he had iinhnvfiilly been put on probation in the society and was threatened with expulsion contrary to the rules of the denomination, and he asked for an injunction. This was denied on the ground that the church would not take such extreme action without giving him an opportunity to be heard, especially after his complaint had been made, and that if such action should be taken, he would have a complete remedy by mandamus. Hammel v German Congregation, 1 Wkly. Notes Cas. (Pa.j 411. See also Members and Mandamus.

Lease. Land was conveyed to the officers and members of the church for the purpose of keeping and maintaining a place of worship. The action of the officers in leasing a small portion of the lot for erecting a store, the rent to be paid to the officers for the benefit of the society, was lield not to be a violation of the trust and an injunction restrain- ing such lease was refused. Hayes v Franklin, 141 N. C. 509.

Members, Interfering with Property. I*ersons who had been members of this societ}', but had withdrawn therefrom and worshiped in other buildings, forcibly entered the church edifice, changed the locks, and interfered and threat- ened the disturbance of the rights of the society to the unin- terrupted use and control of its house of worship. An injunction was granted to prevent the defendants, former members, from interfering with the possession and use of the church property. Christian Church, Huntsville v Sommer, 140 Ala. 145.

Members, Interfering with Trustees. The trustees were held to be the managing agents of the corporation and en- titled to an injunction restraining certain members of the society from interfering with the possession and manage- ment of the property by the trustees. Baptist Congregation v Scannel, 3 Grant's Cas. (Pa.) 48.

In Richter v Kabat, 114 Mich. 575, it was held that injunc- tion was the proper remedy to secure to the officers of a church the i)eaceable ])ossessi()n of its property as against

INJUNCTION 287

members of the ijarisli who have assumed to exclude them therefrom without right.

Minister, Dissolving Relations. A vestry de facto was held competent to act in considering the relations of the rector to the society. This vestry had jjower to elect a rector, but the charter and by-laws did not confer on the vestry the power to dismiss a rector without giving him an opportunity to be heard. An injunction was, accordingly, granted re- straining tlie vestry from further action until the pastoral relations had been regularly severed in accordance with tlie constitution of the church. Battersou v Thompson, 8 Phila. (Ta.i 251.

Minister's Occupancy of Church. The pastor was dismissed by the action of a majority of the congregation. He and other defendants took possession of the church property and he preached and made ai)poiutments to preach with a view to the occupancy of the church without the consent of the majority. An injunction was granted restraining the min- ister and his associates from occupying the church without the consent of the majority. The majority represented the church and had a right to select the pastor. Hatdiett et al v Mt. Pleasant Baptist Churcli et al, 46 Ark. 291.

The trustees applied for an injunction restraining the defendant, a minister, from intruding into the church and occupying its pulpit without authority and contrary to the Avishes of a majority of h congregation. It was alleged that he had declared his intention to occupy the church as a min- ister for the next three years unless prevented by physical force. It appeared that he had not been employed as a min- ister and was not a member of the church. The court on appeal granted an injunction, saying among other things that where i^roperty is held by trustees for the exclusive use of a particular organization, that body has the riglit to enjoy it, according to the usages of the church. P^ven the trustees, much less others, have no power to pervert it to other uses, except in the usual mode of transferring such property, and any attempt to do so may be restrained. Such a body has

288 THE CIVIL LAW AND THE CHUKCH

the right to use it for the i)iiri)Ose of worship, acfordiug to the rules for tlie goveriiineiit of the church. And they have the right to have such worship performed in the manner and by i^ersons designated by tlie rules and tenets of the church. Other persons cannot lawfully intrude upon such rights. Persons not selected in the mode prescribed by the regula- tions for the church government have no right to force them- selves into the church and officiate or conduct the religious exercises, and any one doing so acts in violation of law. A congregation of religious j^ersons cannot be forced to accept the ministrations of a clergynuin not chosen according to the usages of their church, and when a person attempts to force himself upon them they may maintain a bill to restrain such acts. Trustees of the First Congregational Church v Stew- art, 43 111. 81.

In Isham v Trustees of the First Presbyterian Church of Dunkirk, 63 How. Pr. (N. Y.) 465, it was held that the trustees of the society could not lawfully permit the use of the church edifice by a clergynuin who had adopted and advo- cated religious views at variance with those held by tJie denomination, but those who adhered to the original faith were entitled to an injunction restraining such use of the cliurch edifice.

This societj^ was a free and independent church, and had not declared any particular articles of faith. It was not under the jurisdiction of any synod, bnt it was united with other Lutheran churches in their existing ecclesiastical policy. In 1867 a division arose among the Lutheran churches and a new body was formed, called the General Council, to which some of the synods united themselves, and others divided. In an action by members of the church against the pastor and other officers of the society, to re- strain the pastor from officiating as such, and the officers from permitting the use of the pulpit by any minister who did not preach the doctrines indorsed by the General Coun- cil, it was held that the action could not be maintained for the reason that the society was indei)endent. and could elect

INJUNCTION 289

its own pastor, and that he was only bound to teach the faitli and doctrines generally accepted by Lutherans, without reference to any synod or council. Threnfeldt's Appeal, 101 Pa. St. 186.

A Baptist congregation by resolution requested the pastor's resignation, but instead of resigning he continued to occupy the pulpit, sometimes using force and violence, and to exercise the functions of a pastor. In an action by the societj^ to enjoin the pastor from further use of the pul- pit and church the resolution of the congregation was sus- tained, and an injunction against the pastor was granted. Morris Street Baptist Church v Dart, 67 S. C. 338.

Differences having arisen between the pastor and council or governing body of the church the pastor was suspended for six months. Notwithstanding this suspension, he occu- jued the pulpit under jjrotest, and preached, apparently sowing seeds of dissension in the congregation and creating opposition to the council as the governing body of the society.

In a proceeding by the council against the minister to restrain him from further occupancy of the pulpit, or church, an injunction was granted prohibiting him from exercising ministerial functions. German Evangelical Congregation v Pressler, 17 La. Ann. 127.

The corporation includes all the members of a society, and not the trustees only. Trustees are officers of the society, and do not hold the property in trust in the same sense that a private trustee holds the property for his bene- ficiary. In Ma}^, 1859, the pastor and the person acting as schoolmaster, chorister, and sexton were excluded from their position by action of the trustees and a majority of the members of the society, contrary- to the rules of the Lu- theran Church, which vested in the synod (in this case, Buffalo) and the ministry the sole power of removal of the pastor and schoolmaster ; and at the same time the trustees and congregation renounced the ecclesiastical government of the Buffalo Sj-nod. In Gram v Prussia Emigrated Evan-

290 THE CIVIL LAW AND THE CHURCH

gelical Lutheran Germau Society, 3G N. Y. 161, it was held that the pastor and schoolmaster were not entitled to an injunction restraining the trustees and society from employ- ing another pastor, and schoolmaster, and that the property acquired by the local church for general purposes was not impressed with any trust.

An injunction cannot be maintained by session of an inde- pendent Presbyterian church to restrain the occupancy of the pulpit by a pastor who has been employed by the con- gregation. Trustees, Independent Presbyterian Church and Society of Buffalo Grove and Polo v Proctor, 60 111. 11.

Minister, Restraining Call. The court of chancery dissolved an injunction restraining the churchwardens and vestrymen from extending a call to a minister without first having the salary ascertained and fixed by a majority of persons entitled to elect churchwardens and vestrymen or trustees of the said church at a meeting of such persons to be called for that purpose. It was held that the vestry had the right to make the call which would include an agreement as to salary. Humbert v St. Stephen's Church, N. Y. 1 Edw. Ch, (N. Y.) 308.

Pews, Rearranging. Plaintiff sought an injunction re- straining the society from reconstructing the pews so as to permit members of the same family to sit together, it appear- ing that prior to this action the separation of the sexes had been observed, the nuiles occupying the ground floor and the females occupying the gallery. Plaintiff insisted that to ]>ermit the sexes to sit together vvoidd be immodest, un- chaste, unlawful, contrai-y to the discipline and rules of the congregation, and in violation of liis rights as a pew owner. It was held that under the statutes governing religious societies the trustees had power to make the proposed alter- ations without any vote of the congregation, but it appeared that a meeting of the congregation was had in which the action of the trustees was authorized and approved. The injunction was denied. Solomon v Cong. B'nai Jesurun, 49 How. Pr. (N. Y.) 263.

INJUNCTION 2!)1

Priest, Restraining" Exercise of Functions, lu Bonacniu v Harrington, (55 Neb. S'M, on the application of the bishop, an injunction was granted against the defendant, a priest, restraining him from exercising the powers and faculties of parish priest in or upon the property of said parish of Or- leans in contravention of the orders of the bishop exercising tlierein the functions of which he had been deprived by the bishop, or excluding such person as the bishop shall appoint regularly as priest of said ]»arish from the church property, or interfering with liiin in the exercise of his otlice.

Removal of Building-. The society being weak, and in- debted for nearly the value of its property, voted to sell the meetinghouse and lot to the creditor, on condition that he move the building to another town and establish it there for the use of the Baptist <hMiomination. The society had j)ower to dispose of its projierty in this manner, and an application for an injunction against sm h removal was denied. I->ggl('ston v Doolitth'. IVA Conn. )»tMJ.

Restraining Increase of Salary. The parent chnrcli was located at New Dorp and chai)els were established at Castleton and Oilfords. A resoluti«m was adopted in the absence of mendiers of the chapels increasing the salary of the pastor at each place. In an action by a member of the ]»arent church to restrain the corjxn-ation from carrying this resolution into effect, it was hebl that members of the chapels having been permitted to vote at the general meeting (►f the church for a long time, and no ])roperty rights being involved, a court of equity would not interfere to i)revent the consummation of the ]>urpo.se exjtressed in the resoluti(»n. l>avie V Heal, Si; A. D. (X. Y. ) .517, affirmed in 180 N. Y. 5-A5.

Sale of Property. Land was conveyed to trustees, with directions to b\iild therecm, at their di.scretion, a house of wor.shij) for the use of the Methodist Episcopal Church, South, with a provision that ministers of that denomination should be permitted to ])reach in the church, and that the church might be appropriated for such other purposes as would best further the cause of Clirist and the interest of

292 THE CIVIL LAW AND THE CHURCH

.said churcli in the community. Tlie building was erected accordingly, and used for thirty years, when it became unfit for further use. The society having determined to sell the building and lot, an injunction was sought restraining such sale on the ground that by abandoning the property it had reverted to the grantor. The court held this view erroneous, and authorized the sale of the propert3^ Hard v Wiley, 87 Va. 125.

Use of Building. Land was conveyed to the society for the purpose of erecting thereon a house of worship for use by the society according to the discipline of the denomina- tion. The basement was made for a prayer-room, but tlie trustees leased it to a teacher of a common day school and authorized him to change the internal arrangement of the basement for the convenience of the school. An injunction was granted on the application of members of the society restraining the trustees from making such use of the base- ment. Perry v McEwen, 22 Ind. 440.

JEWS

Bequest sustained, 293. Consolidation disapproved, 293. Consolidation, when maj' be set aside, 293. Dismissal of teacher, 293.

Bequest Sustained. In Bi-onsou v Strouse, 57 Coim. 147, the court .sustained a bequest for the benefit of some poor, deserving Jewish family residing in the city of New Haven. The trustees had power to determine what Jewish families were within the condition prescribed.

Consolidation Disapproved. In Chevra Bnai Israel Aushe Yanove und Motal v Chevra Biknr Cholim Aushe Rodof Sholem, 24 Misc. (N. Y.) 189, it was held that the plaintiff could not consolidate with the defendant without legislative authority, or the approval of the supreme court.

An attempted consolidation of the Congregation Beth Tephila Israel and the congregation Anshi Emith, the former to receive all the property of the latter, and also its members, was held ineffectual for the reason that it <lid not conform to the Religious Corporations Law of 1895, chap. 723, sec. 12, nor to the Membership Corporations Law of 1895, chap. 559 sec. 7. The contract of consolidation con- tained provisions beyond the powers of either congregation, and it was held that au}^ dissatisfied member miglit maintain an action to set aside the agreement. Davis v Cong. Beth Tephila Israel, 40 A. D. (N. Y.) 424.

Consolidation, When May Be Set Aside. An unauthorized consolidation of corporations may be set aside at the suit of either corporation. Chevra Medrash Auschei Makaver V Makower Chevra Aucchi Poland, (;G N. Y. Supp. o55.

Dismissal of Teacher. A jierson wlio had been employed by the society as its teacher, i»reacher, and hasson, after beginning his services, established a mercantile business in

293

294 THE CIVIL LAW AND THE CHUKCH

the same town. It was alleged that he transacted worldly business at the store on the Jewish Sabbath. The contract was from December 1, 1859, to August 1, 1860. Charges of improper conduct were made against the teacher, grow- ing out of the business established and conducted by him, aud he was dismissed by a vote of the congregation April 18, 1860. lu an action by him against the society to recover the agreed compensation up to August 1, 1860, the court said the congregation were justified in dismissing him ; he was there- fore not entitled to compensation after the termination of his service after his dismissal. Congregation of the Chil- dren of Israel v Peres, 2 Coldw. (Tenn.) 620.

LIBEL

Excommunication, 295.

i'rivileged conununicatioas, church disciphne, 2i)o.

Excommunication. l'l;iiiiiiM' hi(m«jlil :iii action njiainst Iho |»;isloi- :iii<l I w n n(licr iikmiiImms oT lh«* (Imi'ch session, jiMcy;- iii;; :i lihcluiis |tiil)li<-;i t ion liy lliciii (-(Hisisl in;; of ;i jiitlj^iiu'iil reiuU'ivd l(_v the Kcssiuii t'\roiiiiiniiiit:iliii;i the phiiiitill", rliafj;iii}^ him with iiuikiiiji falsi' and nialic ions statements eoneei-ninji the jtastor. The tiial of the phiiniill by the ses- sion was heitl withont notice to iiim. It was hehl that the eech*siasti«al trihnnal ha<l jnris<lieti<»n ; its action conld not he iwiewed hy civil conrts. The action (»f tiie session in declarin"; tiie e.xcommniiication. in niakin;,' the re«-or(l thereof, and its annonn<-e!iMMit hy liie pastor, inclinlinj; the transmission ol a 'oiiy of it to the jdaintitV, did not » (tii- stitnte a |»nldic;irntn ol ;i liltt-l. L.indis v ( 'ani|ili('ll, 7'.* Mo. 4:5:1.

Privileged Communications, Church Discipline. \\t>itls >|ioUen or written, in the it'i^ular conrse (»f «hnfcii disci|dine, to or of members of the clnircii have, as ainonj; the members theins«dves, very ]H'o|»erly iteen held to be privile;:[ed c(tm- miinicat ions, and not actionable nnless express malice be show II in the s|ieaker or publisher. l>iit the prtiteclion oT the rule should not be extended to a meinbcr of the church when on such (»ccasioii he iiiiplic;i tcs llic ciiaiacter of a stran;ier to the rules of the church, who is not amenable to its authority, and who has int (»ppori unity to r«'pel an opprobrious accusation before the tribunal which is to try it. An ac«nsation made by a nuMiiber of .1 (liiirch, in the regjtilar course of <hiircli discipline, ajjainst a person not a member, cannot, as t(» him, be considered as a pri\ileu('<l commniiicai ion. Coombs v l\<»se. s I'dackf. 1 Ind.i !.").">.

296 THE CIVIL LAW AND THE CHURCH

Words written or spoken in the regular course of church discipline, or before a tribunal of a religious society, to, or of members of the church or society, are, as among the mem- bers themselves, privileged communications, and are not actionable without express malice. Lucas v Case, 9 Bush. (Ky.) 297.

LUTHERANS

History, 297.

Organization, 298.

Alaska, property, effect of cession from Russia to United States, 298.

Associations, 299.

Close communion, 300.

Confession of sins, should it be i)ublic or private? 300.

Congregation, powers, 301.

Dissolving cormection with synod, effect, 301.

German language in service, 301.

Icelandic Church, 302.

Independent congregation, status, 303.

Minister, how employed, 303.

New York City, 304.

Russian toleration, 306.

Secession, 306.

Synod, 307.

History. For many centuries there have been two organ- ized associations of churches, commencing in Germany and extending throughout the United States, one known as the German Evangelicals, or as the Evangelical Church, and the other as the Evangelical Lutherans, and there exists the Evangelical Lutheran Synod of Wisconsin, distinct and sep- arate from the Wisconsin District of the German Evangel- ical Synod of North America, and in some respects in con- flict therewith.

The Luilieran Church, or synod, adopts certain writings in and shortly after the time of Martin Luther, as conclu- sive expression of the creed and inerrant interpretation of the Scriptures, and rejects certain other writings which are adopted by what was called the German Keformed Church as correct interpretation of the Scriptures. The Evangel- ical Church recognizes equally said symbolical books of the Lutherans and of the Reformed Church, but accords to

297

298 THE CIVIL LAW AND THE CHURCH

neillier conclusiveness as to the doctrines therein promul- gated, or as to the interpretation of the Scriptures, but approves them as the work of human minds subject to what may be deemed either by the individual or by the church authorities the true meaning of the Scriptures themselves. The Lutherans prescribe certain books as necessary to be used in Sunday schools, confessions of faith, and the like, while the Evangelicals approve and use other books and writings. The name "Lutheran" is a distinguishing char- acteristic of the churches adhering to the former creed, and, according to the allegations of the complaint, they yield almost inspirational authority to the writings of Dr, Luther, Marien v Evangelical Creed Congregation, Milwaukee, 132 Wis, G50.

Organization. Church government in regard to general bodies has three distinctions: First, episcopal; as in Sweden, Norway and Denmark. Second, territorial, which prevails wherever the civil government is Protestant and interferes with ecclesiastical affairs ; in this system there are two pre- cedents in the consistorium, or synod; the first is bounded by the civil power, from the legal profession, with rank equal to a bishop ; the second is a clergyman. Third, the third system is the collegiate, and prevails in countries not under Protestant rule, and where the civil government does not interfere with ecclesiastical matters; it prevails here in the United States. Harmon v Dreher, 1 Speer's Eq. ( S, C) 87.

Alaska, Property, Effect of Cession from Russia to United States. Tlie society was not incorporated. The society was in existence long before the transfer of Alaska from Russia to the United States in 1867, and the society, before such transfer, became tlie owner in fee of land in Sitka by a grant from Russia. Upon the transfer of the territory from Russia to the United States the commissioners of the two governments appointed to effect the transfer issued to the said congregation a certificate of title in fee simple to said lot. The church building on the lot fell into decay and was

LUTHERANS 200

removed. Afterward the defendants entered on the lot and began the erection of a building adversely to the title claim by the congregation, and the society, through its trustees, sought a perpetual injunction against the erecting of this building.

It was held that the congregation, even if not incorpo- rated, could maintain an action through its trustees or per- sons appointed for such purpose. The church property must be held to be "private individual property" falling within the exceptions of the treaty of 1867, by which Russia trans- ferred Alaska to the United States, and this view is sus- tained by the protocol, inventories, and map. The title to the Lutheran Church lot never vested in the United States, but the congregation held the absolute and indefeasible title in fee simple of said lot of ground as granted to it by Russia, No title thereto could be obtained exce])t through said congregation, and a failure to use and occui)y the lot for church purposes, did not divest the congregation of its title. It was held that the lot was not open to possession and occupancy as public lands of the United States. "Our government, therefore, is bound ui»on its national honor to maintain in good faith these stipulations of the treaty by sustaining the fee simple titles set forth in the protocol, including that of the congregation of the Lutheran Churcli, and by protecting the holders of such titles in the enjoy- ment of the property so granted." The court sustained an application of the congregation for an injunction restrain- ing the defendants froni erecting any structures on the lot, or exercising any possessory rights thereto. Oallsen v Hope, 75 Fed. Rep. (U. S.) 758.

Associations. German Evangelical Lutheran Churches are congregational in their polity. There are several different national associations or synods of such churches, but their powers over any particular local church are advisory, and similar to those of associations and conferences of congre- gational churches. German Evangelical Lvitheran churches of the General Council, and of the Missouri Synod, alike.

300 THE CIVIL LAW AND THE CHURCH

hold to the canonical books of the Old and New Testament as the Word of God, the unaltered Augsburg Confession as the standard of faith and theology, and the Symbolical Books, so called, including the Apology of the Augsburg Confession, the Smalcald Articles, the Catechisms of Luther, and the Formula of Concord, as true and orthodox exposi- tions of that faith. It is a well-settled rule of the Lutheran denomination that a pastor cannot be dismissed except by his own consent, or for persistent unchristian life, or upon the ground that he willingly teaches false doctrine. Duessel V Proch, 78 Conn. 343.

Close Communion. The congregations in the Iowa Synod practice what is called "close communion," that is, these congregations do not permit members of other Christian churches to commune with them, while the congregations subject to the general synod admit all Christians to their communion table. Wehmer v Fokenga, 57 Neb. 510.

Confession of Sins, Should It Be Public or Private? This society was originally connected with the Butfalo Synod, but in 1890 a majority of the congregation voted to with- draw from that synod and join the Ohio synod, and this change was made; thereupon several members withdrew from the society. Each party admitted that confession of sins is necessary as a condition precedent to the reception of tlie sacrament of the Lord's Supper. The matter in dis- pute was the manner in which such confession should be made. The majority held that private confession was not compulsory, but did not prohibit its use by those of the con- gregation who preferred that method. This was in accord with the teachings of the Synod of Ohio. The minority ad- hered to the rule that private confession was necessary, in accord with the teachings of the Synod of Butfalo.

The minority then withdrew from the society, and brought this action to enjoin the majority from using the church and schoolhouse, and to exclude them from any participation in the affairs of the society. The court dismissed the action holding that the question in disi)ute was ecclesiastical and

LUTHERANS 301

not within the jurisdiction of Civil Tribunals. Schradi v Dornfeld, 52 Minn. 465.

Congregation, Powers. According to the usages of Lutheran churches or congregations, each congregation is or may be sui)renie. There are synods and conferences, but a congregation may or may not unite therewith, and yet be a true Lutheran congregation to all intents and purposes. Nor is a congregation bound to unite with a synod in the same State; so that although there may be a synod in one State, a Lutheran congregation may join a synod in another State. It is regarded as doubtful whether any formal action by the congregation is required in the first instance in order to join any synod. Notwithstanding a congregation may have joined a synod, it remains supreme so far as the right to manage and control its property is concerned. The synod has the power of visitation and expulsion if the congrega- tion does not believe and practice the faith and doctrine of the synod. Dressen, et al v Brameier, et al 56 la. 756.

Dissolving Connection with Synod, Effect. The connection of this society with the Evangelical l^ntheran Synod of Ohio was voluntary, and a dissolution of the connection was no violation of the condition u])on which the church pro])erty was holden by the congregation. Hcckman v Mees, 16 Ohio 583; see also Gudmundson v Thingvalla Lutheran Church, 150 N.W. (N. D.) 750.

German Language in Service. The society was incorporated in 1866, and its charter was amended in 1873. According to the articles of incorporation, the purpose of the organization was to provide for holding public religious worship in a Christian-like manner, in accordance with the pure Lutheran doctrine, the preaching of the Word of God, and the proper administration of the Holy Sacraments, and in conformity with the fundamental doctrines of the unal- tered Augsburg Confession, and assure to themselves and to their children the Lutheran catechism in the German lan- guage. The worship was always to be conducted in con- formity with the established custom of the Evangelical

302 THE CIVIL LAW AND THE CHURCH

Lutheran Church, and the worship and service were to be always in the German language, so long as one member shall desire it.

It was provided that ministers must be members in good faith in an Evangelical Lutheran synod, and who, besides the Word of God, hold as a rule of their faith, the unaltered Augsburg Confession, and the Symbolical Books of the year 1580. The society received at different times conveyances of land for general church purposes. It was held that under the Maryland statute only the trustees selected by the society became the actual corporation, and that the corpora- tion had no power or authority to interfere with forms of worship, articles of faith, or any other matter relating strictly to spiritual concerns.

Referring to the allegation that the use of the German language in worship had been discontinued, the court said that there was no evidence as to what the denomination had required concerning the language to be used in worship. Tlie court had no power to interfere as to spiritual matters. Such matters were exclusively within the jurisdiction of the denomination. There was no allegation that the general church had made any decision or rule relating to the use of the German language, or the effect of discontinuing it, or the effect of noncompliance with the regulations concerning the Augsburg Confession and the Symbolical Books. The civil court, therefore, had no Jurisdiction, It was held that the court could not grant the relief sought, namely, that the trustees be restrained from holding services such as are objected to, and the ministers who have, and are yet officiating from conducting such services. Shaeffer v Klee, 100 Md. 204.

Icelandic Church. See Gudmundson v Thingvalla Lutheran Church, 150 N. W. (N. D.) 750, for a statement of the his- torical connection between the parent church in Iceland and churches in North Dakota, derived from the mother church, with a discussion of the question of the inspiration of Uie Bible as applied iu n local cliurch and by tlio synod

LUTHERANS MYA

of which the local society was a member, iiicliidiiig evidence of theological experts as to the belief of Lutherans and vari- ous forms of inspiration.

Independent Congregation, Status. In a controversy be- tween two factions of the society concerning the dismissal of the pastor and the employment of another, and the right to such property, it was held that there was no church tri- bunal with jurisdiction to determine the questions in contro- versy, or any matters of faith or church organization, and that this local society or congregation had never affiliated itself with any of the national associations or synods. Land was conveyed to trustees described as trustees of the local society. Thereafter, by means of church contributions and money derived from other sources, a church edifice was erected on the lot. In 1902 the church adopted an inde- pendent constitution. This constitution vested in the whole congregation the right to call a pastor. The call was not to be for a definite period, nor was it to be terminated at the will of the congregation so long as the preacher should teach as prescribed in the constitution. The article regarding the call of a pastor was abrogated in 1904. After the commence- ment of this action a meeting of the society Avas held and several votes previously taken formally ratified. The local society was congregational in polity, and acted by a major- ity relative to the call of a i)astor, and it was not bound to affiliate with the Missouri synod or any other. The consti- tution did not require the unanimous action of the con- gregation. A majority was sufficient to express its purpose. The pastor who had been excluded from the church was held not entitled to the relief sought by way of an injunction. He was represented by a minority only. The majority was held entitled to hold the propertj"^ and administer the trust. Duessel v Proch, 78 Conn. 343.

Minister, How Employed. By the law which governs the Lutheran church it is allowable for a congregation to call a pastor who is not a member of any synod, but A\'ho expects to be admitted to membership therein. His employment by

304 THE CIVIL LAW AND THE CHURCH

the congregation mnst, however, be first approved by the general president of the synod, and from that time until final action taken by the synod he is regarded as a provisory member, or one taken on trial. It is not permissible for the congregation to employ or retain a pastor who is not, and cannot become a member of the synod. Helbig v Rosen- berg, 8G la. 159.

New York City. "There were a few Lutherans anvong the first emigrants from Holland to this province, and there is no doubt but that they were driven from Holland by the per- secution of the Arminians, and those holding kindred tenets, which had been denounced by the Synod of Dort in 1G18-10. They were relieved from persecution here, but were not permitted to worship together in public until after the province became a British colony. At that era (16G4) they had became so numerous that they sent to Germany for a pastor, and one arrived here in 1069. About the year 1671 they erected a log church at the southwest corner of Broad- way and Rector Street (New York) which was known as Trinity Church. The ground on which it stood was granted to them by the government in 1674." A substantial stone edifice was afterward, between 1725 and 1740, erected on the same lot, contributions therefor having been made by citizens of New York, Lutherans and others, and by Luther- ans in various places in Europe. During the earlier years of this church its service was in the Low Dutcli or Holland hinguage. There was little migration from Holland after the end of tlie seventeenth century, and at the time of the erection of the stone church the number of Germans had increased to such an extent that the service was in tlie Crernum language part of the time.

About 1750 a large number of Germans detached them- selves from the Trinity Church and established a new church known as Christ Church, at the corner of Frankfort and William Streets, in which the service was conducted in the German language exclusively until the Revolution. Trin- itj Church was bnriied during tlie Revolution, and at tlie

LUTHERANS 305

close of the war both churches were destitute of a pastor. In 1784 the two churches were united uuder the name of the United German Lutheran Churches of New York. A part of the time the service had been in English in Christ Church, and also in the reunited cluircli. I'rior to the war of 1812, most of the congregation, who desired to have English preaching, left the old church, and establish eed a new one, called Zion Church, where the lOnglish service alone was per- formed; and on this event the English service in the old church was discontinued. In 1805 the site of Trinity church was sold to Episcopalians. Zion Church was destroyed by fire in 1814, and the congregation was broken up.

About 1821 another new church movement was initiated and a church known as St. Matthew's Church was estab- lished, composed in part of members of the original and the United Churches. In 182G St. Matthew's Church and lot was sold for the payment of its debts. The sale was to a member of St. Matthew's Church, who sold the property to the corporation of the United Churches. Under this deed the church was to be used as an English Lutheran Church. Subsequently a new church known as St. James was organ- ized, constituted of the congregation of St. Matthew's Church, which latter church ceased to exist. Subsequently the congregation of the United Churches removed from Christ Church to St. Matthew's Church in Walker Street. The service was part of the time in English, and part of the time in German. But the English service was discontinued in 1839.

There was no trust contained in any conveyance or agree- ment that any part of the service in either church should be in the English language. By the agreement to unite the two churches, Trinity and Christ Church, the property of both societies was vested in the corporation called the United Churches, and the terms of the agreement indicate the union of two German societies without any provision as to service in English. A new trust could not be impressed upon Trinity Church adverse to the trust established by its

306 thp: civil law and the church

founders. It was held that persons claiming to be the corporators under the union agreement, and to be represen- tatives of the original Trinity Church, could not maintain an action against the United Corporation to compel tliat body to found and erect a new church in place of Trinity Church which had been destroyed. Cammeyer v United German Lutheran Churches, New York, 2 Sandf. ('li. (N. Y.) 208.

Russian Toleration. Notwithstanding the existence of an estiiblislied church — the Greco-Russian — in Russia, the set- tled policy of that government for a long period of years has been to foster and protect among its people religious associations and organizations of every known shade of be- lief or doctrine; and within the limits of the empire, from the Arctic Ocean to the Chinese border and from the North Pacific to the Baltic Sea, may be found congregations whose members are believers of every known religious doctrine and form of worship, from the faith of Islam and Mohammed to the Catholic creeds and high-sounding liturgies of the Greek and Roman churches; all enjoying the protection, if not the patronage, of the crown. Among these the member- ship of the Lutheran denomination ranks next in numbers to that of the established church, and the population of the Baltic provinces and Finland are almost entirely Lutheran. The reasons for this policy are not far to seek, as it is one which must inevitably bind to the autocrat adherents of all the different denominations thus fostered and protected by the sovereign head of the empire. Following its long- established policy on religious matters, Russia desired to protect the congregation of the Lutheran Church, with others to whom title to lands in Alaska had been given, in the enjoyment of the property so granted, and the United States acceded to that desire. Callsen et al v Hope et al, 7<; Fed. (U. S.) 758.

Secession. It was held that the society was entitled to maintain ejectment against a portion of the congregation who seceded, formed a separate organization, and took

LUTHERANS :;()T

l>o}S8ession of the church jn'opei'ty. Fernstler v Seibert, 114 J»a. lOG.

Synod. A general sjuod of Lutheran Churches in the United States was organized in 1820. Kniskern v Lutheran Ch., 1 Sandf. Ch. (N. Y.) 439. The synod does not assume any authority to define doctrine for the congregation. But the meetings of the synod are only advisory so far as the congregations are concerned. "Questions of doctrine and conscience cannot be determined by a plurality of votes, but only according to the Word of God, and the symbolical books of our church." The synod, and the congregations sending delegates to it, are merely religious bodies in the organization, control, and government of which, as such. the civil tribunals have nothing to do. It is for the synod to determine when and for what cause it will sever its con- nection with any congregation ; and for the congregation, considered merely as a religious association, to determine when it will expel a member. Trustees, East Norway Lake Norwegian Evangelical Lutheran Church and others v Halvorson, 42 Minn. 503.

MANDAMUS

Cemetery, burial, 308.

Expulsion of member, 308.

Joint use of property, 308.

Member, restoration, 309.

Minister, reinstatement, 310.

Special election, 311.

Trustees, title, 312.

Vestry, 312.

Vestry, duty to attend meeting, 312.

Cemetery, Burial. In People v St. Patrick's Cathedral, 21 Hull (N. Y.) 184, a Freemason was held not eligible to bnrial in a Roman Catholic cemetery under its rules, and a writ of mandamus to comjiel the cemetery officers to permit such burial was refused.

Expulsion of Member. In Saltman v Nesson, 201 Mass. 534, it was held that the remedy to test the validity and regularity of the expulsion of a member of a religious corpor- ation is by mandamus, and not by a suit in equity. See also Members and Injunction.

Joint Use of Property. For the purpose of erecting a new church edifice on land owned by this society subscriptions were made and paid by persons some of whom were mem- bers of other denominations, and some not adherents of any church. The subscriptions were made on condition tliat when the building was not used by the Methodist Protestant Church it should be free for the use of other religions de- nominations in the vicinity. The Methodist Protestant Church having refused to permit the Christian Church to use the building, the latter society applied for a mandamus to compel tlie Methodist Protestant society to open the house for the use of the other society. It was held that a writ of mandate was not the jiroper remedy, but that an

308

MANDAMUS 309

action in equity should have been brought on the contract contained in the subscription. State ex rel I'oyser v Trus- tees of Salem Church, 114 Ind. 389.

Member, Restoration. A member of the church was ex- cluded, as he claimed, without lawful authority. The act of excommunication was by the consistory which, it was alleged, did not possess the power of excommunication. The excluded member applied for a writ of mandamus to compel the church officers to reinstate him. A writ of mandamus was denied, it being held that even if the at- tempted exclusion was invalid, the member's remedy was by appeal to the proper church tribunal. Church v Seibert, 3 Pa. St. 282.

In State ex rel Soares v Hebrew Cong., 31 La. Ann. 205, it was held that mandamus would not lie to compel the restoration to membership of a person expelled from a reli- gious society, it appearing that such expulsion was by the decree of the legally constituted church judicatory, on ac- count of an alleged violation of some one or more of the laws of the society. The civil courts will not revise the ordinary acts of church discipline or the administration of church government.

The relator, who had been, as he claimed, irregularly expelled from the society and congregation, applied for a writ of mandamus to compel his restoration. The expulsion was admitted, but it appeared that the society had no prop- erty ; that the relator had acted in hostility to the interests of the society, had given grounds for regular removal and that his restoration would destroy the society. It also appeared that if restored, he might be immediately again expelled. The court declined to exercise its discretion in favor of the relator, and therefore refused the writ. People ex rel Meister v Anshei Chesed Hebrew Congregation, Bay City, 37 Mich. 542.

In People ex rel Dilcher v German United Evan. Church, 53 N. Y. 103, a writ of mandamus was refused to the plain- tiffs who alleged that they were wrongfully excluded from

mo THE CIVIL LAW AND THE CHURCH

office and membership in the church. The courts said it could not be readily determined from the papers whether the exclusion was by the corporation or by the church as a religious society. If it were by the corporation, such exclu- sion was a nullity ; but if it were by the society, its action was not subject to review by the civil courts.

A person who had been expelled from the society applied for a writ of mandamus to compel her reinstatement and restoration, but the writ was denied on the ground that the expulsion was presumably by the society and not by the corporation ; that it was an ecclesiastical matter, and that the person was not entitled to the writ unless some civil or property right was affected by the expulsion. Sale v First Regular Baptist Church, 62 Iowa 2G.

A writ of mandamus was held to be a proper remedy to restore a person to membership in a religious society from which she had been unlawfuU}^ deposed. All questions relat- ing to the status of the applicant could be determined on the hearing under the writ. Hughes v North Clinton Baptist Church, East Orange, 67 Atl. 66 (Sup. Ct. N. J.).

A writ will not issue to compel the restoration of a church member after expulsion. Hundley v Collins, 131 Ala. 234.

Civil courts will not consider questions relating to the right of membership in an incorporated religious associa- tion, where no civil or property right is involved. Man- damus will not lie to compel the association to restore the applicant to membership. State ex rel v Cummins, 171 Ind. 112.

This writ cannot be granted to restore the persons expelled from membership in a religious society, and the court will not inquire whether such expulsion was regular and justified by the facts. The court will not revise the action of an ecclesiastical tribunal in such cases. State ex rel Soares v Hebrew Cong. 31 La. Ann. 205.

Minister, Reinstatement. If ecclesiastical tribunals have been provided for the trial of ecclesiastical questions, civil

MANDAMUS 31 1

courts, in the exercise of their discretion, will not grant a writ of inandanms to restore a rejected minister to his oflSce and functions, before a final decision has been had by the church authorities. State ex rel McNeill v Bibb St. Ch., 84 Ala. 23.

Where the minister of an endowed dissenting meeting- house had been expelled by a majority of the congregation the court refused a mandamus to restore him applied for to enable him to justify his conduct, it appearing that he liad not complied with all the requisites necessary to give him a prima facie title. Rex v Jotham, 3 T. Rep. (Eng.) 577.

The power of the civil courts to restore by mandamus a party who has been wrongfully removed from an ecclesias- tical or spiritual office, is well established when the tem- poral rights, stipends, or emoluments are connected with or annexed to such office, which belong to the incumbent. But the courts are powerless to interfere where there are no fixed emoluments, stipends, or temporal rights connected with the office, where it is purely ecclesiastical. State ex rel McNeill V Bibb Street Church, 8-t Ala. 23.

A minister who had been excluded by the society from the ministerial office, functions, and privileges sought a writ of mandamus to compel his restoration, but it was denied, it not appearing that there were any fees or emoluments attached to the office. Union Church v Sanders, 1 Houston (Del.) 100.

Mandamus will not lie to compel the reinstatement of a minister who has been suspended from his office on the ground that he had no proper notice of trial, where it appears that he had actual notice of the time and place of trial; and was present with his counsel and particii^ated therein. Dempsey v North Michigan Conference, Wesleyan Methodist Connection of America, 98 Mich. 444.

Special Election. At an election held by a Protestant Epis- copal society the rector presiding declared ten persons elected as churchwardens and vestrymen. Subsequently seven of these persons were ousted from office, it appearing

312 THE CIVIL LAW AND THE CHUKCH

that the rector had received enough illegal votes to change the result. A mandamus was granted directing the rector to join in a special election for the purpose of filling the vacancy caused by the ouster; and a referee was appointed to supervise the special election. People ex rel Fleming v Hart, 36 St. Rep. (K Y.) 874, 21 N. Y. Supp. 673.

Trustees, Title. It was held that mandamus was the proper remedy under the Maryland statute to determine the title to the oflSce of trustee of a church. Clayton v Carey, 4 Md. 26.

Vestry. Mandamus is not a proper remedy to restore a rightful vestry to the possession of church property wrong- fully withheld. Smith v Erb, 4 Gill. (Md.) 437.

Vestry, Duty to Attend Meeting. In People ex rel Kenney V Winans, 29 St. Rep. (N. Y.) 651, a writ of mandamus was granted on the application of the rector to compel certain vestrymen to attend a meeting of the vestry.

MASSES

Defined, 313.

Described, 313.

Not a superstitious use, 313.

See Also Prayers for the Dead.

Defined. The mass, uccordiug to Webster's International Dictionary, is "the sacrifice in the sacrament of the euchar- ist, or the consecration and oblation of the host." It is a public service, a public act of worshii), by which, according to the tenets of the Roman Catholic Church, the priest who celebrates it "helps the living and obtains rest for the dead." Coleman v O'Leary, lU Ky. 388.

Described. The saying of mass is a ceremonial celebrated by the priest in open church, where all who choose may be present and participate therein. It is a solemn and impres- sive ritual, from which many draw^ spiritual solace, guid- ance, and instruction. It is religious in its form and in its teaching, and clearly comes witbiu that class of trusts or uses denominated in law as charitable. And, while the effect of these services upon the members of the church is impressive and beneficial, the money expended for the cele- brations thereof is of benefit to the clergy, and is upheld and maintained for this reason, as oue of the cheri.shed objects of religious uses. Webster v Sughrow, 69 N. H. 380.

Not a Superstitious Use. Saying masses for the souls of the dead is a ceremony universally observed in the Koman Catholic Church, and a bequest for that purpose cannot be said to be for superstitious uses, it being one of the articles of the Roman Catholic faith which has been adopted by millions of people through the civilized world as a part of their religious belief. Hagenmeyer v Hanselman, 2 Dem. (X. Y.) 87.

313

MEETINGS

By-laws, 314.

Chairman, 314.

Majority, 314.

Notice, 315.

Quorum, 315.

Silence on taking vote, effect, 316.

By-Laws. A by-law made by oue meeting of the society to govern the proceedings of future meetings is inoperative beyond the pleasure of the society acting by a majority vote at any regular meeting. The power of the society derived from its charter and the laws under which it was organ- ized, to enact by-laws is continuous, residing in all regular meetings of the society so long as it exists. Any meeting could by a majority vote modify or repeal the laws of a previous meeting, and no meeting could bind a subsequent one by irrepealable acts or rules of procedure. The power to enact is a power to repeal ; and a by-law requiring a two- thirds vote of members present to alter or amend the laws of the society, may itself be altered, amended, or repealed by the same power which enacted it. A majority may act in such a case. Kichardson v Union Congregational Society, 58 N. H. 187.

Chairman. The election of a moderator of a parish meet- ing will be valid, though the meeting was called to order, and the votes were received and declared, by a private par- ishioner who assumed that authority to himself. Jones v Gary, G Me. 448.

Majority. At a church meeting, either regular or special, called with proper notice, the vote of the majority is bind- ing upon the congregation. There is a distinction between a corporate act to be done by a definite number of persons, and one to be performed by an indefinite number; in the

314

MEETINGS 315

first case no act can be done unless a niajoritj- of the whole body are present; in the second, a majority of those who appear may act. Craig v First Presbyterian Church, 88 Pa. St. 42.

A majority of an unincorporated religious society may direct and control the disposition of real estate belonging to it, notice of the meeting at which such action is taken having been given to the members of the society. Where it appeared that the business meetings of the society were invariabl}^ liehl in the evening and were called b}' announce- ment to the diildren at the school connected with the society, and by the ringing of a bell, and it was shown that the usual notice was given of the meeting in question ; that in addition thereto, a written notification was carried round to most of the members, and that none of those resisting the action taken claimed that they did not know that the meeting was being held, it Avas held that the notice was sufficient. Hub- bard v German Catholic Congregation, 34 la. 31.

Notice. Notice of a meeting of the members of a church to vote upon conveying the church property is sufficient if it is given in accordance with the church rules. Jones v Sacramento Avenue Methodist Episcopal Church, 198 111. G26.

The society had not adopted any by-law or vote by which meetings were to be called. No assessors were appointed as authorized b}^ the statute, and the directors did not appoint any meetings. In the absence of assessors, or committee authorized to call meetings of the society, the statute author- ized a justice of the peace to call a meeting. A meeting called by the clerk on the application of four members of the society was held to be irregular under the statute, and a vote at a subsequent meeting, also irregularly called, confirming the action of the previous meeting, was void. Wiggin V First Freewill Baptist Church, Lowell, 8 Mete. (Mass.) 301.

Quorum. "The rule of tlie common law seems to be that where a body is composed of an indefinite number of ])er-

316 THE CIVIL LAW AND THE CHURCH

sons a quoi'uni, for tlie purposes of elections and voting upon other questions, which require the sanction of the members, consists of those who assemble at any meeting regularly called and warned, although such number may be a minority of the whole, in which case a majority of those who assemble may elect, nnless there is a different rule established by statute or valid by-law." 34 Cyc. 1127, note. Quoted in Barton v Fitzpatrick, 65 S. (Ala.) 390.

Silence on Taking Vote, Effect. Where a society is com- posed of an indefinite number of persons, a majority of those who appear at a regular meeting constitute a body to trans- act business. The presumption is that all the members pres- ent who observe silence when a question is put concur with the majority of those who actually vote, that is, if the question be put audibly and explicitly. Worrell v First Presby. Ch. 23 N. J. Eq. 9G, citing Angell and Ames, sees. 497, 499.

MEMBERS

Admission, effect of by-laws, 317.

Baptist, powers of congregation, 318.

Dismissal, 318.

Dues, effect of nonpayment, 318.

Equality, 318.

Excommunication, effect, 318.

Expulsion, 319.

Expulsion, damages, 321.

Expulsion, evidence required, 321.

Expulsion, notice, 322.

Expulsion, rules, notice, 323.

General duties, 323.

How constituted, 323.

Judicial control, 324.

Law governing, 324.

Letters of dismission, effect of, 324.

Liability for debts, 324.

Powers, 325.

Qualifications, how determined, 325.

Relation to society, 326.

Rights, 326.

Stated attendant, effect of nonattendance, 327.

Status, how determined, 327.

Town society, 327.

Transfer by Legislature, 328.

Withdrawal, 328.

Withdrawal, effect, 328.

Admission, Effect of By-Laws. The charter of the society regulated the admission of members. This provision was subsequently repealed, and the society was authorized to make by-laws relative to the admission of members. By-laws were adopted applicable alike to existing as Avell as future members. It was held that a person who was a member of the society under the provisions of their charter ceased to

317

'SIS THE CIVIL LAAV AND THE CHURCH

be a member by failing to comply with the conditions of the by-laws. Taylor v Edson, 4 Cush. (Mass.) 522.

A by-law provided that new members could be added only by a vote of the congregation, and another b^'-law required a notice of a special meeting to state the object of it. l*er- sons elected at a special meeting without an announcement of such intended action contained in the notice of the meet- ing were not regular members and had not been duly elected. Gray v Christian Society, 137 Mass. 329.

Baptist, Powers of Congregation. The exclusive power to admit and exclude members lies in the local congregations, and associations have no i^ower to reverse or review the action of the local churches as to its members, nor to rein- state a member who has been excluded by any local church. Iglehart v Rowe, 20 Ivy. Law Rep. 821.

Dismissal. A minister assumed to dismiss members of the church without a hearing or trial. It was held that the action of the minister was nugatory. Burke v Roper, 79 Ala. 138.

Lues, Effect of Nonpayment. Where the by-laws of a mem- bership corporation provided that the nonpayment of dues shall render the delinquent member liable to expulsion, he retains his membership until corporate action is taken. Davis V Cong. Beth Tephila Israel, 40 A. D. (N. Y.) 424.

Equality. Each member of a church organization, or of any other voluntary association, is the equal of every other member, and has the absolute right, which the courts will protect, to have the property controlled and administered according to its organic plan, and to participate in its alfairs in harmony therewith. Clark v Brown, 108 B. W. 421 (Texas).

Excommunication, Effect. Civil courts cannot decide who ought to be members of the church, nor whether the excom- municated have been justlj^ or unjustly, regularly or irregu- larly cut off from the body of the church. We must take the fact of ex]mlsion as conclusive proof that the persons ex- pelled are not now members of the re])udiating church; for,

MEMBERS 319

whether right or wrong, the act of excommunication must, as to the fact of membership, be law to the court. Shannon V Frost, 42 Ky. 253.

Excommunicated members, whose names have been, by the valid action of the church, expunged from the roll of mem- bers, cannot stand for and represent members. They are not of the same class. Nance v Bushby, 91 Tenn. .303. In this case it was alleged that members were excommunicated without notice or any opportunity to be heard. The court asserted the rule tliat "no man's civil or property rights or i:)rivileges shall be atfected or adjudicated without an oppor- tunity to be fully and fairly heard."

Expulsion. A member cannot be expelled by the consistory without the consent of the congregation. The power of the consistory is limited to the exclusion of a member from the communion of the Lord's Supper, and the power of excom- munication is vested in the congregation. Church v Seibert, 3 Pa. St. 282.

Several persons about 1874 organized this society, and made preparations to build a church edifice. The plaintiH", one of the incorporators, had general charge of the erection of the building, and in addition to his original subscription, advanced about |1,400 to complete the building, also giving his time and services to the enterprise. For many years thereafter he was one of the most influential and devoted members of the society. ''Without previous notice, with no hint of an}' charges to be that day made against liim, he was on Sunday, April 3, 1892, hastily, unjustly, and ruthlessly excommunicated, under the leadership of his pastor, by a pitiful vote of nine members out of a total of about fifty, and this was done in pursuance of a preconcerted, secret cau- cus agreement of the pastor and a few members, entered into the night previous thereto." The court said that every person uniting with a Baptist church impliedly or expressly covenants obedience to its laws, and by that covenant this appellant is bound. The court characterized the expulsion as a petty, unfair, and unjust exhibition of religious tyranny.

320 THE CIVIL LAW AND THE CHURCH

The plaintiff, after fifteen years from the erection of the church, and after his expulsion, brouglit an action to estab- lish a claim against the society for the amount advanced by him in the erection of the building. The court held, among other things, that his right of action was barred by the statute of limitations. He was therefore not entitled to recover the amount due him. Dees v Moss Point Baptist Church, 17 So. Rep. (Miss.) 1.

The trustees expelled a member of the church without notice to him. It was held that no property rights were involved in the expulsion, and therefore the civil courts could not interfere. An injunction was refused. Pinke v Born- hold, 8 Out. L. Re. 575.

A Roman Catholic was married by a Protestant minister. He was thereupon ipso facto excommunicated, and ceased to be a Catholic. Barry v Order of Catholic Knights, Wis. 119 Wis. 362.

If an incorporated religious society at a regular meeting called for the purpose of revising the membership of the society votes under and in accordance with an article of its Constitution, that certain persons whose names are crossed off from the list of members have worked against the inter- ests of the society, that they are for that reason expelled, and if the persons thus dealt with had proper notice and opportunity to be heard, the action of the society is final and cannot be revised by showing in another tribunal that these members had not in fact worked against the interests of the society. Canadian Religious Association v Parmenter, 180 Mass. 415.

The law of New York does not allow a governing body arbitrarily to expel members of an incorporated church where property rights are involved. Holcombe v Leavitt, 124 N. Y. S. 980.

A person was expelled from a church because he voted the Democratic ticket. In State v Rogers, 128 N. C. 570, it was held that such expulsion was not an offense under the statute prohibiting the oppression of any qualified voter because of

MEMBERS 321

tlie vote such voter may or may not have cast iu any election. While he may have felt mortified or humiliated iu being excluded from the fellowship of his associates in the exercise of the rites of that body of Christian believers, holding the same creed and acknowledging the same ecclesiastical authority, and to that extent injured and oppressed, yet he suffered no loss of property or gain ; nor was he in any way restrained of his liberty or otherwise controlled in the exer- cise of his personal conduct. See also Injunction and Man- damus.

Expulsion, Damages. The plaintiff brought an action against the trustees of the cliurch for damages resulting from an alleged unlawful expulsion from the societj'. By the act of organizing under the statute the church becomes a civil corporation. Usually, there is a religious society con- nected with the church. The church has its members who are supposed to hold certain beliefs and subscribe some cove- nant with each other, if such is the usage of the denomina- tion to which the church is attached. The church is not in- corporated, and has nothing whatever to do with the tempo- ralities. It does not control the property or the trusees ; it can receive anybody into the society, and can expel anybody from it. On the other hand, the corporation has nothing to do with the church except as it provides for the church wants. It cannot alter the church faith or covenant, it can- not receive members, it cannot expel members, it cannot prevent the church receiving or expelling whomsoever that body shall see fit to receive or expel. It was held that the action could not be maintained. The corporation was sued for a tort, which it neither committed, nor had the power to prevent. Whatever was done to the injury of the plaintiff was done by the religious society over which, in this respect, the corporation had no control. Harbison v First Presby- terian Society, 46 Conn. 529. See also Hardin v Baptist Church, 51 Mich. 137.

Expulsion, Evidence Required. While the civil courts will studiously give full effect to the judgment of an ecclesiastical

322 THE CIVIL LAW AND THE CHURCH

court when matters ecclesiastical only are involved, when civil rights as to property are involved the civil courts will insist that an accusation be made, that notice be given, and an opportunity to produce witnesses and defend be afforded, before they will give effect to an expulsion or sus- pension of the kind here attempted. West Koshkonong Cong. V Otteson, 80 Wis. 62, citing Hoffman's Ecclesiastical Law, 276, 277. In the above case one faction assumed to declare another faction suspended or expelled, without notice, without hearing, and without evidence. Such action was held to have no effect on the rights of the members included in the resolution of expulsion.

A by-law of a religious societ}^ provided that if a per- son should fail regularly to attend public worship for one year, or during the same period should fail to contribute regularly for the support of the church, his name might be dropped from the list of members. It was held that his name could not be dropped, except by a vote of the congregation. Gray v Christian Society, 137 Mass. 329.

Expulsion, Notice. For a note on the right to expel with- out notice a member of a benefit or benevolent society see Ryan v Cudahy, 157 111. 108.

The society received a conveyance of land on which it erected a valuable church. A controversy arose between two factions in the church, involving the title and jiossession of the church property. The complainants claimed to be the only adherents of the original society, and that the defend- ants were seceders therefrom. Various acts were attributed to defendants, showing an abandonment of the faith and order of the original Primitive Baptist Society; that they had assumed control of the church property and the right to exercise spiritual authority over all members of the society. They had also assumed and exercised the right to expel certain members, including the complainants without notice or hearing. It was held that the church had the power to determine for itself whether notice or an oppor- tunity to be heard should be given to the expelled members.

MEMBERS 323

"They have as a judicature adjudged that they had jurisdic- tion and that the usage and law of the church did not de- mand other trial or notice than such as attended the public action of the church. The law of the church provides for no appeal to a higher tribunal." The complainants, having been regularly excommunicated, had no standing in the court to assert any title to the property conveyed to the society. Nance v Bushby, 91 Teun. 303.

Expulsion, Rules, Notice. A church organization may make rules by which the admission and expulsion of its members are to be regulated, and the members must conform to these rules. If, however, it has no rules on the subject, those of the common law prevail, and before a member can be ex- pelled notice must be given him to answer the charge made against him, and an opportunity offered to make his de- fense, and an order of expulsion without such notice and opportunity is void. Jones v State, 28 Neb. 495.

General Duties. Every person entering into the church impliedly at least, if not expressly, covenants to conform to the rules of the church, and to submit to its authority and discipline. Lucas v Case, 9 Bush (Ky.), 297. See also Mack v Kime, 129 Ga. 17.

A religious society usually adopts a constitution, by-laws, and form of government. A member, when he enters the organization, voluntarily assumes the duty of obeying the laws of the association. As to all matters purely ecclesias- tical, he is bound by the decisions of the tribunal fixed by the organization to which he belongs, as an arbiter to determine the disputed questions relating to matters pecu- liarly within the province of the organization. Mack v Kime, 129 Ga. 1.

How Constituted. To constitute a member of a church at least two things are essential, namely, the profession of its faith, and a submission to its government. Brooke v Shack- lett (Carter v Wolfe), 13 Graft. (Va.) 300.

To constitute one a member of a church, or an individual society a member of a general synodical organization, at

324 THE CIVIL LAW AND THE CHURCH

least two thiugs are essential — a i3rofession of the accepted faith and a submission to its government. Cape v Plymouth Congregational Church, 130 Wis. 174.

Judicial Control. It must be conceded that the courts have no povi^er to revise ordinary acts of church discipline or pass upon controverted rights of membership ; but while the courts cannot decide who ought to be members, they may inquire whether any disputed act of the church affecting property rights was the act of the church or of persons having no au- thority. Gewin v Mt. IMlgrim Baptist Church, 1G6 Ala. 345.

Law Governing. Membership in a church is an ecclesias- tical matter depending upon the law of the church itself. Jackson v Hopkins, 78 A. 4. (Md.)

Letters of Dismission, Effect of. Certificates of church membership and dismission, commonly spoken of as letters of dismission, do not, under the Presbyterian system, ipso facto, terminate the membership of the i^erson receiving them in the particular church granting them. To give them this effect they must have been acted upon and the holder have been received into some other particular church of this denomination. Nor do such certificates, ipso facto, termi- nate the functions of ruling elders of a Presbyterian Church. First Presbyterian Church, Louisville v Wilson, 14 Bush (Ky.) 252.

Liability for Debts. A judgment was recovered against the second parish of Kitterj^, Maine. Membership in the parish was held to be voluntary, and the person was at lib- erty to withdraw in the manner provided by law, but he continued liable for debts incurred on behalf of the parish prior to his withdrawal. The seceding member ceased to be liable for parish debts. The remedy for the judgment creditor was limited to the levy on property of persons who were members of the parish at the time of the rendition of the judgment, or, at most, at the commencement of the action. Fernald v Lewis, 6 Me. 264.

The society having become indebted, a judgment was obtained against it, and occupied property was sold and

MEMBERS 325

applied on the judgment. An etiort was then made to sell the property actually occupied for church purposes to satisfy the deficiency judgment. The court refused to permit this sale, but declined to enjoin the collection of the deficiency. Thereupon an action was brought by the original plaintitf against the members of the society as individuals to collect the deficiency on the former judgment. It was held that such members of a religious society were not individually liable for its debts, unless such members had originally and individually authorized the creation of the debts. First National Bank, I'lattsmouth v Rector, 59 Neb. 77.

In Bigelow v Congregational Society, Middletown, 11 Vt. 283, it was held to be the duty of the society to appropriate its property for the payment of its debts, and in case of a neglect to do so and the property is wasted, individual mem- bers may be liable. A meetinghouse is not liable to be taken in execution for the debts of such society.

Powers. The male members of the church are invested with no visitorial or controlling power over the minister or trustees, or interest in the property of the corporation; nor with any authority, except in the case of selling, or leasing, or amending the articles, when the consent of two thirds is required.

The right of the ministers in charge to the use and en- joyment of the church (which includes all the uses to which it can be applied for religious purposes) is expressly re- served to them ; and the economy and management of the fiscal affairs, the receipts and disbursements, are as explic- itly assigned to those appointed for tliat purpose under the discipline of the church. Tarter v Gibbs, 24 Md. 32:>.

Qualifications, How Determined. Under a Michigan statute relating to the incorporation of religious societies, it was held that the statute indicated who might be members of the corporation, but did not determine the qualifications of church members, or the mode of their admission. Those questions are jjrimarily, at least, of ecclesiastical cogni- zance, and both parties must first exhaust the remedies

326 THE CIVIL LAW AND THE OHUKCH

offered by the ecclesiastical body before the courts will con- sider the questions involved. Buettner v Frazer, 100 Mich. 179.

Belation to Society. The relations of a member to his church are not contractual. No bond of contract, express or implied, connects him with his communion or determines his rights. Church relationshii) stands upon an altogether higher plane, and church membership is not to be compared to that resulting from connection with mere human associa- tions for profit, pleasure, or culture. The church under- takes to deal only with spiritual interests. Admission to its fold is prescribed alone by the church professing to act only upon the Word of God. Nance v Bushby, 91 Tenn. 303.

When a person becomes a member of a church he becomes so upon the condition of submission to its ecclesiastical jurisdiction, and however much he may be dissatisfied with the exercise of that jurisdiction, he has no right to invoke the sujiervisory power of a civil court so long as none of his civil rights are invaded. This doctrine inevitably results from that total separation between church and state which exists within the limits of the United States, and is essential to the full enjoyment of the guaranteed rights of American citizenship. White Lick Quart. Meet, of Friends v White Lick Quart. Meet, of Friends, 89 Ind. 136.

One joining an organized society, such as a church hav- ing a representative form of government under the super- vision and control of judicatories known as church courts, agrees by the act of membership to abide by the rules, orders, and judgments of such courts properly made, and consents that whatever rights and privileges he may possess as a member shall be controlled by such rules, orders, and judgments. Hayes v Manning, 172 S. W. (Mo.) 897 (902).

Rights. Every participant in a voluntary organization has the absolute right, which the courts will protect, to have its property controlled and administered according to its organic plan and to participate in its affairs in harmony therewith. Spiritual and Philosophical Temple v Vincent, 105 N. W. (Sup. Ct. Wis.) 1026, 127 Wis. 93.

MEMBERS 32T

Where a society has become incorporated for the purpose of maintaining religious worship, the rights of a member of the corporation are one thing and his rights as a member of tlie church worslii])iiig in the building owned by the cor- poration may be quite another thing. His rights in the corporation and as corporator will depend exclusively upon the law creating the corporation. Nance v Bushby, 91 Tenu. 30a.

Stated Attendant, Effect of Nonattendance. A person who for more than a year had ceased to be a stated attendant at the church of which he had been a member, and whose name had been dropped from the roll of members, was held not entitled to maintain an action against the society or its trustees to restrain an alleged illegal use of the church property. Smith v Bowers, 57 App. Div. (N. Y.) 252, affirmed 171 N. Y. 6G9. As to the effect of withdrawal see also Cammeyer v United German Lutheran Churches, 2 Sandf. Ch. (N. Y.) 208.

Status, How Determined. In a case of a religious congre- gation, what are the doctrines, adherence to which is a con- dition of membership, must be determined by reference to the rules, constitution, or by-laws of the congregation. Where a congregation in its constitution adopts certain books as the exponents of its faith and doctrine, and there subsequently arise honest differences of opinion as to the interpretation of the statements of doctrine in such books, and the constitution is silent as to such matter of interpre- tation, and provides no mode for determining the difference, the civil courts will not hold that adherence to either inter- l)retation dissolves, ipso facto, a member's connection with the congregation, so that he ceases to be a member of the corporation it has formed to hold and control its property. Trustees, East Norway Lake Norwegian Evangelical Lu- theran Church and others v Halvorson, 42 Minn. 503.

Town Society. The society was incorporated in 1S02 by a special act. Up to that time tlie town acted as one parish, and was called the Congregational society. Certain prop-

:;2S THE CIVIL LAW AND THE CHURCH

erty had been conveyed to the town for the use of this so- ciety, aud before the above act of incorporation the property was vested in the Congregational society. The corporation was the same societ}"^ that was known in tlie town as such, and for whose benefit the land in controversy had been con- veyed. The principal effect of the incorporation was to authorize the society to act in a parochial form, which before it had not done, but had acted in its public capacity as a town. Any inhabitant of the town might, on complying with certain prescribed conditions, become a member of the society. The act did not create a new corporation. Parsons- fteld v Dalton, 5 Me. 217.

Transfer by Legislature. In Thaxter v Jones, 4 Mass. 570, it was held that the Legislature might, under the Massa- chusetts statute and bill of rights, set off a member of any religious incorporation to another religious incorporation, whether of the same or of a different denomination.

Withdrawal. Members of a religious society may volun- tarily withdraw from it, and enter another more consonant with their views, but when they do so they must be con- sidered as abandoning to the adherents of the original con- stitution their rights to the property of tlie society which they leave. Manning v Shoemaker, 7 I*a. Sup. Ct. 375.

Ceasing to attend the religious and secular meetings of a parish, and attending the worship and supporting the min- isters of another denomination, for any length of time, will not alone amount to a renunciation of membership in the parish thus left, the only mode of withdrawing, without a change of residence, being by notice in writing under the Maine statute of 1821, Ch. 135. Jones v Cary, 6 Me. 448.

Withdrawal, Effect. To constitute a member of any church, two points at least are essential ; a profession of its faith and a submission to its government. Persons who withdraw from a church can no longer be deemed members of it, even if continuing to profess the same faith and doctrines. Den ex dem. Day v Bolton, 12 N. J. L. 200.

MENNONITES

Organization, 329.

Majority may control property, 329.

Organization. The several Mennouite congregations of Eastern Pennsylvania, of which the Colebrookdale was one, had been associated in a common Conference called from its place of meeting the Franconia Conference, which was composed of clerical and lay delegates from the several con- gregations, and its purpose was the general government of the church. In or about the year 184i a discussion arose in this Conference concerning the customs and usages of tlie Mennonite Church. One part}' desired to introduce various innovations into their mode of life and method of religious worship, a departure that was signalized by the leader of the movement, a Rev. John Overholtzer, appearing in the Conference in a coat of a different cut from the customary garb of the Menonnite persuasion. The discussion of these differences between the two parties, known as the Old and New Mennonite Church, gave rise to great dissension in the Conference, and finally culminated in 1847, when the Over- holtzer, or New Party, formally withdrew from the Fran- conia Conference, and organized a new judicatory. The schism extended from the Conference to its component con- gregations. Landis A])peal, 102 I*a. St. 467.

Majority May Control Property. From 1790 to 1847 the Menonnite society occupied property which was used for religious purposes according to the rules and customs of the sect. About the latter year a schism occurred. The majority and minority continued to occupy the church prop- erty alternately without friction for about twenty-nine years. The majority which continued to adhere to the organization, doctrines, and practices of the society proposed

329

330 THE CIVIL LAW AND THE CHURCH

to erect a new house of worshii) and offered the minority the right to occnpy it as before, provided the minority wonhl not introduce musical instruments into the services nor anything else objectionable to the majority. The minority refused the offer and sought an injunction restraining the demolition of tlie church building and the erection of a new one, and asked that the minority might be declared to be tenants in common of the proi)erty with the majority. It was held that the majority had the right to the possession and control of the x^i'operty and tliat the minority were only tenants by sufferance and not tenants in common with the majority. Landis Appeal, 102 Pa. St. 467.

METHODIST CHURCH OF CANADA

Historical Sketch, 331.

Form of government, fixing status of minister, 331.

Historical Sketch. This church separated from the Meth- odist Episcopal Church and was erected into a distinct organization in 1828. As early as 1804 the Upper Canada districts were included in the New York Annual Conference, and continued as a part of it, the same as other districts, until 1812, when tliese districts, and also the Lower Canada districts, were included within the Genesee Conference. In 1816 the Lower Canada districts were embraced within the New York and New England Conferences; in 1820 both Upper and Lower Canada were again included in the Gene- see Conference, and in the same year the bishops were authorized, with the concurrence of this Conference, to establish an Annual Conference in Canada ; and in 1824 the Canada Conference included the whole of tlie ui)per prov- ince, and thus it stood in 1828, when erected into an inde- pendent establishment. Bascom v Lane, Fed, Cas. 1089, (Cir. Ct. Dis. N. Y.l.

Form of Government, Fixing Status of Minister. "The min- isters and members of the Methodist Church are incorpo- rated by that name, by an act of the Dominion Parliament, 47 Vict. Ch. 106, and the matters involved in the action are subject to the jurisdiction of an Annual Conference, com- posed of the ministers within a limited area, and an equal number of laymen, elected thereto as provided by a code of laws called the Discipline of the Church. According to the Discipline, certain defined matters are considered and disposed of in joint session of both ministers and laymen; but matters affecting the character an<l qualifications of

331

332 THE CIVIL LAW AND THE CHURCH

ministers are inquired into and disposed of in what are called ministerial sessions; that is, meetings composed of ministers only." The Discipline provides a sj^stem of ap- peal. An Annual Conference has power to locate a min- ister without his consent. A located minister cannot exer- cise the functions of the ministry, but may if he desires, be considered a local preacher subject to the regulations affecting local preachers. In 1894 the plaintiff was deposed from the ministry and expelled from the membership of the church. The judgment of expulsion was reversed by the Court of Appeals, a tribunal provided by the Discipline. The matter came before the Annual Conference again in 1895, when the plaintiff was located at his own request. From this action of the Annual Conference the plaintiff" appealed to the Court of Appeals, which court reversed the action of the Conference on the ground that it was extra- neous to any provision of the Discipline. In 1897 he was left without a station at his own request, and a resolution was adopted by the Conference requesting him to ask a location. In 1898 the plaintiff was located, he still refus- ing to ask a location. The plaintiff appealed to the Court of Appeals from the action of the Conference of 1898 in locating him, and the appeal was dismissed. Considering the foregoing facts, the court in Ash v Methodist Church, 27 Ont. App. Re 602, (Canada) said, "The question whether a minister is acceptable or ineflBcient is peculiarly one of the judgment of the Conference, and by the Discipline that body is made the sole judge on that subject."

METHODIST EPISCOPAL CHURCH

Organization, 333.

Anti-slavery control, 335.

Baltimore Conference, 335.

Baltimore Conference, separation of 1844, 338.

Bible Society discontinued, 338.

Bishop's authority to consolidate churches, 339.

Book Concern, 340.

Church Extension Society, 341.

Church investigations, 341.

Consohdation, 342.

Corporators, cannot evict trustees, 342.

Division, 342.

Division of 1844, 343.

Drew Theological Seminary, 344.

Foreign Missionary Society, bequest, 344.

General Conference, power to divide church, 344,

Illinois, Preachers' Aid Society, 345.

John Street Church, New York, 345.

Maine, Preachers' Aid Society, 346.

Methodist Preachers' Aid Society, Baltimore, Maryland, 340.

Ministers, how appointed, 347.

Minister's salary, 348.

Missionary Society, 349.

Missionary bequest, 349.

Missions, 349.

New York, 9th ward, bequest for purchase of coal, 350.

Ohio Corporation, 350.

Oregon Mission, 351.

Property to be held in trust, 355.

Separation, Church South, plan final, 355.

Separation, Church South, Holston Conference, 356,

Separation, title to local property, 356.

Separation, 1844, home rule as to future relation, 357.

Separation, when property cannot be transferred to Church South, 357.

Tennessee Annual Confei-ence, 357.

Organization. The Methodist Episcopal Church of the United States was established in its government, doctrine,

333

n34 TPIE OTVTL LAW AND TTIK riU'RCH

and (lisci])liiie by a General Conference of the traveling ])reacliers in the communion in 1784. Down to that time the Methodist societies in America had been governed by John Wesley, the founder of this denomination of Christians, through the agency of his assistants. During this year the entire government was taken into the hands of the traveling ])reachers with his approbation and assent. They organ- ized it, established its doctrines and discipline, appointed the several authorities, superintendents or bishops, min- isters and preachers, to administer its polity and promul- gate its doctrines and teaching throughout the land. From that time to this [1851] the source and fountain of its tem- poral power was the traveling preachers in this connection in General Conference. The lay members of the church have no part or connection with its governmental organization and never had. The traveling preachers comprise the em- bodiment of its power, ecclesiastical and temporal, and when assembled in General Conference according to the usages and discipline of the churcli, represent themselves, and have no constituents, and this organization continued till the year 1808, when a modification took place. At a General Conference of that year, composed of all the travel- ing preachers, it was resolved to have thereafter a delegated Conference, to be composed of one for every five members of each Annual Conference. The ratio of representation has been altered from time to time so that in 1844 tlie Annual Conferences were represented by one delegate for every twenty-one members. Tlie General Conference of 1808 adopted a form of government or constitution, in wliich it was declared that the General Conference shall have full power to make rules and regulations for the churdi under the following limitations and restrictions. (Then followed six restrictive rules, comprising all the limitations upon that body assembled by delegates. For a further consider- ation of this subject, see the paragraph on Book Concern and power to divide the church.) Bascom v Lane, Fed. Cas. 1089 (Cir. Ct. Dist. N. Y.). Equal lay representation

METHODIST EPISCOPAL CHURCH 335

iu the General Conference has been adopted since tliis deci- sion was rendered.

Anti-Slavery Control. A conveyance of land was made to this society in 1839, containing the recital that ''said prem- ises and building being principally purchased and procured by the anti-slavery members of said church, the same are to be wholly under their control and direction, and iu no case whatever are any such members of said church as are not believers in and practicers of the doctrines of anti-slav- ery to take any part or have any power of controlling the use of said ]»remises and building, or in any way disposing of the same, but the same shall be and remain forever under the control and direction of such members of said church as are embraced with the feelings and o])inions of the anti- slavery society for the immediate abolition of slavery in the United States; and^ further, that in no case is the Gen- eral Conference of the Methodist Episcopal Church to have any right in said premises and building, or take any control or direction of the same." These provisions, relating to the control of the property, were held to constitute a condition, and the subsequent action of the local society in placing itself under the jurisdiction of the General Conference of the Methodist Ejtiscopal Church, and receiving a minister in tlie usual method of appointment, was a breach of the condi- tion which entitled the grantor to reenter. Guild v Rich- ards, 1(;Gray (Mass.) 309.

Baltimore Conference. By a will bearing date in 1854 the testator devised to the Methodist Episcopal Church in Berryville, in Baltimore Conference, a liouse and lot, to be used for a parsonage or for other jjious purposes. In ]8(»i the Baltimore Conference severed its connection with the Methodist Episcopal Church, and united with the Methodist Episcopal Church, South. Certain members of the local church attached themselves to the Methodist Episcopal Church, South, and elected trustees, thereupon claiming to be the successors of the trustees of the original Methodist Episcopal Cliurch at Berryville, and therefore entitled to

33G THE CIVIL LAW AND THE CHURCH

the property devised. They brought an action against the trustees of the original society to determine the title to the property. In the division of the ^Methodist p]piscoj)al Church, which occurred in 1844, the Baltimore Conference adhered to the Methodist Episco])al Church, and this church at Berryville remained with that Cont'erence in that church and did not unite in the movement which culminated in the general convention which was held at Louisville, Kentucky, in 1845, which declared the jurisdiction heretofore exer- cised over the Conference there assembled as entirely dis- solved, and established a separate ecclesiastical connection, to be known by the style and title of tlie Methodist Epis- copal Church, South ; but the Baltimore Conference decided in 1846 to take no part in the new movements In 1876 a joint commission was ai>pointed by the Methodist Episcopal Church and the Methodist Episcopal Church, South, to adjust matters of controversy between the two churches. That commission met at Cape May, New Jersey, the same year, and awarded the property in dispute to the Methodist Episcopal Church, South. In 1854 the Methodist Episcopal Church, South, was in existence as such, and well known to the testator. It was held in this case that the property was not devised to the Methodist Episcopal Church, South, but to another and distinct denomination of Christians. The property was devdsed to the trustees of the local congrega- tion and w^as not devised to either denomination as such, and neither church in its general cajtacity had any power to take such a devise. A grant to either General Conference would have been void. The General Conference had no power over this property. The award by the commission was, therefore, a nullity, and was not binding on the local society. It was further held that the trustees of the local society who had attached themselves to the Methodist Episcopal Church, South, had no claim to the property. Boxwell v Ailleck, 79 Va. 402.

Land was conveyed to the society in trust that the trustees should build, or cause to be built, thereon a house or place

METHODIST EriSC'OI'AL CHIJKCH 337

of woi'sliip for tiic use of the mcMiibors of llie ]\l('(lio(lisl Epis- copal Churcli ill tlie [Juited Slutes of Aniericji, according to the rules and discipline which fi-oiii lime to time ma^' be ajireed ni>on and adojited by the ministers and preachers of the said church, at their General Conferences in the United States of America ; and permit such ministers and preachers lielonging to said church, as shall from time to time be duly authorized by the General Conference of the ministers and preachers of the said Methodist Episcopal Churcli, or by the Annual Conference autliorizcd by the said General Confer- ence to preach and expound God's Holy Word therein. It was held that the deed conveyed the property to the uses of tlie local society, and substantially all the use that could be made of it would be by members of that society. The pri- mary object of the whole transaction must necessarily have been to ])rovide and secure a place of worshij) according to the Methodist Episcopal Discipline for the local society of that denomination, by and for which contributi<ms were made, and which was expected to attend worship on the jtremises. The members of the Methodist E]jiscoj)al Church at large, not belonging to the local society, can, in a general view, have no other use of the local premises but througli the instrumentality of the local society and by means of the subordination of the local use to the laws and authority of the churcli at large. The local society has no voice in the selection of its ministers. A local society has no right to be represented by delegates, either in the Annual Confer- ence or in the General Conference. They had no voice in making the rules for the government of the church, and none in the appointment or selection of the preacher to whose charge they might be committed. The Baltimore Confer- euce, which included Salem, decided to remain in connec- tion with the Methodist Episcopal Church, but by a pro- vision in the resolutions of the General Conference of 1844 local churches in the border Conferences might for them- selves determine whether to continue in connection with the Methodist P^piscopal Church or join the Methodist Epis-

:{38 THE CIVIL LAW AND THE (^HURCH

copal Church, South. Salem Church was lield to be a border society under the General Conference resolution. The society voted on the question of its future relation to the General Church, North or South, and the majority de- cided to join the Church South. This was held to place the local society under the jurisdiction of the Church South, not only as to its internal organization, but as to its property and all other provisions incident to its relation to the church organization. Brooke v Shacklett (Carter v Wolfe) 13 Graft. (Va.) 300.

Baltimore Conference, Separation of 1844. This Conference was one of the boi'der ( -onferences in the plan of separation, and was therefore entitled to determine whether it would remain connected with the Methodist Episcopal Church or join the Methodist Episcopal Church, South. This Confer- ence in 1845 elected to go with the Church North. This determined its ecclesiastical status. A movement for the change of the Baltimore Conference from the Church North to the Church South was initiated at the Annual Conference held at Staunton, Virginia, in 18G1, and consummated at the Annual Conference held in Alexandria in 1806. This action did not affect the status of the Conference which had elected to go with the Church North. Venable v Coffman, 2 W. Va. 31.

Bible Society Discontinued. The organization known as the Bible Society of the Methodist Episcopal Church, which had existed for many years previous to 18;>(>, was in that year dissolved upon the recommendation of the General Conference of that church. The General Conference at the same time recommen<led to the Methodist I^piscopal Churches to unite with the American Bible Society in carry- ing forward its object; and contributions were thencefor- ward taken up in the Methodist lOpiscopal churches through- out from year to year in aid of the American Bible Society. Since 1840 members of the Methodist Episcoi)al Church have been members of the board of managers of tlie Amer- ican Bible Society, and held ottice in said society. There is

METHODIST El'ISCOPAL CHURCH 331)

another association belonging to the Methodist Church, a part of whose action is devoted to the circulation and dis- tribution of Bibles called the "Methodist Book Concern." and there are other societies besides the American Bible Society that have the same general object. Bliss v American Bible Society, 2 Allen (Mass.) 334.

Bishop's Authority to Consolidate Churches. This society was created by the consolidation of three other Methodist societies in Norwich, known as the P]ast Main Street Meth- odist Episcopal Church, the Sachem Street Methodist Episcopal Church, and the Central Methodist Episcopal Church. The consolidation was effected by an order made by Bishop Walden at a session of the New England Southern Annual Conference, held in Providence in 1895. This action by the bishop was taken under the authority assumed to be vested in him "to fix the appointments of the preachers" by section 3 of paragraph 170 of the Book of Discipline of the Methodist Episcopal Church as contained in the Dis- cipline of 1892, and in force at the time of the order. In Trinity Methodist Episcopal Church v Harris, 73 Conn. 21G, it is said "that other bishops of the church have put the same construction on that part of the Book of Dis- cipline, and that churches have been in the past on many occasions so united ; and, so far as appears, the power and authority of a bishop presiding at an Annual Conference to make such consolidation has never been called in ques- tion. We understand that this construction of the Book of Discii)liue is in accordance with the uniform and universal practice of the Methodist Episcopal Church. It agrees with the common understanding of the practice of that church." The action of Bishop Walden was binding on every member of the churches so consolidated. It was held that, according to the rules, usages, and discipline of the Methodist Epis- copal Church, Trinity Church was the successor to the grantees named in a deed of land to the Central Methodist p]piscopal Church. "The consolidation of the three churches into one was a matter of ecclesiastical law and practice;

340 THE CIVIL LAW AND THE CHURCH

and the decision of the ecclesiaistical tribunal on that matter is binding on tlie civil courts."

Book Concern. The Book Concern was established at a very early day, by the traveling preachers in connection with that church, and the profits to be derived therefrom were devoted by them to tlie relief of their distressed super- numerary and worn-out brethren, their widows and orplians. The foundation of this charity is peculiar and novel. The traveling preachers are both the founders and the benefi- ciaries. They are the proprietors of the charitable fund, and, according to the constitution under which tlie endow- ment was made, also entitled to its proceeds. According to the original constitution of this fund by the founders, who had a right to prescribe the terms and conditions upon which the proceeds or profits should be distributed, and the persons to whom, and which when prescribed furnishes the law of the case for the court, these proceeds and profits have been devoted to the relief of distressed, traveling super- numerary and worn-out preachers in the connection of the Methodist Episcopal Church, their widows and orphans. The sixth restrictive rule provides that the General Confer- ence "shall not appropriate the proceeds of the Book Con- cern, nor the charter fund, to any purpose other than for the benefit of the traveling supernumerary and worn-out preach- ers, their wives, widows, and children." The division of the church in 1844, and the erection of the Methodist Episcopal Church, South, in 1845. did not deprive the latter church and its ministers, nor their widows and children of their right to share in the distribution of the proceeds of the Book Concern as provided by the sixth restrictive rule. It is this description of persons to w hom it is destined by the adjudication of the court. They are not only within the descri])ti<)n, but are also the very persons heretofore in the enjoyment of it, and for whom it was originally intended. Granting tliat these persons have done no wrongful act, but are still laboring in the clnirch as heretofore, excej)t under a different nierelv territorial organization, thev are covered

METHODIST EPISCOPAL CHURCH 341

by the spirit, if not by tlie letter of the restrictive article, and it was therefore held that the complainants were en- titled to their share of the Book Concern. Bascom v Lane, Fed. Cas. Ko. 1080. (Cir. Ct. Dist. of N. Y.).

Church Extension Society. A bequest of |10,000 was made to this society, incorporated under the laws of Pennsyl- vania, "to be used as a part of the Perpetual Loan Fund of said society, and to bear the name of the Durham Loan Fund." In Church Extension of the Methodist Epis- copal Church V Smith, 50 IMd. 3(12, this bequest was held void, the court observing that while the legatee was duly incorporated and capable under its charter of taking the bequest for the general purposes of the association, the testatrix had chosen to declare the particular use and pur- pose to which the fund shotild be applied. By a rule of the society any person making a donation of f5,000 or more to a loan fund, might designate the name by which said contri- bution shall be known. The loan fund was set apart to be loaned to necessitous churches of the Methodist Episcopal Church, erected from time to time, within the limits of the United States and its territories, the authorities of the society selecting the beneficiaries. It was held that the legacy was not given to the corporation for its own use, and could not be used for its general purposes. The effect of the will was to constitute the society a trustee charged with the duty of employing the fund only for the use and benefit of necessitous Methodist churches in the United States, Such churches were the real beneficiaries for which the leg- acy was given, and the court held that such a trust was so indefinite that it could not be enforced. The corporation by failing to appoint an appropriate committee, or by fail- ing to designate cJiurches as beneficiaries of the fund, could practically divert the fund to uses not contemplated by the donor, and no one would have the power to invoke the aid of a court of equity for the enforcement of the trust.

Church Investigations. In Tubbs v Lynch, 4 Harr. (Del.) 521, it was held that a church investigation by a committee

342 THE CIN'IL LAW AND THE CHURCH

aj)pointed by the pastor to consider various complaints by members of the chnrcli had no legal effect in a court of law, and that the committee's report was not binding and final even in the church, but Avas subject to review and revision by. api^ropriate church tribunals. The action of the church is designed to have a moral and not a legal result; the pen- alty of not abiding by it is no other than church discii)line; and to give it a legal consecpience or efficac^y would be to compel members of that society to submit their rights to the decision of a church committee, withdrawing them from the legal tribunals of the country. ''Members of this church cannot go to law with each other until the matter has first been stirred in the church."

Consolidation. This society was by an order made by Bishop Walden in 1895 declared to be the successor to three Methodist Episcopal churches in Norwich, which were con- solidated by him to form the new society. This action by the bishop was held binding on the Civil Courts of Connecti- cut. Trustees of Trinity M. E. Church v Harris, 73 Conn.

2i(;.

Corporators, Cannot Evict Trustees. A portion of the cor- porators alleged to constitute a majority took possession of the property and assumed to control it and prescribe and regulate the religious services to be held in the church. Such action by the corporators amounted to an eviction of the trustees who did not consent to such occupancy, and tlie trustees were held entitled to maintain an action in the name of the corporation to recover possession of the property. First M. PI Church in Attica v Filkins, 3 T. & C. (N. Y.) 279.

Division. In Brooke v Shacklett, 13 Graft. (V^a.) 300, the court, referring to the division resulting from the action of the General Conference of 1844, said: "If this division of the church was lawful, it is obvious that the members of tlie local societies in the Southern Organization of the church stand in the same relation to the General Conference, the Annual Conference, the bislio]>s, i)astors, rules and dis-

METHODIST EPISCOPAL CHURCH 343

cipliue of the Methodist Episcopal Church, South, that they occupied bel'oi-e the division, iu respect to those of the Meth- adist Episcopal ('hurch. There has beeu no change of faith, no change of doctrine, no change of discipline, no change in the mode of administering it; all remain as before. The General Conference of 1844 had power to provide for the division. "The ministers and preachers, in whom resided the supreme power, had, when they assembled in 1784 to frame a government for the church, full power to place it under one or two, or a still gTeater number of general organ- izations, if they had believed that the interests of the church would be thereby promoted. And I do not see how it can be said that the General Conferences of 1792, 1796, 1800, 1804, and 1808, composed, as they were, of the body of the ministers and preachers, did not each have the same power. And when they determined at the last mentioned Conference (1808) to meet no longer en masse, but thereafter by a dele- gation from their own body, the provision, which they adopted, that the General Conference should have full powers to make rules and regulations for the church, under the limitations and restrictions contained in the six re- strictive articles just mentioned, amounted in substance to an authority to the delegates in Conference thereafter to exercise all the powers (except those j)rohibited in said restrictive articles) that could at any time have been exer- cised by a full Conference of all the ministers and preachers. No further limitation of the [)owers of the General Confer- ence having been subse(piently made, it seems to me that the Conference of 1844 was clothed with the power which it claimed and exercised.

Division of 1844. The separation of the Methodist Epis- copal Church into two Methodist Episcopal Churches, the one North, and the other South, of a common boundary line, has been the subject of much discussion, in which the whole community, more or less, felt an interest, and was an event that connected itself with, and formed a part of, the history of the country, of which no well-informed man could be

844 THE CIVIL LAW AND THE CHURCH

ignorant, and Irom its notoriety courts will take judicial notice of it without proof. According to the plan of divi- sion, the local societies in Kentucky passed to the Methodist Episcopal Church, South, except those bordering on the Ohio River, which were permitted to determine the question, whether they would go North or South, by a vote of the respective societies. Humphrey v Burnside, 4 Bush (Ky.) 215.

Drew Theological Seminary. Testator made perpetual pro- vision in his will for the education of two young men in this institution for the ministry, one to go in foreign missions and the other to become a member of the Wilmington Con- ference. Testator's son and son-in-law were given j)ower to appoint young men to receive the instruction, and after the death of each of such relatives the power of appointment was to be vested in the Wilmington Annual Conference. The bequest was sustained. It was not void for uncertainty because the amount was not fixed. The amount needed for this purpose could be ascertained from year to .year, and the trustees would always be at liberty to apply to a court of equity for instructions. Field v Drew Theological Semi- nary, 41 Fed. 371. (Cir. Ct. Del.)

Foreign Missionary Society, Bequest. A bequest to the Foreign Missionary Society of the Methodist Episcopal Church was held to be intended for the Missionary Society of the Methodist Episcopal Church, there being no society bearing the first name, and the latter having charge of the foreign missionary work of the cliurcli. Re Bryson's Estate, 7 Ta. Super. Ct. ()24.

General Conference, Power to Divide Church. The deneral Conference, com})osed of all the traveling preachers, and who established the government, doctrines, and discipline of the church, possessed the power to reconstruct and reor- ganize the government, ecclesiastical and temporal, into two or more separate and distinct organizations. These traveling preachers represented tlie sovereign ])ower of the government, and were resi)ousible to no earthly tribunal for

METHODIST EJMSCOrAL CHURCH :115

llic mode and iiiaiiiier of its exercise. The traveliiii; ])i-eacli- ei-s asseiul)le(] in (ieiieral Conference embody, and in liiem- selves, the sovereign power, and we liave nowhere seen their consent to any limitation or restriction till all come (h)wu, in the history of their a(iministrati(»n, to the Conference of 180S. We must have some evidence that they have parted with a portion of their sovereign power that confessedly belonged to them at the first organization since that period ; and that they assembled in tlie snbsequent Conference, sub- ject to the disability, before their ])ower can be distinguished from those originally possessed. As it respects the i»owers of the General Conference since the nn)difications of 1808, it is the same as ]>revionsly existed, subject to the six re- strictive articles, and neither of them has any connection with or bearing upon the question we have been consider- ing.

The connection of the Annual Upijer Canada Conference with the Methodist Episcopal Church was dissolved in 182S, and that body authorized to erect itself into an independent ecclesiastical establishment. As it respects the power of the General Conference of 1844 in the nuitter of division, no one can pretend but that it proceeded ui)on the assumption of unquestioned i)ower to erect the church into two separate ecclesiastical establishments. As a result of the action of the General Conference of 1844 authorizing the separation of the Southern Conferences, two distinct ecclesiastical organizations, identically the same, have taken the place of one, the same Discipline, faith and doctrine, and all united in spreading the same gospel and teachings throughout the land. Bascom v Lane, Fed. Cas. 1089, (Cir. Ct. Dist. N. Y.).

Illinois, Preachers' Aid Society. Preachers' Aid Society v England, 10(1 111. 125, sustained a grant of land to a trustee in trust for this society to be -used for the benefit of super- annuated ministers and their families.

John Street Church, New York. See Wyatt v Benson, 23 Barb. (N. Y.) 327, for a history of movements in 1855 and 1850 for the sale of the John Street Church property, in-

34G THE CIVIL LAW AND THE CHURCH

eluding several suits and the submission of various contro- versies relating to the subject to Bishoj) Matthew Simpson as arbitrator. The court liolds, among other things, that trustees of a religious corporation cannot, on their own motion, and without a vote of the corporation, institute a proceeding for the sale of the church property ; that the sub- mission to Bishop Simpson of any question relating to the sale of the i»roi)erty was invalid, for the reason, as stated by Judge Davies, that "it was not competent to submit the question as to whether or not the church should be sold, to any tribunal other than that pointed out by law"; that the court could not without the consent of the corporation direct a sale of its property, and no arbitrator could be given power to say that church property should or should not be sold. The court also said that the question whether certain persons were the legal trustees of a religious cor- poration could not lawfull}^ be submitted to an arbitrator, for the reason that the law pointed out the only method by which the title to an office could be determined.

Wyatt V Benson, 24 Barb. (N. Y.) 327, considers various questions relating to a movement in 1856 growing out of the organization of the first church, for the sale of the John Street Church property, and the removal of the society to an uptown location. It was held, among other things, that the trustees could not on their own motion institute a ])ro- ceeding to procure an order for the sale of the church prop- erty, and that such a sale could not be directed by the court excei)t wilh the consent of the corporation.

Maine, Preachers' Aid Society. Preachers' Aid Society v Rich, 45 Me. 552, sustained a bequest to this society, al- though at the time of making the will the society was not incorporated, but was incorporated after the testator's death. It was held competent to show that the society was the beneficiary intended by the testator, and tlie railroad bonds constituting the legacy were directed to be delivered to the society.

Methodist Preachers' Aid Society, Baltimore, Maryland. A

METHODIST EPTSC^OFAL CHURCH 347

devise of laud in I'eiiiisylvaiiia to this society was sustained in Thompson v Swoope, 24 l*a, 474.

Ministers, How Appointed. According to the constitution and Discipline of the Methodist Episcopal Church of the United States, its preachers, denominated deacons and elders, are not called by the societies to which tliey preach, but are appointed to stations, and to travel in circuits by the presiding bishop of the Annual Conference. The power is lodged in him, but from a practical necessity he acts with the advice of his council of presiding elders, assembled at tlie Annual Conference. The Annual Conference was com- posed of the deacons and elders and the traveling ministry within the respective Conferences, presided over by a bishoj). or superintendent, as originally termed, assigned to hold the Conference by the board of bishops. The General Confer- ence consists of delegates elected by the Annual Conferences from among the traveling preachers, presided over by the bishops in turn, and holding its sessions quadrennially. The Annual Conferences are divided into districts, com- posed of the circuits and stations within their respective boundaries. Over each district the bishop, at the Annual Conference, appoints an elder to preside, who travels his district four times a year, and presides at the Quarterly Conference in each circuit or station, composed of the traveling and local preachers, exhorters, stewards and class leaders, trustees, and first male superintendent of Sunday schools. A station is a single place of stated service, wliile a circuit has several. It is to these circuits and stations the traveling preachers are assigned at every Annual C'onfer- ence. In his circuit or station the preacher in charge ar- ranges or plans the ai)pointments of service during the term of his own appointment. As to the particular building or house in which services shall be statedly held, there is nothing definite in the Discipline, and the authority over it seems to be only inferential, arising out of the power of the preacher in charge to arrange the appointments of service, which must include places as well as times of appointment.

348 THE CIVIL LAAV AND THE CHUKCH

Church polity reserves a large share of control over church property, as will be seen in the chapter in the Discipline on this subject. The Quarterly Conferences must secure the ground on which churches are to be built according to the deed of settlement, and can admit no charter or deed that does not secure the rights of tlie preachers of the church in the ministration of its services according to the true meaning of the deed of settlement, tlie form of which is pre- scribed. Henderson v Hunter, 59 Pa. St. 335.

Minister's Salary. The laws and regulations of the church, enacted by its General Conference, and contained in its ''Books of Discipline," are binding upon its churches and its ministers. It is the duty of the bishop to fix the appoint- ment of the preachers, of the church to accept the preacher thus assigned to it, and of the preacher to serve as minister and pastor according to his appointment. It is also pro- vided that the amount necessary to furnish a comfortable support to the preacher should be estimated by a committee appointed by the Quarterly Conference within whose juris- diction he was stationed, without regard to the pecuniary ability of the society, or the probability whetlier a greater sum could be raised for the object, and that certain persons called stewards should proceed by such method as they judged best to raise the estimated amount. None of these functionaries are officers of the society, nor are they selected or appointed by it. It is also in the same way provided "that in no case should the church or Conference be holden accountable for any deficiency as in case of debt."

It is ap23arent that the minister who renders service, does so, not upon an agreed salary, but upon an allowance for the support of himself and family, to be raised by voluntary and not enforced contributions, and those coming not wholly and perhai)S not at all from the society' or church to which he is appointed. Neither the Discipline of the church nor its principles recognize any conlract relation between the minister and the society. Its entire policy is ()])posed to it. It regards its ministers, not as hirelings, but as pilgrims

METHODIST EPLSCOPAL CHUKCH 349

and sojoiiiners, and its societies as volimtary contrib- Titors to a general fund. From the fact, tlierefore, that service is rendered and service received, no implication can arise of any promise of compensation. Both parties must, in the absence at least of some valid express agree- ment, be deemed to have acted under the obligation of duty imposed by the rules to which they had assented. Land- ers V Frank St. Church, Rochester, 97 N. Y. 119, also 114 X. Y. 626.

Missionary Society. A devise to this society was held void on the ground that at the death of the testator the society had not been incorporated. The devise took effect imme- diately, and it was not aided by the subsequent incorpora- tion of the society. It was also held that the society was not a foreign missionary society, its object being, as stated in its charter, ''to diffuse more generally the blessings of education, civilization and Christianity throughout the United States and elsewhere." Chittenden v Chittenden, 1 Am. L. Reg. (N. Y. ) 538.

A devise of land in Pennsylvania to this society was sus- tained in Thompson v Swoope, 24 Pa. St. 474.

This societ}' was held not a religious corporation witliin the New York Transfer Tax Law as amended in 1900, and therefore not exempt from the payment of a transfer tax on a legacy. Re AVatson 171 X. Y. 256.

Missionary Bequest. A bequest to the "Methodist Epis- copal Missionary Society of Maine" was directed to be paid to the "Trustees of the East Maine Conference," it appear- ing that there was no incorporated missionary society an- swering the description of the will, and that the East Maine Society was incorporated and was within the territory in which the testatrix resided. Straw v East Maine Conf, M. E. Ch. 67 Me. 493.

Missions. Testiitor gave tlie residue of his estate to the Methodist Episcopal Mission at Bombay, India. There was no such mission, but there was a general missionary society of the church carrying on operations in India, witii

350 THE CIVIL LAW AND THE (^Hl KCH

its lieadqiiarters at Luckiiow. It a})peared that the testator was familiar with the geueral missionary operations iu India and had made liberal contributions in aid of the enterprise. He was deemed to have intended to devise his estate to the General Society, the proceeds to be used iu carrying on its work in India, and the devise was therefore sustained. McAllister v McAllister, 46 Vt. 272.

A bequest of the proceeds of a sale of real estate to the General Missionary Society was sustained in Missionary Society Methodist Episcopal Church v Calvert, 82 Graft. (Va.) 357. The provision in the bequest that the fund should be appropriated to the India mission did not make it void for uncertainty.

Testator gave one half of his residuary estate to the "Missionary Case of the M. E. Church." The word "case" was construed to mean "Cause." The Missionary Society of the Methodist Episcopal Church sought to obtain the fund on the ground that it was the general agency through which missionary operations in the denomination were car- ried on. The court held that the society, not having been named in the will, was not entitled to the fund, but the bequest did not, for that reason, fail, and the court sug- gested that further proceedings would be necessary on the equity side to determine the disposition and management of the fund, for the purpose of perpetuating the testator's intention. Missionary Society Methodist Episcopal Church V Chapman, 128 Mass. 265.

New York, 9th Ward, Bequest for Purchase of Coal. A bequest of the I'esidue of an estate to the Metliodist Epis- copal churches in the ninth ward in the city of New York, according to the number of members, to buy coal for the poor of said churches was sustained. The testator contem- plated no trust, but simply made a bequest to the churches, and the same was valid. Bird v Merklee, 144 N. Y. 544.

Ohio Corporation. This church was incorporated under the laws of Oliio with twelve trustees — six ministers and six lavmen — one half lo be chosen bv the General Confer-

METHODIST EPISCOPAL CHURCH 351

euce quadieimially. The corporatiou was given power to take and hold, manage and convey property and administer trusts for the benefit of the denomination, and the corpora- tion was declared to be subject to the supervision of the General Conference. The testator bequeathed a portion of his estate to the "Methodist Episcopal Church to be used by said denomination for the spread and furtherance of the gospel." It was held that the Ohio corporation was entitled to receive this bequest and that it could not be paid to a local society of the denomination. Ke Rouser's Estate, S Pa. Suj). Ct. 188.

Oregon Mission. The Oregon act of 1818 confirmed the title to lands, not exceeding 640 acres, then occupied as missionary stations among the Indian tribes of said terri- tory, together with the improvements thereon, in the several religious societies to which said missionary stations respec- tively belonged. From 1838 to September, 1847, the mis- sionary society of the Methodist Episcopal Church main- tained a mission among the Wascopum Indians on the south bank of the Columbia River, at the lower end of the Grand Dalles thereof, at a place since called "The Dalles," in what is now Wasco County, and on July 1), 1875, received a patent from the United States, under section 2447 of the Revised Statutes, for a tract of land containing G43.37 acres, inchiding the ground occujjied by the improvements made at such mission.

For some years prior to the passage of the Oregon act of August 14, 1848, there were three religious societies en- gaged in missionary labors among the Indians in Oregon — the Methodist Episcopal, l*resbyterian, and the Ronmn Catholic. The first missionaries of the former came to Ore- gon with Weyth in 1834, and established a mission at Wal- lamet below Salem, which was afterward removed to the latter i)lace. Subsequently their numbers were increased, and they established missions at The Dalles, Nesqually, and Clatso[).

In the Spring of 1838 the Rev. Daniel Lee and Rev.

:jr)2 THE CIVIL LAW AND TUV. CHURCH

H. K. W. I'ei-kiiis, mider Uio direction of tlie Rev. Jasou Lee, tlie sii]>eriii(('ii(leiit of the defendinil in Oi-ey,on, estab- lished a mission williin the iiiints ot ihe tract described in tlie patent Iiere at a phice then called VVascopnin. In the fall of the same year it was stocked with cattle from the Willamette Valley. The place Avas favorably sitnated for trade and interconrse with the Indians and immigrants from the east — the latter nsnally at this point exchanged their wagons for boats and often bartering their ])oor oxen for snpi)lies, snch as fresh beef and the like.

In 1810 M. H. B. Brewer went to reside there as a farmer for the mission. Perkins and Lee left the mission for the East in 1844, and the Rev. A. F. Waller joined it abont the same time. Waller and Brewer remained there nntil the transfer of the station to Whitman in 1847. In 1844 the Rev. George Gary snperseded Jason Lee as snperintendent of the Oregon Mission. Apparently the missionary society had become dissatisfied with the secnlar character and cost of the missionary operations, and sent Gary here to bring abont a change in this respect. To this end, soon after his arrival in the territory, the various mission stations, except The Dalles, and all the mission property, consisting mainly of large herds of horses and cattle, were disposed of to mem- bers of the mission, so that after 1844 the defendant had no mission among the Indian tribes in Oregon, except at The Dalles. Thereafter the labors of its faithful clerical mis- sionaries, of whom but a few reuuiined in the country, were devoted to the growing white settlement in the AVillamette Valley. In the language of one of them, "The finances of the Oregon Mission were thus summarily brought to a close, and the mission was not only relieved of a ponderous load, but assumed a decidedly spiritual character."

In July, 1847, Mr. Gary was succeeded as superintendent of the mission by the Rev. William Roberts. I*rior to this, and in the spring of that year, Mr. Gary had disposed of nearly all the live stock of The Dalles mission station, and was negotiating with Dr. Whitman for the transfer of the

METHODIST EPISCOPAL CHURCH 353

station itself. Mr. Roberts iu coutiuuation of the policy manifested b}' his predecessor, followed up these negotia- tions, until in August an agreement was made for the abandonment or transfer of the station to Whitman, to- gether with the sale of a canoe, some farming utensils, grain, and household furniture for the sum of fdOO; and between September 1 and 10, 1847, Messrs. Waller and Brewer, the agents of the missionary society, delivered the possession of the premises to Whitman, who took actnal possession thereof, and placed his nephew, Perrin B. Whit- man, a youth of seventeen years, iu charge, while he pro- ceeded to his mission station at W^ailatpu.

Dr. Whitman was not a minister, but at the time of the transfer of this station to him it was understood and expected that religious services and instruction would in some way be kept up there for the benefit of the Indians; but there was no legal obligation to that effect, nor did the missionary society, or its agents, have any intention or expectation of returning or occupjdng the station, if such services and instruction were not furnished, or otherwise. In pursuance of the settled policy of the missionary society, the station was absolutely and unqualifiedly abandoned to Dr. AYliitman, without any reservation or riglit to resume the possession under any circumstances. At the time the missionary society abandoned this station there were about seventy acres under some kind of inclosure, about one lialf of which had been under cultivation. There were six moder- ate-sized buildings upon the premises, a dwelling, meeting- lionse, schoolhouse, and storehouse, barn and workshop, built of logs, except the dwelling, which was a frame filled in with adobe. These buildings were plain and constructed mostly with Indian labor, and did not cost to exceed |4:,000, at which valuation they were afterward, on June 16, 18G0, paid for by the United States, upon a claim and estimate of the defendant to that effect.

On November 29, 1847, Dr. Whitman and others were murdered at Wailatpu, by the Indians of that station, and

354 THE CIVIL LAW AND THE CHUKCH

this was followed by what is known as the Cay use War, in which the people of Oregon, under the provisional govern- ment, undertook to chastise the Cajmse Indians for this massacre. By midsummer of 1848 hostilities had ceased and peace was established.

About December IG Perrin B. Whitman, who had re- mained in charge of the station at The Dalles, being appre- hensive of danger, left for the Willamette Valley, taking with him Mr. Alanson Hinman, whom his uncle had sent there from Wailatpu in October as a farmer and housekeeper. A detachment of volunteers soon after occuj)ied the prem- ises, with the f)erniission of said Whitman, and it remained in the possession of the troops of the provisional govern- ment until they were withdrawn from the country as stated. Thereafter the premises remained unoccupied, exce^jt occa- sionally by passing travelers and immigrants, until the spring of 1850, when a military post was established there by the United States, and the premises included in a mili- tary reserve.

The court held that the missionary society had not acquired the title to this station on August 14, 1848, under the act of that date. It had abandoned the place volun- tarily and without any expectation or intention of return- ing, and was no more within the purview or operation of the act than if it had never been upon the ground. The grant under that statute applied only to such stations as were occupied on August 14, 1848. The missionary society did not then occupy the premises. I*rior to August 14, 1848, there could be no such ]><)ssession of lands in Oregon, because the legal title was in the United States. Occupancy or actual possession was the only interest anyone then had in the lands in Oregon, and when that was given up or abandoned, the relation of the party to the land was abso- lutely terminated, and it was open to occupation by the next comer as though the foot of man had never been upon it. The grant by the act of 1848 applied to stations then occu- pied for missionary purposes.

METHODIST El*I8C0rAL CHURCH 355

By an act of Congress passed on the 16th day of June, 1860 the missionary society received from the United States 120,000 in satisfaction of its claim for one half of the prem- ises, and the value of the improvements thereon, whether destroyed by the volunteers under the provisional govern- ment, or Indians, or the United States troops, and estimated by it at |4,000.

The court said that the patent obtained by the missionary society in 1875 was wrongfully issued, and the society was not entitled to retain the property, but was required to release and convey it to the i)ersons claiming title to it in this case. Dalles City v Missionary Society M. E. Church, 6 Fed. 356.

Property to Be Held in Trust. Under the terms of the Dis- cipline it is provided that conveyances of real estate for tlie erection of houses of worship shall be in trust, to be used, kept, maintained, and disposed of as a place of divine wor- ship, etc., subject to the discipline, usage, and ministerial a])pointments of said church. Trustees of a local society who have advanced money or are responsible for any sums of money on account of building a house of worship or are obliged to pay such sums of money, are authorized either to mortgage or to sell the premises after notice given to the pastor. The local trustees are to hold all the church prop- erty. Bushong V Taylor, 82 Mo. (560.

Separation, Church South, Plan Final. It is manifest that the plan of separation was a plan of peace, to end strife; and the relations of the Conferences, churches, stations, and societies along the defined and sjiecified border, being once settled by the choice of those authorized so to act, by adher- ing to the one side or the other, was final and conclusive, and could never after be changed, or counteracted, under or by virtue of that plan and authority. Now it is contem- plated to keep the question open to be shifting from side to side, from time to time, as one side or the other may have a majority. Such a construction would be to defeat the end in view of peace and settlement, increase the dissen-

350 THE CIVIL LAW AND THE CHURCH

sioiis among the people, aiul make confusion worse con- founded. Venable v CotTman, L' W. Va. .">10.

Separation, Church South, Holston Conference. Following the separation in 1844, and the erection of the Methodist Episcopal Church, South, in 1845, the Holston Conference, one of the Border Conferences, described in the plan of separation, adhered to the Church South, and became a part of that organization. The local churdi in Jonesboro, Ten- nessee, was in this Conference, and tliis society continued to be a part of the Church South until 1805. when some of its members, including three trustees, withdrew from the Church South and joined the Methodist Episcopal Church, North. They formed an organization and took possession of the local society's property, claiming it for the Church North. The trustees who remained in the Church South brought an action against the trustees of the Church North to recover the property. It was held that by the action of the Holston Conference, deciding to go with the Church South, the title to the local property passed to that organ- ization. This situation was not affected by the Avitlidrawal from the local society of a large number of its members, including three trustees and their subsequent connection with the Church North. The effect of such withdrawal was to lose all interest as beneficiary of the property. The trus- tees who were connected with the Church South were held entitled to the possession of the local church property. Reeves v Walker, 8 Baxt. (Tenn.) 277.

Separation, Title to Local Property. Trending a controversy over the title to the church property between representa- tives of the Methodist Episcopal Church of the United States and the Methodist Episcopal Church, South, the county court appointed trustees of the local society repre- senting the Methodist Episcopal Church of the United States. In an action of ejectment by these trustees against persons claiming the property as representing the Methodist Episcopal Church, South, it was held that the plaintiffs could maintain an action although appointed by the court.

METHODIST EPISCOPAL CHURCH 357

That their appoiutmeut was a subject of appeal, but could uot be questioued collaterally uor in the peuding action. Kregio v Fulk. 3 W. Va. 74.

Separation, 1844, Home Rule as to Future Relation. By the plan of separation it was agreed that within the territory of any of the Border Conferences a majority of the society, or Conference within which any church property lay, might determine for itself to which body it would become attached. Venable v Cotfman, 2 W. Va. 310.

Separation, When Property Cannot Be Transferred to Church South. In 1S51 projjerty was convened to this society to be used for religious jjurposes according to the rules and dis- cipline of the Methodist Episcopal Church. In 1866 five of the trustees of the society joined the Methodist Episcopal Church, South, and attempted to transfer the property to that denomination by opening the house of worship to its ministers, and submitting to its Discipline. In 1S66 the Quarterly Conference adopted a resolution directing legal proceedings to remove the seceding trustees. This society was within the limits of the Baltimore Conference. There was no evidence that this congregation had ever voted to leave the Church North and attach itself to the Church South. It was held that while any members of the church might leave this society and join the Church South the action of the trustees in attempting to transfer the society to the Southern denomination was invalid, and the local society continued to be a part of the Church North. The seceding trustees were removed by the court, and other trus- tees were ai)pointed in their place, ^"enable v Colfman, 2 W. Va. 310.

Tennessee Annual Conference. Testator bequeathed a por- tion of his estate to the Tennessee Annual Conference, for the benefit of institutions of learning under its superintend- ence, and to the Missionary Society of the Methodist Epis- copal Church, and to be otherwise disi)osed of as tlie Ten- nessee Annual Conference maj^ deem best in their wisdom.

The testator died in 1840. In 1841 the Legislature of

358 THE CIVIL LAW AND THE CHURCH

TeuDessee passed a private act iucorporatiug certain per- sons as trustees to receive this bequest. The devise to the Conference was held inoperative and void, for the reason that the devise exhibited only a general indefinite purpose of charity both as to persons and objects. The act of the Legislature of 1841, creating the trustees of the Conference was held unconstitutional and void. Green v Allen, 5 Hump. (Tenn.) 170.

METHODIST EPISCOPAL CHURCH, SOUTH

Origin, historical sketch, 359.

Organization, 361.

Baltimore Conference, 301.

Book Concern, Methodist Episcopal Church, interest in, how adjusted, 303.

Border society, 303.

Church edifice, change of site, effect, 364.

Corvallis College, Oregon, 304.

LiabiUty for local debts, 304.

Missions, 305.

Property, division of general church, effect, 305.

Property, secession, effect, 305.

Property, when withdrawing members cannot change title, 367.

Property, who may enforce trust, 308.

Publishing house, taxation, 368.

Origin, Historical Sketch. In Gibson v Armstrong, 7 B. Men. (Ky.) 481, the Court of Appeals of Kentucky consid- ered several questions growing out of the division of the Methodist Episcopal Church following the General Confer- ence of 1844, resulting in the erection of the Methodist Epis- copal Church, South. The division was one of the conse- quences of the agitation concerning slaverj^ wliich had con- tinued several years, especially' in the Northern States. This agitation culminated in the action of the General Con- ference of 1844, which in effect authorized the separation of the Southern portion of the church, and the organization of a new churdi in the slaveholding States.

Many resolutions and memorials relative to slavery were I>resented to the General Conference of 1844, and there was much discussion of questions relating to slavery and its possible effect on the future of the denomination. On the 5th of June fifty-two members of the General Conference, one from Illinois and fifty-one from the slaveholding States, embracing thirteen Annual Conferences, submitted to that

359

niK) THE CIVIL LAW AND Till: riHKcn

Ixtdy a staltMiK'iit declnring- (hat "the coutiuiied agitation on the snbject of slavery and abolition in a portion of the church; the frequent action on that subject in the General Conference; must produce a state of things in the South which renders a continuance of the jurisdiction of this Gen- eral Conference over these Conferences inconsistent with tlie success of the ministry in the slaveliolding States." This declaration was referred to a committee of nine, which, on the 7tli of June, submitted a report, which was adopted, relating to the separation of the Southern part of the church.

The report contained resolutions in effect sanctioning the proposed separation and the erection of a separate organi- zation in the slaveholding States, authorizing societies, sta- tions, and Conferences in the Southern States to determine by vote whether they would remain in the original church or join the new organization, providing for the status of ministers and members in case they should elect to go with the Southern church ; and providing also for a division of the property and funds of the Methodist Episcopal Church in case the proposed separation should be effected.

A convention of delegates from the Southern Annual Con- ferences was held in Louisville, Kentucky, in May, 1845, and adopted a plan which formally constituted such Annual Conferences a "separate ecclesiastical connection," under the name of the Methodist Episcopal Church, South.

Acting on the authority conferred by the General Con- ference of 1844, the congregation and members of the Meth- odist Episcopal Church in Maysville, Kentucky, held a meet- ing for the purpose of determining whether they would go with the Southern church or continue as a part of the orig- inal Methodist Episcopal Church. A majority decided to place the Church in connection witli the new Southern or- ganization. The minority determined to adhere to the Northern church. In the foregoing case the court was called upon to decide which party in the local church was entitled to possession of the church edifice and other prop- erty, and which was to be deemed the true local society.

METHODIST EPISCOPAL CHURCH, SOUTH 3G1

The court, iu its opiuiou, reviewed the history of the Meth- odist Episcopal Church, various aspects of the slavery agi- tation, the action of the General Conference of 1SI4, and the organization of the new Southern church, and held that a majority of the Maysville church, having decided to place the local society in connection with the new Southern organ- ization, that majority was to be deemed to the true local society, and entitled to possession and control of the church building and property, subject to regulations prescribed or to be prescribed by the new general organization.

The court said, among other things : "The original Meth- odist P]piscopal Church has been authoritatively divided into two Methodist Episcopal Churches, the one north, and the other south of a common boundary line, which, according to the plan of separation, limits the extent and jurisdiction of each ; each within its own limits is the lawful successor and rei)resentative of the original church, possessing all its jurisdiction, and entitled to its name; neither has any more right to exceed those limits than the other."

Organization. "A convention of delegates from fifteen Soutliern Conferences assembled in 1815, renounced, by solemn act, tlieir connection with the preexisting organiza- tion and jurisdiction of the General Conference as then constituted, and retaining the same faith and doctrine, the same rules and discipline, and the same form of constitu- tion and government, established for themselves a new and independent organization, under tlie name of 'The Meth- odist Episcopal Church, South,' and a new General Confer- ence for that church." "The Soutliern cliurcli retaining the same faith, doctrine, and discipline, and assuming the same organization and name as the original church, is not only a Methodist Episcopal Church but is in fact to the South, the Methodist Episcopal Cliurch as truly as the other church is so to the North, and is not the less so by the addition of the word 'South' to designate its locality." Gibson v Arm- strong, 7 B. Mon. (Ky.) 481.

Baltimore Conference. This Conference was not repre-

362 THE CIVIL LAW AND THE CPIUKCH

sented in the convention held in Lonisville, Kentucky, in May, 1845, which organized the Methodist Episcopal Church, South, and being a border Conference, under the plan of separation agreed upon by the General Conference of the Methodist Episcopal Church in 1844, it had the right to determine for itself its future ecclesiastical relations by electing to continue its connection with the old organiza- tion or attach itself to the new. In 1846 the Baltimore Conference adopted a resolution to adhere to the Methodist Episcopal Church of the United States.

In 1861 the Baltimore Conference adopted a resolution based on the anti-slavery action of the General Conference held at Buffalo in 1860, by which resolution the relation of the Annual Conference to the General Church was severed, and the Conference declared itself separate and indepen- dent, but still claiming to be an integral part of the Meth- odist Episcopal Church. In February, 1866, the Baltimore Conference adopted a resolution joining the Methodist Epis- copal Church, South.

The minority of the Baltimore Conference of 1861, by which the resolution of separation had been adopted, refused to follow the Conference in its independence, and organized, in 1862, a new Annual Conference, known as the Baltimore Conference; and this Conference was connected with the general denomination, and it sent delegates to the General Conference.

Some time after 18(56 the members of Harmony Church, who were ])resent at a meeting, voted unanimously to join the Methodist Episcopal Church, South. Adherents of the Church North were either absent or did not vote. After this action by the Harmony Church trustees were appointed by the court and assumed the control of the church property, admitting to the use thereof the ministers assigned by the Conference of the Methodist Episcopal Church, South, and excluding from such use those assigned by the Conferences of the Methodist Episcopal Church. Hoskiuson v Pusey, (White v King) 32 Graft. (Va.) 428.

METHODIST i:i'lSCOPAL CHURCH, SOUTH 303

Book Concern, Methodist Episcopal Church, Interest in, How Adjusted. Smitli v SworiiiMtedt, 10 How. (U. S.j 1*88, in- volved questions relating to a division of the property known as the Methodist Book Concern, consequent upon the separa- tion of the Methodist Episcojial Church into two factions, North and South, following the action of the General Con- ference of 1844. It was held that an action might be main- tained for a division of the property, and that such an action might be brought in the name of a few members of the denomination representing the whole.

Bascom v Lane, Fed. Cas. No. 1089 (Cir. Ct. N. Y. Dist. ) was an action based on the division of the Methodist Epis* copal Church, and the subsequent organization of the Meth- odist Episcoi>al Church, South, for a settlement and divi- sion authorized by the resolutions of the General Conference of 1844. See note on the division in the article on the Methodist Episcopal Church. It was held that the com- plainants were entitled to share in the proceeds of the Book Concern.

Border Society. A church edifice was erected on land con- veyed to trustees in 1833, within the limits of the territory which afterward became the Baltimore Conference of the Methodist Episcopal Church, South. The conveyance was not for the use of the church at large, but for the use of a l)articular congregation of that church, in the limited and local sense of the term ; that is, for the members as sudi, of the congregation of the Methodist I^piscopal Church, who from their residence at or near the place of worship may be expected to use it for that purpose. The local society, when the deed was made, was a i^art of the Methodist Epis- copal Church. This local society was not a Border society within the meaning of the plan of separation adopted by the General Conference of 1844, and hence had no authority to determine, by a majority of its members, its adherence to the Church South. The property of the church was held to belong to those members who adhered to the Methodist Episcopal Church, and who did not join in the movement

364 THE CIVIL LAW AND THE CHTTKCH

for sepai'ation. Huskiiisoii v Pusey, 32 Gratt. (Va.) 428. (White V King I.

Church Edifice, Change of Site, Effect. J^aiul was ac<i[uired by a local society as a place for a house of worship, which was erected thereon. Afterward the site was changed, and a new house of worship built in another part of the town. Tliis change was sustained as authorized by the rules and discipline of the denomination, which were included in the original deed. These rules authorized the trustees of the local church to sell its i»ropt>rty with the consent of the (^uarterl.y Conference. Ki]]»atrick v Graves, 51 Miss. 4:>2. . Corvallis College, Oregon. The General Conference had and exercised the power to appoint trustees of this college. In 1870 the Legislature of Oregon made this college the State Agricultural College, but it continued subject to the jurisdiction of the Methodist Episcopal Church, South. The college accepted the statute. In 1885 the Columbia Confer- ence appointed trustees of the college. In 1886 the trustees adopted a resolution directing a conveyance of the college farm to the State, and the conveyance was executed accord- ingly, but without consideration. Several i)ersons, mem- bers of the Methodist Ei)iscopal Cliurch, South, brought an action to set aside the deed. It was held that under the charter the college had no power to make this conveyance. Liggett V Ladd, 17 Or. 89.

Liability for Local Debts. In Methodist Episcopal Church, South, V Clifton, 34 Tex. Civ. App. 248, it was held that the Methodist Episco])al C'liurch, South, was an unincorporate<l voluntary association, against which no judgment could be rendered unless for the purpose of enforcing some equitable right which plaintiffs had against some property- held by that association. The action was to recover the amount of a debt contracted in the erection of Waco Female College, in Texas, under the authority, as claimed, of the Northwest Texas Conference. It was held that the church oAvned no property directly connected with the enterprise in which the contractors were interested, nor anj^ fund which could

METHODIST EPISCOPAL CHURCH, SOUTH 8G5

be charged with the debt; that whatever property was owned by the deuomiuation was held for particular charit- able uses, which could not be diverted to the payment of the debt in question.

Missions. Testator gave all his property to the Meth- odist Episcopal Church, South, to be used in carrying on foreign missions. The devise was sustained. The Kentucky statute limited to fifty acres the quantity of land which might be held by any religious society, and specified the purposes for which such land might be acquired and used. The restriction in the statute was intended to prevent a church from taking projjerty for its own use. In this in- stance the property was given to the church in trust to be used for foreign missions, and was not for the benefit of the local society. It was held that the limitation of the statute did not apply, and that the devise was valid. Kinney v Kinney, 8G Ky. 610.

Property, Division of General Church, Effect. In 1840 land was conveyed to the local society at Mt. Olivet, Kentucky, for church jmrposes, according to the laws and Discipline of the Methodist Episcopal Church. In 1844 the church was divided, the Southern Conferences assuming the name of the Methodist Episcopal Church, South. This society passed under the jurisdiction of the Southern organization, and after that time its i^astors were appointed by the Kentucky Conference of the Church South. Certain j)ersons claiming to be members and trustees of this societj^, and also claim- ing to be members of the Methodist Episcopal Church, South, brought an action to secure i:>ossession of the church projierty. The court awarded the title and possession of tlie property to the congregation composed of members of the Methodist Episcopal Church, South. Humphrey v Burn- side, 4 Bush. (Ky.) 215.

Property, Secession, Effect. In 1854 land was conveyed to trustees intended for a parsonage for the use of ministers of this society, which had a church edifice near the land con- veyed. The property was occupied several years, but it

;;(;<; thio ri\'iL law and the church

apijareutly was not i)ureliased for the use of the denomina- tion generally, bnt only for the local society. A division arose in the church during the Civil War, some 05 members withdrawing, inclu'ding the trustees named in the foregoing deed. They erected a new house of worshi]) and organized a society in connection with the Methodist Episcopal Church of the United States. The remaining members, about 37, adhered to the Church South and ke])t up their organiza- tion and retained control of the old house of worship. The trustees named in the deed of the parsonage property, and who had seceded and joined the Church North, obtained possession of the parsonage property and assumed control of it. The trustees of the old congregation brought an action against the seceding trustees to recover possession of the parsonage property. It was held that the conveyance of the parsonage property under the circumstances amounted to a dedication of it to the local society for the use of its minister. The seceders by their action in with- drawing and organizing a new society forfeited their inter- est in the parsonage property, and were not entitled to any control of it, nor to a division of the property under the Kentucky statute. McKinney v Griggs, 5 Bush. (Ivy.) 101.

Property was conveyed to the local society in 1858, to be used for religious purposes under the general jurisdiction and supervision of the Methodist Episcopal Church, South. In 18G5 some members of the local society withdrew and set up for themselves as an integral part of the church or- ganization, known as the African Methodist E]»iscopal Church of the United States. In 1866 the General Confer- ence of the Methodist Episcopal Church, South, adopted a resolution "that whenever entire churches and congrega- tions shall have voluntarily left us and united with the African Methodist Episcopal Church, the trustees be, and they are hereby advised, to allow them the use of the house of worship heretofore solely occupied by them as before tliey left our church." The members of this local church who withdrew took possession of the liouse of worship and used

METHODIST El'lSCOPAL CHUIICn, SOUTH 367

it until a part of the colored x)eople were excluded for their adherence to the Methodist Episcopal Church, South, from worshiping there. It was held that the seceders had no right to the possession or use of the church property, but that such title and use remained in the members who ad- hered to the Methodist Episcopal Church, South. Brown v Monroe, 80 Kv. US.

Property, When Withdrawing Members Cannot Change Title. In September, 1845, the trustees of the Methodist Episcopal Church in Savannah made a deed of certain land to the trustees of the Methodist Episcopal Church, South, under an arrangement by which the latter trustees agreed to erect on the land conveyed a house of worship for tlie use of the colored members of the Methodist Episcopal Church, South, The trustees, grantees in the deed, erected a house of worship, and called it Andrew Chapel. This occuj)ancy continued without interruption until the capture of Savannah by the Federal forces in 1865. Following the capture of the city several members of Andrew Chapel joined the African Methodist Episcopal Church, and the trustees of the Church South permitted the African Meth- odists to use the chapel. In December, 1865, the African Methodists applied to the Georgia Conference for a deed of Andrew Chapel, but the Conference replied that it had no power to make the conveyance, for the reason that the title to property used by colored Methodists was vested in tras- tees for the use of colored members of tlie Methodist Epis- copal Church, South, so that the Georgia Conference has no power to convey the property to any other organization whatever.

The African Methodists continued to occupy the property, and in September, 1868, the trustees of the Church South served on the African Methodists a notice to quit, but they declined to vacate the property unless compelled to do so by law. The trustees of the Church South then began summary proceedings to recover possession of the property. It was held that the title to the property remained in the

368 THE CIVIL LAW AND THE CHURCH

trustees of the Methodist Episcopal Church, South, and that the withdrawal of members of that church did not have the effect to change the title. They could not carry the title with them into another organization. Godfrey v Walker. 42 Ga. 502.

Property, Who May Enforce Trust. Land was conveyed to trustees for the use and benefit of the colored members of the Methodist I'^piscopal Church, South, according to the rules and Discipline of that denomination. In 1SG5 the Ohio Conference of the African Methodist Episcopal Church, having extended its jurisdiction over that part of Kentucky embracing Danville, the members of this local society unan- imously voted to attach themselves to tlie latter organiza- tion, and became subject to its rules and Discipline, receiv- ing the pastors appointed by its authority, and otherwise exercising the functions and powers of a local congregation. Some time afterward two members were expelled from the new society, and thereupon the Quarterly Conference of the Church South, in the district embracing Danville, ap- pointed trustees of the original society. These trustees brought an action in equity to recover possession of the church property. It was held that tlie deed was for the benefit of colored members of the Methodist Episcopal Church, South, residing in Danville, and that there being no such i)ersons, either members of the Danville church of white people, or in a separate organization in connection witli the Church South, it did not appear that there was anyone entitled to have the trust enforced. Newman v I'roctor, 73 Ky. 318.

Publishing House, Taxation. This institution, located at Nashville, Tennessee, was incorporated by the Legislature in 185G, for the manufacture of books, tracts, periodicals, etc. The corporation was placed under the management and control of the Methodist Episcopal Church, South, accord- ing to its laws and usages adopted from time to time. By the Discipline the object of the corporation was to advance the cause of Christianitv bv disseminating religious knowl-

METH0DI!«;T El'ISCOPAL CHURCH, SOUTH m.)

edge and useful literary and scientilic iuroniiatiou in the form of books, tracts, periodicals, etc. By the sixth restric- tive rule contained in the Discipline it was provided that the "General Conference shall not appropriate the produce of the publishing house [referring to this corporation] to any purpose other than for the benefit of the traveling super- numerary, superannuated, and worn-out preachers, their wives, widows, and children."

It seems that in 1890 about one fifty-sixth part of the proceeds of the Publishing House was derived from the pub- lication of secular books. All the proceeds, from whatever source derived, were devoted to the objects stated in the Dis- cipline. It was held that the publication of secular books did not deprive the corporation of its religious character, but that it was a religious institution, being organized as an arm or agency of the church, and carrying forward its work, and especially in accumulating funds for the relief of worn-out preachers, their wives, widows, and children, and that the property of the corporation was exempt from taxation. Methodist Episcopal Church, South v Hinton, 92 Tenn. 188.

METHODIST PROTESTANT CHURCH

General Conference, when entitled to property of extinct church, 370.

Property, forfeiture, free seats, 370. Property, secession, effect, 370. Proi)erty, title in trustees, effect, 371.

General Conference, When Entitled to Property of Extinct Church. By the law of the General Conference, tlie jn'operty of any church which should become extinct should become vested in the General Conference, and a church is considered extinct when there are not sufficient members to fill its offices. The society by a vote of all except two of its mem- bers, voted to establish an independent church. It was held that the two members who did not join the independent movement constituted the church, and being too few to fill the offices, the property of the church was forfeited and be- came vested in the General Conference. Appeal of First Methodist Protestant Church, Scranton, 16 Wkly. Cas. N. (Pa.) 245.

Property, Forfeiture, Free Seats. Woodworth v Payne, 74 N. Y. 196, considers a provision in a deed of land for a church, declaring that seats in the church should always be free, and if such seats were rented or sold, the title to the i)roperty should revert to the grantor. The church being in debt, sold the property by order of the court, to its min- ister, and services were continued as before the sale, the seats being free. It was held that the sale and change of title did not under the circumstances create a forfeiture and the i)roperty did not revert to the grantor. This deed was considered again in Southwick v New York Christian Mis- sionary Soc, 151 A. D. 116; affirmed 211 N. Y. 515.

Property, Secession, Effect. In 1860 land was conveyed to trustees for the exclusive use and benefit of the local cou-

370

METHODIST IIKJTESTANT CHUKCH ;'>71

gregatiou. lu 1871 a part of the local society withdrew therefrom aud joined the Methodist Episcopal Church, South. The uiiuority retaiued the orgauizatioii of the Meth- odist Protestant Church, aud coutiuued to occupy the prop- erty, uutil 18SG, when they were excluded from it, aud the doors of the church were locked against them. The minor- ity, who had adhered to the Methodist Protestant Church, were held entitled to the property. Finley v Brent, 87 Va. 103.

Property, Title in Trustees, Effect. Land was conveyed to certain trustees in trust for the members of the Methodist Protestant church of Georgetown, to be holden by them aud their successors in office for said church forever, to the proper use aud behoof of said church, agreeably to the Methodist Protestant Church Discipline. The Book of Dis- cipline provided for the election of trustees for each church, and uuide it their duty to hold the property of individual churches in trust for the use and benefit of the members thereof with jiower, when authorized by two thirds of the male members over twenty-one years of age, to dispose of property so held, but on no other condition. It was held that the legal title did not vest in the church as a corpora- tion. Methodist Protestant Church v Bennett, 39 Conn. 293.

MINISTERS

CaU, 373.

Call, ineffective, voluntary contributions, how disposed of, 373.

Calvinistic Baptist Societies, 374.

Changing reUgious belief, 374.

Contract, 374.

Contract, dissolution, 375.

Covenant, what constitutes breach, 375.

Defined, 376.

Defined, Congregational, 376.

Defined, Massachusetts, 377.

Deposed, cannot occupy church, 377.

Deposed, status, 378.

Dismissal, 378.

Dissolving relation, 379.

Ecclesiastical council, 380.

Education, 380.

Examination and license, 380.

Exclusion from church edifice, 381.

Excommunicated, when society may not employ, 386.

ExcoDomimication, expulsion, 387.

Excommunication, 387.

Exemption from jury duty, 387.

First settled, 387.

General rights, 387.

Heresy, 388.

Intruding into chm-ch, 388.

Land granted lor support, 389.

Lutheran, how chosen, 389.

Marriage ceremony, right to perform, 390.

Member of association, 392.

ObUgation, 393.

OflSce, not public, 393.

Office not a vested property right, 393.

Ordination, 394.

Parish, 394.

Parish, incumbent's title to property, 394.

Pastoral relation, 395.

Pastor defined, 395.

372

MINISTERS 373

Pastor's ooinions, 395.

Presbyterian rulej 395.

Priest's profession his property, 396.

Protestant, 390.

PubUc duty, 396.

Regularity of appointment, 396.

Relation to chui'ch, 397.

Relation to society, 397.

Reinstatement, not i^roper remedy, 397.

Removal, 398.

Right to occupy house of worship, 398.

Salary, actions for, 398.

Salary, devise for, 398.

Settlement, 398.

Statedly officiates, meaning, 398.

Support, duty of church, 399.

I'axation, exemption, 399.

Tenure, 401.

Terminating relation, 402.

Call. The term "call" as used in the statutes of New York is derived from the coustitntiou of the Reformed Dutch Church ; and when it is made it must necessarily contain an offer of salary and specify the views and wishes of those tendering it for the proposed incumbent's consideration ; and if the terms be accei)ted, the call becomes the contract between the church and him. Upon the making of the con- tract, the call is complete. Humbert v St. Stephen's Church, N. Y., 1 Edw. Ch. (N. Y.) 308.

A call signed by three elders and one trustee, according to the form ])rovided by the Presbyterian Church, was held to create a claim against the congregation, and the officers signing the call were not individually liable for the salary. It seemed that the call referred exclusively to the spiritual concerns of the congregation. Paddock v Brown, G Hill (N. Y.) 530.

Call, Ineffective, Voluntary Contributions, How Disposed of. Where the officers and majority of a cougregatiou adhere in good faith to a pastor who is subsequently declared by. a court of equity not to be entitled to the office of pastor, the

374 THE CIVIL LAW AND THE CHURCH

oflficers will not be required to account to the legal pastor for the moneys received by them as voluntary contributions for the support of the pastor to whom they adhered. They must, however, account for the contributions and collections for general purposes of the church corporation, such as mis- sionary, educational funds, etc. Bliem v Schultz, 170 Pa. 563.

Calvinistic Baptist Societies. It is the usage of Calvinistic Baptists to ordain their clergymen to the work of evangel- ists or ministers of the gospel at large, and not as ministers of any particular churches or congregations, and they preach the gospel and administer the ordinances by virtue of that general authority, and not in consequence of their connec- tion, by church membershij), with a particular church. Baptist Church, Hartford v Witherell, 3 Paige, Ch. (N. Y.) 296.

Changing Religious Belief. If the minister adopts a new system of divinity, the parish retaining their former reli- gious belief, so that the minister would not have been settled on this present system, the parish have good cause to com- plain. By the change in the opinions of their minister they are obliged to hear doctrines which they disapprove and which they do not believe. 8uch a situation presents a proper case between the minister and the parish for the advice of an ecclesiastical council. Burr v First Parish in Sandwich, 9 Mass. 277.

Contract. As the public laws subsisting at the time and place of the making of a contract, and in force where it is to be performed enter into and form part of it, so the ecclesiastical laws and usages of a particular religious de- nomination enter into and form part of every contract under which the .status of the pastor of a church of that denomina- tion is created. Arthur v Northfield Congregational Church, 73 Conn. 718.

It was held in Charleston v Allen, 6 Yt. 633, that the engagement of a minister was of a temporary and not a permanent character, and he was therefore not tlie first

MINISTERS :575

settled minister within the meaning of the Vermont charter, and was not entitled to the land set apart for the ministry.

Contract, Dissolution. When a minister ceases to be able to perform his ministerial dnties, in consequence of any immorality, or a church censure for such immorality, it may afford a suflQcient reason for the parties mutually to dissolve the relation, or for one of them to treat the contract as forfeited and rescinded by the other. But when both parties to the contract are satisfied, and neither desires the relation to be dissolved, it is not for this court, at the instance of others, not parties to the contract, to seek for understandings and implications by which to avoid it, or to inquire whether it would conduce to the satisfaction of others to have a more acceptable minister, or one more closely connected with the denomination to which he belongs. Smith v Nelson, 18 Vt. 511.

Covenant, What Constitutes Breach. The society made an agreement with a minister which provided, among other things, that he should not "vary or go off from said establisli- ment without a major part of the church and society." The church was established on the Saybrook platform. In an action by the society against the minister for a breach of covenant the court said that it did not appear that the cove- nant had been broken. They might, if they saw fit, release him or alter their establishment ; but otherwise he was bound by this covenant to continue their minister and to conform to the rules and discipline of said church, as then practiced and established, under certain penalties. This was the extent of his covenant, and it did not appear that he had failed in any point. It was no breach on his part that the church, for whose conduct he had not stipulated, whose proceedings he had no power to direct or negate, passed certain votes, and declared certain claims of the consociated churches in Litchfield County unscriptural. It did not appear that the defendant has ever refused to sub- mit to, or administer discipline in said church, or to perform the other duties of a pastor thereof, according to the rules

876 THE CIVIL LAW AND THE CHUKCH

established and practiced therein, at the time of his settle- ment. Ecclesiastical Society of South Farms v Beckwith, Kirby (Conn.) 91.

Defined. A minister is one who having been ordained to the ministry undertakes to perform certain services for another. First Presbyterian Church, Perry v Myers, 5 Okl. 809.

Defined, Congregational. As to what constitutes a minister of the Congregational persuasion, see Attorney General ex rel Abbot v Dublin, 38 N. H. 459, cited in the article on Con- gregational Church.

The term ''Congregational persuasion" in a will means the same as the term "Congregational denomination." Both terms refer to the Congregational polity without reference to creed or doctrines. The meaning of the term "minister of the Cougregational persuasion," must be determined by the court as a matter of law and not by the testimony of witnesses. This term did not have at the time of the trial of this case, nor in 1817, any local meaning peculiar to New Hampshire, nor any peculiar and conventional sense in the usage of any religious sect or party. The term as used in this will is "broad enough to include a Unitarian min- ister, who believes in the Father, Son and Holy Ghost, one in purpose and design, but not the same in substance, equal in power and glory; in the divinity of Jesus Clirist in the sense that he is a divine person, but not in his supreme divinity in any sense in which he can understand the terms ; in the resurrection of Jesus Christ from the dead ; in the atonement in the sense of reconciliation by Jesus Christ, but not in the vicarious atonement; in the personality of the Holy Ghost ; in regeneration by the Holy Spirit, but not in a supernatural regeneration ; that the Scriptures contain a divine revelation, given by inspiration of God, and a per- fect and the only rule of faith and practice, but in no other sense in the full inspiration of the Scriptures; in the future but not in the eternal 2>uiii«hment of the wicked ; in the depravity of men, but not in the total depravity of the entire

MINISTERS 377

race; nor in the doctrines of election, predestination, the perseverance of tlie saints, and justification, as they are set forth in the Assembly's Catechism." Attorney General ex rel Abbot v Dublin, 38 N. H. 459.

Defined, Massachusetts. A teacher of piety, religion, and morality is a minister of the gospel within the meaning of the Massachusetts Declaration of Rights. Baker v Fales, 16 Mass. 488.

Deposed, Cannot Occupy Church. This society was organ- ized under the act of 1813, by the name of ''The Trustees of the First Presbyterian Church of Dunkirk, N. Y.," and in the certificate the incorporators declared themselves to be persons belonging to a church in which divine worship is celebrated according to the rites of the Presbyterian Church. At the time of the commencement of this action the society was in possession of church property in Dunkirk, in which religious meetings were held. The pastor, Mr. Adams, was duly installed according to the rites and cere- monies of the Presbyterian Church. In the summer of 1880 he was, by the action of the Buffalo Presbytery, of which body he was a member, deposed from his holy office on a charge of unsoundness in faith and doctrine. But notwith- standing this deposition Mr. Adams claimed the right to offi- ciate as pastor of this church in Dunkirk, and perform all the offices incident to the position. The trustees, defend- ants, sustained Mr. Adams as pastor of the church. A ma- jority of the members of the congregation concurred in the position taken by the trustees and Mr. Adams.

The plaintiff, who represented the views of the minority, applied for an injunction restraining the trustees from allowing the church to be used by Mr. Adams. It was claimed by the trustees that the action of the presbytery in deposing Mr. Adams was unjust for the reason that he stood loyal to the faith and doctrines of the denomination. The Dunkirk church belonged to the Presbyterian Church, or denomination, as that religious organization is shown to exist in this country, as a separate and distinct ecclesias-

378 THE CIVIL LAW AND THE CHURCH

tical body, with faith and doctrine, rules, usages, and dis- cipline well understood and recognized by all its members. The proceedings against Mr. Adams were initiated. and con- ducted in full compliance with the establislied rules and usages of the presbytery of which he was a member. It was held that his expulsion from the ministry was not the sub- ject of review or criticism in this action, but the court must accept the fact of his deposition, and determine the matter in controversy accordingly. The acts of 1875 and 1S7G do not refer to the local society, but to the church or denomina- tion at large. The duties of the trustees relate to the gen- eral denomination though administering the property owned by the local society. The Dunkirk society had no local usage or custom different from that of the general denomina- tion. The trustees by attempting to maintain a deposed minister violated the duty imposed on them by the statute, and an injunction was properly granted restraining them from allowing the use of the church edifice by a deposed minister. Isham v Fullager, 14 Abb. N. C. (N. Y.) 363.

Deposed, Status. In Robertson v Bullions, 9 Barb. (N. Y.) 64, affirmed 11 N. Y. 243, it was held that a court of equity might, upon the application of a portion of the corporators in a religious society, restrain the trustees from applying the temporalities of the corporation to the support of a person as minister, who has been deposed from the ministry, by the proper ecclesiastical tribunal, and who is still under sentence of dejjosition.

Dismissal. In Sheldon v Congregational Parish, Easton, 24 Pick. (Mass.) 281, the court said there were three estab- lished causes of forfeiture. First, an essential change of doctrine; second, a willful neglect of duty; and, third, immoral or criminal conduct. The contract is a mutual one. Its obligations are reciprocal and dependent. If the pastor neglects or voluntarily renders himself incompetent to per- form his duties to his parishioners, they are absolved from their obligations to him, and thus the contract is terminated. It is not every trifling deviation from dut}', every aberration

MINISTERS 379

from strict propriety which will warrant the dismission of a minister. The refusal of a minister to comply with the request of his parish that he would make exchanges with other ministers in the vicinity is not a sufficient ground for a recommendation by an ecclesiastical council that his con- nection with the parish be dissolved, A clergyman has a right to select his own associates, and to regulate his own intercourse, whether social or professional, without incur- ring a forfeiture of his office. Whether he shall officiate in his own pulpit wholly himself, or invite others, and whom he shall invite, are matters which he may, within reason- able bounds, regulate by his own discretion.

A minister of the gospel or preacher who is employed for a given time by his congregation is entitled to be retained as the minister of the church unless he loses that right by some fault of his own, and for cause; he may be dismissed by the parish, but he cannot be dismissed arbitrarily, as there is no legal distinction between a contract with a min- ister and his congregation and any other civil contract for personal service. Congregation of the Children of Israel v l»eres, 2 Coldw. (Tenn.) 620.

Dissolving Relation. A pastor was called and accepted the call in the form required by the constitution of the church. It was held that the contract was not terminable at the mere option of either party, but that it was to remain in force until terminated by mutual consent or in some of the modes specified in the constitution and prescribed by the laws of the church. Connit v Reformed Protestant Dutch Church, 54 N. Y. 551.

A dissolution of the pastoral relation by order of the classis was sustained by the General Synod.

A written declaration by certain members of the consis- tory refusing longer to serve as deacons or elders was not equivalent to a resignation, especially where they were after- ward recog-nized by the pastor and continued to act in their official capacity; therefore a subsequent attempted election or appointment of officers to take their places Avas invalid

380 THE CIVIL LAW AND THE CHURCH

and ineft'ectiial. Conuit v Ref. Protestant Dutch CLiirch, 54 N. Y. 551.

Ecclesiastical Council. In a proper case between a min- ister and his parish for the advice of an ecclesiastical coun- cil, if either party offer to the other such a council, to be mutually chosen, and the other, without sufficient cause, refuse to join in the choice, the party offering may choose an ecclesiastical council, and the advice of the council thus chosen, and acting fairly and honestly, will justify either party in adopting their result. Burr v First Parish in Sand- wich, 9 Mass. 277.

Education. The training of young men for the Christian ministry includes that education and advancement in learn- ing which form the preliminary preparation and discipline for the sacred office of preaching the gospel. Field v Drew Theological Seminary, 41 Fed. 371 (Ct. C. D. Del.)

Examination and License. Before a student for the min- istry can be licensed he must be examined by the classis to which he belongs, and from which his license is to emanate. Every condidate for the ministry is under the immediate direction of the classis, and is to preach where it directs him. He is not permitted to refuse a call from any congre- gation without first consulting the classis for proper advice. He is to be admitted and ordained to the full ministry after examination by the classis. Before his ordination he is required to subscribe to a formula, promising, among other things, to teach the doctrines of the church, and that, in case he has any difficulties about such doctrines, he will first reveal his difficulties to the consistory, classis or synod, that the same may be there examined, and that he will, on pain of suspension from his sacred office, submit to the judgment of the consistory, classis, or synod, and that either of those bodies can, upon sufficient grounds of sus- picion, require of him an explanation of his sentiments respecting the doctrines and faith of the church. No min- ister relinquishing the service of his own churcli, or being unattached to any particular congregation, shall be per-

MINISTERS 381

mitted to preach indiscriminately from place to place with- out the consent and authority of the classis. No minister can be called to or dismissed from a congregation to accept a call elsewhere without the permission of the classis. When a minister, from old age or other infirmities of mind or bod}^, becomes unable to fulfill the duties of the min- istry, the classis can declare him emeritus, and excuse him from further services, and still require his congregation to furnish him a support. Connit v Ref. Protestant Dutch Church, 54 N. Y. 551.

Exclusion from Church Edifice. In Ackley v Irwin, 71 Misc. (N. Y. ) 239 it was held that the vestry had no power to exclude the rector from the possession and control of the church edifice. It was further held that the rector of an incorporated Protestant Episcopal church was a member of the body corporate and could not be removed by a vote of the vestry. Following G9 Misc. (N. Y.) 56, where an injunction was granted pending the trial of the action.

In State ex rel McNeill v Bibb Street Church, 84 Ala. 23, the court refused to grant a writ of mandamus on behalf of a minister regularly appointed to a Methodist Protestant church, and compel the church to receive him as its pastor. There was no civil right involved, but only an ecclesiastical question, for which the denomination furnished adequate tribunals.

This society (Zion's Church, Bay City, Michigan) was organized in 1878, as a branch of the Evangelical Associa- tion, and for a time received the pastor and presiding elder appointed by the Michigan Annual Conference.

In 1882 land was conveyed to this society. In 1881) a new house of worship was erected by the society with funds raised by subscription from members of the denomination, Ijreachers, and others. The corner stone was laid according to the ceremonies prescribed by the general denomination and was dedicated by a bishop of that denomination. In 1889 the Michigan Annual Conference appropriated |500 to aid in the erection of a parsonage by the Zion Society at

382 THE CIVIL LAW AND THE CHURCH

Bay City. Other funds were raised by subscription, and the parsonage was erected. The Michigan Annual Conference in 1893 appointed, in the regular order, a presiding elder and a pastor to Zion's Church. Such presiding elder and pastor sought to use the church edifice for the purpose of public worship but were excluded therefrom by trustees of the church and their adherents in the congregation, and the pastor was also excluded from the parsonage. Another pastor, not regularly appointed, was permitted to use the parsonage and to occupy the pulpit, and the local church authorities threatened to withdraw the society from the jurisdiction of the Evangelical Association and become inde- pendent, and notified the Michigan Annual Conference accordingly.

In an action against the trustees for thus unlawfully excluding the pastor and presiding elder from the right to use the church edifice and parsonage it was held that the local society was a voluntary association, connecting itself with the General Evangelical Association, and was bound by its rules and discipline. Tlie local society had no right to select its own pastor, but was bound to accept the pastor appointed by the bishop and presiding elders. The trustees had no power to exclude the pastor and presiding elder from the church or the pul]jit, nor deprive them of collections and means of support provided by the rules of the church, nor could the trustees prevent the pastor from occupying the parsonage. Fuchs v Meisel, 102 Mich. 357.

By the rules and ecclesiastical government of the Evan- gelical Lutheran Church the right and power to remove or suspend a pastor is vested solely in the synod (in this case Buffalo), and its ministr}^ for cause, and the local churches, their trustees and officers, united thereto, are expressly pro- hibited from making such removal or suspension. In Gram V Prussia Emigrated Evangelical Lutlieran German Society, 36 N. Y. 161, the plaintiff". Gram, pastor of the church, was excluded from the chui-ch edifice by the action of the trus- tees, wliich was ratified at the same meeting by a vole of a

MINISTERS 383

majority of the members of the society, and the building was closed and the doors locked by the trustees. There- upon the trustees and a majority of the members of the society renounced the ecclesiastical government of the Synod of Buffalo and refused to permit the plaintiff to occupy the pulpit or to exercise the functions and discharge the duties of pastor of the church. It was held that the pastor was not entitled to an injunction restraining the local society and its trustees from employing another jjastor.

A minister who had been appointed to this church was rejected by tlie society, and he applied for a mandamus to compel the society to rescind its resolution refusing to receive him and to restore him to his office as minister or pastor, with all his rights and emoluments, and to compel the church and trustees to place him in charge of the church edifice and parsonage. The application was denied on the grounds that the church property was vested in and subject to the jurisdiction of tlie local church ; that no salary had been agreed on and that no rents of the church had been directed to be applied to the payment of the pastor's salary so as to vest in him a temporal right of which civil courts could take jurisdiction, and on the additional ground that the questions involved in the pastor's claim had not been decided by any church tribunal. State ex rel McNeill v Bibb St. Church, 84 Ala. 23.

In Brunnenmeyer v Buhre, 32 111. 183, it appeared that the pastor had tendered his resignation, but that at a meet- ing of the church, regularly called, a resolution was adopted requesting him to withdraw his resignation, and it was with- drawn. He thereby continued to be the regular pastor of the church, and he, and those desiring to attend upon his min- istrations, had the right to occupy the church edifice for the purpose. The trustees closed the church and prevented its use by the pastor and those affiliating with him. It was held that the trustees had no power to close the church, and an injunction was accordingly^ granted restraining them from interfering with the regular use of the church.

;58t THE CIVIL LAW AND THIC CHURCH

Laud was conveyed to trustees oi' the First German Society of the Methodist Episcopal Church of Wyandotte, Kansas, in trust to erect on such land a house or place of worship for the use of the members of the Methodist Epis- copal Church in the United States of America, according to the rules and discipliue which from time to time may be agreed upou and adopted by the ministers and preachers of the said church at their General Conferences in the United States of America, and in further trust that they shall at all times, forever after, permit such ministers of the gospel and preachers belonging to the said church as shall from time to time be duly authorized by the General Conferences of the ministers and preachers of the said Meth- odist Episcopal Church, or by the Annual Conferences authorized by the General Conference of the ministers and preachers of the said Methodist Episcopal Church, or by the Annual Conference authorized by the said General Confer- ence to preach and expound God's Holy Word therein.

A church edifice was erected accordingly. By such con- veyance and the erection of the building a trust was created which a court of equity would enforce. It was held that the trustees could not lawfully exclude a regularly appointed pastor from the right to hold service in the church. A writ was granted compelling the trustees to admit the pastor to their church edifice, and to permit him to occupy and preach in its pulpit, and to refrain from all interference with him in the discharge of his duties therewith connected. Feizel v Trustees of the First German Society of M. E. Church, 9 Kan. 592.

Under the Methodist Episcopal Church system neither the trustees nor a majority of the congregation can lawfully exclude from the local house of worship and pulpit a min- ister regularly appointed to the charge according to the rules, regulations, and discipline of that denomination.

The society owned and occupied a house of worship which was built on land conveyed to trustees for the use of the members of a Methodist Episcopal Church according to the

MINISTERS :;85

rules and discipline prescribed by the General Conference. The trustees, assuming to represent a majority of the mem- bers of the congregation, excluded from the church edifice a minister regularly appointed to that charge, and prevented his occujjying the house for the purposes of worship. On behalf of the minister a mandatory injunction was granted restraining the trustees from interfering with the use of the house by the minister or the people according to the customs of the denomination. Whitecar v Michenor, 37 N. J. Eq. 6.

In People ex rel Peck v Conley, 42 Hun. (N. Y.) 98, o N. Y. S. Rep. 373, it was held that it was the duty of the Irustees of the First Methodist Episcopal Church of Cohoc- ton, New York, to receive a minister duly appointed by the bishop according to the laws and usages of the denomina- tion, and to o]>en tiie nieetingiiouse to him for the purpose of conducting divine worship therein in conformity to the tenets and discipline of the religious denomination to which lie belonged and to which the corporation was attached, and that in refusing to open the meetinghouse the trustees vio- lated their duty, and a writ of mandamus was a proper remedy to put the minister in possession of the pulpit to which he was entitled. The trustees refused to receive a minister appointed by the bishop in the usual manner, claim- ing that in regard to receiving a preacher the society was independent of tlie higher church authorities, and that it was optional w^ith the societj'^ whether it should receive such minister as the bishop or the presiding elder at the Annual Conference might appoint for them.

It was held in People v Steele, 2 Barb. (N. Y.) 397, that the itinerancy of the priesthood enforced h\ the power of the episcopacy was the established practice of this denomina- tion, and that the right of the bishops to appoint a preacher for the different churches was well settled ; consequently, the refusal of the trustees to receive a preacher appointed by the bishop was an act of insubordination to the ecclesiastical tribunals of the church, and in violation of one of the

386 THE CIVIL LAW AND THE CHURCH

injunctions of its Discipline, whicli refusal authorized the issuing of a peremptory mandamus commanding them to admit the preacher thus appointed into the church.

The president of an Annual Conference has the right dur- ing a recess of a Conference to employ and station ministers or to fill a vacancy without the consent of tiie church. A minister so appointed is entitled to be admitted to the church edifice in order to conduct therein religious serv- ices according to the rules and discipline of the denomina- tion, and a writ of mandamus was issued to compel the trustees of the church to open its house of worship for this purpose. Robinson v Cocheu, 18 App. Div. (N. Y.) 325.

In Lynd v Menzies, 33 N. J. Law, 1 62, it was held that the wardens and vestrymen of a Protestant Episcopal Church could not lawfully exclude a rector from the house of wor- ship, and the parochial schoolhouse, but that by virtue of his office he had a right to occupy the property of the church in connection with the performance of his duties as rector. A judgment for damages recovered by him in an action at law against the wardens and vestrymen, was sustained.

Excommunicated, When Society May Not Employ. In Parish of the Immaculate Conception v Murphy, 89 Neb. 524, it appeared that a Roman Catholic priest was excommuni- cated and a successor was duly appointed as rector of a local society. A large majority of the trustees and congregation desired to continue the services of the excommunicated priest, but it was held that the temporalities of the society must be administered according to the general laws and usages of the Roman Catholic Church, under which the higher authorities had the right to excommunicate the priest and appoint a successor. The court suggested that the friends of the excommunicated priest might, on their own account, employ such priest as their minister and attend his ministrations, but that they could not divert the property from the purpose to which it had been consecrated. It was also held that a minority of the trustees could maintain an action in the name of the corporation to enjoin the majority

MINISTERS 387

from diverting the property to uses not sanctioned by the laws and usages of the church.

Excommunication, Expulsion. The question whether a Ro- man Catholic jjriest was regularly excommunicated and expelled was held not to be within the jurisdiction of a court of equity, but was exclusively a question for the church itself, and the judgment of its regularly constituted tri- bunal was binding on the courts. St. Vincents Parish v Murphy, 83 Neb. G30.

Excommunication. In Mason v Lee, 96 Miss. 186, it was held that a general counsel consisting of rejiresentatives from several local churches had no power to excommunicate a minister for heresy of one of them, without proof that the counsel had authority over the particular local church, which was congregational and independent in its organiza- tion and form of government.

Exemption from Jury Duty. A person who was a regularly ordained minister of the Methodist Episcopal Church, but not settled over a particular church, but belonged to the local connection and was required to officiate whenever called upon to preach to any church of his denomination situated within a convenient distance of his place of resi- dence, was held to be a settled minister and exempt from jury duty under the Massachusetts act of 1812, chap. Ill, sec. 2. Commonwealth v Buzzell, 16 Pick. (Mass.) 153.

First Settled. To constitute a first settled minister in a town, so as to entitle the person to the right, as usually reserved by the \"ermont and New Hampshire charters, for the first settled minister, there must be a specific engage- ment between him and the people that he should remain per- manently in the performance of the duties of a minister in said town. Charleston v Allen, 6 Vt. 633.

General Rights. In England, the parson as such has a freehold estate in the glebe, the tithes, and other dues of the parish. By induction he becomes fully invested with these, and with the right to use them and demand them ; but in this country there are no such rights or interests into which a

388 THE CIVIL LAW AND THE CHUKCH

clergyman can be inducted. The property of the church, its revenues, its glebe, Its parsonage, if it have any, its church edifice, and the like, belong to the corporation, and the clergyman has no rights or estate in any of them, other than such as are conferred by express contract, excei)t perhajjs the control and possession of the church during divine serv- ice, as long as the building is retained by the society for that purpose, although even this would rather seem to appertain to the vestry. Youngs v Ransom, 31 Barb. (N. Y.) 49.

Heresy. If a minister adopts and advocates religious views at variance with the articles of faith of the denomina- tion to which he belongs, he forfeits his right to use the church edifice for their dissemination. Isham v Trustees of the First Presbyterian Church of Dunkirk, 63 Howard's Pr. 465.

Intruding into Church. The church edifice occupied by the society was leased from the Warburton Avenue Baptist So- ciety under a contract which authorized the lessor to termi- nate the lease at any time in case of any disagreement in the congregation or the board of trustees of the lessee, or other cause which in the opinion of the trustees of the lessor might make such termination expedient. There was dis- sension and dispute between the minister and his congrega- tion. The pulpit was declared vacant by the lessee church and the minister excluded from the church edifice. After- ward the minister, on an occasion when the house was open, entered the pulpit and insisted on occupying it and conduct- ing the service. He was removed by a trustee of the lessor and brought an action for damages. The facts showed that the keys of the church had been surrendered to the lessor and that this society and its trustees were in actual posses- sion of the property. It was held that the removal of the minister was justifiable and that even if, as claimed, the contract between the lessee and the minister had been unlawfully terminated by the church, the minister had no right to enter upon the premises, but must resort to an

MINISTERS 381)

action agaiust the society for damages. Conway v Car- penter, 80 Hun. (N. Y.) 429.

A clergyman wiio is a mere trespasser or intruder in a cliurch, the congregation of which does not accept his reli- gious doctrines or tenets, may be treated as any ordinary tresi)asser. Rex v Wasyl Kai)ij, 15 Manitoba Re. 121.

Land Granted for Support. The object of the government in granting a right of land to the first settled minister was to encourage a minister to settle, and preach the gospel among the people of the town, while the lands were unculti- vated and the inhabitants few in number and unable to con- tribute largely for the pecuniary support of a minister. This must, of course, answer the double purpose of encour- agement to the minister to settle among them and assist the l>eople to pay him.

The people have no control over this property directly, so as to give a deed that would convey it; yet it jiroduces as much for their benefit as would the same amount of any other property which a minister might receive on settling in town. The people of the town have an important interest also, for the nature of its grant will permit them to exercise it, in selecting a minister whose tastes and manners, talents and pietj^, are calculated to render him useful among them.

It is not sufificient that a man who is a minister should take up his residence in town and abide there, even during life. It is not sufficient that he should be settled in town, as a man, or as a farmer or mechanic, but he must be settled as a minister. The settlement must be for the life of the minister. There must be ordination and also a contract. Dow V Town of Hinesburgh and Weed, 2 Aikens (Vt.) 18.

Lutheran, How Chosen. This society was incorporated by a special act in 171)4:, and was composed of all those who "now are, and all those who shall be hereafter, duly admitted or become members" of that society according to tlie rules, orders, and constitution of the same to be formed.

In February, 1788, the Legislature incorjtorated fifteen churches in the back part of the State, under the name of

390 THE CIVIL LAW AND THE CHURCH

The Ecclesiastical Union of the Several German Protestant Congregations, composed in part of Lntherans, in part of other German Reformed, or Presbyterians.

In 1824 a new synod was organized composed in part of representatives of the original sjaiod of 1788, but it did not appear that St. Peter's was represented in this synod, but became attached to it.

In 1837 the relation between the synod and the pastor of St. Peter's Church was dissolved by the synod and the min- ister was excluded from further service in this congregation. Dissensions having arisen in St. Peter's Church, an action was instituted by one party against the other, to determine which constituted the true congregation according to the original organization. The exclusion of the minister from the synod was regular, but it had no effect on the congre- gation of which he still continued to be pastor. Lutheran ministers are not independent, nor are they appointed by the congregation only. Congregations who, in connection with their minister, are not acknowledged by some synod, are not regarded, whatever they may call themselves, either by Lutherans, or others well informed in sectarian distinc- tions as Lutherans, or as having any status in that de- nomination. St. Peter's was not independent, but acknowl- edged synodical authority. This was the fair import of its charter, and the majority had no power to pervert the charter and establish an independent organization. The majority had no power to impose a new contract on the minority. The court said the defendants had not seceded from the synod, for the reason that the synod had not taken the necessary legal steps to establish the relation of the defendants to the church. The bill was dismissed. Harmon V Dreher, 1 Speer Eq. (S. C.) 87.

Marriage Ceremony, Right to Perform. Under the North Carolina statute authorizing a marriage ceremony to be per- formed by a regular minister of the gospel of every denom- ination having the "cure of souls," etc., it was suggested by the court that the phrase "cure of souls" did not imply the

MINISTERS 391

necessity that the minister should be the incumbent of a church living, or the pastor of any congregation in partic- ular, but the phrase imports that the person is to be some- thing more than a minister or preacher merely; and that he has faculty, according to the constitution of his church, to celebrate matrimony, and to some extent, at least, has the power to administer the Christian sacraments as acknowl edged and held by his church. State v Bray, 35 N. C. 289.

A person ordained a deacon according to the usages of this denomination (Methodist) and commissioned by the bishop of that church to preach, and to administer the ordinances of marriage, baptism, and burial of the dead, is an ordained minister within the Connecticut nmrriage act. Where a j)erson so ordained and commissioned resided constantly for nmny years in the town, having charge of the Methodist church therein ; preaching to them, at their re- quest, and statedly exercising all the j)0wers and privileges authorized by his commission ; and they providing for his support, by voluntary contributions, during which period he o\^^led and considered them as his church, and they owned and considered him as their minister, and local deacon, it was held that such person was settled in the work of the ministry within the meaning of that act. Kibbe v Autram, 4 Conn. 134.

A regularly ordained Baptist minister and a Methodist minister are authorized to i)erform marriage ceremonies under the Massachusetts statute. Commonwealth v Spooner, 1 Pick. (Mass.) 235.

A minister ordained over an unincorporated religious society composed of membei-s belonging to dilferent towns is not a stated and ordained minister of the gospel within the meaning of the Maine act of 178G, chap. 3, relative to the solemnization of umrriages. Ligonia v Buxton, 2 Me. 102.

In Connecticut it was held that a minister could not per- form a marriage ceremony unless lie was an ordained min- ister and settled in the work of the ministry in some place

302 THE CIVIL LAW AND THE CHURCH

in the State. Roberts v State Treasurer, 2 Root (Couu.) 381.

lu earlier years in New England ordination in the Congre- gational Church was considered to be the mere induction of a person into the office of minister for a certain church, and after the termination of this pastoral relation that the virtue or effect of the ordination ceased also. But in 1679 "tlie neighboring ministers at Cambridge" passed a vote tliat one of their persuasion once duly elected and ordained as a minister in any Evangelical church should be ac- knoAvledged in all of them as an ordained minister. Under this rule a minister ordained in one church was entitled to become a minister of another church without a new ordina- tion, and finally it was held by the church that the force and effect of the first ordination always continued after the pastoral relation was dissolved.

The I'resbyterian Church in New England did not apply the rule of ordination so strictly as the Congregationalists, but held, in substance, that a minister once ordained con- tinued in this relation without a reordination until his ecclesiastical relations were dissolved. A Presbyterian min- ister in New Hampshire who had been elected as public teacher in a local church, but whose ministerial functions had there been discontinued, but who afterward occasion- ally performed ministerial duties, although not settled over any particular church, performed a marriage ceremony in the county where he resided. In an action to have the mar- riage declared void it was held that the minister probably had authority to solemnize the marriage; but if not, the marriage was valid as a civil contract, and was sustained on the ground, among others, that the statute of New Hamp- shire did not require a solemnization by a minister or a magistrate. Town of Londonderry v Chester, 2 N, H. 268.

Member of Association. The minister in a legal point of view is a voluntary member of the association to which he belongs. The position is not forced upon him; he seeks it. He accepts it, with all its burdens and consequences; with

MINISTERS 393

all the rules, laws, and canons, then subsisting, or to be made by competent authority, and can, at pleasure and with impunity abandon it. If they were merciful and regardful of conscientious scruples, he knew it ; if they were arbitrary, illiberal, and attempted to chain the thoughts and con- science, he knew it. They cannot, in any event, endanger his life or liberty; impair any of his personal rights, deprive him of property acquired under tlie laws, or interfere with the free exercise and enjoyment of religious profession and worship, for these are protected by the constitution and laws. While a member of the association, however, and having a full share in all the benefits resulting therefrom, he should adhere to its discipline, conform to its doctrines and mode of worship, and obey its la\\s and canons. If reason and conscience will not permit, the connection should be .severed. Chase v Chenej', 58 111. 501).

Obligation. A minister of the gospel is .separated from the world by his public ordination, and carries with him constantly, whether in or out of the pulpit, superior obliga- tions to exhibit in his whole deportment the purity of that religion which he professes to teach. Sheldon v Congrega- tional Parish, ICaston, 24 Pick. (Mass.) 2S1.

Office, Not Public. A minister who was regularly calle<l and settled, was held not liable to taxation under the Penn- sylvania act of 1841, providing for a two per cent tax on official salaries in excess of $200. The minister did not hold a public office. Commonwealth v Cuyler, 5 Watts & S. (Pa.) 275.

Office Not a Vested Property Right. A clerg^-man has no vested ])ro])erty right in his office to exercise the functions of his ministerial office to the end that he may earn and receive a salary for his services. The right to receive the salarj' is dependent upon the continued performance of his duties as minister; and if he becomes disqualified by sus- pension or deposition from office for any ecclesiastical otfense, the riglit to receive the salary will cease as the consequence of the judgment against him. The sentence of

394 THE CIVIL LAW AND THE CHURCH

the ecclesiastical court, in a proper case, deprives him of his clerical position, and with it all right to future salary and emolument. Satterlee v U. S., 20 App. D. C. 393.

Ordination, It is usual in settling a minister, if he is a novitiate, to ordain him ; if he has been ordained, to install him — the condition being previously agreed upon. The solemn ceremonies on such occasions seem to indicate that the minister is wedded to the church and people who have chosen him. Other forms less imposing might, perhaps, suf- fice; but in some shai)e the shepherd must contract an obli- gation to abide by the flock, or he will not be entitled to the reward. Charleston v Allen, G Vt. 633.

Parish. The plaintiff, who was ordained according to the usage of the sect to which he belonged, but not as minister of any particular church, settled in the town of Harmony and was received as pastor of a church composed in part of inhabitants of that town and in part of inhabitants of other towns. But this relation did not make him a minister of the town or parish. That relation could not be assumed except by the consent of the town or parish. It was held that he was not the first settled minister of the town of Harmony under the provisions of the statute, and was not entitled to the property set apart to ministers. Bisbee v Evans, 4 Me. 374.

Parish, Incumbent's Title to Property. Under the Massa- chusetts parish system a donation of land to the use of the ministry and of a parsonage for the same purpose are for ministers in their official capacity, and are held by the min- ister of the parish or corporation for whose particular bene- fit the gift or appropriation is made as an estate in fee simple to him and his successors. Brown v Porter, 10 Mass. 93.

The minister of a parish, settled for life or for a term of years is seized of an estate of freehold upon condition in the ministerial land. He is answerable for waste and may main- tain trespass. The right of action being vested in him per- sonally, an action commenced by him before may be prose-

MINISTERS 395

cuted to final judgment after the ministerial relation has been dissolved. Cargill v Sewall, 19 Me. 288.

Pastoral Relation. A minister ought to be acquainted with the people of his charge, that from a knowledge of their cir- cumstances, habits, and characters, he may adapt his in- structions to their profit. His duty it is to reprove vice, to discountenance folly, and to stem the torrent of corruption wherever it appears ; and when, by a life of exemplary piety and diligence, he is borne down by sickness or the infirm- ities of age, it is fit and desirable that he should have his way smoothed by kind offices, and a competent support, and not be dismissed to poverty and neglect. Whitney v First Ecclesiastical Society, Brooklj^n, 5 Conn. 405.

Pastor Defined. A pastor is one who has been installed according to the usage of some Christian denomiimtion in charge of the specific church or body of churches. First I'resbyterian Church of Perry v Myers, 5 Okl. 809.

The term "jiastor" is correlative to flock and is an expres- sive metaphor. The flock is composed of all whom it is the minister's duty to instruct and reprove. And these are the inhabitants of the parish ; they compose the flock, of which the minister is the pastor. Burr v First Parish in Sand- wich, 9 Mass. Re. 27G.

Pastors' Opinions. The individual opinions of the pastors placed in authority and charge over the various churches of the denominations respectively should be the projjer subject of ecclesiastical control and discipline, to be treated of and regulated by the various authoritative church bodies and jurisdictions to which each respectively belongs. First Presbyterian Church of Perry v Myers, 5 Okl. 809.

Presbyterian Rule. The selection of a pastor is primarily in the congregation, but must be approved by the j)resbytery and accepted by the minister selected; and its trustees are not vested with any power ex officio to employ ministers or to contract as to salaries. This power may be exercised by them only when authorized by direct vote of the congrega- tion, composed of those who are authorized by the laws of

396 THE CIVIL LAW AND THE CHURCH

the cimrcli to participate in such meetings. But a stated supply is not a pastor. His selection is made by the presby- tery. He may be commissioned as a missionary by the mis- sion board, and his compensation fixed in whole or in part by the board. Stated supplies are under the charge and control of the presbytery in whose jurisdiction they work, and have only such rights and prerogatives as may be ex- pressly conferred on them by the Presbytery. Myers v First Presbyterian Church, 11 Okl. 544.

Priest's Profession His Property. A man's profession is his property. The j)rofession of a priest is his property, and a prohibition of the exercise of that profession by his bishop, without accusation or hearing, is contrary to the law of the , land. The right of a priest to the revenues of his church derived from pew rents and voluntary offerings, though un- certain in amount, and there is no specified salary, is a right of property which the law will recognize. O'Hara v Stack, 90 Pa. St. 477 ; see 98 Pa. 213, where this case is explained.

Protestant. The term "Protestant ministers" means those who profess Trinitarian doctrines. Attorney-General v Drummond, 3 Dr. & War. (Eng.) 162.

Public Duty. In North Carolina it was held that ministers of the gospel residing in an incorporated town are not ex- empt from performing the duty of patrol, when required to do so by the proper authorities, according to the corporation ordinances. There was no statutory exemption from this service, and the objection that it was inconsistent with the minister's duties to his church was overruled, there being no evidence to show how the police service would interfere with his ministerial duties. Corporation of Elizabeth City V Kenedy, Bush (N. C. Law) 89.

Regularity of Appointment. Two men were appointed as pastors of the same church by rival bodies, each claiming to be the regular Annual Conference of the Evangelical Associa- tion. The title to the office was held to depend on the ques- tion as to which of the two bodies claiming to be the Annual Conference was in fact the lawful and regular Annual Con-

MINISTERS 397

fereuce, and the decision of this question was held to depend on the action taken by the General Conference. Schweiker

V Husser, UG 111. 399.

Relation to Church. A minister has no particular relation to his church (Congregational) but as a member of it, and his right to administer the ordinances he claims from his ordination, which right may remain after his dismission from the church. Burr v First Parish in Sandwich, 9 Mass. Pe. 276.

Relation to Society. In the Methodist Episcopal Church the relation between a minister appointed to a particular charge and the society to which he is appointed is not that of master and servant. He was not hired by the local cor- poration, and having been appointed according to the rules of the general church, there was no contractual relation be- tween him and the local society. AVhile the church could not itself, through its own officers, exercise power over its ministers, it was not without the means of relief from his ministrations when, for sufficient cause, they should become otherwise than religiously fit for or satisfactory to the con- gregation. Bristor v Burr, 120 N. Y. 427.

Reinstatement, Not Proper Remedy. 1 1 is settled that man- damus will not lie to restore a minister to his clerical rights and functions, where he has been wrongfully excluded there- from by the trustees and congregation of the church, if he has no temporal right in such office, and no fees or emolu- ments are thereto attached. Mandanjus lies for the enforce- ment of legal rights only, and not for those of a mere spir- itual or ecclesiastical nature. Mandamus is a legal reniedj' for the enforcement of a legal right. Citing Union Chu. etc.,

V Sanders, 1 Houston (Del.) 100. State ex rel v Cummins, 171 Ind. 112.

Mandamus will not lie to compel the reinstatement of a minister who has been suspended from his office, on the ground that he had no proper notice of trial, where it ap- pears that he had actual notice of the time and place of trial, and was present with his counsel and participated

n08 THE 0^^'1L LAW AND TITE CHURCH

therein. Dempisey v North Micliigan Conference, Wesleyan Methodist Connection of America, 98 Mich. 444.

Removal. The civil conrts have no jnrisdiction of eccle- siastical controversies involving no property rights. This case involved the removal of the i^astor and appointment of his successor under color of ecclesiastical authority. It was held that the church tribunals had exclusive authority. Travers v Abbey, 104 Tenn. 065.

Right to Occupy House of Worship. A vacancy in the pul- pit occurring during a recess of an Annual Conference was filled by appointment by the president of the Conference. This appointment was sustained and the minister was held entitled to be admitted to the church edifice for the purpose of conducting religious services. Robinson v Cocheu, 18 App. Div. (N. Y.) 325.

Salary, Actions for. See Actions, Minister's Salary,

Salary, Devise for. A devise in 1G84 to the Netherland Dutch Reformed Church in New York (that being the only society of that denomination in New York at that time) for the support and maintenance of the minister of the church was held to be limited to that society only, and could not be used for the payment of the salaries of other branches of the same denomination afterward established. The devise was for the exclusive benefit of the society named in the will. Attorney General ex rel. Marselus v Dutch Reformed Church, New York, 30 N. Y. 452.

Settlement. From the ancient and immemorial usage of Congregational churches, before the parish settle a minister, he preaches with them as a candidate for settlement, with the intent of declaring his religious faith, that his hearers may judge whether they approve his theological tenets; and if he is afterward settled, it is understood that the greater part of the parish and the minister agree in their religious sentiments and opinions. Burr v First Parish in Sandwich, 0 Mass. Re. 276.

Statedly Officiates, Meaning. A "clergyman who statedly oflSciates" designates one who, either as regularly inducted

MINISTERS 399

pastor or as stated supply, acts by superior ecclesiastical authority. Trustees v Sturgeon, 9 Pa. St. 321.

Support, Duty of Church. That it is the duty of a religious denomination to provide a support for its teachers is a fact that is recognized with a few exceptions all over Christen- dom. It is said, however, to be especially binding upon the Catholic Church, for the reason that its priests are debarred by its canons, and by their ordination vows, from engaging in any secular employment, and that from this vow not even the bishop can absolve them. The duty of the church to support its priests must have some qualification. The right to support may depend upon the manner in which the priest performs his official duties, and the nature of his walk and conversation in life. If a priest, by reason of his equiv- ocal conduct, becomes unfitted to perform his priestly func- tions, it is difficult to see by what rule of ecclesiastical or civil law he is entitled to a salary or support. Tuigg v Shee- han, 101 Pa. St. 363.

Taxation, Exemption. A person elected by a Methodist society to be one of their local preachers, and ordained as a deacon of the Methodist Episcopal Church, is a minister of the gospel within the Maine act of 1811, exempting min- isters from taxation. It is sufficient if such minister be settled over any religious society, tliough it be composed of members resident in several towns. It is not necessary that such society be under any legal obligation as such to pay him a fixed salary. Baldwin v McClinch, 1 Me. 102.

In Weaver v Devendorf, 3 Denio (N. Y.) 116, it was held that if a minister owned property worth more than |1,500, an action would not lie by him against the assessors mak- ing an assessment to recover damages on the ground that they had refused to give him the benefit of the exemption. The minister having property exceeding the exempted amount, the assessors had jurisdiction to make an assess- ment, and it would be presumed that they had made the de- duction required by law.

A person ordained as a Congregational minister in Con-

400 THE CIVIL LAW AND THE CHUKCH

uecticut, dismissed iu regular standing and installed over a town in this State, is within the statute of 1821, chap. 107, sec. 6, exempting settled ministers from taxation. A person was settled as a Congregational minister over a town w^ith leave to dissolve his connection upon giving six months notice. Some of his parish formed themselves into a new unincorporated society, and his church voted to unite them- selves with them. The new society gave him a call to settle with them, which he accepted. He then gave notice as above mentioned to the parish, and after the six months expired he preached with the new society as their minister, but without any new ceremony of ordination or installation. Soon after he so began to preach the church was, by an ecclesiastical council, formed into two, without precedence to either, one of which was united with the new society and the other with the parish. It was held that such minister by virtue of the statute of 1811, chap. 6, sec. 4, and statute 1821, chap. 107, sec. 6, was exempted from taxation for the amount of property specified in this last statute. Gridley V. Clark, 2 Pick. (Mass.) 403.

In Vail V Owen, 19 Barb. (N. Y.) 22, it was held that the assessors have jurisdiction even if the minister's property is all exempt and that they are not liable in an action to re- cover back the tax paid by the minister, overruling Prosser v Secor, 5 Barb. (N. Y.) 607.

A minister in good standing but who by reason of old age and accompanying infirmities, including growing impair- uient of vision which resulted in total blindness, had for fifteen years withdrawn from the active duties of his pro- fession but during all that period had performed its func- tions occasionally as opportunity offered. He was not en- gaged in any secular occupation. It was held that, being a minister and engaged in no other calling, he was en- titled to the exemption, notwithstanding he was disqual- ified for active duty by age and infirmity. People v Peter- son, 31 Hun (N. Y.) 421.

The estate of an ordained minister of the gospel not

MINISTERS 401

settled over a corporate society is not exempt from taxation. Kidder v Frencli, Smith N. H. 155.

In Massachusetts an ordained minister not settled in any particular parish is not exempted from taxation under the act of 1811, chap. 6. Ruggles v Kimball, 12 Mass. 337. See also article on Taxation, subtitle Minister.

Tenure. The settlement of a minister over a Congrega- tional church and society, without any limitations as to its continuance or any express stii)ulations as to the mode of its dissolution, is a contract for life, determinable only in the manner and for the causes established by law. Sheldon V Congregational Parish, Easton, 21 Pick. (Mass.) 281.

A minister settled in a parish for an indefinite term does not hold his office at the will of the pari.sh. Avery v Tyring- ham, 3 Mass. IGl.

Where an ecclesiastical society voted to call the plaintiff, who was then a preacher of the gospel and a candidate for settlement, to settle with them in the work of the gospel ministry, and to pay the sum of sixty-five pounds annually as a salary, and the sum of three hundred pounds as a settle- ment, payable in three annual installments, the jjlaintitf accepted the call, and agreed to settle with such society on the terms proposed, and in February, 1756, he was duly ordained and set apart to the work of the gosj^el ministry as pastor of such society and of the church therein ; it was held that the pastoral office, with which the plaintiff thus became vested, was an office not determinable at the will of either party but for the life of the incumbent. TVTiitney v First Ecclesiastical Society, Brooklyn, 5 Conn. 405.

In Arthur v Norfield Congregational Church, 73 Conn. 718, it was held that the original contract between the par- ties con.stituted a settlement for the term of the minister's life, subject to the jn'ovision for terminating the pastoral relation on three months notice, and also to any right which the church might have of terminating it for cause, in con- formity to the rules and usages of the Congregational de- nomination of Christians. A subsequent arrangement by

402 THE CIVIL LAW AND THE CHURCH

which the pastor was employed for one year was deemed a modification of the original settlement.

Terminating Relation. Considering a church, gathered in a religious society in the sense in which it is used, and in which alone it can be used, in this relation, it seems to fol- low conclusively that when a minister ceases to be the teacher of piety, religion, and morality in such society he ceases to be the pastor of such church. Stebbins v .Jennings, 10 Pick. (Mass.) 171.

MISSIONS

Mission defined, 403.

Missionary defined, 403.

Bequest, uncertain, 404.

Legatee not capable of taking bequest, 404.

Taxation of bequest, exemption, 404.

Testator's intention, 405.

Mission Defined. "The word 'mission' is well understood in common language. For more than forty years the differ- ent American churches have been engaged in establishing and maintaining missions in various parts of the heathen world. Hardly a religious denomination exists which is not employed in one or more of such benevolent enterprises. The purpose is to civilize, Christianize, and educate the natives of those countries where the missions are estab- lished. This is accomplished by preaching, by oral instruc- tion, and by schools." "The whole machinerj^ of the work at a selected spot in a foreign land is called a mission. It is, in fine, a Christian school." A legacy to a mission is suflScienth' definite. Domestic and Foreign Missionary So- ciety's Appeal, 30 Pa. St. 425.

Missionary Defined. The word "missionary," whether as a noun or adjective, embraces not only the conception of a religious, charitable, or educational work or worker, but also of such a work done through philanthropic motives, for the welfare of others too poor, too unappreciative, or too indifferent to do it themselves, and by persons supported or means furnished in part at least by some agency of which those for whom the work is done do not form a sustaining part. The derivation of the v/ord implies a sending, and so it is that in both technical and common speech the idea of a sending forth, and sending forth to the service of others, the

403

404 THE CIVIL LAW AND THE CHURCH

doing of a work for others, is associated with its meaning. Bulkeley v Worthington Ecclesiastical Society, 78 Conn. 520.

Bequest, Uncertain. A bequest "to the propagation of the gospel in foreign lands" was held void for uncertainty. Carpenter v Miller, 3 W. Va, 174.

A bequest of a fund to be applied to foreign missions and to the poor saints, to be disposed of as the executor may think the proper objects according to the Scriptures, the greater part, however, to be applied to missionary purposes, with a further residuary provision for home missions, was held too indefinite and therefore void. A bequest for reli- gious charity must be to some definite purpose, and to some body or association or persons having a legal existence, and with capacity to take. Or it must be to some such body on which the Legislature shall, within a reasonable time, con- fer a capacity to take. The kind of foreign missionaries or home missions is not specified, and the poor saints are not defined. The provision in the will lacked defiuiteness of description, and was therefore held incapable of execution. Bridges v Pleasants, 4 Iredell's Eq. (N. C.) 26.

Legatee Not Capable of Taking Bequest. A bequest to the Diocesan Missionary Societies of Maryland and Virginia was held void as to Maryland for the reason that there was at the time no incorporated missionary society capable of taking the bequest, but it was held valid as to Virginia, there being in that State an incorporated missionary society. Brown v Thompkins, 49 Md. 42:*>.

Taxation of Bequest, Exemption. Certain property in Eng- land was conveyed to trustees in trust to apply the income for the purpose of promoting and supporting missions to heathen nations, of maintaining and educating children of ministers and of missionaries, maintaining and supporting certain establishments for single persons and widows belong- ing to the Moravian brotherhood. It was held that the income so applied came within the exemption in favor of charitable purposes in the income tax act of 1842, sec. 61.

MISSIONS 405

lucome Tax Commissioners v Pemsel, 61 L. J. Q. B. (N. S.) 205.

Testator's Intention. A devise of a portion of tlie estate to "the missionary society of Foreign Missions" was held not void for uncertainty. There was no such society, but the court held that it was coniijetent to show by extrinsic evi- dence that another society answered to the description of the society named, and that the devise was intended for the benefit of the American Board of Commissioners for Foreign Missions. Brewster v McCall's Ex'rs., 15 Conn. 274.

A bequest to the Foreign Missionary Society of the Meth- odist Episcopal Church was held to be intended for the Missionary Society of the Methodist Episcopal Church, there being no society bearing the first name, and the latter having charge of the foreign missionary work of the church. Re Bryson's Estate, 7 Pa. Super. Ct. 624.

MORMONS

Church, disincorporation, effect, 406.

Creed, judicial notice, 406.

Incorporation, 407.

Independence, Missouri; Church of Latter Day Saints, 409.

Jehovah Presbytery of Zion; Preparation, Iowa, 411.

Man-iage, divorce, 411.

Marriage, 412.

Name and succession, 413.

Church, Disincorporation, Effect. In U. S. v Church, 8 Utah olO, it was said that the personal property of the dis- incorporated Mormon Church was devoted by the donors to general church purposes, one of which was the ijropagatiou and encouragement of the practice of polygamy, others of wliieh were legal, such as the relief of the poor and the building and repair of houses of worship. When the church was disincorporated its real estate was escheated to the United States, but no disposition was made of its personal property, which was left without an owner; held that such property should be vested in a trustee to be used for church purposes which were legal, such as the relief of the poor and tlie building and rei)air of houses of worship: Zaue, C. J. dissenting on the ground that the church having ceased the encouragement of polygamy, the i)roperty should be vested in the first presidency of the church, who were designated by the church generally to hold property for the church, to be used for church purposes which they selected as the relief of the poor and the building and repair of houses of worship.

Creed, Judicial Notice. Courts will take judicial notice of matters of history, of the contents of the Bible, of the fact tliat there are various religious sects, of the creed and gen- eral doctrine of each sect, and hence will take notice of the creed and general doctrine of the Mormon Church, and of

406

M0RM0:N'S 407

the principle of celestial marriage peculiar to the Mormou sect. Hilton v Roylance, 25 Utah 129.

Incorporation. The Church of Latter Day Saints was in- corporated in 1851, under an act of Assembly of the provis- ional government which they set up in Utah under the name of the State of Deseret. The preliminary act of Con- gress erecting the Territory of Utah was passed in 1850, but the territorial government was not organized until after the passage of the church charter. The territorial Legislature adopted a resolution October 4, 1851, confirming the church charter. The charter was also reenacted by the territorial act passed in 1855, included in a revision of the statutes.

In 1802 Congress passed an act prohibiting polygamy in the territories and disapproving and annulling the Deseret charter and also the confirmatory' acts passed by the Utah territorial legislature. Additional prohibitory legislation concerning polygamy was enacted by Congress in 1882 and 1887. Proceedings were instituted on behalf of the United States for the dissolution of the Mormou Church corpora- tion, and sequestration of its property except that situated in Salt Lake City used exclusively for public worship. By the act of Congress passed in 3887 tlie charter was dissolved, and the acts creating and confirming the corporation were repealed.

It was held that Congress had power to repeal the Mormon Cliurch charter; that the corporation existed under a so- called ordinance of the State of Deseret. This ordinance had no validity except in the voluntary acquiescence of the people of Utah then residing there. Deseret, or Utah, had ceased to belong to the Mexican government by the treaty of Guadalupe Hidalgo, and in 1851 it belonged to the United States, and no government without authority from the United States, express or implied, had any legal right to exist there. The Assembly of Deseret had no power to make any valid law. Congress had already (1850) passed the law for organizing the Territory of L^tah into a government, and no other government was lawful within tlie bounds of

408 THE CIVIL LAW AND THE CHUKCH

that Territory. But the charter even if invalid under tlie Deseret ordinance, became a legal corporation b}^ the terri- torial confirmatory acts of 1851 and 1855. The charter was rei)ealed and the corporation dissolved by the act of Con- gress of 1887.

The court also held that upon the dissolution of the cor- poration, which was organized for religious and charitable purposes, its personal property became subject to disposal by the sovereign power, while its real estate escheated or reverted to the original grantor or donor, except as subject to a charitable use. In this case it was said that the grantor of all or the principal part of the real estate of the Mormon Church, was really the United States, from whom the prop- erty was derived by the church, or its trustees, through the operation of the townsite act. By the act of 1862 property so acquired by the Mormon Church was declared forfeited to the United States, saving existing vested riglits.

It was held that under the circumstances the real prop- erty held by the Mormon Church was forfeited to the United States, and any trust estate created by the corporation in the hands of the trustees, devolved to the United States the same as if the property had been held by the corporation itself. The trustee became trustee for the United States instead of trustee for the corporation. The property of the corporation was held for religious and charitable purposes, esjjecially for the inculcation and spread of the doctrines and usages of the Mormon Church, one of the distinguishing features of which is the practice of polygamy. The system of common law and equity prevailing generally in the United States was said to have been in force in Utah by operation of every territorial statute. The law of charities was also in force in Utah. The proceeds of the property were to be devoted to common schools in the Territory. The right of the government to sequestrate the property and place it in the hands of a receiver, subject to final disposition according to the rights of all parties, was declared as a fundamental principle of government in relation to corporations and

MORMONS 409

property in territories. The Late Corporation of the Church of Jesus Christ of Latter Day Saints v United States, 13G U. S. 1 ; see also 140 U. S. GG5.

Independence, Missouri; Church of Latter Day Saints. The property in question was originally acquired by an agent of this church, for the purpose of erecting thereon a temple, designed to be the New Jerusalem of this religious order, from which the eyes and yearning desires of this people, through sixty years of exile and wandering, have never been turned nor diverted. To them it has been as the New Jeru- salem to the Israelite and as Mecca to the Moslem. For sixty-two years it has been known to this sect, and the people of Western Missouri as the ''Temple Lot" on which in the fullness of time, and the fulfillment of the prophecy, was to be erected a splendid temple for the gathering of the believers for religious worship and exaltation.

Edward Partridge bought this land with funds contri- buted by the members of the church, and held the title in recognition of the trust. Its acquisition by him was in fulfillment of the revealed will of God, as accepted by him, as a member of the church, in the Book of Doctrine and Covenants. He was a bishop of the Central Church, then at Kirtland, Ohio. As such he looked after its temporalities. The stress of this religious sect's environments rendered it expedient that they should seek asylum in the then remote West, where, as they supposed, unvexed by those who despitefully used them, they might tabernacle in peace. Bishop Partridge received |3,000 raised by contribution, and went to Independence, Missouri, to acquire lands for the temple and a settlement of the people of his religion, and until his death in 1841 he and his church recognized the lot as church property. Joseph Smith, the founder and head of the church, its recognized prophet and seer, himself came to Missouri, and in 1832 held religious services on this site and solemnly dedicated it as the spot where the temple was to rise and shine.

Bishop Partridge participated in this ceremony, and on

410 THE CIVIL LAW AND THE CHURCH

the eve of the expulsion of himself and the people of his church from the State by military force at the command of the governor in 1839, made a deed embracing this property to the minor children of Oliver Cowdery, his coworker in the church, and companion in misfortune, in which he recited the fact "that there was money paid in my hands by Oliver Cowdery, an elder in the church of the Latter Day Saints, formerly of Kirtland, Ohio, for the purpose of entering lands in the State of Missouri, in the name and for the benefit of said church." This deed was assailed on various grounds, including the allegation that it was never deliv- ered. It was recorded, and the delivery was presumed to have been made at the time of recording or prior thereto. It seems that the Cowdery children, trustees of the property in the Partridge deed, died during their ndnority. The deed was deemed valid. It included the Temple Lot.

In an action involving the title to the Temple Lot brouglit by the Reorganized Church of Latter Day Saints of Jesus Christ against the Church of Christ, to declare a trust as to certain real estate in favor of the complainant, the de- fendant claimed title to the property partly under a deed from some of the heirs of Bishop Partridge, and partly by adverse iDOSsessiou. It was held that the claim of the de- fendants was not well founded because the deed was invalid, not having been properly executed, and being also without consideration, and also because the claim of adverse pos- session was not suflficiently established. The complainant, the Reorganized Church of Latter Day Saints, was held entitled to judgment declaring its right to the property, and removing a cloud on the title constituted by the claim of the defendants. The court said that if the church, while located at Nauvoo, had asserted the right of control over Temple Lot in Independence up to 1845, its claim would have been recognized by the ecclesiastical body and bj^ courts of chancery as the beneficiary of the trust in the Partridge deed. The court suggested that the Salt Lake Church was using its influence in behalf of tlie defendants

MORMONS 411

(respondents j iu this suit. Reorganized Churcli of Jesus Christ of Latter Day Saints v Church of Christ, 00 Fed. Rep. y:J7.

Jehovah Presbytery of Zion; Preparation, Iowa. This society was founded by Charles B. Thompson, who with certain followers established a colony at I'reparatiou about 1855 on land which was then vacant but which was taken up by the settlers. Thompson established schools of faith and works, and claimed to receive revelations. The settlers were re- quired to transfer their property to Thompson, "chief stew- ard of the House of Jehovah," and chief teacher of the Order of FAias the prophet, in Jehovah's Presbytery of Zion. Mem- bers of the society were not only required to transfer their property to Thompson but to agree to work for him and under his direction two years, receiving therefor their board, lodging, and clothing, Avithout other remuneration. This was done to fulfill an alleged hnv of sacrifice which had been specially revealed to Thompson. In 1858 a diffi- culty arose between Thompson and other members of the society growing out of his refusal to divide the property and settle with the members, and Thompson left the com- munit3\ Thompson afterward transferred to relatives and another person property which had been obtained by transfer from other members of that society. Plaintiff brought an action to recover the property transferred by him, and it appeared that such transfer was without con- sideration, other than the promises made by Thompson. The court decided that Thom])son was trustee for the mem- bers of the society and held all the property received by him as teacher, leader, and agent of the society, in trust for the use and benefit of the members of the society, and decreed the cancellation of conveyances by Thompson as above men- tioned. Also that the estate should be closed, a receiver appointed, and a distribution nuide according to the rights and equities of the members of the society. Scott v Thomp- son, 21 la. 599.

Marriage, Divorce. Under a tenet of the Mormon Church

412 THE CIVIL LAW AND THE CHURCH

a man and woman might be sealed so that they would be husband and wife after death (that is, in eternity). Two persons went through this ceremony, not in the performance of a marriage contract but according to the tenet only. The ceremony was performed when the woman was supposed to be in her last illness. Upon her unexpected recovery the parties agreed to dissolve the supposed marital relation between them, and they thereafter lived separate and apart. Afterward a formal divorce signed by the parties was exe- cuted in the manner prescribed by the Mormon Church, and the marriage was deemed dissolved. Thereafter the wife married again, according to the Mormon forms. The husband did not remarry. After the death of the husband the wife married to him as above described brought an action for dower in his estate. It was held that the marriage ceremony performed in this case made the parties husband and wife for time as well as for eternity. The so-called church divorce was null and void. The power to dissolve a marriage contract was not possessed by the church, but was a function of the State. The wife Avas held entitled to dower. Hilton v Roylance, 25 Utah 129.

Marriage. The sealing ordinance of the Mormon Church, founded on the Revelation on the Eternity of the Marriage Covenant, contained in the Book of Doctrines and Covenants of the Mormon Church, section 132, as indicated by the doc- trine in relation thereto, contained in such book, and as interpreted and practiced by the Mormon people so far as the history, records, and journals of such church show, is a marriage ceremony contemplating marriage for time and eternity, and not for either time or eternity alone. The sealing ceremony of the Mormon Church, whereby the con- tracting parties agree and are declared by a duly authorized church oflQcial to be married for time and eternity, creates a valid common law marriage between parties believing and in good faith participating therein; the part of such cere- mony referring to eternity being mere surplusage. Hilton V Roylance, 25 Utah 129.

MOKMONS 413

Name and Succession. The identity, unity, and sameness from 1830 to 1844 of the Mormon Church are too clear for doubt. Now and then, by this and that person, it was called "The Church of Christ," "Church of Latter Day Saints." The terms were employed interchangeably. The temple built at Kirthmd, Ohio, the central rendezvous between 1830 and 1835, was inscribed on the portal with tlie words ''The Church of Jesus Christ of Latter Day Saints." This was the public authoritative recognition of the name by which they chose to be known.

If human testimonj- is to jdace any matter forever at rest, this church was one in doctrine, government, and pur- pose from 1830 to June 1844, w^heu Joseph Smith, its founder, was killed. It had the same federal head, govern- ing bodies, and faith. During this jieriod there was no .scliism, no secession, no parting of the ways in any nuitter fundamental or affecting its oneness. The only authorized and recognized books of doctrine and laws for the govern- ment of the church from 1830 to 184G were the Bible, tlie Book of Monnon, and the Book of Doctrine and Covenants. The Book of Doctrine and Covenants, which consisted prin- cipally of claimed divine revelations to Joseph Smith, was the edition published at Kirtland, Ohio, in 1835 and at Nauvoo in 1845.

Joseph Smith was killed at Carthage, Illinois, in June, 1844. He was the i)resident and the inspiring spirit of the church. His violent death struck with dismay the hearts of his followers, and out of the confusion incident thereto were born disorder, schism, and ambition for leadership. Disin- tegration set in, and the church split in factions, which, under the lead of different heirs, scattered to different parts of the country. Among the "Quorum of Twelve," represent- ing the apostles, was one Brigham Young, a man of intellect- ual power, shrewd and aggressive, if not audacious. He .seized the fallen reins of the presidency, and led the greater portion of Mormons out to what was known as the Salt Lake or Utah church.

414 THE CIVIL LAW AND THE CHUKCH

The Book of Doctrines aud Covenants, page 411, contain- ing a revelation to Joseph Smith January 19, 1841, gave unto ^'my servant Joseph, to be a presiding elder over all my church, to be a translator, and a revelator, a seer and prophet. I give unto him for councilors, my servant Sidney Rigdon, and my servant William L>aw, that these may con- stitute a quorum and first presidency, to receive the oracles for the whole church, I give unto you my servant Brigham Young, to be a president over the Twelve, traveling council." So that Brigliam Young was but jjresident over the Twelve, a traveling council. The Book clearly taught that the suc- cession should descend lineally, and go to the first-born. Joseph Smith, so taught, had, before his taking off, publicly ordained his son, Joseph, the present head of the complain- ant church, his successor, and he was so anointed.

Brigham Young's assumption of this office (under the claim of something like a transfiguration) was itself a de- parture from the law of the church. The Book of Mormon itself inveighed against the sin of polygamy. Brigham Y'oung taught that these denunciations of the book were leveled at the Indians — the Lamanites. Conformably to the Book of Mormon, the Book of Doctrine and Covenants expressly declared "that we believe that one man should have but one wife, and one woman but one husband." This declaration of the church on this subject reappeared in the Book of Doctrine and Covenants, editions of 1846 and 1856. Its first appearance as a dogma of the church was in the Utah church in 1852. This doctrine was based upon an alleged revelation to Joseph Smith in 1843. No such revela- tion was ever made public during Smith's life.

A considerable number of the officers aud members of the church at Nauvoo did not ally themselves with any of the factions, and wherever they were they held on to the faith, refused to follow Brigham Y'oung to Utah, and ever repudiated the doctrine of polygamy, which was the great rock of offense on which the church split after the death of Joseph Smith. In 1852 the scattered fragments of the

MORMONS 415

church, the renmants of those who held to the fortunes of the preseut Joseph Smith, son of the so-called martyr, gath- ered together sufficiently for a nucleus of organization. They took the name of the '-Reorganized Church of Jesus Christ of Latter Day Saints," and avowed their allegiance to the teachings of the ancient church ; and their epitome of faith adopted, while containing differences in phraseolog3\ in its essentials is but a reproduction of that of the church as it existed from 1830 to 1844. To-day (1804) they are 25,000 in number.

Concerning the claim that the complainant, the Reorgan- ized Church of the Latter Day Saints, had a new Bible, the court said: "The basis for this is that Joseph Smith, the founder of the church, was, as early as 1830, engaged in the translation of the Bible, which he is alleged to have com- pleted about 1833 or 1834." The evidence shows that this manuscript was kept by his wife, and delivered to the pres- ent Joseph Smith, her son, and was published by a com- mittee of the church. It is not claimed by Joseph Smith that this translation is a substitute for the King James translation, nor has it been made to appear that it incul- cates any new religious tenet different from that of the ancient church. Reorganized Church of Jesus Christ of Latter Day Saints v Church of Christ, GO Fed. Rep. 937 (W. D. Mo. Cir. Ct.)

MORTGAGE

Condition broken, right to foreclose, 416.

Court order, 416.

Leave of court, 416.

Priority as between mortgage and mechanic's Hen, 417.

Validity; Archbishop having no title to the land, 417.

Vahdity, executmg without authority, 417.

Vahdity, extent of trustees' authority, 418

Validity, legitimate debt, 418.

Validity, meeting of trustees; purchase money, 418.

Validity, trustees afterward ousted from office, 418,

Vahdity, trustees no power to mortgage property, 419.

Condition Broken, Right to Foreclose. The society gave a mortgage to the Board of Church Erection Fund, Gen- eral Assembly Presbyterian Church, to secure a loan, containing a condition that if the house of worship or the mortgaged premises should be alienated or abandoned as a house of worship by the local society, except for the build- ing or purchase of a better house of worship, the amount should immediately become due and payable. It was held that the church had violated the condition by permitting the property to be sold on an execution against it, the purchaser having obtained possession of the property, and the mort- gagee was entitled to foreclose the mortgage. The condi- tion in the mortgage was not void as against public policy. Board of Church Erection Fund, General Assembly Presby- terian Church, United States of America v First Presby- terian Church, Seattle, 19 Wash. 455.

Court Order. In Manning v Moscow Presbyterian Society, 27 Barb. (N. Y.) 52, it was held that a religious corporation might mortgage its property without an order of the court.

Leave of Court. A religious society purchasing real prop- erty may give a mortgage to secure the purchase price with-

416

MORTGAGE 417

out leave of the court, t^outli Baptist Society v Clapp, 18 Barb. (N. Y.) 35.

Priority as Between Mortgage and Mechanic's Lieu. A mechaiiic'.s lieu ou a church buihliug was foreclosed, and the decree directed the sale of the building without the land. This was held error. There was a prior mortgage ou the land. It was held that the mortgagor had the first claim on the land, and a lien on the building, subject to a mechanic's claim; and that the mechanic's lien attached to the land subject to the mortgage lien. Separate appraisals of the laud and building were directed, and the proceeds of the sale of the entire i)ro])erty were ordered divided between the luortgagee and the mechanic so far as needed to pay their respective claims, according to the ratable value of the two parts of the j)roi)erty. North Presbyterian Church, Chicago v Jevne, et al :\'2 111. 214.

Validity; Archbishop Having No Title to the Land. Testa- trix gave land to the church, and the Archbishop of Louis- iana assumed authority over the land, and directed the exe- cution of a mortgage thereon by a subordinate officer. The mortgage was held void. It was said that the property could 1)0 hypothecated only by the owner, or by some one author- ized to act for the owner. There was no evidence that the archbishop had authority to hypothecate the property. The archbishoj) did not own the proi)erty, and he derived no title by the will. Levasscnr v Martin. 11 La. Ann. f)S4.

Validity, Executing without Authority. Land was conveyed to the bishoj) of the diocese, in trust for, and for the nse of, the wardens, vestry, and congregation of St. Paul's Parish. Afterward five vestrymen gave a promissory note for money borrowed, and also for security executed a mortgage ou the part of the land conveyed to the bishop. An action to fore- close the mortgage was brought against the bishop, church- wardens, and others, and also to enforce an equitable lien on all the real property conveyed to the bishop for the amount of the note.

The mortgage was held void, ami ;ni action couhl not b(!

418 THE CIVIL LAW AND THE CHUliCH

maintained thereon. The society was not incorporated ; the vestrymen had no authority to execute the mortgage, nor to incumber the property without the consent of the bishop, which consent had not been given. Hill Estate Company v Whittlesey, 21 W^ash. 142.

Validity, Extent of Trustees' Authority. A meeting of the society which was unincorporated was held sufficient under circumstances showing that notice was given in the usual manner. A mortgage executed by a majority of the trustees to secure a loan authorized by a committee was held to be a valid obligation against the society. Hubbard v German Catholic Congregation, 34 la. 31.

Validity, Legitimate Debt. The society received a convey- ance of land on which it erected a house of worship. The deed contained a provision that the society should not alienate, dispose of, or otherwise incumber the property. The society gave a mortgage on the property to secure a legitimate debt. This mortgage was held valid. Magie v German Evangelical Dutch Church, 13 N. J. Eq. 77.

Validity, Meeting of Trustees ; Purchase Money. A mortgage given by a New York religious corporation was executed by all of the trustees except one, who had resigned, but there was no order or resolution of the board directing the execu- tion. The referee found that in executing the mortgage the trustees acted as a board of trustees of the plaintiff, and that though all who signed it were not present at the same time, yet that a majority of the trustees were present part of the time when it was executed. Tlie mortgage was held to be as binding as if a fornuil resolution had been previously passed. It was also held that a religious corporation may make a purchase money mortgage without an order of the court authorizing it. South Baptist Society, Albany v Clapp, 18 Barb. (N. Y.) 35. See also note above. Leave of Court.

Validity, Trustees Afterward Ousted from Office. Lovett v German Reformed Church, 12 Barb. (N. Y. ) 07, involved the validity of a mortgage made by trustees who were afterward

MORTGAGE 411)

ousted from office by the reversal of a decree establishing their original right to the office. The mortgage was declared to be a valid lien.

Validity, Trustees no Power to Mortgage Property. The society gave a mortgage on its property to secure a preexist- ing debt. The mortgage was foreclosed and the property sold. The church had elected trustees to manage its prop- erty, but the title to the property was not vested in such trustees. The trustees could not buy or sell church prop- erty nor could they mortgage the same. An agreement be- tween the i)urchaser of the property at the foreclosure sale and the church trustees, by which the property was to be conveyed to the church, though unauthorized, was deemed to have been ratified by the congregation. But the contract lacked mutuality, and it was held that an action by the trustees to enforce performance of the contract could not be maintained. Calvary Baptist Church v Dart, 68 S. C. 221 .

MORTMAIN

Defined, 420. Delaware, 420. Grenada, 420. Pennsylvania, 420. South Carolina, 420.

Defined. The term "mortmain" is applied to denote the possession of lands or tenements by any corporation, sole or aggregate, ecclesiastical or temporal. These pnrchases hav- ing been chiefly made by religious houses, in consequence ol" which lands became perpetually inherent in one dead hand, this has occasioned the general appellation of mortmain to be ajjplied to such alienations. Bouvier's Law Dictionary.

Delaware. The provisions of the Delaware statute relat- ing to mortmain do not render invalid a legacy to certain religious corporations to be paid from proceeds of the sale of land to be sold by the executor under a power conferred by the will. American Tract Society v Purdy Executors, SHoust. (Del.) 025.

Grenada. The English statute of mortmain is wholly polit- ical. It grew out of local circumstances, and was meant to have merely a local operation. The thing to be prevented was a mischief existing in England, and it was by the qual- ity and extent of the mischief as it there existed tliat the propriety of legislative interference upon the subject was to be determined. It was not extended to any other part of the British dominions, and was, therefore, not in force in the island of Grenada. Attorney General v Stewart, 2 Merv. (Eng.) 14.3.

Pennsylvania. British statutes of mortmain are not in force in Pennsylvania. Domestic and Foreign Missionary Society's Appeal, 80 Pa. St. 42.5, 434.

South Carolina. British statutes of mortmain are not in force here. American Bible Society v Noble, 11 Rich. Eq. (S. C.) 156, 175.

420

MUNICIPAL ORDINANCES

Parades, 421.

Preaching on Boston Common, 421.

Parades. An ordinance adopted by the authorities of the city of Wellington, Kansas, providing that "it shall be unlawful for any person or persons, societ}-^, association or organization, under whatsoever name, to parade any public street, avenue, or alley, shouting, singing or beating drums or tambourines, or playing any other musical instruments or doing any other act or acts designed, intended or cal- culated to attract or call together an unusual crowd or congregation of people upon awy of the said streets, avenues or alleys, without having first obtained in writing the con- sent of the mayor of said city, authorizing such parade," was declared to be illegal and void. It was unreasonable and did not fix conditions uniformly and impartially and contra- vened a common right. Anderson v Wellington, 40 Kan. 173.

Preaching on Boston Common. An ordinance of the city of Boston, enacted under authority of the statute prohibit- ing the delivery of a sermon on the Common without the permission of a specified committee was sustained in Com- monwealth v Davis, 140 Mass. 485.

421

MUSIC

Bequest for, when invalid, 422. Country choii-s, 422. Instrumental, 422. Organist, 422.

Bequest for, When Invalid. Gift for organ gallery and organ therein declared invalid under statute of mortmain. Adnam v Cole, 6 Beav. (Eng.) 353.

Country Choirs. Usually church music is gratuitous in small country villages or hamlets. The choir is made up of amateurs, often but little instructed in the science of melody; and this part of church service is, in such places, rather the observance of religious duty than the exercise of professional art and cultivated taste. The vocalist, and those who aid with instruments, do not expect or desire pecuniary recompense. Tlie mere fact that one sings in the choir, or plays on an instrument as an accompaniment, on occasions of church serevice on Sabbath days, raises no implication of pecuniary liabilitj^, against the corporate body. These services are presumed to be gratuitous.

Bockes, J., in Van Buren v Reformed Church of Ganse- voort, N. Y., 02 Barb. ( N. Y. ) 495. It was held in this case that an action to recover compensation for services as an organist could not be maintained without proof of an actual employment.

Instrumental. Singing is recognized as a part of divine worship, among almost all denominations of Christians. Whether it should or should not be accompanied with in- strumental music must be determined by those who admin- ister the discipline of the church to which they belong. Tarter v Gibbs, 24 Md. 323.

Organist. In Walnut Street I*res. Ch. 3 Brewst. (l*a.) 277.

422

MUSIC 423

the court refused to authorize an amendment to a church charter which proi)0.sed to vest in the trustees the power to appoint an organist, subject to the approval of the session, on the ground that, according to the rules of the Presbyte- rian Church, questions relating to worship are within the exclusive jurisdiction of the session, and that this function could not properly be vested in the trustees.

NEW THOUGHT CHURCH

Described, 424.

Described. The plaintiff was organized by the name of the "New Thought Church." It sought to enjoin the defend- ant from conducting services under the name of "New Thought Church Services," It claimed to teach a form of religion based upon what is termed "New Thought," but it was conceded that it could not successfully claim a monop- oly of the words "New Thought" or of the word "Church," but it claimed the right to monopolize the combination of those words. "The plaintiff apparently has founded a new system of religion based on a new creed." It surely is not in a position to successfully claim a monopoly of teach- ing this form of religious faith by means of organizations known by the generic names of churches. The injunction was denied. New Thought Church v Chapin, 159 A. D. (N. Y.) 723.

424

NORWEGIAN EVANGELICAL LUTHERAN CHURCH

Organization and form of government, 425. Independent society, division of property, 426. Property, division, effect, 427. Trustees, controversy over election not a schism, 428.

Organization and Form of Government. At a meeting in Janiiarj', 1.S51, composed ol' repi-esentatives of the Nor- wegian Evangelical Lutherans of Southern Wisconsin ami Northern Illinois held at Luther Valley, in Eock County, a constitution was ado2)ted containing, among other things, the following provision : "The doctrine of the church is the one revealed in the Holy Word of God, in tlie l)aptismal covenant, and in the canonical writings of the Old and New Testament, interpreted in accordance with the symbolical books and confessional writings of the Church of Norway, which are the Apostolic Creed ; tlie Nicene Creed ; the Athan- asian Creed; the Unaltered Articles of the Augsburg Con- fession delivered to the Kmi)eror Charles the 5th at Angs- burg, 1530 ; the Smaller Catechism of Luther."

The constitution contained regulations concerning the qualifications of ministers and the forms of })nl)lic A\'orsliip. It provided for a synod, composed of ministers, presiding over particular congregations and representatives from every congregation united with the synod. Among the powers of the synod were the following: to make general and special rules and resolutions in all religious and eccle- siastical matters; to decide, without further appeal, upon all matters of the church ; to select a superintendent from among the clergy connected with the church ; to select from its members a church council, to consist of not less than

425

426 THE CIVIL LAW AND THE CHUKCH

two clerical and four lay members, which shall be propor- tionally the same if the number be increased.

The constitution was submitted to the congregations and was approved, taking effect in 1853. No other synod or conference of Lutherans bearing that name has ever been organized in the United States. A new constitution was adopted in 1876, including a change of name to the Synod of the Norwegian P^vangelical Lutheran Church of America. Fadness v Braunborg, 73 Wis. 257.

Independent Society, Division of Property. This society (Koshkonong Congregation) was organized prior to 1852, but the case does not show the date. Prior to May 20, 1852, the members of this congregation living on Liberty Prairie vol- untarily separated from Koshkonong Congregation and or- ganized themselves into the Norwegian Evangelical Lu- theran Church of St. Paul's on Liberty Prairie. These two congregations were five or six miles apart and were served by the some pastor until 1860. May 20, 1852, land was con- veyed to certain persons as trustees, in trust for the erec- tion of a house of worship on the land, for the use of the members of St. Paul's Church according to the rules of the church, and according to the rules which may be adopted from time to time by their authorized synods or conferences. Vacancies in the office of trustees were to be filled by the congregation. A meeting house was erected on the lot. The two congregations of Koshkonong and Liberty Prairie acted jointly for the most part until 1860 with an arrangement that if either society should desire to become independent, the society withdrawing from the union should be entitled to receive one half the value of the parsonage. The society was incorporated in 1862, and the corporation thereupon became vested with the legal title to the property conveyed to the trustees as above stated.

The society was substantially independent, although sus- taining certain relations to the synod, and while under gen- eral rules the call of the pastor was presumed to be for life, a majority of the corporators had power to discharge a niin-

NORWEGIAN EVANGELICAL LUTHERAN 427

ister at any time. Early in the year 1883 a schism arose in the Liberty Prairie Congregation over the doctrine of elec- tion. The pastor, at the request of fifty-one members, called a meeting for the consideration of this question. That meet- ing adopted, by a large majority, articles of confession on the subject of election. After May 17, 1885, a portion of the minority separated from the congregation and worshiped in halls and private houses under the ministrations of the pastor who had been discharged by vote of a large majority of the congregation. March 3, 1886. the portion of the minority who had so withdrawn held a meeting and elected trustees, and directed the trustees so elected to demand the books of the society. An action was commenced by the minority trustees against the majority trustees to have the minority trustees declared the rightful trustees of the so- ciety, and for the possession of the church i)roperty. The trial court rendered a judgment in favor of the minority trustees, but this was reversed on appeal, and the majority held to be the true church and entitled to the possession and control of the property. Fadness v Braunborg, 73 Wis. 257.

Property, Division, Effect. For several years prior to Feb- ruary, 1880, the title to the church in which the members of the association worshiped was vested in trustees named in the deeds, and their successors in office. For several years two factions had existed in this society, but had worshiped together until January 9, 1888. On that day both factions met together at the regular annual meeting of the associa- tion. At that time all the trustees and a large majority of the association belonged to the faction known as the Anti- Missourians, represented by the defendants; but the min- ister and a minority of the association belonged to the fac- tion known as the Missourians, represented by the plaintiffs.

At this meeting the Missourians withdrew and elected trustees in place of those claiming to have been deposed. For the next year both factions held services at different times in the same church, each under its own pastor.

February 7, 1889, a corporation was formed, which was

428 THE CIVIL LAW AND THE CHUECH

held to iuchide both factions, and the corporation thereby became vested with the title to the property previously held by the society. The plaintiff, the Missourian party, after- ward organized another corporation, but tliis was held not to affect the i)Owers of the corporation formed in February, 1889. Holm v Holm, 81 Wis. 374.

Trustees, Controversy over Election not a Schism. Property was acquired by the society under a general agreement that it should be held and used for religious purposes, with a provision that "in case of a schism (which God forbid) the right of possessing the common property of the congrega- tion is to devolve upon a two-thirds majority of its voting members. The price which those who then retain the prop- erty are to pay to those who then lose their interest in it is to be fixed according to the valuation made by three men, of whom each party chose one, and these two a third."

A controversy having arisen over the election of trvistees, it was held that this did not constitute a schism within the meaning of the term as applied in the constitution of the society. That, although a part of the societj^ had taken pos- .session of the property and excluded the other part, the law afforded an ample remedy against tlie wrongful trustees by quo warranto, or otherwise in equity by injunction to i)re- vent unlawful acts, and there could be no division of the property as contemplated by the constitution. Nelson v Benson, 69 111. 27.

NUISANCE

Damages, 429.

Damages. First Baptist Church, Schenectady v Troy & Schenectady R. R. Co., 5 Barb. (N. Y.) 79, was an action brought by a religious society against a railroad company to prevent the continuance of an alleged nuisance by the company resulting from the ringing of bells, blowing off steam, and making other noises in the vicinity of the church during service on the Sabbath which so annoyed and molested the congregation worshiping there as greatly to depreciate the value of the house and rendering the same unfit for a house of religious worship. The church corpora- tion was held entitled to recover damages for the alleged disturbance of its meetings by the railroad company, and by direction of the court the jury assessed the damages at six cents. In a similar action brought by the trustees of the same society against another railroad company (First Baptist Church in Schenectady v The TTtica & Schenectady Railroad Ccmipany, 0 Barb. (N, Y.) 31;>), it was held that damages claimed by the society resulting from the deprecia- tion in the value of the church property in consequence of ringing bells, blowing oft' steam, etc., could not be recovered against the railroad company, such damages being too remote. An individual member of the congregation cannot maintain an action for damages for disturbing divine wor- ship.

429

OATH

Defined, 430. Jew, 430.

Defined. "An oath is well defined to be the solemn invoca- tion of the vengeance of the Deity if the person sworn do not regard the requisitions of the oath." Arnold v Arnold, 13 Vt. 3G3.

Jew. A Jew may take an oath on the Old Testament. Bex V Bosworth, 2 Str. (Eng.) 1113; see article Witness, subtitle idolater.

430

OFFICERS

Conimittee, tenm-e, 431.

De Facto, 431.

Eligibility, when presumed, 431.

Holding over, 432.

Committee, Tenure. A committee to take action on a spe- cific object was ai»j)ointe(l from among- the vestrymen of the society. After\var<l the members of the committee were ousted from office as vestrymen. It was held that the right of these ])ersons to act as a committee depended on their continuing in office as vestrymen, and when they ceased to be vestrymen their right to act as a committee was termi- nated. People ex rel the Rector v Blackhurst, 00 Hun (N. Y.) 63.

De Facto. Persons who had been chosen to various church offices by the members of the society in the usual way and in conformity with the statute, were deemed to be tlie only officers on whom valid process could be served in a jtroceed- ing against the society. Tliej' were at least de facto officers. Berrian v Methodist Society, New York, 4, Abb. l*r. (N. Y.) 424.

To nmke one a de facto officer he must be acting as an officer under color of having been rightfully elected or ap- pointe<l. A minority of a congregation, assuming to hold an election, cannot give to trustees chosen by them even tlie color of office, and such trustees are not de facto officers. Trustees v Halvorson, 42 Minn. 503.

Eligibility, When Presumed. If eligibility depends on a person's qualifications as a voter, and his vote is received at a church election without challenge, he is presumed qualified as a voter and therefore qualified to hold office; and after the result of the election has been declared the presiding

431

432 THE CIVIL LAW AND THE CHUKCH

officer cannot revise the result, declare that the person elected was not a qualified voter, and therefore not entitled to the office. Ee Williams, 57 Misc. (N. Y.) 327.

Holding Over. The committee elected by the church in March, 1830, for one year was held to continue in office after the expiration of the year and until another committee was elected. There was a meeting of the society in March, 1832, but this was held irregular for lack of proper notice, and the committee elected at that meeting could not take the office. Congregational Society, Bethany v Sperry, 10 Conn. 200; see Trustees and Vestry.

PARISH

Business, how transacted, 433.

Clerk, 433.

Committee, contract, 434.

Defined, 434.

Dissolution, effect, 434.

Division, effect, 434.

Ecclesiastical council, 435.

Massachusetts, 435.

Massachusetts, history, 435.

Meetinghouse, may be leased, 436.

Meetinghouse, title after division of town, 436.

Members, habihty for debt, 436.

Member, reimbursement for claim paid, 437.

Membership, 437.

Minister, 437.

Minister, how appointed, 438.

Minister's title to property, 438.

Minor, taxation, 438.

Parishioner, 438.

Parsonage, 439.

PoU Parish, 439.

Powers, 439.

Protestant Ejjiscopal Church, defined, 439.

Roman Cathohc, 440.

Taxation, 440.

Business, How Transacted. Tt was the ancient custom of Massachusetts wliere a town consisted of one i)arish to transact their parochial concerns at town meetings, making no difference in the forms of their proceedings, when acting upon tliose subjects or ujion matters of mere municipal or ]»olitical concern. Austin v Thomas, 14 Mass. 338.

Clerk. A parish clerk having been dismissed from his office by the rector, though irregularly, and another ap- ]><)inted, the former entered the church before divine service liad commenced and took possession of the clerk's seat. It was held that the churchwardens were justified in removing him from the clerk's desk, and also out of the church, if they

433

434 THE CIVIL LAW AND THE CHURCH

had reasonable groiURLs for believing- tliat he would offer interruption during the celebration of divine service. Bur- ton V Henson, 10 Meeson & Welsby (Eng.) 105.

Committee, Contract. Where a parish appointed a com- mittee of three to build a meetinghouse a contract made by one of the number was not binding on the parish. Kupfer v Soutli I'arish, Augusta, 12 Mass. 185.

Defined. In I'ennsylvania the term "parish" has no espe- cial legal signification ; it is used merely in its general sense. In English ecclesiastical law it has been used to designate the territory committed to the particular charge of a parson or priest. In the absence of a state church here, however, the status of a parish is rendered comparatively unim- portant; if used in ecclesiastical divisions, it' has just such importance and particular signification as may be given it under ecclesiastical regulations. The rules of a church or- ganization constitute the law for its government, and the civil court will, in general, recognize and enforce these as any other voluntary agreement between the parties. But what may be the law of the church government is a matter of fact in courts of law, and must appear in the proof. Tuigg V Treacy, 104 Pa. 493.

Dissolution, Effect. The omission of a parish for one year to elect parish officers does not necessarily operate as a dis- solution of the parish ; and if it did, the parish property would not, therefore, vest in the town, although the towu held the jiroperty in its parochial capacity before the parish was separately organized. Tobey v Wareham Bank, 13 Met. (Mass.) 440.

Division, Effect. A debt incurred by a town comprising one parish for building a meetinghouse was held to be due from the whole towu after a part had been incorporated as a second parish, the meetinghouse being within the limits of the first parish. Eager v Marlborough, 10 Mass. 430.

Where lands, which had been originally granted to a town for the use of the ministry were sold by virtue of a resolve of the Legislature and the money put at interest by the

PARISH 435

town, the annual income to be applied to the use of the min- istry; and afterward, a number of the inhabitants being incorporated into a separate religious society, the residue became a distinct parish ; it was held that this residue, those forming a distinct parish, succeeded to all the parochial rights and duties of the town, and were entitled to recover of the town the money and interest arising from the sales of such land. First Parish, Winthrop v Town of Winthrop, 1 Me. 208.

Ecclesiastical Council. As to the effect of the action ol" an ecclesiastical council recommending the dissolution of the relations between the pastor and his parish, see Bedford case in the article on Congregational Church.

Massachusetts. Originallj^ all our religious societies w'ere corporate bodies. The town at first exercised i)arochial powers, most of the people of this State being of one de- nomination. But as varieties of opinion sprang up it be- came necessary to sei)arate the parochial from the municipal business, and the parishes formed separate organizations. Other religious societies were incorporated by special acts; but many congregations remained unincorporated. Some persons had conscientious scruples against corporations, and others preferred to manage their religious affairs in a different way. The act of 1811 authorized unincorporated societies to take and hold property and manage the same by agents or otherwise. Silsby v Barlow, 16 Gray (Mass.) 32^.

Massachusetts, History. "From the earliest settlement of the colony the territory, as fast as it was granted out to actual settlers, was divided into territorial parishes, and each parish was a cor]>oration. In many cases towns consti- tuted parishes; that is, each town was a corporation, com- bining all the powers and functions both of a parochial and of a municipal corporation, and under one organization provided for the erection of meetinghouses, the support of public worship, and incidental expenses. Large towns were sometimes divided into two or more territorial parishes, in which case each parish was a corporation, with its proper

4:U) THE CIVIL LAW AND THE CHURCH

organizatiou aud officers." I'arislies were i-equired to pro- vide for the maintenance of public worship and the support of suitable ministers and religious teachers. The parish sj^stem which applied generally throughout the State, did not apply to Boston, "probably because its numbers in- creased so rapidly, and it was early found that more than one religious society would be necessary within its limits." "Where poll parishes were established they were uniformly constituted corporations by special act of incorporation ; such an act was an enabling act, creating a corporation hav- ing perpetual succession, and capable of holding real estate to a limited amount, and in such case the fee was in the corporation, to the use of pewholders and other members." Attorney-General v Proprietors of Meetinghouse in Federal Street, Boston, 8 Gray (Mass.) 1, 35, 38.

Meetinghouse, May Be Leased. Where a religious society has no further use for an old meetinghouse, and the land on which it stands abuts on a business street, it is not ultra vires for the society to let the land to a lessee who agrees to buy the meetinghouse, and to pay to such lessee or his assignees on the termination of the lease a just and reason- able sum for such buildings and improvements as shall have been put upon the land during the term of the lease. Holly- wood V First Parish, Brockton, 102 Mass. 269.

Meetinghouse, Title After Division of Town. A meeting- house for public worship, built by a town before it is divided into parishes, becomes, upon such division, the exclusive property of the first parish ; and the use of it for many years before the division, for town meetings for muni- cipal purposes, gives the town no easement in it, for sucli use is presumed to have been with the consent of the town in its parochial character, and an adverse right or an ease- ment cannot grow out of a mere permissive enjoyment. First Parish, Medford v Pratt, 4 Pick. (Mass.) 222.

Members, Liability for Debt. It is generally true that an individual member of an aggregate corporation is not liable for any debts or demands against it. The towns and par-

PAEISH 437

islies iu Massachusetts are an exception. For on such an execution the body or estate of any inhabitant may be taken to satisfy it. Chase v Merrimack Bank, 11) Pick (Mass.) 564.

Member, Reimbursement for Claim Paid. Where a judgment is recovered against a member of the parish on a claim against the parish, and the parishioner paid the judgment, he is entitled to recover the amount from the parish. Keith V Congregational Parish, Easton, 21 I'ick. (Mass.) 261.

Membership. Under the Massachusetts statute any per- son wishing to become a member of the parish must express his desire in writing, and the parish, by a direct vote or by an act of an authorized agent, must accede to the applica- tion in order to constitute him a member. First Parish, Sudbury v Stearns, 21 Pick. (Mass.) 148.

If a person separating from one religious society and joining another files with the clerk of the society' left a cer- tificate of the fact under the hand of the clerk of the society which he elects to join, it is conclusive evidence of his hav- ing ceased to be a member of the former society. Gage v Currier, 4 Pick. (Mass.) 399.

Where a mend)er of a religious society having, pursuant to the Massachusetts act of 1811, chap. 6, filed a certificate of his membership with the clerk of the town in which he lived, removed before the passing of the act of 1823, chaj). 106, to another town, it was held that he was not obliged to file a certificate under the last statute, with the clerk of the oldest religious society in such town in order to exempt him- self from taxation by that society ; and it was further held that a tax levied on his property by that society might be recovered back by an action of money had and received brought against the society. Sumner v First Parish, Dor- chester, (1826) 4 Pick. (Mass.) 361.

Minister. Where in a new town a Congregational min- ister was settled as the minister of the town, aiul after his death another minister of the same denomination was settled, this latter was held to succeed to all the rights of the former minister, and to be entitled to possession of the

488 THE OTVn. LAW AND THE CHURfll

iniiiisteriiil lands of the town; althongh a majority of 1h«» town were then of other denominations or persuasions. Jewett V Burroughs, 15 Mass. 404.

Minister, How Appointed. In Maine it was held that with- out the express concurrence or assent of the town or parish in their corporate capacity no one can become their min- ister or be legally recognized as such. According to the ecclesiastical usages of the country, the church is generally l>ermitted to nominate a minister, who may be ai)proved or rejected by the parish. If the parish approve, a contract of settlement is then made between them and the minister. Bisbee v Evans. 4 Me. .374.

Minister's Title to Property. When a minister of a town or parish is seized of any lands in right of the town or parish, which is the case of all parsonage lands, or lands granted for the use of the ministry or of the minister for the time being, the minister for this purpose is a sole corporation, and holds the same to himself and his successors. And in case of a vacancy in the office the town or parish is entitled to the custody of the same, and for that purpose may enter and take the profits till there be a successor. Every town is considered to be a parish until a separate parish be formed within it; and then the inhabitants and territory not included in the separate parish, form the first parish; and the minister of such first parish b}' law holds, to him and his successors, all the estates and rights which he held as minister of the town before the separation. Brunswick v Dunning, 7 Mass. 445.

Minor, Taxation. Personal property belonging to a minor must be taxed in the parish in which the guardian resides, although the minor may reside in another parish and at- tends public worship there. Baldwin v First Parish in Fitchburg, 8 Pick. (Mass.) 494.

Parishioner. The word ^^parishioner" included not only inhabitants of the parish but persons who are occupiers of lands liable for parish rents and duties. Attorney General V Parker, :5 A ttk. (Eng. i 57(5.

PAEISH 431)

Parsonage. The fee of lands in a town reserved for parson- age or ministerial lands, vests in the minister of the town when one is settled, and the tenure cannot be changed by a vote of the town, even though the minister assent tlieveto. And whatever rights the town may acquire in relation to the use or enjoyment of the profits must be under him and in subordination to his legal title. Inhabitants of Bucks- port V Spotford, 12 Me. 487.

Where property was conveyed to a town for parsonage purposes the ministers of the town were entitled to the use of the property and became seized successi^ely, in right of their parish. A conveyance by the parisli to a minister in fee, for a valuable consideration, was held void for the rea- son that the property was conveyed to the parish in trust. The parish (in this instance the town) had not the fee of the land, and therefore could not convey it. Austin v Thomas, 14 Mass. 338.

Poll Parish. Poll parishes are voluntary, and when unre- strained by their articles of association, or by their act of incorporation, if incorporated, are, of course, fully at liberty to prescribe terms of membership from time to time, which terms will be of binding authority on all connected with the parish, and they may make by-laws declaring what shall constitute membership, and what shall operate to cause a forfeiture of membership, and such by-laws may as well apply to i)resent as to future members. Taylor v Edson, 4 Gush. (Mass.) 522.

Powers. A i»arish has no authority to grant moneys except for settling ministers and building liouses of public worship, and for purposes necessarily connected with those objects. Bangs v Snow, 1 Mass. 181.

A parish may provide for religious instruction by the erection of meetinghouses and the support of ministers. Alna, Inhabitants of, v Plummer, 3 Me. 88.

Protestant Episcopal Church, Defined. A parish includes the individuals who associate themselves under the articles of incorporation, and, in their formal application for adniis-

440 THE CIVIL LAW AND THE CHURCH

sion, on their pledge of conformity to the diocesan and gen- eral legislation of the church, are received into union with the diocesan convention. Bird v St. Mark's Church, Water- loo, 62 la. 567.

Roman Catholic. Territorial areas described in the nomen- clature of the Roman Catholic Church as parishes, are not recognized by the law as corporate or political entities ; and if thej^ were such, the church could not legislate concerning them. McEntee v Bonacum, 66 Neb. 651.

Taxation. Parish taxes can be assessed only on the polls and property of members of the parish. A tax levied on unimproved property owned by a nonresident was, there- fore, held to be invalid. Dall v Kimball, 6 Me. 171.

The erection of a second parish in a town does not pre- vent the town authorities from assessing parish taxes. Ashby V Wellington, 8 Pick. (Mass.) 524.

I'ersons assessed for the support of public worship in a parish, who have a right to have their moneys paid over to a minister other than the parish minister, must notify the parish of their desire to have their moneys so paid over, and the minister must demand the moneys within a reasonable time after the assessment is made ; and a year from making such assessment is a reasonable time, but in particular cases the time may be extended.

A person leaving the society in which the parish worship, and honestly and in good faith joining one of another reli- gious denomination, is entitled to have his money paid over to the teacher on whose instruction he attends, althougii he may have no conscientious scruples on the subject. Montague v Inhabitants First Parish in Dedham, 4 Mass. 269.

Where the assessors of a religious society assess a tax on a person who is not a member they are liable to an action of trespass; for they do not come within the provision in St. 1823, chap. 138, s. 5. that in certain cases they shall be responsible only for their own integrity and fidelity. Gage V Currier, 4 Pick. (Mass.) 309.

PARSONAGE

Massachusetts rule, 441. Ministers' occupancy, 441. Town land, 442. Trust for, when invahd, 443. Use, 443.

Massachusetts Rule. In Massachusetts a minister holds j)ai'souaji,e lands in lee simple in the rij^ht ol' tlie parish or church, and, therefore, on liis resignation, de))rivation, or death, the fee is in abeyance nntil tliere be a successor. Dur- ing a vacancy the parish or church have the custody, and are entitled to the profits of the i)arsonage. If the minister alien with the assent of his i)arish, or of the vestry of the church, the alienation will bind the successor; if without such assent, it will be valid no longer tlian he continues minister. An alienation of tlie parsonage by the town, dis- trict, precinct, or vestry is void ; for if there be a minister, the fee is in him ; or if there be a vacancy, tlie fee is in abey- ance, Weston V Hunt, 2 Mass. 500.

Ministers' Occupancy. The society employed a pastor for a cash salary, and also the use of the parsonage. He took pos- session of the parsonage in 1870, and occupied it until his death. In 1877 the society was divided, and two new so- cieties were organized, one known as the East Norway Lake and the other as the West Norway Lake Norwegian Evangel- ical Lutheran Society, and the old society was practically abandoned except for closing up its affairs and disi)osing of its property. The minister with whom the contract was made continued to occupy the parsonage after the division, serving both societies. After the minister's death in 1885 his personal representatives had no title or Interest in the parsonage. The contract did not create tlie relation of land-

441

442 THE CIVIL LAW AND THE CHURCH

lord and tenant. East Norway Lake Norwegian Evangel- ical Lutheran Church v Froislie, 37 Minn, 447.

A minister in the Methodist Episcopal Church who occu- pies the parsonage furnished by the local society is not a servant of the trustees nor of the society in the sense that he could be treated as a trespasser on his refusal to leave it.

The plaintiff, a member of the Newark Conference, had been aj>])ointed preacher at Spring Valley, and while officiat- ing in that capacity occupied the parsonage provided by tlie local society. In January, 1880, he was sus])ended from all ministerial and church privileges. The trustees of the local society ejected the pastor from the parsonage. In an action by the pastor against the trustees, alleging an assault and forcible exclusion of himself from the house and the conversion of his goods, it was held that the min- ister was in lawful possession of the parsonage, and the use of force by the trustees to expel him from the house was without justification. Bristor v Burr, 120 N. Y. 427.

Town Land. The proprietors of a new township appro- priated a lot of land for a parsonage, at the same time vot- ing that they would endeavor that a Congregational min- ister should be settled in the town. Afterward a Congrega- tional society was incorporated in the town as a poll parish. It was held that the said society was not entitled to the use of such parsonage, but that the same remained to the first parish, whether of the Congregational order or not. First Parish, Shapleigh v Gilman, 13 Mass. 190.

A town, owning land in fee, and managing its parochial afl'airs as a municipal corporation, voted in 1712 to fence in three and a half acres for the use of the ministry. The next year they voted to take up and fence in four acres in lieu of the three and a half acres. From that time they exchanged, sold, leased, or managed themselves the lands which they called ministerial, just as they pleased, until 1741, when they voted that certain lands, including the parcel of four acres, should belong to the first parish. In 1777 the first parish conveyed this parcel to an individual. It was held

PARSONAGE U:\

that this parcel was not technically parsonage land, it not being plainly shown to be the intent of the town that it should go to the ministers of the parish in succession, and so the conveyance made by the parish was valid. Emerson V Wiley, 10 Pick. (Mass.) 317.

Trust for, When Invalid. In Carskadon v Torreyson, 17 W. Va. 43, it was held that a conveyance of property to trustees, intended for a parsonage, for the use of the min- isters of the Methodist Episcopal Church in the South Branch Circuit, West Virginia, was void for parsonage ])ui"- poses, unless for the benefit of a particular local congrega- tion. In this instance the circuit was composed of several congregations, and it could not be determined Avhich congre- gation was intended as a beneficiary of the trust.

Use. The manse or parsonage house owned by a religious society stands upon a footing different from that of a meet- inghouse. There is no right of use in common in the par- sonage. It is not a sacred building like a church edifice, but is, properly speaking, an endowment or source of pe- cuniary revenue to aid in suj)port of the worship in the church property. Its use is not spiritual but temporal. Though it is ordinarily used as a residence for the pastor, there is nothing in its character or ownership to prevent its being used for other purposes as circumstances may render it profitable or beneficial. Everett v First Presbyterian Church, 53 N. J. Eq. 500.

PARTICULAR BAPTIST CHURCH

Particular Baptists, 444.

Particular Baptists. In 1797 the trustees of the town con- veyed land to the Particnlur Baptist Church. In 1800 there was a union between the Particular and Separate Baptists in Kentucky under the denomination of United Baptists. Some thirty or thirty-five years afterward the church known as the Eeformed Church was organized, composed in part of persons who had seceded from the Baptist Church. By some arrangement tlie new church occuj^ied the house of worship used by the original church. A controversy arose over the right to use the church building, the old society claiming the exclusive right to use it, and finally prevented the new society from occup^dng it. The old society was not incorporated, and it was held that tlie title which vested in the original trustees in the conveyance from the town did not pass to the officers of the society, and the officers did not have the legal title; but as officers of the society they were entitled to maintain an action to establish the right to the possession of the property. The change of name from Par- ticular to the United Baptist Church was not a change in fact in the society, which continued under the original or- ganization, though under a change of name. The Eeformed Church had no right to even a i)artial use of the clmrcli building. It was an entirely distinct body of Christians. Cahill V Bigger, 8 B. Mon. (Ky.) 211.

444

PARTITION

Joint, church ownership, 445.

Joint Church Ownership. In Swoyer v Schaffer, 13 Pa. Co. Ct. 316, it wa.s held that tlie court had no jurisdiction to decree partition of cliurch property- owned in common by two congregations.

445

PEWS

Historical note, 446.

Assessment for expenses, 447.

Changing, injunction refused, 447.

Church used for general purposes, 447.

Distribution, 447.

Distui-bing possession, 448.

Easement, 449.

English custom, 453.

Execution, sale, 454.

Forfeiture, 454.

Incorporeal hereditament, 455.

Indemnity for loss, 455.

Locking pew, 457.

Loose bench, 457.

Louisiana rule, 457.

Mandamus, 457.

Massachusetts rule, 457.

New building, 458.

New pew, 459.

Parish property, 460.

Perpetual lease, 460.

Pewholders' corporate rights, 460.

Possession, mandamus, 460.

Prescription, 460.

Presumption, 461.

Real estate, 461.

Rent, character of debt, 462.

Rent, when preferred debt, 462.

Repairs, 462.

Roman CathoUc, 463.

Sale of property, 464.

Sale, 464.

Taxation, 464.

Termination of right, 465.

Title, 465.

Title, transferrable, 466.

Trespass, 466.

Historical Note. Pews constitute a subject of peculiar ownership. They are detined to be inclosed seats in

446

PEWS 447

churches, and it is said that, according to modern use and idea, they were not known until long after the Reformation, and that inclosed pews were not in general use before the middle of the seventeenth century, being for a long time confined to the family of the patron. In England the right of property in a pew is a mere easement or incorporeal right, and hence the English doctrine that case only will lie for tlie distnrbance of the occupant. O'Hear v De Goesbriand, 33 Vt. 51):5.

Assessment for Expenses. A pewholder who bought a pew at public auction free of rent was held not liable afterward on an assessment for current expenses. Trustees 1st Presby. Cong. Hebron v Quakenbush, 10 Johns (N. Y.) 217.

Changing, Injunction Refused. In Solomon v Congregation B'Nai Jeshunin, 4U How. l*r. (N. Y.) 263, the court refused an injunction to restrain the church authorities from mak- ing alterations and repairs in the church edifice which would have the effect of changing the i)ews and the seating arrange- ments of the society.

Church Used for General Purposes. In Jackson v Rounse- ville, 5 Mete. (Mass.) 127, the court said it had been the practice in various parts of the State, especially in Boston, for religious societies to lend the use of their houses to the government, for the annual election sermon, and to various societies and philanthropic associations, to hold meetings, for various purposes; and u])on such occasions it has been usual for the body or association to whom the house is lent to control the use of the pews, without regard to the par- ticular owners.

Distribution. In Reynolds v Monkton, 2 M. and Rob. (Eng.) 384, it was held that the churchwardens have a dis- cretionary })ower to appro})riate the pews in the church among the parishioners, and may remove persons intruding on seats already appropriated.

The trustees of a Free Church have the right to control the places where persons should sit, in the absence of any proof that by usage or otherwise rights were acquired to

448 THE CIVIL LAW AND THE CHURCH

special seats, and that a person upon refusing to change his seat may be forcibly removed from the seat he is so occupy- ing. Sheldon v Vail, 28 Hun (N. Y.) 354.

In England pews are altogether a matter of ecclesiastical regulation. It is the duty of the churchwardens to distrib- ute them in the most convenient way so as to give to each parishioner a seat. In this country we have no parish churches. With us they are corporations aggregate, made so by law. The temporal concerns are managed by trustees, who have power to dispose of the pews by sale and by letting them out to hire, fixing the amount of rent so as to produce a revenue. The purchase of a pew gives a more permanent right than a mere hiring. A purchaser, as well as a hirer, pays a rent or assessment for the support of the establish- ment, but still the purchaser has a property which is trans- missible. The purchaser of the pew has no right or inter- est in the soil. His possession is not a possession of real estate. The trustees may at any time pull down or remove the building. In case of a sale and the erection of a new building the right of a pewholder in tlie old building is transferred to the new building. Matter of Brick Presby- terian Church, 3 Edw. Ch. (N. Y.) 155.

Disturbing Possession. The owner of a pew in a church has an exclusive right to its possession and enjoyment for the purposes of public worship, and may maintain an action for disturbing his possession, even against the society or person in whom the title to the land and building is vested. O'Hear v De Goesbriand, 33 Vt. 593.

The pewholders, in the ordinary cases of meetinghouses or churches built by incorporations under the statute, have only a right of occupancy in their seats, subject to supe- rior rights of the society owning the pew. Trespass is the proper remedy for a disturbance of the pew-owner's right. A pew cannot be sold on an assessment unless the shares are defined, are regularly assessed, and proceedings are in con- formity with the constitution and by-laws of the society. Perrin v Granger, 33 Vt. 101.

PEWS 449

A per>son had a prescriptive right to a seat in a church, and being disturbed, might sue in a spiritual court to have his possession quieted. Jacob v Dallow, 2 Salk. (Eng.j 551.

Easement. A pewholder's right of occupancy is subject to the right of the meetinghouse proprietors to sell th(; church edifice and rebuild elsewhere. First Presbyterian Society of Antrim v Bass, 08 N. H. 33o.

Where the pews in a church have been purchased and a title given to the purchaser he has but a qualified interest. His right is subject to that of the trustees or owners of the church, who liave tlie right to take down, rebuild, or remove tlie church for the puri)ose of more convenient worship, with- out making any comi>ensatiou to the pewholders for the temi)orary interrui)tion. Van Houten v First Keformed Dutch Ch. 17 N. J. Eq. 130. See also Van Horn v Talnmge, 8 X. .1. Eq. 108.

A i)ewliolder has an easement in and not a title to the lieehold. He has a property in his jiew and a right to its exclu.sive posses.sion. A pewh(ddei- has certain ])rivileges by reason of his ownershi]), sucli as i)assing thi-ough the aisles, being addressed from the pnl]»it, etc. He may own a pew and yet not be a mend)er of the parish corporation. Fir.st Bai)tist Society, Lee<ls v Grant, 50 Me. 245.

A house of worship having been I)nilt on land owned by the society, it was held that tlie cor]»oration and not the members of it became the owner of the ])roperty, and that pewholders belonging to another denomination could not exercise any authority in the management and control of the property. A pewliolder's riglit is only an easement. First Baptist Society of Leeds v Grant, 59 Me. 245.

The grant of a pew in perpetuity does not give to the owner of land any fee. The grantee is only entitled to the use of the pew for the purpose of sitting therein during divine service. But the owner of the pew may maintain case, trespass or ejectment, according to the circumstances, if he is improperly disturbed in the legitimate exercise of

450 THE CIVIL LAW AND THE CHURCH

his legal right to use his pe^y for that purpose. Baptist Church, Hartford v Witherell, 3 Paige Ch. (N. Y. ) 296.

A person may have the mere possessory right in a pew. Wilkinson v Moss, 2 Lee (Eng. i 117.

Pewholders in a church building have only a qualiiied and usufructuary right in their pews, subject to the right of the religious society to remodel them, and to alter the internal structure of the building, or enlarge or remove it, or sell it in order to build anew. Sohier v Trinity Church, 101) Mass. 1.

A pewholder acquires only a right of occupancy for wor- ship in connection with tlie services prescribed by the rules of the church. He does not acquire an absolute title, but his interest is subordinate to the general right of the cor- poration to alter, repair, rebuild, or sell the edifice. Vor- hees V Presbyterian Church of Amsterdam, 8 Barb. (N. Y.) 135, also 17 Barb. (N. Y.) 103.

A pewholder had only the right to occupy a pew for the purpose of worship. The title of the property remains in the corporation and the pewholder cannot compel it to maintain divine service, nor even to open the house for that purpose; and the building may be abandoned without sub- jecting the society to any liability as against a pewholder. Matter of Saugerties Reformed Dutch Ch., 16 Barb. (N. Y.) 239.

A pewholder does not acquire absolute title to the prop- erty, but he acquires only the right to use the pew for the purpose of sitting therein during services. A pew-owner has no title to the building or any j^art of it, nor to the soil on which it stands, and the society may at their pleasure alter the structure and may even destroy the pew. For this alter- ation or destruction of the pew the owner has no redress and is not entitled to any compensation if the change was made from necessity ; but otherwise if the change was made as a mere matter of convenience or expediency. Cooper v Presby. Ch. of Sandy Hill, 32 Barb. (N. Y.) 222.

Purchaser acquires only the right to use the pew during

PEWS 451

divine service, and does not obtain the absolute title. Hinde V Chorlton, 15 Law Times N. S. (Eug.) 472.

The right of a pew gives no right to the soil. It gives only limited estate. The owner may use the property as a pew but he has not an unlimited absolute right. He cannot use it lawfully for purposes incompatible with its nature. Heeney v St. Peter's Ch. 2 Edw. Ch. (N. Y.) 008.

The right of a pewholder to a pew in a meetinghouse is subordinate to the rights of the owners of the house. He has an exclusive right to occupy his pew when the house is used for the purposes for which it was erected, but he can- not convert his pew to other uses not contemplated. If the house is taken down as a matter of convenience or taste by the owners thereof, the owner of the jiew is entitled to com- pensation ; but if the house is taken down as a nuitter of necessity, and because it has become ruinous ami wholly unfit for the i)uri)oses for whidi it was erected, the owners of the house are not liable to make any compensation to the sei)arate })ewholders, but may take the a^ails of the mate- rials of which the house is built for the puri)ose of erecting another house in its place.

The owner of a i)ew in a meetinghouse may sustain an action of trespass on the case against one who unlawfully disturbs him in the possession of his pew. But he holds his pew subject to the right of the owners of the house to take down and rebuild the house, in case of necessity, without making him compensation. Kellogg v Dickinson, 18 Vt. 2m.

Pew-owners have merely a qualified and usufructuary right in their pews, subject to the right of the society to remodel them and to alter the internal structure of the building, or enlarge or remove it, or sell the edifice and re- build elsewhere. Colby v Northfield and Tilton Congrega- tional Society, «:{ N. H. H?,.

A pew acquired from a town while it was acting paro- chially became the property of the pewholder. Such prop- erty, however, is not absolute, but qualified, and is subject to

452 THE CIVIL LAW AND THE CHURCH

a right of the parish to pull dowu the church and build an- other. By the act of 1817 the proprietors of the meeting- house were given power to take down any pew when deemed necessary for the purpose of repairing or rebuilding the house. Daniel v Wood, 1 Pick. (Mass.) 102.

In England, where by special acts a local society was incorporated and the pewholders were declared to possess a fee simple title in the pews, it was held that the proprietor of a pew did not acquire such a freehold interest in any por- tion of the soil of the church as to entitle him to a vote for the county, but merely an easement or qualified right to the occupation and enjoyment of the pew for the purpose of attending the services of the church, Brumfitt v Roberts, L. R. 5 Com. PI. (Eng.) 224.

An absolute deed of a church pew in i)erpetuity is only the conveyance of the right to the use of the pew during divine service in the nature of a leasehold estate, and gives the holder no claim that the relative situation of the inter- nal parts of the chvirch shall not be altered, nor that the church shall remain unaltered unless damages shall be paid or secured. Accordingly, where the church authorities added new pews in front of the plaintiff's pew, and removed the pulpit and chancel some sixteen feet farther off, it was held that the trustees had power to make such an enlargement, and the plaintiff was not entitled to an injunction restrain- ing it. Bronson v St. Peter's Church, Auburn, 7 N. Y. Leg. Obs. 361.

The right of a pew-owner is a right to the use of the pew during divine service. His right is subject to the right of the owners of the house to take down, rebuild, or remove the house for the purpose of more convenient worship. The pew-owners as such do not constitute the corporation and have no voice or vote in the management of its affairs. No pew-owner can become a member against his consent; and if a member, he does not lose his property in his pew by separating from the society. Pew-owners cannot decide what doctrine shall be preached, except where the society is

1»EWS 453

composed of pew-owners only. Trinitarian (V^ngregational Society, Francestown v Union Congregational Society, Francestown, 61 N, H. 384.

"A pewholder, or owner, has no legal interest in the church edifice, or in the land upon which it stands. The title to it, and the right in the land, whatever that right may be, is in the corporation, and the possession is in the trustees." A pew-owner has only the right to occupj' the pew during divine worship, which is a qualified interest and one necessarily limited in ])oint of time. Abernethy v So- ciety of the Church of the I'uritans, 3 l>a]y, (N. Y.) 1.

A pewholder has only the right to occupy it during divine services, and for no other purpose. This right is sub- ordinate to the power of the corj)oration to remodel the building or to sell it, on deciding to remove. Erwin v Hurd, 13 Abb. N. C. (N. Y.) 01.

Proj)rietors Union Meetinghouse v Kowell, (IG Me. 400 fol- lowing First Baptist Society in Leeds v Grant, 59 Me. 245, it was held that pewholders have only an easement, and that the title to the church i»ro])erty is in the proprietors.

Pews in the society's church were held not subject to con- veyance in fee by the society, and pewholders have only the right of occupancy. Montgomery v Johnson, 9 How. Pr. (N. Y.) 232.

The meetinghouse was erected by the town in 1791. In 1839 the town j)ermitted the Congregational society to make alterations in the building so as to make an upper and lower floor, and in consideration of this action by the church it was to have exclusive j)ossession of and the right to control the ui)i)er room as an audience room to be used for the pur- pose of public worship. Pews having been constructed and sold, it was held that the owner of a pew held it subject to the right of the society to make alterations and repairs on tendering compensation. Jones v Towne, 58 N. H. 462.

English Custom. In England before the Keformation the body of the church was common to all parishioners. After the Reformation a practice arose of assigning particular

454 THE CIVIL LAW AND THE CHURCH

seats to individuals. This assignment of seats was made by the ordinary, by a faculty which was a mere license, and was personal to the licensee, and all disputes concerning it were determined in the spiritual courts. Every parishioner has a right to a seat in the parish church but not to a pew. By later custom churchwardens had supervision and control of the questions relating to the assignment of pews, being presumed to act under the direction of the ordinary. Liv- ingston V Trinity Church, Trenton, 45 N. J. L. 230.

Execution, Sale. Pews which had not been sold by the cor- poration were sold on an execution issued on a judgment against the corporation for the amount due on certain bonds. By an amendment of the charter of the church, passed in 1842, it was declared that the purchasers of pews in fee simple should hold them forever free from any liability for debts, and that they should never be susceptible of any species of mortgage, and that the sale of such pews need not be recorded. The pews were, therefore, a distinct property, and when owned by an individual, not liable to be seized for his debts. They are quite distinct from the church and the ground on which it stands. City Bank, New Orleans v Mclntyre, 8 Rob. Re. (La.) 467.

Forfeiture. A parish on October 1, 1828, sold the pews in their meetinghouse on the following conditions : "The sum bid for choice, and one third of the appraised value shall be paid in cash, one third part in one year, and the residue in two years, with interest. The first payment to be forfeited if the other payments are not nmde agreeably to the above conditions." The defendant purchased a pew, made the first payment, entered into possession, and continued in pos- session until October, 1831, but made no further payments. It was held that under the contract the defendant acquired no title to the pew but only a right to acquire a title upon a compliance with the terms of sale ; that he had only a license to occupy, or a tenancy for a year, or a tenancy at will. First Parish, Quincy v Spear, 15 Pick. (Mass.) 144.

A i)ew-owner's right may be forfeited for iu>npayment of

i'KWS 455

assessmeuts. Aberiiethy v Society of the Church of the Puritans, ;i Daly (N. Y. ) 1.

The society owned its meetinghouse in fee simple, and was composed exclusively of successive pewholders. A by-law contained a provision that a grantee should forfeit the pew to the society if he should leave the meetinghouse without first offering it to them for a certain jirice. A pewliolder who ceased to worship in this church and connected himself with another religions society' neglected to offer his j»ew to the treasurer but rented it to another person. It was held that title to the pew had become forfeited to the society. The condition in the by-law regarding a forfeiture was not repugnant to the grant of the pew and was valid. Franch v Old South Society, Boston, 100 Mass. 479. See also Crocker v Old South Society, lOtJ Mass. 489.

Incorporeal Hereditament. A church pew is not assets in the hands of the administi-ator. A pew is an inc()r])oreal hereditament. It is not mere personal i)roi>erty, but real property ; although i)erhaps not real estate. The remedy of creditors is by bill against the heir. McNabb v Tond, 4 Brad. (N. Y.) 7.

Indemnity for Loss. Unless a meetinghouse at the time it is torn down by a vote of the j)i'opi-ietors is not oidy unfit for public worshi]) but so old and ruinous as to render its entire demolition necessary, a pewltolder is entitled to indemnity for the destruction of his pew. Gorton v Ha<lsell, 9 Cu.sh. (Mass. I ~}0S.

The parish has the right to make repairs to a church building, or take it down and build auotlier, and in doing this may destroy a i)ew ; but the pewliolder is entitled to indemnity for the injury or loss. Gay v Baker, 17 Ma.ss. 4.'»r>.

A meetinghouse was built u]»on land Axitli the permission of the owner, who subsequently conveyed the land to trustees in trust, to be occupied for a meetinghouse conmion, or green, and for the continuation of a meetinghouse thereon, and when it ceased to be occupied for that purpose to revert to the grantor. It was held that the failure to keep the

456 THE CIVIL LAW AND THE CHURCH

house in such repair that it could be occupied for public worship would not of itself terminate the right of a pew- holder to his pew nor leave him without right to maintain an action for injury done thereto by a stranger, but would only make his right thereto less valuable, and therefore lessen the amount which he could recover. A pewholder cannot maintain trespass for the mere breaking and entry of the meetinghouse in which his pew is situated, but he may for the destruction of his pew, and this although he sue for the entry with it, for the destruction of the pew is the gist of the action.

A pewholder's right is only a right to occupy his pew dur- ing public worship and when the meetinghouse is in such condition that it cannot be, and is not occupied for public worship, he can recover only nominal damages for injury to his pew. Howe v Stevens, 47 Vt. 262.

In Cooper v Presby. Ch. of Sandy Hill, 32 Barb. (N. Y.) 222, it was held that the trustees had a right to change the structure or make such alteration as they thought best ; that a pew-owner had no absolute title to the pew, nor to the material of which it was constructed, nor to the soil under it; also that if a pew was altered or destroyed as a mere matter of convenience or expediency, the peAV-owner's only remedy was by an action for indemnity or compensation.

A parish may take down a meetinghouse, either as a matter of necessity or of expediency; in the former case they are not and in the latter, they are, bound to indemnify the pewholder for the loss of his pew. Howard v First Parish, 7 Pick. (Mass.) 138.

The pewholder has an exclusive right to occupy his pew, and to maintain trespass, or a writ of entry, against any- one who disturbs him in his seat. But he does not own the soil over which his pew is built, nor the space above it, for there may be other pews in a gallery above him whose owners have an equal right with himself. The parish may take down the building and rebuild on the same spot, or may alter the form and shape of the building for the purpose

PEWS 457

of making it more couveiiieut. If this is done in good faith, and the pew is destroyed, the parish mnst provide an indem- nity for the pewholder on just and equitable principles. Gay V Baker, 17 Mass. 435.

Locking Pew. Land was conveyed to the trustees for the use of the church and society for a place of public religious worship for such church and society, and for no other use, intent, or purpose whatsoever. In the deed of pews the pro- visions of the deed of the property were mentioned. It was held that a pew-owner had the sole right to the use of his pew on all occasions when the house was occupied, though it be opened for purposes different from those mentioned in the conveyance thereof; and he had a right to exclude all other persons from his pew on such occasions by fastening the pew doors or otherwise, in such manner as not to inter- rupt or annoy those who may occupy other jtews. Jackson v Rounseville, 5 Mete. Qlass.) 127.

Loose Bench. The general right of a ])ewholder does not apply in case of a loose bench which tlie church authorities permit to be placed in the church and used tliere by the owner, and he cannot maintain trespass against the trus- tees for its removal. Niebuhr v Piersdortf, 24 Wis. olG.

Louisiana Rule. A pew in a cliurch being attached to the realty is of the character of a usufruct, and nnist be classed as an incorporeal immovable. Succession of Gamble, 23 La. Ann. 0.

Mandamus. A nmndamus against the trustees of a society is not the i)roi)er remedy by a pew-owner to recover ])os- session of it. Coinnionwealth, v Kosseter. 2 Bin. (I*a.) 3H0.

Massachusetts Rule. Under the Massachusetts parish sys- tem a part of the church edifice was generally appropriated to the erection of i)ews, which were usually sold and the proceeds applied to the cost of erection, or to the settlement and support of the minister, or other parish purposes. The right to a pew, except in Boston, was regarded for many purposes as real estate, in which the proprietor had a free- hold, for the invasion of which a writ of entry, trespass, and

458 THE CIVIL LAW AND THE CHUKCH

other legal remedies adapted to vindicate rights to real estate, were ever found in constant nse. But in its nature it was a freehold, an estate of peculiar character, held in subordination to the corporation, who are sole owners of the soil. "The right to a pew, although everywhere in Massa- chusetts it is regarded as property, and in every part of the state except Boston as real estate, and in Boston as personal estate, yet it is property of a peculiar nature, derivative and dependent. It is an exclusive right to occupy a particular portion of a house of public worsliip, under certain restric- tions. The owner of a pew is not a tenant in conmion of the estate on which the house stands; the legal estate is in the corporation, if the religious society be one, or in the trustees, if the property be vested in them to the use of the congrega- tion forming a religious society for public worship." At- torney General v Proprietors of Meetinghouse in Federal St., Boston, 3 Gray (Mass.) 1.

New Building. An action was brought by a pew-owner for trespass for tearing down a pew. The church authorities justified on the ground that the edifice was in a ruinous con- dition and that the new building was necessary. The court held that this did not necessarily appear from the facts and that there was no i^ermanent decay or unfitness shown. The plaintiff recovered judgment. Gorton v Hadsell, 9 Gush. (Mass.) 508.

The grant of a pew in perpetuity does not give an absolute right as the grant of land in fee. The pew-owner takes only a usufructuary right. If the building be destroyed by cas- ualty, the pew-owner's right is gone. If the church has to be rebuilt on the same, or a different location, the pew-owner has no claim. Kincaid's Appeal, 66 Pa. St. 420.

It was held that the society might abandon its place of worship and erect a new building without subjecting it to any liability as against pewholders in the original edifice. Matter of Saugerties Keformed Dutch Ch., 16 Barb. (N. Y.) 239.

When a church edifice is destroyed by fire or any casualty,

PEWS 450

or becomes unfitted for use from age, or is demolished from necessity, the strictly legal rights of the pewholder are gone, but in a new edifice built to replace the former he has an equitable claim to be reinstated in a position corresponding to his former one, upon bearing his fair proportion of the expense ; and if his rights in that respect are disregarded, he is entitled to compensation. Tt is the dnty of the trustees to tender to the ])ewhol(ler a ]»ew in the new edifice corre- sponding in location to that which he owned in tlie former bnihling, upon tlie jKiyniiMit of snch a sum, as in ecpiity, he ought to ]»ay if the cost of the new strneture exceeds the ]>roceeds of the sale of the (»M jtroperty together with the sums in the treasury of the society; .iiid ii' they failed to allot him snch a i>ew, he shouhl be indemnitied in damages for his loss. Mayer v Temple Beth Kl, 52 St. Re. (N. Y. ) ()3S.

A dee<l of a pew in a synagogue j>rovided that if a new synagogue should be erected the owner of the pew should be entitled to a pew of the same nund)er in the new building. A new synagogue was erected, and the trustees allotted to the pew-owner a ])ew in the same relative location, but not of the same nund)er, which was in a different part of the room. It was held that the ]>ewliolder was entitled to a i)ew of the same number as the old one without regard to its location. Samuels v Cong. Col. Israel Anshi Poland, .")!' App. Div. (N. Y.) 287.

If a i)arish abandon its meetinghouse as a place of public worship, although it continue to be fit for that purpose, and erect a new one on a diff'erent site, it does not thereby sub- ject itself to any liability to the proprietor of a i)ew in the old meetinghouse, it not ai»i)earing that the i)arish acted wantonly or with any Intention to injure him. Fassett v First Parish, Boylston, 10 Pick, i Mass. i lUW.

New Pew. "Though seats be pulled down in a church, yet a prescri])tion to have a seat remains to every one, so that if seats be built up by the ordinary where another had an ancient one, or built on jtart of It, it is legal. The defendant had as much seat as she had beloi-e, but not in the same

460 THE CIV'IL LAW AND THE CHURCH

place, and all i)nllefl down without her consent." Archer v Sweetnani, Fort. (Eng.) 34G.

Parish Property. Pews in a church belong to the parish for the use of the inhabitants, and cannot be sold nor let without a special act of I'arlianient. The occupier of a pew ceasing to be an inhabitant of the parish cannot let the pew with, and thus annex it to, his house, but it reverts to the disposal of the churchwardens. Wyllie v Mott, 1 Hagg. Eccles. (Eng.) 19.

Perpetual Lease. The church was erected with funds raised by subscription on the understanding that pews should be held under perpetual leases reserving rent. In Foote v West, 1 Denio (N. Y.) 544, it was held that the purchaser from a pewholder of his right to the pew was not entitled to a deed free from rent but that the rent followed the title to the pew.

Pewholders' Corporate Rights. The pew-owners formed a corporation, which, under the statute, had authority to control the meetinghouse, but such control could be exer- cised only at a meeting regularly called. A justice of the peace had no power to call such a meeting. Therefore an increased assessment on pews ordered at such an irregular meeting was held void. Bayberry v Mead, 80 Me. 27.

Possession, Mandamus. The court refused a writ of man- damus against the trustees to restore the possession of a pew to its owner on the ground that he had a complete remedy at law. Commonwealth v Rosseter, 2 Bin. (Pa.) 3G0.

Prescription. In an action for disturbing the pewholder's possession he was required to show a prescriptive right, and possession above sixty years was held an insufficient title on which to maintain the action. Stocks v Booth, 1 D. and E. (Eng.) 225.

A pew in the aisle of a church may be prescribed for as appertaining to a house out of the parish. Quaere, as to a pew in the body of the church. Davis v Witts, Forr. (Eng.) 14.

PEWS 461

On au application for a faculty to repair and renew a churcb a parishioner appeared to the decree and prayed a faculty might not be granted without a proviso that a pew, claimed to be held by him by prescription, should not be removed or altered. The prescription was denied. It was held that a prima facie title bj^ prescription was estab- lished, and that the faculty should be issued with the pro- viso. Evidence of repair of a pew claimed by prescrip- tion is not absolutely necessary, as no repair may have been made within the period of any one living. Knapp v Par- ishioners of St. Mary Willesden, 2 Robertson Ecc. Re. (Eng.) 305, 369.

Presumption. Uninterrupted possession of a pew in the chancel of a church for thirty years is presumptive evidence of a i)rescriptive right to the pew in an action against a wrongdoer ; and that presumption ma}' be rebutted by proof that the pew had no existence thirty years ago. Griffith v Matthews, 5 Durnf. & East. (Eng.) 296.

Real Estate. A pew in a church is real estate and title to it can be transferred only by a writing signed by the proper parties. First Bapt. Churdi, Ithaca v Bigelow, 16 Wend. (N. Y.) 28.

In Deutsch v Stone, 11 Ohio Dec. 436, a pew was held to be real estate, and not subject to attachment on process issued by a justice of the peace; and the pew having been sold by the original owner after the attachment was issued, it was held the title x)cissed to the purchaser notwithstanding the attachment. The court said that the pew was real estate, and its character could not be changed b}"^ agreement be- tween the society and the owner. In this case the convey- ance from the society to the owner declared that the pew should be deemed a chattel as to the purchaser, but real estate as to the society. Such au agreement could not change the essential character of the pew.

A pew is real estate, and under the testator's will passes by a devise of his real j)roperty to his widow with remainder over. A person deriving title to the pew from one who

462 THE CIVIL LAW AND Til 10 (HUPvOH

received it in reiuaiiuler was held entitled to the i^roperty. Bates V Bparrell, 10 Mass. 323.

Rent, Character of Deht. A pew in a church here is a very different kind of property from a pew in one of the churches of the English Establishment. On the death of the owner of a pew his personal representatives succeed to his title for the purpose of sale, but the pew only is chargeable with the rent accruing after his death. Where a pew was granted subject to a yearly rent the law does not imply a covenant that the executors shall pay the rent accruing after the grantee's death. It was accordingly held that in an action against the society for money loaned, the society could not set off pew rent accruing after the owner's death. Church V Wells' Executors, 24 Ta. 249.

Rent, When Preferred Deht. Eent due from the testator upon a church pew is not a preferred debt, under the provi- sions of the revised statutes unless it is rent due upon a term of years in such pew, which belongs to the executors or administrators as a part of the personal estate of the testator. Johnson v Corbett, 11 Paige Ch. (N. Y.) 265.

Repairs. The right of a pewholder was subject to such repairs and alterations of the church edifice as the church authorities might direct, and their action cannot be re- strained by injunction. Solomon v Congregation B'nai Jeshurun, 49 How. Pr. (N. Y.) 263.

The right of a ])ewholder to a pew in a meetinghouse owned b/a religious society is subordinate to the right of the society to repair or remodel the house. A religious society may alter, remove, or destroy a pew in its meetinghouse upon paving or tendering to the owner full compensation when it becomes necessary for the purpose of making needed alterations or repairs in their church edifice. A person wrongfully occupying a pew may be removed from it by a police oflScer, or by the owner of the pew, or anyone acting at his request. Jones v Towne, 58 N. H. 462.

Where, under the New Hampshire statute the pew-owners, with the consent of the religious society, made alterations

PEWS 463

in the interior of the chnrch, rearranging and changing the location of the pews, a subsequent assignment of pews to former occupants by a committee of pew-owners was sus- tained. Colby V Northfield and Tilton Congregational So- ciety, 63 N. H. 63.

It seems that the Massachusetts act of 1817, c. 189, relat- ing to the appraisement of pews when about to be destroyed for the purpose of repairing and improving the meeting- house, applies to a territorial parish, and in an action by a pewholder for destroying his pew it was competent to give in evidence the appraisement in connection with the testi- mony of the appraisers, in justification of the parish, and to show the value of the pew. Kimball v Second Congre- gational Parish, Rowley, 21 I*ick. (Mass.) 317.

Eoman Catholic. In Aylward v O'Brien, 160 Mass. 118, it was held that title to pews in the Roman Catholic Church, when conveyed to individuals, was not held by them in any different way than in the churches of other religious de- nominations. The parish, or the proprietors, may abandon the meetinghouse as a place of public worship without any liability to jjewholders, although the pews may thereby be rendered nearly or quite useless ; and the fact that the meet- inghouse is still fit to be used does not render the parish or the proi»rietors liable. The right of the ])ewholder is held to be of such a nature that he is entitled to an indemnity if the parish or the ])roprietors exercise their right to take down the church when it is in such a condition that its demolition is not actually necessary ; but if it has become necessary to take down a meetinghouse, that is to say, if a meetinghouse has become so old and ruinous that its further use is not practicable, the parish or proprietors need not make payment to a pewholder for the removal of his pew.

Land was conveyed to the Bishop of Detroit and his suc- cessors in office in trust for the erection of a church thereon, to be used as a place of religious worship, and for spiritual use, benefit, and behoof of the German Roman Catholic

4()4 THE CIVIL LAW AND THE CHURCH

Church and congregation in the city, according to the rites and ceremonies of said Roman Catholic Church, and for other trusts therein expressed. The deed also provided that in the event of a vacancy in the office of bishop happening between the death of the bishop and the appointment of his successor the premises should vest during such vacancy in the archbishojj of tlie Roman Catholic Church of which the diocese should be a suffragan. Trustees of the church were afterward elected under the statute.

In a controversy between the officiating priest and the trustees as to which had the right to rent the slips it was held that, under the deed of trust and the constitution, laws, and usages for the government of the Roman Catholic Church, by which the administration of the temporalities of the church is vested in the parish jiriest. the riglit to rent the slips belonged to the priests and not to the trustees. Smith V Bonhoof, 2 Mich. 115.

Sale of Property. Under the New York religious corpora- tions act of 1813, notice to pewholders of an application to sell the property of the church is not necessary. The trus- tees have power to act. Matter of Second Baptist Society, Canaan, N. Y. 20 How. Pr. (N. Y.) 324.

Sale. Order of court not necessary for a sale of pews. Freligh v Piatt, 5 Cow. (N. Y.) 494.

Taxation. The power of the society to impose a tax on pews was held to apply only to the purposes specified in the deed, and a tax for any other purpose was held invalid. First Methodist Episcopal Society v Brayton, 9 Allen (Mass.) 248.

The owner of a pew offered to sell it to the society. Ap- praisers were appointed, but they did not agree and made no report. The owner continued to occupy the pew. It was held that by such occupancy he must have been deemed to have abandoned the effort to sell the pew to the society, and that he was, therefore, liable for a tax imposed on the pew. Curtis v First Congregational Society, Quincy, 108 Mass. 147.

PEWS 405

A pew-owner is not liable personally for a tax levied on the pew unless there be some special ground from which to infer a contract or promise to pa}'. One tenant in common of a pew cannot bind the others by signing to an increase in the tax. St. Paul Ch. v Ford, 34 Barb. (X. Y.) 16.

Pewholders are liable for increased assessments on pews for church expenses. Curry v First Presbyterian Congre- gation, 2 Pittsburg, (Pa.) 40.

Where a pew was, by the original deed of the property, subject to taxation for general expenses and for repairs both of the church and lot, and the society was afterward incor- porated under a charter which required the assent of a ma- jority of the pewholders for the imposition of such a tax, but the charter contained a provision authorizing its amend- ment in the discretion of the Legislature, and the Legislature having afterward restored tlie right to impose a tax for expenses and repairs, it was held that the later statute did not violate the obligation of a contract, and that the society had power to impose a tax on the pews. Bailey v Trustees, Power Street Methodist Episcopal Church, G Khode Island 491.

Pews were sold free of rent to raise money to aid in com- pleting the erection of a church edifice. The trustees could not afterward without the pewholder's consent assess the pew for current expenses, and could not proceed against the pewholder personally to collect an assessment. Trustees First Presby. Cong, of Hebron v Quakenbush, 10 Johns. (N. Y.) 217."^

Pews may be assessed for church expenses. Abernethy v Society of the Church of the Puritans, 3 Daly (N. Y.) 1.

Termination of Right. If the building is taken down, or is destroyed b}' fire, or the pew is destroyed by a necessary alteration in the internal arrangement of the church, the pew-owner's right is gone. Abernetliy v Society of the Church of the Puritans, 3 Daly (N. Y.j 1.

Title. The right to a pew granted by a church corporation to a man and his heirs is real property, an incorporeal ease-

466 THE CIVIL LAW AND THE CHURCH

meut or usufructuary right in land of another. Presbyte- rian Church V Andruss, 21 N. J. Law, 325.

Title, Transferable. The title to a pew is transferable as other real estate, and an assignment of the interest of the I^ew-owner does not transfer the title as against the levy on an execution against the original owner. Barnard v AVhipple, 29 Vt. 401.

Trespass. The owner of a pew may maintain trespass against a person who disturbs him in the possession. Shaw V Beveridge, 3 Hill (N. Y.) 26.

Land was conveyed to several persons, most of whom were members of an incorporated religious society, to the use of such persons as should become pewholders in the meeting- house to be erected thereon. The grantees organized them- selves as proprietors under an act providing therefor. The title vested in them on such organization in trust for the pewholders, the use shifting to those persons who thereafter- ward became pewholders. It was also held that the incor- porated religious society, which occupied the land by the permission of the body of proprietors, for the purpose of public worship, might maintain trespass against an individ- ual proprietor for obstructing them in such occupation. Second Congregational Society, Northbridgewater v War- ing, 24 Pick (Mass.) 304.

PIOUS USES

Defined, 467.

Described, 467.

Jews, 468.

Land, devised, right of possession, 468.

Ministerial land, 468.

Minister's support, 468.

Missionaries, 468.

Poor, 469.

Defined. Legacies to pious uses are those which are destiued to some work of piety, or object of charity, aud have their motive indeiieudent of the cousideration which the merit of the legatees might procure to them. In this motive consists the distinction between these and ordinary legacies.

The term ^'pious uses" includes not only the encourage- ment and support of pious and charitable institutions but those in aid of education and the advancement of science aud the arts.

They are viewed with special favor by the law, and with double favor on account of their motives for sacred usages and their advantage to the public weal. State v McDonogh Estate, S La. Ann. 171, sustaining a legacy to the city of New Orleans and the city of Baltimore of funds to be used for the establishment and support of free schools in said cities and their subinbs, including s])ecial provision for reli- gious and secular instruction of certain specified classes of poor persons in the Toavu of MacDonogh, a suburb of New Orleans.

Described. Legacies to pious uses have been known to the civil law from the foundation of Christianity. ''They are an element in the polity of municipal administrations in all countries which have preserved the features and juris- prudence of Koman civilization."

467

468 THE CIVIL LAW AND THE CHURCH

Legacies to pious uses are those which are destined to some work of piety, or object of charity, and have their motive independent of the consideration which the merit of the legatees might procure to them. In this motive con- sists the distinction between these and ordinary legacies.

Legacies to pious uses are highly favored by the law on account of their motives for sacred usages and their ad- vantage to the public weal. Williams v Western Star Lodge, 38 La. Ann. 620.

Jews. In Straus v Goldsmith, 8 Sim. (Eug.) Gli, it was held that a bequest to enable persons professing the Jewish religion to obser\'e its rites is good.

Land, Devised, Right of Possession. If lands be granted for pious uses to a person or corporation not in being, the right to the jjossession and custody of the lands remains in the grantor, till the person or corporation intended shall come into existence. Shapleigh v Pilsbury, 1 Me. 271.

Ministerial Land. In NeAV Hampshire it T\^as held that after a grant of land to a town for the use of the ministry, if the town be divided, and such land fall within the bound- aries of the new town, the title to the land still remains in the old to^\Ti. The disjjosition of such land was not regii- lated by statute. Where the new town sold such land and received the proceeds it was not liable to a religious society for any part thereof. Union Baptist Society v Town of Candia, 2 N. H. 20.

Minister's Support. Tlie general words "jjious uses" are not to be understood in their broadest sense, so as to author- ize a religious society to hold lands to any use, however foreign to the purposes of its incorporation, that religion and charity may sanction. The support of its minister is a duty that devolves upon every religious society, and to afford him that support may justly be regarded as one of the objects of its incorporation. It is, tlierefore, a pious use within the meaning of the statute. Tucker v St. Clement's Church, 3 Sandf. Sup. Ct. (X. Y.) 242, aff'd. S N. Y. 558u.

Missionaries. The propagation of the Christian religion,

PIOUS USES 469

whether among our own citizens or the people of any other nation, is an object of the highest concern, and cannot be opposed to any general rule of law or principle of public policy. A bequest to certain persons in trust to pay the income to the American Board of Commissioners for Foreign Missions and their associates was held not void for uncer- tainty. The members of the board could be ascertained, and the income was to be appropriated by the board for the general purposes for which the board was established. It was not necessary to ascertain or describe the particular persons who were to receive in foreign countries the reli- gious instruction intended by the bequest. Bartlett v King, 12 Mass. 537.

Poor. The testator gave all his residuary estate to the in^ corporated I'resbyterian clmrches in the city of New Orleans, to "the end that the poor of said respective churches may be cared for." The legacy was to pious uses within the Louisiana code, and was not indefinite. The churches en- titled to receive the benefit of the legacy are capable of ascer- tainment, and also the poor who are to be the direct bene- ficiaries of the testator's bounty. Auch's Succession, 39 La. Ann. 1043.

PRAYERS FOR THE DEAD

Affirmative, 470, Negative, 474. Church of England, 476. General, 476. Perpetuity, 476. Religious use, 477. Superstitious use, 477. Time limit, bequest, 478. Transfer tax, 479.

Affirmative. In Read v Hoclgens, 7 Tr. Eq. 17, it was held that a bequest for masses for the testator's soul was valid and not void as a superstitious use.

In Re Hagenmeyer's Will, 12 Abb. N. C. 432, it was held that a direction in a will that the executors pay from the assets a sum of money for the purpose of having masses said for the testator's soul was valid. Also a bequest in trust to a religious corporation for the same purpose.

Testatrix gave the residue of her estate to two Roman Catholic clergymen, one half to each, with the request that one of them, named, should say, or procure to be said, masses for the repose of her soul three times a week for one year after receiving the money, and the other half was given to another clergyman with a like request as to masses for the repose of the soul of the brother and sister of the testatrix for one year after the money was paid. It was held that no trust was created contrary to the Pennsylvania statute, and the executor was directed to make payment of the resi- due according to the terms of the will. Dougherty's Estate, 12 Phila. (Pa.) 70.

The testator bequeathed personal estate to his executors to be expended under the direction of the Archbishop of

470

I'KAYEKS FOR THE DV.AB 471

Diibliu. The court ordered the fund paid to him on his declaration that he intended to apply it in part for the main- tenance of Koman Catholic oflficiating clergymen, with direc- tions that they say masses for the repose of the testator's soul. Blount V Viditz, 1 Ir. Re. (Irehuidj 42 (1895).

Testatrix by her will directed her executor to use flOO of the estate for masses for her soul. She also gave her resid- uary estate to the Montrose Avenue Catholic Church in Brooklyn, New York, to be used in saying some masses for her soul and for charity institutions, as directed by the pastor of the church. The bequests were sustained. Hagen- meyer v Hanselman, 2 Dem. (N. Y.) 87,

Testatrix bequeathed to a priest a sum of money to be used hj him in saying masses for the repose of her soul. The bequest was sustained. Gilmore v Lee, 237 111. 402.

Testatrix bequeathed a sum of money to a Roman Catholic priest for the purpose of celebrating masses for the repose of the souls of the priest's grandfather and grandmother. This bequest was said to be a direct donation to the priest, with an injunction for its use in a particular ceremonial. It was not a trust, and therefore not void because incapable of enforcement by living beneficiaries. Harrison v Brophy, 59 Kan. 1.

Testator gave certain property, real and personal, the proceeds to bo used in saying masses for the repose of his soul and the souls of specified relatives. The gift was sus- tained as a valid charitable use. Hoefter v Clogan, 171 111. 462.

Testator bequeathed a sum to his executor, a portion of which was to be used for having anniversary masses said annually "from the day of ray decease, for myself, my de- ceased wife, and for her deceased sister, Lizzie." The be- quest was sustained. Webster v Sughrow, 69 N. H. 380.

Testatrix bequeathed a fund to each of two priests to be used by them in saying masses for the repose of her soul. On an accounting it appeared that one of the priests had died since the death of the testatrix, but that the other

472 THE CIVIL LAW AND THE CHURCH

priest was still living. The legacy to the surviving priest was directed to be paid to him on his showing a future jjer- formance of the condition to any masses. The fund be- queathed to the priest deceased fell into the residuum. Instate of Howard, 5 Misc. (N. Y.) 295.

Testator directed that certain real estate be converted into money and that three fourths thereof be paid to St. Frances Hospital of New York for the benefit of the Blessed Virgin Mary Purgatorial Fund. The hospital had no such fund, and it was said that the only use that could be made of the bequest was for the saving of masses for the spirit- ual welfare of the souls of the dead in purgatory. The bequest did not create a trust and it was sustained. John- ston V Hughes, 187 N. Y. 446.

Testatrix made a bequest for masses for the repose of her soul. The trustee died before the testatrix. It was held that the legacy did not lapse, but that the court would ap- point a person to execute the trust. It was also held that such a bequest was not a superstitious use, but was a reli- gious use under the laws of New Jersey, and was valid under the provisions of the State and federal constitutions guar- anteeing freedom of conscience. Kerrigan v Tabb, 39 Atl. (N. J. Ct. of Ch.) 701.

A provision in a will giving a fund to the ijriest who may be pastor of the Beaver Catholic Church to be used in say- ing masses for the testator was sustained as a valid i)rivate trust. Moran v Moran, 104 la. 21 G.

Testatrix made a bequest to the priest of St. Mary's Church at Lancaster, New York, to be used in saying masses "for the repose of mj^ soul, and that of my husband, and all my relatives and benefactors." The bequest was sustained. It was held that the legacy to the priest individually did not connect it in any way with the church. By the uni- versal practice of the church such a legacy legally be- queathed belongs to the priest, and neither the church or any superior of the priest therein can call him to an account therefor. Ee Zimmerman, 22 Misc. (N. Y.) 411.

PRAYERS FOR THE DEAD 473

A will contaiued the following bequest : "I give and bequeath the sum of |1,000 which my executor shall pay to the pastor at Xewry, Blair County (Pa.), for masses for the repose of mj- soul and for the repose of the souls of niA' relatives aud the repose of the souls of the faithful of my parish." The bequest was sustained, aud the executor was directed to pay the whole amount to the priest, who was to use his discretion as to the time aud place of saying the masses, and the number thereof. Seiberts Appeal, 18 W. N. C. (Pa.) 276.

In Matter of Backes, 9 Misc. (N. Y.) 504, a provision in a will directing the executor to expend money for masses for the testatrix aud her deceased husband in a German Cath- olic Church in Buffalo was sustained.

In Brennan v Brennan, Ir. Rep. 2 Eq. 321, the court sus- tained bequests to be used in saying masses for the repose of the soul of the testatrix, and also the soul of her husband, and the souls of his and her relatives.

Testator bequeathed a sum of money for masses to be offered for the happy repose of the testator's soul, to be apportioned in a particular manner between clergj'men named in the will and the officiating clergymen of the city of Toronto. To the objection tliat this bequest was for superstitious uses and therefore void, the court said the gift was free from any taint of illegality. The testator might appropriate money for this purpose if his religion had taught him that it was important to his spiritual wel- fare. Elmsley v Madden, 18 Grant's Ch. (Can.) 386.

The testator made a bequest to the clergyman attached to the parish of St. Peter's, Drogheda, at the time of his death from time to time forever therefrom, upon condition that four masses each month shall be celebrated "for the benefit of my soul and the souls of my relatives, the poor souls late of the parish of St. Peter, Drogheda, now" suffering in purga- tory." This was held valid as to the clergymen in office at the time of the death of the testator and to their survivors and survivor of them, and after their decease the fund

474 THE CIVIL LAW AND THE CHURCH

should become a i)art of the residuary estate. Dillon v Reilly, 10 Ir. Eq. Re. 152.

Testator gave to the parish priest |100 to be used in say- ing masses for the testator. This was held to be a direct gift and not a trust, and was therefore valid. Sherman v Baker, 20 R. I. 440.

In Coleman v O'Leary, 114 Ky. 388, bequests to provide masses for the repose of the soul of the testator, and also the soul of his mother and other relatives, were sustained.

A testatrix bequeathed a sum of money to executors to be used for masses for the repose of her soul. This was held valid and not a superstitious use. Commissioners of Char- itable Donations and Bequests v Walsh, 7 Ir. Eq. Re. 34n.

In Bradshaw v Jackman, 21 L. R. Ir. 12, the court sus- tained a bequest for masses for the eternal repose of her father and mother, brother and sisters.

Testator made a bequest to the bishop for the purpose of masses for the repose of testator's soul. This was not a bequest for a charitable use under the California Civil Code section 1313, which restricts devises or bequests for charit- able uses. Re Lennon's Estate, 92 I*ac. 870.

Negative. The income of a trust fund was to be paid to Roman Catholic priests forever, on condition that they say masses for the repose of the soul of the founder. This was held void, and the fund was ordered paid to the found- er's representative. Re Blundell's Trusts, 30 Beav. (Eng.) 360.

A bequest to the Roman Catholic I*rimate of Ireland and his successors forever, ui)on the condition that he and they shall celebrate twelve masses eacli ''for the salvation of my soul and the souls of my relatives" was held void.

The same testator bequeathed a fund to the clergymen of each of the Friaries of St. Francis, St. Augustine, and St. Dominick, in Drogheda, subject to the condition that there shall be celebrated at each of the said friaries forty nuisses "for the benefit of my soul and the benefit of the souls of my relatives, and all the ])Oor souls of the parish of St.

PRAYERS FOR THE DEAD 475

Peter, Drogheda, remaining in purgatory." This was also held void. Dillon v Reilly, 10 Ir. Re. Eq. 152.

Testator made the following bequest: *'I hereby direct that my executor hereinafter named have masses read for the repose of my soul for whicli I direct him to expend the sum of 1500.00.'' This bequest was held invalid, Schwartz V Bruder, 0 Deni. (N. Y.) 1G9.

The testator gave his residuary estate to his executors to be expended by them in procuring prayers in a Roman Catholic church, "for the repose of my soul and the souls of my family, and also the souls of all others who may be in purgatory." This bequest was held invalid in Holland v Alcock, 108 N. Y. 312. The court said : ''There is no bene- ficiary in existence, or to come into existence, who is inter- ested in or can demand the execution of the trust." The bequest was not a gift to the Roman Catliolic Church or churches which might be selected by the executors in which such prayers were to be offered. See also O'Connor v Gif- ford, 117 N. Y. 275; Oilman v McArdle, 00 N. Y. 451.

Testator bequeathed to his executors |500 to be used by them in having masses said for the repose of his soul. The bequest was invalid. Re McEvoy, G Dem. Sur. (N. Y.) 71.

Testator made a bequest for masses for the repose of his soul and the souls of his wife, son, daughter, father, and mother, appropriating specific amounts for masses for each. This bequest was held void for the reason that there was no beneficiary or beneficiaries of the trust Avho may come into equity and enforce the i^erformance. It is evident that such a trust is not capable of execution, and no court could take cognizance of any question in respect to it for want of a competent party to raise and litigate any question of abuse or perversion of the trust. McHugh v McCole, 97 Wis, 1C6.

In Alabama (Festorazzi v St. Joseph's Catholic Church. 104 Ala. 327) the court declared void a bequest to a church for masses for the repose of testator's soul. It was not a gift to the church, nor was it a charitable use, nor a private trust.

476 THE CIVIL LAW AND THE CHURCH

Church of England. The church has not prohibited prayers for the dead. Breeks v Woolfrey, 1 Curteis (Eng.) 509.

General. For a case containing a discussion of principles relating to gifts for masses see Gilman v McArdle, 12 Abb. N. C. 414, and cases cited, especially the Illinois case of Kehoe v Kelioe, 12 Abb. N. C. 42Tn.

Father Browers, who was a priest in this congregation at the time of his death, left a will in which, among other things, he made a devise of certain real property to the Roman Catholic priest succeeding him in this society, and to the successors of such priest, with a condition that masses should be said four times a year for the repose of the tes- tator's soul. Fatlier Fromm intruded into the property, took possession of it, and assumed to be the priest of the local society, but he had no authority from the bishop or other superior authority in the church. And it was held that he had no power to act and could not lawfully take possession of the property and receive the devise and execute the trust. Browers v Fromm, Add. Pa. Rep. 3G2.

Perpetuity. A testatrix bequeathed the, dividends thence- forth to accrue on certain stock to be paid for the celebra- tion of masses upon every !r>unda3^ and other days stated in every year, in a certain Catholic chapel named, for the bene- fit of her soul and the souls of her parents and other rela- tives; also for the purpose of keeping in order the tombs of certain relatives; and the remainder of the interest to be paid to her daughters for life, and after their death to be appropriated, while the world lasts, for the celebration of masses for the benefit of her soul and the souls of her rela- tives. The gift was held void as creating a perpetuity. Beresford v Jervis, 11 Ir. L. T. R. 128.

A bequest in aid of a fund for the erection of a memorial church with an obligation that the parish priest for the time being should celebrate masses at a particular time and place forever, for the repose of the soul of the testator and mem- bers of his family was held ^'oid as creating a perpetuity, and also because the obligation was impossible of perform-

PRAYERS FOR THE DEAD 477

tmce for the reasou that the parish priest could not celebrate the masses according to the terms of the will without neglecting other' oificial duties. Brannigan v Murphy, 1 Ir. Rep. 418.

The trust of a fund was to pay the income to Roman Catholic priests forever, upon condition of their saying masses for the repose of the soul of the founder. It was held void, and the fund was ordered to be paid to the repre- sentative of the founder. Re Blundell's Trusts, 30 Beav.

(Eng.) r>(;o.

Religious Use. In IrehiiHl a bequest to provide masses for the rei)ose of the soul is not illegal. "The acts directed to be procured are, according to the faith which the testatrix professed, sacrifices to God in the most i>roper sense, and of the most solemn kind, on behalf of all the faithful, living and dead, including a particular memorial of the deceased person specified ; but they are not necessarily to be offered in the public congregation of the faithful, or in public at all. The elements of charity in its most extensive, indeed, in its truest sense, which they contain is piety to God. According to the Roman Catholic faith, each celebration of the mass involves the most perfect act of charity." At- torney-General v Delaney, Ir. 10 C. L. 104, 121.

In Attorney-General v Hall, 2 Irish Re. 291 (189G), con- sidering the validity of bequests to Roman Catholic priests for masses in a specified Roman Catholic church for the repose of the soul of the testator and the soul of his wife, the court said that the belief in the efficacy of prayers for the dead is not only laAvful but one of the essential doc- trines of a religion, the advancement of which the law deems to be charitable, and the bequests were declared to be a valid charity.

Superstitious Use. A devise for the purpose, among other things, of establishing a fund to be used for the perpetual continuance of prayers for the soul of the testator and the souls of others, was held to create a superstitious use under the act of 1 Edw. C, chap. 14, and was therefore invalid.

478 THE CIVIL LAW AND TUIO CHURCH

Attorney -General v Fishmongers Company, 2 Beav. (Eiig.) 151.

Testator gave legacies to be nsed in saying masses for the repose of his own sonl and tlie sonls of other persons, and for other pions uses. The legacies were held void because given for a superstitious use. Heath v Chapman, 2 Drew, Ch. Re. (Eng.) 117.

Testatrix made bequests to several priests "that I may have the benefit of their prayers and masses for the repose of my soul and the soul of my deceased husband." These legacies were held to be for a superstitious use, and there- for void. West v Shuttleworth, 2 Myl. & K. (Eng.) 681.

Time Limit, Bequest. Testatrix bequeathed to her executor the sum of |5,500, to be paid over b}^ them as therein directed ; f 500 each to the pastors of certain Roman Catholic churches therein named, in the city of Brooklyn, city of New York, and village of Monticello, in Sullivan County, N, Y., and |25 each to the pastors of certain other Roman Catholic churches therein named, in the city of Brooklyn. The testa- trix directed these payments to be made for masses to be said in each of said churches for the repose of her own soul, and the souls of her mother, brother, and aunt. Testatrix died within two montlis after making the will, leaving a father. The bequest was sustained on the grouiid that the sums payable to the pastors of the specified churches were not bequests to corporations but Avere "simply legacies to the several persons who, wlien the will took elfect, should be exercising the pastor's functions in the several designated churches." Vanderveer v McKane, 11 N. Y. Supp. SOS.

Testator bequeathed a fund to the pastor or his successor, to be nsed in saying masses for the repose of the soul of the testator, his present wife, and a deceased wife. This was held to be a charitable gift, and the testator having died within thirty days after the execution of the will, the gift was held void, under the Pennsylvania statute of 1855. O'Donnell's Estate, 209 Pa. 0?..

Testator bequeathed a fund lo a chnrdi to be used in say-

PRAYERS FOR THE DEAD 4?.)

ing masses for the repose of his soul, but the bequest was held void for the reasou that under the Peuusylvauia sta- tute a bequest for religious uses was invalid unless the will was made at least one month before testator's death, it appearing that the will was made within that time. Rhym- er's Appeal, 93 Pa. St. 142.

Transfer Tax. A bequest to a pastor and to his successors, to be used in saying low masses for the repose of the soul of the testatrix and others, was held subject to taxation under the transfer tax act. Matter of McAvoy, 112 App. Div. (N. Y.) 377.

A bequest to a Roman Catholic priest, to be applied to masses to be celebrated publicly in a specified Roman Catholic church in Ireland for tlie repose of the testator's soul and the soul of his wife, is a valid charitable bequest, and exempt from legacy duty under the 38th section of 5 & (> Vict. c. 82. Attorney-General v Hall, 2 Irish Re. 291 (189G).

See additional cases on this subject cited in the note to Festorazzi v St. Josei)h's Roman Catholic Church (104 Ala. 327) in 25 L. R. A. 3G0, and also in a note to Hadley v For- see, (203 Mo. 418) in IG L. R. A. (N. S.j 9G.

PRESBYTERIAN CHURCH

Historical sketch, 481.

Description, 482.

Government, form of, 482.

Association with Congregational churches, 483.

Center College, Danville, Kentucky, 483.

Congregation, authority, 484.

Consolidation, 484.

Division of society, apportionment of property, 484.

Division, powers of Presbytery, 485.

Excommunication by General Assembly, 486.

Free Portuguese Church, 487.

Foreign Missionary Society, 488.

General Assembly, Southern, 488.

General Assembly, described. Old School, 489.

General Assembly, division, effect on legacy, 489.

General Assembly organized, 490.

General Assembly, status, 490.

General Assembly, when decisions binding on chm-ch, 490.

Illinois Orphans' Home, 491.

Independent Chm-ch not possible, 491.

Joint ownership, 492.

Local society, status, 492.

Mercer Home for disabled clergymen of the Presbyterian faith, 493.

Minister, character of office, 493.

Minister, how called, 494.

Minister, Presbytery's power of appointment, 495.

Missionary house of rest, 496.

Missions, 496.

Old and New School; division of 1838, 497.

Old School Assembly, claims bequest, 498.

Old School, General Assembly, political deliverances, 498.

Organization, 499.

Organization and form of government, 499.

Pastor, terminating relation, 500.

Pennsylvania, Enghsh congregation, 500.

Political dehverances, no effect on local property, 501.

Presbytery, membership, 502.

480

PRESBYTERIAN CHURCH 481

Presbytery of New York, powers, 502.

Presbytery, relation to synod, 503.

Property, how held and managed, 503.

Publication committee, 504.

Ruling elders, election, synod's power limited, 504.

Scotch Presbyterian Church, 504.

Scotland, 505.

Secession of 1838, 505.

Secession, effect on pastoral relation, 507.

Session, 508.

Session, powers, 509.

Slavery agitation, 510.

Sovereignty, not in membership, 511.

Synod of secession chm-ch, 512.

Synod powers, 513.

Trustees, 513.

Unconstitutional deUverance on political questions, 513.

Westminster College, 514.

Historical Sketch. The Presbyterian Church in the United States, unlike the mother church in Scotland, has not at any time been connected with the civil government; and in this and some other particulars it differed from the mother church in the principles and arrangement of its government before the adoption of its constitution in 1788. At that time the Synod of New York and Philadelphia was the highest tribunal in the church. It adopted the constitution, and by it the General Assembly was created and established as the highest judicatory of the church.

The constitution defines and prescribes the powers of a gradation of courts or bodies, in which the spiritual govern- ment of the church is vested, consisting of —

First. The session, composed of the pastor or pastors and ruling elders of a particular congregation.

Second. A presbytery, consisting of all the ministers and one ruling elder from each congregation within a certain district.

Third. A synod, composed in like manner as a presbytery of ministers and elders within a larger district, including at least three presbyteries.

482 THE CIVIL LAW AND THE CHURCH

Fourth. The General Assembly, consisting of delegations from the various presbyteries.

It is not controverted that each of these bodies above the session may, in the exercise of an ai>pellate or revisory jurisdiction, review and affirm or reverse the judgments of the one next below it, and that, by a series of appeals, the decisions of a session may ultimateh^ be carried be- fore the General Assembly. Watson v Avery, 2 Bush. (Ky.)

Description. The Presbyterians have a distinct directory of church government and discipline set forth in the same volume with their confession of faith, but separate and dis- tinct from it. They usually worship by themselves, and form a distinct society from the other sects. The Tresby- terians are as old as the Reformation. With the Lutherans they separated from the Church of Rome, but they soon sep- arated from each other. The Lutherans established the Episcopal form of church government. The disciples of Calvin established the Presbyterian, and it has existed ever since on the continent. It was afterward established in Scotland, and carried by the Scotch who immigrated in great numbers to Ireland, and planted there. It was brought both from Scotland and Ireland to this country, and churches have been formed here on the model of the church of Scotland, and professing to be governed by the same directory. Each society or parish has its session; a number of parishes form a presbytery ; and larger divisions a synod ; and the whole are united under a General Assembly. Churches, or societies, are not independent of each other, but connected and dependent. Muzzy v Wilkins, Smith's N. H. Rep. 1.

Government, Form of. The government of the Presbyterian Church is republican in form, and the elders are simply the representatives of the peojjle, to be chosen by them in the mode most approved, and in use in that congregation. Every Presbyterian church is a law unto itself in the election of elders and deacons, limited only to the qualilication of the

PRESBYTERIAN CHURCH 48.'}

persons elected, who must be male members iu full com- muuion. Dayton v Carter, 200 Pa. St. 491.

Association with Congregational Churches. In 1801 the Gen- eral Assembly adopted what was known as a Plan of Union for New Settlements. The avowed object of it was to pre- vent alienation; in other words, the affiliation of Presby- terians in other churches by suffering those who were yet too few and too poor for the maintenance of a minister, tem- porarily to call to their assistance the members of a sect who differed from them in principles, not of faith, but of ecclesiastical government. To that end, Presbyterian min- isters were suffered to preach to Congregational churches, while I'resbyterian churches were suffered to settle Congre- gational ministers; and mixed congregations were allowed to settle a Presbyterian or a Congregational minister at tlieir election, but under a plan of government and discipline adapted to the circumstances. It was obviously a mission- ary arrangement from the first, and thej'^ who built up pres- byteries and synods on the basis of it had no reason to expect that their structures would survive it, or that Con- gregationalists might, by force of it, gain a foothold in the l*resbyterian Church despite of Presbyterial discipline. They embraced it with all its defeasible properties plainly put before them ; and the power which constituted it might fairly repeal it, and dissolve the bodies that had grown out of it, whenever the good of the church should seem to require it. The General Assembly manifestly designed that local societies so made up in part of Presbyterians and Congre- gationalists should belong to some presbytery as an inte- grant part of it. And a delegate from such local church to the Presbj'tery was given the same right to sit and act in the presbytery as if he had been a ruling elder in the Presby- terian Church. Commonwealth y Green, 4 Whart. (Pa.) 531.

Center College, Danville, Kentucky. The trustees of the col- lege made a contract with the Kentucky Synod providing that whenever the synod should pay or cause to be paid to the

484 THE CIVIL LAW AND THE CHURCH

college trustees the sum of f 20,000 such synod should have the right to elect llie entire board of trustees of the college, thereby placing the college under the supervision of the Pres- byterian Church. In consequence of differences growing out of the Civil War, the Kentucky Synod was divided in 1866, each body claiming to be the true sj'uod, and each claiming the right to elect the college trustees. The General Assembly which met at Cincinnati in 18G7 declared that the synod which elected the appellants trustees was not the lawful Synod of Kentucky, but that the other synod into which the original synod had been divided was the true synod. Therefore the appellants were not the lawful trus- tees of the college, and could not exercise any control over its affairs. Kinkead v McKee, 9 Bush. (Ky.) 535.

Congregation, Authority. The authority and controlling power of the congregation recognized in the book of govern- ment are exemplified in the practice of these societies. The congregation directs the trustees. The former act as the substantial beneficial owners, the latter as the legal instru- ments to execute their will. Worrell v First I'resby. Ch. 23 N. J. Eq. 06.

Consolidation. It was held in Stokes v Phelps Mission, 47 Hun (N. Y.) 570, that a consolidation could not be had by the Eighty-fourth St. Presbyterian Ch. and the Phelps Mis- sion for the reason that the statute (L. 1876, Ch. 176) so far as it relates to consolidation, only authorizes the con- solidation of two or more religious societies or corporations belonging to the same church or denomination. The Phelps Mission was undenominational.

Division of Society, Apportionment of Property. The society was organized in 1833. In 1838, on the separation of the I'resbyterian Church into the New School and Old School, the local society attached itself to the Old School and con- tinued in this relation until 1865, when it attached itself to the New School. A discontented minority, which preferred the Old School, thereupon elected trustees and began pro- ceedings to obtain possession of the church property. It

PRESBYTERIAN CHURCH 485

was held that by the changes in the relations of the local society there was no abandonment of doctrine or faith w^hich the church was originally founded to support. The change of relations of the local society was not a perversion of church property and the teaching of new doctrines.

The property of the church was acquired partly under the New School organization and partly under the Old School. The court directed a division of the property among the two parties according to the number in each at the time of the separation. Niccolls v Rngg, 47 111. 47.

Division, Powers of Presbytery. This society, composed of about 800 members, was incorporated under the laws of Cali- fornia. It owned real property which Avas sold for about $50,000. It was intended to use this fund for the purchase of a site and the erection of a house of worship, but there were differences of opinion as to the best location, a small majority preferring one place and a large minority another. The trustees representing the majority bought a piece of property, whereupon the minority petitioned the presbytery for a division of the society, and also an apportionment of the fund arising from the sale of the other property. After hearing all the parties the presbyter^^ divided the society into two societies, one to be composed of the petitioners an<l others who might join them, to be known as the Central Presbyterian Church, and the other to be composed of the remaining members of the original society, and to be known as the Westminster Presbyterian Church. The latter society was to retain the records of the first church. The presby- tery also created a commission to apportion the foregoing fund between the new societies, and the fund was appor- tioned according to membership. The Central Church ac- cepted the action of the presbytery and became fully organ- ized as a Presbyterian church. The Westminster society rejected the action of the presbytery, and the first church refused to divide the fund with the new Central Church. An action was thereupon commenced on behalf of the Central Church against the first church to recover a portion

486 THE CIVIL LAW AND THE CHUKCH

of the fund derived from the sale of the original property. It was held that the first church was under the jurisdiction of the presbytery, which had the power to deal with this society in all matters ecclesiastical, and it was under the absolute dominion and control of the presbytery, and the decisions and decrees of the presbj^tery were binding upon the local society ; that the presbytery had power to dissolve the society, and that the decree of dissolution was effective, and binding on all judicial tribunals. It was further held that the members of the Central Church organized on the basis of the decree of dissolution of the first church, were beneficiaries of the trust fund, and that their interest con- tinued after the organization of the new society; that the two branches into which the first church was divided became its legal successors, and that the trust fund should be divided according to the numerical strength of each of the new so- cieties. Wheelock v First Presbyterian Ch., 119 Cal. 477.

Excommunication by General Assembly. Protesting against the deliverances by the General Assembly during the Civil War on the subject of slavery and lojalty, a large minority of the church in different States issued a paper called the "Declaration and Testimony." Displeased b}^ this paper, the General Assembly rendered an ex parte decree without a form of trial, declaring in effect that the accused ministers should not be allowed to sit in any church judicatory higher than the session, and that if they, or anj^ of them, should be enrolled as entitled to a seat by any presbytery, such pres- bytery should, ipso facto, be dissolved, and the members ad- hering to the General Assembly were thereby authorized and directed to take charge of the Presbyterial records, to retain the name, and exercise all the authority and functions of the original presbytery until the next meeting of the General Assembly. In Watson v Garvin, 54 Mo. 353, it was held that the foregoing decree cut off persons included therein from the higher judicatories of the church, but did not excom- municate them, nor in any nuinner touch them as individual mend)ers of (he churcli or congregation.

1'KESBYTI<:KIAN CHLKCH 48T

Free Portuguese Church. In 1851 several persous resid- ing in the island of Madeira, constituted a religious body Icnown as the Free Portuguese Church, under the jurisdic- tion of the Free Presbyterian Church of Scotland. Such persons, or at least a part of them, in 185 L, received the proper certificate of dismissal from the Free Church I'resby- tery of Glasgow and came to this country. Their letter of dismissal required that they should unite with and come under the jurisdiction of the Presbj^terian Church of the United States. They went to Jacksonville, Illinois, and there assumed to be a religious body under the name of the Free Portuguese Church, and determined to erect a suitable build- ing in which to worship. Xot i)eing incorporated, the deed of laud was taken in the name of individual members of the church as trustees. The proposed church building was erected by contributions from members and others, chiefly, it appears, from members of the Old School Presbyterian Church in other States, for the purpose of building a church of the Old School Presbyterian order.

In 185G the Glasgow letter of dismissal was presented to the Sangamon Presbytery, and they were received into the presbytery. In 1858 a schism arose, resulting from the question whether baptism administered to some of the mem- bers by the Roman Catholic Church in Madeira was suffi- cient, or whether there should be an additional baptism according to the Presbyterian practice. The Sangamon Presbytery, to whom the question was submitted, decided against the validity of the Roman Catholic baptism, but con- sidered rebaptism unimportant and unnecessary. A party, led by the pastor who was opposed to rebaptism, held a meeting, and by a narrow majoritj^ voted to withdraw from the Sangamon Presbytery, and thereupon organized a new congregation, taking possession of the church property.

The minority adhered to the i)resb3'tery, and procured the selection of another pastor. The minority commenced a proceeding against the majority to recover possession of the church property. It was held that whatever may be the

4SS THE (MVTL LAW AND THE CHURCH

occlesia.stical right of a cliurfh, or a i)ortiou of a cliurcU to sever its connection with the particular ijresbyterj^, with or without its consent, it does not follow that the majority in so acting, become entitled to the property of the church to the exclusion of the niinorit3\ Their rights still remain, and should be adjusted on the principles of equity. Neither adhering to the presbytery, nor withdrawing from it, is an illegal act, and therefore did not affect the right to the property. The court directed that the church property be sold, and the proceeds divided between the two factions, according to their respective numbers. Ferraria v Vascon-, celles, 23 HI. 456, 31 111. 1.

Foreign Missionary Society. The Presbyterian General As- sembly was incorporated in Pennsylvania in 1779, and by its charter it was authorized to take bj^ devise. The incor- porating act transferred to the corporation all the property and funds of the General Assembly of the l*resbyterian Church, a body which, by the constitution of that church, was required to meet and did meet annually. The General Assembly in 1837 established the Board of Foreign Missions, charged with the foreign missionary operations of the church. This was held to be the only Presbyterian foreign missionary society in the United States at the time of mak- ing this will and at the death of the testator. This board was the creature of the General Assembly, and might have been dissolved at any time. A devise to the board was invalid because of lack of capacity to take, and a devise to the board could not be treated as a devise to the General Assembl3\ A devise to the Presbyterian Foreign Mission- ary Society was therefore held void. Chittenden v Chitten- den, 1 Am. L. Reg. (N. Y.) 538.

General Assembly, Southern. Testator bequeathed the residue of his estate "to the trustees of the General As- sembly of the Presbyterian Church in the United States, commonly known as the Southern Presbyterian C'hurcli, the same, as he was advised, being a body corporate." It ap- peared that at the outbreak of the Civil War in 1801 the

PRESBYTERIAN CHURCH 480

Presbyterian Cliurcli iu the United States was divided, the Southern Presbyterian synods meeting to form a Southern General Assembly confined to the Confederate States. In February, 188G, a corporation was organized in North Carolina known as the trustees of the General Assembly of the Presbyterian Church in the United States. This society was held to be the one intended by the testator in his will. It was, therefore, entitled to take the legacy. Guthrie v Guthrie, 10 S. E. (Sup. Ct. App. Va.) 327.

General Assembly, Described, Old School. This is the high- est ecclesiastical tribunal in the I'resbyterian Church, and all organizations and members of the church act in subor- dination to it. It possesses the unlimited control of super- intending the concerns of the whole church, and of suppress- ing schismatical contentions and disputations. It combines within itself all the branches which constitute the elements of a complete government, namely, executive, legislative, and judicial. Superintending the concerns of the church and suppressing schism are certainly not judicial acts. The General Assembly is the highest court or judicatory known to the I*resbyterian Church ; it possesses extensive original and appellate jurisdiction, and no civil court can revise, modify, or impair its action in a matter of purely ecclesiastical concern. But in addition to this it has legis- lative and executive capacity, and acts upon all subjects coming before it, according as they belong to either or each of those departments. It seems that, in conformity with the theory and doctrines of the church, it is the source and fountain of power, and that its authority is neither dele- gated by nor derived from any human bod3^ State of Mis- souri ex rel Watson v Farris et al 45 Mo. 183.

General Assembly, Division, Effect on Legacy. The division of the Presbyterian Church in Muy, 1838, into Old School and New School and the organization of a separate General Assembly. of each division did not affect the status of the legacy included in a will made in November, 1837, before the division, but the branch which Avas continued as a sue-

490 THE CIVIL LAW AND THE CHURCH

cessor of tlie foi'iner single General Assembly was held to be the General Assembly intended by the testator, who pro- vided in a contingency that the legacy should go to the trustees of tlie General Assembly. The New School General Assembly could not legitimately claim the legacy. Trustees V Sturgeon, 9 Pa. St. 321.

General Assembly Organized. Antecedently to the memor- able year of 17SS the Presbyterian churches in the United States, like their ]>arental Church of Scotland, ruled by ses- sions, presbj^teries, and sjaiods, acknowledged a connection between church and state; but in that year, nearly simul- taneously with the adoption of the federal constitution, those American churches confederated under a national head called the General Assembly, then organized by an amended constitution for representing all the subordinate councils and for acting as the ultimate council for revision and advice in the ecclesiastical affairs of the aggregated church ; and that modified constitution, coevally and con- currently with the political constitution of the United States, denounced all connection between the ecclesiastical and political governments, Gartin v Penick, 5 Bush. (Ky.) 110.

General Assembly, Status. This is not a quasi corporation. Such a corporation has capacity to sue and be sued as an artificial person, which tlie Assend)ly is not. It is also established by law, wliich the Assembly is not. Neither is the Assembly a i)articular order or rank in the corporation (the Trustees of the General Asseml>ly of the Presbyterian Church), though the latter was created for its convenience. It is a consecrated association, Avhich, tliougli it is the repro- ductive organ of corporate succession, is not itself a mem- ber of the body; and in that respect is anomalous. Com- monwealth v Green, 4 Whart. (Pa.) 531.

General Assembly, When Decisions Binding on Church. The powers of this body are not divided but limited by the con- stitution. If it be true that the inferior courts and people of the church are bound to accept as final and conclusive

niESBVTJCRIAN CHURCH 491

the Assembly's owu construction of its powers, and submit to its edicts as obligatory, without inquiring whether they transcend the barriers of the constitution or not, the will of the Assembly, and not the constitution, becomes the funda- mental law of the church.

But the constitution having been adopted as the supreme law of the church, must be supreme alike over the Assembly and people. If it is not, and only binding on the latter, the supreme judicatorj^ is at once a government of despotic and unlimited powers.

But we hold that the Assembly, like other courts, is lim- ited in its authority by the law" under which it acts; and when rights of property, w^hich are secured to congregations and individuals by the organic law of the church, are vio- lated by unconstitutional acts of the higher courts, the parties thus aggrieved are entitled to relief in the cnil courts, as in ordinary cases of injury resulting from the violation of a contract, or the fundamental law of a volun- tary association. Watson v Avery, 2 Bush (Ky.) 332.

Illinois Orphans' Home. Where a will created a trust for the purpose of erecting and maintaining an orphans' home "for the friendless poor of all denominations," and provides that the Home shall be controlled "by the Presby- terian Churches of Central Illinois," tlie ruling bodies of these churches in the presbyteries shown to be situated near the center of the State have power to control tlie Home, and to select from the friendless poor of all denominations those who shall enjoy the testator's bounty. The trust was sutifi- ciently definite, and was capable of execution. Kemmerer v Kemmerer, 233 111. 327.

Independent Church Not Possible. Because unity of action, and the means of perpetuating itself, are essential features of the Presbyterian Church ; and that the first of these fea- tures is preserved in that portion of its organization which combines the whole church into one body, and the other is provided for in the succession of tlie ministers, which the presbytery alone are authorized to ordain ; that the first of

402 THE r'TVTL LAAV AND THE rHUKCH

these is an important elemejit, but tlie last is so essential that without it no I'resbyterian church can be said to exist.

That all ecclesiastical authorities upon Presbyterian Churcli government concur in declaring that several churches must unite to form a presbytery, and that, there- fore an Independent Presbyterian churcli is an anomal}' which cannot consist with the Presbyterian system. Wilson V Pres. Ch. of John's Island, 2 Eich. Eq. (S. C.) 192.

Joint Ownership. Land was given to this society and also to the German Reformed Congregation on an agreement that they were to erect and use jointl}^ a house of worship and establish a burying ground. The house was erected and used many years. The agreement was by parol, and there was no conveyance of the land. The transaction was held to be valid, and the donors were declared to be trustees of the land, holding it in trust for the religious purposes to which it had been dedicated by tlie two congregations. Beaver v Filson, 8 Pa. St. 327.

Local Society, Status. In the I'resbyterian system a local church is but a member of a larger and more important reli- gious organization, and is under its government and control. The session or local cliurcli is controlled by the presbytery, tlie presbytery by the synod, and the synod by the General Assembly. The general church is controlled and governed by a body of constitutional and ecclesiastical laws, and exercises legislative and judicial power. Questions of rule, usage, or custom affecting the local church, or the relation of its members to the organization, are subject to the judg- ment of these several bodies, called judicatories, in the order named, and the decision of the highest to which any question is carried is binding upon all. Gaff v Greer, 88 Ind. 122.

In the Presbyterian form of government a local congrega- tion is but a member of the larger and more important reli- gious organization, and is under its government and con- trol, and is bound by its ordinances and judgments in purely spiritual matters. There are in this system of church organ-

PRESBYTimiAN CHURCH 493

izatiou three judicatories, or representative bodies — the ses- sion, presbytery and General Assembly. The purpose, powers, and jurisdiction of each are distinctly stated and promulgated in the printed books containing its history, articles of faith, and ordinances which constitute the body of ecclesiastical law which governs this denomination. The church session represents, and is chosen by and from the local society, but it has no authority to create and issue rules of discipline or establish usages and customs in reli- gious matters ; in this respect it is wholly subordinate to the presbytery, which body is vested with the functions "to resolve questions of doctrine and discipline," "to ordain, install, and remove and judge ministers" and, in general, "to order whatever pertains to the spiritual welfare of the churches under their care." Isham v Fullager, 14 Abb. N. C. (N. Y.) 303.

Mercer Home for Disabled Clergymen of the Presbyterian Faith. Testatrix gave laud and monej^ for the purpose of establishing a home for disabled clergymen of the Presby- terian faith, and in the devise of the land prohibited the sale, disposition, or encumbraiue of any ])art of the land, and (he ai^plication of it to any otlier use or ]>nr]»ose tlian that speci- fied in the will. It was lield that this did not prevent the court from granting an order on tlie a])plication of the trustees of the Home, permitting a sale of a small portion of the land, the jjroceeds to be used for the general purposes of the devise. Such a disposition of the land was not deemed a violation of the restriction contained in the devise. The sovereign, the State, acting through its courts, had visitor- ial supervision of the devise and its general purpose, and might exercise its discretion to permit a change of the char- acter of the property where this would not be an actual diversion of it to an outside purpose. Re Mercer Home for Disabled Clergymen of the Presbyterian Faith, 1G2 Pa. St. 232.

Minister, Character of Office. The ministerial office is made the first in dignity, importance, usefulness in the con vie-

404 Til 10 CIVIL LAW AND THE CHURCH

tioiis of tbis body of Christians. By their faith, doctrine, aud ordinances only dnly ordained ministers can of right administer the sacraments and perform other fnnctions and duties whicli concern the spiritual welfare of those who are members of the church proper. Isham v Ful lager, 14 Abb. N. C. (N. Y.) 3G3.

Minister, How Called. According to the usage and form of government of the l*resbyterian Church, the call is made by the congregation duly convened, and tlie amount of com- pensation or salary is fixed by it, and inserted in the call. But the pastoral relation can only be established with the consent and under the authority and direclion, of the pres- bytery having jurisdiction. The call made by the congrega- tion is submitted to the presbytery, and, if ai)i)roved by that body and accepted by the candidate, the pastoral relation is then formally constituted by installation by or under the direction of the presbytery. West v First Presby. Ch. of St. I'aul, 41 Minn. 94.

In First Fresbyterian Church, Perry v Myers, 5 Okl. 809, it was held that, according to the usage and form of govern- ment of the Presbyterian Church, a call made out by the congregation duly convened, in wliich the amount of salary is fixed and inserted in the call, does not become effective under the rules and regulations of that church until such call is placed in the hands of the minister to whom it is addressed, and is deemed equivalent to a request of the con- gregation and of the pastor elected for installation as pastor, but the pastoral relation can only be fornuilly consumuuited with the formal sanction of the presbytery, and the refusal of the presbytery to place the call in the hands of the min- ister, or to install him, puts an end to the civil contract.

The rules and regulations of the Presbyterian Church require that a "call"' should be made out by a regularly called meeting of the congregation, and wlien thus made out it should be presented to the presbytery under whose care the person called shall be, and if the i»resbytery think it exju'dient to ])resent the call lo liini, it may accordingly ]>ro-

PRESS YTEK IAN CHUKCH 195

seut it, and no minister or candidate shall receive a call but through the hands of the presbytery. A call not delivered to the pastor is not binding on the church.

The mode of obtaining a pastor is pointed out in the IStli chapter of the form of government. If the church is satis- fied with the ministratiou of any licentiate, they present him with a call, in which they promise him, among other things, "all proper support, encouragement, and obedience in the Lord." This, if he consent to accept, is presented to the presbyter}^ to which he belongs, and is regarded there as a petition from the congregation that he should be installed their pastor; and it is expressly declared that no candidate or minister shall receive a call but through The hands of the presbyter}^; and if the presbytery approve it, his installation follows upon his professing, among other things, his appro- bation of the form of government and discipline of the Pres- byterian Church, and promising to subject himself to his brethren in the Lord, and the organization of the church is complete. Wilson v Pres. Ch. of John's Island, 2 Rich. Eq. (S. C.) 192.

In Presbyterian societies the pastoral relation is estab- lished and discontinued not by the trustees or by the church but by the congregation and the pastor, under the sanction of the presbytery. The call proceeds from the congrega- tion, contains the agreement to pay the salary, and is sub- scribed by their elders and deacons, or by their trustees, or by a select committee, as the congregation shall appoint. It is i)resented to the minister only through the presbytery, and will not be effectuated without its approval. Worrell V First Pres. Ch., 23 N. J. Eq. 96.

Minister, Presbytery's Power of Appointment. The pastor of the church having died, the session appointed a successor for six months. Before the expiration of that time the pres- bytery, with which the local society was connected, removed the pastor so appointed, and another temporary pastor was appointed. A few days later the congregation held a regu- lar meeting and voted to direct the session to employ for one

496 THE CIVIL LAW AND THE CHURCH

year the first temporary pastor selected by it. The minister so appointed took possession of the parsonage and occnpied the pulpit about six months, when the presbytery again assumed control and assumed the right to fill the pulpit. The presbytery further assumed to discipline the members of the session, and suspended all of them except one. The congregation protested against the action of the presbytery, and voted to allow the first temporary minister to occupy the parsonage for a specified time without cliarge, and to pay his salary.

It was held that the presbytery had no jurisdiction to assume control of the temporal affairs of the local society; that the trustees were bound to obey the order of the congre- gation relative to the occupancy of the parsonage, and that the minister who was placed in possession of the parsonage by direction of the congregation was entitled to retain it during the contract period. Only members of the congrega- tion could maintain an action against the trustees. Everett V First rvesbyterian Church, 53 N. J. Eq. 500.

Missionary House of Rest. Testatrix made provision in her will for the erection of a building to be used as a temporary resting place for missionary workers to be called "The House of Rest." The property was to be transferred by the executors to the Women's Occidental Board of Missions, with the executive committee of the Women's Presbyterian Mission !^>ociety of the Los Angeles I*resbytery as trustees and managers thereof. The gift was sustained to the extent of one third of the estate, that being the amount available for charitable purposes as limited by the statute. Re Pea- body's Estate, 154 Cal. 173.

Missions. Testator, after various bequests and devises to I'resbyterian institutions for aiding the Presbyterian Church, provided that the residue should be divided equally between the Board of Foreign and the Board of Home Mis- sions, but did not specifically designate such boards as Pres- byterian. It was held that tlie testator evidently intended to make these boards in the Presbvterian Church the ob-

PRESBYTERIAN CHURCH 497

jects of his bounty, and they Avere held entitled to the leg- acy. Gilmer v Stone, 120 U. S. 586,

A bequest in aid of missionaries in India, to be expended under the direction of the General Assembly's Board of Missions of the I*resbyterian Church, was held void for uncertainty. The beneficiaries were not named and could not be clearly ascertained. Board of Foreign Missions of the Presbyterian Churcli v McMaster, Fed. Cases No. 1586 (Cir. Ct. Md.).

Testator bequeathed the residue of his estate to home missions, foreign missions, and the American Bible Societj'. The missionary bequests were held to have been intended for the Home and Foreign Missions of the Southern Presbj'- terian Church, excepting a specified sum which was to be invested, and the interest paid on the salary of the pastor of the Southern Presbyterian Church at Centerville, West Virginia. All the bequests were held void for uncertainty. Pack V Shanklin, 43 W. Va. 304.

Testator bequeathed a fund to the Board of Trustees of the Reformed Presbyterian Church of Allegheny, Pennsyl- vania; to the Board of Trustees of the United I'resbyterian Church of Pittsburgh, Pennsylvania, and to the Board of Trustees of the First Presbyterian Church of Stockton, California, to be divided equally between them, share and share alike, and to be used for missionary purposes, the same to be equally divided between foreign and domestic missions.

The bequests were sustained, subject to the limitations as to amount contained in section 1313 of the Civil Code of California, which restricted bequests to charitable institu- tions in excess of one third of the estate. Re Hewitt's Estate, 94 Cal. 370.

Old and New School; Division of 1838. In 1838 occurred the well-known schism, by which the Presbyterian Church was divided into two schools, commonly known by the names of the Old and New Schools. This was effected by the seces- sion of a minority from the General Assembly of the United States. The majority which remained, known as the Old

408 THE CIVrL J.AW AND THE CHURCH

School, was declai-od by the judicial aiithoi-ities of T*euiisyl- vaiiia to be the (rue coi})oiate General Assembly, which had been before created by the Legislature of Pennsylvania. This last Assembly is designated as that which met in the seventh Presbyterian Church of I'hiladelphia, and of which Mr. Plumer was moderator. Wilson v Presbyterian Church, John's Island, 2 Ridi. Eq. ( S. C.) 192.

Old School Assembly, Claims Bequest. Testator, who died in 1863, bequeathed several portions of h.is residuary estate to the General Assendily of the Presbyterian (Church in the Confederate States of America, or General Assembly of the Presbyterian Church, South, explaining that he meant by such General Assembly "the Old School Presbyterian Church in the South," and ''should any part thereof reunite with the Northern church, I mean the part which shall remain as a separate body in the South." The bequests were claimed by the General Assembly of the Presbyterian Church in the United States, which was incorporated by the Legislature of Tennessee in 18G2. This corporation was held entitled to the foregoing bequests. Frierson v General Assembly of Presbyterian Church, 7 Heisk. (Tenn.) 68.3.

Old School, General Assembly, Political Deliverances. From the commencement of the late war of rebellion, and during its prevalence, the General Assembly (Old School) at its annual meetings made deliverances on the subject of slav- ery and loyalty, declaring the obligations of the church in this regard. A large minority of the church in different States considered these deliverances of the General As- sembly unconstitutional; that is to say, that the church, as a church, according to its written Confession of Faith and Form of Government, had no authority to make deliverances on purely political and civil matters. This minority pro- tested against these deliverances, and issued a paper called the "Declaration and Testimony," inveighing against tlie conduct of the majority. This paper gave great ottense to the majority, and they took steps for punishing the offenders, •which resulted in an ex parte decree rendered by the Gen-

PRESBYTEKIAN CHUKCH 41)1)

eral Assembly, without the form of trial, declaring iu etfect tliat the accused ministers should not be allowed to sit iu any church judicatory higher than the session, and that if they, or any of them, should be enrolled as entitled to a seat by any presbytery, such presbytery should, ipso facto, be dissolved, and the members adhering to the General As- sembly were thereby authorized and directed to take charge of the presbyterial records, to retain the same, and exercise all the authority and functions of the original presbytery until the next meeting of the General Assembly. U. S. v Church, 8 Utah :J10.

Organization. The Presbyterian Church is a congrega- tional body. Its powers are vested in its membership, and nuiy be executed through its delegated authority : The selec- tion of a pastor is prinuirily iu the congregation, but musl be approved by the presbytery and accepted by tlie minister selected; and its trustees are not vested witii any power ex officio to employ ministers or to contract as to salaries. This power may be exercised by them only when authorized by direct vote of the congregation, composed of those who are authorized by the laws of the church to participate in such meetings. Myers v First I'resbyterian Church, Perry, 5 Okl. 809.

Organization and Form of Government. The Presbyterian Church consists of all those persons in every nation, together with their children, who make profession of the holy religion of Christ, and of submission to his laws. "A particular church consists of a number of professing Christians, with their offspring, voluntarily associated together for divine worshij) or godl}^ living, agreeably to the Holy Scriptures, and submitting to a certain form of government." Ruling- elders are representatives of the people, chosen by them for the purpose of exercising government and discipline in con- junction with the pastors or ministers. The pastor and rul- ing elders compose what is called the church session. This session is charged witli maintaining the spiritual govern- ment of the congregation, for which they have the power to

500 THE CIVIL LAW AND THE CHURCH

inquire into the knowledge and Christian conduct of the members, to call before them offenders, to receive members into the church, to admonish, to rebuke, to suspend or exclude from the sacraments those who are found to deserve censure. The pastors and the elders, the latter representing the congregation, are the official governing body of the par- ticular church in the administration of its affairs. Deader- ick V Lampson, 11 Heisk. (Tenn.) 523.

Pastor, Terminating Relation. After some twenty-six years of service as pastor negotiations were initiated to terminate the pastoral relation resulting in an agreement between a committee of the j^resbytery and the committee of the elders and trustees, which was ratified by the congregation, by which agreement the pastor Avas to resign and receive a credit of |2,000 on a bond and mortgage given by him to the society growing out of a jjurchase by him of the parsonage property. An action was commenced in the name of the society to recover the amount due on the bond and mort- gage, ignoring the alleged credit, whereupon the pastor insti- tuted a proceeding to restrain a society from collecting the bond and mortgage, for a judgment establishing the credit of |2,000, and for the cancellation of the bond and mortgage. The validity of the contract was sustained and the minister was held entitled to the relief sought by him. Worrell v First Presby. Ch., 23 N. J. Eq. 9G.

Pennsylvania, English Congregation. Land was conveyed by John I'enn, Jr., and Jolm Penn (1785) to certain persons for and on behalf of a religious society known as the English Presbyterian Congregation in trust for a site for a hou.se of worship and a burial place, for the use of such society, to be under the control, management, and regulation of such society and its successors, and not for any other use or pur- pose. The society was incorporated in 1813. A division having occurred in the society about 1838, a minority brought an action to oust the majority from the manage- ment and control of the property. It was held that when the General Assembly of the Presbyterian Church in the

PRESBYTERIAN CHURCH 501

United States was divided tlie persons composiug the ma- jority of this congregation did not forfeit their interests in the trust by refusing to acknowledge the authority of either of the conflicting judicatories. It was held that no partic- ular Presbyterian connection was j)rescribed by the found- ers, or established by the charter of the society; and that if such connection had been prescribed, there has been no adhesion by a connection essentially different, and that the breaking up of the original Presbyterian confederation has released this congregation from the duty of adhering to any ])articular part of it in exclusion of another. Therefore, when the General Assembly of the Presb^^terian Church in the United States was divided into two distinct fragments, each declaring itself to be the true General Assembly, the persons composing the majority of this congregation did not forfeit their interest in the trust by refusing to acknowl- edge the authority of either of the conflicting judicatories. Presbyterian Cong, v Johnston, 1 Watts. & S. (Pa.) 9.

Political Deliverances, No Effect on Local Property. The society (at St. Charles, Mo.) was organized in ISIS, and afterward acquired property which was to be used for reli- gious purposes in connection with the Presbyterian Church. The local societ}', after 'the division of the Presbyterian Church in 1838 into Old School and New School, remained connected with the Old School Assembly. The society was connected with the St. Louis Presbyter}^ The General Assembly sought to dissolve that presbytery on account of its adhesion to the protest made by the minority of the gen- eral church against the political deliverances of the General Assembly during the Civil War. This suit involved local property, the plaintiffs claiming such only because of the position assumed by the defendants in connection with such protest, which it was claimed had resulted in their excom- munication. The court held that the action of the General Assembly had no effect on the status of the local projierty nor of the congregation, and consequently that the defend- ants could not be excluded from the possession and control

502 THE CIVIL LAW AND THE CHURCH

of the local ohnrcli property. Watson v Garvin, 54 Mo.

Presbytery, Membership. A Presbyterian congregation does not select its delegates to the highest courts of the church pro re nata. The pastor is not strictly the represen- tative of his church, except in so far as he may judge it proper so to act, for he is not a presbyter by virtue of his otfice as pastor of a particular charge, but b}' virtue of his ordination to the gospel ministry; he is as much entitled to his seat in the presbytery without having a charge as when he has one.

So the lay representative, who must be an elder, is selected by the session. But as this session, an inferior church judi- catory, is composed of elders elected for life or during good behavior, it follows that the congregation has no voice in the selection of such representative, and that he may or may not, according to circumstances, represent the sentiment of the church. Obviously, therefore, the congregation is power- less and passive in the hands of its church courts and cannot be justly charged with the acts of its delegates, in either the presbytery or synod, because in these bodies ^lone resides the power to call such representatives to an account for any unlawful or contumacious acts, which they nuiy commit in their representative capacity. McAuley's Appeal, 77 Pa. 397.

Presbytery of New York, Powers. The trustees of the Pres- bytery of New York constitute an ecclesiastical governing body having control over the several Presbyterian churches in the County of New York. As such it assumed to dissolve the Westminster Prebysterian Church of West Twenty- third Street. Its decree of dissolution could extend no further than the ecclesiastical or spiritual side of the organ- ization attempted to be dissolved, for the Religious Corpora- tions Law confers no power upon such a governing body, or anybody else, to dissolve a religious corporation, considered as a legal entity, in the County of New York.

The law of the state of New York prescribing, as it has done ever since 1875, that the temi)oralities of a religious

PRESBYTERIAN CHURCH 50;J

corporation shall be administered in accordance with de- nominational usage, contemplates the coexistence of a church in the spiritual sense and a church in the legal sense, working together toward the same beneticent ends. When, however, the superior governing body having authority over the ecclesiastical organization decrees its dissolution, there still remains the legal entity; that is to say, the trustees of the corporation are left in charge of its property, but with- out any spiritual body to maintain services or carry on religious work therein. The church as a legal corporate entity remains; the church in a spiritual sense is dissolved and gone. Under such circumstances the trustees hold the property subject to denominational uses, notwithstanding the dissolution of the spiritual church. The presbytery can- not oust them from office by dissolving the spiritual church. It may, however, by virtue of its control in ecclesiastical matters, insist that the trustees continue to administer the property for denominational purposes, and if they fail to do so, undoubtedly it would have a standing in a court of equitj' to enforce action on the part of the trustees to that end. Westminster Church of W. 23rd St. v Presbytery of New York, 211 N. Y. 214.

Presbytery, Relation to Synod. No presbytery can be in connection with the General Assembly unless it be at the same time subordinate to a synod, also in connection with it; because an aj)peal from its judgment can reach the tri- bunal of the last resort only through that channel. It is immaterial that the presbyteries are the electors and the synod is a part of the machinery which is indispensable to the existence of every branch of the church. Common- wealth V Green, 4 Whart. (Pa.) 531.

Property, How Held and Managed. The custody and care of the property pertains to the trustees for the uses and pur- poses for which they hold the trust. Chief among these is the maintenance of public worship by the congregation, and in so far as that purpose is concerned the trustees must respect the wishes and action of the session as to the use and

50i THE CIVIL LAW AND THE CHURCH

occupation of the house of worship. The right of the session to control in any way the property of the congregation is only incidental to the right to the office of elder. Dayton v Carter, 20G Pa. St. 491.

Publication Committee. In 1873 the persons then compos- ing the committee of publication were incorporated by tlie Legislature of Virginia under the name of "The Trustees of the Presbyterian Committee of Publication," with power to receive and use property not exceeding at any one time $200,000. This charter was approved by the Presbyterian General Assembly at its first meeting after the incorpora- tion, and the committee was authorized to purchase a pub- lishing house, which it did, and established a publishing business at Richmond, Virginia. The object of the com- mittee was the publication and circulation of books, tracts, papers, cards, etc. Testator, a member of the Presbyterian Church, and who was interested in the work of the com- mittee, by his will gave to the Presbyterian Committee of Publication at Richmond, Virginia, one half of the residue of his estate. It was held that the bequest was intended for the corporation known as the "Trustees of the Presbyterian Committee of Publication," that the corporation had the legal capacity to take and hold the bequest, and that the bequest was valid. Wilson v Perry, 29 W. Va. 169.

Ruling Elders, Election, Synod's Power Limited. The order of a synod directing the election by a congregation of addi- tional ruling elders was contrary to the constitution of the church and not obligatory upon the session and congrega- tion of the local church, and consequently persons claiming title to the office of ruling elder by virtue of an election under such void order of the synod did not thereby become ruling elders, and they were not constituted ruling elders by the declaration of the General Assembly. Watson v Avery, 2 Bush. (Ky.) 332.

Scotch Presbyterian Church. I'roperty was conveyed to the society by a deed which provided, among other tilings, that the society should always be known as the Scotch I'resby-

PRESBYTEKIAN CHURCH 505

terian Church, that instrumental music should not be used in its service, and that if the property should be sold the proceeds were to be devoted to the same religious purposes, by the same organization and under like conditions. On the sale of the property the Presbytery of Jersey City assumed to direct the disposition of the proceeds, but instead of establishing a new church with the same restrictions the presbytery divided the proceeds between three other Pres- byterian churches in Jersey City, in all of which instru- mental music was used. In an action by the representatives of the original grantor of the land against the presbytery to prevent the consummation of its plan to divide the proceeds of the sale among certain churches, the court of chancery granted an injunction against the presbytery, but the judg- ment was reversed on appeal. MacKenzie v Trustees of Presbytery of Jersey City, 67 N. J. Eq. 652.

Scotland. "Before the Reformation the whole territory in Scotland was divided into parishes; and since the firm estab- lishment of the I'resbyterian Church as the established reli- gion of Scotland a lot of land is set aj^art in each parish for a church edifice, and probably for a manse or parsonage house and other parish purposes, and this land is specially and inalienably appropriated by law to the support of public worship conformable to the faith, discipline, and practice of the Presbyterian Church." The Presbyterian Church of Scotland never did, as a hierarchy or ecclesiastical judica- tory, take any jurisdiction of the Presbj'terian churches in this country. The church in Scotland was divided into parishes, having its Kirk session, a number of parishes to- gether forming a presbytery, several presbyteries forming a synod, and over the whole church is an Assembly formed by delegates from all the synods. Attorney -General v Propri- etors of Meetinghouse in Federal Street, 3 Gray (Mass.) 1.

Secession of 1838. In 1801 a plan of Union for New Settle- ments was adopted, which is described in the foregoing note on Association with Congregational churches. The General Assembly of 1837 adopted a resolution abrogating this plan.

506 THE CIVIL LAW AND THE CHURCH

stating in tlie preamble that it was irregular and unconsti- tutional, and was not approved by the presbyteries. By operation of the abrogation of this Plan of Union the Synod of Western Reserve was declared to be no longer a part of the Presbyterian Church, and it was also declared that the Synods of Utica, Geneva, and Genesee, having been formed on the basis of the Plan of Union, were out of ecclesiastical connection with the Presbyterian Church, and were not in form or in act an integral part of the church. The resolu- tions of excision contained the qualification that it was not the intention of the General Assembly to affect in any way the ministerial standing of any member of either of said synods, nor to disturb the pastoral relation in any church, nor to interfere with the duties or relations of private Christians in their respective congregations. Local churches continuing to be strictly Presbyterian might, on applica- tion, be admitted to jjresbyteries conveniently situated, and in any of the exscinded synods presbyteries continuing to be strictly Presbyterian were directly to apply to the next General Assembly, which was authorized to make such disposition of their cases as the Assembly might de- termine.

Commissioners from the four exscinded synods presented themselves for membership in the General Assembly of 1838 and demanded to be enrolled by the clerks. This demand was refused. This Assembly met in the Seventh Presbyterian Church at Philadelphia in May, 1838, By a law of the church the moderator of the Assembly of 1837 was author- ized to preside at the opening of the next succeeding As- sembly and until a successor was chosen. The moderator of the Assembly of 1837 assumed the duties of that office at the opening of the Assembly in 1838. The clerks reported the names of commissioners holding regular commissions, and also reported the names of commissioners whose elec- tions were claimed to be irregular on account of the relations of their synods as a result of the action of the Assembly of 1837.

presbyti:rian church sot

The moderator announced that commissioners whose names had been enrolled would be considered members of the Assembly, and that other persons claiming seats should then present their commissions for examination. Commis- sioners representing the presbyteries connected with the exscinded synods then attempted to organize the General Assembly bj^ the election of a temporary moderator, ignoring the moderator of 1837, who was then presiding in the new Assembly. The motion to elect another moderator was put bj' the member who made it, from his place, the regular moderator still retaining his seat, though not acting. The motion for the election of a temporary moderator was de- clared carried. Clerks were also elected, a motion for their election being put by the newly elected temporary moder- ator standing in the aisle. The persons sympathizing with this movement then elected a regular moderator. The body so assuming to be organized as a General Assembly then withdrew to the First Presbyterian Church and held ses- sions there. The General Assembly as organized by the moderator of 1837 continued its sessions in the Seventh Church.

The Assembly which adjourned to the First Church elected trustees under the act of Pennsylvania of 1799, incor- porating the trustees of the Presbyterian Church. The trustees there elected procured a writ of quo warranto against the trustees holding oflSce under an election by former regular General Assemblies.

In Commonwealth v Green, 4 Whart. (Pa.) 531, it was held that the General Assembly which met in the First Pres- byterian Church was not the legitimate successor of the General Assembly of 1837, and therefore that the trustees in office under former elections at the time the First Church Assembly was organized were not usurpers, as charged in the writ.

Secession, Effect on Pastoral Relation. The pastor, owing to some diiferences in the congregation, was requested to resign by the presbyteiy having Jurisdiction, but at the sng-

508 THE CIVIL LAW AND THE CHURCH

gestioii of the presbytery he continued to serve the church a few months longer as a supply. Thereupon he was elected as a stated supply for two j^ears. The question having arisen as to the legality of the vote by which the pastor was employed, the matter was submitted to the presbytery, which held that some persons having been denied the right to vote at this election, the election was invalid, and the presbytery expressed the opinion that the further employment of the pastor was unwise and recommended that another pastor be chosen.

The party supporting the pastor filed a protest with the presbj'tery and declared its intention to withdraw from its connection with that body. The presbjtery thereupon de- clared that the pastor's party had seceded, and that the remaining members of the church constituted the local society and were entitled to administer its affairs. Subse- quently the pastor's party held meetings, elected trustees, and reemployed the pastor. But it was held that this action was irregular and illegal, for the reason that this party had withdrawn and seceded from the organization and could not thereafter exercise powers of control over the propert3\ This action of the presbytery is binding on the civil courts. Gaff V Greer, 88 Ind. 122.

The minority, consisting of a part of the ruling elders, the minister, and others, seceded from the church. They were held not entitled to any part of the church property. By seceding they could not take with them any part of the property which belonged to the corj)oration or church. The situation was not changed by the fact that the seceders were numerically a majority of the corporation, nor that they renmin in possession. Having separated themselves from the ecclesiastical body of the church, formed a new presby- tery for themselves, the complainants, who were adhering members, by operation of law, became the corporators, and as such were entitled to the possession. Skilton v Webster, Brightly N. P. (Pa.) 203.

Session. The session is the governing body in the local

PRESBYTERIAN CHURCH 509

society and is composed of the ruling elders and pastor, and in all business of the session the majority of its members govern, the number of elders for each congregation being variable. The possession of the elders, though accompanied with larger and more efficient powers of control than that of the trustees, is still a fiduciary possession. It is as a session of the church alone that they could exercise power. Except by an order of the session in regular meeting they have no right to make any order concerning the use of the building ; and any action of the session is necessarily in the character of representatives of the church body by whose members it was elected. Watson v Jones, 13 Wall. (U. S.) 679.

The church session is the governing body of a particular congregation or church, and is composed of the pastor or pastors and the ruling elders, and is charged with maintain- ing the spiritual government of the congregations. First Presbyterian Church, Louisville v Wilson, 14 Bush. {Kj.) 252.

Session, Powers. The session is not a corporation, and has no standing as a body in any civil court. It cannot main- tain an action in a civil court, nor can its component mem- bers maintain such an action. The session as a body is chosen by and represents only the communicants of the church, and not the whole congregation. Its jurisdiction is wholly spiritual. As the trustees are a committee of the whole congregation, whose duty it is to manage their tem- poral affairs, so the session is a committee of the communi- cants to manage their spiritual affairs. As a judicatory it is its duty to attend to the spiritual needs of the church dur- ing the vacancy of the pastorate and to decide upon the qualifications of any pastor who is called temporarily to officiate in public worship. It also has the right to deter- mine upon the character and quality of all services held in the church, as to whether they are, or are not, religious and spiritual according to the tenets of the Presbyterian Church. The session has no power to enforce any of its judgments

510 THE CIVIL LAW AND THE CHURCH

except by spiritual discipline. The trustees have no right to close the church edifice against the spiritual authorities of the society unless authorized thereto by the express direc- tion of the congregation. On the other hand, the spiritual authorities have no right to open the church and use it for religious services at the expense of the congregation without their consent. Where there is a dispute between the session and the congregation the former must yield, for the congre- gation is the superior body. Everett v First Presbyterian Church, 53 N. J. Eq. 500.

Slavery Agitation. The General Assembly of the Presby- terian Church, while often counseling Presbyterians against patronizing slavery, had never advised a rule against it, nor made opposition to it a test of religion, until the civil conflict had become flagrant. In the year 1815 the following question was propounded to the General Assembly : "Do the Scriptures teach that the holding of slaves without regard to circumstances is a sin, the renunciation of which should be made a condition of membership in the Church of Christ?" and the Assembly answered that question in the following words : "It is impossible to answer the question in the aflSrmative without contradicting some of the plainest declarations of the Word of God. That slavery existed in the days of Christ and his apostles is an admitted fact ; that they did not denounce the relation as sinful, as inconsistent with Christianity ; that slaveholders were admitted as mem- bers in the churches organized by the apostles; that, whilst they were required to treat their slaves with kindness, and, if Christians, as brethren in the Lord, they were not com- manded to emancipate them. The Assembly cannot, there- fore, denounce the holding of slaves as a necessarily heinous and scandalous sin and calculated to bring on the Church of Christ the curse of God, without charging the apostles of Christ with conniving at sin, introducing into the church such sinners, and then bringing upon them the curse of the Almighty."

Wliile President Lincoln's proclamation of enunici])atioTi

PRESBYTERIAN CHURCH 511

had aggravated the horrors of the war, and perverted it from a defense of the Union into a military crusade against slavery, the General Assembly of 1864, without disguise, boldly entered the political field, and espoused the cause of extirpating that domestic institution at once by force and in blood. It then made the following declarations:

"The Assembly, in the name of the Presbyterian Church, expresses her thanks to Almighty God that the President of the United States has proclaimed the abolition of slavery within most of the rebellious States, and has decreed its extinction by military force. He has ordered the enlistment of soldiers of those formerly held as slaves in the national armies. It is the President's declared policy not to consent to the reorganization of civil government within the seceded States upon any other basis than that of emancipation,

"Our communion must also be mindful of the fact that now, while multitudes of these freedmen are taught the use of arms, and found trained in military tactics, and inspired with the thought that they are now called of God, to conquer for their people a position among the races of mankind," etc.

The Assembly of 1865, after the close of the war, ordered all presbyteries to examine Southern applicants for admis- sion into the church on th^ subjects of the rebellion and slavery, and to reject all who should admit their agency in the revolt, or their belief that slavery is an ordinance of God, unless they give evidence of repentance for their sin and renounce their error. Gartin v Penick, 5 Bush. (Ky.) 110.

Sovereignty, Not in Membership. According to Presbyterian polity, as established from time immemorial, the only acts of sovereignty — if they can be called such — retained by, or permitted to, the individual members, with respect to such matters as are here involved, are the election of deacons and ruling elders when a particular church is organized and when vacancies occur, and the selection of a ruling elder as a representative of the particular church in the presby- tery and synod. All other powers of a sovereign character

512 THE CIVIL LAW AND THE CHURCH

are vested in the presbyteries and General Assend)ly. The powers thus vested are, when exercised, binding upon all the members whether the result is satisfactorj^ to tJiem or not. Committee of Missions v Pacific Synod, 157 Cal. 105,

Synod of Secession Church. A will inade in 1841 bequeathed a fund to the "Rev. Sj-nod of the Secession Church, of which body the Rev. Dr. Robert Bruce is a member, and the pro- ceeds and avails thereof to be applied to the spreading of the gospel of Jesus Christ here and elsewhere, and for the support of pious young men who may need assistance while preparing for the gospel ministry, in such ways as said synod may consider will best advance the kingdom of Christ" ; and at the end of fifty years the devised real estate was to be sold by the executors and the proceeds appro- priated to the above purposes in such manner as the synod or General Assembly might direct. The Secession Church referred to was interchangeably called the Associate Church, and the Associate Presbyterian Church. The synod was its highest body. It did not then have a General Assembly.

In 1782 a number of the membership of this church in this country withdrew and entered into a union with some of the reformed Presbyterians in the United States, which were a part of another fraction of the said Established Church, which during the Revolution of 1688 would not act therewith, and were commonly known as Covenanters, and afterward in 1743, as Reformed Presbj'terians, under the name of the Associate Reformed Church, with which those who continued to adhere to the Associate or Seceder Church and the Associate Reformed Church formed a union in 1858^ under the name of United Presbyterian Church. In 1853 the synod of the Associate Presbyterian Church was incor- porated in Pennsylvania. The above bequest was paid to this synod until its incorporation, and afterward to its treasurer until the commencement of this proceeding.

In October, 1858, after the above mentioned union, result- ing in the formation of the United Presbyterian Church, cer- tain ministers and elders met at Canonsburg, Pennsylvania,

PRESBYTKKIAN CHURCH 513

aud organized an Associate Synod of North America. The new organization elected trustees, aud claimed that the be- quest under the foregoing will should be paid to them. It was held that the trust was properly payable to the original society, namely, the Associate Reformed Presbyterian, which had gone into the union, forming the United Presby- terian Church, and that the new organization formed in 1858, had no interest in the trust. Ramsey Appeal, 88 Pa. St. 60.

Synod, Powers. A I'resbyterian synod has power to erect a presbytery, but no power to dissolve one without its con- sent. Neither has a synod power to appoint a commission to receive the submission of a j^resbytery, which has been on trial before the synod, to restore or dissolve the presbytery as the commissioners may think ])roper. This is a delegation of judicial power, not warranted hj anj^ known rules of dis- cipline in the Associate Church. Smith v Nelson, 18 Vt. 511.

Trustees. The trustees obviously hold possession for the use of the persons who by the constitution, usages, and laws of the Presbyterian body are entitled to that use. They are liable to removal by the congregation for whom they hold this trust, and others may be substituted in their places. They have no personal ownership or right beyond this, and are subject in their official relations to the property to the control of the session of the church. Watson v Jones, 13 Wall. (U. S.) 679.

Unconstitutional Deliverance on Political Questions. The Presbyterian Church has always been considered, aud no doubt is, one of the orthodox Protestant churches, and as such forming a part of the spiritual kingdom of Christ upon earth. Christ authoritatively declared that his kingdom was not of this world. His disciples, as such, owe allegiance alone to him as the great Head of the church ; as citizens of a republic or subjects of monarchy or empire their civil allegiance was due to their respective governments. But the kingdom of Christ is wholly independent of civil govern- ments. As the Presbyterian Church is a part of this

514 THE CIVIL LAAV AND THE CHURCH

spiritual kingdom, it had no right as such to interfere in civil matters. But the Presbyterian Church also has a written constitution which their ecclesiastical judicatories have no authority to violate. They are as much bound by the provisions of this constitution as the supreme law of the church as the State and federal governments are by their respective constitutions. The written constitution of the Presbyterian Church contains this section : "IV, Synods and councils are to handle or conclude nothing but that which is ecclesiastical, and are not to intermeddle with civil affairs which concern the commonwealth, unless by way of humble petition in cases extraordinary ; or by way of advice for satisfaction of conscience, if they be thereunto required hj the civil magistrate." Church and state may cooperate in the advancement of objects common to both, but each of them must be careful to act within its own sphere, the one never intermeddling with the affairs that properly belong to the province of the other. It was held that the deliverances of the General Assembly, Old School, during the Civil War, on the subjects of slavery and loyalty were prohibited by its constitution and were therefore nullities so far as property rights were concerned. Watson v Garvin, 54 Mo. 353.

Westminster College. The synod of the Presbyterian Church in Missouri was given the care and control of the college and the appointment of the trustees. It was held that the corporation established for purely academic pur- poses, for education in literature, in the arts and sciences, is in no sense a religious corporation, even though it be given into the care and under the management of a religious body. And an act creating such a corporation was not obnoxious to the provision of the constitution of Missouri that no religious corporation should ever be established in the State. The property of the corporation was exempt from taxation. State ex rel Morris v Board of Trustees of Westminster College, 175 Mo. 52,

PRIMITIVE BAPTIST CHURCH

Described, 515.

Described. This church is an independent congregational church. Discipline is administered by the body of the con- gregation. It has no body of canon law prescribing pro- cedure in such cases. No written rules prescribe notice or require a trial. A majority of those members voting when the church sits in conference determines the result upon any motion or resolution disciplining a member. Nance v Bushby, 01 Tenn. 305.

515

PRIMITIVE METHODIST CHURCH

Organization and form of government, 516. Adherence to fundamental principles, 517. Diversion of property, limited, 517.

Organization and Form of Government. In Cape v Ply- month Congregational Clinrcli, loO Wis. 174, the court said the Primitive Methodist Church belonged in the third class of religious corjiorations described by Mr. Justice Miller in Watson v Jones, 13 W^all. (U. S.) 679, namely, "Where the religious corporation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesias- tical tribunals with a general and ultimate power of con- trol, more or less complete, in some supreme judicatory, over the whole membership of that general organization."

The Primitive Methodist churches in several of the Western States were consolidated into what was called a General Conference, known as the Western Conference, under the discipline of which there was primarily the society or congregation as a unit, having power to own property, and, by certain prescribed officers, to manage the ordinary daily affairs. Next in ascendency a few neighboring soci- eties were organized into a circuit or charge, often, though perhaps not always, served by a single pastor or minister. Local churches sometimes grouped in circuits were under tlie general jurisdiction of Quarterly Conferences, composed of pastors, officers, and representatives of the local societies. Above this Conference there was an Annual Conference composed of certain general officers, and also ministers in full connection, and lay delegates for each one hundred members of a local society. The Annual Conferences had general supervision and jurisdiction of local societies.

516

PRIMITIVE METHODIST CHURCH 517

Adherence to Fundamental Principles. Several persons associated themselves together for the worship of God and to hear the truths of the gospel expounded, with the exclu- sive reservation that they were to hear these truths ex- pounded agreeably to the doctrines of their own sect. The associates also intended to purchase a lot and erect a build- ing thereon for worship), the expense of which was to be provided by contributions. One of the deeds authorized the grantor during his natural life to appoint a minister to the church. In one of the deeds a clause was: inserted pro- viding that ministers appointed to the society should not preach any other doctrine than that contained in the late Rev. John Wesley's Notes upon the New Testament and four volumes of his Sermons as essential to salvation. It was held that this provision of the deed was violated by the appointment of an Episcopalian as minister. Combe v Brazier, 2 Desaus. (S. C.) 431.

Right to secede from main body denied. American Prim- itive Society v Pilling, 4 Zab. (N. J.) 65.3.

Diversion of Property, Limited. The local society was orig- inally incorporated as a branch of the Primitive Methodist Church, connected with the Western Conference. A large majority of the society determined to change its denpmina- tional relations, and, accordingly, organized a new society to be allied with the Congregational denomination under the name of the Plymouth Congregational Church. A contro- versy arose between the two societies relating to the church property.

By a rule of the Primitive Methodist Church, all property is held subject to the uses of each society when not incon- sistent with the discipline and usages of the Primitive Methodist Church, and in case a local society should cease to exist, or exist contrary to the usages and discipline of the Primitive Methodist Church, then its property should pass to the Conference trustees, to be held for the benefit of any organized Primitive Methodist Society, in the place where the real estate is situated or, if this be impracticable,

518 THE CIVIL LAW AND THE CHURCH

then to be held for the general purposes of the church and under the direction of the Annual Conference. This was held to restrict the use of the property in question to a society subject to the discipline and supporting the doc- trine of the I'riniitive Methodist denomination. The Dodge- ville society, with three others, constituted a circuit, which was under the general supervision of a Quarterly Confer- ence of various representatives and officers of the local churches. The repudiation by the I'riniitive Methodist So- ciety of its submission to the Annual Conference, and set- ting itself up as the supreme authority over its own affairs and over its members in matters religious and secular, was a departure from the use and purpose for which the partial possession in this property was originally conferred on the society, and to which use such property was limited, and, therefore, that it exceeded the right or power over that property had by either the corporation or its governing officers. Cape v Plymouth Congregational Church, 130 Wis. 174.

PROFANITY

Defined, 519.

Defined. Any words importing an imprecation of divine vengeance, or imjdying divine condemnation so nsed as to beconie a pnblic nuisance, wonld make ont tlie offense of profanity, although the name of the Deity be not used. Gaines v State, 7 Lea (Tenu.j 410.

519

PROPERTY

Abandoning doctrines, effect, 521.

Adverse possession, 521.

Alaska, effect of transfer from Russia to United States, 522.

Contract, 522.

Dedication, diversion, 522.

Dedication, 523.

Dedication to religious uses, 523.

Denominational use, 523.

Diversion, 524.

Division of society, 527.

Execution, 528.

Gospel and school lots, 529.

Illinois rule, 529.

Joint use, 529.

Lay control, Pennsylvania rule, 531.

Limitation of amount, right to excess, 531.

IMajority's right, 532.

Member's right, 533.

Members unlawfully expelled, right to be heard, 533.

Methodist Episcopal Church, separation, effect on title, 533.

Minority's right, 534.

Mob, destruction by, action for damages, 534.

Object and use, 534.

Parish, Massachusetts rule, 534.

Pastor's salary, land may be sold to pay, 534.

Priest's occupancy, 535.

Pulpit, cannot be seized on execution, 535.

Removal of church edifice, 535.

Reversion, 535.

Reversion on discontinuance of specified use, 536.

Sale, 537.

Sale for debts, 538.

Sale or mortgage, 539.

Sale, reinvesting proceeds, 539.

Sale, when court order not necessary, 540.

Secession, effect on title, 540.

Sewing circle, funds, 541.

520

PROPERTY 521

Special trust, effect, 541.

Sunday school building, 542.

Suspending power of alienation, 542.

Surplus on sale, 542.

Taxation, 543.

Title, how held, 543.

Title, when not affected by exclusion of society, 543.

Trust, limitation by testator, 543.

Trustees, general rights, 543.

Unconditional gift, 544.

Unincorporated society, 544.

Vestry room, 544.

Abandoning Doctrines, Effect. If the members of a church abandon the tenets of the churcli, they lose their interest in the proi^ei'ty of the church. If they adhere to the doctrines of the church, but abandon the organization, they also lose their interest in the property of the church. Mack v Kime, 129 Ga. 1.

Adverse Possession. This corporation acquired real prop- erty in 1803, and at the time of the commencement of this action had been in uninterrupted possession of it for more than forty years. The society was deemed to have acquired the title by adverse possession, notwithstanding the pro- visions of article .38 of the Maryland bill of rights, which in effect, requires the sanction of the Legislature to a convey- ance to a religious society, which sanction had not been obtained. Dickerson v Kirk, 105 Md. 638.

Where a religious society had had uninterrupted posses- sion of land in controversy for thirty years or more, using it as its own, it would be jiresumed, in the absence of an existing deed to the land, that plaintiff's entrj^ was under a purchase, and that its grantor had a lawful right to convey. Penny v Central Coal and Coke Company, 138 Fed. (Ark.) 769.

While a religious corporation cannot by mere resolution divest itself of the title to real estate, a sejiaration of a church into two societies and the transfer by the parent societj' to the new society of the church edifice and other

522 THE CUVIL LAW AND THE CHURCH

property occupied by the latter will at least lay the fouiida- tiou of a right to adverse possession, and if tlie new society afterward becomes incorporated, tliis adverse possession continues in the corporation thus formed, and the right may thereby ripen into a comjilete title. Reformed Church, Gallupville, v Schoolcraft, 05 N. Y. 134.

Alaska, Effect of Transfer from Eussia to United States. See notes on Alaska and Russian toleration in the article on Lutherans.

Contract. The property of a religious society is vested in the corporation itself and not in the trustees as trustees. The corporation may make an executory contract for the sale of the property, subject to the approval of the court. The power of the court is a regulating power for tlie pur- pose of preventing a violation of the trust for the particular use to which the property is dedicated, and to see that the proceeds of sale are invested for the like uses and the order of the court in such cases, authorizing the sale is permis- sive only and not mandatory. When the rights of the pur- chaser have become so far fixed that he holds an agreement duly executed by the corporation, and the requisite sanction of the court has been obtained, he can be compelled to pay for the land and is entitled to a conveyance. It is usually preferable, first, to negotiate a sale, agree upon the terms, and then lay the agreement before the court, and by the order obtain an approval thereof and authority to con- vey and a direction for the investment of the proceeds as the statute requires. Bowen v Irish Presbyterian Congre- gation, N. Y., G Bosw. (N. Y.) 245. See also Muck v Hitch- cock, 149 A. D. (N. Y.) 323 as to preliminary contract of purchase and its effect.

Dedication, Diversion. A person owning property in his own right may dedicate such property, by way of trust, to support and propagate any definite doctrines and princi])les, ]»rovided it does not violate any law of morality and sulii- ciently expresses in the instrument by which the dedication is made the object of the trust. In such cases it is the duty

PROPERTY 523

of the courts to see that the property so dedicated is not diverted from the trust attaching to it, and so long as there are persons in interest, standing in such a relation to the property as that they have a right to direct its control, they may prevent the diversion of the property to any use differ- ent from that intended by the donor. If such trust is con- veyed to a religious denomination or congregation, it is not in the power of a majority of that denomination or congre- gation, however large the majority may be, by reason of a change of religious views, to carry the property thus dedi- cated to the support of a new and different doctrine.

Where it is alleged, in a case properly pending, that prop- erty thus dedicated is being diverted from the use intended by the donor by teaching a doctrine different from that con- templated at the time the donation was made, however deli- cate and difficult it may be, it is the duty of tlie court to inquire whether the party accused of violating the trust is teaching a doctrine so far at variance with that intended as to defeat the objects of tlie trust, and if the charge is found true, to make such orders in the premises as will secure a faithful execution of the trust confided. Lamb v Cain, 129 Ind. 4S().

Dedication. In Atkinson v Bell, IS Tex. 474, the court sustained a parol dedication to an unincorporated Method- ist Society of land on which a church was afterward erected and occupied by the society nmny years.

Dedication to Religious Uses. That property may be dedi- cated to public or religious uses is well established, both in civil and common law. In order to sustain a dedica- tion of property it is not necessary that there should be a certain grantee, to whose use it is nuide, nor is it essential that the right or use should be vested in a corporate body; it may exist in the public, and have no other limitation than the wants of the community at large. Antones et al v Eslava's Heirs, 0 Port. (Ala.) 527.

Denominational Use. I*roperty whicli is devoted to the ]»uri)oses of a given religious organization must be used for

524 THE CIVIL LAW AND THE CHURCH

the purpose to wliich it is devoted, and where the control- ling authority of the organization (whether it be a majority of the congregation of those chnrclies having a congrega- tional form of government, or the highest court of a church in those churches which have different tribunals, with appeals from one to the other) engages in a palpable attempt to divert the property to a purpose utterly variant from that to which it was originally devoted, the civil courts will interfere, even at the instance of a minority, in cases where the form of church government is congregational, or at the instance of the dissenters without regard to property, where the form of government is other than congregational, and protect them in their i)roperty rights against those who, without authority, are attempting to carry the property along lines that are utterly variant from the purpose for which the organization was formed. But in all cases of this character it must appear that the governing authorities of the church have abandoned the tenets and doctrines of the original organization. Whether they have so abandoned them is an ecclesiastical question, and if, under the form of government of the church, there is a tribunal of any char- acter erected for the decision of these questions, the civil courts will not undertake to revise or review the judgment of this tribunal, provided the question is of such a character that it would admit of dispute, and would therefore be proper for decision by the ecclesiastical tribunal. Mack v Kime, 129 Ga. 1.

Diversion. Where a congregation has been organized and holds its property as a constituent part of any particular religious denomination, or in subordination to the govern- ment of any i)articular church, it cannot, without just cause, sever itself from such connection or government. If it does so, it necessarily forfeits its rights and property to those of the organization who maintain the original status. McAuley's Appeal, 77 Pa. 397.

A minority have the right to insist upon carrying out the proposition for which the church or society was organized,

PROPERTY 525

and a majority will not be permitted to divert the common property to other uses, or to use it for the support and main- tenance of doctrines or a polity essentially at variance with its original constitution. Schradi v Dornfeld, 52 Minn. 405. See Bonhani v Harris, 145 S. W. 169.

If property be conveyed to trustees for the use of the cor- poration, and its organic act proclaims the religious belief of its members, the sect to which it belongs, so as to indicate clearl}' the particular use intended by the grantor, or the conveyance expressly indicates the limitations upon such use, or if a corporate organization be formed as a society of a particular church and it becomes possessed of property in any way in trust to that end, in either case the property is held in trust for the use so indicated, and such use cannot be perverted without consent of all the parties to the trust. Franke v Mann, lOG Wis. 118.

Where a majority of a religious society has withdrawn therefrom and organized a new church of a different de- nomination, the minority, adhering to the original society, are entitled to the use and occupation of the church build- ing held in trust for said societj^ and the new church and its trustees may be restrained from interfering with such use. Neither seceding members, though a majority, nor any majority of a religious society, no matter how fully invested with all corporate powers, have a right to divert its prop- erty from the uses defined and limited by the grant of such property to it, or the purposes of its organization as regards the particular religious faith it was organized to promote. Cape V Plymouth Congregational Church, 117 Wis. 150, 130 Wis. 174; see Apostolic Holiness Union of Post Falls v Knudson, 21 Idaho 589.

When property has been acquired, whether by gift or pur- chase, for the maintenance and support of the faith of any recognized denomination or church, every member of the association acquiring it, corporate or unincorporated, has a right to resist its diversion to other antagonistic uses, whether secular or religious, and therefore those who hold

520 THE OIVIL LAW AND THE CHURCH

the title or control, whether a corporation, or the officers of the association, hold it charged with a trust to apply it to the uses for which it was acquired, and not to inconsistent ones. Marien v Evangelical Creed Congregation, Mil- waukee, 132 Wis. G50.

The New York act of 1875, chap. 79, provides that the property and revenues of every corporation formed under section three of the act of 1813, shall be applied by the trus- tees for the benefit of such corporation according to the dis- cipline, rules, and usages of the denomination to which the church, the members of the corporation, belong, and for- bids the diverting of the same to any other purpose. These provisions distinctly recognize the denominational char- acter of the corporations referred to, and the existence of a church as an organized body, to which any such corpora- tion may belong, to whose uses its temporalities may be devoted, and for any diversion or attempted diversion for which from such uses an ample remedy is given in a court of equity. A remedy under this statute may be invoked by any member of the corporation and against the trustees of the corporation. The act of 1875 applies to section six as well as under section three of the act of 1813. First Re- formed Presbyterian Church v Bowden, 14 Abb. N. C. (N. Y.) 356.

"Where a church is endowed with property for the sup- port of a particular faith, and is subsequently incorporated, it is not competent for a majority of the church, the congre- gation, or the corporators, or of a majority of each com- bined, to appropriate such property for the maintenance of a different faith. The question of the particular religious faith or belief is not material in such cases, except so far as the court is called upon to execute the trust, and to that end it merely inquires what was the faith or belief, to main- tain which the fund was bestowed." Kniskern v Lutheran Church, 1 Sand. Ch. (N. Y.) 439.

The title to the church property of a divided congregation is in that part of it which is acting in harmony with its

PROPERTY 527

own law; and the ecclesiastical laws, usages, customs, and principles which were accepted among them before the dis- pute began are the standard for determining which party is right. McGinnis v Watson, 41 Pa. St. 9.

Division of Society. A Presbyterian church separated into two factions, one joining the New School and one joining the Old School. It was held that the jjroperty should be divided in proportion to the number of church members and pewholders in each society. Niccolls v Rugg, 47 111, 47.

The settled rule of the civil courts in cases of disorgan- ization and factional divisions of an ecclesiastical body is that the title to church propert}^ is in that i)art of it which is acting in harmony with its own law, and the ecclesiastical laws and usages, customs, and principles which were ac- cepted among them before the dispute began, and the stand- ards for determining which party is right. The right oi" ownership abides with that faction, great or small, which is in favor of the government of the church in operation with which it was connected at the time the trust was de- clared. The court will adjudge the property to the mem- bers, however few in number they may be, who adhere to the form of church government, or acknowledge the church con- nection for which the property was acquired. Reorganized Church of Jesus Christ of Latter Day Saints v Church of Christ, (50 Fed. Rep. 937. ( W. I). Mo. Cir. Ct.)

The title to the church property of a congregation that is divided is in that part of the congregation that is in har- mony with its own laws, usages, and customs as accepted by the body before the division took place, and who adliere to the regular organization. St. Paul's Ref. Church v Hower, 191 Pa. St. 300.

The title to church property of a divided congregation is in that part of it which adheres to the original organization, and is acting in harmony with its own laws and the eccle- siastical customs, usages, and jjrinciples which were ac- cepted among them before the dispute began. But this rule is subject to the modification that church judicatories may

528 THE CIVIL LAW AND THE CHUKCH

make such changes in the laws, usages, and customs as they may by their laws be authorized to make, or which are not fundamental departures from the general plan and purposes of the organization, and the further power to enforce upon the subordinate members of the organization due observa- tion of those changes and modifications. Clark v Brown, 108 S. W. 421 (Texas).

Land was conveyed to the local society on which to erect a church edifice, and a building was erected accordingly. After occupying the property several years a division arose in the congregation over the alleged unsoundness of faith of a person selected as pastor. This division resulted in the exclusion of this pastor and some members from tlie society. Thereafter each party, namely, those who had joined in the exclusion, and those who were excluded, claimed the pos- session of the jiroperty, and the right to control it. The party which expelled the defendants kept possession of ilie property, and refused to allow its use by the excluded per- sons, and for this purpose kept the building locked. Mem- bers of the excluded part}- obtained entrance througli a window, and, opening the door, permitted other members of that party to enter, and religious services were held therein. The party which had exercised the power of expul- sion was entitled to the possession of the property, and the persons excluded had no right by mere acts of trespass to obtain possession of the property and assume to manage and control it. The majority party were represented l\y deacons who were the trustees of this society, and had charge of its property and records. Fulbright v Higgeubotham, 133 Mo. 608.

A division occurring among the members of the church, it was held that the faction wiiich adhered to the general faith and doctrine of the denomination was entitled to continue in possession and control of the church property. Smith et al V Pedigo et al 145 Ind. 392.

Execution. A church and the lot upon which it is erected are private property, and subject to levy and sale in the

PROPERTY 529

same manner as other private property. Presbyterian Con- gregation, Erie v Colt's execntors, 2 Grant's Cas. (Pa.) 75.

Gospel and School Lots. In New Hampshire lots reserved for the snjjport of the ministry and for sdiools were, except as to a lot set apart for the first minister, deemed the jjrop- erty of the town, and when such lots were sold the proceeds belonged to the town and not to its inhabitants. It was, therefore, held that a religions society organized after the reservation of the lots could not legally claim a division of the proceeds derived from the sale of land reserved for the support of the ministry, or any part of such proceeds, to the separate use of the society. The property belonged to the town as a corporation, and not to any number of its inhab- itants. Baptist Society, AVilton v Wilton, 2 N. H. 508.

Illinois Eule. In Illinois the trustees of an incorporated religious society or association do not hold the propert}', in the absence of a declared or, at least, clearly implied trust, for any church in general, nor for the benefit of any peculiar doctrines or tenets of faith and practice in religious matters, but solely for tlie society or congregation whose oflicers they are; and they are not, in tlie discharge of their duties, sub- ject to the control of an ecclesiastical judicatory. The proi^erty belongs to the society" or congregation so long as the corporation exists, and when it ceases to exist the prop- erty belongs to the donors or tlieir heirs — and tliis conclu- sively distinguishes this property from ])roperty held in trust for tiie benefit of a j^articular religious denomination. Where property is held in trust for the benefit of a partic- ular religious denomination the dissolution of the local corporation can in nowise affect the trust so long as the reli- gious denomination has an existence, for it is to it, and not to the cor])orators, that the use belongs. Calkins v Cheney, 92 111. 4G3.

Joint Use. Where the constitution and by-laws of a church corporation composed of members of two nationalities pro- vide for alternate use of the church property for separate services by members of either nationality, members of one

530 THE CIVIL LAW AND THE CHURCH

nationality are entitled to sncli nse of the clinrcli property without application to the corporate board of trustees by any organized portion of the corporate stockholders or mem- bers. Peterson v Christianson, 18 S. P. 470.

A deed was made to trustees "for the use of the Presby- terian and Lutheran congregations respectivelj'", as at pres- ent organized, etc., but if either congregation deem it con- ducive to their interests, the property be equitably divided by a committee of impartial persons selected by both con- gregations." One congregation, having taken exclusive pos- session of the property, held that it was a dispute and divi- sion between members of an unincorporated society in rela- tion to their rights and privileges, and not merelj^ as tenents in common of real estate, and equity had jurisdiction to restore those excluded to their rights. Kisor Appeal, (52 Pa. 428.

Land was conveyed to the trustees of the Missionary Bap- tist Society with a proviso that the land was to be used for church purposes, but was to be controlled by the trustees of the Baptist Society to be used by such Baptist Society or by any other Protestant denomination to preach in when not used by said missionary Baptist; to be used for moral lectures when not used for religious work, Sunday school was to be conducted before or after preaching. This lan- guage was construed to give to the Bai)tist Church the first right to use the property for all religious purposes, but that when it was not being so used by the Baptists, and was idle, it could be used for any religious rite by any other Protes- tant denomination. It appeared that the house of worship was erected from contributions made by members of several denominations and by persons not connected with anj^ denomination. Sharp v Benton, 23 Ky. Law Rep. 870, hold ing that the Christian Church was entitled to use the house for its regular service, when the house was not otherwise occupied.

Land was conveyed for church purposes on the exi)ress condition that the church to be situated on the land was to

PK01»EETY 531

be open at all times, when not used by the Baptist de- nomination, to all evangelical orders of Christians. The subscription list upon which was raised the money to erect the building, provided that "said house when completed should be free for the use of all evangelical orders of Chris- tians when not used by the Baptists." After several years of such general use the Baptists sought to prevent the use of the building by another order. It was held that the Baptists had the preference, but that Avhen the building was not in use by them it might be used by other evangel- ical denominations, and an injunction was granted restrain- ing the Baptists from interfering with the use of the build- ing by the Methodists and evangelical order claiming the right to use the building when it was not in use by the Baptists. Tomlin v Blunt, :^»1 111. App. 234.

Lay Control, Pennsylvania Rule. The Pennsylvania act of April 2(), 1855, reipiired that "all property which the cor- poration shall in any way acquire shall be taken, held, and enure, subject to the control and disj^osition of the lay members of the society, or of such officers thereof as shall be composed of a majority of lay members, citizens of Penn- sylvania, having a controlling power;" and this provision was to be included in the charter. In Alexander Presby- terian Church, Philadelphia, 30 Pa. St. 154, the proposed charter was rejected because it did not contain this provi- sion. See also Re St. Paul's Church, 30 Pa. St. 152.

By the Pennsylvania act of 1855 all church charters were required to contain a clause subjecting all the church prop- erty to the control of the lay niend)ers of the cor]>oration or church, through constituted officers, a majority of whom shall be citizens of Pennsylvania. Cushman v Church of Good Shepherd, 188 Pa. St. 438.

Limitation of Amount, Right to Excess. In Hanson v Little Sisters of the I'oor, TO Md. 434, it was held that the question as to the capacity of the society to take property in excess of the amount prescribed by its charter could not be raised collaterally, nor in a proceeding for the construction of a

532 THE CIVIL LAW AND THE CHURCH

will, but only iu a direct proceeding by the State. The gift to the society was not void on its face, and must be held valid as to all the world until it has been determined at the instance of the State that the charter has been violated. The corporation can take property to any amount, but can hold it, as against the State, only to the amount provided by its charter.

Majority's Right. In Berryman v Reese, 11 B. Mon. (Ky.) 287, the court sustained an action by the majority against a minority of the church, which had been excluded there- from, to prevent the occupancy of the church by the minority and any interference with the occupancy and enjoyment of the church by the majority. The majority was entitled to hold and use the property.

The society in 1827 received a conveyance of land in trust for the use of the society and occupied the house of worship erected on such land. In 1811 certain members of the society were expelled by the majority. The expelled members and other persons organized a new society. After- ward this new societj^ took possession of the original house of worship and used it in defiance of the majorit3\ The majority party sought an injunction restraining the mi- nority from attempting to use and control the church, and it was held that the expelled members had no right to the property. Shannon v Frost, 42 Ky. 253.

Where property is held by such voluntary religious asso- ciations or corporations, absolutely and without any limi- tation, a majority may dispose of, retain, or occupy and manage it as they please, admitting the minority to the same benefits as themselves. McBride v Porter, 17 la. 204.

When two factions in the same congregation disagree as to which is entitled to the control of the church property, and both sides profess adherence to the same faith and prac- tice, the right must depend upon the will of the majority, unless there be shown some law, regulation, rule, or practice of the church determining otherwise. Nance v Bushby, 91 Tenn. 303.

PROPERTY 533

Member's Right. Where a couveyauce of a lot of ground is made to certain individual members of a religious body, who have no corporate existence, in trust, to them and their successors in office, for church purposes, all the mem- bers of the body become beneficiaries in such property in an equal degree, notwithstanding some of them may have con- tributed a larger sum than others toward the common enter- prise. Ferraria v Yasconcellos, 23 111. 456, 31 111. 1.

When membership ceases the beneficial interest in the property terminates. It is onlj' as a constituent element of the aggregated body or church that any person could acquire or hold as a beneficiary any interest in the property thus dedicated to that church. Nance v Bushby, 91 Tenn. 303.

Members Unlawfully Expelled, Right to Be Heard. An ac- tion was brought to set aside a deed of church property which, it was alleged, had been unlawfully obtained by the pastor and his wife with intent to defraud the society, convert the property into money, and purchase other prop- erty elsewhere; and with the purpose of consummating this object, the pastor had by various means procured the expul- sion of certain members of the society who objected to his operations. The court held that the complainants, who had been unlawfully expelled, had a right to be heard on this question, and that a full inquiry should liave been made into all the facts and circumstances attending the alleged transfer of the property. Hendryx v People's United Church, Spokane, 42 Wash. 336.

Methodist Episcopal Church, Separation, Effect on Title. In 1833 land was conveyed to certain ])ersons as trustees for the purpose of erecting and using a house of worship accord- ing to the rules and Discipline of the Methodist Episcopal Church of the United States. The jjroperty was to be held by the trustees and their successors, who were to be ap- pointed under the laws of Alabama. The register in chancery had power to appoint trustees to fill vacancies. The register appointed trustees, who were held to succeed to the legal title vested in the original trustees. The fact

534 THE Cn IL LAW AND THE CHURCH

that the Methodist Episcopal Church of the United States was divided in 1844, and that a part of it was erected into a denomination known as the Methodist P]piscopal Church, South, which included the property in question, did not affect the title of tlie trustees. Malone et al Trustees v La- croix, 144 Ala. 648.

Minority's Right. In St. Andrews Ch. v Schaughnessy, 63 Neb. 7t)l!, it was held that under the Nebraska Religious Corporation act a minority of the members could not law- fully retain possession of the corporation property, as against the corporation itself, for the purpose of compelling the corporation to recognize their rights as members.

Mob, Destruction by, Action for Damages. Property of the society, consisting of buildings and personal estate, was destroyed by a mob in May, 1844. In an action against the county to recover the value of the property, it was held that proof of the value of each item of property was not neces- sary, but a general estimate might be submitted to the jury, and that the society was entitled to recover the fair value of the i)roperty destroyed. Brothers of tlie Order of Hermits of St. Augustine v I»hiladelphia County, 4 Clark (Pa.) 124; Brightly N. P. 116.

Object and TJse. Church property is for the use of the members of the church, so long as they remain members, for the worship of God according to their articles of faith and in the manner provided by the rules and instructions and discipline of the association, and may be so used at any proper time by any member. I'ounder v Ashe, 44 Nebr. 672.

Parish, Massachusetts Rule. Under the Massachusetts parish system the legal title of church property was in the corporation, consisting either of the town as an entire parish, or a subdivision of the town as a separate parish, and the property was held to a special use — that of the sup- port of public worship. Attorney-General v Proprietors of Meeting House in Federal Street, Boston, 3 Gray (Mass.) 1, 37.

Pastor's Salary, Land May Be Sold to Pay. Churcli i)roiv

PROPERTY 535

erty may be sold to pay the pastor's salary. Lyons v Plant- ers' Loan and Savings Bank, 86 Ga. 485.

Priest's Occupancy. A priest was removed from office by his bishop, by which removal he was deprived of all the privileges and rights incident and pertaining to said posi- tion. The bishop subsequently served a notice on the priest to deliver up possession of the real estate occupied by him. But notwithstanding this removal and notice, the priest continued to occupy the property and refused to surrender it, keeping it locked, and with threats, menaces, and force declined to i^ermit his successor to minister to the con- gregation, and occupy the church property. It was held that the priest's occupancy was that of a servant and not that of a tenant ; that his occupancy of the property was simply an incident to his relation to the congregation as its priest and his appointment to the position by the bishop. A summary proceeding to recover possession of the property was sustained. Chatard, Bishop v O'Donovan, 80 Ind. 20.

Pulpit, Cannot Be Seized on Execution. Where a meeting- house had been erected by a corporation formed for that purpose, and the i)roperty had been convej^ed to the parish subject to the rights of pew-owners, it was held that the pulpit could not be seized on execution. Revere v Gannett, 1 Pick. (Mass.) 101).

Removal of Church Edifice. The house of worship may be removed from one lot to another or from one village to another without an api)lication to the court. Pewholders have no standing to object to such removal. Matter of the Second Baptist Society, Canaan, N. Y., 20 How. Pr. (N. Y.) 324.

Reversion. Property was conveyed to a church with the condition forfeiting the estate to the grantor and giving the right of reentry if the property should ever be used for other than church purposes. The city apfjropriated a part of the laud for a street. It was held that the church, and not tlie grantor, was entitled to the damages awarded for

53() THE CIVIL LAW AND THE CHURCH

o[Kniiiig the street. Cincinnati v Babb, 20 Wkly. Law Bui. (Ohio) 284.

Property was conveyed to a society of Friends for use "so long- as it may be needed for meeting purposes, then said l)remises to fall back to the original tract." The removal of the buildings which the society had erected furnished no reason for a necessary inference that the land was no longer needed for meeting purposes. This did not constitute a forfeiture of the title, and there was no reversion. Carter V Branson et al, 70 Ind. 14.

Reversion on Discontinuance of Specified Use. Land w^as couvejed to a religious society for a nominal consideration, with a provision that the property should be used for church purposes onlj^, and that if it ceased to be so used, the grantee should pay the grantor a stipulated sum. It was held that if the property was not used for church purposes, the actual consideration was to be the sum stipulated, but there was no limitation on the continuance of the estate. Board of Education Normal School District v Trustees, First Baj)- tist Church, Normal, 63 111. 204.

Property was convej^ed to trustees and their successors "for the use of the members of the Methodist Episcopal Church of the LTnited States of America (so long as they use it for that purpose, and no longer, and then to return back to the original owner) according to the rules and Dis- cipline of the church. The equitable estate was in the mem- bers of the church so long as they used the house as a place of worship in the manner prescribed and no longer. And when the specified use of the property was discontinued, or abandoned, the title reverted to the original owner. The estate of tlie trustees terminated when the house ceased to be used for the purpose intended. A mere temporary sus- pension of services there, or a discontinuance of the use without autliority. would nol, ipso facto, determine the use. The active c<nitrol of the clerical authorities of (he church over preachers, preaching, and church property, is to take from the society at large, or laity, the power of continuing

I'ROl'lCRTY 537

ill the building as a place of worsliip, according to the rules and discii)lirie of this churcli, after the ecclesiastical author- ity has resolved to discontinue the services of its preachers there. To worshij) as n)end)ers and nndei- the Discipline, they must accei)t the traveling preacher sent to them by the bishop. Consequently, the trust ceased when the proper church authorities, acting under and according to the rules and Discipline, totally abandoned the building as a place of worship for the members of this church. Henderson v Hunter, 59 I»a. St. 335.

Sale. Under the New York statute proceedings by a majority of the trustees of a religious corporation for a sale of its property are sufficient without a vote of the mem- bers of the corjiorate body. The trustees are the agents of the corporation for this purpose. Property of a religious corporation cannot be disposed of except by a sale thereof; accordingly, an agreement amounting substantially to a consolidation of two societies, in consideration of which one was to convey its property to the other and a new board of trustees was to be formed, the grantee corporation to take the name of the grantor corporation, was held not to be a sale within the statute. Consequently, the court had no power to make an order authorizing such a transfer of church property, and a deed based on such an order was void. Madison Avenue Baptist Church v Baptist Church in Oliver Street, 4G N. Y. 131, 73 N. Y^ 82.

A religious corporation has the title to its real property, may determine when it should be sold, and has the sole and exclusive power to enter into contracts for that purpose. It is not necessary that the consent of the court should pre- cede the making of the contract, but such a contract of sale cannot become effective without a court order which should be obtained before a conveyance is made. Congregation Beth Elohim v Central Presbyterian Church, 10 Abb. Pr. N. S. (N. Y.) 484.

In Wheaton v Gates, 18 N. Y. 395, an order of the county court directing the trustees to distribute the proceeds of

53S THE CIVIL LAW AND THE CHURCH

a sale of the church property among the pew-owner.s was set aside, it being held that the court had no jurisdiction to make such an order.

The jurisdiction of the supreme court to authorize a sale of the proi)erty of a religious corporation depends on the facts existing at the time the order is made, and such an order cannot be upheld by showing that facts existed which were in no way plnced before it or brought to its attention or considered by it. Madison Ave. Bapt. Ch. v Oliver St. Bapt. Ch. 73 N. Y. 82. See also 4G N. Y. 131.

On an application for the sale of church property it was held that a preliminary agreement with a prospective pur- chaser need not have been made, nor need a new site have been definitely determined. The court might make a condi- tional order for a sale, subject to its approval. Pew-owners have no right to object to a sale of the property, but vault- owners who had received the title to lots in fee, and had erected vaults and monuments thereon, were held to have an estate which could not be disturbed without their con- sent. Matter of Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 155. See also Brick Presbyterian Church v New York, 5 Cow. (N. Y'.) 538, sustaining a by-law of the city of New Y''ork prohibiting further interments in the cemetery owned by this church.

Under the New Y^'ork religious corporations act of 1813 the trustees have power to remove the church edifice from one lot to another, or from one village to another, without an order of the court, but they cannot sell the real estate of the society without such an order. On an application for such an order notice to the pewholder is not necessary. Matter of Second Baptist Society, Canaan, N. Y^., 20 How. Pr. (N. Y.) 324.

Sale for Debts. Where money had been loaned to the trustees for the purpose of erecting a house of worshij), and notes given therefor, it was held that the trustees might, under the Discipline, mortgage the property for a debt, and on their refusal to make such a mortgage the court liad

PROPERTY 539

])OW'er to order a sale of the property for the same purpose. Biislioiig- V Taylor, 82 Mo. 6G0.

Sale or Mortgage. The vestry or trustees of a religious corporation may a])ply to the court for an order to sell or mortgage its property without a vote of the corporators. Matter of St. Ann's Church, 2:j How. Pr. (N. Y.) 285. But see the New Y^'ork Religious Corporations Law Sec. 200, which prohibits tlie trustees without the consent of a cor- porate meeting, from incurring debts beyond what is nec- essary for the care of the property of the corporation.

Sale, Reinvesting Proceeds. Where a deed of land to a reli- gious corporation was absolute and unconditional in form it imposed no trust on the corporation "beyond that gen- eral duty which the law puts upon a corporation of using its property for the purpose contemplated in its creation." It was, accordingly, held that the corporation might sell the property on obtaining the required judicial consent and the proceeds might be applied to the purchase of other j)roperty. Matter of First Presby. Society, Buffalo, 106 N. Y^ 251.

In this case the question was considered but not decided whether the local I'resbyterian society was bound to obtain the consent of the presl)ytery before selling its jjroperty. It appeared that the society did apply to the presbytery, which granted its consent on condition that the majority of the local society should vote for such sale at a public meeting and that a majority did so vote. A sale was authorized by the court but without determining whether such precedent permission of the ]>resbytery could be required under the act of 1875, chap. 79, and the act of 187G, diap. 110, which I)rovided, in substance, that chui'cli property should be held according to the rules and usages of the denomination to which the local society belonged.

Land was conveyed to trustees and their successors for- ever for the use of the Methodist Episcopal Church in the United States, and the trustees were required forever to permit ministers and preachers belonging to said church and duly authorized, to preach in the house of worship, to be

540 THE CTVIL LAW AND THE CHURCH

erected on such laud. It was held that the court had power to direct a sale of the jjroperty free from the trust, proceeds to be invested in other property to be used for the same pur- pose by the local society. Re Sellers Chapel Meth. Church, 1:59 Pa. St. 61.

Sale, When Court Order Not Necessary. The trustees had ]>ower to purchase a new site, and remove the church edifice from the old site to the new without an order of the court. Matter of Second Baptist Society, Canaan, N. Y., 20 How. Pr. (N. Y.) 324.

Where a church edifice had been severed from its founda- tions and placed on rollers preparatory to its removal from the lot it was held to be personal estate, and might be sold by the trustees without an order of the court. Beach v Allen, 7 Hun. (N. Y.) 441.

The provision in the New York Religious Corporations Law prohibiting a sale of church property without leave of the court applies only to domestic religious corporations, and has no application to the property of a foreign cor- poration. Muclv V Hitchcock, 212 N. Y. 283.

Secession, Effect on Title. The title to the church property of a congregation that is divided is in that part of the con- gregation that is in harmony with its own laws, usages, and customs as accepted by the body before the division took place, and who adhere to the regular organization. It does not matter that a majority of any given congregation or Annual Conference is with those who dissent. The powder of the majoi-ity, as well as that of the minority, is bound by the Discipline, and so are all the tribunals of the church from the lowest to the highest. Krecker v Shirey, 1G3 I'a. 534.

An organized church cannot be divested of its property by even a majority of its mend)ers who enter into a new organization, although they adoi)t (he same name, provided the other organization still exists ; and when seceders from an organized church enter into such new organization they forfeit all claim to anv interest in the former church and

PROPERTY 541

lose all identity with it. Veuable v Coffman, 2 W. Va. 310.

A church organization, possessing and holding property as a church, cannot be divested of their property by a part, even a majority, of its members reorganizing themselves into another organization, even by the same name, pro- vided the old organization still exists as an organization. By the reorganization the persons constituting it in effect, by such revolutionary movement and secession, exclude themselves from the church organization and forfeit all claim to any interest in the property held by the church or identity with it. Harper v straws, 14 B. Mon. (Ky.) 48.

Sewing Circle, Funds. A sewing circle was organized for the purpose of raising funds to refurnish the church edifice. Some of the persons composing the society were and others were not members of the church. The sewing circle had a treasurer to whom was paid money derived from various sources, including contributions, entertainments, exhibi- tions, etc. It was held that the money thus raised "became the property of the church or religious society, and that this corporation could maintain an action against the treasurer of the sewing circle to recover the funds. First Baptist Church in Franklindale v Pryor, 23 Hun. (N. Y.) 271.

Special Trust, Effect. Land was conveyed to certain per- sons as trustees of the local society for the support, encour- agement, and preferment of religion and in trust "for the religious society denominated the Associate Reformed Church of the town of Seneca," and another piece was con- veyed to the society for a parsonage. It was held that the trustees of the society took the property for the use of such society, according to the law and principles which governed the organization of such corporations. They could not take it nor hold it in any other character, or upon any other trust. The property thus conveyed belongs to the corpora- tion which was composed of all the members of the society entitled to vote in the election of trustees, and a majority of whom thus controls the property of the corporation, and,

542 THE CIVIL LAW AND THE CHURCH

as a uecessary coiisequeuce, decides the ecclesiastical rela- tions and connections of the society and the character of the religious views, opinions, and doctrines inculcated from its pulpit. The deed did not declare the ecclesiastical con- nection of the society at the time of its date, or upon its face seek professedly to perpetuate its connection with any ecclesiastical judicatory. The action of the society and its minister in obtaining connection with the Rochester City I'resbytery of the Old School Presbyterian Church in the United States, and thus, in effect, severing its relations with the United Presbyterian Church, was not any abuse of the trust, nor did it involve any special departure in things fundamental in respect to the spiritual concerns and wor- shij) or doctrines of the church. Burrel v Associate Re- formed Church, Seneca, 44 Barb. (N. Y.) 282.

Sunday School Building. A fund paid to the treasurer of a religious society for the purpose of aiding in the erection of a building for the use of the Sunday school was deemed the property of the church, and the society in its corporate capacity was held entitled to recover the fund from the treasurer after the expiration of his term of office. Rector, Church of the Redeemer v Crawford, 43 N. Y. 476.

Suspending Power of Alienation. The case considers the validity of a gift of a fund to a religious corporation to be kept intact forever, the income of which was to be paid to another religious corporation for ten years. It was held that the transaction did not amount to an unlawful snspen- sion of the power of alienation of personal property. The title to the fund passed to the donee which was the ultimate beneficiary. Tabernacle Bapt. Church v Fifth Ave. Baptist Churcli, 32 Misc. (N. Y.) 44().

Surplus on Sale. Where property is conveyed to a par- ticular church as such, and it be sold for its debis, the sur- plus is held by the trustees as the original was held, for the benefit of the church, and not subject to any conditions not attached to the first. Harper v Straws, 14 B. :Mon. (Ky.) 48.

PEOPERTY 543

Taxation. Property of the church was held under a lease for uinety-nine years and renewable forever. This was held to be of such a permanent character as to entitle the prop- erty to exemption from taxation. Church of the Epiphany V Raine, 10 Ohio Dec. 449.

A lease for 999 years for a gross sum is, for all practical l)urposes, a conveyance in fee simple. Huch a lease given for pious uses under tlie statute of 1702 (Conn.) under which statute the land was exempt from taxation, was a fraud on the statute, and would in most cases be in fraud of the donor. The act of 1S.")9 subjecting to taxation cer- tain property held for religious purposes was retrospective and was not unconstitutional. Brainard v Colchester, 31 Conn. 407.

Title, How Held. A house of worship erected on land owned by a corj)oration is owned by the corporation and not by tlie members of it, and the corporation, in this instance the parish, had control of the house and the right to deter- mine its general use, including the employment and settle- ment of the pastor. First Baptist Society, Leeds v Grant, 59 Me. 245.

Title, When Not Affected by Exclusion of Society. In 1889 St. John's Church, of Islip, w^as read out of the diocese of Long Island by the diocesan convention, but it was held that the church, being an incorporated society under the statute, was not divested of the title to property which it was authorized to take. Ludlow v Rector, etc., of St. John's Ch., 68 Misc. (N. Y.) 400.

Trust, Limitation by Testator. Testator devised real estate to an ecclesiastical society, with a provision that such prop- erty should not be sold or disposed of, with numerous de- tails regulating the conduct of the trustees appointed to administer the trust. All the provisions were held to con- situte a limitation of the trust and not a common law condi- tion. Stanley v Colt, 5 Wall. (U. S.) 119.

Trustees, General Rights. The trustees of an incorporated religious society are entitled to the possession of all the

544 THE CrVTL LAW AND THE CHURCH

teniporniities, and are cousidered as lawfully seized of the ground and building belonging to the church ; and if the trustees close the door of the church against the minister and congregation, and they break and enter the church by force, an indictment, at the instance of the trustees, will lie against them, for such forcible entry. The People v Runkle, 9 Johns. (N. Y.) 147.

Unconditional Gift. A person who gives property to a local religious society without attaching any conditions to the gift must be i)resumed to have made it in contempla- tion of the law of the church by which, upon abandonment or dissolution of the local society, its property would pass to the governing body of the denomination. Heisler v Meth- odist Protestant Church of Mapleton, 147 N. W. (Iowa) 750.

Unincorporated Society. Where property is conveyed to an unincorporated religious society and the society after- ward becomes incorporated, the corporation becomes the owner of the property so conveyed. Baptist Church, Hart- ford V Witherell, 3 Paige Ch. (N. Y.) 290.

Where a grant is made to individuals for the use of a church which at the time of the grant is not incorporated as such the persons to whom the grant is made stand seized to the use ; and when the church afterward acquired a legal capacity to take and hold real estate the statute executes the possession to the use, and the estate vests. Reformed Protestant Dutch Ch. v Veeder, 4 Wend. (N. Y.) 497.

Vestry Room. The appropriation of a part of the conse- crated ground of a church was authorized for a vestry room in Campbell v Paddington, 24 Eng. Law & Eq. Rep. 597.

PROTESTANT

Augsburg Confession, 545. Congregation, 546. Fink's Asylum, 546. Heidelberg Catechism, 546. Vital principle, 547.

Augsburg Confession. In consequence of the protest against the decree of the Diet of Spires (or Spire, or Hpei- ers) holden within and for the empire of Germany under the emperor Charles V, in the year 1521), the followers of Luther were denominated Protestants, a general term which was applied alike to all who adopted the principles of tbe Reformation in opposition to tlie Catholic Church, and which has continued to the i)resent time. Now, the prin- ciples of the Reformation thus adopted In' Luther of Sax- ony and his fellow laborers — and among whom were Zuin- glius in Switzerland, Melanchthon in Germany, Calvin in France, Craumer in England, and Knox in Scotland — pi-e- ceded first by the Waldenses among the Aljts and later by Wickliffe in England, and after him by 11ns and Jerome of Bohemia, were fonnded upon the Bible alone, received as the revelation of God's will, and held to be the snpreme and only rule of faith and practice. In this they all agreed, though they differed widely in many of their views of doc- trine and of church polity.

These views and principles were incor]>orated into a gen- eral confession by the Diet held at Augsburg in Bavaria in the year 1530, which has since been knoAvn as the Augsburg Confession. This event marked tbe cnlmination of the Ger- man Reformation ; and this confession was for a time the established Protestant creed. This confession consisted of two parts : first, the positive and affirmative part, consisting

545

546 THE CIVIL LAW AND THE CHURCH

of twenty-oue articles, which embraced their views of Chris- tian doctrines as tanght in the Bible ; while the second part consisted of seven articles, consisting of points of differ- ence between themselves and the Roman Catholics. A man cannot be a Protestant without first being a Christian. Hale v Everett, 53 N. H. 1.

Congregation. The term "Protestant congregation" means those who attend a ministry professing that doctrine. At- torney-General V Drummond. 3 Dru. & War. (Eng.) 162.

Fink's Asylum. Testator bequeathed a fund for the pur- pose of establishing in New Orleans an asylum for Protes- tant widows and orphans, to be known as Fink's Asylum. The court held that the bequest was sufficiently definite, the objects being the widows of a prescribed class, living in New Orleans, These were capable of identification. The will did not create a perpetuity, except to the ordinary ex- tent ai^plicable to bequests of this character. A corpora- tion was formed known as the Fink's Asylum, and this cor- ])oration intervened in the suit, claiming the legacy. The court held that the trust was to be administered by the city of New Orleans, Fink v Fink Executors, 12 La. Ann. 301.

Heidelberg Catechism. It is part of the general history of the world that after the Protestant Reformation had been set on foot by Luther the first authoritative declaration of the principles of the great reformer was presented to Charles V, June 25, 1530, at the city of Augsburg, in certain articles of faith embodied in what is known as the Augsburg Con- fession; and this confession, revised by Melanchthon, under tlie supervision of Luther, has ever since, it is believed, con- stituted the accepted creed of the Lutheran Church. Soon afterward ardent reformers censured the retention by the Lutherans of the practice of auricular confession, and their supposed doctrine as to the Presence in the sacrament under the name of "consubstantiation." These reformers of the Reformation, under the lead of Calvin, formulated their amended creed in what is known as the Heiilelberg Cate- chism, which disputed the doctrine of consubstantiation, in-

PROTESTANT 547

sisted that the sacrament in both kinds should be given to the laity, discarded the use of the Hostie, or consecrated wafer, and denounced in all its forms the practice of auri- cular confession to priests. Ebbinghaus v Killian, 1 Mackey (Dis. of Col.) 247.

Vital Principle. Religious toleration is the vital principle of Protestantism. Anderson v Brock, 3 Me. 243.

PROTESTANT EPISCOPAL CHURCH

Baltimore church home and infirmary, 549. Bishop, 549.

Central New York Diocese, 549. Curate, 550. Described, 550.

Domestic and Foreign Missionaiy Society, 550. Elections, rector's power, 551. EngUsh origin, 551. Glebe land, sale, 551. Governing body, 551. Government ownership disapproved, 552. Griswold College, 552. Guild, 553. Iowa Diocese, 553. Long Island Diocese, 553. Missions, 553.

North Carolina, legacy apportionment, 554. Old Ladies' Home, trust for sustained, 555. Pennsylvania Convention, 555. Philadelphia Episcopal Academy, 555. Philadelphia Orphan Asylum, 556. Property, title of general denomination, 556, Reader, status, 556. Rector, caU, dissolving relation, 556. Rector, cannot be excluded from property, 557. Rector, title of local society, 557. Rector, casting vote, 558. Rector, charges against, 558. Rector, changing diocese, effect, 559. Rector, defined, 559. Rector, dissolving relation, 560. Rector, election, sufficiency, 561. Rector, exclusion from church, 562. Rector, exclusion, when unlawful, 562. Rector, how called, 563. Rector, legacy for support sustained, 563. Rector, right to occupy property, 563.

548

PROTESTANT EPISCOPAL CHURCH 519

Rector, tenure of office, 564.

Sale, legislative power, 564.

Sale of church property, 565.

Trinity Church, charter, 565.

Trinity Chiu-ch, charter superior, 565.

Trinity Church, St. John's Chapel, 566.

Trust, conveyance to bishop, 566.

Trustees, cannot act for two societies, 566.

Unincorporated Society, cannot take title to land, 567.

Vestry, cannot act without meeting, 567.

Vestry, casting vote, 567.

Vestry, acting without formal resolution, 568.

Vestry, increasing, 568.

Vestry meetings, 568.

Vestry, powers, 569.

Vestry, promissory notes, 570.

Virginia, early church, 570.

Virginia, education society, 571.

Wardens and vestry, status, 572.

Warfield CoUege, 572.

Western New York Diocese, 572.

Widows and orphans' fund, 572.

Worship, rector's authority, 573.

Baltimore Church Home and Infirmary. The Church Home and Infirmary, Baltimore, incorporated under the Maryland act of 1852, chap. 231, to be under the management and control of the Protestant Episcopal Church, was not a reli- gious corporation under the statute of that State. Baltzell V Church Home and Infirmary, Baltimore, 110 Md. 244.

Bishop. There was no Protestant Episcopal bishop in America until after the Revolution ; Bishop Seabury, of Connecticut, consecrated in 1784, being the first American bishop of this denomination. Bartlett v Hipkins, 76 Md. 5.

Central New York Diocese. There never was any corpora- tion known or designated as ''The Diocese of Central New York." Law 1841, chap. 134, created a corporation known as the "Trustees for the Management and Care of the Fund for the Support of the Episcoi:»ate of the Diocese of Western New York." Law 18G3, chap. 59, created a corporation known as "Trustees of the Parochial Fund of the Protestant

550 THE CIVIL LAW AND THE CHUECH

Episcopal Church in the Diocese of Western New York." By Law, 1868, chap. 429, provision was made, in view of the division of the Diocese of Western New York, for the crea- tion of a new corporation in the new diocese subsequently called the Diocese of Central New York, the powers and object of such new corporation to be substantially the same as those specified in the act of 1841, and also for the crea- tion of a new corporation in the new diocese, the powers and object to be the same as those specified in the act of 1803. The powers of the corporation created under this statute were extended in 1887 and again in 1888. These statutes resulted in the creation of a corporation known as "The Trustees for the Management and Care of the Fund for the support of the Bishop under the Directions of the Conven- tion of the Church of the Diocese." The testatrix, by a will made in 1895, devised a stone house owned and occupied by her in New Hartford to the "Corporation of the Diocese of Central New York," to be used as the bishop's residence of said diocese. In Kingsbury v Brandegee, 113 App. Div. (N. Y.) G06, the devise was sustained on the ground that the testatrix intended to give the property to tlie trustees of the Diocese of Central New York, the later corporation as above indicated.

Curate. The curate is ex officio a member of the board of wardens, having one vote like any other member. Wardens of the Church of St. Louis v Blanc, 8 Rob. (La.) 52.

Described. The Protestant Episco])al Church in United States is an organized body of Christian people, and in its ecclesiastical organization it has a constitution, canons, rules, and regulations for its government. It is divided into dioceses, each designated by an appropriate name, and having greater or less territorial extent. East Carolina Diocese v Trustees Nortli Carolina Diocese, 102 N. Car. 442.

Domestic and Foreign Missionary Society. Testatrix, a resi- dent of Maryhmd, made a gift to tliis society, with a request that the fund be used for d<nnestic missions. The mission- ai-y society was incorporated in New York for the purpose

PROTESTANT El'ISCOPAL CHURCH 551

of conducting general missionary operations in all lands, and had power to take gifts and bequests lor the objects above stated. Its work was divided into two classes — domestic and foreign missions. Bequests for domestic mis- sions are used for that purpose onl}^; bequests without speci- tication are divided equally between the two, domestic and foreign. The bequest was held valid. Domestic and Foreign Missionary Society, I'rotestant I^piscopal Church v (laithci', (52 Fed. Rep. 422.

Elections, Rector's Power. TTuder the New York statute regulating elections in a Protestant Episcopal churdi the rector is both the presiding and returning officer, and liis certificate of election is presumptive evidence that the i)er- sons named therein were dulj^ elected; and if the certificate is attacked, it must be shown that the certificate was erro- neous and that persons other tlian those mentioned in the certificate were elected. People v La Coste, 37 N. Y. 192.

English Origin. The English ecclesiastical law forms the basis of the law regulating the affairs of the Episcopal Church in this country, and is in force except so far as it has been modified and changed by statute, and by the usages and canons of the church. Livingston v Trinity Church, Trenton, 45 N. J. Law, 2.30.

Glebe Land, Sale. In Claughton v Macnaughton, 2 Munf. (Va.) 513, it was held that under the Virginia act of 1802 glebe land could not be declared vacant and sold if there was a minister who had been put into possession of the property, and this possession did not depend on the regu- larity of the election of the vestry. The order of the vestry that the minister be inducted into the parish was sufficient to prevent a sale of the land as vacant.

Governing Body. The church is a regularly organized reli- gious establishment, and is entirely independent of all State or federal governmental control. The membership is purely voluntary and is composed of the clergy and the laity. The supreme governing body is the General Con- vention, composed of representatives of both clergy and

552 Till-: (M\'IL J.AW AM) TllIC CJIl^Kril

laity, and wliicli has <>eueral jurisdiction over the all'airs of the chnrcli and its members, as prescribed in the constitu- lion thereof; tlie legislative will of the convention is ex- pressed in the form of canons of the chnrch, changeable from time to time, as the General Convention may deter- mine. The chnrch is divided into dioceses, the governing body of each of which is a diocesan convention, presided over by a bishop of the diocese, who is, besides being president of the convention, clothed with certain other powers as the head of the diocese. Satterlee v U. S., 20 App. D. C. 300.

Government Ownership Disapproved. The church began proceedings for the sale of a large tract of land owned by it. Such sale was resisted by the overseers of the poor, who claimed the right to the property under an early Virginia statute. The court ordered a sale of the i)roperty, holding, among other things, that the corporation had the title, and the land was not subject to any claim Iw the overseers of the poor. Terrett v Taylor, 0 Cranch (U. S.) 43.

Griswold College. About 180(5 the bishop of the Iowa Diocese formed a plan of erecting, on land belonging to Griswold College property, a church edifice to be called the ''Bishop's Church.-' The college authorities transferred the title to land for the purpose of the new chnrch, on condition (hat the property should be held by the bishop and his suc- cessors in trust for the purpose aforesaid. The erection of the church edifice was begun by the bishop, and was carried forward as rapidly as funds would permit. The bishop had charge of the enterprise, and collected nearly, if not all, the funds. Subscriptions being inadequate, the bishop bor- rowed money on his individual credit for the purpose of carrying on the enterprise. The total expenditure was about |70,000, and the amount received by the bisho]) was 160,000. He advanced, or used |10,000 from his own funds.

About the time the church edifice was completed and con- secrated the bishop died. His administrator brought an action to recover the |10,000 advanced by him, or for a judgment declaring a lien on the j)ro])ei*ty for the amount

PROTESTANT EPISCOJ'AL CHLKCil 553

advanced. It was held that the advances by the bishop were voluntary, and without any obligation on his part. This was a charitable or religions trust, with no beneficiary known to the law, it appearing that to allow a recovery would be to put an end to the trust estate and to the trust itself, and defeat the whole object thereof, as contemplated by the bishop himself and by those who contributed their funds for the erection of the church. French, Adm'r. v Trustees, Griswold College, 60 la. 482.

Guild. The vestry authorized a guild to erect a building on a part of the society's land, whicli building was occupied and used by the guild for various church purposes. Later the guild sought to use the building for its own benefit by renting it to outside parties. The vestry- ju-ohibited such use, and this control of the property by the vestry was sus- tained, it being held, among other things, that tlie guild could not recover damages against the vestry for its refusal to permit the guild building to be used for outside purposes. Read v St. Ambrose Ch. G Pa. Co. Ct. 7G.

Iowa Diocese. This diocese comprises the entire State of Iowa, and was, on joint vote of the two houses of General Convention, admitted into union witli the Church of the United States. By the constitution of the diocese it is a part of the Protestant Episcopal Church in the United States and acknowledges the authority of thnt church. Bird V St. Mai-k's Cliurch, Waterloo, 02 la. 5G7.

Long Island Diocese. The act (L. 1S71, Cli. 750) incorpor- ating the trustees of the estate belonging to tlie diocese of Long Island exempted its property from taxation. Real property donated to the trustees and not occupied for reli- gious purposes was held exempt from taxation. People v Dohling, G App. Div. (N. Y.) SG.

Missions. The Domestic and Foreign Missionary Society held entitled to receive and administer a legacy for a mis- sion to be established at Port Cresson on tlie west coast of Africa. Domestic and Foreign Missionary Society's Appeal, 30 Pa. St. 425.

554 THE CIVIL LAW AND THE CHURCH

Testatrix bequeathed to this society a fund to be used for the purpose of erecting an Episcopal chaj^el, and sustaining a mission upon the homestead of the testatrix. Various practical objections were made to the bequest, including the statement that the mission could not be maintained at the place indicated, and would receive no patronage. Testatrix had a right to devote her property to this purpose, and the court could not overrule her intention by assuming in ad- vance that the location would prove to be inconvenient. The trust was for an object plainly charitable. This bequest was sustained. Eliot's Appeal, 74 Conn. 586.

Testatrix, a resident of Maryland, made a bequest "to be paid for the special benefit of the foreign missions associated with the Episcopal Church." The corporation known as the Domestic and Foreign Missionary Society of the Pro- testant Episcopal Church in the LTnited States claimed the bequest, this being the only general missionary society in the Protestant Episcopal Church. The bequest was held to be indefinite, and not subject to explanation by extrinsic evi- dence. The above-named missionary societj^ was not entitled to the bequest. Domestic and Foreign Missionary Society Protestant Episcopal Church v Reynolds, 9 Md. 341.

A bequest to the Diocesan Missionary Societies of Mary- land and Virginia, was held void as to Maryland, for the reason that there was, at the time, no incorporated mission- ary society capable of taking the bequest, but it was held valid as to Virginia, there being in that State an incorpor- ated missionary society. Brown v Th(>ni]»kins, 40 Md. 423.

North Carolina, Legacy Apportionment. Until 1883 the Protestant Episcopal Church in the State of North Carolina constituted the diocese of North Carolina. In that year, in accordance with the constitution and canons of the church, a diocese known as East Carolina was constituted out of part of the territory of the Diocese of North Caro- lina, and the church in the residue of the territory retained the name of the Diocese of North Carolina. Testatrix, by a will made in 1881, devised certain of her property "to the

PROTESTANT ]:PISCOPAL CHURCH 555

board of trustees for the Protestant Episcopal Church in the Diocese of North Carolina." Testatrix died in 1885. It was held that the object of the testatrix' bounty was the Epis- copal Church in the State of North Carolina, and the Dio- cese of East Carolina is entitled to share with the present Diocese of North Carolina in the property, E)ast Carolina Diocese v Trustees North Carolina Diocese, 102 N. Car. 442.

Old Ladies' Home, Trust for Sustained. The will contained a bequest to provide "a home for ladies of advanced age oi* infirm, who are or may hereafter become connected with the St. Paul's Church society, or with the mission or the church that is to be established upon my homestead." It was held that the terms of the bequest were entitled to a liberal con- struction. The bequest applied to persons who had no home or no comfortable one. The society was at liberty to provide a home for each person, individually, or in private families, or to gather them in one general residence. The bequest was sustained. Eliot's Appeal, 74 Conn. 580.

Pennsylvania Convention. By the constitution of tlie church the Convention of the l*rotestaut Episcojjal Church of Pennsylvania is composed of the clergy and of lay depu- ties. They deliberate in one body, but, when five members require it, they vote as two distinct orders, and the concur- rence of each order is necessary to give validity to any mea- sure. The proposed charter of a local society was rejected because it contained a provision prohibiting the disposition of its property without the consent of the Convention. The clerical members of the Convention could prevent the alien- ation of j)roperty, and the charter was, therefore, held re- ])ugnant to the provisions of the Pennsylvania act of April 26, 1855, which vested the control of property in the lay members of the local society. Ee St. Paul's Church, Chest- nut Hill, 30 Pa. St. 152.

Philadelphia Episcopal Academy. This institution, incor- porated by a special act in 1TS7, was under the jurisdiction of the Protestant Episcopal Church, and was maintained as an academy for the instruction of students primarily of that

556 THE CniL LAW AND THE CHURCH

faith. The institution was held to be a public charitj', and therefore exempt Itoui taxation. Episcopal Academy v Philadelphia, 150 Pa. 5G5.

Philadelphia Orphan Asylum. Testatrix provided for the establishment of an as^dum for the maintenance and edu- cation of white female orphans between the ages of four and eight years, who should either have been baptized in the -Protestant Episcopal Church in Philadelphia or elsewhere in Pennsylvania, and also other female wliite children of the same ages without any other description, except that orphan children of Protestant Episcopal ministers should be preferred, that the form of worship and instruction should be that taught in the Protestant EiHscopal Church. This was held to create a public charitable institution, which was exempt from taxation. Burd Orphan Asylum v School District of Upper Darby, 00 Pa. St. 21.

Property, Title of General Denomination. The trustees of the Protestant Episcopal Church elected and chosen by the diocese of Chicago are authorized to acce^^t and make con- veyances for the uses and purposes mentioned in the private acts of 1840 and 18G1, and the bishop of the diocese of Chi- cago, as the successor of tlie bishop of the diocese of Illinois, may take, hold, or convey property for the uses and purposes expressed in the private act of 1853. Kennedy v LeMoyne, 188 111. 255.

Reader, Status. In Sanger v Inhabitants in Roxbury, 8 Mass. 2G5, it was held that a reader is a public teacher of piety, religion, and morality, within the meaning and intent of the third article of the Massachusetts bill of rights.

Rector, Call, Dissolving Relation. The rector was called by the churchwardens and a majority of the vestry. He ac- cepted the call in writing and entered upon the duties of his office. His election was afterward certified to the conven- tion of the diocese of New York, and he took his seat in the convention by virtue of that certificate. The call was not for a specified time. It was held that after the defendant had been called and settled, without any expressed limita-

PROTESTANT EPISCOPAL CHURCH 557

lion of time, he could not, according to the ndes of this church, be dismissed or removed without his own consent, except by the bishop of the diocese. Tlie rector did not re- sign. He was held to have been regularly employed, and the preliminary injunction restraining him from further performance of the duties of rector was held to have been improperly granted. Youngs v Ransom, 31 Barb. (N. Y.) 49.

Rector, Cannot Be Excluded from Property. The rector is a member of the vestry and by the law of the State, as well as the law of the church, is entitled to the possession and con- trol of the church i)roi)erty according to the rules of the church for the jjurposes prescribed by the law of the church and to be used according to its rules and disciijline. The vestry cannot remove him from office. Ackley v Irwin, 71 Misc. (N. Y.) 2:]9.

Rector, Title of Local Society. The parish, or congregation was incorporated in 1855, under the laws of Illinois, and the trustees were aj)pointed. A contract had already been made for the i:)urchase of a lot on which to erect a house of wor- ship and parsonage. This property w^as conveyed to the trustees of Christ Church in 1862. The deed contained no declaration of trust. The majority of the congregation were classed as Low Church, and the bishop of the diocese be- longed to the school known as High Church. In view of these differences, the local society desired to hold the prop- erty strictly for the use and benefit of the parish or con- gregation, free from the interference and control of the bishop, and the incorporation of the parish or congregation and the appointment of trustees, and the conveyance to them so far as any particular purpose or object w^as shown to have been thereby intended, were to attain this end. An injunction was sought for the purpose of preventing the rector from occupying the jjarsonage, from using the house of worship, and from paying him for services as rector from the funds of the church.

It was held that if persons chose to give him money he had a right to receive it, whether or not he had any right

558 THE CIVIL LAW AND THE CHURCH

to officiate as rector. It was alleged that the rector had been deposed froDi the ministry of the Protestant Episcopal Church by the proper church judicatory, because of non- conformity with certain of its tenets. Notwithstanding this alleged deposition, the rector was continued by the officers of the society, who were sustained by nearly all of the congregation. It was held that in the absence of any trust in the conveyance of property to the society, the trus- tees did not hold it for any church in general, nor for the benefit of any peculiar doctrines or tenets of faith and prac- tice in religious matters, but solely for the society or con- gregation whose officers they were, and they were not, in the discharge of their duties, subject to the control of any eccle- siastical judicatory. "Christ Church was organized as a parish of the Protestant Episcopal Church, and it is liable to the Discipline of that church. But that does not affect property rights acquired and held for the use of the parish or congregation as a corporate body, as distinct from the Protestant Episcopal Church in general. This property and its use belong to the parish or congregation, and there is no sufficient reason for taking it from them and giving it to the church at large for the benefit of others." The injunc- tion was denied. Calkins v Cheney, 92 111. 403.

Rector, Casting Vote. By the charter of this society (Church of the Evangelist) the vestry was composed of the rector and twelve vestrymen. A vacancy having occurred, a meeting was held, attended by the rector and eleven vestry- men. Six of the vestrymen voted for one candidate, and the other five, with the rector, voted for another candidate. The rector then voted to dissolve the tie, thus voting twice. It was held that he had a right to vote once, but could not again vote to dissolve a tie, and therefore that the vestry- man claiming to have been elected by the rector's two votes was not legally chosen. Neilson's Appeal, 105 Pa. 180; see as to New York rule, subtitle below, Vestry, casting vote.

Rector, Charges Against. A rector was charged witli non- conformitv to tlie doctrines of the dmrcli, iiitontioiial omis-

i'kotj:stant episcoi'AL church 559

sions in the ministration of its ordinances, and an attempt Avas made to organize a court, composed of his brother clergymen, for his trial. He appealed to the civil court, and alleged, as the chief reason for interposition, the want of authority in the spiritual court to try him, and the mis- construction of the canons. The ecclesiastical court deter- mined that it had jurisdiction. The civil court declined to restrain the ecclesiastical court from continuing the trial of the rector. Chase v Cheney, 58 111. 509.

Rector, Changing Diocese, Effect. The society made a con- tract with Mr. Broekway by which he was to become the rector of the church at a stipulated salarj'. This church was in the Central New York Diocese, and Mr. Broekway was a minister in the Western New York Diocese. By the law of the denomination a minister moving from one dio- cese to another could not gain a canonical residence in the latter diocese except by the approval of the bishop of that diocese. In this case the bishop of Central New York re- fused to approve Mr. Brockway's transfer, and after he had officiated several months as rector the bishop served on him an order of inhibition prohibiting him from further service in the Central New York Diocese. The local society and Mr. Broekway joined in an action against the bishop of Central New York to compel him to give a certificate of transfer, and for a judgment declaring the order of inhibi- tion null and void, and restraining the bishop from inter- fering with the carrying out of the contract between the church and Mr. Broekway. It was held tliat the bishop had jurisdiction to make the order, and that the court had no right to consider the merits and determine whether there was just cause for the order. Rector Saint James Church V Huntington, 82 Hun. (N. Y.) 125.

Rector, Defined. A rector, as the word is understood by the canons of the Protestant Episcopal Church, is a duly ordained clergyman of the church in priest's orders, who has been elected to the rectorship by the vestry of the parish, agreeable to the canons of the church, and in whose

5G0 THE CIVIL LAW AND THE CHURCH

call or invitation or notification of election there is no limi- tation of time specified when the engagement or contract (for such the engagement between the clergyman and the vestry as two principals, is considered) is to cease. Bird V St. Mark's Church of Waterloo, 62 la. 567.

Rector, Dissolving Relation. By a canon of the Protestant Ejiiscopal Church a rector canonically elected and in charge, cannot resign his parish without the consent of the parish or its vestry, nor can such rector be removed therefrom by the parish or vestry, against his will, except upon the dis- solution of his pastoral connection in the manner and by the authority designated by other canons.

In 1890 the rector was chosen by the local society and entered on the duties of his office. In 1893, in consequence of dissensions in the society, the bishop made an order ter- minating the pastoral relation of the rector, and directing the local society to pay him the amount of his salary then unpaid. The pastoral relation was dissolved upon the peti- tion of the officers of the society. The court held that the order of the bishop was not sufficient under the law of the church to dissolve the pastoral relation without further pro- ceedings. Jennings v Scarborough, 56 N. J. Law, 401.

In 1798 a general church canon provided that ''in case of any dissolution of his pastoral relations either party may give notice of such disagreement to the bislio]^, and the deci- sion of the bishop in the premises shall be final and binding upon the parties." But this canon was not to be in force in any diocese which has made, or shall hereafter make, pro- vision by canon upon the subject, or in any diocese with whose laws or charters it may interfere. No canon on this subject had been adopted in Maryland, but the statute of 1798, continuing in substance the act of 1779, chap. 9, rela- tive to the Protestant Episcopal Churcli, provided that the vestry of the local church should have the poAver to call a rector and make contracts in rehition thereto, including (he term of service and the severance of the pastoral rela- tions. The general church canon on this subject was, there-

PROTESTANT EPISCOI'AL CHURCH 501

fore, held not applicable in the Maryland diocese. Bartlett V Hipkins, TG Md. 5.

By its admission into the diocese of Iowa the parish of St. Mark's became a part of the church in the United States and amenable to its canons. One of the canons is that the rector cannot be removed by the vestry against his will. These canons were declared to be a part of the contract of employment. The vestry could not, by reducing the rector's salary without his consent, compel him to accept a dissolu- tion of the pastoral relation. In this case the rector was held entitled to recover the full amount of the stipulated salary less the amount received during the current year. The contract could not be modified by the church without the rector's consent. Bird v St. Mark's Church, Waterloo, 02 la. 507. In this case it was also held that by the canons of the church a rector canonically elected and in charge, or an instituted minister, nuij' not resign his i)arish without the consent of said parish or its vestry, if the vestry be authorized to act in the premises, nor may such rector or minister be removed therefrom by said ]»aris]i or vestrj' against his will except that the pastoral relation may be dissolved when the parties cannot agree resi)ecting the separation, by the bishop acting with the advice and con- sent of the standing committee of the diocese or missionary jurisdiction.

Rector, Election, Sufficiency. This church was subject to the canons and laws of the Protestant Episcopal Church of the United States and Diocese of California. The society was not incorporated, but had been a mission uiuler the direct sui)ervision of the bishop, with a minister in charge. On the 2()tti of May, 1882, the mission was organized as a parish, ^'estr3'men were elected aud assumed the duties of their office. They elected a rector, but did not give the bishop any notice of such an election, and no apf)ointment was made by him. Afterward, at the meeting of the vestry, the rector- ship was declared vacant, and notice thereof was given to the rector previously elected, and to the bishop. The bishop

562 THE CIVIL LAW AND THE CHURCH

appointed another rector to snpply the place until a rector was elected.

On the 29th of Jnly, I880, the newly appointed rector was exi)ected to take charge of the service at the regular hour, 1 1 o'clock A. M. About 9 o'clock a, m. of the same day the former rector, so chosen by the vestry, entered the church and commenced to hold service, and continued sucli service until after the hour of eleven o'clock, and after tlie arrival of the newly apjjointed rector. The rector so in diarge of the irregular service gave notice tliat on the next (hiy, July o(l, an election would be lield for the j)nrpose of choosing five vestrymen. At tlie hour ap])ointed for the meeting on the evening of July 30, the diurch was locked, and thereupon several persons met at the house of one of the parishioners, and held an election, choosing five vestrymen, as required by the notice. The notice of election, the meeting on the 30th, and the election of vestrymen were held to be irregular and invalid. Dahl v Palache, 68 Oal. 248.

Rector, Exclusion from Church. The vestry assumed au- thority to exclude the rector from office and prevent him from occupying the church edifice and parish building. Such exclusion was wrongful, and the rector was held en- titled to the use and control of the property according to the canons of the church. Tn this right he was sustained not only by the civil court but also by the judgment of a properly constituted ecclesiastical tribunal. Ackley v Ir- win, 71 Misc. (N. Y.) 239.

Rector, Exclusion, When Unlawful. In 1861 the plaintiff was called to be rector of this society, and continued in that office until 1867, when on the next Sunday after Easter tlie church was closed against him, and he was also excluded from the parochial schoolhouse. This expulsion was by the wardens and vestrymen. The rector brought an action against them for damages, and recovered judgment. It was held that the plaintiff, by his official connection with the society, acquired all the customary powers and i)rivileges pertaining to the rectorship, including the right to occupy

I'KOTESTANT EriSCOPAL CHUKCH 503

the house of worship and the parochial schoolhouse for the purpose of performing the fuuctioi\s relative to his office, and his exclusion therefrom was unlawful. Lynd v Menzies, oo N. J. Law, 162.

Rector, How Called. The churchwardens and vestrymen have the exclusive power of calling and inducting a minister. The persons (pialilied to vote for the churchwardens and vestrymen have no such right. Humbert v fc^t. Stephen's Church, N. Y. 1 Edw. Ch. (N. Y.) 308.

The vestry has the i>ower to appoint and remove the rector; the congregation has no power of removal. Stubbs V Vestry of St. John's Ch. 96 Md. 267.

The provision of the New York religious societies act of 1813, section 8, which provides for fixing the salary of a minister by a vote of the congregation, does not Jipply to Protestant Episcopal churches. A call to a parish and its acceptance a]id consequent entry upon the duties of the ofifice of its minister, are all which we have in this country resembling the presentation, admission, and induction of the English Church, aud neither these terms nor the cere- monies indicated are known to our law as applicable to any of our churches. The congregation, in the manner indicated by the law of the land, and in case of Episcoj^al churches by their vestry, call a clergyman to exercise his functions in their parish and fix his compensation. The term "institu- tion" in English ecclesiastical law is applied to the investi- ture of the spiritual as induction is to that of the temporal part of the benefice. There is no such thing known to our law as institution or induction, and the ecclesiastical law of the mother country is no part of the law under which we live. Y^'ouugs v Ransom, 31 Barb. (N. Y.) 49.

Rector, Legacy for Support Sustained. A devise to the so- ciety for the pui'ijose of providing a fund for the support of the rector was sustained in Tucker v St. Clement's Church, New York, 3 Sandf. Sup. Ct. (N. Y.) 242, afli'd 8 N. Y. 55Sn.

Rector, Rig-ht to Occupy Property. One of the rights of the rector under a call from a particular congregation is that

5G4 THE CIVIL LAW AND THP: CHURCH

of preaching on Sundays in the church provided by tlie con- gregation. This does not involve any question of title to the property, but the rector must of necessity have the right to partake in such use of the property as tlie congregation has. Whatever place the congregation provide for the pur- pose of public worship in the parish, into such place tbe rector, by virtue of his oflfice, has the right to enter in order to conduct such worship. Lynd v Menzies, 33 N. J. Law, 162.

Rector, Tenure of Office. The vestry adopted a resolution that the rector be elected permanently to the rectorship of the church. It was lield that the word "permanently" meant for an indefinite period, and that it was intended that the rector should hold the office until one or the other of the con- tracting parties should desire to terminate the connection. Perry v Wheeler, 75 Ky. 541.

The rule or regimen of the Episcopal Church as to the tenure of its parish ministers is that Avhen they have once been placed in charge of congregations they can neither leave, nor be dismissed, except by mutual consent, without the intervention of the bishop. When a minister is called or settled in an Episcopal parish without any limitation of time he can only be dismissed or sever the connection by mutual consent or by superior ecclesiastical authority on the application of one of the parties. Youngs v Ransom, 31 Barb. (N. Y.) 49.

The vestry on the 22d day of May, 1002, adopted a resolu- tion terminating the relation of the rector to the society to take effect on the 31st of July following. The rector had no notice of this intended action by the vestry except by the resolution, which was immediately served on him. It was held that the rector had no vested right in the ofQce and was not entitled to notice of the intended action by the vestry. The rector applied for an injunction restraining the vestry in removing him from office. The injunction was denied. Stubbs V Vestry of St. John's Ch. 96 Md. 267.

Sale, Legislative Power. An act was passed in 1871 author-

PROTI^J^TAXT EPItSCOPAL CHURCH 565

iziug the society to sell its real property and use the avails, lirst for the payment of the society's debts, and for the compensation of pew-owners, and rights in tombs situated upon the land. The balance was to be applied in the pur- chase of another lot and the erection of a church thereon. The act was applied for by a majority of the society, and accepted by it. In an action to restrain the sale it was held that the Legislature had power to jjass the act, notwith- standing the fact that the conveyance of the land provided for a perpetual use thereof, and the church to be erected thereon, for religious purposes. Nor was the title of the society affected by the provision in the canons of the Protes- tant Episcopal Church that the consent of the bishop and the standing committee should be obtained for removing, taking down, or otherwise disposing of a church. Titles to property must be determined by the laws of the common- wealth. The canons are matters of discipline and cannot be enforced by legal process, Sohier v Trinity Church, 109 Mass. 1.

Sale of Church Property. Sale of church site, consent of bishop and standing committee must be shown. Lane v Cal- vary Church of Summit, N. J., 59 N. J. Eq. 409.

Trinity Church, Charter. This society was incorporated while New York was a province of Great Britain and the charter incorporated "all persons inhabiting or to inhabit the city of New York, and in communion with the Protes- tant Church of England." "The Protestant Episcopal Church was the established church of the mother country ; and the crown, in its generosity to the Episcopalians in the city of New York, naturally sought to place Trinity Church on a footing as similar to that of the Church of p]ngland as local circumstances would permit." Groesbeeck v Dunscomb, 41 How. Pr. (N. Y.) 302.

Trinity Church, Charter Superior. In Burke v Rector, etc., of Trinity Church, 63 Misc. (N. Y.) 43 affirmed 132 App. Div. (N. Y.) 930, it was held that Trinity Church, having been chartered by the English crown in 1697, was not sub-

566 THE CIVIL LAW AND THE CHURCH

ject to the provisions of the religious coi'])oratioiis law of New York so far as such provisions are inconsistent with or in derogation of the charter rights and privileges of that corporation.

Trinity Church, St. John's Chapel. Trinity Church was incorporated by the British crown in 1697. The parish of Trinity Church embraces the entire borough of Manhattan, and includes Trinity Church and nine chapels, with one rector, and several vicars, curates, and assistants. The vestry is the governing body of this church, and necessarily exercises all the corporate powers. The vestry have the supervision and control and are the sole managers of the corporation in respect to its temporalities. St. John's Chapel belongs to the Trinity corporation, and not to the corj^orators or other members of the congregation. In decid- ing to close the chapel the vestry did not exceed its powers, and the court cannot undertake to review the exercise of their discretion or judgment. Burke v Rector, etc., Trinity Church, 03 Misc. (N. Y.) 43.

Trust, Conveyance to Bishop. A conveyance of real prop- erty to the Bishop of Georgia for the use of the church in the division of Georgia created a trust in which the bishop became trustee by virtue of his office. The incorporation of a society and the erection of the house of worship, and the establishment of religious services in connection with the property conveyed to the bishop, did not transfer the title to the society, but it was still held by the bishop in trust, and it could not be mortgaged without his consent. Beck- with v Rector, etc., St. IMiilip's Parish, 69 Ga. 564.

Trustees, Cannot Act for Two Societies. Several persons were wardens and vestrymen in both church societies. As trustees of St. James they procured the conveyance of cer- tain real property of that church, Avithout consideration, to the Church of the Redeemer. It was held tliat by this con- veyance these trustees derived some advantage as trustees of the Church of the Redeemer, and, being agents of both societies, the transaction was deemed by the court as fraud-

PKOTi:t^TANT EPISCOPAL CHURCH 507

ulent, and the deed was set aside. St. James Churcli v Church of the Redeemer, 45 Barb. (N. Y.) 350.

Unincorporated Society, Cannot Take Title to Land. The rector brought au action against the society for unpaid salary. The society had acquired laud from trustees as a site on which to erect a house of worship, and a church was built on the west part of the lot. The society was not then incorporated, but afterward a corporation was formed. The corporation being indebted to the rector, conveyed to him in payment of his claim, the east half of the lot. The law prohibited the acquisition of property by a religious society until it was incorporated. In this case the property was acquired by the society before incorporation, and there was no conveyance to it afterward, and the title was held to be in the grantors, notwithstanding the attempted conveyance to the society and its subsequent incorporation. The con- veyance to the rector of the east half of the lot was made at the request of the society by the trustees who ha.d orig- inally conveyed it, for the reason that these trustees still held the legal title. The rector by accepting the deed ob- tained a complete title, which could not afterward be ques- tioned by him, by the trustees, nor by the society. All par- ties were estojjped from claiming any defect in the title. Skinner v Grace Church, Mt. Clemens, 54 Mich. 543.

Vestry, Cannot Act Without Meeting. The vestrymen of a church as representatives of a corporate body, must meet in order to take official action. They cannot act singly, upon the streets, or wherever they may be found. It was also held that the necessity of a meeting was not obviated by the fact that a paper was signed, at first by a minority, and subse- quently by a majority of the vestry, but without a meeting at which a quorum was present. Re Rittenhouse Estate, 140 Pa. 172.

Vestry, Casting Vote. A churchwarden presiding has the right to vote on every question, and in case of a tie may again vote and dissolve the tie. The senior churchwarden presiding at a meeting of the vestry which had under con-

568 thp: civil law and the church

sideration a motion to call a rector, voted on the main question, thus creating a tie, and thereupon declared the motion lost. It was held that under the statute the presid- ing oflticer might again vote and dissolve the tie, and that his announcement that the motion was lost was equivalent to the casting vote in the negative. People v Church of Atone- ment, 48 Barb. (N. Y.) 603.

Note: The foregoing case was decided under a statute (laws of 1813, Chap. 60, sec. 1) which expressly provided that the presiding officer, at a meeting of the vestry or trus- tees, should have "the casting vote." Section 42 of the revised Religious Corporations Law of 1909, w^hich among other things, regulates the meetings of the vestry or trus- tees, provides that at a meeting of the vestry or trustees each member thereof should be entitled to one vote. No provision is made for the casting vote. Section 198 of the new act which regulates the meetings of boards of trustees generally, contains the provision that "in case of a tie vote at a meeting of the trustees, the presiding officer of such meeting shall, notwithstanding he has voted once, have an additional casting vote," but by section 190 Protestant Epis- copal Churches are excluded from the operation of the article which contains this provision. See as to Pennsyl- vania rule subtitle above, Rector, casting vote.

Vestry, Acting without Formal Resolution. Tlie vestry, the governing body of a church, could authorize the rector, who was president of the vestry, to act as its agent in certain transactions without passing a formal resolution for that ])ur])ose; oral authority from a majority of the members, given during a session of the body, was sufficient. Cann v Rector, Church of the Holy Redeemer, 121 Mo, App. 201.

Vestry, Increasing. The vote of a Protestant Episcopal church to increase the number of vestrymen does not affect the rights and powers of the former vestrymen until the additional members have been chosen. Wardens, Christ Clnirch v I'ope, 8 Gray (Mass.) 140.

Vestry Meetings. To conslitute a legal meeting as trustees

PROTESTANT EPISCOPAL CHURCH 500

the rector, if there be one, aud oue church wjirdeu, together with five vestrymen, must be present. Moore v Rector St. Thomas, 4 Abb. N. C. (N. Y.) 51. In this case it was held that five of the eight vestrymen must be present, and it made no difference that there were vacancies in the office of some of the eight. The statute contemplates a meeting by a majority of the whole number authorized by the stat- ute, aud not a majority of those in office at a particular time without regard to existing vacancies.

The vestry of a Protestant Episcopal Church have author- ity to call meetings of the proprietors. The vestry may transact business in the absence of both wardens if a major- ity of all their members are present; even if it has been voted at several annual meetings that one warden aud four vestrymen constitute a quorum for transacting business. Wardens, Christ Church v Pope, 8 Gray (Mass.) 140.

Vestry, Powers. The society was incorporated in ISol). In 1870 the vestry adopted the so-called free-church plan, under which pews were approjjriated to all regular attend- ants at Sunday morning services, without reference to the amount contributed, but existing assignments were substan- tially preserved, no change being made without the pew- holder's consent. It was held that the vestry had power to make by-laws concerning the assignment and occupancy of pews. Livingston v Trinity Church, Trenton, 45 N. J. Law 230.

In Beckett v Lawrence, 7 Abb. Pr. N. S. (N. Y.) 403, it was held that the vestrymen have power to remove, or cause to be removed, persons disturbing religious services in the church.

In Cushman v Church of Good Shepherd, 188 Pa. St. 438, it was held that the vestry of Protestant Episcopal churches, or congregations, represent the laity, and the church charter must be deemed to include the act of 1855 relative to lay control. The vestry had power to dispose of church property under ecclesiastical rules, in the interests of the church, unless they attempt to violate a condition subject to

570 THE CIVIL LAW AND THE CHURCH

which the property was granted, or money to purchase and build it was contributed.

The property consisted of a house of worship. Two of the windows were memorials for Bishops Bowman and Kemper. The society proposed to remove the church edifice to another town, and include the memorial windows in the new build- ino-. The proposition to change the location of the house of worsliip was apj)roved, the court observing that '"we must assume that both the corporation and the contributors made the condition subject to the law of the church that if the congregation became depleted in numbers and substance by reason of death and removals or shifting of population, this particular church might be disposed of, and all the associa- tions connected with it should, as nearly as possible, be transferred to a successor wisely located in a new field.

Vestry, Promissory Notes. At a parish meeting of an Epis- copal church, the vestry submitted a report that it had ar- ranged to purchase lots for the church and rectory, and that the Church Association of Michigan had signified its willingness to advance a certain amount, provided the prop- erty should be deeded to the association in trust for the parish, and that interest at seven per cent should be paid on the money advanced, and the principal should be ])aid in one-hundred-dollar installments. The meeting authorized the vestry to carry out the arrangement. It was held that the vestry was authorized to give notes for the amount secured. Miller v Childs, 120 Mich. 639.

Virginia, Early Church. At a very early period the reli- gious establishment of England seems to have been adopted in the colony of Virginia, and, of course, the common law U])on that subject, so far as it was applicable to the circum- stances of that colony. The local division into parishes for ecclesiastical purposes can be very early traced ; and the subsequent laws enacted for religious purposes evidently presupj)Ose the existence of the Episcopal Church, with its general rights and authorities growing out of the common law. What those rights and authorities are need not be

PKOTESTANT EPISCOPAL CHURCH 571

minutely stated. It is sufficieut that, among other thiugs, the church was capable of receiving endowments of land, and that the minister of the parish was, during his incum- bency, seized of the freehold of its inheritable property, as emphatically persona ecclesice, and capable, as a sole cor- poration, of transmitting that inheritance to his successors. The churchwardens also were a corporate body clothed with authority and guardianship over the repairs of the church and its i)ersonal property; and the other tem])oral concerns of the parish were submitted to a vestry composed of per- sons selected for that purpose. In order more elfectmilly to cherish and supj)ort religious institutions, and to define the authorities and rights of the Episcopal officers, the Legisla- ture from time to time enacted laws on this subject. By the statutes of 1661, chaps. 1, 2, 3, 10, and 1667, chap. 3, pro- vision was made for the erection and repairs of churches and chapels of ease ; for the laying out of glebes and church lands, and the building of a dwelling house for the minister; for the making of assessments and taxes for these and other parochial purposes; for the appointment of churchwardens to keep the church in repair, and to provide books, orna- ments, etc. ; and, lastly, for the election of a vestry of twelve persons by the parishioners, whose duty it was, by these and subsequent statutes, among other things, to make and pro- portion levies and assessments, and to jiurchase glebes and erect dwelling houses for the ministers in each respective parish. It is conceded that, after the Revolution, the Epis- copal Church no longer retained its character as an exclu- sive religious establishment. And there can be no doubt that it was competent to the people and to the Legislature to deprive it of its superiority over other religious sects, and to withhold from it any support by public taxation. Terrett V Taylor, 9 Cranch (U. S.) 43.

Virginia, Education Society. Protestant Episcopal Edu- cation Society v Churchman's Rep's 80 Va. 718, sustained a bequest to the Protestant Episcopal Education Society of Virginia, such bequest to be used exclusively for educating

572 THE CI\'IL J.AW AND THE CHUECH

poor young men for the Episcopal ministry, upon the basis of evangelical principles as now established.

Wardens and Vestry, Status. Wardens and vestry of Epis- copal societies are the known and recognized representatives and committee of such societies; and any bequest to such wardens and vestry is a bequest to the society itself, or to them as trustees for its use. Trinity Ch. v Hall et al, 22 Conn. 132.

Warfield College. Testatrix devised fifty acres of land, and gave the proceeds of another fifty acres for the purpose of establishing Warfield College in Maryland, to be a school for boys. The devise and bequest were made to the conven- tion of the Protestant Episcopal Church of the Diocese of Maryland. The fifty acres of land included buildings and improvements. The devise and bequest were sustained. The Protestant Episcopal Convention was held entitled to take the bequest and devise, and they were declared valid. Hal- sey V Convention of the Protestant Episcopal Church, Mary- land Diocese, 75 Md. 275.

Western New York Diocese. A bequest to the Parochial Fund of the Diocese of Western New York in trust for the maintenance of religious services in a private unincorpor- ated memorial chapel was held void, for the reason that the society had no power to take such a trust under its charter, and also that the charter contemplated an organized body having legal existence ; and the language of the will in ques- tion did not specify any particular parish or any organized body which should receive the income. Butler v Trustees, I'arochial Fund Protestant Episcopal Church, Western New York, 92 Hun. (N. Y.) 06.

Widows and Orphans' Fund. A fund known as the widows and orphans' fund was raised by subscription in 1S04, "for the benefit of the widows and orphan children that may be left by the future ministers of this church." The fund was largely increased by accumulations. It Avas held that the fund provided for the support of widows and orphans of a particular class, was an eleemosynary charity, and in

PROTEt^TANT EPISC01»AL CHURCH 573

this case could be apportioned aud distributed for the pur- pose of carrying the charity into effect. Sears v Attorney (Jeneral, 193 Mass. 551.

Worship, Rector's Authority. Under Canon 15 of the Pro- testant Episcopal Church the rector of the parish, subject to the canonical authority of the bishop, may determine and l)rescribe what services shall be held in a church and in what manner and by whom they shall be performed. Burke v Rector, etc., of Trinity Church, 63 Misc. (N. Y.) 43.

QUO WARRANTO

Trustees, 574. Vestrymen, 574.

Trustees. lu au action of ejectment by one set of trustees against another set, both claiming to have been regularly elected and entitled to the possession of the property, it was held that the title to the office of trustees could not be deter- mined in that action, but that the question could only be determined by quo warranto instituted by the attorney gen- eral. Concord Society, Stryliersville v Stanton, 38 Hun (N. Y.) 1.

In an action by the society to recover possession of real property, the defendants attacked the title of the trustees of the plaintiff and alleged that they, the defendants, were the true trustees. The court said the question could not be tried collaterally, but only by quo warranto.' First Presby- terian Society, Gallipolis v Smithers, 12 Ohio St. 248.

Quo warranto was held the proper remedy to test the title to the office of trustees of the society. Commonwealth ex rel Gordon v Graham, 64 Ta. St. 339; see also Schilstra v Van Den Heuvel, 82 N. J. Eq. 612.

Vestrymen. This writ is available to try the title to the office of vestrymen in the Protestant Episcopal Church. State V Stewart, 6 Houst. (Del.) 359.

S74

REFORMED CHURCH

Description, 575.

Diversion of property, 576.

Division of society, eifect, 576.

Legacy, limitation, 576.

Succession to Calvinist Society, 576.

Successor to Reformed Dutch Church, 576.

Trust, intention of testatrix, 577.

Description. It seems that the peculiar doctrines repre- sented originally by the Calvinist society of the last century, and embodied in the Heidelberg Confession, have been held under different names by the Keformed Church in this coun- try for more than a century. Those names have been affected by various circumstances, as the nationality of the members and the location of the churches. Among these designations were ^'High Dutch," ''German Presbyterians/' and "Sacramentarians."' So, under the general denomina- tion Calvinists, was included the term "German Calvinists" ; and the opinion was expressed by one witness that the Re- formed Church of the United States is the only historical successor of the church intended by the name of the Calvin- ist Society.

A distinctive feature in the belief of the religionists known as the Reformed Church, represented under these different denominational titles, is their adhesion to the tenets of the Heidelberg Confession, unembarrassed by other distinguishing points of doctrine which are held by other religious bodies having a Calvinistic origin. It was said that the dogmas of that confession constitute the creed of the Reformed Church essentially as they were maintained by the Calvinistic Society during the last century, ever since their first promulgation by the Calvinist branch of the re- formers. Ebbinghaus v Killian, 1 Mackey (D. of C. ) 247.

575

576 THE CIVIL LAW AND THE CHURCH

Diversion of Property. An action by the original society against a seceding party which had sought to establish a society adhering to the doctrines of the Lutheran Church to prevent the diversion of the property and the approi^riation of it by the Lutherans was sustained, in Baker v Ducker, 79 Cal. 3G5.

Division of Society, Effect. The defendant, a pewholder and an officer of the church, was sued for two years' pew rent. He resisted i^ayment on the ground that his liability had been terminated, or at least suspended, b}^ the action of certain members of the society who had practically reor- ganized it in an illegal manner, and had usurped all author- ity, excluded the existing officers from their offices and em- ployed a minister who had not been sanctioned by the sjnod, and otherwise arbitrarily assumed control and manage- ment of the society contrary to the rules and Discipline of the church. The court held that the pewholder was not liable for pew rent under these circumstances. Ebaugh v Hendel, 5 Watts. (Pa.) 43.

Legacy, Limitation. In Keiper's estate, 5 Pa. Co. Ct. 568, the society was held entitled to a legacy which was given for the erection of a Reformed church, to be paid only in case there should be no debt on the church property, or until the legacy, with accrued interest, would place the church entirely out of debt. The testator during his lifetime contributed to the society, which was then engaged in the erection of a church, and the church was erected three years before he died.

Succession to Calvinist Society. In Ebbinghaus v Killian, 1 Mackey (Dist of C.) 247, the trustees of the society were recognized as the lawful successors of the Calvinist Society mentioned in a deed of trust, and entitled to the beneficial interest in the lot in controversy, and to its rents, issues, and profits, as against a Lutheran Society.

Successor to Reformed Dutch Church. In 1871 the name of the General Society of the Reformed Dutch Church in the States and Territories of the United States was changed

REFORMED CHURCH 577

from "The Reformed Dutch Church of America" to ''Tlie Reformed Church of America," and after that time the word "Dutch" was omitted from the corporate names of the churches constituting that society. De Camp v Dobbins. 29 N. J. Eq. 30. See article on Reformed Dutch Church.

Trust, Intention of Testatrix. Testatrix made a residuary bequest to the society "to promote the religious interests of the said church, and to aid the missionary, educational, and benevolent enterprises to which the said church is in the habit of contributing." It was held that this society was the one intended as the object of the bequest, and that a misnomer of a corporation in a gift to it will not defeat the gift. The trust was sustained. De Camp v Dobbins, 29 N. J. Eq. 3G.

REFORMED DUTCH CHURCH

Origin in America, 578.

History, 579.

Classis of 1822, 580.

Consolidation, when void, 580.

Congregation, right to withdraw, 581.

Consistory, general power, 581.

Division of society, adverse possession, 581.

Division of society, effect, 581.

Judicatories, 583.

Minister, deviation in doctrine, no right to use pulpit, 584.

Property, transfer to another denomination prohibited, 584.

Society, how formed, 585.

Taxation of parsonage, 585.

Theological seminary, legacy sustained, 585.

Trust, when deviation in doctrine not objectionable, 585.

Trust, when vaUd, 586.

Origin in America. Among the early settlers of New Jersey and New York were mauy emigrants from the United Prov- inces. They did not, like the settlers of New England, seek an asylum from the religious persecutions of their native land, but, like them, they brought here their industry, their virtues, and especially their ardent attachment and stead- fast adherence to the religious faith of their forefathers. As early as 1G22 congregations were formed. In process of time these became numerous, spreading over a large portion of the then inhabited parts of New Jersey and New York, each enjoying its religious worship and privileges, all guided by the doctrines of Heidelberg and Dordrecht, and most of them holding that competent and safe spiritual guides and teachers were to be found only in the mother country, where all their early clergymen were either born or educated. Until the year 1771 no general system of church govern- ment was organized. In that j^ear the numerous flocks,

678

REFORMED DUTCH CHURCH 579

somewhat distracted and divided, more especially ou the question whether adequate ministers could be raised here or must be sought abroad, were brought together into a com- mon fold. A general system of church organization, similar in outline to the Reformed Dutch in Holland, and substan- tially the same as now exists, was then unanimously, and as we may infer from other public records, cordially adopted.

In the year 1791), when the New Jersey statute for the incorporation of religious societies was enacted, all those who professed the faith and claimed to be members of the Reformed Dutch Church were divided among numerous con- gregations but united in a general ecclesiastical frame of government, comprehending a consistory of each congrega- tion, a classis having a jurisdiction over a few neighboring congregations, a particular synod, embracing a few classes, and a General Synod having jurisdiction over the whole. Their affairs were regulated according to the ancient con- stitution of their church ; an authentic copy of which was published in 1793, and another under the authority of their highest judicature in the year 1815, Den ex dem. Day v Bolton, 12 N. J. L. 200.

History. In 1772 the Dutch Church in the United States separated, so far as absolute authority is concerned, from the ecclesiastical jurisdiction of Holland, and established a general .system of church judicatories in this country.

Each separate church is governed by a consistory com- posed of the minister, elders, and deacons, from which an appeal lies to the classis, a body consisting of representa- tives from the several churches under its charge ; the several classes send delegates to a particular sj^nod, which is the next judicatory in order, from which latter body an appeal lies to the General Synod, as a tribunal of the last resort, and no particular church, or its members or ofiQcers, can lawfully withdraw from the connection ; also, pastors and ministers of the several churches are provided and are required to be approved by the classis to which the partic- ular churt-h is subject. Miller v Gable, 2 Denio (N. Y.j 492.

580 THE CIVIL LAW AND THE CHURCH

Classis of 1822. In Octolxn*, 1822, ten persons — five min- isters and five elders and deacons — met and organized tliem- selves into an ecclesiastical body, which they called the Classis of the True Reformed Dutch Churcli in the United States of America. They published to the world the reasons and grounds of their organization. They complained with minuteness of detail that the church once noted for its soundness in the faith had become corrupt in its prin- ciples and practice. They alleged a prevailing laxness of discipline and prostitution of the sacred ordinances of the gospel, and declared as follows : "We, the undersigned, min- isters, elders and deacons, have unanimously agreed to restore the church to its original purity, and together with the congregations under our care, do unite in declaring ourselves the True Reformed Dutch Church in the United States of America, and as a rule of our faith and practice to abide by all the standards ratified and established in the National Synod, held at Dordrecht in the years 1618 and 1G19, without the least alteration, by which act we do not separate from, but remain tlie identical Reformed Dutch Church."

At the same meeting they resolved that until their num- bers were sufiSciently increased to be divided into classes and synods, the judicatories in the church should consist of only two descriptions — consistories and a classis; and the classis should be known and distinguished by the name of the True Reformed Dutch Church in the United States of America. This classis not having been organized in the manner provided and sanctioned by the constitution of the Reformed Dutch Church, cannot be deemed a constitutional judicatory of that church. Indeed, they did not thus claim so to be, but avow themselves to have separated from and to be disconnected with that body. Den ex dem. Day v Bolton, 12 N. J. L. 206.

Consolidation, When Void. Sutter v Reformed Dutch Church, 6 Wright (Pa.) 503, contains a history of the move- ment by which it was sought to unite this society with a

REFOKMED DUTCH CHURCH 581

branch of the Low Dutch Reformed Church, and it was held that such attempted change was void.

Congregation, Right to Withdraw. In I'ulis v Iserman, 71 N. J. Law 408, it was held that each particular congrega- tion had the right to withdraw from the classis and synod with which it had been connected and become independent, without loss of ecclesiastical or civil function.

Consistory, General Power. The Consistory of the Reformed Dutch Ch. of Prattsville v Brandow, 52 Barb. (N. Y.) 228, sustained the validity of a bequest of this society against the objection that a consistory was not authorized to con- trol the bequest, it being claimed that the board of trustees possessed this power. The will expressly gave the bequest to the consistory to be used as they might deem best.

Division of Society, Adverse Possession. The High Dutch Reformed Church at Schoharie received in 18o5 a deed of land in Gallupville, on which a house of Avorship was erected, and the church at Schoharie and the church at Gallupville Avere both occupied by the society until 1814, when action was taken resulting in the division of the society, and that part of the congregation living at and near Gallupville was set off from the i)arent congregation with the expectation that a distinct .society would be organized at Gallupville according to the rules of the denomination. The church property at Gallupville was also set oft' to the new society. No formal title was transferred, and could not be, for the reason that the portion of the congregation at Gallupville was not then incorporated, but the action taken was deemed to lay the foundation of a right by adverse pos.session. The Gallupville society continued in jtossession of the property from 1811 to 1869, when it was incorporated, and the prop- erty then continued in possession of the corporation, w^hich succeeded to all the rights of property possessed or enjoyed by the unincorporated society. Reformed Church, Gallup- ville V Schoolcraft, G5 N. Y. 131.

Division of Society, Effect. The local society was incorpo- rated in 1809. On the same dav two tracts of land of about

582 THE CIVIL LAW AND THE CHUKCH

twenty-three acres were conveyed to them in their corporate name. The oflBcers of the society took possession of the property, and received and used the rents and profits. Later there was a division in the societ}^, resulting in the election of two sets of officers, each claiming to be the true legal incumbents, and entitled to hold tlie ])roperty. Both parties admit that the premises belong to the corporation. Both admit that the minister, elders, and deacons, for the time being of the Reformed Dutch Church in the English neigh- borhood, are entitled to the possession. The case involved the question as to which of these persons were the trustees. The action was brought bj^ the trustees out of i)ossession.

This congregation was originally attached to the Classis of Hackensack. On a division of that classis in 1800 the congregation was placed under the supervision of the Classis of Bergen. By the incorporating act the ministers, elders, and deacons became in fact the trustees of the society, and the act did not require an election of trustees as such. In 1824 a part of the congregation withdrew and dissolved the relations of the society with the Classis of Bergen, denying the authority of the Classis of Bergen, and of tlie General Synod, because those bodies had departed from the doctrine and standards of the Reformed Dutch Church. The with- drawal in 1821 included the minister, elders, and deacons. The remaining members of the local society continued as members of the congregation in the English neighborhood. Their standing in the church was not affected by the with- drawal of the officers. The seceding portion of the congre- gation attached itself to the recently organized classis of the True Reformed Dutch Church in America, but that church or organization was not a Reformed Dutch Churcli, and, therefore, the withdrawing ministers, elders, and dea- cons, who attached themselves to this new organization, known as the Classis of 1822, ceased to be members of the ancient Reformed Dutch Church.

On the 18th of February, 1S21, the Classis of Bergen sus- pended the minister of this society, and declared vacant tlie

REFORMEl) DUTCH CHURCH 583

seats of the elders and deacons as members of the consistory of the church at the English neighborhood, and deposed them from their respective offices. No appeal was taken from the action of the classis. The classis ordered a new election, which was, accordingly, held and confirmed at a subsequent meeting of the classis. The trustees so elected were declared to be the legal rei)resentatives of the original society, and entitled to the possession of the i)roperty. Den ex dem. Day v Bolton, 12 N. J. 2()(;.

A case involving the status of the Reformed Dutch Church in Bergen has already been noted. See preceding note. The case now under consideration was for the foreclosure of a mortgage given hj the consistory of the church, composed of the minister, elders, and deacons constituting trustees before they were deposed and removed by the Classis of Bergen. The debt on which the mortgage was purported to have been based having been sufficiently established, the court held the mortgage to be valid and capable of enforce- ment. Doremus v Dutch Reformed Church, 3 N. J. Eq. 332.

The minister and members of the consistory withdrew from the denomination and joined the Presbyterian Church but still claimed the right to hold the property. It was held that the minority adhering to the principles of the original denomination were entitled to the possession and control of the church property. True Reformed Dutch Church v Iser- man, 64 N. J. L. 500.

Judicatories. Under the constitution of this church there are four ecclesiastical judicatories: (1) The consistory, com- posed of the ministers, elders, and deacons; (2) the classis, composed of all the ministers, and an elder delegated from each consistory within certain bounds; (3) the particular synod, composed of three ministers and three elders from each classis within certain bounds of the whole country. In these assemblies, or judicatories, it is provided that ecclesi- astical matters only shall be transacted, and that a greater assembly shall take cognizance of those things alone which could not be determined in a less, or that appertain to the

584 THE CIVIL LAW AND THE CHURCH

churches or congregations in general which compose such an assembly. Connitt v Ref. Protestant Dutch Church, 54 N. Y. 551.

Minister, Deviation in Doctrine, No Right to TJse Pulpit. In Suter V Spangler, 4 Phila. (Pa.) 331, the union of the First Reformed Dutch Church of the City and vicinity of Phila- delphia with the synod of the Reformed Dutch Church of tlie United States contemplated a spiritual connection and none other, and did not involve the permanent submission of the former to the ecclesiastical judicatories of the latter, nor required the property of the church to be used for the promulgation and support of the doctrinal faith of the synod. The said church was founded as a Calvinistic church ; and it was the duty of courts of justice to prevent the application of its property to religious uses different from those that were originally intended by the donors and those who established the church. No person who does not receive and preach the doctrine of predestination, and the entire system of Calvinistic theology as received and taught by the said church, can have any right to its pulpit, and a court of equity will restrain such person from oflSeiating therein.

Property, Transfer to Another Denomination Prohibited. A large number of members of this society sought to form a corporate union with the Western Presbj'terian Church of Philadelphia, under the title of the Immanuel Presby- terian Church, the effect of which would be to merge both societies in one, and transfer all their property to the new society. The original society was established as a Reformed Dutch Church, and a house of worship was erected by con- tributions from the members of the society and others. The society became connected with the Classis of Philadelphia. The real property which at first was held by trustees was afterward conveyed to the society as such. All the pastors of the church were of the Dutch denomination and members of the Philadelphia Classis. It was held that the situation constituted a trust which could not be violated by trans-

REFORMED DUTCH CHURCH 585

ferring the property to the Presbyterian Society and form- ing a consolidation with it. Whenever a church or religious society has been duly constituted, as in connection with, or in subordination to some ecclesiastical organization or form of church government, and as a church so connected or sub- ordinate, has acquired property by subscriptions, donations, or otherwise, it cannot break otf this connection and unite with some other religious organization, or become independ- ent save at the expense of impairing its title to the property so acquired. Jones v Wadsworth, 11 Phila. (Pa.) 227.

Society, How Formed. From the constitution of the Re- formed Dutch Church, and from precedents in the acts and proceedings of the Reformed Dutch Church and of the Ti'ue Reformed Dutch Church, it appears that the formation of a new congregation or consistory or church judicatory in con- nection with and subordinate to that church is to be made with the consent and by the authority of the proper eccle- siastical assembly. A portion of the members of the church, or converts professing its faith, cannot by their own act and without the sanction prescribed by the constitution, form a new consistory, classis, or synod within tlie plan of the church. Den ex dem. Day v Bolton, 12 N. J. L. 206.

Taxation of Parsonage. The society owned a parsonage which was erected from contributions derived from various sources. These contributions did not constitute an endow- ment or a fund Avithin the meaning of the statute which exempts from taxation such a fund or endowment. Tlie par- sonage was, therefore, held to be subject to taxation. State, First Reformed Dutch Church v Lyon, :}2 N. J. Law 360.

Theological Seminary, Legacy Sustained. A bequest in aid of the theological seminary at New Brunswick, to be applied in educating pious and indigent young men for the gospel ministry, was sustained as valid by way of a charitable use to the Synod of the Dutch Church. Honibeck v American Bible Society, 2 Sandf. Ch. (N. Y. ) 133.

Trust, When Deviation in Doctrine not Objectionable. See Miller v Gable, 2 Den. (N. Y.) 492, for a discussion on the

58(; Tin-: civil law and the church

power of a local chui'ch to use property for the teaching of doctrines different from those held by the general denomina- tion. Goble V Miller, 10 Paige Ch. (N. Y.) 627 was reversed. Trust, When Valid. The conveyance to certain individuals, of the site of the Dutch Church in Garden Street, in the city of New York, in 1691, in trust for the use of the ministers, elders, and deacons of such church and their successors, and to have a house of public worship erected thereon and for no other use whatever, was a valid conveyance at the com- mon law to a charitable and pious use; and the court of chancery has original Jurisdiction to enforce the perform- ance of the trust. Dutch Church in Garden Street v Mott, 7 Paige Cb. (N. Y. ) 77; see article on Reformed Church for note on change of name.

REFORMED PRESBYTERIAN CHURCH

Division of society, majority's right, 587.

Division of Society, Majority's Right. This society was incorporated iu 1850. By one section ot the articles ol" incorporation corporate powers were vested in the subscrib- ers and their successors, members of the congregation who should adhere to and maintain the system of religious prin- ciples declared and exhibited by the Reformed l*resbyterian Synod of North America, ''of which the Reverend Doctors Wylie and Crawford are now officiating ministers." The church property which was the subject of controversy in this action was conveyed to the corporation in March, 1850, for the use of the congregation and their successors and assigns.

The plaintiffs in this action seceded from the congrega- tion in February, 1870, and claimed the ])roperty on the ground that they constituted the real Fifth Reformed Church. It was alleged that the defendant, constituting the majority, had withdrawn from the Reformed Presby- terian Church of North America, and from the jurisdiction of the General Synod.

In June, 1808, the Reformed Presbyterj- of Philadelphia suspended its relations to the General Synod, iu consequence of certain proceedings of the synod which were disapproved by the presbytery, but the presbytery expressly asserted its continued membership in the Reformed Presbj^terian Church. The protest of the First I'resbytery of I*hiladelphia was presented to the synod at its next meeting in May, 1801), and the synod thereupon adopted resolutions declaring the officers and members of the presbytery to be without the jurisdiction of the General Synod, and placing several con-

587

588 THE CIVIL LAW AND THE CHUECH

gregatioiis, iiiclnding tlie Fifth Reformed, niider the juris- diction of the Second Presbytery of Philadelphia, provided such congregation adhered to the General Synod, and ap- plied for admission to the Second Presbytery.

This action of the synod was held to be without authority, and the majority of the local congregation were declared the true Fifth Reformed Church, entitled to all the rights and privileges accorded to the society under the rules of the Reformed Presbyterian Church, and the control and management of the property under the original conveyance thereof. McAuley's Appeal, 77 Pa. 397. See also Kerr's Appeal, 89 Pa. 97.

RELIGION

Defined, 589.

Children, education, 590.

Church and state, 590.

Constitution of the United States, 591.

Duty of state, 592.

English toleration acts, 592.

Freedom, 592.

Girard College case, 593.

Government not to teach, 595.

Importance to society, 595.

Legislative regulation, 595.

Ohio, 595.

Rational piety, 596.

Restraining interference, 596.

Defined. The term "religiou" has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obe- dience to his will. It is often confounded with the cnltus or form of worship of a particular sect, but is distinguishable from the latter. With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, pro- vided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. Davis v Beason, 133 U. S. 333.

In all Christian countries the word "religion" is ordi- narily understood to mean some system of faith and practice resting on the idea of the existence of one God, the Creator and Euler, to whom his creatures owe obedience and love. Keligion comprehends all systems of belief in the existence of beings superior to and capable of exercising an influence for good or evil upon the human race, and all forms of wor-

589

500 THE CIVIL LAW AND THE CHUKCH

ship or service intended to influence or give honor to such superior powers. It is in this sense of the word that we speak of the religion of the North American Indian, the reli- gion of the fire worshipers, or the ancient Egyptians. A bequest in aid of any such system would, therefore, be a bequest for a religious use within the meaning of the Penn- sylvania act of 1855. Knight's Estate, 159 Pa. 500.

Religion is that sense of Deity, that reverence for the Creator, which is implanted in the minds of rational beings. It is seated in the heart and is conversant with the inward principles and temper of the mind. It must be the result of personal conviction. It is a concern between every man and his Maker. Public instruction in religion and morality, within the meaning of our constitution and laws, is to every purpose a civil and not a spiritual institution. Muzzy v Wilkins, Smith's N. H. Rep. 1.

Children, Education. In Re Jacquet, 40 Misc. (N. Y.) 575, 82 N. Y. S. 986, it was held that where a father and mother are Catholics their children, when committed to the care of a guardian, must be brought up as Catholics.

Church and State. At the time of the emigration of the Pilgrims, not only in the country whence they came but in all Christendom, religion was an engine of state, and the support and protection of the latter was deemed indispens- able to the preservation and maintenance of the former. This alliance had existed for ages, and the light of inspira- tion alone could have taught them at once that its dissolu- tion, so far from endangering or destroying the Christian religion, would promote its purity and increase and per- petuate its beneficial influence. In the early periods of our history we find that the government maintained a super- intendence over the ecclesiastical afl'airs of the common- wealth, and instances are numerous in which the governor and magistrates were appealed to and lent their aid in the settlement of religious controversies. The leading prin- ciple in the religious sj^stem of the colony is the compulsory support of public worship and the liability of every inhab-

RELIGION 591

itaut to contribute toward its maiuteuaiice. Tliis principle runs tlirougli all the legislation upon the subject, both under the colonial and provincial governments. It was incorporated into our constitution and is now an operative provision of it. To the practical operation of this principle many exceptions have been made, but it never has been abandoned. It is now a prominent feature of our parochial laws.

The original mode of supporting public worship was by the several towns; and towns were established first along with a view of parochial duties as to the management of municipal affairs. Each town was required to be provided with a minister, and every inhabitant was liable to be taxed for his support. And not onlj^ in the settlement of ministers but in all elections and other civil matters the right of suffrage was confined to church members in full communion. Each town was required to provide houses of public worship, and individuals were prohibited from erecting such houses without the consent of the town. For about a century all the inhabitants were required to pay ministerial taxes, and in the early days every inhabitant was required to attend public worship on Sundays, and on fast and thanksgiving daj's, and \\as subject to a penalty for neglect. Oakes v Hill, 10 Pick. (Mass.) 833.

Constitution of the United States. The first amendment to the constitution, in declarini; tliat Congress shall make no law respecting the establishment of religion, or forbid- ding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions resi)ecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets or the modes of worship of any sect. The oppressive measures adopted and the cruelties and punishments inflicted by the governments of Europe for

592 THE CIVIL LAW AND THE CHURCH

many ages to compel parties to conform in their religious belief and modes of worship to the views of the most numer- ous sect, and the folly of attempting in that way to control the mental operations of the persons and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question, Davis v Beason, 133 U. S. 333.

Duty of State. The duty of the state with respect to reli- gion— its whole duty — is to protect every religious denom- ination in the peaceable enjoyment of its own mode of public worship. This duty is not due alone to the different denom- inations of the Christian religion, but is due to every reli- gious body, organization, or society whose members are accustomed to come together for the purpose of worship- ing the Supreme Being. State v Scheve, 65 Neb. 853.

English Toleration Acts. '^As a consequence of the Protes- tant Episcopalian religion being the state church in the reigns of Elizabeth and George I, and also of the then exist- ing laws in relation to the exercise of other religions, it is probable that the only trusts, which by reason of their ob- ject being the advancement of religion would have been recognized as charitable at the time of the statutes in ques- tion, were trusts for the advancement of that particular religion. Nevertheless, it is clear that the religious services, the j)ublic celebration of which involved the public benefit contemplated by later statutes, must now be taken to in- clude the religious services of, at least, any denomination of Christians, because when from time to time the passing of the various toleration acts rendered lawful the exercise of religions other than that of the Established Church, trusts for the advancement of the Roman Catholic religion, of the religion of Protestant dissenters, and even of that of the Jews were held charitable within the meaning of the Sta- tute." Attorney General v Hall, 2 Irish Re. 291, 307 (189G).

Freedom. That society, or, which is the same thing, that the civil magistrate should ever undertake to prescribe to men what they shall believe and what they shall not believe is a thing so absurd that we should hardly believe it upon

RELIGION 593

less evidence than that of experience. Opinions are not the proper objects of human authority. The mind of man was not intended by its wise Creator to be subjected to the con- trol of finite limited beings like itself. Freedom of thought is the prerogative of human kind, a quality inherent in the very nature of a thinking being, a privilege which ought never to be denied. No human government has a right to set up a standard of belief, because it is itself fallible. It has not pleased God to enlighten by his grace any govern- ment with the gift of understanding the Scriptures. Uni- formity of faith is not practicable, and if it were, is not desirable. Muzzy v Wilkins, Smith's N. H. Rep. 1.

Girard College Case. Stephen Girard by a will bearing date December 2."), 1830, among other things, gave a large amount of proi>erty to the city of Philadelphia for the purpose of establishing and maintaining therein a school for the in- struction of poor white male orphan children and directing the erection and equipment of buildings necessary for that purpose. The clause relating to this institution contained the following restriction : "I enjoin and require that no ecclesiastic, missionary, or minister of any sect whatsoever, shall ever hold or exercise any station or duty whatever in the said college; nor shall any such person ever be admitted for any purpose, or as a visitor, within the premises appro- priated to the purposes of the said college. In making this restriction I do not mean to cast any reflection u]>on 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; my desire is that all the instructors and teachers in the college shall take pains to instill 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 toward their fellow creatures and a love of truth, sobriety, and industry, adopting at the

y

5J)4 THE CIVIL LAW AND THE CHURCH

same time such religious tenets as their matured reason may enable them to prefer."

Certain heirs of the testator began proceedings in the United States Circuit Court to have the will declared void as to the residuary estate, partly on the ground of an alleged lack of capacity of the city to take the property and partly because the alleged trust was void for uncertainty. The complainants objected among other things tliat the founda- tion of the college upon the principles and exclusions pre- scribed by the testator in the foregoing extract from his will was derogatory and hostile to the Christian religion, and so was 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, missiona- ries, and ministers of any sect from holding or exercising any station or duty in the college, or even visiting the same; and, secondly, because it limited the instruction to be given to the scholars to pure morality, and general benevolence, and a love of truth, sobriety, and industry, thereby exclud- ing, by implication, all instruction in the Christian religion. Judge Story, speaking for the Supreme Court in Vidal v Girard's Executors, 2 How. (U. S.) 127, said that Mr. Girard did not say that Christianity should not be taught in the college. But that no ecclesiastic of any sect should hold or exercise any station or duty in the college. Judge Story suggested that laymen might instruct in the general prin- ciples of Christianity, as well as ecclesiastics, and that there was no restriction as to the religious opinions of the instruc- tors and officers. The Judge further suggested that "tlie Bible, especially the New Testament, without note or com- ment might be read and taught as a divine revelation in the college, its general precepts expounded, its evidences ex- plained, and its glorious principles of morality inculcated." The court thought that Mr. Girard intended to exclude sec- tarians and sectarianism from the college, leaving the in- structors and officers free to teach the purest morality, the love of truth, sobriety, and industry by all ai)propriate

RELIGION 595

means; and, of course, including the best, the surest, and the most impressive. It was held that there was nothing in the foregoing restriction inconsistent with the Christian religion. The will was sustained.

Government Not to Teach. The suggestion that it is the duty of government to teach religion has no basis whatever in the constitution or laws of this State (Nebraska) nor in the history of our x^eople. The teaching of religion would mean teaching the system of faith and worship of one or more of the religious sects; it would mean sectarianism in the public schools. State v Scheve, 65 Neb. 853.

Importance to Society. Religion is of the utmost import- ance to every community. The history of the past fur- nishes abundant evidence of the truth of this proposition. It is the basis of civilization. Were it not, we should be in a state of moral darkness and degradation, such as usually attend the most barbarous and savage states. It is to the influence of it that we stand indebted for all that social order and hap]>iness which prevails among us. It is by the force of religion more than by that of our municipal regula- tions, or our boasted sense of honor, that we are kept within the line of moral rectitude, and constrained to administer to the welfare and comfort of each other. In short, we owe to it all that we enjoy, either of civil or religious liberty. Commonwealth v Dupuy, Brightly N. P. (Pa.) 4-1.

Legislative Regulation. Although it may be true that "reli- gion can be directed only by reason and conviction, not by force or violence," and that "all men are equall}^ entitled to the free exercise of religion according to the dictates of con- science," as the bill of rights of Virginia declares, yet it is difficult to perceive how it follows as a consequence that the Legislature may not enact laws more effectually to enable all sects to accomplish the great objects of religion by giving them corporate rights for the management of their property, and the regulation of their temporal as well as spiritual con- cerns. Terrett v Taylor, 9 Crauch (U. S.) 43.

Ohio. Religion by the constitution is declared to be essen-

596 THE CIVIL LAW AND THE CHURCH

tial to good goverument. Religion, therefore, is regarded by the constitution as good. It simply gives the state no power to declare which religion or religious sect is better or best. "No preference shall be given by law to any reli- gious society" is the language of the constitution. This makes the state impartial and neutral between every creed, faith, and sect existing among its people for the time being. Protestants of every denomination. Catholics and Jews, have thus had their respective creeds made equal before the law, and all declared to be good, and no preference can be given by law to either. Humphreys v Little Sisters of the Poor, 7 Ohio Dec. 194.

Rational Piety. The obligation to support rational piety is common to all nations, because it is the firmest support of lawful authority, and the highest pledge of the people's safety. Beam v First Methodist Episcopal Church, Lan- caster, Pa., 3 Pa. L. J. Rep. 343.

Restraining Interference. "Individual conscience may not be enforced, but men of every opinion and creed may be restrained from acts which interfere with Christian wor- ship, and which tend to revile religion and bring it into con- tempt." Lindenmuller v People, 33 Barb. (N. Y.) 548.

RELIGIOUS BELIEF

No excuse for neglecting parental duty, 597.

No Excuse for Neglecting Parental Duty. State v Cheno- weth, 1():> hid. 1>4, contains an interesting review of English and American cases bearing on the effect of religious belief as a defense in a prosecution for neglecting parental duty by refusing to provide medical aid to children.

597

RELIGIOUS CORPORATIONS

Amending charter, 599.

Assignment for creditors, 599.

Banking, 599.

Business block, 599.

Capacity to take property, how determined, 600.

Changing form of government, 600.

Charter, 600.

Consolidation, 600.

Constitution and by-laws make contract, 601.

Contract, excui-sion, 602

Corporate acts, 602.

Corporator's right, how acquired or lost, 602.

Debts, members not personally liable, 603.

Debt, ratification, 603.

Debt, treasm'er's loan, 603.

Debts, reimbursement, 604.

De facto, property rights, 604.

De facto, 604.

Denominational character, 604.

Dissolution, effect, 605

Dissolution, State law superior to church law, 605.

Diversion of trust, 605.

Government, 605.

Incorporation, 606.

Incorporation, collateral inquiry, 606.

Incorporation, validity, how questioned, 606.

Liability for debt, 607.

Liability for injuries caused by neghgence of employee, 607.

Liability for injuries to employee, 608.

Majority, when action binding on minority, 608.

Majority's right, 608.

Members, 608.

Member expelled, no claim for damages, 609.

Member's expulsion, 609.

Member's liability, 609.

Members, when may not be e.xcluded, 609.

Michigan rule, 610.

Minors as members, 610.

598

RELIGIOUS OOK1'OKAT10:N{S 5Dli

New organization, effect, 610.

New York rule, (jlO.

Object and pmpose, 610.

Organization, notice, 610.

Pew-owners, 611.

Presumption, 611.

Promissory note, 611.

Property, limitation, 611.

Religious connection, 612.

Removal to new house, 612.

Roman Catholic, charter, 612.

Status, 613.

Status, as compared with EngUsh parson, 613.

Taxation, 613.

Three elements, 613.

Trustee, 614.

Trustees, jjowers, 614.

Trustees, majority must meet and act, 615.

Unauthorized sale of property, 615.

Who constitute, 615.

Young Men's Christian Association, 616.

Young Women's Christian Association, 616.

Amending Charter. The charter of a religious corpora- tion cauuot be amended vvitliout notice of an intention to submit tlie proposed amendment at a specified meeting. Re African Methodist Episcopal Union Church, 28 Pa. Sup. Ct. 193.

Assignment for Creditors. l)e Riiyter v St. Peteris Church, o N. Y. Re 238 .sustained an assignment by the society, of its l>roperty to trustees for the benefit of creditors. The chan- cellor had approved the assignment. It was also held that a religious corporation might at common law assign its prop- erty in trust for the payment of its debts unless restrained by its charter, or by statute.

Banking. A society organized for religious purposes under the Ohio statute could not lawfully establish a sav- ings bank and engage in the general business of banking. Such business was not authorized by its charter. Huber v German Congregation, 16 Ohio St. 371.

Business Block. In First Methodist li^piscopal Church,

000 THE CIVIL LAW AND THE CHURCH

(Chicago V Dixou, 178 IlL 200, it was held that a corporation created for the pur])oses of religious worship, and author- ized to receive and hold land and erect buildings for such ])urpose and no other, has power to erect only such build- ings as are directly and distinctly appropriate to the ad- vancement of the cause of religion, and necessary to the com- fort and convenience of the congregation when engaged u])on religious duties, and that trustees had no power to erect an office building on the lot.

Capacity to Take Property, How Determined. The ques- tion whether a religious corporation has capacity to take property in excess of the amount prescribed by its charter can be raised only by the State in a direct proceeding for that purpose. The question cannot be raised collaterally at the instance of a private individual w^ho may be interested in the property, nor in a proceeding for the construction of a Avill. Hanson v Little Sisters of the Poor, Baltimore and St. Mary's Church, Hampden, 79 Md. 434.

Changing Form of Government. The right of a majority of the corporators of a religious society to change their form of church government, and pass from a Congregational church to an organization in connection with the Presby- terian body, is unquestionable. Bellport Parish v Tooker, 29 Barb. (N. Y.) 250.

Charter. Although a church does not enjoy the attributes of a corporation, yet having a well-established identity, it was quite within the scope of legislative power to constitute certain of its oflScers, also equally w^ell known, by the name of their office, a corporation, and to endow tliem with power to take estates, real and personal, in succession; and also with a capacity to sue and defend all actions touching the same. Anderson v Brock, 3 Me. 243.

Consolidation. A religious societ}^ cannot be incorporated for the sole i»uri)ose of consolidating it with another, with the ultimate <lesign of acquiring the property of such other and api)lying it to tlie maintenance of a church with a dif ferent polity and where a somewhat different faith exists.

RELIGIOUS CORI'OEATIONS GOl

The statutes providing for the cousolidation of religious corporations were designed to euable existing religious cor- porations, organized in good failli for the advancement of religious interests, and for a time carried on for such pur- pose, to consolidate when it becomes apparent that such interests can be better advanced by the union of the corpo- rations. When a majority of trustees of one corporation are also the trustees of another corijoration, boards of trustees so constituted cannot enter into a valid contract for the consolidation of the corporations. Matter of M. E. Society V Perry, 51 Hun (N. Y.) 104.

Two Hebrew congregations agreed to consolidate, one of them to receive all the property of the other, and the trans- ferring congregations were to enjoy all the privileges and be subject to all the duties of the congregation to which the transfer was made and with which the consolidation was to be effected. By the agreement either congregation could, within a year, withdraw from the consolidation on giving notice of its intention so to do. It was held that the con- solidation agreement did not comply with the Religious Corporations Law, sec. 12, nor witli the Mend)ership Cor- porations Law, sec. 7, and that, therefore, the attenii)t to con- solidate was beyond the powers of the congregations and that a single dissenting member of either corporation could maintain an action to set aside the agreement. Davis v Cong. Beth Tephila Israel, 40 A. D. (N. Y.) 424.

Where two religious corporations have consolidated with- out attempting to follow the provisions of the statute pro- viding therefor, either party to such action may sue to set aside the consolidation as ultra vires without any prior request so to do from its members. Chevra Medrash Auschei Makaver v Makower Chevra Aucchi Poland, 66 N. Y. Supp. 355.

Constitution and By-Laws Make Contract. Where a number of persons associate to form a religious congregation, to acquire property for its use, and incorporate for the more convenient holding and control of the property, the consti-

t.()2 THE CIN^IL LAW AND THE CHURCH

tutiou or body ol' rules which they adopt to j)rescril)e who shall be members of the corporation, and entitled to a share in the control of it, is the contract by which they are bound. Trustees, East Norway Lake Norwegian Evangelical Lu- theran Church & others v Halvorson, 42 Minn. 50;i.

Contract, Excursion. For the purpose of raising money to ai)ply on a church debt the society chartered a steamer for an excursion. It was held that the church could not engage in a general business enterprise, but that it was limited to the work of preaching, teaching, ministering to spiritual edification, and promoting works of mercy and benevolence. A steamboat company refused to perform the contract, and there was no excursion, and the church was compelled to refund money to the ticket holders. In an action by the church against the company for damages, it was held that the contract was illegal, and beyond the power of the reli- gious society, and that the only amount recoverable of the steamboat company was the amount paid as hire for the vessel with interest. The church could not recover damages for losses by reason of the failure of the excursion. Harri- man v First Bryan Baptist Church, 63 Ga. 186.

Corporate Acts. Where the exercise of corporate acts is vested in a select body, an act done by the persons com- posing that body, in a meeting of all the corporators, is not a valid corporate act. Landers v Frank St. Church, Koch- ester, 97 N. Y. Ill), also lU N. Y. 626.

Corporator's Right, How Acquired or Lost. A right as a corporator in a religious society is obtained by stated at- tendance on divine worship therein, and contributing to its support by renting a i)ew or by some other mode usual in the congregation.

Such a right cannot be derived by descent from the found- ers of the society, or from the former contributors to, or worshipers in, the same.

The association between a religious incorporation and its corporators is voluntary on the ])art of the latter, and is dissolved by their withdra\\'ing from attendance on its wor-

RELIGIOUS COKrOKATlONS 603

ship, omitting to contribute to its support, and uniting in tlie establishment of another like incorporation. Cam- meyer v United German Lutheran Churches, 2 Sandf. Ch. (N. Y.) 208.

Debts, Members Not Personally Liable. A member of an incorporated church is under no legal obligation to pay its debts, and his only moral obligation is to contribute of his means and of his inlluence to the extent of his ability to meet the just demands upon that organization so long as he is a member of it. "He who gives credit to a church organiza- tion knows that the only sour<e to which he is entitled to look for payment is the property or assets of which the cor- poration is owner, and to the voluntary offerings or gifts of the members and friends who nmy be moved or persuaded to contribute to that purpose." Allen v North Des Moines Methodist Episcopal Church, 127 la. !)(►.

It was held in Richardson v Butterfield, CO Mass. IDl, that the members were not individually liable on a judgment and execution against the corporation.

Debt, Ratification. Several persons interested in the erec- tion of a church edifice joined in a promissory note to secure a loan of an amount sufficient to meet the deficiency. The note was discounted and the proceeds used by the treasurer of the church. Subsequently subscriptions were received and contributions made in otlier ways for a part of this indebtedness. It was held that by raising subscriptions and soliciting contributions the indebtedness was ratified, and the church became liable for the payment of any balance remaining unpaid. Tlie note given for the original loan was for the benefit of the society, and the makers of the note had no personal interest therein. Trustees of Christian Church v Cox, 78 111. App. 219.

Debt, Treasurer's Loan. In Wilson v Tabernacle Bapt. Church, 28 Misc. (N. Y.) 268, the corporation was held liable in an action against it to recover money borrowed by its treasurer, without the knowledge of the trustees, but which money was used for the benefit of the corporation.

604 THE CIVIL LAW AND THE CHURCH

Debts, Reimbursement. In an action by the church to com- pel the conveyance to it of a lot of land on which a house of worship had been erected, and which certain persons had agreed to convey to the church when incorporated, it was lield that although the society was unincorporated at the time of making the agreement to convey, its subsequent in- corporation entitled it to a deed, but the vendor having exi)ended a large sum of money in the erection of the church in addition to his subscription, was held entitled to be reim- bursed before making the conveyance. Canajoharie and Palatine Church v Leiber, 2 I'aige Ch. (N. Y.) 43.

De Facto, Property Rights. A religious association, al- though by reason of irregularities in complying with the j)rovisions of the Massachusetts General Statutes, chap. 32, it has failed to become a corporation, is nevertheless en- titled by the General Statutes, chap. 30, sec. 24, to hold property given to it by the luime which it assumed ; and another religious society subsequently incorporated, is not entitled to take the name or the property. Glendale Union Christian Society v Brown, 109 Mass. 1G3.

De Facto. In All Saints' CImrch v Lovett, 1 Hall's Sup. Ct. (N. Y.) 195, it was held that even if the certificate of incorporation was defective in some particulars, the society became a de facto corporation, and it might be presumed that all the requirements of the statute were complied with. A person who accepts an appointment to an office by such a de facto corporation cannot, in an action against him by the corporation, allege that the original incorporation of the church was invalid or irregular.

A bequest to this church was contested on the ground that the proof of incorporation was defective, but the court held that the society had claimed and exercised the powers of a corporation for nearly twenty years, and it was, there- fore, to all intents and purposes a de facto corporation and entitled to the legacy. Chittenden v Chittenden, 1 Am. L. Eeg. (N. Y.) 538.

Denominational Character. The corporation organized

RELIGIOUS COKI»ORATIONS G05

under the religious corporations act of 1813 has no denom- inational character, nor can such a character be in any manner engrafted upon it. That portion of the members organized into a separate body called the church may be- long to a peculiar- denomination, but it has no power to impress its distinctive character upon the corporation, so as to render it ineffaceable by the voice of a majority of the corporation. Pettj' v Tooker, 21 N. Y. 271 ; see amend- ment of 1875, chap. 71).

Dissolution, Effect. The charter of the corporation was terminated by the expiration of the time fixed by the stat- ute as the life of the corporation, and the corporation was thereby dissolved. It was held that by such dissolution the l>roi)erty and rights of the corporation became vested in its members, who might, as tliej^ did, afterward reincorporate and resume possession of the property, and administer the trust vested in the former corporation. Cong, of Roman Catholic Church v Texas R. Co., 41 Fed. 5(i4.

Dissolution, State Law Superior to Church Law. In the Matter of the petition of the Third Methodist Episcopal Ch. in the city of Brooklyn, 07 Hun (N. Y.) 80, an order dis- solving the corporation was sustained, although not made in accordance with the obligation of the Discipline of the Methodist Episcopal Church. ''No church Discipline can supersede the law of the State."

Diversion of Trust. A religious corporation holding prop- erty charged with a trust for certain purposes can no more divert it to other and inconsistent uses, even by due corpo- rate action, than can an}' other trustee. When such use is for the promotion of the doctrines and discipline of some particular denomination, courts will prevent diversion to the support of a different and inconsistent one, if even a single individual legally interested objects. Cape v Ply- mouth Congregational Church, loO Wis. 174. See also Martin v Board of Directors of German Reformed Ch. of Peace of Washington County, 149 Wis. 19.

Government. When a church has been incorporated, the

COG THK CIVIL LAW AND THE CHUKCU

regulations and customs of the connnuuiou to which it be- longs regarding the disi)osition of secular business will be respected by the courts so far as possible; and if the mode of government in force in the denomination at large is not by congregations, but by superior clerical personages, as semblies, synods, councils, or consistories, the authority of these will not be displaced if it can be upheld consistently with the laws of the sovereignty. Klix v St. Stanislaus Church, 137 Mo. App. 347.

Incorporation. The holding of the meeting, the election of trustees, and the execution of the certificate in accordance with the statute constitute the substantial requirements to create a corporation, although the recording is necessary to its complete consummation. An error in recording or the loss of one or more seals after they were legally and properly affixed, would not prevent the corporation from taking effect as such. Trustees, St. Jacob's Lutheran Church v Bly, 73 N. Y. 323.

North St. Louis Christian Church v McGowan, 62 Mo. 279, involved several questions relating to the effect of incorpora- tion. It seems that at a regular meeting of the congregation the majority voted to incorporate the society. According to the rules of the denomination, this was held binding on the entire congregation, including the minority. It was also held that the clerk's list of members contained presump- tively the names of all persons belonging to the congrega- tion. The incorporation was sustained.

Incorporation, Collateral Inquiry. The validity or regu- larity of proceedings for the incorporation of a religious society cannot be determined In'^ the surrogate in a proceed- ing on an application for the jji'obate of a will. Matter of Arden, 20 St. Rep. (N. Y.) 8G5.

Incorporation, Validity, How Questioned. The validity of the incorjjoration of a religious society cannot be drawn in question by a private suitor in a collateral proceeding. The appropriate remedy is by writ of quo warranto at the suit of the attorney-general, or perhaps a prosecuting

RELIGIOUS CORPORATIONS 607

attorney. Klix v St. Stanislaus Church, 137 Mo. App, 347.

A person subscribing to a fund being raised for the pur- pose of erecting a church edifice may, in an action against him on his subscription, contest the validity of the incorpo- ration of the society. In First Baptist Church v Rapelee, 16 Wend. (N. Y. ) G05, it was held that a certificate of incor- poration could not be acknowledged before a commissioner of deeds, and having been so acknowledged such certificate was defective.

Liability for Debt. The trustees borrowed money and gave their j)romissory note therefor, in which the signers were described as trustees, and the note was given for and on behalf of the church. Neither the loan nor the note was authorized by a vote of the trustees, and the note was signed by them without any meeting or formal action. It was held that the society was not liable on the note. Dennison v Austin, 15 Wis. 334.

Liability for Injuries Caused by Negligence of Employee. An action cannot be maintained against a religious corpora- tion to recover for injuries sustained by reason of the negli- gence of an employee of the corporation where there is no allegation that such employee was not fully qualified for the work he was engaged to perform, or that there has been any negligence on the part of the officers of the corporation in his selection. The defendant was organized as a mission- ary society. It had no funds except those contributed from time to time by friends for the purpose of carrying on the missionary work. The donors selected this society as the trustee to carr}^ on missionary work. The estate, funds, and property of the corporation were impressed with the trust, and the court said it was not lawful to divert these funds from the objects for which they were contributed and use them in the payment of damages for a personal injury re- ceived by a stranger at the hands of an agent not shown to be unworthy or unfit for the purposes for which he was employed. Funds contributed for a public charity cannot

008 THE CIVIL LAW AND Till: CHURCH

be used for the payment of damages for injuries resulting from the negligence or misconduct of the managers, agents, or employees of the corporation or persons charged with the duty of administering the trust. Haas v Missionary Society of the Most Holy Redeemer, 6 Misc. (N. Y.) 281; see also McDonald v Massachusetts General Hospital, 120 Mass. 432.

Liability for Injuries to Employee. In Bruce v Central Methodist Episcopal Church, 147 Mich. 230, it was held that the church was liable to an employee of a contractor, en- gaged in decorating the church building, for injuries sus- tained by reason of the breaking of defective scaffolding furnished by the agents of the church ; and the fact that the society administered a charitable trust for the benefit of its members and others did not exempt it from liability' for the acts of its agents.

Majority, When Action Binding on Minority. The acts of the majority of a corporation are, as a general rule, binding on the minority. But sucli acts to be so binding must be conformable to the charter of the corporation, or they are of no effect against a dissenting minority. The charter of every corporation is its constitution, which protects the rights of all the corporators, majority and minority. Act- ing within the charter, the corporation majority is sov- ereign ; but seeking to transcend it, the majority become powerless. Langolf v Seiberlitch, 2 Parson Eq. Cas. (Pa.) G4.

Majority's Right. A majority of the members of an unin- corporated society became incorporated on the 3rd of Sep- tend)er, 1831. The minority became incorporated in Novem- ber, 1831. It was held that the corporation composed of the majority became the real corporation and succeeded to the property rights of the unincorporated society, includ- ing land convej^ed to it for church purposes. Baptist Church, Hartford v Witherell, 3 Paige Ch. (N. Y.) 296.

Members. When a corporation is formed for religious pur- poses every one who belongs to the congregation becomes,

RELIGIOUS CORPORATIONS 609

by force of the statutes, a member of the corporation, even though a few individuals are named in the charter as trus- tees or directors, and that document is issued to them. A church or congregation by incorporating is constituted a civil political institution, composed of the members of the congregation, and the sovereignty of the body, so to speak, vests in and remains with the majority, regard- less of whether they adhere to the orthodox faith of the sect and continue in fellowship with its synods, presby- teries, or other governing bodies, or become heretical and recusant. Klix v St. Stanislaus Church, 137 Mo. App. 3i7.

Member Expelled, No Claim for Damages. The plaintiff, who had been excommunicated by the congregation, brought an action against the corporation to recover for money con- tributed by him for the purchase of property. It was held that the corporation was not res]^onsible for the act of the congregation, and therefore not liable in damages to an excommunicated person. Reiuke v German Evangelical Lutheran Trinity Church, 17 S. Dak. 2()2.

Member's Expulsion. A religious corporation has no cap- ital stock. Its constitution and b3'-laws, as well as the authorizing statute, require all jjowers relating to business and property to be exercised by a board of trustees, only two thirds of which must be members of the church. These trustees, whose action the congregations by which they are elected may reject or ratify, have nothing to do with the matter of discipline or expulsion, and the cor])oration is not bound b}' nor answerable in damages for the .conduct of unofficial members. Reinke v German Evangelical Lu- theran Trinity Church, 17 S. D. 202.

Member's Liability. Members are not individually liable on a judgment and execution against tlie corporation. Rich- ardson V Butterfield, 00 Mass. 191.

Members, When May Not Be Excluded. The corporation has no power to try for any moral delinquency or to disfran- chise a corjjorator in consequence thereof. Mandamus is

610 THE CIVIL LAW AND THE CHURCH

uot the proper remedy in such a case, but the corporator has au adequate remedy at h\w. People ex rel Dilcher v German United Evangelical Ch. of Buflfalo, 53 N. Y. 103.

Michigan Rule. In Michigan a religious society does not become a corporation merely by selecting trustees. Allen V Duffie, 43 Mich. 1.

Minors as Members. Where a religious corporation con- sists of certain persons and their families it was held that the minor sons as members of the father's family became members of the corporation, and continued such after arriv- ing at full age until they changed their membership in some mode provided by statute. Bradbury v Gary, 5 Me. 339.

New Organization, Effect. "The members or some of the members of an insolvent or dormant corporation nuiy or- ganize a new corporation for the promotion of the same purposes to which tlie old one is dedicated, without becom- ing chargeable with its debts or obligations." "On the other hand, the mere change in the name of a corporation has no effect upon its legal status or upon the rights of creditors." Allen v North Des Moines Methodist Episcopal Church, 127 la. 96.

New York Rule. Under the New York religious corpora- tions act of 1813 the corporation "consists not of the trus- tees alone, but of members of the society; the society itself is inc<)r[)orated, not merely the trustees, and its members are the cori)orators." Gram v Trussia Emigrated Evan- gelical Lutheran German Society, 36 N. Y. 161.

Object and Purpose. "A cori)oration is formed for the ac- quisition and taking care of the ])roperty of the church, and is in no sense ecclesiastical in its functions." Hundley v Collins, 131 Ala. 234.

The only and primary object of the corporation is the acquisition and taking care of property. The rules of the church as to the discipline of members have no relation to the corporate property or corporate matters. Sale v First Regular Baptist Church, Mason City, 62 la. 26.

Organization, Notice. Tlie minister refused to read a notice

RELIGIOUS CORPORATIONS 611

of a meeting for the incorporation of the society, and the notice was thereupon read by one of the members at the close of a regular service, after the benediction, and before tlie congregation had dispersed. This was held to be a sufficient notice of the meeting, as the statute did not require a notice to be given by a particular officer or person. West Kosh- konong Cong, v Otteson, 80 Wis. 62.

Pew-Owners. Under the Maine revised statutes of 1871, chap. 12, pew-owners of a meetinghouse were authorized to form a corporation, and such corporation might control the meetinghouse. Mayberrj^ v Mead, 80 Me. 27.

Presumption. A religious society that in' good faith has exercised corporate powers for ten years must be treated as a legal incorporation, even though the proceedings taken to incorporate it were in themselves fatally defective. First Congregational Church, Ionia v Webber, 54 Mich. 571.

Promissory Note. A promissory note purporting to be made by the corporation and signed by its president, secre- tary and treasurer was held not enforcible (against the cor- ])oration) without proof that the note was made bj- autlior- ity of the corporation. Trustees have no power to bind the corporation by individual action, but the board must act as a body. People's Bank v St. Anthony's Ch. 10!) N. Y. 512.

Property, Limitation. If a corporation takes land by grant or devise, in trust or otherwise, which, by its charter, it cannot hold, its title is good as against third persons and strangers; and the State alone can interfere. If the cor- poration exceeds the prescribed amount though it be by an original purchase, nobody but the State can interfere with the holding of the property which it acquires, and it is a matter of which individuals cannot avail themselves in any way. De Camp v Dobbins, 29 N. J. Eq. 36.

It is too late on apjjeal to raise, for the first time, the question that a corporation has already acquired propertj' up to or exceeding the statutory limit. Such a question cannot be raised collaterally, and tlie burden of proof as to

612 THE CIVIL LAW AND THE CHUECH

the amouut of property already acquired is not on the corporation. Conkliu v Davis, 63 Conn. 377.

Religious Connection. Tlie mere fact that a corporation is under the control of members of a particular cliurch does not make it a religious corporation. Baltzell v Church Home & Infirmary, Baltimore, 110 Md. 244.

Removal to New House. The society erected and moved into a new meetinghouse. The act of going from the old meetinghouse to the new one was the act of the society, and they took with them all the rights of the society and body corporate, vacating none, leaving none behind; so that no persons, after such removal, could remain behind and claim to be the ancient, or remains of the ancient society. Filing a new certificate of incorporation under the mistaken sup- position that the first certificate had been lost, simply con- tinued the old society and was not a new incorporation. Miller v English, 21 N. J. Law, 317.

Roman Catholic, Charter. Application for charter which was opposed by the bishop of the diocese. The applicants were of Polish birth, and the purpose for which a charter was asked was stated to be "the support of public worship according to the faith, doctrine, discipline, and usages of the Roman Catholic Church." The bishop alleged that the object was not as so stated, but is really to secure the incor- poration of a schismatic body which has received the cen- sure and condemnation of tlie duly constituted authorities of the church mentioned; that under the canon law of that church no such organization as that proposed can be formed except with the consent of the ordinary or bishop, and that he has not given his consent, and will not do so ; that ])ublic worship according to the usages of the Roman Catholic Church cannot be conducted without a regularly ordained priest in good standing, whose attendance could not be obtained in the present instance ; and, finally, that the pos- session of a charter would only make it possible for a group of factious, turbulent, and designing persons to delude Cath- olics of Polish birth into the idea that this was a regularly

RELIGIOUS CORPORATIONS 613

organized Roman Catholic congregation. These allegations were admitted by counsel for the applicants. The court said it had no concern with the general policy of the Roman Catholic Church, and could take no notice of its schisms and differences on points of doctrine and discipline. But while a scliisniatical body of the church had a legal right to a separate incorporation, its application for a charter must be done openly and with due knowledge of the character of the body, but such a body could not be permitted to apjiro- priate the name, and with it the appearance of regularity which belongs to the duly established organization. The name proposed attaches to and covers the doctrine, disci- pline, and usages of the general church with which it is associated. In the use of that name the body which had an unqualified right to it was entitled to protection against its usurpation by others who have no such right, and who only seek to employ it for purposes of deception. The applica- tion for a charter was refused. Re Charter Church of Mother of God, Czenstochowa, 5 Lack. Leg. N. (Pa.) 128.

Status. Religious societies are, in this State and nation, civil bodies politic, and unlike the ecclesiastical corpora- tions of England, which are composed only of clericals, such as archbishops, deans, monks and abbots, and amenable only to si)iritual courts, Klix v St. Stanislaus Church, 137 Mo. App. :U7.

Status, As Compared with English Parson. A religious cor- poration in this country stands in the place of the i)arson in England, who, as a corporation sole, holds the legal title to the estates of the church. But those societies could not, at common law, be seized under writs of execution directed to the sheriff. Beam v First Methodist Episcopal Church, Lancaster, Pa., 3 Pa. L. J. Rep. 343.

Taxation. The property of a religious corporation is not exempt from assessment for local improvements. Harlem Presbyterian Church v N. Y., 5 Hun. (N. Y.) 442.

Three Elements. The statute recognizes three distinct classes or bodies as existing in the religious corporation

614 THE C\y\L LAW AND THE CHURCH

and defines their relative powers and dnties: First. The church, or spiritual body, consisting of the office bearers and conmninicants. Second. The congregation, or electors, embracing all the stated hearers or attendants on divine worship who are competent to vote for trustees. Third. The trustees of the corporation, who have the control of all its temporalities, to be improved, used, and managed by them for the benefit of all the stated hearers and the com- municants as far as practicable.

The church, or spiritual body, as to its doctrine, govern- ment and worship is to be governed and regulated by its OAvn jieculiar rules, which neither the trustees nor the con- gregation have any right to interfere with or alter without the consent of tlie church itself. Lawyer v Cipperly, 7 Paige Ch. (N. Y.) 281.

Trustee. A corporation cannot act as trustee in relation to any matter in which it has no interest. But where prop- erty is devised or granted to a corporation, partly for its own use and partly for the use of others, the right of the corporation to take and hold the property for its own use, carries with it, as a necessary incident, the power to exe- cute that part of the trust which relates to others. Re Howe, 1 Paige Ch. (N. Y.) 213.

Trustees, Powers. In a corporation organized under the New York religious corporations act of 1813 the trustees elected and acting as such, and their successors, are vested with the custody, possession, management, and legal con- trol of all the property and temporalities belonging to their particular society, in the same manner and to the same ett'ect as the directors of private corporations are entitled to the possession and control of their property, and may, therefore, maintain an action to recover the possession of the church property from which they have been evicted by the members of the society. Members of the society cannot forcibly take possession of the church building of the corporation and hold and control it in opposition to the authority, will, and requirement of the trustees. All such acts of iudividiuil

RELIGIOUS COKrOKATlOXS 015

corporators, or of the whole ho(h' of the corporation, exclu- sive of, aud in opposition to the trustees, are illegal and all such persons so acting are simply trespassers. First Metliodist Episcopal Churcli, Attica v Filkins, a T. & C. (N. Y.) 271).

Trustees, Majority Must Meet and Act. Where there is a (lefinite body in a cori)oration the majority of that definite body must not only exist at the time when any act is to be <lone by thenj, but a majority of that body must attend tlie assembly where the act is to be done. Moore v Rector, St. Thomas, 4 Abb. N. C. (N. Y. ) 51.

Unauthorized Sale of Property. If a religious corporation sells and conveys real j)roi)erty without an order of the court, such a sale and transfer maj- be rescinded upon the return, or offer to return, the consideration received. Asso- ciate Presbyterian Congregation, Hebron v Hanna, 113 App. Div. (N. Y.) 12.

Who Constitute. In the Protestant Episcopal Church the vestry, and not the congregation, constitute the corporation. Stubbs V Vestry of St. John's Ch. 1)0 Md. 207 ; see also Tarter V Gibbs, 24 Md. 323.

A religious corporation, under the New Y'ork statute, con- sists not of the trustees alone but of the members of the society. The society itself is incorporated, and its mem- bers are the corporators. The relation of the trustees to the societ}' is not that of a private trustee to the cestui que trust, but they are its officers, witli the powers of the officers of other corporations. Such societies do not belong to the class of ecclesiastical corporations in the sense of the Eng- lish law, but are to be regarded as civil corporations gov- erned by the rules of the common law. Bellport Parish v Tooker, 21) Barb. ( N. Y. ) 250.

As to who are corporators, see Burrell v Associate Re- formed Church, Seneca, 44 Barb. (X. Y.) 282, holding that the corporation consists of all of the members of the society entitled to vote in the election of trustees.

The trustees, deacons, churchwardens, or other similar

016 THE CMVIL LAW AND THE CHiaJCH

officers of an mriiicorpornted church, if cdtizciis of the United States, are a corporation for the purpose of taking and hokl- ing in succession all real and personal estate given to their church. Bean v Christian Church, South Danbury, Gl N. H. 260.

Under the Maryland act of 1802, providing for the incor- poration of religious societies, the trustees and not the con- gregation constitute the corporate body. African Methodist Bcth(4 Churcli, Baltimore v Carniaclc, 2 Md. Ch. 143.

Young Men's Christian Association. Tliis association was held not a religious corporation within the New York Trans- fer Tax Law as amended in 1900, and therefore not exempt from the i)ayment of a transfer tax on a legacy. Ee Watson, 171 N. Y. 256.

In Matter of Fay. 37 Misc. (N. Y) 532, it was held that the association (incorporated under a special act) was not a religious corporation within the meaning of tlie Transfer Tax Act, and was therefore not exempt from taxation under tliat statute.

Young Women's Christian Association. The work of the Young Women's Christian Association, in accordance with tlie objects of its incorporation, includes tlie holding of gospel services, teaching English to foreigners, and furnish- ing food and lodging for women passing througli the city, for which compensation is received from those who are able to pay. Its general object is religious and charitable, and its ])ro])erty exclusivel}^ devoted to that object would un- doubtedly be exempt from general taxation under the New Hampshire statutes. It is therefore entitled to exemption from the inheritance tax. Carter v Whitcomb, 74 N. H. 482.

RELIGIOUS ESTABLISHMENT

Defined, 617.

Defined. A religious establishmeut is wliere tlie State prescribes a formulary of faith and worship for the rule and government of all the subjects. Muzzy v Wilkins, Smith's N. H. Rep. 1.

617

RELIGIOUS FREEDOM

American rule, 618.

Charitable institution.s, 618.

Civil courts, limitation of power, 619.

Civil courts, 619.

Compulsory church attendance, 619. — -Discrimination not allowed, 620. — <:-<t;imitation, 620.

Louisiana, 621.

Massachusetts, 621.

Memorials, 622.

Minor children, 622.

Officer, 622.

Oregon, 623.

Pennsylvania, 623.

Polygamy, 623.

Sectarian controversies, 624. ,_,JJeited States, 624.

Virginia, 625.

Voluntary basis, 625.

American Rule. In this conutrj' the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The hnv knows no heresy, and is coniniitted to tlie support of no dogma, the establishment of no sect. The right to organ- ise voluntary religious associations to assist in the expres- sion and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. Watson V Jones, 13 Wall. (U. S). G79.

Charitable Institutions. In Keg. v Ilaslehnrst, 13 Q. B. D.

618

KELIGIOUS FEEEDOM GIO

(Eng.) 253, the court sustained the einployinent of a Roiuaii Catholic clergymau to minister to the religious wants ot* the Roman Catholic inmates of the workhouse. Citing the poor law amendment act of 1834, which, in substance, pro- vided that no rules or orders of the I'oor Law Commis- sioners should oblige any inmate of a workhouse to attend any religious service contrary to his religious princi]tles, and that it should be lawful for any licensed minister of the religious persuasion of any inmate to visit the work- house for the purpose of attording religious assistance to such inmate and instructing his child or children in the principles of their religion.

Civil Courts, Limitation of Power. Religious freedom and religious tolei'ation would not long survive if one member of a religious organization, feeling himself aggrieved in some matter of religious faith or church polity, could suc- cessfully appeal to the secular courts for redress, and have these courts determine that one faction of a religious or- ganization was orthodox, and living and acting in conform- ity' with the organic creed of the church, and another faction was violating and disregarding such organic law. Wehmer v Fokenga, 57 Neb. 510.

Civil Courts. Freedom of religious profession and wor- ship cannot be maintained, if the civil courts trench upon the domain of the church, construe its canons and rules, dictate its discipline, and regulate its trials. Chase v Cheney, 58 111. 509.

Compulsory Church Attendance. Testatrix bequeathed to a son a sum of money to be paid in installments, on condi- tion that he regularly attend a specified church "when not sick in bed, or prevented by accident or other unavoidable occurrence." It was held that this bequest did not violate the provision of the Wisconsin constitution securing reli- gious toleration. The provision in the will was not against public policy. Testatrix had a right to impose such a con- dition in connection with the bequest. Re Paulson Will, 127 Wis. 612.

620 THE CIVIL LAW AND THE CHURCH

Discrimination Not Allowed. I>et'<)i*e the constitution Jews and Gentiles are equal ; by the law they must be treated alike. It was held tliat an ordinance of the City Council of Shreveport, Louisiana, i)ro]iibitins^ the transaction of cer- tain kinds of business on Sunday, but exempting from the operation of the ordinance persons who kept Saturday as the Sabbath, was invalid. Shreveport v Levy, 2G La. Ann. 671.

Limitation. Religious liberty does not include the right to introduce and carry out every scheme or purpose which persons see tit io claim as part of their religious system. While there is no legal authority to constrain belief, no one can lawfully stretch his own liberty of action so as to inter- fere with that of his neighbors, or violate peace and good order. Matter of Frazee, 63 Mich. 396.

By the constitutional provision guaranteeing religious freedom, unlimited freedom of conscience and religious belief and profession is secured to every person, but it affords no justification for acts or practices in religious services which disturb the public peace, or disturb others in their religious worship ; and a statute prohibiting acts having a tendency to endanger the public peace, or to dis- tract the attention and interrupt the quiet of others, is not in conflict with this constitutional provision, although the prohibited acts may form a part of the services of religious worship. Religious liberty, as recognized and secured by the constitution, does not mean a license to engage in acts having a tendency to disturb the public peace under the form of religious worshi]), nor does it include the right to disregard those regulations which the Legislature have <leemed reasonably necessary for the security of public order. A reasonable measure of prevention to avoid dis- turbance is not an infringement of constitutional rights. State V White, 64 N. H. 48, holding that beating a drum in a compact part of the town without the command of an authorized military officer, as required by law, could not be justified by the claim that the act was done in accordance

RELIGIOUS FREEDOM G21

with the defendautKs' sense of religious duty and in worship- ing God according to the dictates of their own consciences, and that the}^ were not disturbing the public peace or the religious worship of others.

Louisiana. In the treaty of cession (1803) the First Con- sul (Napoleon Bonaparte) of the French Republic exacted a stipulation in favor of the inhabitants of the ceded terri- tory, that they should be incorporated into the Union, and admitted as soon as possible, according to the principles of the federal constitution, to an enjoyment of all the rights, advantages and immunities of citizens of the United States, and that in the meantime they should be maintained and pro- tected in the free enjoyment of their liberty, property, and the religion which they professed. This stipulation was personal to every inhabitant of the countrj^ in relation to his property and the religion he might profess. He was solemnly guaranteed the free enjoyment of his religious opinions, whatever they might be. It was not a stipulation in favor of any particular church or religious establish- ment, but a full guaranty to every inhabitant of the ceded ])rovince that he shouhl not be molested on account of his religious belief or form of worship. No man can be molested, so long as he demeans himself in an orderly and j)eaceable manner, on account of his mode of worship, his religious opinions and profession, and the religious functions he may choose to perform, according to the ritesi, doctrine, and dis- cipline of the church or- sect to which he may belong, and this absolute immunity extends to all religions and to every sect. Wardens of the Church of St. Louis v Blanc, 8 Rob. Re. (La.) 52.

Massachusetts. The Declaration of Rights in the Consti- tution of Massachusetts was intended : "1. To establish, at all events, liberty of conscience and choice of the mode of worship. 2. To assert the right of the State, in its political capacity, to require and enforce the public worship of God. 3. To deny the right of establishing any hierarchy, or any power in the State itself, to require conformity to any

622 THIO C1\'IL LAW AND THE CHURCH

creed or formulary of worship." Adams v Howe, 14 Mass. ;54().

Memorials. If pious persons choose, as an incident of their house of worship, so to construct, or decorate it as to con- tinually call to mind deceased persons noted for piety or devotion, it in no way transgresses their franchise. Cush- nian v Church of Good Shei)herd, 188 I*a. St. i^S.

Minor Children. It is the parent's duty, as well as his right, to give his children moral and religious instruction. This parental authority, however, is alwa3's for the good of the children, and therefore is not absolute in all things or desi)otic. It must at all times be exercised in subservience to the laws and to the rights of others. He dare not enforce it to commit acts of idolatry or blasphemy. He dare not force it to abandon the paths of innocence and virtue, and comi)el it to worship at a temple dedicated to vice, corrup- tion, and abomination. Against any such parental control our constitution and laws would at once interpose their authority and wrest the child from the dangers of such false teachings and from the influence of such uuholy opinions and practices. All parental authority must, in every well- regulated. Christian community, be subject to its institu- tions and its laws. Parental authority is human authority. No lawmaking power can confer upon parents the right to control or interfere with the rights of conscience of a minor child who has arrived at the years of discretion. A father has no right to control or interfere with the rights of conscience of a minor child in relation to the worship of Almighty God. His exercise of parental authority so as to control or interfere with the rights of conscience of such minor child would be an exercise of hunmn authority so as to control or interfere with the rights of conscience in a particular case, whereas it is declared that it cannot be done in any case whatever. Commonwealth v Sigmau, 2 Clark (Pa.) 36.

Officer. The Constitution of Missouri, art. 2, sec. 5, de- clares that no i^erson can, on account of his religious opin-

RELIGIOUS FREEDOM G23

ions, be rendered ineligible to any office of trust or protit. This was held to apply to a guardian of a minor who was said to occupy an office of trust under the constitution. State ex rel Baker v Bird, 25o Mo. 569.

Oregon. The right of mankind to believe and teach such doctrines regarding religion as meet the approval of their consciences is recognized under our form of government as inherent, but it is freely accorded to every sect and denom- ination in the laud, and is so interwoven with the principles which underlie our political fabric that it cannot be taken away without the general consent or a violent revolution. The hiAV not only tolerates the privilege, but it protects every one in the enjoyment of it. The people are entitled as an incident to such right to form associations, adopt creeds, organize churches, and establish seminaries of learning for the advancement of their peculiar tenets of faith, and to ac- quire proi)erty and erect buildings to aid them in accom- plishing that end. Liggett v Ladd. 17 Ore. 89.

Pennsylvania. Under the rennsylvania constitution all men have a natural and indefeasible right to worship Al- mighty God according to the dictates of their own con- science, and no human authority can in any case whatever control or interfere with the rights of conscience. This law was not intended to exempt any religious society from the respect that is due to the organization and moral and social order of the State, from necessity of holding its land under the State, and according to its laws. But it does mean, that for its own internal order, and for the mode in which it fulfills its functions, it is to be a law unto itself, or have its law within itself, provided it keep within tl'.e bounds of social order and morality. McGinnis v Watson, 41 Pa. St. 9.

Polygamy. Bigamy and polygamy are crimes by the laws of all civilized and Christian countries, by the laws of the United States, and of Idaho, where the case arose. To call their advocacy a tenet of religion is to otfend the common sense of mankind. However free the exercise of religion

G24 THE CIVIL LAW AND THE CHURCH

maj^ be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by gen- eral consent as properly the subjects of punitive legislation. The statutes of the territory of Idaho excluding from the right of suffrage bigamists and polygamists, and any persons advocating plural marriages, were sustained as a valid exercise of legislative power. Davis v Beason, 133 U. S. 333.

Sectarian Controversies. Religious freedom is one of the distinguishing characteristics of our country. No one sect of Christians is, in law, entitled to preeminence over an- other; and all denominations of Christians, while they demean themselves peaceably, may equally claim the pro- tection of the law. Every religious sect is free to profess and to propagate its sentiments, to inculcate them by words and in writing, and consequently to display the errors of others. And while the various combatants confine them- selves to using the arms of reason alone, preserving good humor and Christian charity and forbearance toward each other, the peace of the State will not suffer, and the govern- ment and laws will protect them all. Doubtless more good than evil results from the diversity of religious opinions Avhich prevail at the present day, and from the contro- versies which exist between the different sects. Individ- uals are excited to search the Scriptures for themselves, and rival sects are more emulous to cultivate and display the virtue of the Christian character. Commonwealth v Bat- chelder, Thac. Cr. Cas. (Mass.) 191.

United States. Each individual within the jurisdiction of the United States, whether he be within tlie limits of a State or elsewhere, has a right to determine for himself all those questions which relate to his relation to the Creator of the Universe. No civil authority can coerce him to accept any religious doctrine or teaching, or restrain him from associating himself with any class or organization which promulgates religious teaching. WJiether he shall adopt any religious views, or, if so, wliat sluill be the char- acter of these views, and the persons with wliom he shall

RELIGIOUS FREEDOM 625

associate iu carrying out the particular views, are all ques- tions addressed to his individual conscience, which uo hu- man authority has the right, even in the slightest way, to interfere with, so long as his practices iu carrying out his peculiar views are not inconsistent with the peace and good order of society. Mack v Kinie, 129 Ga. 1.

For a sketch of the origin and adoption of the First Amendment to the constitution of the United States, see Reynolds v U. S., OS U. S. 145.

Virginia. Consistent with the constitution of Virginia the Legislature could not create or continue a religious estab- lishment which should have exclusive rights and prerog- atives, or compel the citizens to worship under a stipulated form or discipline, or to pay taxes to those whose creed they could not conscientiouslj^ believe. But the free exer- cise of religion cannot be justly deemed to be restrained by aiding with ecpuil attention the votaries of every sect to per- form their own religious duties, or by establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead. And that these purposes could be better secured and cher- ished by corporate powers cannot be doubted by any person who has attended to the difticulties which surround all vol- untary associations. Terrett v Taylor, I) ('ranch (U. S.j 43.

Voluntary Basis. Under our form and theory of govern- ment everj' ecclesiastical system rests on the voluntary j>rin- ciple, and the sui)port and maintenance of churches depend on voluntary contributions. No ecclesiastical organization in this country possesses legal ca])acity unless incorporated, or unless it is acquired by a conveyance of i)roperty in trust for the use and benefit of tlie church. The fourth section of the Alabama declaration of rights provides "that no one shall be compelled by law to attend any place of worship, nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for sustaining any minister or min- istry." State ex rel McNeill v Bibb St. Church, 84 Ala. 23.

See also article on Reliuious T()lerati<m.

RELIGIOUS GARB

New York, 626. Pennsylvania, 626.

New York. In O'Connor v Hendriek, 184 N. Y. 421, the coni't sustained the validity of an order made by the New York State Superintendent of Public Instruction proliibit- ing- teadiers from wearing a distinctive religious garb wliile engaged in the work of teaching in a public school. Two teachers affected by this order were members of the Sister- hood of St. Joseph, and they continued to wear the religious garb of the society after notice of the superintendent's order. They were held not entitled to recover compensation for services rendered while wearing such garb after notice of such order.

Pennsylvania. The religious belief of mauy teachers all over the commonwealth is indicated by their apparel. Quakers or Friends, Ommish, Dunkards, and other sects wear garments which at once disclose tlieir membership in a religious sect. Ministers or preachers of many Protes- tant denominations wear distinctively clerical garb. No one lias yet thouglit of excluding them as teachers from the schoolroom 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 announce- ment of a fact that the wearer holds a j)articular religious belief. Hysong v Gallitzin Borough School District, 104 Pa. 621). See also the article on Sectarian Instruction.

In 1805 an act was passed providing tliat no teacher in any public school of this commonwealth shall wear in said school, or whilst engaged in the performance of his or her dut}^ as such teacher, any dress, mark, emblem, or insignia indicating the fact that such teacher is a member or adher- ent of any religious order, sect, or denomination. The act was sustained in Commonwealth v Herr. 229 Pa. 132.

626

RELIGIOUS PRINCIPLES

Defined, 627.

Limits of inquiry, 627.

Defined. Keligious principles are those sentiments, con- cerning tlie relations between God and man, which may influ- ence human conduct. Of these perhaps the most influential hitherto has been the view entertained as to the probability that God would punish vice. A person's sentiments on that subject must be deemed part of his religious principles. It is urged that disbelief cannot be called religious principle. Perhajjs, if one denied the existence of a Supreme Being, it might in a proi)er sense be said that he had no religious principles, because he could not entertain auv opinion touch- ing the relations between God and man, unless a denial of any such relations might be so denominated. But to a j^er- son who believes in the existence of a Supreme Being there pertain necessarily, or at least probably, some views with regard to the relations between him and us, which modify the life of the individual. The mere fact that in those rela- tions he has discovered no divine purpose of punishment for specific acts does not militate against his possession of religious princij^les and among them are his belief, his dis- belief, and his doubt concerning those relations. State v Powers, 51 N. J. L. 4:}2.

Limits of Inquiry. No civil tribunal has the right to en- force a creed or system of doctrine or belief on any man, or to re(piire him to assent to any prescribed system of doc- trine, or to search out his belief for the purpose of restrain- ing or punishing it in any temporal tribunal ; but such a tri- bunal has a right to ascertain by competent evidence, what are the religious principles of any man or set of men, when, as may frequentlj^ be the case, civil rights are thereon to depend, or thereby to be decided. Hendrickson v Decow, 1 Saxtou, (N. J.) 577.

627

RELIGIOUS SOCIETIES

Building committee, 629.

By-laws, 629.

Change of denominational relations, 630.

Change of doctrine, effect, 630.

Chapels, 630.

Committee, defense in legal proceedings, 631.

Congregation and corporation, distinction, 631.

Congregational, 632.

Congregational, division, effect, 632.

Connectional relations, 633.

Consolidation, 633.

Constitution, 634.

Contract, 634.

Conveyance, presumption, 634.

Debts, 634.

Debts, when successor not liable for, 634.

Defined, 635.

Devise, diversion, 635.

Devise, New York rule, 635.

Dissolution, 636.

Diversion of property, 636.

Division, effect on property, 636.

Division, minority's right, 636.

Doctrine and worship, control, 637.

Freedom of organization, 637.

Illinois rule, 637.

Incorporation, 637.

Incorporation, certificate seal, 637.

Incorporation, how proved, 637.

Incorporation not necessary, 638.

Independent, diversion of trust, 638.

Individual rights, 638.

Joint incorporation, 638.

Liability, 638.

Liability of members, 638.

Majority, powers, 639.

Massachusetts rule, 639.

628

RELIGIOUS SOCIETIES 620

Meetings, 639.

Meeting, how called, 639.

Name, 639.

New York act of 1813, 640.

Organization, powers, 640.

Property, conveyance to members, effect, 640.

Property, how to be used, 641.

Quorum, 641.

Reincorporation, identity, 641.

Rules of order, 641.

School moneys, shai'ing in, 641.

Secession, 642.

Self-government, 642.

Separation, effect, 642.

Separation or independence, when impossible, 642.

Services, society may regulate admissions and conduct, 642.

Subscriber's right to prevent diversion, 643.

Threefold aspect, 643.

Two societies, one minister, 643.

Unincorporated, status, 644.

Union with another denomination, 645.

War claim, 645.

Who constitute, 645.

Withdrawal from sj-nod, effect, 645.

Building Committee. Two out of three members of a build- ing committee, appointed to erect a cLurcb edifice, made a contract for that jnirpose, in which they were described as a building committee. It was held that the two members of the committee who signed the contract were not person- ally liable thereon. The contract created an obligation against the society, and not against the individuals who signed as the building committee. Hewitt v Wheeler, 22 Conn. 557.

By-Laws. Wherever religious associations have been or- ganized to assist in the expression and dissemination of religious doctrine, and have created for their direction in matters of doctrine, church government, and discipline, tri- bunals within the association, the final and controlling elfect of the ecclesiastical polity thus formed upon the individual members and congregations and officers within the general

G30 THE CIVIL LAW AND THE CHURCH

association will not be questioned, bnt will be given effect to in the civil conrts. All who nnite themselves to such a body do so with the implied consent to submit to the system of ecclesiastical control, and are bound by it. First Presby- terian Church, Perry v Myers, 5 Okl. 809.

Change of Denominational Relations. In Bellport Parish v Tooker, 21) Barb. (N. Y. ) 25G, it was held that the society could change from a Congregational to a Presbyterian church.

"Every religious society, unless restrained by some special trust, by the general law were at libertj' to change their denomination, and profess and possibly to inculcate any Christian faith or doctrine, and adopt the form of worship most agreeable to themselves ; and by doing so, no forfeiture could be incurred." Attorney-General v Proprietors of Meetinghouse in Federal Street, 3 Gray (Mass.) 1.

Change of Doctrine, Effect. Where the constitution of a reli- gious society vests the power to make or repeal any rule of discipline in the General Conference, subject to the re- striction that no rule or ordinance shall at any time be passed to change or do away with the existing confession of faith, and prohibits any alteration of the constitution unless by the request of two thirds of the whole society, and the Conference, without such request, formulates sub.stan- tial changes in and additions to the confession of faith and amendments of the constitution, and on a vote of two thirds of the members of the society voting, but not of the society, declares said altered confession of faith and amended constitution adopted, such action is invalid, and the title and right to the i)ossession of the real estate of the society is in that part thereof which is acting in har- mony with the original constitution and laws, regardless of its numerical strength. Bear v Heasley, 98 Mich. 279; see the article on United Brethren in Christ.

Chapels. Chapels founded in connection with a congrega- tion or parish Avill not be allowed to cut loose from the church under whose care and auspices they were established,

RELIGIOUS SOCIETIES G31

aud carry with them the property acquired, iu ])art or in whole, by the contributions of the mother church or its members, or that which persons not connected with the organizations may have given for its support as an adjunct to the parent church. Rector, etc., Christ Church v Rector, etc., Church of the Holy Communion, 14 Fliila. (l*a.) 61.

Committee, Defense in Legal Proceedings. In Harbison v First Presbyterian Society, -10 Conn. 529, it was held that a committee of an ecclesiastical society' has jjower to defend at the cost of the society against legal proceedings endan- gering either the existence of the corporation or its rights or propertj'. It may thus defend against a petition for an injunction forbidding the sale of its pews. But such a com- mittee has no power to defend at the cost of the society against legal proceedings which affect only themselves per- sonally in their character as a committee. It may not so defend against proceedings to test the question whether the committee has been legally elected.

Congregation and Corporation, Distinction. The members of the society or congregation form the corporate body, such members being the corporators, and the trustees are mere officers of the corporation. The body or entity thus brought into existence is a civil corporation with such func- tions and powers as the statute confers upon it and its oflScers, and in no sense is it an ecclesiastical corporation. It is wholly independent in its existence, and in the control and management of its affairs, of all religious judicatories; it is a creature of the State, subject to such control as its own laws may impose ; and none of the provisions of the act are intended to disturb, interfere with, or regulate the ac- tions and powers of the numerous voluntary religious or- ganizations which exist among the people; but such bodies are recognized as existing, and are considered entirely spir- itual associations, distinct and separate from the body politic. Thus, in mere membership the same persons may be a religious society, holding to peculiar religious notions, having their own creeds and forms of worshijj, and at the

632 THi: CI\ IL LAW AND THE CHURCH

same time be members of the corporate body — the corpo- rators with rights, privileges, and interests which come from that rektion. The acts of 1875, chap. 79, and 1876, chap. 176, requiring the trustees to administer the property ac- cording to the rules and Discipline of the denomination, and prohibiting a diversion of the property, did not affect the nature of the title vested in the corporation, but they related wholly to the officers of the corporation. The church or congregation to which the corporation belongs is always a question of fact to be determined from the testimony which may be presented in a particular case, Isham v Full- ager, 14 Abb. N. C. (N. Y.) 363.

Congregational. A congregational societ}' is generally made up first of the church and next of those who worship with the church and favor the sauie views, and who assist in supporting the preaching and public worship of that church. The society, as such, often, perhaps generally, has no creed or published religious o]>inions distinct frou) the church; the church is the basis of the whole. This is true in the Congregational societies in this country, generally, whether orthodox or Unitarian. The ministers are generally- settled by the society;, but they become pastors of the church as well as of the societj^; and the creed or belief of the society is not to be sought in the constitution or by-laws, but in the creed or belief of the church with which said society is con- nected. Hale v Everett, 53 N. H. 1.

Congregational, Division, Effect. If the i)rinciple of govern- ment in such cases is that the majority rules, then the numerical majority of members must control the right to the use of the property. If there be within the congrega- tion officers in whom are vested the powers of such control, then those wlio adhere to the acknowledged organism by wliich the body is governed are entitled to the use of the property. The minoritj' in choosing to separate themselves into a distinct body, and refusing to recognize the authority of tlie governing body, can claim no rights in the proi)ei*ty from the fact that thev had once been mend)crs of tiic

RELIGIOUS SOCIETIES G33

church or coiigregatiou. This inliug admits of no inquiry into the existing religious opinions of those who comprise the legal or regular organization; for, if such were per- mitted, a very small minority, \Nithout any officers of the church among them, might be found to be the only faithful supporters of the religious dogmas of the founders of the church. There being no such trust imposed upon the prop- erty when j)urchased or given, the court will not imply one for the purpose of expelling from its use tliose who by regu- lar succession and order constitute the church, because they may have changed in some respect their views of reli- gious truth. Watson v Jones, 13 AVall. (U. S.) 679.

Connectional Relations. The American Primitive Meth- odist Society, located at Paterson, New Jersey, was not congregational in its form of government, but was affiliated with the Annual Conference of the Primitive Methodist Church. The local church had no written constitution, and none was needed to establish its connection with the gen- eral church. American Primitive Society v Pilling, 4 Zab. (X. J.j G33.

Consolidation. Corporations cannot consolidate without legislative authority'. An agreement of consolidation signed by the presidents of two corporations, incorporated under different acts, one, religious, organized under 2 K. L. 1813, chap. 60, and the other benevolent, organized under laws of 1848, chap. 319, and also signed by the secretary of the alleged consolidated corporation, there being no assent of the supreme court to the consolidation, nor any confirma- tion by the trustees of one of the corporations, is of no effect, and the corporations remain in being. Chevra Bnai Israel Aushe Yanove und Motal v Chevra Bikur Cholim Aushe Rodof Sholem, 24 Misc. (N. Y. ) 189.

The N. Y. act of 1873 chap. 176, which among other things authorized the consolidation of two or more religious so- cieties or corporations belonging to the same church or de- nomination did not permit the consolidation of two corpo- rations, one of which was Presbyterian and the other unde-

634 THE CIVIL LAW AND THE CHURCH

nominational. Stokes v Phelps Mission, 47 Hun (N. Y.) 570; see also Re Methodist Episcopal Society v Terry, 51 Hun (N. Y.) 104.

Constitution. A constitution for a voluntary society may be proper, as an organization, but it has none of the pow- ers or requisites of a constitution in i)olitical bodies, which emanates from a liigher j)ower than the Legislature, and always is supi)osed to be enacted by a ])ower superior to llie Legislature, iuid is nnchangeable excejtt by tlie body which established it; but that body can cliange it at i)leas- ure. Smith v Nelson, 18 Vt. 511.

Contract. The society was unincorporated. In New Eben- ezcr Association v Gress Lund)er Company, 89 Ga. 125, it was held that with a building committee of the society, consisting of five niend)ers, authority to make bin«ling contracts in behalf of the committee would have to be exer- cised by a majority of the members, either directly or by delegating the i)Ower to a less number. One member alone could not contract without being authorized so to do by a majority.

Conveyance, Presumption. Where real estate is conveyed to trustees in trust for the use of a church or congregation, as a place of worship, whiih church or congregation is after- wanl incorporated, the court, after a great lapse of time, will i)resume a convej-ance from the original trustees, or their heirs, to the corporation. Dutch Church in Garden St. v Mott, 7 Paige Ch. (N. Y.) 77.

Debts. Dissenters are held liable for debts of the society contracted before they withdraw. Hosford, etc. v Lord, 1 Root ((\mn.) 325.

Debts, When Successor Not Liable For. The disbandment of an incorporated religious society following a sale of its property on foreclosure, and the incor[)oration of a new society composed in part of the same persons, and the pur- chase of the church property by the new corporation from the purchaser on the foreclosure sale, does not make the new corporation liable for the debts of the first corporation.

Ki:iJ<ihM s sorii:Tii:s <;:?.-)

Alh'ii V Noi-tli I >«'s Muiiu's Mrthodist I'|tiscnp;il Clnircli, IL'T hi. !m;.

Defined. A iclipoiis society or i'onjxi*t'^iitioii, as ivrog- iiiztMl liy iIm* New York n*Ii;rious corporations law, is what is usually dciioiuiMattMJ a poll parish in some of the nci^hhor- iiijj States. It conniHtH of a voluntary association of imli vi<luals or families. unitiMl for the pur|)ose of having a com- mon place of worship. an<l to provith' a pioper tcacln'r to insirut t tliem in r«'lij,'ioii> <|ortrines ami duties, ami to ad- minister the or<linan»e of baptism. Allhon;:h a church, or hody «»f professing <'hristians. is almost uniforiidy vin\- nectt'd with such a society or coiij;rej;atioii. the memUM's of the ( hurrh have no other or ;;realer rijjhts tiian any other memlH-rs of the soiiety who statedly attend with them for the ]uirpos<*K of divine worship. Baptist Church. Hartford V Witherell. 'A I'aip' Ch. ( N. Y. » 'JtM;.

|{«di;;ious so«ieties of wets and denominations are founded for the purpos4> of uniting top>ther in |»uldi<* religious wor- ship and relijfiotis services, acconliii^ to tin* cust«uii«ry. ha- liitiial. <»r systematic forms of the particular se<t or de- nomination, and in accordance witli. and to promote atnd enfone tlieir common faith and Iwlief. There cannot he a s<M't or denomination of r«dij;ious |M'rsons without any com- mon relij^ious iM'lief. State v Trusn*es. 7 Ohio St. r»S. hold- injj that a library asH<M'iation was not entitled to share in the pro««i'ds of the ri'iit of public land s«t apart by the stat«* to ai<l religious d«-iiominations.

Deviw. Diversion. \\ lieri* pro|M*rty was devis<-d to a reli- gious so(i»'ty for the |iurpos«* of maintaining; a fr-t-e srhool in a sjH'citied <listrict it was held that an a;:reement by the s«K-iety to divert this fund from the obje« t for whi(h it was ;:iven and iipply it to the support «if the ministry was void, beinj; a fraud upon this purpose. Bailey v 1^'wis. .'{ [)ay (Conn. I 4r»t>.

Devise, New York Rule. The New York r<dij;ious corj»ora- tions act of ITst did not authorize' a ndij^ious corporation to take l>y devi.sc. nor- was this power exteu(h'«l by the Kc

(>8() THb] riXlL LAW AND THE CHURCH

vised Statutes. Such a devise to a corporation cauuot be sustained as a charitable Tise. Ayres v Trustees, Meth- odist Episcopal Church, New York, 3 Sandf. Sup. Ct. (N. Y. ) 351.

Dissolution. No meeting of the board of trustees was neces- sary to authorize a majority to make an apjdication for the dissolution of the society under the act of 1872, chap. 421. Matter of Third Methodist Episcopal Church, Brooklyn, 07 Hun (N. Y.) 80.

The court declined to direct a dissolution of a corpora- tion known as the I'roprietors of the New South Meeting House in Boston against the protest of a minority of the members. Re New South Meeting House, Boston, 13 Allen (Mass.) 497.

Diversion of Property. It is not in the power of a majority of a denomination or congregation, however large the major- ity may be, by reason of a change of religious views, to carrj' its property to a new and ditferent doctrine. Smith et al V Pedigo et al 145 Ind. 301, 392. See also to same effect Mt. Zion Baptist Ch. v Whitmore, 83 Iowa 138.

Division, Effect on Property. The title to the church prop- erty of a congregation that is divided is in that part of the congregation that is in harmony with its own laws, usages, and customs as accepted by the body before the division took place, and who adhere to the regular organization.

In such a case it does not matter that a majority of any given congregation or Annual Conference is with those who dissent. The power of the majority, as well as that of the minority, is bound by the Discipline, and so are all the tri- bunals of the church from the lowest to the highest.

Upon the questions arising under the Discipline, as upon tliose arising under the articles of faith, the decisions of the ecclesiastical body are ordinarily final, and they will be respected and enforced by the courts of law. Krecker v Shirey, 103 Pa. St. 534.

Division, Minority's Right. An adhering minority of a local or territorial parish, and not a seceding majority, con-

KELIGIOUS SOCIETIES 037

stitutes the church of such parish to all civil purposes. Stebbins v Jeuuiiigs, 10 Pick. (Mass.) 171.

Doctrine and Worship, Control. A religious society owu- iug a meetinghouse may decide, without interference from the pew-owners, what doctrines shall be preached in their house, and what religious teachers shall be employed to preach them. Trinitarian Congregational Society, Frances- town V Union Congregational Society, Francestown, 61 N. H. 384.

Freedom of Organization. Religious societies are not free if they may not clioose their own form of organization. Thej' may organize as independent churches, and then their law is found in their own separate institutions, customary and written. Or they may organize as associated churches, and then their law is to be found in tlieir own rules, and in those of the associated organisms. McGinnis v Watson, 41 Pa. St. 9.

Illinois Rule. The incorporated religious societies are not to be classified with ecclesiastical corporations, as known to the English laws, which were composed entirely of eccle- siastical persons and subject to ecclesiastical judicatories, but, rather, with civil corporations, to be controlled and managed under the general principles of law api^licable to such corporations, as administered by the civil courts. Cal- kins V Cheney, 92 111. 403, Robertson v Bullions, 11 N. Y. 243.

Incorporation. A substantial compliance with the require- ments of the statute relating to incorporation is sufficient, and an error in recording the papers will not prevent the incorporation from taking effect. Matter of Arden, 20 St. Rep. (N. Y.j 805.

Incorporation, Certificate Seal. In Trustees St. Jacob's Lutheran Church, 73 N. Y. 323, the incorporation of the society was sustained notwithstanding the absence of seals on the certificate as recorded, it appearing that seals were affixed when the certificate was executed.

Incorporation, How Proved. The necessary certificate of

638 THP: civil LAW AND THE CHURCH

incorporation being lost, the incorporation was permitted to be proved by a certified copy of the record of the incor- poration. Second Methodist Episcopal Church of Green- wich V Hnniphrey, 49 St. Rej). 407.

Incorporation Not Necessary. "A church or religious so- ciety' may exist for all the i)ur])oses for which it was organ- ized independently of any incorjwration of tlie body under the statutes of the State." Hundley v Collins, 131 Ala. 234.

Independent, Diversion of Trust. If the trust is confided to a religious congregation of the independent or congre- gational form of government, it is not in the power of the majority of that congregation, however preponderant, by reason of a change of views on religious subjects, to carry the property so confided to tliem to the supi)ort of new and conflicting doctrine. It is the duty of the courts in such cases, when the doctrine to be taught or the form of wor- shi]) to be used is definitely and clearly lai<l down, to inquire whether the party accused of violating the trust is holding or teaching a ditferent doctrine, or using a form of worship which is so far variant as to defeat the declared objects of the trust. Watson v Jones, i:'. Wall. (U. S. i (h!).

Individual Rights. A collection of individuals as a church acquiring rights as a church and subsecpiently dissolving, have no individual rights growing out of the formal organ- ization. Rerrynian v Keese, 11 B. Mon. (Ky. ) 287.

Joint Incorporation. The Maryland act of 1802, chap. Ill, authorizing the incorporation of churches, is not to be re- stricted to individual churches or societies singly, but two ditterent denominations may unite and form one society or congregation within the meaning of the act. Neale v Vestry of St. Paul's (Miurch, 8 Gill. (Md.i llfl.

Liability. In Gray v Good, 44 Ind. Ai>p. C. Rep. 476, it was held that religious societies, whose trustees were incor- porated, were liable, as such, only for the acts of such trustees.

Liability of Members. All nuMnbers of an ecclesiastical societv willioiil local limits, formed bv voluntarv associa-

Ki:ij(ii()Ls s()cii:tii:s 639

tioii, puisiianl to section I'A of the (.'onuecticiit statute relat- in;; to ieli;;ious societies, are not individually liable lor tlie debts of such society. .lewett v Thames Bank, l(i Conn. 511.

Majority, Powers. The majority may direct and control ioMsislcnt ly Willi ilu- paiticular and j^eneral laws of the organism, bui not in Niolaiitm of them. Sutter v Trustees First Reformed l)nt»li Church, 42 I'a. no.S.

Kcli;;it)ns stniriies ;i(tin;4 as corporate boilies under the >ialule. mnsi l»e i^nveriieil by majorities, and the minority must submit m S4'«e(b'. This rule must, in the nature of ihin;;s. ajiply in all temporal alfairs. but dillerem-e in faith or d(M-lrim> may be determined on tlilfen'tit principles. .Miller V i:n^;lish, I'l N. .1. I^iw. .-'.IT.

The will of a majority when known and didy expre.s.sed iiiUHt eonclmle uidess .so palpably unjust as clearly to indi- cate an arbitrary, wanton, and destructive |)urpose. "It is the right of a majority to control in all civil alTairs. and no less in the inaiiagiMniMit of tlu> temporalities of a religious society than any other." <"o(»|ier n I'lesby. ('Iniuli of Sandy Hill. ;:l' Marb. i N. V. i I'l'i.'.

Massachusetts Rule. .V religious swiety is not a private corporation under the Massjichusetts act of !>.">•_'. rbap. :',\'2, see. tl.', relative to the im|tro|K'r or illegal usi- of a fram-hise. (iiHldaid v Smitlu'tt, '.\ (Jray t.Mass.i I H"..

Meetings. If a wn-iety vote to hold their annual meetings upon a <ertain day in ••a<h succet-ding year, a meeting ludd on a day so ti.xcil, without further muice. is not legal, even ifter a practice of holding them thus for tifty years. Ili- 1 ock \ lloskine. I hay's |{ep. (('onn.i t't'.\.

Meeting, How Called. If the charier «bM*s not provide a plan for ealling m«*<*tings of the siM-iety for the election of trusttt's, such a nu*eling may Im* called by a justice of the l»eace on the ap|>lication of live memlH'rs of the society. Ladd V Clements. 4 Cush. (Mass. i 4 7ri.

Name. In Pennsylvania it was held that a proceeding to change the name of a ndigious corporati<m could not Ik* en- tertained by the ciuirt without noiite of the applitatitui lirst

lilO THE CIVIL LAW AND THE CHUKCH

served on the auditor-general. Re First Presbyterian Church, Bloomfield, 107 Pa. St. 543.

Order changing name may be revoked. Re Abyssinian Baptist Church, 13 N. Y. Supp. 919.

New York Act of 1813. At the time of the passage of this act there existed in this State numerous denominations organized into voluntary associations, each distinct and separate from each other, differing in faith, doctrine, usage, and discipline, all independent, being entirely free from State interference and control. This was the situation from the early settlement of the country. None of these religious bodies possessed any of the capacities, attributes, and rights of a corporate body. In the law they had no legal existence. They were regarded as spiritual organ- izations, many of them embracing within their aims and purposes other objects, such as supporting schools and col- leges, founding charities. After the formation of the cor- poration the spiritual body remains, which is composed of the church members. The corporation entitj^ deals with the temporalities of the society only. Isham v Fullager, 14 Abb. N. C. (N. Y.) 363.

Organization, Powers. Where persons formed themselves in an association for religious purjjoses, without any lay organization, under the Massachusetts statutes or other- wise, but solely under the advice and direction of the min- isters and elders of their denomination, and entered into an agreement which the}^ afterward fulfilled, to support and maintain j)ublic worship, became a religious society under the statute, and became comi)etent as such to take grants or donations, and to prosecute an action of tres- pass to maintain and defend the possession of real estate granted or leased to them for their use as a religious society. Christian Society Plymouth v Macomber, 5 Mete. (Mass.) 155.

Property, Conveyance to Members, Effect. In Pennsylvania it was held that religious societies were in the nature of corporations, and that a grant to the members of such a

RELIGIOUS SOCIETIES 641

society, where the purpose is to promote the charity for which the society was organized, is a grant to the society itself. Brown v Lutheran Church, 23 Pa. St. 495.

Property, How to Be "Used. An incorporated society must appropriate its property for the payment of their debts; and if they neglect to do so, and permit the property to be wasted, the individual members inaj be liable. A meeting- house is not liable to be taken in execution for the debts of such society. Bigelow v Congregational Societj', Middle- town, 11 Vt. 283.

Quorum. The rule of the common law is where a society or corporation are composed of an indefinite number of per- sons, a majority of those who ai»])ear at a regular meetiui; of the same constitute a bodj' competent to transact business. Field V Field, 9 Wend. (N. Y.) 394, in which the rule is applied to a meeting of members of a local Society o!" Fi-ieiifls.

Reincorporation, Identity. The society was incorporated in 1838 under the Keligious Coi-porations Act of 1813. It was reincori)orated in 1851 under the same act. The earlier society had become practically dis.solved by failure to elect trustees. The surviving members reincorporated under another name. It was held that this would not affect the identity of the society, it appearing that the new society was the same as the one which was incorporated in 1838. The new society was, therefore, entitled to the property owne<l by the original society. First Society v Brownell, 5 Hun. (N. Y.) 4(;4.

Rules of Order. A religious society may prescribe sucii rules as they maj' think proper for preserving order when met for public worship, and they may use the necessary force to remove a ])erson who is disturbing the society by a willful violation of a rule. McLaiu v Matlock, 7 Ind. .525.

School Moneys, Sharing In. In Connecticut it was held that all the religious societies located within the parochial limits designated for the accumulation and distribution of school moneys, were the owners of such moneys, and entitled

042 THE CIVIL LAW AND THE CHURCH

to participate in the income thereof. Cargel v Grosveuor, 2 Root (Conn.) 458.

Secession. The majority of the members of a church can- not, having abandoned the religious faith on which it is founded, hold the church property against the minority ad- hering to such faith. The title to the property ac(piired by the association before the existence of a schism will remain in that faction of the association which abides by the doc- trines, principles, and rules of the church which the vinited body professed when the property was acquired. True Re- formed Dutch Ch. V Iserman, (34 N, J. L. 506; see article on Secession.

Self-Grovernment. The mend)ers of such a society, in the exercise of their religious liberty, have the undoubted right to adopt rules for their own church government, if not inconsistent with the constitution and laws of the land. Prickett v Wells, 117 Mo. Rep. 502.

Separation, Effect. It is a well-settled principle that when part of any religious association separate and establish a new society they cease to be members of the original society, and have no longer claim to their property. Trustees Asso- ciate Ref. Ch. V Trustees, Theological Seminary 4 N. J. Eq. 77.

Separation or Independence, When Impossible. Whenever a church or religious society has been originally endowed in connection with, or subordination to, some ecclesiastical organization and form of church government, it can no more unite with some other organization or become inde- pendent than it can renounce its faith or doctrine and adopt others. Indeed, in many churches, its ecclesiasticism, or form of church government, is an important, if not a fundamental, point of doctrine. It is based, in their view, upon a scriptural model or teaching. Roshi's App. G9 Pa. 462.

Services, Society May Regulate Admissions and Conduct. While it is usual in all Christian societies and places of public worship that all persons who choose may in fact

RELIGIOUS SOCIETIES 643

attend, and it is usual to set apart free seats, this is a matter of courtesj' and not of right. On the contrary, any religious society, unless formed under some unusual terms, may withhold this courtesy, and close their doors, or admit whom they choose onl}-; and circumstances may be easily imagined in which it would be necessary to their peace and order that they should exercise such right. Attorney-Gen- eral V Proprietors of Meeting House in Federal Street, Boston, 3 Gray, (Mass.) 1.

Subscriber's Right to Prevent Diversion. Where a person who, in pursuance of an agreement set forth in the subscrip- tion list, has furnished funds to aid in the construction of a building for a public purpose, and which funds have been applied to that purpose, he has a right to insist that such building shall not, without good cause, be converted to other uses; and he may maintain an action either in his own name, or on behalf of all the subscribers to prevent a violation of tlie contract. In this case the contributions were made for the erection of a church to be used by the Baptist Society, and it was also to be used for the purjjose of having lectures and concerts of a religious nature. It was held that the society could not, without the consent of the contributors, sell the property for mercantile purposes without any inten- tion to erect another church edifice. Avery v Baker, 27 Neb. 388.

Threefold Aspect. First. The congregation that usually meets together for religious worship and instruction. Second. The church, strictly so called, composed of those entitled to full church privileges. Third. The trustees or corporation. Worrell v First Presbyterian Church, 23 N. J. Eq. 96.

Two Societies, One Minister. It is not illegal for two reli- gious corporations to unite in the settlement of a minister if they agree to worship together; and the circumstance that one of the corporations is in an adjoining State makes no difference. Peckham v North Parish, Haverhill, 16 Pick. (Mass.j 274.

644 THE CIVIL LAW AND THE CHURCH

■Unincorporated, Status. In Magill v Browu, Fed. Cas. No. 8,952 (U. S. Cir. Ct. Pa.) (Brightly N. P. 347), Judge Bald- win expressed the opinion that in Pennsylvania there was no decision that an incorporation is necessary to give to any association of individuals the capacity of taking and enjoying an estate in perpetuity, either by the assumed name of the society or by trustees for their use. Neither is there an adjudged case turning on the statutes of mortmain by which any estate has ever been vested in the commonwealth by a forfeiture incurred in consequence of an alienation to a corporate body, without license, charter, or law, or any evidence that such license was ever granted by the pro- prietor or governor. The view which we feel constrained to take of the constitutions of 1701, 1776, and 1790, all of which remain in force so far as respects the rights of prop- erty, conscience, and religious worship, is this: that all bodies united for religious, charitable, or literary purposes, though without a written charter or law, are to be consid- ered as corporations by prescription, or the usage and com- mon law of the State, with all the attributes and incidents of such corporations by the principles of the common law, and entitled to all rights which are conformable to the cus- toms of the province. Incorporations were almost unknown, yet to all sorts of pious and charitable associations, in every part of the province, valuable bequests were made by those who were ignorant of the niceties of expression necessary to accomplish the object at common law. Nothing was more frequent than bequests to unincorporated congregations, without the intervention of trustees; and even when there was a corporation it frequently happened that the corporate designation was mistaken, or the trust vaguely defined, not- withstanding which, the testator's bounty was uniformly applied to the object.

In Wilkins v Wardens, etc., St. Mark's Protestant Epis- copal Church, 52 Ga. 351, it was held that a religious so- ciety which was not incorporated according to law, or which had not recorded its name and objects, as provided by the

RELIGIOUS SOCIETIES 645

Georgia code, could not be f^iied as such, but that its mem- bers were liable on its contracts as joint promissors or part- ners.

Union with Another Denomination. In Sutter v Reformed Dutch Church, 6 Wright (Pa.) 503, it was held that where a congregation of one denomination forms a union with an- other belonging to a different denomination, which had an established form of church government, the congregation is bound by the rules of the denomination which it has joined, and cannot afterward secede therefrom by a vote of the majority of its members.

War Claim. This society was incorporated in 1862. In a proceeding in the Federal Court of Claims to recover com- pensation for property alleged to have been lost or destroyed during the Civil War, it was held that the society was organ- ized for religious purposes, and that it liad not given aid or comfort to the rebellion. The societj- was held entitled to recover from the United States the value of the property lost. Hebrew Congregation Benai Berith Jacob v United States, 6 Ct. CI. (Ga.) 241.

Who Constitute. According to the legal and equitable principles of such associations, it is those who adhere or submit to the regular order of the church local and general (even though thej^ be a minority), that constitute the true congregation, and also the true corporation if it be incor- porated. Weinbrenner v Colder, 7 Wright (Pa.) 244.

Withdi'awal from Synod, Effect. The Zion's English Evan- gelical Lutlieran Congregation had power to withdraw and did withdraw from the District Synod of Ohio, and any action by the synod, subsequent to such withdrawal, assum- ing to suspend the minister of the congregation, A. S. Bartholomew, and providing for filling a vacancy in the pul- pit, was void. Members of the congregation not in sym- pathy with the withdrawal movement afterward held a meet- ing and assumed to amend the Constitution in relation to the election of trustees and declare the office of two trus- tees who had joined the withdrawal movement vacant, and

046 THE CIVIL LAW AND THE CHUKCH

elected others in their places. An action was brought l)y the new trustees against the original trustees, and the minister to secure possession and control of the church property. It was held that the congregation, having severed its relations with the district synod, the trustees who had been ousted had not vacated the offices, but were still the local trustees and entitled to the possession of the pro])erty and bound to administer the trust vested in them by the original deed and by the charter. Bartholomew v Lutheran Congregation, 35 Ohio 567.

RELIGIOUS TOLERATION

Connecticut, 647. Described, 647. Mormons, 648. Municipal ordinance, 648. Parental duty, 649. Pennsylvania, 649. Protestantism, 650.

Connecticut. It is the settled policy of this State to so frame its legislation that each denomination of Christians may have an equal right to exercise religious profession and worship, and to support and maintain its ministers, teach- ers, and institutions in accordance with its own practice, rules, and discipline; and this policy is conformable to the provisions of our constitution. Christ Church v Trustees of Donations and Bequests for Church Purposes: Trustees of Donations and Bequests for Church Purposes v Christ Church, 67 Conn. 554.

Described. In this country the full and free right to entertain any religious belief, to practice any religious prin- ciple, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe on personal rights, is conceded to all. The law knows no heresy and is committed to the support of no dogma, the establishment of no sect. l*ounder v Ashe, 44 Nebr. Re. 672.

"The belief of no man can be constrained, and the proper expression of religious belief is guaranteed to all." "'When religious belief or unbelief leads to acts which interfere with the religious worship and rights of conscience of those who represent the religion of the country, as established, not by law, but by the consent and usage of the community, and

647

(US THE CIVIL LAW AND THE CHUKCH

existing before the orgiiniz.ition of tlie go^'erament, their ;icts may be restrained b}' legislation, even if they are not ijidictable at common law." "The religious tolerance is never consistent with a recognized religion. Compulsory worship of God in any form is prohibited, and every nuui's opinion on matters of religion, as in other matters, is be- yond the reach of law." Lindenmuller v People, 33 Barb. (N. Y.) 548.

Mormons. In the Late Corporation of the Church of Jesus Christ of Latter Day Saints v United States, 136 U. S. 1, considering questions involved in the acts of Congress repealing the acts creating the Mormon Church, and dis- solving the corporation, and the right of the federal govern- ment to declare the property of the corporation forfeited to the United States in consequence of the jjersistent propa- gation of the doctrine and practice of polj^gamy, the court said : "One pretense for this obstinate course is that their belief in the practice of polygamy, or in the right to indulge in it, is a religious belief, and therefore under the protec- tion of the constitutional guaranty of religious freedom. This is altogether a sophistical plea. No doubt the Thugs of India imagined that tlieir belief in the right of assassina- tion was a religious belief; but their thinking so did not make it so. The practice of suttee by the Hindu widows may have si^rung from a supposed religious conviction. The offering of human sacrifice by our own ancestors in Britain was no doubt sanctioned by an equall}^ conscientious im- pulse. But no one, on that account, would hesitate to brand these practices now as crimes against society, obnoxious to condemnation and punishment by the civil authority. The state has a perfect right to prohibit polygamy, and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious conviction by which they may be advocated and practiced.

Municipal Ordinance. An ordinance in the city of New Orleans, adopted April 7, 1858, ijrohibiting the assemblage of colored persons for religious worship except under sped-

RELIGIOUS TOLEKATION 649

lied couditions was sustained iu African Methodist Epis- copal Church V New Orleans, 15 La. Ann. -141,

Parental Duty. The provision in the New York constitu- tion guaranteeing freedom of religious worship was not vio- lated by a provision in the penal code requiring parents to furnish medical attendance to their children in time of need, and a father was held not excused from liability for failure to furnish medical attendance by reason of his belief in divine healing which could be accomplished by prayer; that he did not believe in physicians and his religious faith led him to believe that the child would get \\ell by prayer. People v Peirson, 176 N. Y. 201.

Pennsylvania. In their frame of government of the Prov- ince of I'ennsylvania, together with certain laws agreed uj>on in England on the 25th of April, WS'l, will be found the following provision, which formed tlie .'>5th section : "That all persons living in this province, who confess and acknowledge the one Almighty and Eternal God, to be the creator, upholder and ruler of the world, and that hold themselves obliged in conscience to live peaceably' and justly in civil society, shall in no ways be molested or prejudiced for their religious persuasion or practice in matters of faith and worship, nor shall they be compelled at niiy time to frequent or maintain any religious worship, place, or min- istry whatever." In pursuance of this plan of government thus formed, and to carrj- out those great and enduring prin- ciples, will be found, in one of the first laws enacted by tliem, and entitled a law concerning liberty of conscience, the fol- lowing remarkable sentiments: "Almighty God, being only Lord of Conscience, Father of Lights and Spirits, and the author as well as object of all divine knowledge, faith, and worship, who only can enlighten the minds and persuade and convince the understanding of the people in due rever- ence to his sovereignty over the souls of mankind ; it is en- acted by the authority aforesaid, that no person at any time hereafter, living in this province, who shall confess and acknowledge one Almighty God to be the creator, upholder

C50 Tin: CIVIL J.AW AND THIG CHUKCH

and ruler of the world, and that professeth hliii or herself obliged in conscience to live peaceably- and justly nndei' the civil government, shall in anywise be molested or preju- diced for his or her conscientious persuasions, nor shall he or she at any time be compelled to frequent or maintain any religious worship, place, or ministry whatever, con- trary to his or her mind, but shall fully and freely enjoy his or her Christian liberty in that respect, without any interruption or reflection ; and if any person shall abuse or deride any other for his or her different persuasion and practice in a matter of religion, such shall be looked upon as a disturber of the peace and be punished accordingly." Here we have the sound doctrines and Christian precepts of William Penn, promulgated to the world as the true foundation of this new government. He was attached to the Society of Friends, and in a government framed by him and in laws dictated by his wisdom, we first find provi- sion made for true liberty of conscience in relation to religious worship. Before this time these principles had no place in the statute books of any people. They formed no part of the institutions of any country. They do not appear to have entered into the mind of any man except Lord Baltimore, who was a Roman Catholic, and had intro- duced the principles into Maryland. Here in this country for the first time they were made a part of the funda- mental law of a distinct people. Commonwealth v Sig- man, 2 Clark (Pa.) 36.

Protestantism. Religious toleration is the vital principle of Protestantism. Anderson v Brock, o Me. 243.

See also article on Religious Freedom.

RELIGIOUS WORSHIP

Basis of public recognition, 651.

Camp meeting, 651.

Defined, 652.

Duty of person attending, 652.

Majority may regulate, 6.53.

Musical instruction; singing, 6.53.

Orphan asylum, 653,

Place of, when exempt from taxation, 653.

Preserving order, 653.

Protestant meetings, 654.

Regulations, when illegal, 654.

Removing disturbers, 654.

Right of choice, 655.

Sunday school, when not included, 655.

Taxes, apportionment, 655.

Usage of congregation, 655.

Basis of Public Recognition. "The public recognition of religioiLs wor.ship is not based entirely', perhaps not even mainly, upon a sense of what is due to the Supreme Being himself as the author of all good and of all law ; but the same reasons of state policy which induced the govern- ment to aid institutions of charity and seminaries of instruc- tion will incline it also to foster religious worship and reli- gious institutions, as the conservators of public morals and valuable, if not indispensable, assistants in the preservation of public order." Trustees First Methodist Episcopal Church, ^outh v Atlanta, 76 Ga. 181.

Camp Meeting. Camp meetings are places of religious worship; it is the favorite meeting place in the pleasant season of the year of one of the largest and most influential religious bodies in the land. The meetings are conducted in the same manner as if held in church ; it is divine wor-

651

052 THE CIVIL LAW AND THE CHURCH

ship, and so understood by all Christian ]>eople. Common- wealth V Fuller, 4 l*a. Co. Ct. 429.

Defined. ''In modern times, the provision of a place and other means of public worship, according to the Protestant ideas, implies the assembling of a bodj^ of persons together for the general services of public worship, and for religious instruction : and as connected therewith, a select body, forming and connected together by the covenant, who con- stitute a church in full communion, invested, among other things, with the esjDecial duty and privilege of administer- ing the Christian ordinances." Attorney-General v Pro- prietors of Meetinghouse in Federal Street, Boston, 'S Gray (Mass.) 1.

Religious worship consists in the performance of ail the external acts, and the observance of all ordinances and cere- monies which are engaged in with the sole and avowed object of honoring God. Chase v Cheney, 58 111. 509.

The term should be construed to include within the bene- ficial operations of the statute every variety of religious faith and belief and every religious philosophy of life or death. As applied to a church which accepts the inspira- tion of the Scriptures and the divinity of Jesus, it means the assembling together of the members in a congregation, together with others that may choose to come, for the pur- pose of worshiping God according to the religious forms of the particular organization in question. Re Walker, 200 111. 566.

In i)opular usage "religious service" is synonymous with ''divine service." Proof that a congregation was assembled at a Methodist Episcopal church, at which there was preach- ing and taking up of a collection, is sufficient to show that there was a congregation of persons lawfully assembled for divine service. McDaniel v State, 5 Ga. App. 831.

Duty of Person Attending. It is the duty of every person attending church, no matter of what denomination, to pay that respect to the place and the people assembled there as not to disturb or molest them in their worship. Under the

RELIGIOUS WORSHIP 653

free constitution of this country no man is compeiled to go to any particular church, nor, indeed, to any church at all, but if he does so (as it is the duty of every man to go to some church), it is his duty to behave himself while there with decorum and respect. I'eople v Brown, 1 Wheelers Cr. Cases, 124.

Majority May Regulate. A few of the members, including some of the officers, but against the protest of the majorit}', placed a musical organ in the churcli for use in the service. This church was Congregational and independent. The majority of the officers and congregation had power to con- trol forms of worship and the minority did not possess power to place an organ in this church without the consent of the majority. Such action by the minority was unauthorized and illegal and constituted a perversion of the church prop- erty which could be restrained by the order of the court. Hackney v \'awter, 3'J Kan. 615.

Musical Instruction; Singing. "If the purpose of the meet- ing be solely for instruction in the art of singing, although confined to the singing of sacred songs, this would not be an assemblage met for religious worship." Adair v State, i;U Ala. 183.

Orphan Asylum. Religious services held in a colored orphan asylum on Sunday' for the inmates onl}', visitors not being admitted, do not constitute public worship. Asso- ciation for the Benefit of Colored Orphans in New York v New York, 104 N. Y. 581.

Place of. When Exempt from Taxation. The buildings owned by the association were held to be places of worship within the constitutional provision exempting such places from taxation ; also vacant land held pending its sale used for the general purposes of the association was exempt under the provision of the constitution allowing the exemp- tion of not more than one half an acre in cities. Common- wealth V Young Men's Christian Association, 25 Ky. Law Rep. 940.

Preserving Order. A churchwarden may take the hat off

054 THK ('1\'IL LAW AND THTO OHURCH

the head of one who sits there covered during divine serv- ice. Such act does not constitute an assault. Hall v I'lanner, 1 Levinz (Eng.) 196.

Protestant Meetings. In State v Scheve, (55 Neb. 853, involv- ing a question of the right to read the Bible and conduct religious service in the public schools, Judge Ames said : "Protestant sects who maintain, as a part of their ritual and discipline, stated weekly meetings, in which the exer- cises consist largely of prayers and songs, and the reading and repetition of scriptural passages, would no doubt vehemently dissent from the proposition that such exer- cises are not devotional, or not in an exalted degree wor- shipful, or not intended for religious edification or instruc- tion ; that they possess all these features is a fact of such universal and familiar knowledge that the courts will take judicial notice of it without formal proof."

Regulations, When Illegal. The authorities of a church adopted a regulation that no person should go out of the church during divine service without their express permis- sion. This regulation was held to be illegal, and an infringe- ment upon natural liberty and private right. People v Brown, 1 Wheelers Cr. Cases (N. Y.) 124.

Removing Disturbers. A religious society may prescribe such rules as they may think proper for preserving order when met for public worship, and they may use the neces- sary force to remove a person who is disturbing the society by willful violation of a rule. McLain v Matlock, 7 Ind. 525.

Usage and custom have made it peculiarly the dut,y of the minister or priest to conduct the services of religious meet- ings, to preside over them, to preserve order therein, and act as the organ and spokesman of the congregation. It is most appropriate that the minister or priest should preserve order and rebuke all violations of it. As the acknowledged presiding officer of the meeting it is his duty to check all attempts to interrupt its order, quietness, and solemnity, and for this purpose he unquestionably has full power and

RELIGIOUS WORSHIP . 655

authority to call ufjou others to aid him or direct them to remove the offender. Wall v Lee, 34 N. Y. 141.

Right of Choice. The courts cauuot compel an individual to attend worship in any place, nor remain connected with any church, nor to receive anyone as his pastor. These are matters which are relegated to the domain of the individual conscience, and over which neither Legislature nor court can exercise any control. Religious freedom means absolute personal independence. Feizel v First German Society of M. E. Church, 9 Kan. 502.

Sunday School, When Not Included. Two societies built a house of worship together, under an agreement which pro- vided that the house should be used in common only for divine service. For twenty years the house was used only as a place of worship. The congregation organized and maintained a union Sunday school in a schoolhouse near the church. After a time the Lutherans withdrew from the union school, and established a Sunday school in the au- dience room of the church against the protest of the German Reformed Society. It was held that the term "divine serv- ice" did not include a Sunday school. That the term was intended to include prayer, praise, and worship in the ordinary' sense, and not school instruction as applied under the Sunday school metliods. Gass Apjjeal, 73 Pa. 39.

Taxes, Apportionment. The provision in the Massachusetts Declaration of Rights that "all moneys paid by the subject to the support of i)ublic worship, and of the public teacliers aforesaid, shall, if he require it, be uniformly applied to the support of the teacher of liis own religious denomination, on whose instruction he attends" was held not to include a public teacher chosen by a voluntary association of Uni- versalists. The society must have been incorporated to entitle its members to direct the disposition of taxes raised for religious purposes. Barnes v First Parish, Falmouth, 6 Mass. 401.

Usage of Congregation. When a house is erected for reli- gious worship, and it cannot be discovered what was the

65G THE CIVIL LAW AND THE CHURCH

nature of the worship intended by it. it must be implied from the usage of the congregation, and it is the dutj' of the court to administer the trust in such manner as best to establish the usage, considering it a matter of implied con- tract with the congregation. Greek Catholic Church v Orthodox Greek Church, 195 Pa. St. 425.

ROMAN CATHOLIC CHURCH

Archbishop, may appoint directors of corporation, 658.

Archbishop, title to property, 659.

Archbishop, title to property, pews, 659.

Bishop and priest, relations, 659.

Bishop, authority, 660.

Bishop's control over priest, 660.

Bishop, liabihty on contracts, 661.

Bishop, no contract relation with local church, 661.

Bishop not liable for priest's salary, 661.

Bishop's powers, 661.

Bishop, relation to corporation, Louisiana Church of St. Louis, 661.

Bishop's supervision, 662.

Bishop's title to land — cemetery, 663.

Bishop's title to property, 663.

Bishop, when not liable in damages, 666.

Burial ground, 666.

California missions, 666.

Catholic Ivnights of Wisconsin, 667.

CathoUc, relation how determined, 667.

Cemetery, exclusion of non-Cathohcs, 667.

Cemetery, suicide not entitled to burial, 668.

Congregation, relation to general church, 669.

Corporate rights, 669.

Enghsh toleration, 669.

Fraternal beneficiary society, 670.

Independent corporation, powers, 670.

Independent society, St. Anthony Chiu-ch, 672.

Jesuit Order, 672.

Ladies' club, 672.

Louisiana corporation, powers of local officers, 673.

Mexico, 674.

Mexico and Texas, 674.

Minority's right, 675.

Nebraska, status of church, 675.

New York, incorporation, effect, 675.

Orphan Asylum, not a common school, 676.

Parish register, 676.

Pennsylvania, early toleration, 676.

657

658 THE CTVTL LAW AND THE CHURCH

Philippine Islands, 677.

Pope's position under international law, 677.

Porto Rico, 678.

Priest, 678.

Priest, action against for slander, 678.

Priest's authority, 679.

Priest, bishop's power of removal, 679.

Priest, expulsion, 679.

Priest, maintaining order at meetings, 679.

Priest, power to preserve order in church services, 680.

Priest, not bishop's agent, 680.

Priest, obligation, 680.

Priest, removal without notice, 680.

Priest's right of action against bishop, 681.

Priest, salary, 681.

Property, how held, 681.

Property right, 682.

Providence Hospital, 683.

Rector, ratifying acts, 683.

St. Anne's Catholic ApostoUc and Roman Church, Detroit, Michigan, 684.

Sexton's salary, 684.

Sisters of St. Francis, 684.

Slander, excommunication, 685.

Spanish America, 685.

Spanish America, Umitation of papal authority, 686.

Spanish sovereignty, 687.

Spanish supremacy in colonies, 687.

Students, voting residence, 688.

Texas, 688.

Unincorporated Church, trust sustained, 688.

Woodstock College, Maryland, 689.

Archbishop, May Appoint Directors of Corporation. In 1888 the Franciscan Fathers of St. Lonis, Missouri, conveyed to Archbishop Kendrick certain real estate in trnst for the congregation of St. Stanislaus of the city of St. Louis, and assigns forever, which congregation was composed of Polish communicants of the Catholic Church. Afterward the arch- bishop executed a conveyance of this property to the St. Stanislaus congregation. The archbishop had power to ap- point tlie directors of the corporation.

The plaintiffs in this action claimed the right to elect the

ROMAN CATHOLIC CHURCH G50

directors or to take part in their election. It was held that the plaintiffs were not members of the St, Stanislaus Parish corporation, nor entitled to a decree conferring the right of membership npon them, Klix v St. Stanislaus Church, 137 Mo. App. 347.

Archbishop, Title to Property. Real estate was conveyed to the archbishop by liis individual name without any trust or limitation. The property was intended for the use, and was used as the archbishop's residence. The property was j)aid for in large part by contributions from members of the congregation. The archbishop held the title for the church, and not as an individual. It was held that the property was not exempt from taxation. Katzcr v Milwaukee, 104 Wis, 16,

Archbishop, Title to Property, Pews. The archbishop, who by the law of the church, owned the soil on which the church edifice stood, conveyed a pew by deed in the usual form, except that it did not have a seal, nor use words calling for a seal. It was held that the question whether the pew- owner had acquired the right to a pew by adverse posses- sion should have been submitted to the jurj-. It was also said in the case ''that the archbishop had no greater rights in respect to the demolition of pews than an organized reli- gious corporation of anj' other denomination would have had by reason of its ownership of the church." Ajdward v O'Brien, 100 Mass. 118.

Bishop and Priest, Relations. The bishop has power to determine questions relating to the service and u.sefulness of the priest. The relation between them is not that of a hirer and hired. When a priest dedicates his life to the church and takes upon himself the vov^s of obedience to its laws he is i)resumed to be actuated by a higher principle than the hope of gain. AVhere he has an actual contract with his congregation or his bishop for a salary it may be enforced as any other contract ; but where he relies upon the duty of his church to support him he must invoke the aid of the church if he seeks redress. In Tuigg v Sheehan, 101 Pa. St. 363, the plaintiff, who had at some time oUCupied

660 THE CIVIL LAW AND THE CHURCH

the i30sition of priest of the parish, brought an action against the bishop to recover salary for three years. Dur- ing that time the priest had not perfornied any service, and had been absent from the parish most of the time. It was held that there was no contract relation between the priest and the bishoj), and no action could be maintained against the bishop for his sahuT.

Bishop, Authority. The bishop of the diocese (Pittsburgh) is trustee of the congregation in its temporal affairs, and, either directl}^ himself or through the priest and pastor of his appointment, controls and directs the receii)ts, and application of the property, income, and expenditures of the congregation, but the bishop has no right to appropriate the property for other use than that of the congregation. Tuigg V Treacy, 101 Vi\. 40r>.

Bishop's Control Over Priest. The bishop nuide a decree or order transferring the defendant, a priest, from Seward to Red Cloud in the diocese of Lincoln. The defendant was at that time occupying certain church property at Seward, and also at Ulysses. He refused to vacate the property and remove to Red Cloud, as required by the bishop's order. The order transferring the defendant included an order sus- pending him from the mission at Seward. Subsequently the bishop excommunicated the priest for disobedience to the order, and for gross insubordination, but the defendant con- tinued to exercise the functions of a priest at the mission, including the collection of revenues, and refused to permit another priest appointed as his successor to assume the duties of his office. The defendant denied the right of the bishop to make tlie removal without giving hiin, the defend- ant, an opportunity to be heard. The defendant did appear on notice for the purpose of a hearing, but challenged the right of the bishop to act in tlie matter, and the defendant thereupon appealed to the highest church court. He re- sponded to another notice to ai)pear, again challenged the bisho]), again appealed. On the first hearing tlie jdaintiff was enjoined from proceeding with the case until the deci-

ROMAN CATHOLIC CliUKCH 661

sion of the appeal by the defeudaut to the court at Rome. Bonaciim v Murjihy, 71 Neb. 46o. On a rehearing, page 487, the former judgmeut was reversed and the proceeding dis- missed without prejudice to a new proceeding by either party.

Bishop, Liability on Contracts. A bishop cannot be held liable on the contracts of his predecessor unless he has ex- pressly agreed in i)roper form and for a sufficient considera- tion to become liable thereon. The personal contracts of a bishop are the same as those of a layman, so far as their form, force, and effect are concerned. Baxter v McDonnell, 155 N. Y. 83.

Bishop, No Contract Relation with Local Church. This was held in Wardens of the Church of St. Louis v Blanc, 8 Rob. (La.) 51, where it was also said that the relation between the bishop and a local society gives rise to no contract obli- gation. The bishop is quite independent of the church- wardens except in relation to his spiritual or sacerdotal functions.

Bishop Not Liable for Priest's Salary. In Rose v Vertin, 46 Mich. 457, it was held that the bishoj) who designated a ])riest to serve a particular church did not thereby become liable for the ])riest's salary. They were both servants of the church, the bishop's relation being that of a superior, and the priest was bound to look to the cougi'egation for his compensation.

Bishop's Powers. The bishop is the governing power of tbe Catholic Church in his diocese. He is said to be the supreme pastor, the supreme teacher, the supreme governor. It is his duty, under the laws and discipline of the church, to administer the regulations above mentioned, and in so do- ing necessarily to construe and interpret them. His deci- sion is to be final and conclusive, except as reviewed by his ecclesiastical superiors at Rome. Bonacum v Harrington, 65 Neb. 831.

Bishop, Relation to Corporation, Louisiana Church of St. Louis. This church was incorporated in 1816 by special

m2 THE CIVIL LAW AND THE CHURCH

act of the Louisiana Legislature. The act provided for a board of churchwardens composed chiefly of laymen. This board had no power to appoint a curate, but it was their duty to provide for the salary of the curate; but they had a right to withhold all salar}^ from any person whatever, and even to prevent any person claiming to be curate, from entering the church belonging to the corporation. In an action brought by the churchwardens against the Bishop of Louisiana to recover damages for having asked for an in- crease in salary, asserting the right of approving the tariffs, requesting that the curate have supervision of the records of marriages and appointment of subordinates who officiated in the church, declining to appoint a curate and to admit that the churchwardens had the right to appointment ; thanking the temperance society for sympathizing with him in his cause, and withdrawing from the services of the church all priests except one, resulting in the substantial desertion of the cathedral services, it was held that the re- lations between the churchwardens and the bisliop implied no civil contract, and consequently gave rise to no civil obligations. The bishop was independent of the church- wardens except in relation to his spiritual or sacerdotal functions. Wardens of the Church of St. Louis v Blanc, 8 Rob. (La.) 52.

Bishop's Supervision. Under the law of the Roman Catholic Church the bishop has full power in the administration of church affairs; there are no separate parishes; the dio- cese is the parish and the bishop the universal parish priest ; all i)ower possessed by priests or pastors is delegated from tlie bishop; the clergyman in charge of a clinrcli for the time being has charge of all its temporalities; it belongs to such pastor to nuike all contracts relating to the temporal affairs of the church, and he is not the agent or servant of the bishop in such matters; the only control of the bishop over the pastor is by ecclesiastical discipline : and a bishop can- not remove a priest except for cause and by ecclesiastical disci])line. Leahey v Williams, lU IMass. 'Mr).

KOMAN CATHOLIC CHURCH 0G3

Bishop's Title to Land — Cemetery. A conveyance of laud was made to a bishop and to his heirs and assigns forever ''in trust for the Catholic community for the purpose of a free burial ground," The bishop acquired an estate in fee, and could maintain an action of trespass against the bene- ficiaries. The land was purchased and paid for by members of the community, the deed being taken in the bishop's name. The land was surveyed and lots assigned to different mem- bers of the community, who ornamented the lots and in- curred the expenses in connection therewith. Fitzpatrick v Fitzgerald, 13 Gray (Mass.) 400.

Bishop's Title to Property. Land was conveyed to the Bishop of Galveston for the use of the Roman Catholic Church, to be held by him and his successors in office for such use forever. It was held that the bishop took a fee simple title for the benefit of the church. Olcott v Gabert, 86 Tex. 121.

It is a matter of historical and common knowledge that the form of government in the Roman Catholic Church is an episcopacy, and in which the diocesan bishops possess enlarged powers respecting the temporal as well as the spir- itual affairs of the church in their respective dioceses. Blanc V Alsbury, 63 Tex. 489.

"The title to the real estate resides in the bishop of the diocese. In a certain sense he is a trustee thereof for reli- gious uses, but there is no declaration of trust, and he con- trols the enjoyment and transmits the title by devise. The purpose of this arrangement is to exclude the laity from that power of interference which they would have were the title vested in the corporation. But inasmuch as the hold- ers of such titles are not corporations, either sole or aggre- gate, as are the English bishop, deans, and even parsons, lands held by them do not pass to their successors in office unless through the instrumentality of a deed or will." Strong's Relations of Civil Law to Church Polity, quoted by Judge A^ann in Baxter v McDonnell, 155 X. Y. 83.

The church property in the Diocese of Cincinnati was held

6G4 THE CIVIL LAW AND THE CHUKCH

in the name of the bishop or archbishop, but in trust for the various congregations who contributed for the support of pastors and the expenses of the local churches. The local congregations were not so organized as to enable them to hold the title to church propert}^ The archbishop being heavily indebted, made an assignment for the benefit of creditors, but it was held that it was not an official assign- ment. The assignment carried only the archbishop's indi- vidual property, and not the property held by him in trust for the various congregations and for other religious pur- poses. Mannix v Purcell, 46 Ohio St. 102.

Certain members of the local society, being dissatisfied with the management of the property, brought an action against the bishoj) for the purjjose of obtaining some part in the control of the property, alleging that the property was acquired by contributions from the people under circum- stances which created a trust. The legal title had been con- veyed to the bishop without any provision creating a trust, and under the law of the church the property was held for the use of the congregation Avho attend public worship therein. The ])laintiflfs were not entitled to the relief sought. Hennessey v Walsh, 55 N. H. 515.

Where i)ro2>erty is purchased by a congregation for a special purpose, although the deed is made to the bishop, the congregation is entitled to control the property, and the bishop holds the property in trust for the congregation. Fink V Umscheid, 40 Kan. 271.

In Heiss v Vosburg, 50 Wis. 532, it appeared that in ISGG the trustees of Sinsinawa Mound College conveyed certain real estate, on which there was a church building, to the bishop of Milwaukee for t])e nominal consideration of one dollar. It also appeared that the bisho]) devised this prop- erty to his official successor, who brought this action, claim- ing that the defendants had unlawfnlly entered on the premises, torn down and removed the building thereon and were digging up and removing the soil for the purpose of laying the foundation lor a new building wliich they threat-

KOMAN CATHOLIC CHURCH fiG5

ened to erect agaiust his wish and i^rotests. The defeudaiits, who were members of the Roman Catholic Church at Sin- siuawa Mound, known as St. Dominic's Church, claimed that the church building was originally erected by tuuds and materials furnished by the congregation, and that it had been practically under the control of trustees chosen by the congregation since 18GG; also that the deed to the bishop was in trust for the congregation.

The court held that the original deed to the bishop from the college was absolute, and ccmveyed a fee simple title, leaving nothing in the congregation or the trustees thereof, and that they had no interest in the property. Neither the congregation nor its trustees could lawfully tear down the church buflding, even for the purpose of erecting a new one, against the protest of the bishop who held the legal title, and who had control of the property under the law of the church.

The association (St. Joseph's Lithuanian Catholic Congre- gation) purchased real estate for <he purjtose of erecting thereon a church building, the title being taken in the name of certain i)ersons as trustees. Subsequently, by a vote of the congi'egation, the title of the ])roi)erty was transferred to the bishop. At a later meeting of the congregation trus- tees were selected to take charge of the jjroperty and were directed to procure to themselves a transfer of the title of any property in which the society was interested, and which was then held by any other person. The bishop declined to transfer the projjerty to these new trustees and an action was commenced to compel a conveyance. It was held that the bishop, by taking title to the property, became a trustee of the society to the same extent, and with the same powers as the trustees named in the original deed. There- fore the bishop was only a depository of the legal title of the property, holding it in tiiist for the congregation. The plaintitfs were entitled to a decree directing the bishop to transfer the property to them as trustees of the con- gregation, such conveyance to be in trust for the purposes

666 THE CIVIL LAW AND THE CHUKCH

specified in the original deed. Krauczunas v Hoban, 221 Pa. 213.

A bishop holds the title as a mere trustee. The trust in such case gives to the trustee neither interest in the estate nor power to control it or direct its management in any way ; it creates no duty for the trustee to perform and leaves nothing to his discretion; he is simply the passive silent depository of the legal title and nothing more. Mazaika v Krauczunas, 233 l*a. 138 cited in Carrick v Canevin, 55 Pa. Super. Ct. 233, 243 Pa. Super. Ct. 283; see the question again in Novicky v Krauczunas, 215 Pa. 86.

Bishop, When Not Liable in Damages. In Wardens of the Church of St. Louis v Blanc. 8 Rob. (La.) 51, it was held that a bishop cannot be made liable in damages for any ex- pression of opinion as to the extent of his ecclesiastical authority, nor for any act or omission in the exercise of his spiritual functions. Such acts or omissions violate no legal right, nor do they involve any dereliction of legal duty or obligations. Courts of justice enforce civil obligations only — not spiritual ones.

Burial Ground. Land embracing about forty acres was conveyed to the bishop for a burial ground. One acre was used for the cemetery and the other was used as farm lands. It was held that the part not actually used for cemetery purposes was subject to taxation. Mulroy v Churchman, 52 la. 238.

California Missions. According to all the Spanish and Mexican authorities, the missions were political establish- ments, and in no manner connected with the church. The fact that monks or priests were at the head of these insti- tutions proves nothing in favor of the claim of the church to universal ownership of the property.

If it be relied on that a priest or monk had government and control of the mission, the answer is simply that they were the civil governors; and although they combined with the power of civil government the functions of spiritual fathers, this was only the more effectually to carry out one

KOMAN CATHOLIC CHLKCH (JG7

of the objects of those establishments, which was to convert and Christianize the Indians. Neither the missions nor the priests of the missions were incorporated into the general body of the church, nor were they in any respect under the control or direction of its diocesan ecclesiastics, wliose rule was absolute over all their inferiors. On the contrary, the mission establishments arose directly from the action and authority of the government of the country; laws and regu- lations were made for them by its legislative authority, without referring to or consulting the authority of the church, and the lands settled by them were not conveyed to anyone, neither to priest nor neophyte, but remained the property of the government, and there is not a word in all the decrees and acts of the government which would even show that the church building devoted to worship alone ever be- came the property of the church corporate until the decree of secularization of 1883. Nobili v Keduian, 0 Cal. 325.

Catholic Knights of Wisconsin. The Order of Catholic Knights of Wisconsin was organized for the sole benefit of members of the Roman Catholic Church, for them only so long as they remain practical Catholics. The decedent was married by a Protestant minister, and was thereupon, ipso facto, excommunicated and ceased to be a Catholic, prac- tical or otherwise. Thereupon all liability on the benefit contract ceased, and expulsion was not necessary. The pro- visions of the contract on this subject were self-executing. Membership in the society was purely voluntary, and the agreement did not impose any religious test contrary to the provisions of the constitution of Wisconsin. Barry v Order of Catholic Knights, Wis., 119 Wis. 302.

Catholic, Relation How Determined. No power save that of the church can rightfulty declare who is a Catholic. The question is purely one of church government and discipline, and must be determined by the proper ecclesiastical author- ities. The decision of the church authorities is final. Dwenger v Geary, 113 Ind. 106.

Cemetery, Exclusion of Non-Catholics. The society owned

668 THE CIVIL LAW AND THE CHURCH

a cemetery in Queens County. The rules and doctrines of the church forbid the burial, in consecrated ground, of the body of one who was not a Roman Catholic, or who was a member of the Masonic fraternity. The refusal of the ceme- tery to permit the burial of a Freemason, although a Ro- man Catholic, in this cemetery was sustained in People ex rel Coppers v Trustees, St. Patrick's Cathedral, N. Y., 21 Hun. (N. Y.) 184. It was also held that his right to burial therein was not secured by a paper acknowledging the re- ceipt of a sum of money specified as being for the purchase money of the plot. Applicants for burial plots in Catholic cemeteries are presumed to. know the regulations of the church concerning burials, such as the exclusion of non- Catholics and Freemasons.

McQuire v St. Patrick's Cathedral, 54 Hun (N. Y.) 207, involved the right of burial in a lot in a Roman Catholic cemeterj^ under a receipt acknowledging the paj'ment of a stipulated sum, and under which the intestate's wife had already been buried in the lot described. The receipt was held to convey a mere revocable license, and the court de- nied an application to compel the cemetery authorities to permit the interment of the intestate.

Cemetery, Suicide Not Entitled to Burial. Land was con- veyed to the bishop of the Diocese of Fort Wayne for a cemetery. The bishop took the land in trust as a burying ground for the Catholics of the city. Tlie congregation, with the cooperation of the grantors, caused the land to be laid out into lots, and it was consecrated and set apart according to the ritual and principles of tlie Roman Cath- olic Church for the burial of the bodies of such persons as were entitled to sepulture according to the rites and doc- trines of the church. To entitle a person to burial in this cemetery he must have been at the time of his death a mem- ber of the church in full communion, and must have per- formed all of his church duties. A person who committed suicide was not entitled to burial in consecrated ground, A person who obtained a burial lot in the cemetery sought

ROMAN CATHOLIC CHURCH CGO

to bury therein the body of his son who had committed suicide. Such burial was resisted by the church authorities, who brought this action to restrain the lot-owner from such use of the lot contrary to the rules of the church. The church authorities decided that the person whose burial was sought was not a Catholic, and not entitled to burial in the cemetery, and the court held this decision final and conclusive. The power of nuiking rules regulating the use of the cemetery was lodged in the bishop of the Diocese of Fort Wayne, and the pastor of St. Mary's Church. The iiioiiient this cemetery was consecrated it came under the dominion of the church. It was held that the church authorities, including the bishop and i)astor, could main- tain an action to restrain the burial of the suicide in con- secrated ground. Dwenger v Geary, 113 Ind. 106.

Congregation, Relation to General Church. Congregations may hold Catholic doctrines just as other denominations hold Catholic doctrines, but ecclesiastically and in sight of the Roman Catholic Church, they have no existence; they are not recognized by the papal authority. The congrega- tion cannot divorce itself from the church, or form an inde- pendent organization and retain the ownership of the proj)- erty. Dochkus v Lithuanian Benefit Society, St. Anthony, 20G Pa. St. 25.

Corporate Rights. The corporate existence of the Ronuin Catholic Church, as well as the position occupied by the l)apacy, has always been recognized by the government of the United States.

At one time the United States maintained diplomatic relations with the Papal States, which continued up to the time of the loss of the temporal power of the papacy. Moore's Digest of Int. Law, vol. i, pp. 130, 131. Ponce v Roman Catholic Church, 210 U. S. 296.

English Toleration. The testator bequeathed the residue of his personal estate to trustees, to be used for the educa- tion of poor children in the Roman Catholic faith. This bequest was held void, the court observing that "while the

G70 THIO CI\'IL LAAV AX J) THE CHURCH

Roinaii Catholic religion has received a considerable degree of toleration by the statute of the present King (31 Geo. Ill, chap. 32), yet there is a provision in that act that all dis- positions before considered unlawful shall continue to be and be deemed so." There is no doubt a disposition, for the purpose of bringing up and educating children in the Roman Catholic religion, was unlawful before that time. Cary v Abbot, 7 Ves. Jr. (Eng.) 490.

Fraternal Beneficiary Society. The Bohemian Roman Catholic Central Union of the United States of America was formed, to be composed exclusively of members of the Roman Catholic Church. Members must have performed the duties required by the diurch, one of wliich was to go to confes- sion and receive the sacrament of the holy communion every year during Easter time. A member did not receive the sacrament of the holy communion during Easter in 189G. He admitted the neglect, and was suspended by the society, and died during the suspension. By the laws of the order, a suspended member lost all benefits during his suspension. In an action on a beneficiary certificate it was held that the suspension was within the powers vested in the society by the contract of membership; that the organization of such a fraternal society was not inconsistent with any prin- ciple of religious liberty; that the suspended member, by violating the provisions of the contract, had forfeited his right to the benefits intended by the organization, and the action was not maintainable on the certificate. Franta v Bohemian Ronuin Catholic Central Union, 164 Mo. 304.

Independent Corporation, Powers. The society was organ- ized by French residents for the purpose of having a Freaich church of the Roman Catholic faith, with a French Roman Catholic priest as pastor, and under the same general gov- ernment and authority as other Roman Catholic churches. The society was duly incorporated and adopted a constitu- tion. Before the incorporation, and before the building of the church, the voluntary association had made api)lication to the Roman Catholic bishop at Si»riiigfield for a French

ROMAN CATHOLIC CHURCH 6T1

priest to act as their pastor. Tliis applicatiou was denied by tlie bislioj), because he did not approve the establishment of another Roman Catholic church at North Brookfield. The new society erected a church and again applied to the bishop for the appointment of a jjriest, but this application was also denied. The society then engaged a priest on its own account. Subsequent to the settlement of the pastor the bishop noti- fied them that those who continued to attend the church would be excommunicated. Some members returned to the established church, others declined to attend any church, while still otliers adhered to tlie new society and maintained services there. Subsequently a meeting was called for the purj^ose of revising the list of church members. At this meeting certain names were crossed oti" the record. At the same meeting trustees of the society were elected. The former trustees attemi)ted to close the church, and notified the pastor that his services would no longer be required. An action was brought by the new trustees against the old trustees to prevent them from closing the church and pre- venting its use for religious services. The expulsion of certain members on the revision of the list was sustained. But the election of officers at the meeting at Avhich tlie list was revised was held to be irregular for the reason that it was not within the terms of the call of the meeting. It was also held that the trustees could not close the church because, in their judgment, to keep the church open would be to defeat the purposes for which the association was formed. The association having been incorporated under tlie statute providing therefor, and having adopted a con- stitution without any provision as to the form of worship, it became an independent society not subject to the juris- diction of the bishop. The court granted a decree prevent- ing the trustees from closing the church building of the association against any religious services held for the public advancement of the worship of God, or to insure religious instruction on Sunday, by any members of the association. Canadian Religious Association v Parmenter, 180 Mass. 415.

672 THE CIVIL LAW AND TUE rHIKCH

Independent Society, St. Anthony Church. The cougrega- tiou worsliiped according to the loiiiKs and rites of the Roman Catholic Cburdi, but it did not adhere to and was not connected with the ecclesiastical body known as the Roman Catholic Church, and had never placed itself by any voluntary act of its own under the power of the head of the diocese of tlie church. It owned property which had been acquired with contributions made by tlie congregation, and employed a pastor without any knowledge that he had been assigned by the archbisliop.

In an action to compel the transfer of the pro]>erty of the church to the archbishop it was held that the court had no authorit}^ to compel such a transfer. Dochkus v Lithuanian Benefit Society of St. x\.iithony, 20G Pa. St. 25.

Jesuit Order. "The Society of Jesus is a religious order founded by Ignatius Loyola. It is understood to be com- jjosed of missionaries and teaching ijriests of the Roman Catholic faith. As we understand it, there is no legal in- corporated body, but the priests are bound only by their vows of poverty, chastity, and obedience, and after a second novitiate, by a fourth vow, requiring them to go wherever the pope nmy send them for missionary duly. They are governed by a general, and the society has been estab- lished in the United States for many years." Coleman v O'Leary, 114 Ky. 388. In this case, considering the validity of a devise to the society of land to be selected b}' it, at a given location, for purposes of education or religion, the court said there was no trustee created by this bequest who can be made subject to the control of the court, and com- ])e]led to execute the provisions of the trust. But a definite trustee was not necessary under the Kentucky statute, if the objects of the charity were sufficiently definite. It was held that the object of the trust was too indefinite; that in case of necessity it would not be enforced by the court by the appointment of a trustee or otherwise. The bequest was lield void.

Ladies' Club. Tlie society, intending to erect a new house

ROMAN CATHOLIC CHURCH 073

of worship, a uiimber of its nieinbers constituted themselves a voluntary and unofficial committee to raise funds for this purpose. With such funds they purchased certain real estate, taking a conveyance to one of their number, who executed a declaration of trust, in which he agreed to con- vey the property to the bishop on receiving the amount con- tributed therefor by the committee. A club composed of ladies of the society raised funds either for the specific purpose of building a new church or for such other specific church purpose as the club members should determine upon. The club united with the men's committee in purchasing the property in question, and neither the club nor the com- mittee represented the bishop or the society. Subsequenth^ the ladies' club obtained from the trustee a half interest in the property purchased. The church edifice was not erected on this land, but on another lot. The half interest acquired by the ladies' club was conveyed to the bishop, the plaintiff. In an action by the bishop to recover the other half interest which was still retained by the trustee it was held that the bishop was not entitled to recover, for the reason that the amount contributed bj^ the committee in the purchase of the lot had not been paid to them. Eis v Croze, 1-lf) Mich. 62.

Louisiana Corporation, Powers of Local Officers. The v/ar- dens of the society fixed the compensation of a curate, and it was paid for more than a year, when the resolution fixing (lie compensation was rescinded by the wardens, and notice given accordingly to the curate that at a specified time his compensation would cease. The curate seems to have con- tinued his relations, or attempted to do so, in opposition to the action of the wardens. It was held that the churcli wardens were, in their corporate capacity, the legal owners of the property which the act of incorporation authorized them to hold, to be used for the purposes specified in the charter. They were the sole temporal administrators, and could not be controlled by the clergy in their administration. They were responsible to the congregation only. \^ho might choose others, if those in authoritv should misuse or abuse

674 THE CPvlL LAW AND THE CHUKCH

the powers conferred by the Legishiture. The court further said that neither the pope nor any bishop had, within this State, any authority except a spiritual one; and as courts of justice sit to enforce civil obligations only, they never attempt to coerce the performance of those of a spiritual character. Church of St. Francis, Pointe Coupee v Martin, 4 Rob. (La.) 62.

Mexico. The right of the property in fee being in the King, as long as his dominion was acknowledged in Amer- ica, after the Revolution, was in the Mexican government as successor to the former sovereign power, the clergy being permitted only the enjoyment of the use. The church in Mexico seems to have been entirely under the control of the political authority ; so much so that the ceremonies and reli- gious festivals were regulated by law. Blair v Odin, 3 Tex. Rep. 288.

Mexico and Texas. Prior to the Revolution of 1836 the Catholic was the established religion of the republic of Mexico, and all citizens of Texas were required to conform to the teachings of that church. It was supported b}^ the government, and, by taxation, the citizens were compelled to contribute thereto. One of the charges made against the republic of Mexico in the Declaration of Independence Avas, "It denies us the right of worshiping the Almighty according to the dictates of our conscience by tlie support of a na- tional religion, calculated to promote the temporal interest of its human functionaries rather than the glory of the true and living God." The third division of the Declaration of Rights in the Constitution of tlie rei)ublic of Texas, reads as follows: "No preference sliall be given by Jaw to any religious denomination or mode of worship over another, but every person shall be permitted to worship God accord- ing to the dictates of his own conscience." The constitu- tion of the State of Texas framed in 1845, contains prac- tically the same provision as is now embraced in the consti- tution of this State in these words : "Sec. 4. All men have a natural and indefeasible right to worship God according

ROMAN CATHOLIC CHURCH 675

to the dictates of their own conscience; no man shall be coiui)elled to attend, erect, or support any place of worship, or to maintain any ministry against his own consent." Thus we see that the provision in our constitution was a protest against the policy of Mexico in establishing and maintaining a church of state, and compelling con- formity thereto, and was intended to guard against any such action in the future. Church v Bullock, lOi) S. W. (Tex.) 115.

Minority's Right. It was held that a minority could not retain possession of the church property for the purpose of compelling the majority to recognize the minority as mem- bers of the corporation. St. Andrews v Shaughnessy, 63 Neb. 79:5.

Nebraska, Status of Church. Considering whether title to certain local church proi)erty was in the Roman Catholic Church, the court in Bonacum v Murphy, 71 Neb. 487, said, "That church is not, in contemplation of the laws of Ne- braska, a corporation or a partnership, or a legal entity of any sort, and does not claim so to be. It is a hierarchy com- posed of a series of clerical dignitaries of various ranks and degrees, scattered over tlie whole world, and deriving their IK)wer and importance from the papal court at Rome, to whom they owe allegiance, and from whom tliey are liable at any time to suffer degradation. That court claims to be an independent sovereign power, a political as well as an ecclesiastical state, having universal dominion, superior to all other principalities and powers of whatever description and wherever situated. As such it can acquire territorial rights in Nebraska, if at all, only with the consent of its Legislature, by treaty with the government at Washington.''

New York, Incorporation, Effect. The act of 1863, chap. 45, amending the religious corporations act of 1813 as to Roman Catholic churches, authorized the archbishop, the vicar-general, and the pastor of a church, together with two other persons to be selected by them, to make and file a certif- icate of incorporation and therein designate the title of the

676 THE CI\ML LAW AND THK CHURCH

cliurcli, and declared lliat llie persons siguiiij^ the certificate and their successors should be a body corporate by the name designated therein. The Court of Appeals in People's Bank v St. Anthony's Roman Catholic Church, 109 N. Y. 512, held that the trustees did not become a corj)oration, but that the corporation was composed of the members of the church and congregation, the trustees being simply the governing body of the corporation. Certificates of indebtedness or promissory notes given for loans of money to the society and signed by the president, secretary, and treasurer of the board of trustees, the latter being also pastor, without any evidence of action by the board as a body authorizing the issue of such notes and certificates, were held not to be bind- ing on the corporation.

Orphan Asylum, Not a Common School. In People ex rel the Roman Catholic Orphan Asylum v Board of Education, 13 Barb. (N. Y.) 400, it was held that the Roman Catholic Orphan Asylum of Brooklyn was not a common school under art. 9 of the constitution, and therefore was not entitled to share in the revenues of the common school fund. See Sargent v Board of Education, Rochester, 177 N. Y. 317, cited iu article on Sectarian Institution.

Parish Register. The register of a parish of a Catholic Church kept as required by the rules and laws of the church, when produced is admissible in evidence; and it is of such a public nature that its contents may be proved by an imme- diate copy duly verified. Hancock v Supreme Council Cath- olic Benevolent Legion, 67 N. J. Law, 614.

Pennsylvania, Early Toleration. In Ma gill v Brown, Fed. Cas. No. 8,952 (U. S. Cir. Ct. Pa.) (Brightly N. P. 347), which involved the validity of bequests to numerous Quaker societies. Judge Baldwin, in the course of his opinion, said : ''In 1733-34 Governor Gordon informed the council that a house had been erected in Walnut Street for the exercise of the Roman Catholic religion, in which mass was openly celebrated contrary to the laws of England, particularly to the statute of 12 Will. Ill, which extended to the colonies.

ROMAN CATHOLIC CHURCH 077

The council were of ditferent opinion, and declared that the Catholics were protected by the charter of privileges and the law concerning liberty of conscience, but they referred the subject to the governor, that he might consult his superiors at home. No other proceedings, however, took place." This opinion of the council accords with the declaration of William Penn to the members of the Assembly in 1701 that he had justly given privileges and precedency of property as the bulwark to secure the other. It was a rule of property, and the basis of the usage and common law of the state. The opinion of the council was the practical exposition of the charter, as understood and acknowledged, of which there cannot be a stronger case than tlie one that occurred.

Philippine Islands. The status of the church in the Islands is considered in Barline v Ramirez, 7 Philippines 41.

The Roman Catholic Church has a legal personality and the capacity to hold property in the insular possessions of the United States, and this right is not affected by the fact that the property was acquired by gifts or from the public funds. Santos v Roman Catholic Church, 212 U. S. 463. See also Ponce v Roman Catholic Church, 210 U. S. 2()G and Barlin v Ramirez, 7 Philii>pines 41.

Pope's Position Under International Law. The Holy See still occupies a recognized position in international law, of which the courts must take judicial notice.

"The Pope, though deprived of the territorial dominion which he formerly enjoyed, holds, as sovereign pontiff and head of the Roman Catholic Church, an exceptional posi- tion. Though in default of territory, he is not a temporal sovereign, he is in many respects treated as such. He has the right of active and passive legation, and his envoys of the first class, his apostolic nuncios, are specially privileged. Nevertheless, he does not make war, and the conventions which he concludes with states are not called treaties but concordats. His relations with the kingdom of Italy are governed, unilaterally, by the Italian law of May 13, 1871, called 'the law of guarantees,' against which Pius IX and

678 THE CIVIL LAW AND THE CHUKCH

Leo XIII bave not ceased to protest." 1 Moore's Dig. 89, Ponce V Roman Catholic Church, 210 U. S. 296.

Porto Rico. By the Spanish law, from the earliest moment of the settlement of the island to the present time, the cor- porate existence of the Catholic Church has been recognized. The Roman Catholic Church has been recognized as possess- ing legal personality by the Treaty of Paris with Spain of 1898, and its property rights solemnly safeguarded. In so doing the treaty followed the recognized rule of interna- tional law which would have protected the property of the church in Porto Rico subsequent to the cession. The juristic personality of the Roman Catholic Church and its owner- ship of property was formally recognized by the concordats betAveen Spain and the jiapacy, and by the Spanish laws from the beginning of settlements in the Indies. Such recogni- tion has also been accorded the church by all systems of European law from the fourth century of the Christian era. The fact that the municipality may have furnished some of the funds for building or repairing the churches cannot affect the title of the Roman Catholic church to whom such funds were thus irrevocably donated, and by whom these temples were erected and dedicated to religious uses. Ponce V Roman Catholic Church, 210 U. S. 296.

Priest. The relation between a bishop and a priest is not that of master and servant but that of an ecclesias- tical superior and inferior. Baxter v McUouuell, 155 N. Y. 83.

Priest, Action Against for Slander. A Roman Catliolic priest told his congregation from the pulpit that a civil marriage by a physician who was divorced from his first wife, excom- municated him from the church; that it should debar him from employment as a physician by the mendiers of the parish under penalty of loss of the ministrations and sacra- ments of the church in case of their illness, and that any- one needing the ]triest should not send for him when the physician was present, as lie did ii«»1 wish to be under the same roof. It was iield tliat the words might |)roj)erly be

KOMAK CATHOLIC CHURCH 679

submitted to a jury as actionable per se, without an aver- ment of special damage. Morasse v Brochu, 151 Mass. 567.

Priest's Authority. A Catholic priest was called to an alms- house to administer a sacrament of penance to an inmate, who was a Roman Catholic and believed the sacrament essential to her, and had requested him to administer it. Such administering required entire secrecy between the de- fendant and the sick person. The keeper's wife, who was present, was requested to leave the room but refused, and was thereupon ejected by the priest, he using only sucli force as was necessary for that ]»ur])ose. In an action against the priest for the assault it \\as liehl tliat he was only a visitor and had no control of tlie room, and that his priestly ofiice gave him no autliority to exclude any person therefrom. Cooper v McKenna, 124 Mass. 284.

Priest, Bishop's Power of Removal. By the laws and cus- toms of the Roman Catliolic church in the United States a priest is liable to be removed from the charge of a congrega- tion at the pleasure of his bishop, without trial. He cannot, however, be suspended from his priestly functions without specific accusation and trial. The pastoral relation is neither created nor dissolved by agreement between the priest and congregation — the bishop appoints or removes the shepherd as he deems for the priest's good or for the inter- est of the flock. Removal is the exercise of episcopal author- ity according to the bishop's judgment. It may be without supposition of wrong, and it leaves the priest in the same position as all other priests who are without employment. Suspension is a judicial act based on something which calls for such sentence. Stack v O'Hara, 98 I'a. 213.

Priest, Expulsion. In St. Vincent's Parish v Murphy, 83 Neb. 630, the court declined to consider whether a priest had been legally excommunicated and expelled from the church, the question being one of ecclesiastical jurisdiction only, and not within the jurisdiction of a court of equity.

Priest, Maintaining Order at Meetings. The action of the priest in charge of a religious service in attempting to

080 THE CI\ IL J.AW AND THE CHUKOH

remove a person Avho disturbed the meeting by demanding an exi^lanation of a reference in the sermon was sustained, and it was held that the priest was not liable in an action for damages as for an assault. See next note.

Priest, Power to Preserve Order in Church Services. "In Catholic meetings it is appropriate that the priest, as the presiding officer of the meeting, should preserve order and rebuke all violations of it." Wall v Lee, 34 N. Y. 141.

Priest, Not Bishop's Agent. The pastor borrowed money fi'om the plaintiff and others, under contract of repayment in the form of deposit books in the name of the church, which was not incorporated and had no power to acquire or hold property. The money received from the depositors was mingled with other church revenues and constituted a common fund, used for general church purposes. The bishop held the legal title to all the real property. It was held that the pastor was not the agent of the bishop in financial affairs without express authority. In this case it was held that the bishop was not liable for the debt contracted by the pastor. Leahey v Williams, 141 Mass. 345.

Priest, Obligation. Removal of a priest by the bishop of his diocese was sustained. The priest at his ordination obli- gated himself as follows: "I promise and swear that I will serve the missions of the Diocese of I'hiladelphia under the obedience of the ordinary forever in perpetuam, so help me God, and these his Holy Gospels." Toward the end of the ceremony he placed his hands in those of the bishop, who then asked him, "Do you promise to me and my successors obedience and reverence?" and he answered, "I do promise it." The law of the church authorized the bishop to remove a priest, but such removal did not amount to a suspension of his priestly functions. Stack v O'Hara, 98 Pa. 213.

Priest, Removal without Notice. The priest in charge of the societj' w^as removed by the bishop without any accusa- tion or hearing, and was not assigned to any other parish. As priest he received no stated salary, but was entitled to the pew rents, Sunday collections, subscriptions, and offer-

ROMAN CATHOLIC CHURCH 681

ings. His profession an(J these sources of income were deemed to be property of which he could not be deprived by the summary order of the bishop without an opportunity to be heard. It was held that his removal as pastor of the church, and also the proIiil)ition and disfranchisement for- bidding him to exercise any priestly functions in Williams- port, were unlawful. O'Hara v Stack, 1)0 Pa. St. 477. See 98 Pa. St. 213, where this case is explained.

Priest's Right of Action against Bishop. No suit can be maintained by a i)ricst of a Catholic churdi against his bishop for removing him from his office of priest, the civil courts in such cases having no authority to inquire as to the rightfulness of ecclesiastical decisions. O'Donovan v Chat- ard, 97 Ind. 421.

Priest, Salary. In Twigg v Sheehan, 104 Pa. 493, it was held that no action lies in favor of a Roman Catliolic j)riest against his bishop for salarj' or snjjport during a period in which the bishop refused to assign him a charge.

Property, How Held. The canons of tlie Roman Catholic Church provide and require that the title to the property of the Roman Catholic congregation which is under the jurisdiction of the Roman Catholic bisliop of the diocese in which the congregation has its j)lace of worshij), must be in the ordinary, or in the bishoj) of the diocese. Krauczunas v Hoban, 221 Pa. 21 :5.

If a congregation is formed for the purpose of religious worship according to the faith an<l rites of the Roman Catholic church, has accepted the i)astor assigned to it by the archbishop of the diocese, has placed itself under the authority of the archbishop, and submitted itself to his authority in all ecclesiastical matters, the title to its prop- erty must be taken and held as provided by the canons of the Roman Catholic Church. The property acquired by the congregation under such circumstances is the property of the church, and is subject to its control, and must be held in the manner directed by its Inws. Dochkus v Lithuanian Benefit Society of St. Antliony, 2(m; Pa. St. 25.

082 THE CIVIL LAW AND THE CHURCH

The t-anous, decrees, aud rules of the Roman Catholic Church for the Diocese of Cincinnati required all property held and used for ecclesiastical purposes to be conveyed to the bishop or archbishoj) of the diocese by name, his heirs or assigns forever, to be held by him in trust for the uses for which it was acquired. Maunix v Purcell, 46 Ohio St. 102.

Property Right. The Roman Catholic Church has been recognized as possessing a legal personality and the capacity to take and acquire property since the time of the emperor Constantine. See the Law of Constantine of 321 to that effect, cited in Justinian's Code.

The strictest prohibition against alienating the property of the church exists in that code, and it provides that the alienation of church property shall not take place, even with the assent of all the representatives of the church, since these rights "belong to the church,'- and the church is the mother of religion ; and as faith is perpetual, its patri- mony must be preserved in its entirety perpetually.

In his history of Latin Christianity (vol. 1, p. 507) Dean Milman says : "The Christian churches succeeded to that sanctity which the ancient law had attributed to the tem- ples; as soon as they were consecrated they became jjublic property, and could not be alienated to any other use. The ground itself was hallowed, and remained so even after the temple had been destroyed. This was an axiom of the heathen Papinian. Gifts to temples were alike inalienable, nor could they be iiledged; the exception in the Justinian Code betrays at once the decline of the lioman power, and the silent progress of Christian humanity. They could be sold or pledged for the redemption of captives, a purpose which the old Roman law would have disdained to contem- plate."

And Milman also points out that in the barbarian codes most sweeping provisions are found, recognizing the right of the church to acquire property and its inalienability when acquired. Church property everywhere remained un- touched bv the' rude hands of invading barbarians. Tres-

ROMxVN CATHOLIC CHURCH G83

pass upon or interference with such property was severely punished, and gradually it became exempted from taxation. Ponce V Roman Catholic Church, 210 U. S. 29G.

Providence Hospital. This hospital was incorporated by Congress in 1864, and was under the general auspices of the Roman Catholic Church, the title to its property being held by the Sisters of Charity of Emmitsburg, Maryland. In 1897 Congress appropriated funds to be expended under the direction of the commissioners of the District of Co- lumbia in the erection of two isolating buildings in connec- tion with two hospitals. Under this act the commissioners and the authorities of the Providence Hospital made an agreement for the erection of an isolating building on the hospital grounds. It was held that this agreement did not violate the provision of tiie federal constitution respecting the establishment of religicm. The incorporating act did not refer to any religious belief or ecclesiastical connec- tion, and the court remarked that no inquiry could be made into the belief of the incorporators on religions matters. It was a secular corporation, though managed by persons who hold to the doctrines of the Roman Catholic church. Bradfield v Roberts, 175 V. S. 21)1.

Rector, Ratifying Acts. A contract for labor and mate- rials in the erection of a church and rectory by the society was made in the name of the trustees, but was, in fact, signed only by the rector. A subsequent contract was also made in practically the same form, that is, in the name of the corporation, but signed only by the rector. Subse- quently the church gave a mortgage on its property to raise money. This mortgage was signed by the president an<l secretary of the board of trustees, and authenticated by the rector with the seal of the corporation. The mortgage was authorized by the Supreme Court. The proceeds of the mort- gage were deposited in a bank in the name of the rector, and the money was drawn out by him from time to time, and used in part on payments on the contracts. The society was deemed to have knowledge of the various transactions by the

684 thp: civil law and the church

rector, aucl to have authorized or ratified the contracts made by him. He was the agent of the corporation, and it was bound by his acts. Condon v Church of St. Augustine, 112 App. Piv. (N. Y.) 168.

St. Annes Catholic Apostolic and Roman Church, Detroit, Michigan. This was an ancient French parish organized according to the methods of the Gallican Church, which elected lay trustees as managers of its temporalities. The treaty of Paris of 1763 recognized all these old organiza- tions as entitled to protection, and the act of 1807 was plainly designed to enable the parish to obtain record evi- dence of its corporate constitution under the American local government. The parish has been since affirmativel}' recognized by Congress, by the treaty-making power, and by the State as well as Territorial Legislature as owning land in Detroit and elsewhere. The governor and judges conveyed to the corporation at different times tracts of land, including the land in question with various restrictions as to occupancy and municipal rights. Cicotte v Anciaux, 53 Mich. 227.

Sexton's Salary. The church was held liable for the salary of the sexton employed by the majority of the trustees, of whom tlie priest in charge was one, and the liability of the church was not affected by the fact that the ladies of the altar had agreed to pay one half of the salary. St. Patrick's V Abst, 76 111. 252.

Sisters of St. Francis. About 1875 the superioress of the Convent of the Sisters of St. Francis, which had been located in Germany, with some thirty of the Sisters, came to Iowa City for the purpose of establishing a convent there. Need- ing additional accommodations to those at first used the par- ish priest contributed |500 for enlarged facilities, paying the money to the superioress on condition that it should be repaid if the society should abandon its purpose to estab- lish a convent, or if its work should be given up. The con- tract was made with the superioress as the agent of the society. The project to establish a convent having been

ROMAN CATHOLIC CHURCH 685

abaudoued, the priest broiiglit an action against the supe- rioress for the money so contributed. It was held that she was not personally liable for the debt. Emonds v Tenuehr, GO la. 92.

Slander, Excommunication. A priest during the Sabbath service made the following statement: "Maj- the Lord have mercy on two men, who brought me to court yesterday, bringing shame and scandal upon me; my curse and the curse of God be down upon Patrick Fitzgerald and I'atrick Butler, who brought me to court yesterday, bring- ing me shame and scandal, and that it renmin on them," The court said these words were not slanderous in them- selves, and were not made so by any averments in reference to the business of the plaintiff, and they did not make a defamatory charge. The i)riest at tlie same time ju'onounced an anathema and sentence of excommunication against Fitz- gerald, On demurrer, the court assumed that the priest possessed the power of excommunication, and, possessing this power, his sentence was a judicial act not reviewable by the civil courts. Fitzgerald was subject to the discipline of the diurch. If the i)riest had no ])ower to excommuni- cate, then Fitzgerald was still a member of the churcli, and had no cause of action for tlie attempted excommunication. A sentence of excommunication, even if i)ronounced by com- petent authority, and still more, if possible, when pro- nounced without authority, is incapable of impairing or affecting a man's civil rights. Fitzgerald v Robinson, 112 Mass. 871.

Spanish America. Roman Catholicism has been the oflScial religion of Spain since the time of the Msigoths. As far as tlie church in Spanish America was concerned, the King of Spain was supreme patron. Under the bulls of Julius II (150:vir)1.3) and Alexander VI (1492-1503) there were con- ceded to the Spanish crown all the tithes of the Indies, under the condition of endowing the church and providing the priest with proper support. The church in Spanish Amer- ica, through this royal patronage, came into possession of

(;8(; THE ^^I^ iL law and the church

cousiderable proi)erties. The right of the church to own, maintain, and hold snch properties was unquestioned, and the church continued in undisputed possession thereof. Down to the occupation of l*orto Rico by the American troops in August, 1898, amounts were regularly appro- priated by the Spanish government for the-exi)euses of wor- ship in Spain, Cuba, Porto Rico, and the riiilippines. Ponce V Roman Catholic Church, 210 U. S. 29G.

Spanish America, Limitation of Papal Authority. In 1792 property in Mobile, Alabama, was purchased by the King of Spain for the purpose of building thereon a parochial church, and dwelling house for the oflllciatiiig ])riest. The property was conveyed to the King. "The Avords used in the deed would indicate that it was contemplated by the intend- ant, at the time of the purchase, to approi)riate the lots to the purposes of the church, yet there is nothing in the deed which would oblige him thus to use them." A covenant to hold the property for the use of the local church might have been implied if the purchase had been nuide with the funds of the church, but clearly not where the royal chests alone had contributed the means of payment. The deed authorized the King to possess, sell, or alienate the property "at his sovereign pleasure." "Notwithstanding the venera- tion which the Spaniards have manifested for the Holy See, the vigilant and jealous policy of Ferdinand early prompted him to take precautions against the introduction of the papal dominion in the New World. For that i)urpose he obtained from Alexander Yl (1492-1503) a grant to the crown, of the tithes, in all the newly discovered countries, on condition that he would provide for the religious in- struction of the natives. Soon after, Julius II (150.'M51o) conferred on him and his successors the right of patronage, and the absolute dis])0sal of all ecclesiastical benefices there. The pontiffs, unacquainted with the value of what' Ferdinand demanded, bestowed these donations with an inconsiderate liberality, which their successors have often lamented, and wished to recall. In coTisequence of those grants the Span-

EOMAN CATHOLIC CHURCH HS7

isli mouardis became, in effect, the heads of the CatIioli<' Church iu their American possessions. In them the admin- istration of its revenues was vested. Their nomination of persons to sujjply vacant benefices was instantly supplied by the pope. Thus in all Spanish America authority of every species centered in the crown. There )io collision was known between spiritual and temporal jurisdiction. The King is the only superior; his name was alone heard of, without looking to a dependence upon any foreign power. I'apal bulls were not recognized as of any force in America until they had been examined and approved of by the Royal Council of the Indies; and if any bull was surreptitiously introduced and circulated in America, without obtaining that approbation, ecclesiastics were required not oidy to prevent it from taking effect but to seize all the copies of it and transmit them to the Council of the Indies. Thus limited was the ])apal jurisdiction in the Spanish posses- sions in America." Antones et al v Eslava's Heirs, 9 Port. (Ala.) 527.

Spanish Sovereignty. By the grants from I'ojje Alexander and Pope Julius II the Spanish sovereigns, Ferdinand and Isabella, became, in effect, the heads of the Catholic Cliurch in their American possessions. In them tlie administration of the revenues was vested. Their nominations of persons to sujiply vacant benefices was instantly su})])lied by the pope. Thus in all Spanish America authority of every species was vested in the crown. At that time no collision was known between spiritual and temporal jurisdiction. The King was the only sni)erior, his name alone was heard of, without looking to the dependence on any foreign power. Pai)al bulls were not recognized as of any force in America till they had been examined and approved of by the Royal Council of the Indies. Blair v Odin, 3 Tex. Rep. 288.

Spanish Supremacy in Colonies. The right of patronage in the Spanish colonies in America was expressly reserved to the King of Spain exclusively. This right of jjatronage

688 THE CIVIL LAW AND THE CHURCH

consisted in the right of the King to nominate and present archbishops, bishops, and other prelates, to the bishop of Rome, under the name of the pope, Avho approved of the same, unless the nominees had not the qnalifications pre- scribed by the canons, and gave the institntion necessary. The King also nominated and designated to tlie archbishops and bishops, snch priests as he destined to the service of the churches, and those prelates were bound, exce])t for good and legitimate reasons, to grant to such priests the canon- ical institution necessary for the functions and powers of their office ; and all persons, whether secular or ecclesias- tical, were forbidden to exercise this right of patronage or presentation. Wardens of the Church of St. Louis v Blanc, 8 Rob. Re. (La.) 52.

Students, Voting Residence. A person was not permitted to enter St. Joseph's Seminary, Yonkers, New York, or remain therein, unless he intended in good faith to become a Roman Catholic priest, and renounced all other residences or homes save that of the seminary itself, and upon his admission to the priesthood he was to continue in the seminary until assigned elsewhere by his ecclesiastical superiors. The New York constitution provides that "for the purpose of voting no person shall be deemed to have gained or lost a residence while a student of any seminary of learning." It was held that the mere residence in the seminary under the conditions stated did not entitle the student to vote in Yonkers. Matter of Barry, 164 N. Y. 18.

Texas. By the successful revolution the republic of Texas became possessed of the riglit and title to all the land, or public domain, that belonged to the government of Mexico at the date of the revolution by as full and perfect title as was vested in that government, or in the government of Coahuila and Texas. Blair v Odin, 3 Tex. Rep. 288; see also subtitle above, Mexico and Texas.

Unincorporated Church, Trust Sustained. A bequest of a sum of money to trustees for the purpose of maintaining a church on tlie testator's farm, although the chnrcli had not

ROMAN CATHOLIC CHURCH 689

been and could no! be incorporated, was sustained in Seda v Huble, 75 la. 421). The will created a valid trust.

Woodstock College, Maryland. The bequest was to the ''Col- lege of the Sacred Heart of Jesus situated at Woodstock, Howard County, Maryland." The evidence showed that this was a misnomer, Woodstock College being the beneficiary intended. Under the Maryland Declaration of Rights this society could not take a legacy without the sanction of the Legislature. The court allowed the legatee time to apply to the Maryland Legislature for the required sanction, and directed the legacy to be held to await the result of the application. Matter of Fitzimmous, 29 Misc. (N. Y.) 731.

A legacy was given to Woodstock College, Howard County, Maryland. This college is located in Baltimore County in- stead of Howard County. This was the only Woodstock College in Maryland, and it was therefore held to be the college intended by the will. Kerrigan v Conelly, 46 Atl. (N. J.) 227.

SALVATION ARMY

Described, 690.

Devise sustained, 690.

Municipal ordinance, Kansas, 691.

Municipal ordinance, Michigan, 691.

Municipal ordinance. New York, 691.

Municipal ordinance, Pennsylvania, 691.

Described. The Salvation Army is an nnincorporated reli- gions society having its headquarters in London, England. The officers of the organization have militar}- titles. Tlie head officer in England is called "General," the subordinate officer, who is head of tlie organization in the United States, is called "Commander" ; a "major" has charge of a division of the country, and a "captain" has charge of a local post or barracks. While these officers have military titles, they perform duties similar to those of the officers in other reli- gious denominations. Thus a commander corresponds to a bishop, a major to a presiding elder, and a captain to a min- ister or pastor. The barracks is the church. The property of the society in this country is held in the name of the commander, and he is appointed by the general in England. Lane v Eaton, 69 Minn. 141.

Devise Sustained. Testator gave a fund to trustees for the St. Paul branch of the Salvation Army, to be used for the purchase of a lot on which the Army was to erect a build- ing for the purpose of its meetings, and if the local branch should be legally organized, the trustees were directed to convey the property to the corporation. The Salvation Army was not incorporated. It was held that the devise to the local branch, which was not incorporated, was invalid, but that the branch might become incorporated under tlie sta- tute within a reasonable time, and would then be entitled to the i)roperty. Lane v Eaton, 00 Minn. 141.

690

SALVATION ARMY G91

Municipal Ordinance, Kansas. Certain members of the branch of the Salvation Army in the city of Wellington, Kansas, were arrested, charged with the violation of a city ordinance prohibiting parades without a license. In Ander- son V Wellington, 40 Kan. 173, the ordinance was declared to be illegal and void, because it was unreasonable and did not tix the conditions uniforaily and impartially, and con- travened common right.

Municipal Ordinance, Michigan. Meuibers of the Army in this city (Grand Kapids) paraded the streets without ob- taining the mayor's license, as required by an ordinance. A member of the band was arrested for violating the ordinance. It was held that the ordinance was unreasonable. It is not competent to make any exceptions either for or against the Salvation Army because of its theories concerning practical work. In law it lias the same right, and is subject to the same restrictions in its public administrations as any sec- ular body or society which uses similar means for drawing attention or creating interest. Matter of Frazee, (Jo Mich. 396.

Municipal Ordinance, New York. Members of this organiza- tion in Kochester were on a Sunday afternoon walking on a sidewalk on a public street in single file toward and near their barracks. Some of them were singing a religious song and one carried a small flag. Their object was to attract outsiders to their army barracks where a religious meeting was to be held. The persons so nuirching were arrested for violating a city ordinance against disturbing the public peace, and were convicted. On ai)i)eal the judgment of con- viction was reversed, the court holding that the act of the defendants did not, under the circumstances, constitute a violation of the ordinance. People v Rochester, 44 Hun (N. Y.) 1()(>.

Municipal Ordinance, Pennsylvania. In Wilkes-Barre an ordinance was adopted which, among other things, prohib- ited the beating of a drum in a public street without a per- mit from the mayor. An ensign in the Salvation Army vio-

«J)2 THE CIVIL LAW AND THE CHURCH

lated the ordinance by beating a drum at an open-air meet- ing in a public street without a permit. He defended his act by alleging that the ordinance was void as an infringe- ment on religious liberty as guaranteed by the Pennsylvania constitution, and also as obnoxious to the fourteenth amend- ment to the federal constitution. It was held that the ordinance was a valid exercise of police power and did not infringe the religious liberty of a member of the Salvation Army. "The mere beating of a drum is not a part of divine worship. Nor are we aware that any other sect or denomina- tion of Christians has ever introduced a bass drum into the instrumentation of their music. The city ordinance is not directed against their doctrine or dogmas, their faith or their forms." Wilkes-Barre v Garabed, 11 Pa. Sup. Ct. 355.

SCHISM

Defined, 693.

Effect on property rights, 693.

Defined. The term means a division or separation in a church or denomination of Christians occasioned by divers- ity of opinions. Nelson v Benson, Gt) 111. 27.

A schism is defined by lexicographers to mean, in a gen- eral sense, division or separation ; but," appropriately, a divi- sion or separation in a church or denomination of Chris- tians, occasioned by diversity of opinions, or breach of unity among people of the same religious faith, and its use in the Kentucky statute in connection with the word "division" certainly imports no more than a separation of the society into two parts, without any change of faith or ulterior rela- tions. McKinney v Griggs, 5 Bush. (Ky.) -iOl,

Effect on Property Rights. The universal rule is that where there is a schism in a church those remaining faithful to the tenets of the church at the time of the dispute, whether they be in the majority or the minority, are entitled to hold the property. Boyles v Roberts, 222 Mo. 613.

693

SCHOOLHOUSE

Other use, 694.

Other TTse. In Scofield v Eighth School District, 27 Conn. 41)0, it was held that the inhabitants of a school district have no right to use the schoolhouse of the district for reli- gious meetings and Sunday schools against the objection of any taxpayer of the district, even though the district may have voted to allow such use.

School authorities have no power to grant the use of a public schoolhouse for the purpose of conducting a Sunday school therein. Dorton v Hearn, 67 Mo. 301.

Its use cannot be authorized for general purposes not con- nected with education. Spencer v Joint School District, 15 Kan. 259.

In State v Dilley, 145 X. W. (Neb.) 999, it was held that holding Sunday school or religious meetings in a country schoolhouse not exceeding four times a year, and not so as to interfere with school work, did not constitute the schoolhouse a "place of worship" within the Nebraska Con- stitution, art. 1, sec. 4.

094

SECESSION

Abandonment, when deemed effective, 695.

Changing denominational relations, 696.

Congregational, 696.

Consent, when necessarj', 696.

Diversion, 696.

Division of property, 696.

Effect, 697.

Effect on property rights, 697.

Forfeiting church property, 699.

J'orfeiting property rights, 700.

Injunction, 700.

Lutherans, 700.

Majority's right, 701.

Minority's right, 702.

PoUtical differences, 704.

Presbyterian Church, 705.

Proof necessarj', 705.

Right of. 705.

Roman Cathohc, 706.

Temporary- withdrawal. 706.

Trust fund, 706.

Trustees, seceding, 706.

United Brethren, 706.

Abandonment. When Deemed Effective. A seceding minor- ity from the (ieneral ('((iifeiem-e, tlie highest legislative au<l judicial body in the church, must, in general, be regarded as abandoning the church ; nor is there anj' exception to this rule unless in the case of a usurj»ation of j>ower in the gov- erning body so revolutionaiy in its character as to result either in the creation of a new and e.sseutially different organization, or in such a radical change of the articles of faith as to constitute an essentially different religion from that previou.sly followed by the church. Horsman v Allen, 129 Cal. 131.

695

696 THE CIVIL LAW AND THE CHUKCH

Changing Denominational Relations. In 1858 a portion claiming to be the majority of the congregation of the Asso- ciate Reformed Church at Seneca, New York, voted to dis- solve its connection with the United Presbyterian Church and join the Rochester City Presbytery of the Old School Presbyterian Church. The minister of the local church had already taken the same step and had been admitted to tlie Rochester Presbytery. This local society tlien became, in effect, part of the Rochester City Presbytery of the Old School Presbyterian Church. If a religious society thinks j)roper to separate from the church with which it has pro- fessedly been connected and to form a connection with an- other denomination, the trustees have the power to employ such minister as they think fit, and to exclude from the pulpit a minister appointed by the ecclesiastical judicatory with which the society was professedly connected. Burrel V Associate Reformed Church, Seneca, 44 Barb. (N. Y. ) 282.

Congregational. In a Congregational church the majority, if the}' adhere to the organization and to the doctrines, represent the church. An expulsion of the majority by a minority is a void act. Bouldin v Alexander, 15 Wall. (U. S.) 131.

Consent, When Necessary. Tlie members of a church attll- iated with others of the same denomination and connec- tional relation cannot, by resolution, secede from the main body and establish a new church without the consent of the general church or its authorized agent. American l*rim- itive Society v Pilling, 4 Zab. (N. J.) 653.

Diversion. When property is held by a religious society in trnst for its members, none of the mend>ers, tliough they constitute a majority, have any right or power to divert the in-operty to the use of another and different church organ- ization ; and the fact that they procure a change of the name of the corporation by order of court cannot aid them in sucli diversion. Baker v Ducker, 79 Cal. 365.

Division of Property. In case of a division of a religious

SECESSION G97

society or corporation, where both parties still adhere to the tenets, doctrines, and discipline of the organization, the property should be divided between tliem in proportion to their members at the time of the separation. Hale v Everett, 53 N. H. 1.

In 1845 land was conveyed to trustees of the local society called Dunkers, or Tunkers, on which land a meetinghouse was afterward erected with contributions from members of the society. In 1S82 a division arose in tlie society, one sec- tion withdrawing and organizing a new society, calling themselves l*rogressives. Those remaining called themselves Conservatives. It was held that the Progressives were not entitled to the projicrty, but must be deenied to have seceded from the society, but the court suggested that in view of the fact that there was no serious diti'erence of opinion on the questions relating to faith and doctrine, and that all parties desired to avoid litigation, an agreement be made between them by which the i)roperty should be sold, and the proceeds divided, one third to the Progressives, and two thirds to the Conservatives, such proceeds to be used by the respective societies in the erection of inde[)endent houses of worship, and otherwise carrying forward the work of tlie society. Ex parte Shoup, 9 Ohio Dec. 618.

Effect. The seceding members of tlie church congregation relinquish all claims ujton the original church proi)erty. Lutheran Congregation, Pine Hill v St. Michael's Evangel- ical Church. 48 Pa. St. 20.

Effect on Property Rights. Where the congregation oi a church is divided the title to the property is in the part, though a minority, which is in harmony with the laws, usages, and customs accepted by the body before the divi- sion, and which adheres to the regular organization. Bose V Christ, 193 Pa. St. 13.

The title to church property in case of a division of a religious corporation, remains with that portion of the church which adheres to the tenets and discipline of the organization to whose use the property was originally dedi-

698 THE CIVIL LAW AND THE CHURCH

cated, even although it may be in a minority. Ferraria V Vasconcelles, 23 111. 456, 31 111. 1.

There is no doubt about the right of individual members of a church organization to secede therefrom at will. The same is true of any number of members of such organiza- tions ; but no number, however great the majority may be, has the right to secede and take the cliurch property with it to the new affiliation, so long as there remains a faction which abides by the doctrines, ]»rinci]>les, an<l rules of the church government which the united body professed when the land was acquired. Karoly v Hungarian Reformed Church, S3 N. J. Eq. 514.

The local society was declared to be a part of the German Reformed Church of the United States, and subject to a specified classis. Several members of the church, by elec- tions and various proceedings, sought to make the church independent, and rejected the authority of the classis. It was held that those members and officers who adhered to the original organization were entitled to the possession and control of the church property, and that the seceders had no power to make the church independent. Roshi's App., 60 Pa. St. 462.

The question arose as to the right to use a chapel which had been erected for the use of one particular class of seceders from the Established Church of Scotland. Certain members of the seceding class again seceded from that class and established a new group of seceders, who thereupon claimed the jjossession and control of the chapel. The original society for which the chapel had been erected was connected with the Associate Synod. The court held that, according to the facts presented on the trial, both parties claiming the property still adhered to the religious per- suasions and principles of the Associate Synod, to which were attached the members of the local society at the time the chapel was erected, but that one party continuing to occupy the property while the other did not, it was in effect declared that the party actually in i)ossession should not

SECESSION 099

be disturbed. Craigdallie v Aikman, 2 Bligh (Scotland) 529.

When the members of a religious congregation divide, and gne faction breaks away from the congregation and forms a new organization, the title to the property of the congre- gation will remain in that part of the congregation which adheres to the tenets and doctrines originally taught by the congregation to whose use the property was originally dedi- cated. Christian Church of Sand Creek v Church of Christ of Sand Creek, 219 111. 503.

This society was chartered as a branch of the German Evangelical Keformed Church in the United States, subject to the synod of that church, "and was in all respects to be governed by its rules and regulations"; and a charter expressly prohibited any alteration in the congregation for another denomination. Two parties having arisen claiming different views as to church government, the plaintiffs began an action to restrain the defendant from exercising control over the property. It was held that the plaintiffs were the true church and entitled to the possession of the property. The defendants were held to be seceders. Schnorr's Appeal, 67 Pa. 138.

The members of the church in Cincinnati became incor- porated under the general act of 181 J), and in 1827 they were incorporated by a special act of the Legislature. Afterward the treasurer of the society and other members withdrew and organized another society under a different name, built a church, and conducted worship therein. After the seces- sion, the remaining members elected trustees and appointed a new treasurer in place of the one who had joined the seced- ing party. The new treasurer brought an action against the former treasurer to recover the sum of money remaining from the proceeds of the sale of the burying ground owned by the society. The plaintiff' recovered judgment. Meth- odist Episcopal Church, Cincinnati v Wood, 5 Ohio 283.

Forfeiting Church Property. Land was conveyed to a local society to be held and enjoyed by it so long as it should be

700 THE CIXIL LAAV A^l) THE CHURCH

coiiuected with a particular syuod. It was held tluit the society, by withdrawing from that synod and joining an- other forfeited its interest in the property. Rodgers v Burnett, 108 Teun. 173.

Forfeiting Property Rights. It is well settled that mem- bers who secede from a church organization, or a religious society, thereby forfeit all right to any part of the church property; and whether there has been a secession or not, within this rule, is a mixed question of law and fact, to be decided upon the evidence with a view to all the circum- stances, including the acts of the parties and the motives which have prompted such acts. Hale v Everett, 58 N. H. 1.

Where a portion of a church congregation refuses to ad- here to the distinctive tenets imposed upon members of the congregation, and secedes and adojrts new tenets or a new belief, it forfeits its rights in the church property. Rex v Wasyl Kapij, 15 Manitoba Re. 110.

Injunction. The property of a church must be held and used in trust for the promulgation of the generally accepted doctrines of that church, and members departing therefrom and causing a schism therein, will be enjoined from control- ling or interfering with its management. Christian Church V Carpenter, 108 la. 647.

Lutherans. In 1815 testator by his will made a bequest to the Lutheran congregation in Selinsgrove to be invested in specified securities "for the use of the said congregation forever." The local church was attached to the old Penn- sylvania t^ynod of the Lutheran Church, of which the West Pennsylvania Synod was a part. In 1843 a portion of the members became dissatisfied with the new measures and doctrines introduced into the church by their minister and thereupon gave him notice that his services were no longer required, and finally closed the doors of the church against him. The members who accepted the teachings of the min- ister erected a new church building and organized a society of which this minister became i)astor. Those who rejected the teachings of the minister continued to occupy the orig-

SECESSION 701

iiial cliui-cli building aud invited a new pastor, who was recognized by the old Pennsylvania Synod. The congrega- tion worshiping in the new church was attached to the East Pennsylvania Synod. The East and West Synods did not recognize each other. Each congregation claimed to be the Lutheran Church to which the legacy was given. In an action involving the title to the legacy it Avas held that the Lutheran congregation in Selinsgrove, holding and teach- ing the doctrines which were held and taught when the testator was a member of it, and when he made his will, was the congregation entitled to the bequest. App v Lutheran Congregation, 0 Pa. St. 201.

Majority's Right. Dissensions having arisen in the society, a minority withdrew and attempted to organize another society under the same name. It appeared that the original society was Congregational in character, and was to be con- trolled by a majority of its members. In an action to pre- vent the minority from asserting title, and claiming pos- session of the jjroperty, it was held that the majority was entitled to the possession and control of the church property. Gipson V Morris, 3G Tex. Civ. App. 593. See also 31 Tex. Civ. Api). C-tS, 28 Tex. Civ. Api3. 555.

The wrongful and violent seizure of the edifice and prop- ert}^ belonging to a church of the Congregational form of government by a minority of the members, contrary to the wishes of a majority, the deposition of officers of the church and of trustees who held the property, and the retention and use thereof by the minority to the exclusion of the majority, furnish good grounds for equitable relief. Bates v Houston, 66 Ga. 198.

A minority of the members, in response to an invitation from the pastor made while he was occupying the pulpit, decided to secede from the local church and set up for them- selves, claiming to be the true United Baptist Church at Lulbegrud. They alleged that the majority had gone out from the society and abandoned the Baptist L^nion. For a time each party occupied the church edifice on diff'ereut Sun-

702 THE CIVIL LAW AND THE CHURCH

days iu each mouth. The majority party instituted proceed- ings to obtain the exclusive possession and right to use the church. It was held that this party must be considered the church, and entitled to the exclusive possession and en- joyment of the church property; that the minority party, having expended large sums for repairs and improvements on the property, was entitled to reimbursement, and to use the church property until such reimbursement had been nuide. Hadden v Chorn, 8 B. Mon. (Ky.) 70.

The society had an existence as far back as 1790. Until 1855 the church property was occupied by the society in harmony. At that time differences arose in the society resulting from some practices initiated by the pastor. A secession occurred, and another society was organized, and the seceding minority brought an action against the major- ity to obtain possession of the church property. It was held that the title to the property remained in the successors of the original congregation, and that the minority, the seceding party, could not assert any title thereto, and had no right to the possession thereof. The congregation was at first attached to the West I'ennsylvania Lutheran Synod. Lutheran Congregation, Tine Hill v St. Michael's Evangel- ical Church, 48 Pa. St. 20.

Minority's Right. In Brown v Monroe, 80 Ky. 443, mem- bers of a colored church under the jurisdiction of the Method- ist Episcopal Church. South, withdrew and attached them- selves to the African Methodist Episcopal Church of the LTnited States, and used, and claimed the right to use the local church property. It was held that the right to the possession and use of the property remained in those mem- bers of the local church who did not withdraw, but who adhered to the Methodist Episcopal Church, South. The seceders had no right to the property.

In 1827 the major part of the church, including the dea- cons, with others constituting a minority of the parish, formed a new society under the name of the Evangelical Religious Society in the south ])arish or precinct of Brook-

SECESSION 703

field. Others remained in the origiual society and employed a new pastor. This society elected the plaintiff as its sole deacon. Each society claimed to be the true church.

It was held that an adhering minority of a local or terri- torial parish, and not the seceding majority, constituted the church of such parish for all civil purposes. Therefore the plaintiff, as a representative of the original society, was entitled to the possession of the property. Stebbins v Jen- nings, 10 rick. (Mass.) 172.

A minority or seceding party cannot destroy the identity of a religious society or church by claiming to be itself the society or church. Hadden v Chorn, 8 B. Mon. (Ky.) 70.

The separation of a majority of the members did not affect the status of the property, but the minority remaining were to be deemed the legal society. Baker v Fales, 10 Mass. 488.

Plaintiffs, a minority of a local society, brought an action to restrain the majority from a.sserting title and right of possession and control of the church property. The division arose out of differences concerning certain points of doc- trine. A church council to which the question was referred decided, on an ex parte hearing, that the plaintiffs, the mi- nority party, represented the true church, and that the defendants, a majority, were seceders, and had adopted doc- trines not generally accepted by Baptists, but the majority ignored this decision. The court held that the majority party was entitled to control the property, at least until they have been shown to have ceased to constitute the church by departing from its fundamental faith. The court de- clined to consider the question as to which party most nearly represented tJie true faith of the church. Jarrell v Sproles, 20 Tex. Civ. App. 387.

Any number of the members of a church who disagree with other brethren, or with the minister, or with the parish, may withdraw from fellowship with them and act as a church in a religious point of view, having the ordinauces admin- istered and other religious offices performed. As to all civil purposes, the secession of a whole church from the parish

704 THE CIVIL LAW AND THE CflUKCH

would be au extiiiotiou of the church, aud it is competent to the members of the parish to institute a new church or to engraft one upon the old stock if any of it should remain; and this new church would succeed to all the rights of the old in relation to the parish. Where a majority of the mem- bers of a Congregational church separate from the majority of the parish, the members who remain, although a minority, constitute the church in such pai-ish, and retain the rights and property belonging thereto. Baker v Fales, 16 Mass. 488.

Political Differences. A church edifice was erected in 1847, and the congregation continued as one harmonious body until the close of the Civil War. Soon afterward the loyal portion of the congregation, including two out of three elders, but constituting a minority of the membership of the church, on account of difference of political sentiment, procured the discharge of the minister, took possession of the church, and employed another minister. About 1857 or 1858 the Jonesboro church connected itself with the United Synod, of the Presbyterian Oiurch in the United States, and had kept up and continued that connection until the union of the body with the Old School Presbyterian As- sembly in 18G4. After the war the minority of a congrega- tion, without notice to the majority, assumed to carry the church back to the New School Presbyterian Church North. Subsequently the majority reorganized the Jonesboro church, not as a secession, but as the church itself. It was held that the effect of the purchase or donation of land for church purposes, and the erection of an edifice thereon, was to provide that the building should be used for the pur- poses of the Presbyterian congregation as organized, and as it might continue to be in the future, and for all time to come. Such organizations are self -perpetuating. The minor- ity could not exclude the majority. Tliere was no com plaint against the majority, growing out of any change of religious opinions. The only differences were of a political character. It was held that the action of the minority in

SECESSION 705

excluding the majority, and in taking possession of the church, was unauthorized and void; that the minority did not constitute the church, and could not make itself the church by any declaration of its own. The majority was declared to be entitled to the possession of the church prop- erty' and archives for the reason that it constituted the Pres- byterian Church in Jouesboro. Deaderick v Lampson, 11 Heisk. (Tenn.) 523.

Presbyterian Church. The standards of the church teach that this right of secession is fundamental in every branch of the associate church, when any may judge such a step proper or necessarj- ; not only is it a right, but it is a duty to separate from a church corrupt in principle, or perhaps fallen into gross error and doctrine. Skilton v AVebster, Brightly N. P. (I»a.) 203.

Proof Necessary. Before corporators can forfeit their membership they must be proved to have seceded from the corporation of which they are members. If a portion secede, and the rest, however small their number, adhere, the adher- ents by their fi<lelity secure their corporate existence, and are entitled to all the privileges and property* of the corpo- ration. Harmon v Dreher, 1 Speer's p]q. (S. C. ) 87.

Right of. In Smith v Nelson, 18 Vt. 511, it was said that tlie society and tlie denomination of which it formed a part, were founded on the princii)le that it is both the right and duty to secede, as was done by Erskine and others in 1733, fi-om the prevailing party, who may obtain a majority in the judicatories, synods, and assemblies, when in the opin- ion of the seceders such majorities have departed from the Word of God, and received and approved standards of doc- trine, worship, government, and discipline.

In the absence of testimony it will be presumed that reli- gious societies cannot dissolve their connection with the principal organization without permission. If the right to withdraw by a church at pleasure does exist, according to the constitution, government, and usages of the general organization, it must l)e jtrovcd as a fact, and, like any other,

706 THE CIVIL J.AW AND THE CHUKCH

muvst depend upon the evidence deduced ou the trial. Vas- concellos et al v Ferraria et al, 27 111. 237.

Roman Catholic. The society was divided and two congre- gations formed therefrom, one retaining the original name, and the other taking a new name — St. Peter and St. Paul Catholic Congregation. This division was made with the approval of the bishop of the diocese. The original property was sold to the original congregation, and a bond was given to the new congregation for its interest in the property. In an action on the bond it was held that there was a valid consideration for the contract resulting from the division and separation and the agreed apportionment of the original property. Arts v Guthrie, 75 la. 674.

Temporary Withdrawal. Part of the members withdrew from the society (Swedish Church) and organized another church. They subsequently returned to the original society. Their withdrawal was held not to be a secession from the church but only a temporary separation from the local societ3\ Peterson v Samuelson, 42 Neb. 161.

Trust Fund. Seceders from a religious society are not entitled to share in the benefits of a fund held in trust for the society. Attorney-General ex rel Abbot v Dublin, 38 N. H. 459.

Trustees, Seceding. Before the persons seceding from a religious corporation or society can recover possession and control of the church property by virtue of being the right- ful trustees of such corporation, against those who have remained in continuous possession and control, claiming to be such rightful trustees, tliey must have been peaceably admitted to the offices of such trustees, or have established their title thereto by some direct proceeding or action brought for that purpose. Fadness v Braunborg, 73 Wis. 257.

United Brethren. Property was held in trust for a certain sect, the United Brethren in Christ, and at a General Con- ference, which constituted the highest authority in the sect, an amended constitution and revised confession of faith

SECESSION 707

were adopted. A small part of the General Conference seceded, claimed to be the true representatives of the church, and demanded the benefit of the property. It was held that where such changes do not conflict with any formal doctrinal matter, nor with the substance of the faith, and are adopted in the method provided for by the constitution of the church, the schismatics cannot obtain aid from the courts. Griggs V Middaugh, 10 Ohio Dec. 643.

A division in the United Brethren Society at Fairview, Ohio, resulting from the adoption of an amended constitu- tion and a revised confession of faith by the General Con- ference of 1889, after which a minority withdrew and or- ganized a new society, did not give such nnnority a right to the property of the local church. The majority who adhered to the original organization were entitled to such property, and to its possession and control. Brundage v Deardorf, 92 Fed. 214, aff'g 55 Fed. 839.

The effect of a withdrawal of mend)ers from the church of the United Brethren in Christ in Canada was considered in Brewster v Hendershot, 27 Out. App. 232 (see article on United Brethren in Cliristi, where it was held that persons who adhered to the original denomination were entitled to control the property, and that the seceders had not and could not acquire any i-iglit to the property, and could not exercise any control over it.

SECTARIAN INSTITUTION

General, 708.

General. Considering the provision of the Illinois consti- tution prohibiting appropriations by the State, or by a municipal corporation in aid of a church, sectarian school, or other institution controlled by a church or religious de- nomination, the court said that appropriations for the sup- port of inmates were in aid of the institution. The rendi- tion of service by the institution in giving instruction to children committed to it is not the criterion by which ques- tions of aid must be determined. The institution is secta- rian if it is under the distinctive control of a particular reli- gious denomination and teaches its own faith and creed to the inmates to the exclusion of any other faith or creed. Cook County v Industrial School for Girls, 125 111. 540.

In Sargent v B'd. of Education (Rochester) 177 X. Y. 317, it was held that St. Mary's Boys' Orphan Asylum of the city of Rochester was neither a school nor an institution of learning within the meaning of sec. 1 of art. 9 of the consti- tution prohibiting the payment of public moneys to a de- nominational school or institution of learning, but, on the contrary, was an orphan asylum within the meaning of sec. 14 of art. 8 of the constitution permitting the payment of public moneys for the secular education of the inmates therein. The fact that such asylum was controlled by a religious organization and that the teachers employed by the Board of Education, who were duly licensed to teach by the public authorities, were members of a sisterhood con- nected with such denomination, is immaterial, since the statute clearly recognizes the fact that the instruction of the inmates is neither practicable nor possible elsewhere

708

«ECTAKIAN INkSTITUTION 709

than ill the institution itself, and it is the duty of the board to provide for their secular education therein, regardless of the religious belief of those in control of the asylum. It appeared that no denominational tenet or doctrine was taught or religious instruction imparted in the asylum dur- ing the hours of school prescribed by the rules and regula- tions of the Board of Education, but religious instruction was given in the evening at seven o'clock.

SECTARIAN INSTRUCTION

Illinois Industrial School for Girls, 710.

lUinois, 712.

Iowa, 713.

Kansas, 713.

Massachusetts, 713.

Meaning, how determined, 714.

Nebraska, 714.

Ohio, 714.

Pennsylvania, 715.

Prayer, 715.

South Dakota, 716.

Taxpayers' presumption of consent, 716.

Texas, 717.

Wisconsin, 718.

Illinois Industrial School for Girls. This institution was by statute authorized to receive dependent female infants, committed thereto b}^ the county court, and to keep them until they arrived at the age of eighteen years, unless sooner discharged according to law. The county judge made certifi- cates from time to time, approving bills for clothing for the girls, such bills to be paid by the county treasurer. In an action by the sdiool against the county for tuition, care, and clothing, a judgment was recovered for the amount established. The Cook County commissioners refused to pay the judgment on the ground that they were forbidden by the constitution, art. 8, sec. 3, which, among other things, pro- hibited any a])propriation by tlie State or any municipality in aid of any church or sectarian purpose or school or other educational institution controlled by any church or sec- tarian denomination.

Tlie operations of the Industrial Scliool were carried on through two Roman Catholic institutions, and on the prem-

710

SECTARIAN INSTRUCTION 711

ises and in the buildings of such institutions, known as the House of the Good Shepherd and St. Joseph's Orphan Asy- lum, which were respectivel}' under the supervision and con- trol of orders of Sisters known as the Sisters of the Good Shepherd and Sisters of Cliarity. In each institution dis- tinctively Konuin Catholic religious exercises were observed at different times during the day. and no religion was taught except that of 11i«' Konian Catholic Church. Koth institu- tions conducted schools for the instruction of children. The court lield tliat both the institutions — the House of the Good Shej)herd niid St. .Iosci)irs Asylum — were schools exclusively maintained by the Roman Catholic Church, and were there- fore to be classed as sectarian institutions. As bearing on the ([uestion of the character of the House of the Good SIiei)herd, it was shown that a county judge of Cook County was refused admission to the institution, and was informed that he must have a permit from the bishop or some other Catholic gentleman in good standing.

The huhistrial School was incorporated, an<l had received authority to accept dei)endent female infants under the stat- ute. Seven of the officers of the Industrial School were officers and managers of the House of the Good Shej)herd, and the remaining two officers of the school were Roman Catholics. At the time of the commencement of the action the Industrial School had no building or other property. The children nominally sent to the Industrial School were mixed with other ])ersons sent to the House of the Good Shei)herd. There was no separate classification. It was shown that a large number of girls already in the House of the Good Shepherd and the Saint Joseph's Orphan Asylum were taken into the county court and adjudged to be de- pendent, and were thereupon committed to the Industrial School, but, in fact, returned to the institutions from which they had been brought. It was held that the payment of the amount claimed by the Industrial School would be a payment in support of schools controlled by a church, and in aid of a sectarian purpose. It w;is held further that the

712 THE CIVIL LAW AND THE CHURCH

Iiulustrial School uever having established and maintained an industrial school for girls, as contemplated by the act of 1879, it was not entitled to avail itself of the provisions of that statute. The act did not contemplate the organiza- tion of nominal industrial schools, and the care of persons committed to them by other institutions, but each school organized under the act was expected to maintain a home of its own for the reception of children committed to it. Cook County v Industrial School for Girls, 125 111. 540.

Illinois. The Board of Education, acting under statute authority, leased for school purposes the basement of a Roman Catholic church. It was held that the board had power, and it was its duty, to lease a building for school purposes, if the district had no schoolhouse, or the school- house had become unfit for use, and the renting of a part of a Roman Catholic church was not legally objectionable. It appeared that Roman Catholic teachers and children of Catholics were required to attend at a Catholic church, the basement of which was used for the school, at eight o'clock in the morning on school days, and hear mass read by the priest, and then repair to the schoolroom, and engage in the study of the church catechism for half an hour before the opening of the school, and at the close of the school at noon the Angelus prayer was read by the teachers and pupils.

In a proceeding to prevent the use of school funds for sectarian instruction it appeared that the plaintiff had no children which would be affected by the religious exercises in the church before school, and that there was no ground for equitable relief. It was alleged that the Board of Edu- cation had threatened to employ Catholic teachers. It was held that the law did not prescribe any religious belief as a qualification of a teacher in the public schools, and there- fore the school authorities might select a teacher who be- longed to any church, or to no church, as they might think best. Milliard v Board of Education, 121 111. 297.

SECTARIAN INSTRUCTION 713

Iowa. Teachers iu the .school were accustomed to occupy a few minutes each morning in reading selections from the Bible, in repeating the Lord's Prayer, and sinking religious songs. The plaintitl' had two children in the school, but they did not attend these exercises. He requested their dis- continuance, but his recpiest was refused. The Iowa statute contained the following provision : "The Bible shall not be excluded from any school or institution in this State, nor shall any ])UpiI be reijuired to read it contrary to the wishes of his paient or guardian."

It was held that this did not violate the pro\ision of the Iowa constitution that "the General As»;enib]y sliall make no law respecting an establishment of religion, or prohibit- ing the free exercise thereof; nor shall any person be com- pelled to attend any ])lace of worship, pay tithes, taxes, or other rates, for l)uilding or repairing plac(>s of worshijt, <n the maintenance of any minister or ministry." and that the plaintitF was not entitled to the relief sought. The school - house did not by the religious exercises described become a house of wor.ship within the meaning of the (•onstitutit>n. Moore v Monroe, 04 la. 3(>7.

Kansas. In Kan.sas it was held (Billiaid v Hoard of F.du- <atioii, Topeka. <!!> Kan. i)'.i) that repeating; oi- reciting tlu; Lord's Prayer and the Twenty-third Ps;ilin in pnlilic sdntols did not constitute an act of religions \\«>rsliii(, an<l did not violate the constitution and statute, nor did it constitute sectarian instruction or the teaching of leligions doctrine. The Lord's Prayer and the Twenty-third Psalm were repeated by the teacher without response, comment, or remark. The.se and other opening exercises occupied about fifteen minutes, and the i>uj»ils were not n'cpiired to take part in them but were only required to preserve order and proper decorum.

Massachusetts. The school committee of the town had authority to make an order that the Bible .should be read and prayer offered at the opening of the schools on the morn- ing of ea<h day. But su<h an order conld not be made if

714 THE CIVIL LAW AND THE CHUIICH

the enforcemeut of it violated the religious convictions of the pupils. A school committee had power to exclude from the school a pupil violating the order unless the parents of the child had requested that he be excused from the ob- servance of the rule. Spiller v Woburn, 12 Allen (Mass.) 127.

Meaning, How Determined. In State v Hallock, 16 Nev. 373, the court for the purpose of determining the meaning of the phrase "sectarian purposes" examined the history of the State, in relation to ap^jropriations, as shown by the statutes and legislative journals. It was held that the word "sectarian" was used in its popular sense, and a religious sect was defined as a body or number of persons, united in tenets, but constituting a distinct party by holding doc- trines different from those of other sects or people, and it was said that every sect of that character is sectarian within the meaning of that word as used in the constitution. The Nevada Orphan Asylum, a Roman Catholic institution, was held to be sectarian and not entitled to share in an apj^ro- priation of public funds.

Nebraska. Exercises in public schools, consisting of the reading of passages selected by the teacher from a book com- monly known as King James version, or translation, of the Bible, in singing certain religious and sectarian songs, and in offering prayer to the Deity according to the customs and usages of the so-called orthodox evangelical churches of this country, and in accordance with the belief and practices of such churches, the pupils joining in the singing of such songs, and hymns, constitute religious worship and are sectarian in their character within the meaning of the con- stitution of Nebraska. State v Scheve, 65 Neb. 853.

Ohio. The constitution of the State does not enjoin or require religious instruction, or the reading of religious books in the public schools of the State. The Legislature having placed the management of the public schools under the exclusive control of directors, trustees, and boards of education, the courts have no rightful authority to interfere

SECTARIAN INSTRUCTION 715

by directing what instruction shall be given, or what books shall be read therein. Board of Education of Cincinnati V Minor, 2:5 Ohio St. 211.

Pennsylvania. Members of this order were employed as teachers in the public schools at Gallitzin Borough, Penn- sylvania. There was no evidence of religious instruction during school hours. But after school hours tJie schoolroom was used by the teachers in imparting Catholic religious instruction to children of Catholic parents, with the consent of, or by re(picst of, the parents. The Catholic teachers wore the habit of the order. Teachers are not disqualified because of their religions ojunions. The court said that the .school authorities liad jxiwer to employ members of the Order of Sisters of St. Joseph as teachers in the public schools. Tiie menil>ers of tiie school board were Catholics. The voters of the borough numbered between four and five liundred, and all but about Mty of these were Catholics. 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 ]>rofessed. The teachers might lawfully wear in school the garb of their order. Ily.song v (lallitzin Borough School District, Hit Ta. i'>'2U. See al.so Religions (Jarb.

Prayer. In the school maintained in Brooksville (Iraded School District, the following prayer was ottered at the opening of school exercises each day : "Our Father who art in heaven, we ask thy aid in our day's work. Be with us in all we do and say. (live us wisdom and strength and patience to teach these children as they should be taught. May teacher and ]>upil have mutual love and resjiect. Watch over these children, both in schoolroom and on the play- ground. Keep them from being hurt in any way, and at last, when we come to die, may none of our number be mis.s- ing around thy throne. These things we ask for Christ's sake. Amen,"

This prayer was held not to be .sectarian instruction

716 THE CIVIL LAW AND THE CHURCH

within tlie meaning of the Kentucky constitution and stat- utes.

The school was not a place of worship, nor its teachers ministers of religion within the contemplation of section 5 of the constitution, although a prayer may be offered inci- dentally at the opening of the school by a teacher. The Bible is not a sectarian book, and when used merelj" for reading in the common schools, without note or comment by teachers, is not sectarian instruction, nor does such use of the Bible make the schoolhouse a house of religious wor- ship. Hackett v Brooksville Graded (School District, 27 Ky. L. Re. 1021.

South Dakota. The constitution prohibits sectarian aid and sectarian instruction in schools supported in whole or in part from the public treasury. In Synod v State, 2 S. Dak. 366 (14 L. R. A. 418) it was held that Pierre Uni- versity, a Presbyterian institution, was a sectarian school within the meaning of the constitution, and that therefore appropriations for the university could not be made from the public treasury, even as compensation to the institution under a contract with the territorial board of education by which the institution was designated. The university was designated as one of the educational institutions in which a class of students should be taught the method and prac- tice of teaching in the common schools.

Taxpayers' Presumption of Consent. Where taxpayers have acquiesced for twenty years in the expenditure of money raised by taxation in maintaining public schools in which sectarian instruction was given contrary to the constitution, which prohibits such instruction, they cannot maintain an action against school officers to recover from them person- ally the amount so unlawfully expended. The school officers had a right to presume that the taxpayers, who had knowl- edge of the facts, consented to such expenditure, and the court said that under the circumstances it would be inequit- able to compel the officers to reimburse the district for money so expended.

SECTARIAN INSTRUCTION 7l7

In the same case the court sustaiued the actiou of the school authorities in hiring a part of the parochial school building for the use of the district, the regular schoolhouse being inadequate for the accommodation of all the pupils. The power to rent was based on the general authority con- ferred hj the statute. Dorner v School District No. 5, 137 Wis. U7.

Texas. The Board of Education of Corsicana, Texas, adopted resolutions recommending opening exercises in the public schools each day, consisting of reading of extracts from the Bible, the recital of the Lord's Prayer in concert, and the singing of hymns in wliich the pupils were invited, but not required, to join; and exercises were accordingly instituted and observed in nearly all the rooms in the high school. Certain residents of the district, including Roman Catholics, Jews, and one i)erson who did not believe in the inspiration of the Bible, i)rotested against these exercises, but the trustees declined to discontinue them, and in this action they were sustained by the State sui)erintendent of public instruction. The selections from the Bible which have been read in the several rooms of the schools have been l)i-inci])ally passages from the Old Testament, including selections from Psalms, Proverbs, and some of the old familiar stories from the Old Testament. The selections read from the New Testament are usually the Sermon on the Mount and passages of like tenor. In all reading the Bible used is King James version. The reading of the Scrip- ture was without comment. The children were not required to join in the Lord's Prayer, or in the singing, but were invited to do so, and most of them did join in both exercises. The reading of the Bible and repeating of the Lord's I'rayer was not comjiulsory, and some teachers read extracts from general literature instead of Bible selections. It was alleged that these exercises made the school a place of worship within the meaning of the constitution, and that such exer- cises were sectarian within the provision of the constitution prohibiting sectarian a])j)ropriations.

718 THE CrVIL LAW AND THE CHURCH

It was^ held that the exercises did not constitute sectarian instruction, nor turn the school into a religious society. Such a society was defined as "a voluntary association of individuals or families united for the purpose of having a common place of worship and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the various ordinances of religion." It was also held that the exercises did not make the school a place of worship within the meaning of the constitution. Such a Ijlace of worship was defined as *'a place where a number of persons meet together for the purpose of worshiping God."' Church V Bullock, 109 S. W. (Tex.) 115.

Wisconsin. In State ex rel Weiss v Edgerton District School, 76 Wis. 177, considering the provision of the Wis- consin constitution prohibiting sectarian instruction in schools, it is said that it manifestly refers exclusively to instruction in religious doctrines, and the prohibition is only aimed at such instruction as is sectarian ; that is to say, instruction in religious doctrines which are believed by some religious sects and rejected by others. Hence to teach the existence of a Supreme Being of infinite wisdom, power, and goodness, and that it is the highest duty of all men to adore, obey, and love him, is not sectarian, because all religious sects so believe and teach. The instruction becomes sectarian when it goes further, and inculcates doc- trine or dogma concerning which the religious sects are in conflict. It was held further that the reading of the Bible in public schools, although unaccompanied by any comment on the part of the teacher, is such instruction.

SHAKERS

Community of interest, no action for personal services, 719.

Competency as witnesses, 720.

Covenant, 720.

Deacons, actions by, 721.

Expulsion, effect, 721.

Massachu-setts, 722.

New York, 722.

Partition or withdrawal of property, not permitted, 724.

Property, how held, 724.

Trustees, promissory note, 725.

Community of Interest, No Action for Personal Services. A coniiiinnity of interest is an established and distinguishins^ principle of the association ; that the services of each mem- ber are contributed for the benelit of all, and all are bound to maintain each, in health, sickness, and old age, from the common or joint fund, created and preserved by joint industry and exertion. And each one by the express terms of the covenant engages "never to bring debt or demand against the deacons nor their successors, nor against any members of the church or community, jointly or severally, on account of any service or property thus devoted and con- secrated to the aforesaid sacred and charitable use." The plaintiff, who had been a member of the society or family of Shakers in New (Jloucester for about twelve years after he became of age, brought an action against the society to recover compensation for his services rendered while he was a member of the family. It appeared tliat he was originally placed in the family by his father, but after reaching his majority he signed the foregoing covenant. It was held that the contract was binding on him and that he could not recover compensation for services. Waite v Merrill, et al, 4 Me. 90.

719

720 THE CIVIL LAW AND THE CHURCH

Competency as Witnesses. Members of the family or society were held competent as witnesses in a suit not directly con- cerning the common property in which the deacons are parties. Richardson v Freeman, 0 Me. 57.

Covenant. "The preamble recites that it is their faith and invariable jjractice that 'all who come into membership do freely and voluntarily dedicate and devote themselves and all they possess to the service of God forever; and it being their faith, that the union and relation of the church, in one joint interest, is a situation the most acceptable to God, and productive of the greatest good of any state or situation attainable on earth,' therefore covenanted and agreed to- gether by these articles :

''1st, To gather themselves together, and be constituted and formed in the order of a church."

The second article creates an office of trustee, or agent- ship, and appoints three of the brethren thereto.

By the third article new members are allowed to come in, and bring and devote to the joint interest of the church, all such property as they justly hold, etc. The joint interest of the church thus formed by the free-will offerings of the mem- bers respectively, shall be possessed and held by the whole body jointly, as their natural and religious right; that is, every individual of or belonging to the church shall enjoy equal rights and privileges in the use of all things pertaining to the church, according to their order, and as every one has need, without any difl'erence being made on account of what any one brought in. "And it shall be the duty of all the mendiers to support and maintain the joint interest of the church, according to their several abilities as members, for the good of the whole."

The fifth article makes "it the duty of the trustee or agent- ship to take charge of all the property dedicated, devoted and given up, as aforesaid, to the joint interest of the church, ov that may thereafter be given or devoted for the benefit of the churcli." "The said joint interest shall be held by them in the capjicity of agents or trustees, and shall bo and remain

SHAKEKS 721

forever inviolably under the care and oversight and at the disposal of the trustee or agentship of the church, in a con- tinual line of succession ; that the transactions of the trus- tees in the use and disposal of the joint interest shall be for the mutual benelit of the church and in behalf of the whole body, and to no personal end or purpose whatever. But the trustees shall be at liberty, in union with the body, to make l)resents and bestow deeds of charity upon such as they may consider the real objects that are without." In case of a vacancy in the trusteeship the duties are to be transferred and devolve on a successor to be appointed so that each indi- vidual appointed to the otSce of trusteeship shall be invested with the power and authority of managing and disposing of the prox)erty and interest of the church."

7th, As the whole end and design of our thus uniting in church relation is to receive and diffuse the manifold gifts of God to the mutual comfort and lia])pin('ss of each other, as brethren and sisters in the gospel, and for the relief of the poor, the widow, and the fathei'less, and such as may be deemed real objects of charily; no one shall make any account of labor or property or services, devoted by us to the pur])oses aforesaid, or bring any charge of debtor dam- ages, or hold any demand wliatever against tlie church, or community, or any member thereof, on account, either of services or of i>roperty given, rendered or consecrated to the aforesaid sacred and charitable uses.

The third article precludes any claim to a division to be made according to what each brought in. (lass and Bonta v Wilhite, 2 Dana (Ky.i 170.

Deacons, Actions By. Deacons may sue for trespass on society i)roi)erty. Anderson v Brock, o Me. 24.'>.

Expulsion, Effect. The plaintiff was expelled from the society for refusing to conform and subject herself to the counsels and directions of the elders. She was not entitled to damages for such expulsion for the reason that she had signed the covenant in which she agreed to conform to the rules and orders of the society, which vested supreme

722 THE CIVIL LAW AND THK ClirRCH

authority in the ministers and elders. They had authority to expel a member. The civil court could only inquire as to the authority vested in the ministers and elders, who could not determine the question whether according to the rules of the society, the plaintiff had been properly expelled. In this case the i)laintift" was charged with entertaining opinions and promulgating doctrines within the society at variance with the established belief and subversive of tlie organization. Grosvenor v United Society of Believers, 118 Mass. 7S.

Massachusetts. In Lawrence v Fletcher, 8 Mete. (Mass.) 153, it was held that under the Massadiusetts constitution the Shakers are a sect or denomination of Christians, and without reference to the act of 1785, chap. 51, they are included in the act of 1811, chap. 6, respecting public wor- ship and religious freedom, and after the passage of that act had full power to receive donations, gifts, and grants to manage, improve, and use the same, and to elect suitable trustees, agents, or officers therefor; and that they were equally within the purview of the act of 1834, chap. 183, and of the revised statutes, chap. 20, sec. 25, and that by force of the act of 1811, chap. 6, if not legally empowered before, they were authorized to elect deacons or trustees to take and hold and manage the property of the community.

New York. It was held in Feiner v Reiss, 98 A. D. (N. Y.) 40, that the society of Shakers at Mt. Lebanon, New York, was not a religious corporation but a voluntary unincor- porated society formed by the consent of the individuals composing it for religious and business purposes and which has obtained by various statutes the corporate power to have property held by trustees in perpetual succession. It was also held that the society need not obtain an order of court for the sale of its property, but that such a sale ^^■as valid if made by the trustees in the manner pointed out by the statutes and by-laws of the society, and especially, as in this case, where such a conveyance was approved in writ- ing by the ministry and elders of the society. Such a con-

SHAKERS 72:1

veyaiice was held sufficieut to transfer the title to the property.

The society at Watervliet, New York, had existed many years prior to 1839, when an act was passed relative to the status of societies of Shakers and declaring the rights and duties of trustees. The AVatervliet society was an otfshoot of the parent society at New Lebanon, and it is a funda- mental rule and principle pervading these communities that there shall be no individual ownership of property, but that all the property held by individuals, on their admission to tlie society, shall be surrendered, and all acquired in the prosecution of its business shall be held for the common l)urposes and uses of the aggregate body. The society, although called in the covenant a cliurch, is not solely organized for purposes of religion. Prior to 1839 the local title to the property of the society was vested in and held by trustees, appointed from its members in trust, for the uses and purjtoses expressed in the covenant, and subject to the rules, conditions, and regulations therein prescribed. Each trustee executed upon his api)ointment a written declaration of the trust, and their authority and powers were defined in the covenant. The trust was for the benefit of the entire society, and not for any private inter- est. The act of 1839, chap. 174, declared that all deeds of trust of real or personal estate, executed and delivered prior to January 1, 1830, to any persons in trust, for any United Society of people called Shakers, shall be valid and effect- ual to vest in the trustees the legal estates and interests con- veyed, for the uses declared in such deeds, or declared in any declaration of trust executed by the trustees in the same manner, and to the same effect as before January 1, 1830, and the act confirmed all trusts created prior to Jan- uary 1, 1830. The act provided that the trust should con- tinue and devolve on the successors of the existing trustees. The act also authorized future trusts. The effect of the act was to make the trustees a corporate body, and the property held by them corporate property, and, therefore.

724 THE CIVIL LAW AND THE CHURCH

an action relating to a contract by the society could be maintained against the trustees as such and enforced against corporate property in their hands. White v Miller, 71 N. Y. 118.

Partition or Withdrawal of Property, Not Permitted. Several persons intending to form a society of Shakers, entered into a covenant to surrender to the society all their common property'. The joint interest of the church thus formed by the free-will offerings of the members, respectively, shall be possessed and held by the whole body jointly as their natural and religious right; that is, every individual of, belonging to the church, shall enjoy equal rights and privileges in the use of all things pertaining to the church, according to their order and as everyone has need, without any difference being made on account of what anyone brought in. The affairs were to be managed by a trustee, who Avas given large dis- cretionary powers in the administration.

By the 7th article the members of the community expressly disclaim any intention to nmke any demand as compensa- tion for services, and would not present any claim or debt or damage on account of any property given, rendered, or consecrated for the sacred uses of the society.

Two persons who had seceded from the society brought an action to procure a partition or division of the property, and an assignment of the amount claimed by them to be due. It was held that such an action could not be main- tained for the reason that the articles of agreement expressly declared the intention of all parties to relinquish their claims to the property given to the community. The prop- erty was not to be held by the members by a joint and several interest but was to be held by the community as a unit. The members were entitled to use the property as needed for their support but could not withdraw it from the common fund. Gass and Bonta v Wilhite, 2 Dana (Ky.) 170.

Property, How Held. As earlj^ as 1791 a company of per- sons denominated Shakers formed themselves into a com- munity in the town of Harvard as a religious society and

SHAKERS 725

entered into covenant relations with each otlier as a church according to their peculiar faith and tenets. As early as March, 1801, they chose deacons and a clerk, and by mutual agreement under seal appointed their deacons and their suc- cessors in office to hold the property of the church and to have the management of its temporal concerns; in December, 1814, they new modeled their covenant, making it more full and formal, and made a new arrangement in regard to the office of deacon, constituting a part famil}' deacons, giving them the oversight of their domestic or internal concerns, and constituting other deacons or trustees to whom were committed the charge of their property and business with the world, which society, in all its essential features, continues under the same organization to the present time.

A transfer of certain 2>roperty to the tinistees of this society was sustained. Such a transfer need not have been to the society by name nor to the deacons. A transfer to the trustees was sufficient, who, as such, as well as their suc- cessors, were capable of taking and holding property. It was not necessary to name the trustees; a description which distinguished them from all others was sufficient. Lawrence v Fletcher, 8 Mete. (Mass.) 153.

The constitution of this society required the legal title of all its property to be vested in trustees, upon a declara- tion of trust, designed, in a convenient and legal manner, to accomplish the purpose of having all things common. A judgment rendered against the trustees of the church family of Shakers, and the successors of said trustees in their official capacit}", was held valid and could be satisfied with- out the aid of a bill in equity, by execution levied upon propertj^ of the church, of which the legal title is held by the trustees. Davis v Bradford, 58 N. H. 476.

Trustees, Promissory Note. This society was incorporated with a membership of about one hundred, which was con- stantly changing by additions, withdrawals, and deaths. The property was held in common without any individual

726 THE CIVIL LAW AND THE CHURCH

interest iu any member, and is managed and disposed of for the purposes of the societ}^ by certain trustees chosen by the society from time to time. An action on a promissory note given by the trustees in behalf of the society was held prop- erly brought in equity against the society and the trus- tees. Society of Shakers at Pleasant Hill v Watson, G8 Fed. 730.

SLANDER

Archbishop's criticism of priest, 727.

Minister, 727.

Privileged statements, church trial, 727.

Archbishop's Criticism of Priest. The archbishop of Mil- waukee, speaking iu a Roman Catholic service in a church at West Bend, said of the priest in charge of the church at Barton that "Father is not responsible or he is excus- able, or he may not be entirelj- of a sane mind as he was injured in his brain in a railroad accident. That he is no more the parson or priest of Barton, and that he had taken all rights away from him, and that the congregation no more acknowledged him as parson or priest, and that he has good reason to transfer him." It was held that these words were slanderous per se. Hellstern v Katzer, 103 Wis. 301.

Minister. In Elsas v Browne, 68 Ga. 117, it was held that to charge a minister of the gosjjel with collecting money for a specific object, and, instead of so appropriating it, with embezzling and applj'ing it to his own wrongful uses, is actionable; if not imputing to him a crime punishable by law, it is certainly charging him with being guilty of a de- basing act, which may exclude him from society.

Privileged Statements, Church Trial. Slanderous state- ments made by one being examined as a witness in a church trial, which is conducted according to ecclesiastical discip- line, are not privileged statements, and can be proved in a prosecution for defamation of character. Grant v State, 141 Ala. 96.

727

SPIRITUAL AND PHILOSOPHICAL TEMPLE

Division, minority's right, 728.

Division, Minority's Right. The society purchased land on which it erected a chinch bnihling, the expense of which was borne by members of the societ}'. Afterward a division arose in the society and part of its members, constituting a minority, procured the incorporation of a new society. In an action involving the title and possession of the proj)erty of the society it was held that the corporation organized in proceedings taken by the minority was a valid corporation under the statute. iSpiritual and Philosophical Temple v Vincent, 127 Wis. 93; 105 N. W. (Sup. Ct. Wis.) 1026.

728

SPIRITUALISTS

Camp grounds, 729.

Devise rejected, 729.

Trust sustained, 729.

Unincorporated society, cannot take bequest, 730.

Camp Grounds. The association was incorporated in 1877 by statute. The scheme of the corj)oration included a camp ground with wharf, hotel and other public buildings, private residences aud cottages. The incorporators were spiritual- ists, and came together for tlie purpose of accpiiring aud developing some place upon the seashore as a summer resort for spiritualists, incidentally as a site for spiritualists' camp meetings. The society erected a temple and auditorium in which to conduct its exercises. A camp meeting was held each year. Tlie corporation paid all the expenses of the meeting. In Julj', 1895, the corporation made a lease of the j)roperty to its trustees. It was held that the society had authority to establish and maintain a camp meeting on its l)roperty. Xye v Whittemore, 19:{ Mass. 208. See also article on Camp Meetings.

Devise Rejected. A West Virginia will contained a devise to a trustee for the benefit of the First Spiritualist Church of Baltimore. This was held void for uncertainty. Miller v Ahrens, 150 Fed. (U4.

Trust Sustained. A will contained the following residuary clause : "All the rest, residue, and remainder of my estate, real and personal, whatsoever and wheresoever found, I give and bequeath unto my executors hereinafter named, and their successors in trust, for the purchase of books upon the Philosophy of Spiritualism, not sectarian, or of any creed, church, or dogma, but of free liberal bearing. Said books to be placed by my executors where they can be free to all

729

730 THE CIVIL LAW AND THE CHURCH

who desire to thiuk for themselves, and who are seeking for the truth from the true and living God, for I believe in one God, one church, and one country : first, the Great Unknown ; second, the whole human race, as one family; third, the whole globe, the home of all nations — that is my Trinity."

It was held that the residuary gift was expressed in terms sufficiently certain to enable it to be carried into effect; that though the trust was a perpetuity, which executors and their successors could not execute, yet it was also a charity, which a court of equity could not permit to fail for want of a trustee. Jones v Watford, 62 N. J. Eq. 339.

Unincorporated Society, Cannot Take Bequest. The Pro- gressive Spiritualists' Society was an unincorporated vol- untary religious association and as such association was incapable of taking a direct bequest to it. Fralick v Lyford, 107 A. D. (N. Y.) 543.

SUBSCRIPTION

Building committee, action by, 731.

Condition accepted, 731.

Condition, variation, 732.

Condition, specified amount to be raised, 733.

Consideration, 733.

Defective incorporation, when a defense, 733.

Existing debt, 733.

Liability is several, 734.

Mutuality, 734.

Performance by society, 735.

Perpetual liability, 736.

Promissory note, 736.

Revocation, 737.

Roman Catholic Church, special purpose, 737.

Special agreement, 738.

Subscriber's death, effect, 738.

Subscriber's intention as to object, 738.

Subscription note, vahdity, 739.

Simday, 739.

Sunday school, 739.

Title to fund, 740.

Unincorporated society, 740.

Withdrawal from society, efifect, 741.

Building Committee, Action By. A promise to pay to a building committee a certain amount of money for the pur- pose of erecting a meetinghouse, of which committee the promisor was one, may be maintained against him in the name of the other members of the committee or the survivors of them. Such action was held maintainable, even though the edifice had been finished, and the committee discharged from further duty. Chambers v Calhoun, 18 Pa. St. 13.

Condition Accepted. Where one signs a subscription for the erection of a church, upon condition that a certain amount be subscribed, together with an agreement that he should be repaid the sum he had expended in the erection

731

732 THE CIVIL LAW AND THE CHURCH

of a temporary chai)el, such agreement followed by the repayment constitutes a binding contract between the parties, which cannot be revoked except by mutual consent nor rescinded except upon abandonment of the scheme or failure to collect the amount agreed upon.

Where subscription to a church building fund is condi- tioned on a certain amount being subscribed a subscriber is not prejudiced by a finding that the required amount was subscribed, when tlie evidence shows that including his sub- scription, and the amounts collected for memorial windows, sale of pews, and money raised at a church fair, the amount collected exceeded in the aggregate the required amount. Hodges V O'Brien, 113 Wis. 97.

Where divers persons subscribed to a fund for the support of public worship, promising to pay to the trustees of the parish funds the sums subscribed, on condition that the trustees should manage the fund in a certain manner, and apply the income thereof to the support of a Congregational minister and to the payment of the parish taxes which might be assessed on the subscribers, it was held that the promise was binding on the subscribers, the acceptance of it on the conditions prescribed being an engagement on the part of the trustees to perform those conditions. The subsequent change of the articles of faith adopted by the church, though in some essential particulars, does not absolve the parties from the obligation of such contract. Fryeburg Parsonage Fund V Ripley, 6 Me. 442.

Condition, Variation. A subscription for the erection of a church under a resolution by which three fourths of the cost was to be raised by subscriptions running three years, and a contract was let for the erection of the church at a price of which the subscriptions were at least three fourths in amount, a subscription was held not invalidated by a subsequent increased cost of construction which was pro- vided for by increased subscri])tions amounting to at least Hiree fourths of the cost. First Evangelical Lutheran (Mnirch v Gardner, 28 Pa. Sup. Ct. 82.

SUB^CKIPTION 733

Condition, Specified Amount to Be Raised. A subscription was sustained by which subscribers were to be bound only on condition that the whole amount needed for specified repairs should be raised, it appearing that about one half the amount was subscribed, and the contractor was author- ized to raise the balance by a sale of the pews. This was held to be a substantial compliance with the terms of the subscription. McAulej^ v Billenger, 20 John. (N. Y.) 89. See Stewart v Trustees of Hamilton College, 2 Denio (N. Y.) 4():i; see also Hodges v O'Brien, cited in note on Condition Accepted.

Consideration. Twcnly-third St. Church v Cornell, 117 N. Y. 001, involved the validity of a subscription for the erection of a new church edifice. It was held that the sub- scription by testatrix was without consideration, and that the church could not recover thereon.

Defective Incorporation, When a Defense. A person who subscribes to a fund for the erection of a church edifice is not estopped from contesting the validity of the incorpora- tion of the society and may raise the question in the action against him. First Baptist Church v Eapelee, 16 Wend. (N. Y.) GO.").

Existing Debt. In United Presbyterian Ch. v Baird, 60 la. 2r>7, it was held that the borrowing of money by a church corporation to pay its existing indebtedness, with reliance upon a subscription to repay the borrowed money, consti- tutes a sufficient consideration to support the contract of subscription. Following Trustees v Garve3\ 53 111. 401.

The defendant with others made a subscription toward the payment of a debt due for the building of a church edifice, which had been erected before the subscription was made. The trustees borrowed money with which to pay the debt, relying on the subscription. The defendant claimed that there was no liability. It was held that while the trustees by borrowing money to pay the debt had not in- creased their liability, they had on the faith of the subscrip- tion incurred a new liability to new parties. ''They have

734 THE CIVIL LAW AND TIU: CilUliCH

borrowed money relying npou this subscription as a means of payment, and tlie fact that they have used the money to discharge a preexistent debt does not change the fact that they have incurred a new and different liability. Where a person subscribes to a public enterprise, and work is done, money expended, or liability incurred, on the faith of such subscription, it becomes binding." Trustees v Garvey, 53 111. 401.

A subscription to raise money to pay off a mortgage on church property was held to be without consideration, and not enforceable by the corporation, nor could the corporation avail itself of mutual promises of the subscribers. Such promises did not constitute a consideration in favor of the corporation. Presbyterian Church of Albany v Cooper, 112 N. Y. 517. See also notes on Sunday subscriptions below.

Liability Is Several. Subscribers to a fund for the con- struction of a church who have built the church and in- curred obligations therefor on the faith of the subscriptions are the real parties in interest, who may maintain an action to collect an unpaid subscription.

A promise to pay such subscription, even if made directly to a committee, is held to have been made to them as agents for all the subscribers w^ho should join in the enterprise, and the latter, as principals, may maintain an action upon it. The liability of each subscriber to such a fund is a several one, and hence is to be enforced in an action against him alone. Hodges v Nalty, 104 Wis. 464.

Mutuality. In an action on a subscription note it was held that when several agree to contribute to a common object which they wish to accomplish, the promise of each is a good consideration for the promises of the others, and the society was entitled to maintain an action on the note. Con- gregational Society, Troy v I'erry, 6 N. H. 164.

Where there are mutual subscriptions for a common object, and there has been an expenditure of money in the accomplishment of the object, a subscription is binding as

SUBSCRIPTION 735

a valid contract. Whitsitt v Trustees Preemption Presby- terian Church, 110 111. 125.

Performance by Society. Several persons joined in a sub- scription for the purpose of erecting a Presbyterian church edifice, the sum subscribed to be paid to a treasurer to be chosen by the subscribers. Such a treasurer was afterward chosen. Persons interested in the movement subsequently incorporated a Presbyterian society, and a church edifice was erected in reliance on the subscri})tions. The defend- ant, a subscriber, was jn-esent at meetings for tlie incorpora- tion, and for otlier ])urposes connected with the movement, and was cogniziant of the various steps taken in the matter, and expressed no dissent. It was held tliat there was a good consideration for the defendant's subscription, which could ' be enforced by the treasurer chosen by the corporation upon -proof of an understanding when the subscription was made that the edifice should become a part of the temporalities of a Presbyterian society to be organized. Presbyterian So- ciety V Beach, 71 N. Y. 72.

Subscriptions were made for the purpose of purchasing land and erecting a meetinghouse, but the house was not built, and no shares were issued. The subscriber, who had taken ten shares, was sued on his subscription, but the court held that the society could not recover. The subscription paper was mutually made among members of the society and other friends, and with the building committee, but there was no contract with the church. First Uuiversalist Society, Newbury port v Currier, 3 Mete. (Mass.) 417.

A subscri])tion was made for the purpose of raising funds to rebuild a church. Subsequently, with the subscriber's consent, the society built a new church edifice, relying in part on this subscription. The defendant refused to pay the subscription. It was held that this was a case of services rendered and expenses incurred by the trustees at the request and by the direction of the defendant, for which an action would lie, upon the subscription paj^er; also that the subscription i)a])er, and the subsequent request and direction

73G THE ('1\1L LAW AND THE C'HriK'H

of the (Icreiidaiit to the corporatioii, ('(tiisidered together, established a coiiditioiial promise to pay $150, pi-ovided the trustees of the chnreh Avoiild erect a new cliiii-ch edifice; and that the coii<litioii having been ])erfornied by the cor- poration before the retraction of the promise, the defendant was liable to pay the snm subscribed by liim. Barnes and others. Trustees First Presbyterian Church, Glens Falls v J»erine, 0 Barb. (N. Y.) 202.

Perpetual Liability. An action was brought by the society on a subscription providing for a specified i»ayment annu- ally for the support of the ministry so long as the then incumbent should be the minister of the congregation. The minister was deposed by the classis, but on an appeal to the synod that body restored him to his position. Afterward the classis at different times declared the minister to be in full jiossession of his ministerial functions, and at other times declared that he must be considered as having been deposed. In the action on the subscription tiie defense was that the relation of the minister to the congregation had been discontinued, and tliat therefore the subscription was no longer binding. It was held that the action of the synod, on the appeal practically disposes of the whole matter and that subsequent action by the classis had no effect as against the decision of the synod. A judgment on the subscription was sustained. Dieffendorf v Reformed Calvinist Church, 20 Johns. (N. Y. ) 12.

A subscription was held valid which provided for an annual payment for the support of a minister so long as he remained in service, and so long as the subscribers continued to reside within four miles of the meetinghouse. First Reli- gious Society of Whitestown v Stone, 7 John. (N. Y.) 112. See note below on effect of withdrawal from society.

Promissory Note. According to Catholic usage, the parish ])riest is generally church treasurer, but with power to appoint a special treasurer with the approval of the bishop. In this case the plaintiff had been appointed such treasurer, and the jiromissory note in controversy had been delivered

SUBSCRIPTION 7.37

to him by the maker. This was held sufficient delivery. Where promissory notes given in payment of a subscription to a church erection fund are made in consideration of a selection of a site and commencement of work by a given date, in an action thereon, evidence of initiatory steps and discussions of a congregation prior to the giving of the notes is inadmissible for the purpose of varying their terms. Mich els v Rustemeyer, 20 Wash, 597.

A promissory note given in aid of the Kentucky Baptist Education Society was held to be a valid subscription. The society was under obligation to appropriate the money for the purposes of its charter. This was held to be a sufficient consideration for the subscription. Collier v Baptist Edu- cation Society, 8 B. Mon, (Ky.) 68.

Revocation. A minister was engaged to conduct dedica- tion services, and solicit subscriptions to be applied on the church debt. The request to him for this service was made at an informal meeting of the trustees, pastor, and class leaders. The minister solicited subscriptions during the services, but it was held that he was not the agent of the corporation. A person made an offer to pay a specified amount, which was deemed only an offer, and no contractual relation was established between him and the corporation. The corporation had not accepted the offer, but a short time after it was made one of the trustees, not by any special authority but apparently on his own motion, called on the subscriber to perform his proposal. The subscriber there- upon revoked and repudiated his offer, and in an action b}'^ the corporation on the subscription it was held that this revocation was in time, and that no liability had been created. Methodist Episcopal Church, Sun Prairie v Sher- man, 36 Wis. 404.

Roman Catholic Church, Special Purpose. Money raised on a subscription for a new church edifice is raised for a spe- cial purjjose and belongs to the congregation, and it does not become the property of the bishop of the diocese or priest of the parish. Amish et al v Gelhaus et al, 71 la. 170.

738 THE CIVIL LAAV AND THE CHURCH

Special Agreement. A subscriber to a fund being raised for the purpose of erecting a diurch agreed to give the rent of certain property for three years. This did not mean a lease of the property itself, but the rent derived therefrom, and an action on the subscription was sustained and jinlg- ment rendered for the amount of rent pledged by the sub- scriber. Trustees of First Bai)tist Church in Syracuse v Robinson, 21 N. Y. 284.

Subscriber's Death, Effect. Testatrix joined in a subscrip- tion for the erection of a church edifice, which subscription was on condition that a stated amount should be raised. Before the time fixed for payment of the subscrii)tion, and before any expenditure had been made on the church edifice project, testatrix died. Testatrix did not request the cor- poration to build a new edifice, and the church did not promise that it would, and there was no endeavor to obtain subscribers occasioned by the expressed wish or direction of testatrix. It was held that there was no consideration for the subscription, which at most was only an executory gift, and this was revoked by the death of testatrix. It was also held that a subscription by several persons was not a consideration for any one, that the executors could not bind the estate hj their assent to the subscription, and that the church could not recover the amount subscribed. Twenty- third St. Baptist Church v Cornell, 117 N. Y. GOl.

The society, although unincorjjorated, was held competent to maintain an action on a contract. In this case an action was brouglit on a subscri])tion to aid in building a church, but the subscriber died before the organiz;itiou of the society Avas effected. It was hehl that tlie liability of the subscriber was terminated by his death ; and an action could not be maintained by the society against his estate. I'hipps v Jones, 20 Pa. 260.

Subscriber's Intention as to Object. A subscription was taken to raise funds for the erection of a Catholic chai^el. Parol evidence was held admissible to show ihe intention to erect a Roman Catholic cliurch for use as a place of imblic

SUBSCRIl'TION 739

worship accoidinj^ to the rites aud ceremonies of that de- nomination. O'Hear v De Goesbriand, 33 Vt. 593.

Subscription Note, Validity. Where niend)ers of a religious society whidi had a ministerial fund in the hands of an incorporated board of trustees voluntarily subscribed to increase the fund, and afterward gave their i)romissory notes to the trustees for the amount of their respective sub- scriptions, it was held that the notes were founded ui>on a sutticieiit consideration. Parol evidence that sucli notes were upon the condition that the principal should not be called for so long as the interest continued to be punctuallj' I)aid was held inadmissible. Trustees, Hanson Church v Stetson, 5 rick. (Mass.; 500.

Sunday. A subscription made on Sunday to liquidate the indebtedness of a church corporation contracted in the erection of a building to be used as a place of worship does not come within the inhibition of the revised statutes of Indiana as common labor, but falls within the exception of works of charity, and is valid and enforceable. Bryan et al v Watson, 127 Ind. 42.

A subscription on Sunday to aid in the payment of a church debt is valid. Such subscriptions are deemed a cliarity within the general exception prohibiting Sunday labor. First Methodist Episcopal Church, Fort Madison v Donnell, 110 la. 5.

A subscription to raise money to i)ay for a house of wor- ship is not invalid because taken on Sunday in a congrega- tion assend)led for ordinary religious services. Allen v Duffie, 43 Mich. 1 ; see also Dale v Knej)p, 98 Pa. 389.

A subscrii)tion made on Sunday to aid in the erection of a church is valid. See the same case as to a conditional subscription. Hodges v Nalty, 113 Wis. 507.

A subscription to a church made on Sunday was held void in Indiana. There was no evidence of a subsequent ratification, or a new promise. Catlett v Trustees, Methodist Epis. Ch., Sweetser station, 02 Ind. 305.

Sunday School. In Rector v Crawford, 43 N. Y. 470, the

740 THE CIVIL LAW AND THE CHUKCH

church was held eutitled to recover from Us former treas- urer mone}^ collected on subscriptions for a Sundaj'^ school buildiug fund of the church, although the Sunday school had a voluntary organization independent of the church.

Title to Fund. In Amish et al v Gelhaus et al 71 la. 170, it was held that money raised on a subscription for erecting a new church edifice was the proi^erty of the congregation, and not the j^roperty of the bishop or priest, Eeferring to the claim that by "the laws and rules of the Roman Catholic Church the bishop of the diocese and the priest of the parish, under the direction of the bishop, are invested with the absolute control of the funds and the property of the church, and the laity have no right to interfere with such control," the court observed that this rule might be ''apj^licable if this fund had been raised for the general i»urposes of the church and paid to the priest without any obligation upon him to apply it to a specific purpose," but the money hav- ing been raised for a special purpose, it passed into the hands of the priest as a trust fund, and it did not vest abso- lutely in either bishop or i^riest to be disj^osed of as they might think for the best interest of the church.

Unincorporated Society. In Presbyterian Society v Beach, 74 N. Y. 72, the defendant was held liable on a subscription in aid of a project to erect a Presbyterian church edifice, it aj^pearing that the subscribers were to pay their subscri lo- tions to a treasurer to be chosen by themselves, but that a corporation was afterward organized. The corporation was held entitled to recover on this earlier subscription on proof of an understanding when the subscription was made, that the money was to be raised for the erection of a church edi- fice to become the property of a l*resbyterian society to be organized.

It is no defense in a siiit to enforce a subscrijjtion to aid in building a church that the society was not incorporated. A notice to trustees of the society, after organization, that the subscriber will not pay his subscription unless a cer- tain person is excluded from speaking in the church, while

SUBSCRIPTION 741

the protfered donation appears at the head of the list as an iniconditioual subscription, is not sufficient to release the subscriber from liability. Snell v Trustees, Methodist Epis- copal Church, Clinton, 58 111. 290.

Where subscriptions have been made in anticipation of the formation of a corporation, and the corporation is afterward formed, payment of such subscriptions is enforceable in the name of the corporate body. Whitsitt v Trustees I*reemp- tion Presbyterian Church, 110 111. 125.

A subscription to aid in erecting a church edifice made to an unincorporated religious organization inures to the benefit of the corporation afterward created. Willard v Trustees, Methodist Episcopal Church of Rockville Center, 66 111. 55.

Action upon a subscription whereby the defendant agreed to pay to the plaintitf, who was described in the subscrip- tion as the treasurer of an unincorporated association, a sum named for the puri)<)se of aiding in the erection of a church edifice for such association. It was held that as the association was not a corporation, the words in the sub- scription describing him as treasurer thereof should be treated as surplusage, and he could maintain an action in his own name. That the erection of the church edifice by the plaintiff was a sufficient consideration to authorize a recov- ery. McDonald v Gray, 11 la. 508.

Reformed Presbyterian Church v Brown, 24 How. l*r. (N. Y.) 76, sustained a subscription for the erection of a church edifice and for the pastor's salary, although the society was not then incorporated, and it was held that the corporation, afterward formed, was entitled to recover the subscription.

Withdrawal from Society, Effect. A person joined with several others in a written agreement to pay a specified sum annually for the support of the preaching of the gospel in a particular church. At the end of two years he declined to continue annual payments on the ground that he had changed his religious seutiments, and could not conscien-

742 THE CIVIL LAW AND THE CHUKCH

tiously contribute to the object specified in the contract. In an action by the society to recover payments which had accrued after the signer's withdrawal from the society, it was held that the contract continued binding during the life of the subscriber, notwithstanding a change of religious sentiment, uuless it could be shown that he had been dis- charged by a vote of the society. No such discharge was shown. The defense that to compel payment after a change of religious sentiments would violate tlie defendant's rights of conscience under the constitutional guaranty of religious freedom was rejected, the court holding that the agreement to pay constituted a contract from which the defendant could not withdraw at his own mere volition. First Congrega- tional Society, Woodstock v Swan, 2 Vt. 222; see above, notes on Perpetual Liability.

SUNDAY

Agent's appointment, 745.

Agent's unlawful acceptance, 745.

Amusements, 745.

Arbitration, award, 740.

A.ssignment for creditors, 740.

Attachment, 746.

Attorney's clerk, e.xtra compensation, 747.

Baker, 747.

Bank paper, 747.

Balloon ascension, 747.

Barber, 747.

Baseball, 749.

Bill, acceptance, 749.

Bill of exchange, indorsement void, 750.

Bill of sale, 750.

Bond, 750.

Business, 750.

Butcher, 750.

Camp meeting, charge for admission, 750.

Canal lock-keeper, 751.

Charitable institution, resolution, 751.

Chattel mortgage, 751.

Church, resolution to employ minister, 751.

Cigars, 752.

Commercial paper, 752.

Common carrier, 753.

Contract, 753.

Conversion, driving horse beyond contract limit, 758.

Courts, 758.

Courts, ancient Hebrew custom, 758.

Court.s, charging jurj*, 758.

Courts, early Christian custom, 759.

Courts, New York City magistrates, 759.

Deed, 759.

Defined, 760.

Demurrage, 760.

Disorderly conduct, 760.

Employer and employee, 761.

Execution, 761.

743

7U THE CH'IL LAW AND THE CHUEOH

Food, 761.

Foreclosure sale, 761.

Games, 762.

Gaming, dice, 762.

Habeas corpus, 762.

Ice cream, 762.

Immoderate driving, 762.

Injuries, action for damages, 762,

Insurance, 762.

Intoxicating liquors, 763.

Jews, 763.

Justices, extra compensation, 764.

Laborer, hiring, 764.

Lease, 764.

Legal proceedings, 764.

Legislative powers, 765.

Levy, 768.

Loan, 768.

Mail carrier, 768.

Marriage, 768.

Meat market, 768.

Moving pictm-es, 768.

Municipal ordinance, 768.

Necessity, 769.

Newspapers, 771.

Object, 772. Omnibus, 772.

One offense only, 772.

Ordinary calling, 773.

PajTnent on debt, 773.

Physician's prescription, 773.

Plaintiff's violation of law, when no defense, 773.

Preserving property, 773.

Process, 774.

Promissory note, 774.

Railroad train, 777.

Redemption from sheriff's sale, 777.

Religious services, 778.

Rescission of contract, 778.

Sale, 778.

Salesman, services on Sunday, 780.

Saloon, 781.

Saloon clo^;ing, mandamus, 781.

Search warrant, 781.

Seaweed, 781.

SUNDAY 745

Security for good behavior, 781.

Seventh day observance, 781.

Slot machine, 781.

Social club, treasurer receiving money, 782.

Soda water, 782.

Stagecoach, 782.

Statute, constitutional, 782.

Statute of limitations, 783.

Statute, unconstitutional, 783.

Statute, when retrospective, 783.

Subscriptions on Sunday, 783.

Sunset, 784.

Surety contract, 784.

Telephone, 784.

TippUng house, 784.

Tort, 784.

TraveUng, 784.

Trespass, adjusting damages, 787.

Trust, declaration, 787.

Vaudeville, 787.

Violation, remedy for, 787.

Warrant, 787.

Warrant of attorney, 788.

Will, 788.

Agent's Appointment. An appoiiitmeut by a corporation on Suudaj' of an agent to collect rent.s may be validated hy a subseqnent receipt of rents from him. Flynn v Columbus Club, 21 R. I. 5:U.

Agent's Unlawful Acceptance. An agent cannot bind his principal by the acceptance of an instrument of guaranty on Sundaj^, even thougli it bears date on a secular day, and the principal had no i)ersonal knowledge of the unlawful act. Moseley v Hatch, 108 Mass. 517.

Amusements. The act of 1860, chap. 501, prohibiting cer- tain amusements in the city of New York on Sunday, was sustained in People v Hoym, 20 How. Pr. 76, (Sp. T.) as a valid exercise of legislative power, and it was held that the exhibition on Sunday of a play called "One of Our People" or "Brave Isaac," in the New York "Stadt Theater" on the Bowery, was a violation of the statute.

746 THE CIVIL LAAV AND THE CHURCH

Services were held Siiiulaj" evening nuder the auspices of a society called "Recreative Religionists," and consisted of pieces of sacred music performed on the organ, accompanied by other instruments and a gratuitous choir ; but there were some paid singers. An address was delivered, always in- structive; sometimes of a religious tendency, sometimes neutral rather than religious, but never aggressively irreli- gious, and never profane. Certain hymns were printed and circulated among the audience, but they were never sung. Most of the hymns could scarcely be called devotional, but expressed sentiments of adoration toward the Supreme Being and all of them exhortations to moral duty. There was no public prayer or address to the Deity other than was contained in the musical compositions. There was no debating or discussion ; nothing dramatic or comic, or tend- ing to the corruption of morals, or to the encouragement of irreligion or profanity. Admission to the body of the hall was gratuitous, but tickets were sold and money taken for admission to reserved seats. The place was registered as a place for religious worship. It was held that the place was not a place of public entertainment or amusement within the statute prohibiting certain entertainments or amusements on the Lord's Day. Meetings for religious worship are not within the act. It is not essential to such ])rotected reli- gious worship that it should be in accordance with the reli- gion of the State, or even with the general religion of the nation. Baxter v Langley, 38 L. J. Mag. Co. (N. S.) Eng. 1.

Arbitration, Award. An award of arbitrators is a judicial proceeding, and if made and published on Sunday is void. Story V Elliot, 8 Cowan (N. Y.) 27.

Assignment for Creditors. An assignment was made and delivered on Saturday, but no schedule was annexed. The schedule was attached the next day, Sunday. This annexa- tion on Sunday was sustained in Clap v Smith, 16 Pick. (Mass.) 246.

Attachment. The Massachusetts statute of 171)1 fixed the period of Sabbath observance from midnight until sun-

SUNDAY 747

set. Filliug and delivering an attachment after sunset on Sunday was not a violation of the statute regulating Sun- day observance. Johnson v Day, 17 Pick. (Mass.) lOG.

Attorney's Clerk, Extra Compensation. An attorney's clerk engaged at a weekly salary to do such things as are usually done by clerks in attorneys' offices, is prohibited, by the statute to prevent working on Sunday, from recovering of his principal a compensation extra his weekly allowance for services as a clerk performed ou that day. Watts v \'an Ness, 1 Hill (N. Y.) 76.

Baker. In Rex v Younger, 5 T. Rep. (Eng.) 440, it was held that the statute, 29 Car. chap. 7, did not prohibit a baker baking dinners for his customers on Sunday. See also to the same effect Rex v Cox, 2 Burr. (Eng.) 785, which involved the right of the baker to bake puddings and pies and meats on Sunday, in addition to making bread, which was his ordinary calling. The baking of puddings, etc., was held not to be a violation of the statute.

A baker who keeps his store open for business, and sells ice cream, cakes, etc., on Sunday, is guilty of performing worldly employment on Sunday, contrary to the Pennsyl- vania Sunday law of 1794, and the local acts of 1855 relat- ing to Allegheny County. Burry's Appeal, 1 Monag. Pa. Sup. Ct. Cas. (Pa.) 89.

Bank Paper. Commercial paper falling due ou Sunday should be presented on Monday. Salter v Burt, 20 Wend. (N. Y.) 205; see various State statutes on this subject.

Balloon Ascension. An agreement to make an ascension in a balloon from a public garden on a Sunday for a com- pensation is a contract for the performance of servile labor, and an action for the compensation cannot be sustained. Sunday, originally established as a day of rest and religious worship, has become by statute a civil institution, to be observed by courts, public officers, and all private citizens. Brunnett v Clark, 1 Buff. Super. Ct. (Sheldon) (N. Y.) 500.

Barber. In Kentucky (Stratman v Commonwealth, 137 Ky. 500) a statute was held unconstitutional which made it

748 THE CIVIL LAW AND THE CHUKCH

unlawful to open a barber sliop on Sunday and engage in the business of barbering and which imposed a penalty different from that applicable to other prohibitions of busi- ness on Sunday.

Barbering on Sunday was held not to be a work of neces- sity or charity, and therefore not permissible under the Wis- consin Statute. Stark v Backus, 110 Wis. 557.

Shaving and hairdressing for hire in a shop kept for the purpose is a worldly employment or business, which, if done on Sunday, is, unless a Avork of necessity or charity, for- bidden by the act of April 22, 1794, Such an occupation is not rendered a work of necessity or charity by the fact that there are some persons whose beards require shaving daily, or whose occupations through the week make it difficult or impossible for them to get shaved except upon Sunday, when it appears that the shop is kept open for all persons indiscriminately, and the work done is not merely shaving but all the work of a barber. Mere lapse of time or the developments of modern life cannot repeal such, a statute. Commonwealth v Waldman, 8 Pa. Co. Ct. 449.

In Ex Parte Jentzsch, 112 Cal. 4G8, it was held that sec- tion 310-^ of the California Penal Code, enacted in 1895, making it a misdemeanor to keep open and conduct a barber shop or to work as a barber on Sundays and other holidays, was an undue restraint of personal liberty, and was special legislation and based upon an arbitrary classification, and not a proper exercise of the police power, and was uncon- stitutional and void.

In State v Krech, 10 Wash. 166, it was held that a statute prohibiting the sale of goods, wares, and merchandise on Sunday, or the opening of places of business for that pur- pose, did not prohibit the opening of a barber shop on Sun- day. So in Tennessee (State v Lorry, 66 Tenn. 95) it was held that a barber keeping open his shop and carrying on his business on Sunday was liable to a penalty but was not subject to indictment.

The New York act of 1895, chap. 823, prohibited barber-

SUNDAY 749

iiig (>u Sunday except iu Saratoga Springs and in New York city, where it was permitted until one o'cloclv in the after- noon. The act was amended in 1907, chap. 297, as to Sara- toga Springs, and was continued in the Penal Law of 1909, sec. 2153. The original statute was sustained in People v Haynor, 149 N. Y. 195, and in I'eople ex rel Bobach v Sheriff, i;{ Misc. (N. Y.) 587, 35 N. Y. Supp. 19.

Baseball. It was held in Capital City Athletic Associa- tion V Police Commissioners, Greenbush, 9 Misc. (N. Y.) 189, that baseball-ijlaying on Sunday, for profit, upon pri- vate grounds, if not within the strict letter of the Penal Code, is a business that is against the public policy of the State.

Three persons played ball on private grounds simply pitch- ing the ball from one to another without making any noise. Such i)laying was held not to be within the prohibition of the New York Penal Code, sec. 265. It was further held that to constitute a violation of the statute the playing must seriously interrupt the repo.se of tlie community on Sunday. Peojde V Dennis, 35 Hun (N. Y.) 327.

Baseball-playing on Sunday at an inifrequented place is not such a breach of the peace as to make the i)arties play- ing indictable for a common nuisance in the absence of evi- dence that anyone in the immediate neighborhood was dis- turbed by any disorder or behavior on the j^art of tlie people present. To constitute a breach of the peace the peace must be broken or disturbed by such disorderly and unlawful con- duct as actually disturbs tlie peace and quiet of some- body iu the immediate neighborhood where the acts com- l)lained of are committed. Commonwealth v Meyers, 8 Pa. Co. Ct. 435.

In Greater Newburgh Amusement Company, Inc. v Sayer, 81 Misc. (N. Y.) 307, it was held that public games of base- ball between professional teams on Sunday violated the provision, of the Penal Law which prohibits public sports on tliat day, altliough no admission fee was charged.

Bill, Acceptance. A bill was drawn on Sunday, but there

750 THE CIVIL LAW AND THE CHURCH

was no evidence as to the day on which it was accepted. It was held that the bill was not void as violating the Sunday- law. Begbie v Levi, 1 Crompt, & Jer, (Eng. ) 180.

Bill of Exchange, Indorsement Void. Such a bill indorsed on Sunday is void. Saltmarsh v Tuthill, 13 Ala. 390.

Bill of Sale. An action on a bill of sale made on Sunday cannot be defeated by the objection of a person who was not a i3arty to the sale and had no interest in the property. Richardson v Kimball, 28 Me. 463.

The execution on Sunday of a bill of sale of personal prop- erty', in pursuance of a sale made on Friday, does not affect the validity of the sale. Foster v Wooten, 67 Miss. 540.

Bond. A bond signed on Sunday is not void if not deliv- ered on that day. Commonwealth v Kendig, 2 Barr. (Pa.) 448.

A bond executed on Sunday is void under the statute, but not at common law. Fox v Mensch, 3 Watts. & S. (Pa.) 444.

A bond executed on Sunday, but not from necessity or charity, cannot be made the basis of an action. It was secular labor and within the prohibition of the statute. Pattee v Greely, 13 Met. (Mass.) 284.

Business. The carrying on of one's ordinary business on Sunday is an indictable offense at the common law, and also under the statutes of Tennessee, if conducted so openly as to attract i^ublic attention and thereby tend to corrupt public morals. It is no defense to such prosecution that the accused conscientiously believes in observing and actually observes the "seventh" rather than the "first" day of the week as the Sabbath. Parker v State, 16 Lea (Tenn.) 476.

Butcher. Exercising trade of butcher on Sunday was no offense at common law. Rex v Brotherton, 1 Str. (Eng.) 702.

Camp Meeting, Charge for Admission. A compulsory pay- ment of a fee for admission to camp-meeting grounds at a service held on Sunday was held to constitute worldly busi- ness under the Pennsylvania statute. "Wlien the wayward sinner is forbidden entrance to the diurch unless he hands

SUNDAY 751

over his nickel to the doorkeeper, the church so demandiug and receiving on Sunday is in no better position, so far as worldly business is concerned, than would be the circus man with his one price of admission to all the several and combined shows of his monster aggregation, or the peddler with his busy booth." Commonwealth v Weidner, 4 Pa. Co. Ct. 4:J7.

Canal Lock-Keeper. A lock-keeper in the employ of the Schuylkill Navigation Company is not liable to conviction for violating the Pennsylvania act of 22d of April, 1794, prohibiting worldly employment upon Sunday, for opening the lock gates on the Schuylkill Canal to admit of the pas- sage of boats on the Sabbath day. on the demand of owners or captains of boats navigating the canal. The Schuylkill River is a public highway, and as people have a right for some purposes to pass along it, even on Sunday, the com- pany must keep it open and the agents of the company are not to judge as to the lawfulness of the travel, which is done at the risk of incurring the penalty prescribed for the viola- tion of Sunday, inflicted in the mode prescribed by law. Murray v Commonwealth, 24 T*a. 270.

Charitable Institution, Resolution. A resolution amending a by-law of a charitable institution relative to relief of such members was held not void because adopted on Sundaj'. McCabe v Father Matthews, 24 Hun (X. Y.) 119.

Chattel Mortgage. A promise by the purchaser of mort- gage<l personnl ])roj)erty to i»ay the mortgagee the amount due, if the latter will surrender the note and mortgage to the mortgagor, is not within the statute of frauds. It is no defense to a suit on such i)romise that the purchase from the mortgagor was made on Sunday, nor that there was a breach of the mortgagor's warranty. Provenchee v Piper, 68 N. H. :^1.

Church, Resolution to Employ Minister. An ecclesiastical corporation may, at a regular service on Sunday, adopt a resolution to employ a minister. Arthur v Northfleld Con- gregational Church, 73 Conn. 718.

752 THE CIVIL LAW AND THE CHURCH

Cigars. The sale of cigars ou Sunday in the usual course of the seller's business to a habitual smoker of cigars is a violation of the Sunday law.

A hotel keeper may not keep open on Sunday a stand, room, or other place for the purpose of general sales of cigars or tobacco to resident customers or boarders, how- ever it may be as to the transient guest who had no oppor- tunity to provide for his Sunday wants.

The court does not know judicially that smoking a cigar by one who has acquired the habit is a necessity.

The word ''necessity," as used in the Sunday law, does not mean an absolute or physical necessity, but a moral fitness or propriety of the work or labor done under the cir- cumstances of the particular case. It ought to be an unfore- seen necessity, or such as could not reasonably have been provided against. Mueller v State, 76 Ind. 810.

A sale of cigars by a tobacconist in his shop in the usual way and for ordinary use on the Lord's Day is not a sale of drugs and medicines, within the meaning of these woids in the Massachusetts statute of 1887, incorporating certain ex- ceptions into the public statutes, chap. 98, sec. 2, whicli pro- hibited the keeping open shop on that day for the purpose of doing business. Commonwealth v Marzyuski, 149 Mass. 68.

A sale of cigars on Sunday by a licensed innkeeper, whether to his guests or to strangers, was illegal under the Pennsylvania act of 1794. Baker v Commonwealth, 5 Pa. Co. Ct. 10.

Commercial Paper. A creditor drew an order on his debtor in favor of a third person, which was accepted, and the money thereon was paid to the creditor. The entire trans- action occurred on Sunday. The creditor was about to leave town, and the payment was an accommodation to him. The court held that the transaction was not a work of neces- sity or charity, and that an action could not be maintained upon the acceptance. Mace v Putnam, 71 Me. 2.38.

If drafts were accepted and delivered on Sunday, they

SUNDAY 75:3

were void betweeu the parties; but if they were falsely dated as of another day, aud came into the hands of an innocent holder, who took them for value without notice, and in the due course of trade, the acceptor was estopped from setting up that defense in a suit against him by such holder. But if the contract of purchase was on Sunday, then it was not in the due course of trade, and the holder would not be jjrotected. The acceptances in this case were dated on Saturday, but there was no evidence that the holder received them on Sunday, or knew of any irregularity in their execu- tion. Harrison v Towers, 70 Ga. 218.

Common Carrier. Where cattle were received Sunday afternoon by a railroad company to be transported over its line it was held that such prohibition against Sunday busi- ness did not apply; also that the railroad company was liable in damages for failure to transport the cattle promptly, instead of waiting until Monday morning. Phila- delphia, Wilmington & Baltimore R. R. Co. v Lehman, 56 Md. 209.

A contract for the transportation of property upon a steamboat is not void because made on Sunday, nor because the voyage is to commence and does commence Sunday even- ing. Horses were on Sunday placed on board a steamer for transportation, and on that day the freight was paid and a receipt taken, but there was no contract requiring the trip to begin that day. The steamer started on Sunday, and on Monday was wrecked, resulting in the loss of the horses. It was held that the contract was not void because made on Sunday. Merritt v Earle, 29 N. Y. 115, aft'g. 31 Barb. (X. Y.'i 38.

Contract. Though an executory contract of sale made on Sunday is illegal and not enforceable, yet where the con- tract is executed by delivery of possession the title of the property sold passes, and the property is not thereafter sub- ject in the hands of the vendee to attachment in favor of the vendor's creditors. Blass v Anderson, 57 Ark, 483.

An agreement on Sunday between a debtor and his cred-

754 THE CIVIL LAW AND THE CHURCH

itor and a third pei'soii, that such tliird person shoiihl pay the debt as an aeconiniodation to the debtor, and tlie debt "vy^as paid on that day, the transaction was held void under the Maine statute against doing business on Sunday, and that it was not a work of necessity nor charity. In an action by the third person on a written order given as a part of the transaction it was held that he was not entitled to recover. Mace v I'utnani, 71 Me. 238.

A letter- written and delivered on Sunday, promising lo pay for services, may become the basis of a contract if there is no evidence of actual acceptance on that date, and tlie services are performed on a week day. Tuckerinan v Hinkley, 9 Allen (Mass.) 452.

If a letter is written and delivered on Sunday, request- ing and promising to pay for the performance of services, and there is no proof of an agreement made on that day to perform the same, the person who received the letter may maintain an action upon the promise contained therein, if he subsequently performs the service on week days. Tuck- erman v Hinkley, 9 Allen (Mass.) 452.

A contract for the purchase of goods was initiated on Saturday and completed on Sunday. It was void, but was held enforceable by reason of the subsequent promise of the purchaser to jiay for the property which was deemed a rati- fication of the original contract. Williams v Paul, 4 M. & P. (Eng.) 532.

While an executory contract made on Sunday will not be enforced by the courts, such a contract may be ratified and reaffirmed on a secular day, and will then become valid. In this case a note was discounted on Sunday, and a check for the proceeds delivered dated the next day, but the money was not drawn until the following Wednesday. It was held that the loan was valid. The contract was not completed until Wednesday. Cook v Forker, 193 Pa. St. 401.

In Tillock v Webb, 50 Me. 100, it was held that a contract for the use of a horse and buggy on Sunday not for a pur- ])ose of necessity or cliarity was void, and that a i)romissory

SUNDAY 755

note giveu by the hirer as coinpeiisatiou for damages to the horse and buggy, was v\ithoiit consideration.

A contract by which a horse is let on the Lord's Day is void, and a court ol" law will not enforce it uor give com- pensation or damages for breach of it. But if the i)erson hiring the horse, having comideted the distance agreed upon, undertakes a new and independent journey, not witliiu the terms of the illegal contract, the illegality of the con- tract furnishes no defense for his subsequent acts. Trover may be maintained for the wrongful conversion of the horse, unless the owner to establish his claim invokes aid from the unlawful agreement.

A let a horse to B on the Lord's Day to go three miles; B went with him six miles further, and overdrove him so that he died. It was held that an action of trover lay for damages. Morton v Gloster, 4:() Me. 520.

If a contract for the hire of a horse was made on Sunday, and the horse was injured by the negligence of the hirer, an action may be maintained against him by the owner, not- withstanding the fact that the hiring was on Sunday. Har- rison V Marshall, 4 E. D. Smith (N. Y.) 271.

Letting a horse on Sunday is a matter of business, and traveling with a horse for pleasure on Sunday violates the statute. If the horse is injured by immoderate driving in consequence of which he dies, the owner cannot recover even if the injury occurred while the hirer was driving beyond the place named in the contract. Gregg v Wyman, 4 Gush. (Mass.) 323.

A contract for the purchase of land was initiated, but not completed, on Sunday. A payment on the contract was made on a subsequent week day, but there was a failure of consideration resulting from the refusal of one partner to confirm the contract made with his copartner. The plaintiff who made the payment on the contract was held entitled to recover it back, and the Sunday negotiations were held no bar to the action. Merrill v Downs, 41 K. H. 72.

A contract for the performance of work on a railroad was

756 THE CIVIL LAW AND THE CHUKCH

initiated by negotiations begun but not concluded on Sun- day. The work was performed and recovery on the contract was sustained on the ground that the Sundaj' negotiations constituted a mere proposition, not resulting iu a completed contract on that day. Stackpole v Symonds, 23 N. H. 229.

In an action in Vermont based on a fraud in the exchange of horses which occurred in New Ham})shire on Sunday it was held that the contract, if made in another State, was not in violation of the law of Vermont. A contract made on Sunday is not tinged witli any general illegality ; it is illegal only as to the time in which it is entered into. Adams V Gay, 19 Vt. 358.

A contract made on Sunday for the performance of labor, which was afterward performed on week days, rendered the employer liable for the amount agreed upon. Receiving the labor was in efifect a ratification of the contract, and he was bound to j)ay for it. Meriwether v Smith, 44 Ga. 541.

When the time for the performance of a contract falls on Sunday the compliance on the following day will be a suffi- cient performance. Stryker v Vanderbilt, 27 N. J. Law Rep. 68.

Where the last day for performing a contract falls upon Sunday the party has the following Monday on which to perform. Otherwise, as to contracts where days of grace are allowed, the last of which falls on Sunday, if Sunday be the next day after presentment of a protest of a bill or note, the notice of protest will be in time if sent on the following Monday. Anonymous, 2 Hill (N. Y.) 375.

A contract entered into in New York by parties resident there, and to be performed there, is to be governed by the laws of that State. According to the judicial decisions in New York, it is settled that when the day of the perform- ance of a contract, upon which days of grace are not allowed, falls on Sunday, that day is not to be counted, and the con- tract may be performed on the next Monday. Stebbins v Leowolf, 3 Cush. (Mass.) 137.

An executed contract made on Sunday is not void. There-

SUNDAY 757

fore a sale of persoual pi-opeity on a week day for which a note was given on Sunday, possession of the property having been transferred to the buyer and the note paid, the trans- action was held valid, notwithstanding a part of it occurred on Sunday. Chestnut v Harbaugh, 78 Pa. St. 473.

A contract for the sale of property initiated on a week day, but not completed until Sunday, must be regarded as a Sunday contract and therefore void. Smith v Foster, 41 N. H. 215.

It was held in New York that any business not judicial can be lawfully done on Sunday, except so far as it is pro- hibited by statute. The exposure of certain articles to sale is prohibited. The prohibition is evidently directed against the public exposure of commodities to sale in the street, or in stores, shops, warehouses or market places. It has no reference to mere private contracts, which are made without violating or tending to produce a violation of the public order and solemnity of the day. Every man is per- mitted, in those respects, to regulate his conduct by the dic- tates of his own conscience. In this case the contract was made on Sunday in Canada, but it related to property' in this State, which was transferred by one partner to another in settlement of partnership affairs. The transfer was sus- tained. Boynton v Page, 13 Wend. (N. Y.) 425.

An agreement was made on Sunday for the extension of a debt on condition that a certain amount should be paid at a specified date, and the amount was afterward paid accord- ingly. The contract was not void, although nmde on Sun- day, It was a new contract and binding on both parties. The Sunday law should not be used as a means to perpetrate a fraud, fhler v Applegate, 26 Pa. St. 140.

Where a contract was to be performed on demand, a demand for the performance on Sunday need not be com- plied with. A party is not bound to perform a contract on that day. Delamater v Miller, 1 Cow. (N. Y. ) 75.

A contract made on Sunday is not void at common law. An executory contract made on Sundaj' cannot be enforced,

758 THE CIVIL LAW AND THE CHURCH

but au executed contract consuinniated on Snnday, which does not need the aid of the court to enforce it, will not be avoided on that ground. A deed previously signed and ac- knowledged, but delivered on Sunday, will pass the title to the grantee. Shunian v Shuman, 27 Pa. St. 90.

If an offer made on Sunday be accepted on Monday, the contract is not invalid under the New Hampshire public statutes, chap. 271, sec. 3. McDonald v Fern aid, 68 N. H. 171.

Conversion, Driving Horse Beyond Contract Limit. A person who hires a horse of its owner to drive to a particular place, and drives it to another place, is liable in tort for the con- version of the horse, although the contract of hiring was made on the Lord's Day, and, as both parties knew, for pleas- ure only, and therefore, illegal and void. Hall v Corcoran, 107 Mass. 251.

Courts. In Story v Elliot, 8 Cow. (N. Y. ) 27, it is held that by the common law all judicial proceedings are prohibited on Sunday. Making an award is a judicial proceeding, and is invalid if made on that day.

Courts, Ancient Hebrew Custom. Sir Henry Spelman quotes several Hebrew writers as authority for the statement that Jewish courts frequently sat on the Sabbath, and that it was customary for the Sanhedrin to hold sessions each week day "from morning to night in the Gates of the city; and on the Sabbath, and on festivals upon the walls. So the whole year then seemed a continual term, no day exempted." Swann v Broome, 3 Bur. (Eng.) 1597; see also Story v Elliot, 8 Cow. (N. Y.) 27, where the court quotes from Lord Mansfield's o])iuion.

Courts, Charging Jury. The Tennessee Code of 1858 recog- nized the common law rule prohibiting holding courts on Sunday; accordingly, it was held that unless authorized by statute the judge presiding on a criminal trial could not lawfully charge the jury on Sunday. Charging a jury was said to be a high judicial function. Moss v State, 173 S. W. (Tenn.) 8.^)9.

SUNDAY Tail

Courts, Early Christian Custom. Lord Mausheld, in ^«^walm

V Broome, 3 Bur. (Eng. ) 1507, cousidering a question involv- ing the validity of judicial proceedings on Sunday, gives an interesting history of ancient usage, quoting from Sir Henry Spelman's Original of Terms the statement that "the Chris- tians at first used all days alike for hearing of causes, not sparing (as it seemeth) the Sunday itself." Lord Mansfield says the Christians had two reasons for this course: "One was, in opposition to the heathens, Avho were superstitious about the observation of the days and times, conceiving some to be ominous and unlucky, and others to be lucky, and therefore the Christians laid aside all observance of days. A second reason they also had, which was, by keeping their own courts always open, to prevent Christian suitors from resorting to the heathen courts." Begiujiing with the year 517 several canons were made by church councils restricting and finally prohibiting judicial proceedings on Sunday. These canons were confirmed by William the Conqueror and Henry II, and so became a part of the common law of Eng- land.

Courts, New York City Magistrates. In People ex rel Burke

V Fox, 205 N. Y. 490, it was held that New York city magis- trates may exercise jurisdiction on Sunday where it is neces- sary to preserve the peace, and, accordingly, a summary con- viction of disorderly conduct on that day wj^s sustained; citing sec. 5 of the Judiciary Law; Cons. Laws, chap. 30 and the Inferior Criminal Courts Act of 1910, chap. 659, sec. 71, conferring jurisdiction on city magistrates to sit on Sunday.

Deed. A deed made on Sunday is void. A contract not otherwise invalid, but void only because made on Sunday, constitutes an exception to the general rule that void con- tracts are not susceptible of ratification. A deed takes effect from the time of its delivery, and though signed and ac- knowledged on Sunday, if delivered on another day, it is a valid deed, w^hatever may be the effect upon the acknowledg- ment. Where a deed is executed on Sunday, but by the pro-

760 THE CIVIL LAW AND THE CHURCH

curemeut of the grantor is dated upon the preceding day, he cannot assert the invalidity of the deed against a subsequent bona fide purchaser. Love v Wells, 25 Ind. 503.

Defined. In Maine it was held that the Sabbath, as estab- lished by statute, commences at midnight preceding and ends at sunset on the Lord's Day. Traveling after sunset on that day is not illegal. Nor was it any defense in an action for damages against a town, for injuries to plaintiff's horse by a defect in one of their highways received after sunset on the Sabbath day, that the plaintiff let his horse on Sunday, and at the time of the injury the horse was being used under such contract. Bryant v Biddeford, 39 Me. 193.

Under the Texas law Sunday includes the twenty-four hours from midnight to midnight. The giving of two or more theatrical performances in the same place on the same day does not constitute separate offenses. Muckenfuss v State, 55 Tex. Cr. Re. 229.

Under the New Hampshire statute of 1799 the Lord's Day includes twenty-four hours from midnight to midnight. The service of civil process on that day is illegal. Shaw v Dodge, 5 N. H. 102.

It was held in Connecticut, Fox v Abel, 2 Conn. 541, that the term "Lord's Day" included the solar day only, the time between sunrise and sunset, and that the service of a body execution after midnight on Sundaj^, and before sunrise was not a violation of the statute against the service of civil pro- cess on the Lord's Day.

Demurrage. In view of the statute prohibiting servile labor on Sundays, a contract to pay demurrage will, in the absence of any proof to the contrary, be deemed to intend to mean demurrage for working days, and to exclude Sundays. Rigney v White, 4 Daly (N. Y.) 400.

Disorderly Conduct. The Sunday law of 1794 is expressly limited to worldly business and unlawful sports or diver- sions, and does not apply to drunkenness, swearing, and disorderly conduct. Noftsker v Commonwealth, 22 Pa. Co. Ct. 559.

SUNDAY 7G1

Employer and Employee. The prohibition contained in the Virginia Sunday law was held to apply both to an em- ployer and to an employee. Puckett v Commonwealth, 107 Va. 844.

Execution. The sheriff received an execution on a week day with instructions to hold it until further directions. On Sunday the plaintiff in the execution directed the sheriff to proceed. On Monday, when about to levy under this execu- tion, he received another execution. It was held that the latter execution had priority. The direction to the sheriff given on Sunday was a nullity. Stern's Appeal, G4 Pa. St. 447.

Judgment was entered in the forenoon on Saturday. An execution was issued Sunday night immediatelj^ after mid- night. The statute prohibited the issue of an execution until the lapse of twenty-four hours after the entry of the judg- ment. It was held that Sundaj' must be excluded from the computation of time, that the execution was prematurely issued, and that a levy under it was void. Penniman v Cole ; 8 Mete. (Mass.) 496.

Where the lien of an attachment continued thirty days after the rendition of the judgment, and the last day fell on Sunday, the time was not thereby extended. Sunday could not be excluded from the computation, and an execution issued on that day was too late and invalid. Alderman v Phelps, 15 Mass. 225.

Food. A proprietor of an ice cream saloon and a cake and bread bakery sold ice cream, cake and bread to persons who either ate them on the premises or carried them away. Such sales were held not to be a violation of the Pennsylvania Sunday law of 1794. Commonwealth v Keithan, 1 Monag. Pa. Sup. Ct. Cas. 368.

Foreclosure Sale. In Sayles v Smith, 12 Wend. (N. Y.) 57, the court sustained the regularity of a notice of sale in fore- closure by advertisement which provided for a sale on Sun- day, saying that such sale on Sunday was not prohibited by law; but in this case the sale was postponed before the Sun-

762 THE CIVIL LAW AND THE CHURCH

day fixed for the sale, and was had on the following day. Monday.

Gaines. Under the Sunday law of Mississippi the term "games" means such sports and contests as are publicly exhibited, and not private diversions, and therefore, an indictment alleging that the defendant "did unlawfully play at cards and dice on Sunday" charged no offense. Rucker v State, G7 Miss. 328.

Gaming, Dice. The Texas statute against gaming for money in a city on Sunday was held to include gaming with dice prohibited by a subsequent statute. Borders v State, 66 S. W. (Texas) 1102.

Habeas Corpus. A writ of habeas corpus may be executed on Sunday. Rice v Commonwealth, 3 Bush (Ky.) 14.

Ice Cream. The sale of ice cream on Sunday by a baker who conducts a refreshment room in connection with the bakery but who does not furnish ordinary public entertain- ment, is a worldly employment prohibited by the Pennsyl- vania act of 1794. Commonwealth v Burry, 5 Pa. Co. Ct. 481.

Immoderate Driving. An action will not lie to recover damages arising from the immoderate driving of a horse during a pleasure drive on the Lord's Day for which he was hired. Parker v Latner, 60 Me. 528.

In Way v Foster, 1 Allen (Mass.) 408, it was held that no action lies for an injury to a horse from immoderate driv- ing, if he had been intrusted by the owner to the defendant to be driven in violation of the statute for the observance of the Lord's Day.

Injuries, Action for Damages. It was held in New Hamp- shire that it was a good defense to an action brought in that State for injuries sustained in the State of Maine while traveling for pleasure on the Lord's Day that no recovery could be had under the laws of that State. Beacham v Portsmouth Bridge, 68 N. H. 382.

Insurance. Where a life insurance policy required the payment of a premium within thirty days after notice, and the time expired on Sunday, it was held that a payment, or

SUNDAY 763

teuder, on the next day was in time, and the policy was con- tinued in force. Campbell v International Life Assurance Society, London, 4 Bosw. (N. Y.) 298.

Intoxicating Liquors. If the prohibition includes selling liquor on Sunday, and also exposing for sale on Sunday, on proof of sale only the defendant cannot also be convicted of exposing for sale as a part of the same transaction. He is not liable to two penalties. The act of selling necessarily includes the act of exposing for sale. Brooklyn v Toynbee. 31 Barb. (N. Y.) 282.

A hotel keeper who was authorized to sell liquor to be drunk on the premises, except on Sunday, could not avoid the penalty of the statute against Sunday sale by requiring the purchasers to first eat a cold lunch placed on the table at which the liquors are served. Commonwealth v Hagan, 140 Mass. 289.

Keeping open on Sunday a place for the illegal sale of intoxicating liquors was held to constitute an offense against the Massachusetts Sunday law. Commonwealth v Trickey, 13 Allen (Mass.) 559.

Where a sale is made on Saturday on an agreement that the saloon keeper should keep the beer on ice, and hand it to the customer on Sunday through a broken glass in a door, was held to be a violation of the statute against selling liquor on Sunday. Wallis v State, 78 S. W. (Texas) 231.

Proof of intent is necessary on a charge against a licensed tavern keeper for selling liquor on Sunday. Such intent cannot be presumed from the fact that the sale is by a bar- tender. The question is for the jui-y. People v Utter, 44 Barb. (N. Y.) 170.

Jews. Jews are bound to observe the civil regulations made for the keeping of the Christian Sabbath. Society for the Visitation of the Sick v Commonwealth, 52 Pa. 125.

Persons professing the Jewish religion, and others who keep the seventh day as Sabbath, are subject to the penalties imposed for violation of the Sunday law of 1794. Common- wealth v Wolf, 3 Ser. & R. (Pa.) 48.

764 THE CIVIL J.AW AND THE CHURCH

Justices, Extra Compensation. A special justice of the city of New York, receiving an annual salary for his services in that capacity, cannot recover extra compensation for serv- ices performed on Sunday. Palmer v Mayor, N. Y., 2 Sandf. (N. Y.) 318.

Laborer, Hiring. It was held in Rex v Whitnash, 1 Man. c^ Ry. (Eng.) 452, that a contract for hiring a servant for a year, made between a farmer and a laborer on a Sunday was not within the prohibition in 29 Car. 2, chap. 7, sec. 1.

Lease. A written lease was executed on Sunday, and the lessee entered into possession that day. The lease was abso- lutely void. Subsequent possession of the property and the payment of rent by the tenant created a tenancy, the terms of which depended on some contract aside from the written lease, which could not be resorted to for the purpose of ascertaining the terms of the contract. Vinz v Beatty, 61 Wis. 645.

An agreement for rent of land made on Sunday is void; but if the lessee occupies the premises during the term stated in the agreement, such agreement, with other facts and circumstances, may be shown for the purpose of estab- lishing the tenant's liability for rent. Rainey v Capps, 22 Ala. 288.

A lease executed on Sunday is void, and subsequent occu- pation of premises will not be deemed a ratification of it, but some new promise or condition in respect thereto is neces- sary. Parol evidence that it was not executed on the day it bore date is incompetent. Mcintosh v Lee, 57 la. 356.

A guaranty for the fulfillment of a lease executed and delivered on the Lord's Day between sunrise and sunset is void under Revised Statutes chap. 50, although the lease itself be not executed until a week day following. Merriam V Stearns, 10 Cush. (Mass.) 257.

Legal Proceedings. Where an act is required by statute to be done in a given number of days less than a week an inter- vening Sunday may be excluded in the computation of the time. Where the time fixed by statute for doing an act

SUNDAY 7()5

exceeds a week, and the last day falls on Sunday, the act must -be done on the preceding Saturday. Anonymous, 2 Hill's Rep. 375.

Sunday is not to be reckoned one of the three days for which an officer may adjourn the sale of an equity of redemp- tion taken on execution. Thayer v Felt, 4 Pick. (Mass.) 354.

In Missouri it was held that where the last day for liliug a claim against a decedent's estate fell on Sunday, the claim might be filed on Monday. Keys v Keys' Estate, 217 Mo. 48.

Under a statute which provided that when notice of desire to take the poor debtor's oath is served by leaving a copy at the place of abode of the creditor, not less than twenty four hours shall be allowed before the time appointed for the examination. Sunday must be excluded in the computa- tion of time. Cunningham v Mahan, 112 Mass. 58.

In an action commenced on Sunday the defendant ap- peared, answered, tried the cause, and made a motion for a new trial without any objection as to the irregular com- mencement of the action. On appeal the defendant for the first time raised the Sunday objection, but it was held to be too late. Venable v Ebenezer Bapt. Ch., 25 Kan. 177.

Service on a Sunday of a notice and affidavits or other papers, which are to be the foundation of a motion for a rule, is irregular and void. Field v Park, 20 Johns. (N. Y.) 140.

A declaration in trespass may be delivered on Sunday. Hargrave & Taylor (Hill. 13 W. Ill) Fort. (Eng.) 375. See also White and Martin, (Mich. 8 W. Ill) Fort. (Eng.) 375.

Legislative Powers. A statute prohibiting common labor on Sunday is a mere municipal or police regulation, whose validity is neither strengthened or weakened by the fact that the day of rest it enjoins is the Sabbath day. The Legisla- ture has power to require cessation of labor at stated inter- vals, and to name the day of rest. Bloom v Richards, 2 Ohio St. 387.

As to the power of the Legislature to protect Sunday from desecration, see Neuendorff v Duryea, 69 N. Y. 557; People

im THE CIVIL LAW AND THE CHURCH

V Dunford, 207 N. Y. 17, 20; People v Moses, 140 N. Y. 215; also Liudenmiiller v People, 33 Barb. (N. Y.) 548.

"The establishment and regulation of the Sabbath is within the just powers of the civil government. With us the Sabbath as a civil institution is older than the government." "It is a law of our nature that one day in seven must be observed as a day of relaxation and refreshment, if not for public worship. Experience has shown that the observance of one day in seven as a day of rest is admirable service to a state, considered merely as a civil institution." "The sta- bility of government, the welfare of the subject, and the interests of society, have made it necessary that the day of rest observed by the people of a nation should be uniform, and that its observance should be, to some extent, com- pulsory, not by way of enforcing the conscience of those upon whom the law operates, but by way of protection to those who desire and are entitled to the day." "As a civil institution the selection of the day is at the option of the Legislature ; but for a Christian people it is highly fit and proper that the day observed should be that which is re- garded as the Christian Sabbath, and it does not detract from the moral or legal sanction of the law of the State that it conforms to the law of God, as that law is recognized by the great majority of the people. Tlie Sabbath exists as a day of rest by the common law, and without the necessity of legislative action to establish it; and all that the Legisla- ture attempts to do in the Sabbath laws is to regulate its observance." "The Christian Sabbath is, then, one of the civil institutions of the State, and to which the business and duties of life are, by the common law, made to conform and adapt themselves." Liudenmuller v People, 33 Barb. (K Y.) 548.

The Christian Sabbath is a civil institution older than our government, and respected as a day of rest by our constitu- tion, and the regulation of its observance as a civil institu- tion is within the power of the Legislature as much as any regulations and laws having for their object the preserva-

SUNDAY 7G7

tion of good morals and the peace aud good order of society. Karwiscli v Mayor, etc., Atlanta, 44 Ga. 205.

It is no part of the object of the act to enforce the observ- ance of a religious duty. The act does not, to any extent, rest upon the ground that it is immoral or irreligious to labor on the Sabbath any more than upon any other day. It simply prescribes a daj' of rest from motives of public policy as a civil regailation. The principles on which the statute rests are wholly secular, and they are none the less so be- cause they may happen to concur with the dictates of reli- gion. The Legislature has no power over things spiritual but only over things temporal, nor any power whatever to enforce religious duties, simply because they are religious, but only, within the limits of the constitution, to maintain justice and promote the public welfare. The act rests on public policy alone. McGatrick v Wason, 4 Ohio St. 5G0. State Legislatures, and Congress within the District of Columbia, have power to set apart Sunday as a da}' of rest and prohibit labor thereon. This is not done for the purpose of enforcing religious observance, but the regulation is made in the interest of good order and the welfare of society. The Legislature might select any other day, but by selecting the Sabbath day has selected the day society generally recognizes as a day of rest, irrespective of any legal require- ment. Keferring to the Maryland act of 1723, among other things prohibiting blasi)hem3'. the court said it was evi- dently intended to prevent the desecration of the Lord's Day, and not primarily to enforce a day of rest. It was held that this statute, and others of a similar import, enacted during the colonial period, had become obsolete by the formation of a State government and the adoption of ditlerent policies of legislation which had limited the enact- ment of laws in relation to Sunday to the cessation of cer- tain prescribed forms of business on that day, and which do not assume to impose any religious obligation on the citizen. District of Columbia v Robinson, 30 App. D. C. 283.

7(>8 THE VAYIL LAW AND THE CHURCH

Levy. A levy on property is void. Peirce v Hill, 9 Port. (Ala.) 151.

Loan. A loan of money made on the Lord's Day is void. Whether the promise to repay be in writing, verbal, or implied, it cannot be enforced. Header v White, GO Me. 90.

Mail Carrier. A contract with the postmaster-general to carry mail required it to be carried between certain points ever}^ day. This was held to justify carrying the mail on Sunday, notwithstanding the statute wliich prohibited trav- eling on that day, except as a work of necessity or charity. Commonwealth v Knox, G Mass. 7G.

Marriage. A marriage contract msiy be performed on Sun- day. Hayden v Mitchell, 103 Ga. 4.3L

Meat Market. Keeping open a butcher shop and selling meats and vegetables from it on Sunday is a violation of the Arkansas statute of 1895 imposing a fine on every per- son who shall on Sunday keep open a store or retail any goods, wares, and merchandise. Petty v State, 58 Ark. 1.

Moving Pictures. A moving-picture show was held to vio- late the New Jersey statute. Rosenberg v Arrowsmith, 89 A. (N. J.) 524; see also Ex parte Zuccaro, 162 S. W. (Tex.) 811; also Lempke v State, 171 S. W. (Tex. Crim. App.) 217; see also People ex rel Kieley v Lent (Yonkers) IGG A. D. 550 (N. Y.), but see Hauck v Ingles, 118 N. W. (Minn.) 100.

Municipal Ordinance. An ordinance of the town of Colum- bia, South Carolina, prohibiting the sale of certain goods on Sunday was sustained in Town Council, Columbia v Duke, 2 Strobh. L. (S. C.) 530. It did' not violate the provision of the State constitution relative to the freedom of religious profession and worship, nor did it violate the amendment to the federal constitution on the same subject.

An ordinance adopted by the city of Charleston prohibit- ing the sale of certain goods on Sunday was held not to be a violation of the provision of the State constitution declar- ing freedom of religious profession and worship. The de- fendant was an Israelite who kept the seventh day — the

SUNDAY 709

Jewish Sabbath. The court held that Sunday was a daj' of rest, and that Sunday had nothing to do with it. The prohibition containing the ordinance operated against Christians and Jews alike. City Council, Charleston v Ben- jamin, 2 Strobh. L. (S. C.) 508.

If the general State law contains provisions relative to Sunday observance, and prohibiting business on Sunday, city authorities have no power to enact an ordinance on the same subject, but they may enact ordinances on subjects not embraced in the general law. Rothschild v Darien, 69 Ga. 503.

Necessity. A person who repairs a railroad track on Sun- day by removing a broken rail and replacing it with a new one does not violate the statute against worldly business on Sunday. In this case the broken rail was discovered on Sundaj- morning. Commonwealth v Fields, 4 Ta. Co. Ct. -134.

Repairing on Sunday a belt in a mill which broke on Saturday was held to be a work of necessity, as otherwise the mill could not have been run on Monday. State v Collett, 79 S. W. (Ark.) 791.

Works of necessity are not limited to laboi- for (be pre- servation of life, health, or ])roperty from impending danger. The necessity may grow out of, or, indeed, be incident to the general course of trade or business, or even be an exigency of a i^articular trade or business, and yet be within the exception of the act. McGatrick v Wason, 4 Ohio St. 566, declaring it lawful to load a vessel on Sunday if there was no other time to do so, in view of the danger that navigation might be closed.

It was held not a work of necessity to clear out a wheel- pit on Sunday, for the purpose of preventing the stoppage on a week day of mills which employed many hands. A l)erson who gratuitously assisted the owner of the wheel-pit in clearing it out on Sunday, and during such service was injured, was not entitled to recover damages for the injury, for the reason that his illegal act in working on Sunday was so inseparably connected Avitli tlie cause of action as to pre-

770 THE CIVIL LAW AND THE CHURCH

vent his maintainiug the suit. McGrath v Merwiii, 112 Mass. 467.

An aged woman, while in a hospital suffering from severe injuries, executed on Sunday' an assignment of personal property in trust for her own benefit, comfort, and support during life, for her funeral expenses, and a burial lot, and for the celebration of masses for the benefit of her father, brother, and herself. This was held to be a work of neces- sity or charity under the statute, and was valid. Donovan

V McCarty, 155 Mass. 543.

The Illinois criminal code, which prohibits labor on Sun- day, work of necessity and charity excepted, does not mean by the word "necessity" physical and absolute necessity, but a moral fitness or propriety of the work done under the circumstances of each particular case. Any work, therefore, necessary to be done to secure the public safety, by the safe- keejjing of a felon, or delivering him to bail, must come within the true meaning of the exception in the statute. Therefore it was held that a prisoner might enter into a recognizance on Sunday without violating the statute. Johnston v People, 31 111. 469.

"By a work of necessity is not meant by the statute a phys- ical and absolute necessity but any labor or work which is morally fit or proper to be done on that day under the cir- cumstances of the particular case." Commonwealth v Fuller, 4 Pa. Co. Ct. 429.

It was held that when a defect in a highway is discovered on Sunday which may injure the limbs and the lives of travelers, it is not only morally fit and proper that it should be immediately repaired, but it is the imperative duty of the town which is bound to keep the highway in repair to cause it so to be done, or to adopt means to guard against the danger until it can be done, and work and labor for this purpose is no violation of the law or of religious duty. Flagg

V Millbury, 4 Cush. (Mass.) 243..

Kunning certain trains on Sunday by railroad companies is a work of necessity under the Pennsylvania act of 1794,

SUNDAY 771

and it is uecessary to have such cars inspected and repairs to keep the road open and the cars moving. It was held that an inspector who repairs cars on Sunday was not guilty of an offense under this statute. Commonwealth v Robb, 3 Pa. Dist. Re. 701 ; 14 Pa. Co. Ct. 473. In Page v O'Sulli- van, 159 Ky. 703, it was held that the service performed by a prison guard was a work of necessity.

Newspapers. In Commonwealth v Teamann, 1 Phila. (Pa.) 460, it was held that a charge of disorderly conduct in sell- ing newspapers on Sunday could not be sustained without evidence that the crying of newspapers on the streets had been committed in such a disorderly manner as to constitute a breach of the peace.

A person kept open his place of business on Sunday, and Sunday papers of that date were upon that daj' sold therein, and he received and caused to be delivered to the customers upon his route as a carrier upon that day the newspapers which had that day been published. This was held a viola- tion of the Pennsylvania Sunday law of 1701. That carry- ing on any business on Sunday may be profitable to the per- sons engaged in it, that it may serve the convenience or tastes or wishes of the public generally, is not the test which the statute applies. Commonwealth v Matthews, 2 Pa. Dist. Re. 13.

The publication of a newspaper on Sunday was held to be worldly employment under the Pennsylvania act of 1794, and a person who was a stockholder, director, and general business manager of the newspaper companj^ was held liable for a violation of the statute. Commonwealth v Houston, 3 Pa. Dist. Re. 680, 14 Pa. Co. Ct. 395.

A contract for the publication of an advertisement in a newspaper to be issued and sold on Sunday is void. Judge Allen, after quoting the statute regulating Sunday observ- ance says : ''The statute is in harmony' with the religion of the country and the religious sentiment of the public," and that the statute should be liberally construed in respect to the mischiefs to be remedied. Smith v Wilcox, 24 N. Y. 353.

772 THE CIVIL LAW AND THE CHUIICH

Kotb V Hax, G8 Mo. App. 283, sustained the validity of a notice that a contract for street improvements would be let on a given day, although the first insertion of such notice was in a Sundaj^ newspaper.

In Montana the court sustained the validity of the publi- cation of a notice of the submission of a constitutional amendment, although it was published in the Sunday issue of one paper, there being in that State no statute prohib- iting such a publication. The court said that the common law rule would govern in such a case. State ex rel Hay v Alderson, 49 Mont. 387, 142 V. 210.

In Sentinel Co. v Motor Wagon Co., 144 Wis. 224, it was held that the publisher of a newspaper could not recover for an advertisement published on Sunday.

A contract to distribute newspapers on Sunday was held void. Knight v Press Co., 227 Pa. 185.

Object. The law gives to the public the right of enjoy- ing the Sabbath as a day of rest and of religious exercise, free and clear of all disturbance from merely unnecessary and unauthorized worldly employment. Where this law is contravened in such a manner as to disturb that enjoyment by noise or disorder accompanying it, or incident to it, it may be treated as a breach of the peace. Commonwealth v Jeandell, 2 Grant's Cas. (Pa.) 506.

The institution of the Sabbath is not only admirably adapted to promote and establish religion among us, but to secure and preserve our physical as well as moral health and strength. Commonwealth v Dupuy, Brightly N. P. (Pa.) 44.

Omnibus. Driving an omnibus on Sunday is worldly em- ployment, and within the prohibition of the Pennsylvania act of 1794. The driver of tlie onmibus cannot defend by showing that he was under a contract for monthly hire, and that it included Sunday. Johnston v Commonwealth, 22 Pa. St. 102.

One Offense Only. A person can commit but one offense on the same day, by exercising his ordinary calling on a Sunday, contrary to the statute of 29 Car. 2, C. 7. And if

SUNDAY 773

a justice of the peace proceed to convict him in more than one penalty for the same day it is an excess of jurisdiction for which an action will lie before the convictions are quashed. Crepps v Burden, 2 Cowp. (Eng.j (i40.

Ordinary Calling. The English statute of 29 Charles II, chap. 7, .sec. 1, enacts that "no tradesman, artificer, work- man, colorer, or other j)er8on whatever shall do or exercise any worldly labor, business, or work of their ordinary call- ings upon the Lord's Day." The construction given to this statute has been that it prohibits oidy the prosecution of a man's ordinary secular business upon the Lord's Day. The terms "of their ordinary callings" have been lield to qualify and restrict the general phraseology which precedes them. Boynton v Page, 13 Wend. (N. Y.) 425.

A farm laborer who sold soda water and lemonade on one Sunday was held not liable under a statute prohibiting a person from carrying on his ordinary business or calling on Sunday. Repeated acts are necessary to constitute an ordinary calling or business. Ellis v State, 5 Ga. App. 615.

Payment on Debt. A payment on Sunday discharges the debt. Jameson v Carpenter, 08 N. H. 62.

Physician's Prescription. Under the Texas local option law whisky is treated as medicine, and it was, accordingly, held that a sale of whisky on Sunday by a druggist on a physi- cian's prescription was not a violation of the statute pro- hibiting the sale of merchandise on that day. Watson v State, 46 Tex. Cr. Re. 138.

Plaintiff's Violation of Law, When No Defense. A law relating to the Sabbath defines a duty of the citizen to the State, and to the State only. A party who erects an obstruc- tion in a navigable stream and thereby occasions an injurj^ to another cannot, in an action for such injury, set up a defense that the plaintiff was unlawfully engaged in worldly employment on Sunday when the injury occurred. Mohney V Clark, 26 Pa. 342.

Preserving Property. If property is exposed to imminent danger, it would not be unlawful to preserve it on Sunday,

774 THE CIVIL LAW AND THE CHURCH

HTid remove it to a place of safety. Panualee v Wilks, 22 Barb. (N. Y.) 539, sustaining a cojitract providing for moving to a place of safety logs forming a part of a raft, wbich had been broken up in a storm.

Process. A writ of inquiiy to damages cannot be executed on a Sunday, nor can damages be assessed by the jury on that day, even though the testimony is taken on the previous day. Butler v Kelsey, 15 Johns. (N. Y.) 177; see also Lord Cornwallis and Hoyle (Mich. G Geo. 1) Fort. (Eng.) 373.

Criminal process may be served on Sunday if such service is necessary on that day. With this limitation a warrant issued under a statute restricting the sale of intoxicating drinks might be served on Sunday unless it could be shown that the service was not necessary. Keith v Tuttle, 28 Me. 327.

A writ issued on Sunday was held void. Haynes v Sledge and Maxy, 11 Ala. 530.

Promissory Note. In Towle v Larrabee, 26 Me. 464, it was held that a promissory note made on the Lord's Day, given and received as the consideration for articles purchased on that day, is void.

A note signed and delivered on Sunday is, as between the parties, invalid. It is otherwise if it be only signed on that day and subsequently delivered. The note in this instance was indorsed on Monday. If it was an accommoda- tion paper and indorsed on Monday, it apparently then first became a binding contract and an action could be main- tained upon it. Bank of Cumberland v Mayberry, 48 Me. 198.

A ])ronnssory note, though executed on Sunday is valid if delivered on some otlier day. Hofer v Cowan, McClung Co., 55 Cent. Law Journal (Ct. App. Ky.) 290.

A promissory note given on Sunday is void as between the parties and a subsequent promise to pay it will not make it valid. I'ope v Linn, 50 Me. 83.

A note given on Sunday for a horse purchased on that (hiy is void. O'Donnell v Sweeney, 5 Ala. 467; see also

SUNDAY 775

Plaisted v Palmer, 03 Me. 576, check given for purchase price.

A .subsequent iunoceut indorsee for value is protected against any defect in a promissory note arising from the fact that it was given on Sunday. State Cai)ital Bank v Thomi>8on, 42 N. H. 309.

Under 8 Vic, Ch. 45, sec. 2, a note made on Sunday in payment of goods sold on that day is void as between the original parties, but not as against an indorsee for value, and without notice. Houliston v Parsons. 0 Up. Can. Q. B. 681; see also Crombie v Overholtzer, 11 Uj). Can. 55.

The obligation to repay a loan is not defeated by the fact that the note on which it is borrowed was made on Sunday, or that authority to deliver it was given on that day, so long as the lender knew nothing of these facts. Beman v Wessels, 53 Mich. 541).

A promissory note executed upon Sunday in consumma- tion of a contract previously made, not being a work of necessity or charity, is void. But though such note be written and signed on Sunday, yet it will not, on that ac- count, be void if not delivered until some other day. Love- joy V Whipple, 18 Vt. 371).

A note made on Sunday is void and a recovery cannot be had thereon. It cannot be presumed that the note was given on a contract made on Saturday. If there was such a con- tract, the action should be brought thereon instead of on the note. Kepner v Keefer, 6 Watts (Pa. ) 231.

A note made payable in specific articles fell due on a Sun- day. It was held that a tender of performance the next day was in time. Barrett v Allen, 10 Ohio 426.

The holder of a promissory note, bearing date on a secu- lar day taken before maturity, and in g<jod faith and for a, valuable consideration, may maintain an action thereon, although the note was, in fact, made on Sunday. Cranson v Goss, 107 Mass. 439.

A promissory note given on Sunday for an antecedent debt is valid and binding. Kaufman v Hamm, 30 Mo. 387.

770 Till-: CIVIL LAW ANJ) TllE CHUKcm

A note given on Sunday for goods previously purchased was lield not void under tlie (ieorgia act of 1762. The note was not made in the exercise of the ordinary calling or busi- ness of the parties. Sanders v Johnson, 29 Ga. 520.

Where a note falls due on Sunday a tender on the follow- ing day is good. Avery v Stewart, 2 Conn. 69,

In Maine the prohibition against business on Sunday relates only to the time between midnigiit and sunset. A promissory note was executed on Sunday before sunset. The payee was not present at the execution of the note but re- ceived it on a subsequent week day. The transaction was not complete until the delivery of the note, and the note was accordingly held valid. Hilton v Houghton, 35 Me, 143.

A horse was sold on Sunday, and the buyer on that day gave to the seller a note for the price. After\\'ard the buyer made two payments on the note, retaining the horse. Such payments and retention of the horse were deemed a ratifica- tion of the original contract, and the seller was held entitled to recover on the note. Sumner v Jones, 24 Vt. 317,

Negotiations were begun late Saturday night for the jjur- pose of preventing the imprisonment of a person charged with theft. The sister of the person charged gave a note in settlement of the matter, but it was not signed until about two o'clock in the morning. The court sustained an action on the note, notwithstanding tlie fact that it was made after the beginning of Sunday. Carpenter v Crane, 1 Root (Conn.) 9S. .

The indorsee of a negotiable promissory note, who pro- cured it to be indorsed by the payee on the Lord's Day, cannot maintain an action thei'eon in his own name against the nuiker. Benson v Drake, 55 Me. 555.

In New Hampshire a promissory note made on Sunday was held to be void. Allen v Deming, 14 N. H. 133.

A note made on Sunday is not invalid at common law. O'Rourke v O'Rourke, 43 Mich. 58.

A note dated on Sunday may be a forgery where it is

SUNDAY 777

charged and proven that it was, in fact, made on a week day. State V Sherwood, 90 la. 550.

In Michigan a note made and delivered on Sunday is void, although payable in another State. Arbuckle v Reaume, 96 Mich. 243.

A business transaction prohibited by law, in this instance the indorsement of a 2>romissory note on Sunday, is void, and the contract cannot be enforced. First National Bank, Bar Harbor v Kingsley, 84 Me. 111.

Railroad Train. Running passenger cars on Sunday is a violation of the law of 1794. Commonwealth v Jeandell, 2 Grant's Cas. (Pa.) 50G; see also Sparhawk v Union Pas- senger Railway Company, 54 Pa. St, 401.

An action lies against a street railway company to recover damages for injuries sustained by a person who was riding for pleasure on Sunday. Horton v Norwalk Tramway Com- pany, 66 Conn. 272.

A locomotive engineer in charge of a stock train was injured while running his train on Sunda3\ It was held that there was no evidence that the running of the train was a work of necessity or charit}'; tlierefore that the engineer was performing labor in violation of the statute, and he was precluded from maintaining an action for personal injuries. Read v Boston & Albany R. R. Co., 140 Mass. 199.

The running of railroad passenger trains on Snndaj^, transporting passengers, and baggage, was held to be a work of necessit3^ Commonwealth v Louisville & Nashville R. R. Co., 80 Ky. 291.

Under the Georgia Penal Code, sec. 420, which prohibits the running of a freight or excursion train on Sunday, it was held that only the superintendent of transportation was indictable for the violation of the statute, and that a pro- ceeding could not be maintained against the trainmaster who acted under the orders of the superintendent. Craven V State, 109 Ga. 266.

Redemption from Sheriff's Sale. Where a redemption from a sheriff's sale was on Saturday it was held that the next

778 THE CIVIL LAW AND THE CHUKCH

i'e(leuii)tioii, which the hiw required to be made within twenty four hoiiis, luiglit be made on Monday, Snnday not being a day on wliich sncli an act conld be performed. Porter v Pierce, 120 N. Y. 217.

Religious Services. What is a work of necessity or charity is a question of law for the court and not a question of fact for the jury. Religious services on Sunday constitute a charity, including the sermon, the music, and any other exercises usually forming a i)art of the services, and per- sons who engage in this service do not violate the Sunday law. "It is a matter of common observation that religious societies solicit moneys for their needs and take subscrip- tions at their regular meetings on the first day of the week. The custom is from time immemorial. The regular Sabbath olferings, as they are called, are limited sometimes to gifts for the poor, or for sacramental purposes, or missioiis, but quite as often they embrace gifts for the general needs of the society, including the repairs of the church, lighting and heating, the payment of taxes, and the numerous other needs which do not differ at all from the needs of ordinary business associations." "The support of public worship is a work of charity within the meaning of the statute." A subscription on Sunday to raise money to pay for a house of worship is valid. Allen v Duffie, 43 Mich. 1.

Rescission of Contract. The rescission of a contract re- quiring certain formalities to make the rescission effective is as much a matter of business as that of making the con- tract itself, and if done on Sunday is illegal and void. Bene- dict V Bachelder, 24 Mich. 425.

Sale. If the charges on a party's own day book, upon which he relies as evidence of his claim, are dated on the Lord's Day, he must show that the sale was not, in fact, made on that day, or he cannot recover. Bustin v Kogers, 11 Cush. (Mass.) 346.

Negotiations on Sunday for the sale of property are in- valid, and pass no title to the property. It is settled law in Michigan that a Sunday contract is a prohibited transac-

SUNDAY 779

tion, the illegality of which forbids it being made a sale hy a mere delivery later. The delivery must be accompanied by circumstances which in theinselves supply the necessary elements of a contract, without depending upon the Sunday transaction for any essential. Aspell v Hosbein, 1)8 Mich. 117.

A vendor of personal property, when sued in this State upon his warranty, cannot defend upon the ground that the sale was made on Sunday, if the sale occurred in Louisiana, there being no law in that State prohibiting the enforce- ment of Sunday contracts. McKee v Jones, 67 Miss. 405.

Sale of a horse invalid. Knights v Brown, 93 Me. 557.

A contract for the sale of horses on Sunday is secular labor or emj)loyment within the Vermont statute. Such a contract cannot be enforced, and an action cannot be main- tained on a warranty made on the sale or exchange of horses on that day. Lyon v Strong, 6 Vt. 219.

An action cannot be maintained for a deceit practiced in the exchange of horses on the Ijord's Day. Robeson v French, 12 Met. (Mass.) 21.

In Tuclcer v Mowry, 12 Mich. 378, it was held that a con- tract of sale made on Sunda}- is void ; and the vendor may on a subsequent day tender back the purchase price, and recover his property by replevin if it is not returned on demand.

The mere making of a bargain on Sunday for the sale of a horse is not void in New York unless the horse was pub- licly exposed for sale. The sale as made was not void at common law in New York, nor did it violate any statute. Miller v Roessler, 4 E. D. Smith (N. Y.) 231.

A contract for the sale of a horse was initiated by certain negotiations on Sunday, but the horse was not delivered, nor the money paid until the following Tuesday. The contract was not void as violating the Sunday law. Bloxsome v Williams, 3 Barn. & Cre. (Eng.) 232.

In Ohio it was held that a contract for the sale of land made on Sunday- was not invalid and did not constitute

ISO THE (UVn. LAAV AND THE CHURCH

coiiimoii labor uiulei- tlu' Sunday law ol 1831. Bloom v Kichards, 2 Ohio St. 387.

In Noi-tlirnp v Foot, 14 Wend. (N. Y.) 248, it was held that an action could not be maintained in New York based on an alleged deceit in the sale of a horse made in Connecticut on Sunday, where such sale was void.

The private sale of a span of horses on Sunday is not void at common law; nor is it void under the New York statute prohibiting the exposure for sale of goods, wares, and merchandise on Sunday. Batsford v Every, 44 Barb. (N. Y.) 618.

A horse was sold privately on Sunday by a horse dealer to one who knew the seller's calling. It was held that such a sale did not violate the Sunday statute of North Carolina, and did not prevent the purchaser from maintaining an action for deceit on the sale of a horse. Melvin v Easley, 7 Jones Law Rep. (N. C.) 356.

A sale of goods on a Sunday, which is not made in the exercise of the ordinary calling of the vendor, or his agent, is not void at common law or by the statute of 29 Car. 11, chap. 7. Drury v Defontaine, 1 Taunt. (Eng.) 135.

A contract for the sale of a horse on Sunday is void. The seller of a horse on Sunday cannot recover the animal back from the purchaser, or maintain trover for its value, on the ground that the contract was void and that no title passed. If the seller of the horse on Sunday was made drunk by the purchaser thereof, for the purpose of defrauding him, the ijarties were not in ])ari delicto and the seller can re- cover his horse. Block v McMurray, 56 Miss. 217.

A horse dealer cannot nuiintain an action upon a con- tract for the sale and Avarranty of a horse made by him upon a Sunday. Fennell v Ridler, 5 Barn. & Cres. (Eng.) 406.

Salesman, Services on Sunday. In Wisconsin a traveling salesman, under a contract by v.hich he was to receive a salary and also his expenses not exceeding an average speci- fied amount for each working day, was permitted to include Sunday among the working days, where he had actually

SUNDAY 781

traveled or rendered service on that day. Orustein v Yahr & Lange Drug Co., 119 Wis. 429.

Saloon. A saloon is open within the contemplation of 3 How. Stat., sec. 2283 (Michigan), requiring saloons to be kept closed during Sunday, where a door leading from the saloon into a hallwaj' is left open, and people are allowed to enter the hallway which does not connect with any room other than the saloon. People v Schottey, IIG Mich. 1.

Saloon Closing, Mandamus. In People v Busse, 141 111. App. 218, it was held that a peremptory mandamus would not be granted on the application of a private citizen to compel the maj'or of the city to enforce Sunday saloon closing laws. See same rule as to a police commissioner who had granted saloon privileges in addition to those prescribed by statute. A mandamus was refused to compel him to enforce the law or vacate the order promulgated bj' him Gowan v Smith, 157 Mich. 443.

Search Warrant. A search warrant is not a civil process, and it may be executed on Sunday. Wright v Dressel, 140 Mass. 147.

Seaweed. The gathering of seaweed about ten o'clock on the evening of the Lord's Day on a beach at a considerable distance from any house or public road is not a work of necessity in the sense of the Massachusetts General Statutes, chap. 84, sec. 1, although it will probably be floated away beyond reach unless then gathered. Commonwealth v Sampson, 97 Mass. 407.

Security for Good Behavior. Security for good behavior cannot be required of a person convicted on several occa- sions of a violation of the law against doing worldly busi- ness on Sunday. Commonwealth v Foster, 28 Pa. Super. Ct. 400.

Seventh Day Observance. Persons who habitually observe the seventh day as the Sabbath are nevertheless amenable to a statute prohibiting certain labor and business on Sun- day. Specht V Commonwealth, 8 Pa. St. 312.

Slot Machine. The provision of the South Carolina statute

7S2 TKE CTVIL LAW ANT) TIIi: CHURCH

prohibiting- sales of goods on Sunday was held to include machines antoniatically vending mercantile wares. A customer i)ut money in the slot and the machine automat- ically produced the articles sold. "Goods in these machines are exposed to sale as actually and effectually as if the owner or operator were present showing the goods and delivering the same on receipt of price. The intent and effect is an actual sale and delivery of goods to every customer who will pay the price as directed by the seller." Cain v Daly, 74 S. C. 480.

Social Club, Treasurer Receiving Money. The treasurer of a social club received on Sunday money belonging to the club. Even if this receipt of money by him on Sunday was a violation of the Maryland statute, he could not interpose such violation as a defense in an action by the club to recover the money. Haacke v Knights of Liberty Social and Liter- ary Club, 70 Md. 429.

Soda Water. Selling soda water as a beverage on Sunday in connection with drugs is a violation of the Pennsylvania act of 1704 prohibiting worldly employment on Sunday. Splane v Commonwealth, 0 Sad. (Sup. Ct. Cases, Pa.) 201.

Stagecoach. In Sandiman v Breach, 7 Barn, and Cres. 9G, it was held that the statute (3 Car. 1, chap. 1, and 29 Car. 2, chap. 7) did not make it unlawful for stage coaches to travel on the Lord's Day.

Statute, Gonstitutional. Sec. 247 of art. 27 of the Code of Maryland, public general laws, prohibiting work on Sun- day, is not a violation of the State or federal constitutions. Judefind v State, 78 Md. 510.

The Texas act of December 2, 1871, known as the Sunday law, makes it a misdemeanor for any dealer in a lawful business to sell or barter (except drugs or medicines) on Sunday, between nine o'clock a, m. and four o'clock p. m. within the limits of any city or town, under a penalty of not less than |20 nor more than |50. It was held that this en- actment was constitutional, and still in force, and was not a local law, nor repugnant to the guaranty of equal rights

SUNDAY 783

giveu by the constitution of 1876. Bohl v State, 3 Tex. Ct. App. G83.

The Kentucky act of 1903, sec. 1303, prohibiting keeping open a barroom or selling liquor therein on Sunday, was sus- tained as an exercise of police power, notwithstanding the provision of the constitution requiring the General As- sembl^^ to provide a law whereby the sense of the people of any city, etc., may be taken as to whether or not liquors shall be sold therein, or the sale thereof regulated. Keep- ing a barroom open on Sunday and selling liquor on that day are distinct offenses. Commonwealth bj^ Barth v McCann, 123 Ky. 247.

Statute of Limitations. A part payment ma<le upon Sunday will not take a debt out of the operation of the Statute of limitations. Clapp v Hale, 112 Mass. 3G8.

Statute, Unconstitutional. In Ex Parte Newman, 1) Cal. 502, the California act of April, 1858, "for the better observance of the Sabbath," was held to be a violation of sections 1 and 4 of the State constitution relating to the independence of the citizen and religious toleration. Tlie constitution when it forbids discrimination or preference in religion does not mean merely to guarantee toleration but religious liberty in its largest sense, and a perfect equality without distinc- tion between religious sects. The enforced observance of a day held sacred by one of these sects is a discrimination in favor of that sect, and a violation of the religious freedom of the others. Considered as a municipal regulation, the Legislature has no right to forbid or enjoin the lawful pur- suit of a lawful occupation on one day of the week any more than it can forbid it altogether.

Statute, When Retrospective. In Maine it was held that an act passed in 1880 regulating defenses on certain contracts made on Sunday applied to a contract made in 1876, and a defense was rejected because not complying with the later statute. The statute was remedial and might be retrospec- tive. Berry v Clary, 77 Me. 482.

Subscriptions on Sunday. See Subscriptions.

784 THE CIVIL LAW AND THE CHURCH

Sunset. A mortgage deed made, executed, and recorded after sunset on Sunday was sustained in Tracy v Jenks, 32 Mass. 4:G5, under a statute of that State, passed in 1791, which prohibited ordinary business between the preceding midnight and sunset on Sunday.

Surety Contract. A surety contract executed on Sunday is not invalid unless delivered to the beneficiary on that day, or he had knowledge of its execution on Sunda3^ Sherman V Roberts, 1 Grant's Cas. (Pa.) 2G1.

Telephone. A telephone company may be required to keep its exchange open during reasonable hours on Sunday. The question, "What are reasonable hours?" depends for its solu- tion on various considerations, including the size of the town or village, the number of patrons, and the amount of income and expense, and the demand for service. Twin Valley Tele- phone Co. v Mitchell, 27 Okl. 388.

Tippling House. In Georgia, under the statute prohibiting keeping open a tippling house on Sundaj^ it was held that it made no difference in law whether the place be called a bar- room, or a glee club resort, or a parlor, or a restaurant, if it be a place where liquor is retailed and tippled on the Sab- bath day with a door to get into it, so kept that anybody can push it open, and go in and drink, and the proprietor of it was guilty of keeping open a tippling house on Sunday. Hussey v Georgia, 69 Ga. 54.

Tort. In an action to recover damages for an injury result- ing from a tort, it is no defense that the act was com- mitted on Sunday. Bridges v Bridges, 93 Me. 557.

In Logan v Mathews, 6 Pa. St. 417, it was held that the Pennsylvania law was not violated by a son who hired a horse and wagon on Sunday to visit his father. "The visit to his father was discharging a filial duty, which nothing in the law hinders or forbids."

Traveling. A woman who worked in a mill in one town and temporarily boarded there went on Saturday to see her children in an adjoining toAvn. One of them being sick, she remained until Sunday night, when she went to the town

SUNDAY 78".

where she worked to procure medicine for the sick cliild, iiiteudiug to send it home by another person, and on her way was injured by a defect in the highway. It was held that the jury would be warranted in finding tbat she was traveling from necessity or charity. Gorman v Lowell, 117 Mass. 65.

The act of riding on Sunday, being lawful or unlawful according to the motive and object of the party, it was held, in an action for the arrest of the plaintiff on a charge of violating the statute for the due observation of that day, that the course of conduct of the plaintiff immediately preceding the arrest, particularly his coming into town from another place, and riding up and down the streets, and going from one public house to another, was admissible to show with what intent the plaintiff was riding at the time of the arrest. AVard v Green, 11 Conn. 455.

One who travels from one town to another on the Lord's Day for the sole purpose of visiting a friend whom he knows to be sick, and thiidcs may be in need of assistance, and of rendering such assistance as on inquiry he might find neces- sary, is traveling from charity ; and in an action against a railroad corporation, for injuries sustained while a pas- senger on that day, on putting in evidence that he was travel- ing for the purpose above stated, he is entitled to go to the jury on the question whether he was traveling lawfully, or not, although he offers no evidence of the ground of his belief that his friend was in need of assistance. Doyle v Lynn & Boston Kailroad Company, 118 Mass. 105.

The plaintiff" lived a mile from the church, and going thither with his lady in his coach upon a Sunday", was robbed; and brought this action against the hundred, and recovered ; for the statute extends only to the case of travel- ing; but the chief justice said if they had been going to make visits, it might have been otherwise. Teshmaker v Hun- dred de Edmington, 1 Str. (Eng.) 406.

A hired domestic servant who drove his employer's family to church on the Lord's Day did not violate the I'ennsyl-

786 THE CIVIL LAW AND THE CHURCH

vania Sunday law of 1794. Coinuionwealth v Nesbit, 34 Pa. 398.

A journey on Sunday to visit one's children who are properly away from home is not a violation of the Vermont statute against traveling on Sunday, except in cases of necessity or charity, and the fact of such traveling is no bar to an action to recover damages for injuries received from a defective highwaj'. McClary v Lowell, 44 Vt. 11 G.

A person who violates the law by traveling on Sunday may nevertheless recover damages from a town for injuries received by reason of a defective liighway, if tlie illegality of so traveling did not contribute to the injury. Wentworth v Jefiferson, 60 N. H. 158.

Persons may travel by railroad train on Sunday to attend a camp meeting. A railroad ticket agent who sells tickets for that purpose on Sunday is not guilty of a violation of the statute of Pennsylvania against the performance of worldly employment or business on that day. Common- wealth v Fuller, 4 Pa. Co. Ct. 429.

One who works by night instead of by day, and travels on the Lord's Day for the purpose of seeing his master and inducing him to change his hours of labor from night to the day time, in order that he nuiy sleep better, is not traveling from necessity or charity, and cannot maintain an action against a town for an injury sustained by him while so traveling, by reason of a defect in a highway which the town is by law obliged to keep in repair. Connolly v Boston, 117 Mass. 64.

A person cannot legally travel on the Lord's Day from one city to another, a distance of several miles, for the purpose of visiting a stranger if no occasion of necessity or charity is shown for him to pay such visit and cannot maintain an action against a street railway company to recover danuiges for a personal injury received bj' him while so traveling on one of their cars, in consequence of their negligence. Stan- ton V Metropolitan E. R. Co., 14 Allen (Mass.) 485.

The facts that the exercises of a spiritualist camp meet-

SUNDAY 787

iiig included a show to which au admittance fee w as charged, and that some of the speakers declared that they would throw away the Bible in their search for the truth, are not conclusive that the person traveling on the Lord's Day to attend the meeting did so unlawfully; and the question whether he traveled except from necessitj^ or charity is for tlie jury. Feital v Middlesex Railroad Company, 109 Mass. 398.

Trespass, Adjusting Damages. The amount of damages resulting from trespasses b}^ animals was adjusted on Sun- day, and the agreement was subsequently completed on a week daj'. The Sunday arrangement was valid. Taylor v Young, Gl Wis. 314.

Trust, Declaration. A declaration of trust executed on Sun- day for the i)urpose of consummating a previous oral agree- ment that the property' conveyed shouhl be held in trust for the grantor does not violate the Massachusetts statute against doing business on Sunday. Faxon v Folvev, 110 Mass. 392.

Vaudeville. A theatrical entertainment on Sunday, under the auspices of a Jewish religious and charitable society, was held not to be a violation of the Massachusetts statute concerning the observance of the Lord's Day. It was said that the net proceeds of the entertainment were paid to the society for its general purposes, which were conceded to be religious and charitable. Commonwealth v Alexander, 185 Mass. 551.

Violation, Remedy For. The violation of the Virginia Sun- day law was held not to be a misdemeanor, and the forfeiture imposed therefor is recoverable only by a civil warrant and not by a criminal warrant against the offender. Wells v Commonwealth, 107 Va. 834.

Warrant. An escape warrant may be executed on Sunday. James & Parsons (Hill. 2 Anne) Forts. (Eng.) 374.

A warrant cannot be issued on Sunday for traveling on that day, nor can an arrest be made under a warrant issued on that day. I'earce v Atwood, 13 Mass. 324.

788 THE CIVIL LAW AND THE CHURCH

Warrant of Attorney. A warrant of attorney executed on Sunday was sustained in Baker v Lukens, 35 Pa. St. 146.

Will. Execution of a will on the Lord's Day by a testator is not 'Svork, labor, or business,'' within the meaning of Massachusetts general statutes, chap. 84, sec. 1, and a will so executed is valid. Bennett v Brooks, 9 Allen (Mass.) 118.

SUNDAY SCHOOL

Relation to church, 789.

Treasurer, when responsible to parent society, 789.

Relation to Church. The Sunday school room and the lec- ture room of a modern church are as essentially used for religious purposes as the body of the church building itself. The Sabbath schools are an important auxiliary of every Christian church and indispensable to its life and growth. That the services in such schools are, in the main, of a reli- gious character is too well known to be seriously disputed. Craig V First Presbyterian Church, 88 Pa. St. 42.

A bequest to the society in aid of the Sunday school was sustained. The school was an integral part of the church organization, and therefore embraced within the scope of the corporate functions and work of the church. The be- quest was suflBciently definite and certain, and capable of being enforced. Eutaw Place Baptist Church v Shively, (17 Md. 493.

Treasurer, When Responsible to Parent Society. The treas- urer of a Sunday school connected with a religious corpora- tion is responsible to the corporation for the funds collected by such treasurer for a project under the patronage of the corporation. First Church of Christ Scientist in Buffalo, N. Y. v Schreck, 70 Misc. (N. Y.) 645, 127 N. Y. Supp. 174.

789

SUPERSTITIOUS USE

Existence doubted, 790. Origin, 790.

Roman Catholic publications, 790. Shakers, 791.

Existence Doubted. In Frierson v General Assembly of Presbyterian Church, 7 Heisk. (Tenn.) G83, doubt was ex- pressed whether in the United States, where no discrimina- tion is made in law between the professors of any particular religious creed, any such thing as a superstitious use can be said to exist.

Origin. In Slierman v Baker, 20 R. I. 440, it is said that the strife of the time of the Reformation naturally found vent in statutes. Among them was tliat of 1 Edw. VI. cliap. 14, for vesting in the Crown property, devoted to "supersti- tion and errors in Christian religion," which specified "vain opinions of purgatory and masses satisfactory, to be done for them which were departed." From this came the Eng- lish doctrine of superstitious uses.

Roman Catholic Publications. Moneys in English stocks were assigned to trustees upon trust to pay the dividends to the settler during his life, and after his death to apply them in printing and promoting the circulation of a book in the Latin and French languages, inculcating the peculiar doctrines of the Roman Catholic religion ; and the deed con- tained a proviso that if any of the trusts sliould be declared by a court of law or equity to be void, then the trustees should stand possessed of the fund in trust for the executors and administrators of the settlers. It was held that tlie trusts, after the limitation for life to the settler, were in the nature of superstitious uses, and therefore void. De Them- mines v De Bonneval, 7 L. J. Ch. (Eng.) 35.

790

SUPERSTITIOUS USE 791

Shakers. Tlie use created b}' the trust for this society would at no time since the Reformation have been deemed a superstitious use in England, for though the courts there disallowed trusts in favor of the Catholic or Jewish religion, as inimical to the established religion and settled policy of the government, yet trusts in favor of dissenting Protestants have always been sustained and enforced. In this case two members of the society sought a partition of its property and to recover their alleged shares therein. It was held that by the terms of the covenant they had no cause of action against the society. Gass and Bonta v Wilhite, 2 Dana (Ky.) 170.

SWEDENBORGIANS

Bequest, rejected, 792. Bequest, sustained, 792.

Bequest, Rejected. In 18G1 the corporatiou was formed in Illinois known as the General Convention of the New Jeru- salem in the United States of America. The charter gave it general power to receive, take, and hold property in any of the Ordinary ways, specifying them. This was the repre- sentative body of the New Jerusalem Church. Testatrix bequeathed her residuary estate to tAvo ministers, or the survivor of them, or the person selected by them, as their successor "in trust for the benefit of the New Jerusalem Church (Swedenborgian) as they may deem best." It was held that the bequest could not be deemed to have been for the corporation of the General Convention, but for the benefit of the entire church, and that it was, therefore, too indefinite for enforcement. The bequest was declared to be invalid. Fifield v Van Wyck's Executors, 94 Va. 557.

Bequest, Sustained. The First New Jerusalem Society of Pittsburgh was incoi'porated in 1863, and attached itself to the General Swedenborgian Church of Pennsylvania and with the General Convention of the United States. The Pennsylvania branch of the General Church separated from the General Convention in 1890. In 1892 tlie IMttsburgh church severed its connection with tlie General Churcli. The minority of the Pittsburgh church then organiz-ed a new church known as the Chui-ch of the Advent. A bequest to the "New Chnrcli of Pittsbnrgh" was jiwarded to the First New Jerusalem Society of l»ittsburgh. Re Aitken Estate, 158 Pa. 541.

792

TAXATION

American Sunday School Union, 793.

Camp Meeting Associations, 793.

Cemetery, 793.

Corporate securities, 794.

Dissenters, 794.

Georgia rule, 794.

Illinois rule, 794.

Land adjacent to building, 794.

Liquor tax law, 795.

Masses, 795.

Member, exemption, 795.

Member, liability, 795.

Members, support of church, 795.

Member, when liability arises, 795.

Ministers, 796.

New Hampshire, 796.

Ownership and use, 796.

Parsonage, 796.

Pennsylvania rule, 798.

Resulting benefits, 798.

Sunday school building, 798.

Transfer tax, 798.

Use for other pm-poses, 799.

Worship, Boston, 799.

Young Men's Christian Association, 799.

American Sunday School Union. The American Sunday School Union, though engaged in the publication and cir- culation of moral and religious books, was held to be a trad- ing corporation under the l*ennsylvania law and therefore subject to taxation. American Sunday School Union v Philadelphia, 161 Pa. St. 307.

Camp Meeting Associations. See Camp Meetings.

Cemetery. The New York act of 1879, chap. 310, exempts from assessment cemetery lands owned by a religious cor- poration. A claim of exemption was sustained in Matter

793

794 THE CIVIL LAW AND THE CHURCH

of White Plains Presbyterian Church, 112 App. I)iv. (N. Y.) 130.

Where, out of forty acres of land alleged to be held by a church as a burying ground, only one acre was actually used for burial purposes and tlie remainder as farmland, it was held that the remaining thirty-nine acres were subject to taxation. Mulroy v Churchman, 52 la. 238.

Corporate Securities. In I'ennsylvania it was held that bonds and mortgages owned by a religious corporation, the income of which was used for the payment of the pastor's salary, were subject to taxation under the act of 1851, which subjected to taxation the property of an association or incorporated com])any from which an income or revenue was derived. Presbyterian Church v Montgomerj^ County, 3 Grant's Cas. (Pa.) 215.

Dissenters. Conscientious dissenters are liable to be taxed for debts incurred before they dissented. Lord v Marvin, 1 Root (Conn.) 330.

Georgia Rule. The constitution of Georgia provides that "No money shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or denomination of religionists, or of any sectarian institu- tion." This provision was held not to be violated by a statute exempting church property from taxation. Trustees First Methodist Episcopal Church, South v Atlanta, 7G Ga.

Illinois Rule. The provision in the charter exempting the society from taxation for local improvements was held void under the constitution of 1818. The Legislature had no power to extend the exemptions authorized by that instru- ment. Chicago V Baptist Theological Union, 115 111. 215.

Land Adjacent to Building. The idea of a church edifice necessarily carries with it the use of ground ample for its use. To be exempt from taxation it is not necessary that such ground should be indispensable for the use of the church ; but if it is no more than is reasonablj^ appropriate to the purpose, and is used for no other, it comes within the

TAXATION 795

limits prescribed by the statute. Mannix v County Com- missioners, 9 Ohio Dec. 18.

Liquor Tax Law. A two-story building, the upper story of which was used for religious worship by a Jewish congre- gation and the lower story for its Sunday school and also by several Jewish charitable societies, which paid rent for the use of the building, was held to be a church under the liquor tax law. Matter of McCnsker, 47 A. D. (N. Y.) 113.

Masses. A testatrix bequeathed to the pastor of a Roman Catholic church, and to his successors as pastors, money to be used in saying low masses for tlie repose of the soul of the testatrix and others named by her. The bequest was held liable to taxation under the transfer tax act. Matter of McAvoy, 112 A. D. (N. Y.) 377.

Member, Exemption. Members of unincorporated societies may be exempted from assessments for support of parish church. Adams v Howe, 14 Mass. 340.

Under the Massachusetts act of 1811, chap. G, sec. 2, a per- son becoming a member of any religious societj', though of the same denomination as the society to which he previously belonged, and filing a certificate pursuant to the statute, is exempted from taxation in every other religious society. Holbrook v Holbrook, 1 Pick. (Mass.) 248.

Member, Liability. In Muzzy v Wilkins, Smith's N. H. Rep. 1, it was held that a Presbyterian could not be taxed for the support of a Congregational minister.

Members, Support of Church. Members may be exempted from taxation for support of parish churcli. Adams v Howe, 14 Mass. 340.

Member, When Liability Arises. Where a religious society voted to raise a sum of money, without ap})ropriating it, intending that it should be assessed on a valuation of the 1st of May following, and be applied to defray expenses to be incurred after that day, it was held that a person who separated himself from the society after the vote, and before the first of May, was not liable to assessment. Ingiee v Bosworth, 5 Pick. (Mass.) 501.

79G THE CIVIL LAW AND THE CHURCH

Ministers. In Pennsylvania it was held in Commonwealth V Cuyler, 5 Watts & S. (Fa.) 275, that the act of 1841, pro- viding for taxing salaries of public oflBcers, did not apply to a Presbyterian minister. He did not hold a public office, and his position was not within the statute.

By the Connecticut act of 1702 a fund provided for the maintenance of the ministry of the gospel was exempt from taxation, and this exemption was not abolished by the adop- tion of a State constitution, nor by subsequent State stat- utes. Such a fund, owned by an incorporated religious society, was assessed on the town tax list, and the tax was collected from a member of tlie society. In an action by him against the town to recover the amount so paid it was held that he was entitled to judgment, for the reason that the property was exempt. From the opinion in this case, it seems that members of an incorporated religious society are liable personally for the debts of the corporation. Atwater v Woodbridge, 6 Conn. 223.

Assessors act judicially in determining a minister's claim to exemption from taxation and are not liable personally for an erroneous decision. Barhyte v Shepherd, 35 N. Y. 238.

New Hampshire. The constitution of New Hampshire does not exempt church property from taxation. A statute of the State exempted such property up to the value of |10,000 and provided for taxing the excess. Franklin Street Society v Manchester, 60 N. H. 342.

Ownership and Use. In order to entitle church property to exemption from taxation it must not only be used exclu- sively for religious purposes but must be owned by the con- gregation. In this instance the land was owned by an indi- vidual who had erected thereon a house of worship for the use of a religious society. The property was held to be subject to taxation. People ex rel Swigert v Anderson, 117 111. 50.

Parsonage. The use of property, and not the ownership, determines the question of exemption. Parsonages are not exempt although erected on a portion of a church lot, which would otherwise be exempt, and occupied by the minister

TAXATION 797

free of rent, if the language of the exemption only includes places actually used for religious worship with the grounds attached thereto and appurtenant to the house of worship. A parsonage which was not occupied by the minister of the church, but was rented out, was held not to be exempt from taxation under the provision of the Kentucky constitution exemijting from taxation a parsonage occupied as a home, and for no other purposes, by the minister of any religion. Broadway Christian Church v Commonwealth, 23 Ky. (Part 11) 101)5.

A i)aisonage erected by a religious society on tiieir church lot is liable to taxation as real estate. State, Church of the Redeemer v Axtell, 41 N. J. L. 117.

A building used by a religious society as a rectory or par- sonage is subject to taxation. First Presbyterian Church v New Orleans, 30 La. Ann. 259.

Under the provisions of the fourth clause of the sixth section of the Indiana assessment law ( 1 G. & II. 69) a par- sonage that has been erected for the convenience and accom- modation of the pastor of a church is not exempted from taxation. Trustees of Methodist Episcopal Church v Ellis, 38 Ind. 3.

A parsonage is used for a residence, and therefore pri- marily for a secular purpose. A statute exempting it from taxation was held invalid under the Illinois constitution, which prohibits the Legislature from exempting from taxa- tion proi)erty not used exclusively for religious ])urposes. I'eople ex rel Thompson v First Congregational Church, 232 111. 158.

Where it appears by a case stated that a part of a build- ing erected for the purposes of religious worship is in use as a parsonage these facts are not sufficient to support a tax upon that part of the church building in use as a parsonage, the building being exempt under the act of May 14, 1874. Northampton County v St. Peter's Church, 5 Pa. Co. Ct. 416.

In Iowa a parsonage was held exempt from taxation. Cook v Hutchins. 4(; la. 706.

798 THE CIVIL LAW AND THE CHURCH

Parsonage is subject to taxation. State, First Reformed Dutch Church v Lyon, 32 N. J. L. 3G0.

The parsonage was held liable to taxation although stand- ing on the same parcel of land as the church edifice, front- ing on the same street, and separated from the church by a narrow space. People ex rel Hutchinson v Collison, 22 Abb. N. C. (N. Y.) 52.

Pennsylvania Rule. In l*ennsylvauia it was held that the constitutional provision exempting thurch property from taxation relates to taxes proper, or general public contribu- tions, levied and collected by the State, or b}^ its authorized municipal agencies, for general governmental jiurposes as distinguished from peculiar forms of taxation or special assessments imposed upon property, within limited areas for the payment of local improvements therein, by which i)rop- erty assessed is specially and peculiarly benefited and en- hanced in value to an amount at least equal to the assess- ment, and that, therefore, a church was liable to assessment for paving a street in front of its property. Broad Street, Sewickley Methodist Episcopal Church, 105 Pa. St. 475.

Resulting Benefits. ''Property is nmde more secure both by the education of children, and the religious and moral instruction of adults. In this additional security every owner of an estate receives a compensation for the moneys paid by him toward the support of those institutions." The property of a manufacturing corporation was held liable to taxation for parish purposes. Amesbury Nail Factory Company v Weed, 17 Mass. 54.

Sunday School Building. A corporation was organized for the purpose of erecting a Sunday school building. The first story was used for Sunday school and religious meet- ings. The second story was leased to the city for public school purposes. A special act exempted the property of this Sunday school association from all taxation. It was held that the entire property was exempt. Howard Sunday School Association Appeal, 70 Pa. 314.

Transfer Tax. A devise to a religious societv of land and

TAXATION 799

buildings tliereou, to be used exclusively as a parsonage, is not subject to the succession tax under the Massachusetts act of 1891. First Uuiversalist Society, Salem v Bradford, 185 Mass. 310.

A bequest to St. Paul's Protestant Episcopal Church, Poughkeepsie, was held liable to taxation. Catlin v Trinity College, 113 N. Y. 133.

Use for Other Purposes. Cliurch property occasionally rented for lectures, concerts, readings, amateur theatricals, and other like entertainments does not thereby become sub- ject to taxation, esj)ecially if the income is used for the bene- fit of the local society. Such use of the i)roperty is not a de- parture from the ordinary purposes of the property sufficient to show an intention to devote it to commercial purposes. First Unitarian Society, Hartford v Hartford, 06 Conn. 3G8.

Worship, Boston. The inhabitants of Boston never were compellable by law to pay taxes for the support of public worship. Attorney-General v Proprietors Meetinghouse in Federal Street, Boston, 3 Gray (Mass.) 1, 39.

Young Men's Christian Association. A branch association in Auburn, Maine, owned real property a part of which was rented for a boarding house and another part for stores. The portions of the property so rented were held liable to taxation. Auburn v Y. M. C. A., Auburn, 8(i Me. 244.

Under the revenue act of Illinois, real estate of a Young Men's Christian Association, the object of which associa- tion is the improvement of the spiritual, mental, social, and phj'sical condition of young men, which real estate is leased to various tenants for profit, is not exempt from taxa- tion. People ex rel Gore v Young Men's Christian Associa- tion, 157 111. 403.

Property owned by this association in Louisville, Ken- tucky, was held exempt from taxation on the ground that the buildings were used as places of religious worship. Adjacent vacant lots held for sale were also exempt. Com- monwealth V Young Men's Christian Association, 25 Ky. Law Rep. 940.

TOWN

Connecticut, ecclesiastical affairs, 800. Maine, parochial powers, 801. Massachusetts, parochial powers, 801. New Hampshire, gospel land, 802. New Hampshire, parochial powers, 802.

Connecticut, Ecclesiastical Affairs. The inhabitants of each town in this State (Connecticut) not divided into societies, are by law a corporation for the purpose of supporting public worship and the gospel ministry, as well as for civil purposes; and in their corporate capacity have power to receive and hold estates, real and personal, for said uses, and to call and settle ministers, build meetinghouses, etc. The name and description by which they receive estates, and transact business in their ecclesiastical and civil capacity is the same, to wit, the inhabitants of the town of, etc.

When part of the inhabitants of such town are constituted a new and distinct society the remaining inhabitants are by law considered, for ecclesiastical purposes, as the same cor- poration, having continuance and- succession, by the name of the inhabitants of the first society, and which before existed by the name of the inhabitants of tlie town, and as holding the meetinghouse and all other estates that the inhabitants of such town received, acquired, and held, for any of the uses for which societies are constituted, and as bound to perform all the contracts and agreements made by the inhabitants of such town, with the minister for his sup- port, or respecting any other matter appropriate to a society. Huntington v Carpenter, Kirby (Conn.) 45.

In Connecticut every town incorporated by law contains in it all the rights, powers, and privileges of an ecclesiastical society, and is subject to all the duties, and so long as it

800

TOWN 801

remains in one entire body, may manage its ecclesiastical concerns in town meeting; but as soon as the inhabitants become separated, for ecclesiastical purposes, as a part being set off and annexed to other societies, they must cease to transact their ecclesiastical business in town meeting — as a town thej- include all the divisions — as an ecclesiastical society they exclude tbem. And this ecclesiastical society continues to exist through all the divisions and subdivisions, and hath right to have and hold all interests granted to the town for ecclesiastical uses, at a time when there was no other ecclesiastical society in the town that could take. Hedgwick, etc. v Pierce, 2 Root (Conn.) 431.

Maine, Parochial Powers. In Maine towns in which no distinct and separate parish or religious society has been established may provide for religious instruction hy tlic erection of meetinghouses and the support of ministers; but this power ceases on the establishment of a separate j)arish in the town, and thereafter taxation and other proceedings must be in the name of the parish. Alna, Inhabitants of v Plummer, 3 Me. 88.

Massachusetts, Parochial Powers. The town settles a min- ister and makes other contracts of a parochial nature; it also establishes schools, engages instructors, and makes contracts in regard to other municipal objects. It also purchases and receives grants, donations, and conveyances of propertj^ real and personal, some expressed to be for the support of a minister and others for the supjiort of scliools, all of which are, or may be, held and managed under one corporate organization and by one set of officers. After- ward a part of such town is set off into a distinct territorial or poll parish, and the remainder of the town by law be- comes a parish. After the separation all those rights, duties, and obligations which belonged to the town in its parochial character devolve upon that portion of its inhab- itants, who by operation of law become successors to the town in that capacity; whilst all those which belonged to the town in its municipal cliaracter continue so to belong.

802 THE CIVIL LAW AND THE CHURCH

uotwithstanding tlie erection of a new parish. Stebbins V Jennings, 10 Pick. (Mass.) 172.

Towns may assess taxes for parish purposes and conduct parochial proceedings. Ashby v Wellington, 8 Pick. (Mass.) 524.

New Hampshire, Gospel Land. In a grant to a township it was provided that one share of land should be "for and toward the support of the gospel ministry there forever." It was held that this share belonged to the town ; that a minister settled over a church and incorporated religious society in the town could not hold it against the town ; and that the town could sell the land and divide the proceeds equally among the different Christian denominations therein. Cilley V Cayford, Smith (N. H.) 150.

New Hampshire, Parochial Powers. The New Hampshire act of 1819 repealing the law authorizing towns to vote and grant money for the settlement, maintenance, and support of the ministry did not deprive them of the right to appro- priate property previously acquired for religious purposes to the uses for which it was designed by granting it to reli- gious societies within the town. Candia v French, 8 N. H. 133.

TREASURER

General duty, 803.

Liability, 803.

Power to borrow money, 804.

General Duty. Money was contributed to the society for the purpose of building a church edifice. The pastor deliv- ered it to a treasurer to be kept. It was held that he had no right to withhold it on the ground that the vestry in- tended to divert it from the purposes for which it was con- tributed. If such contribution created a trust, it became such only between the vestry and the contributor, and the vestry is responsible to him if it diverts the fund. The treasurer's duty is to return to liis ])rincipal his i)rincipal's money when due, wliether it be trust funds or not. Mount Calvary Church v Albers, 174 Mo. 331.

Liability. A treasurer of a religious society is personally responsible for its funds received by him, and may be re- quired to make restitution of any funds that may have been misapplied. The board of trustees liave no power to direct the use of a trust fund for the payment of the pastor's sal- ary. Immanuel Presbjterian Church v Riedy, 104 La. 314.

Funds were contributed for the i>urpose of erecting a building for the use of a Sunday scliool. The treasurer of the church received the money, but after the termination of his office refused to pay over the fund to the church. It was held that the society had a right to recover the fund. "Though the subscription may have been set on foot with- out authority from the church as a corporation, yet if the money was raised apparently as a church fund, and the donors, at the time of giving, supposed that they w^ere giv- ing to the church, and intended so to do, the church could adopt the acts of those who raised the fund and claim the

803

804 THE CIVIL LAW AND THE CHURCH

beuefit of the douations for the purpose for which they were given." The church was especially authorized by statute to accomplish tlie precise purpose for which the fund wns raised. The evidence was sufficient to show that the fund was subscribed for the benefit of the church, and not simply for the Sunday school connected with the church. Rector, Church of the Redeemer v Crawford, 43 N. Y. 476.

Power to Borrow Money. There is no presumption that a treasurer of a religious corporation has power to borrow money, sign notes, and bind the corporation. His authority must be established by evidence. Wilson v Tabernacle Bapt. Church, 28 Misc. (N. Y.) 268.

TRUSTEES

Abandonment of office, 806.

Actions, de facto trustees, 806.

Actions, Illinois rule, 806.

Actions, pre-organization contracts, 807.

Action, trespass, 807.

Appointment by court, 807.

Appointment by minister, 807.

Borrowing money, 807.

Building committee, 808.

By-laws, 808.

By-laws, assessments on pewholders, 808.

Closing church, 808.

Control of property, 808.

Convej^ance, 809.

Conveyance by, when required, 809.

Corporate character, Maryland rule, 809.

Corporate control of, 809.

Covenant of warranty, 810.

De facto, 810.

Diversion of property, 810.

Election, 811.

Election, burden of proof, 812.

Election, place, 812.

Employment of counsel, 812.

Excluding minister from church edifice, 812.

Forcible entry and detainer, 812.

Holding over, 813.

Individual authority, 813.

Individual habihty, 813.

Joint interest, 814.

Liabihty, property sold to pastor, 814.

Meeting, duty to attend, 814.

Meeting necessary, 814.

Mingling charitable and other funds, 815.

Minister's employment, 815.

Occupying property after termination of contract, 815.

Official term, 816.

805

80G THE CIVIL LAW AND THE CHUKCH

Official title must be shown, 816.

Ouster, effect, 816.

Possession of property, 816.

Powers, Georgia rule, 817.

Powers, Maine rule, 817.

Powers, New York rule, 817.

Powers, Pennsylvania rule, 818.

Presumption of official title, 818.

Promissory note, 81 .

Property, trustees cannot distribute, 819.

Quorum, 819.

Quo warranto, 820.

Religious services, 820.

Removal, 820.

Representative character, cannot act in two capacities, 821.

Representative character, 821.

Roman CathoUc, how chosen, 822.

Seating, power to regulate, 822.

Status, 822.

Statute of limitations cannot be waived, 823.

TemporaUties, 823.

Title to office, 823.

Title to office, necessary to maintain action, 823.

Abandonment of Office. A trustee who withdraws from the cluireh must be deemed to have abandoned his office, es])e- cially when he joius another church which prohibits its members from holding official relations in other denomina- tions. Ross V Crockett, 14 La. Ann. 811.

A trustee who calls for and receives a letter of dismissal from the society does not thereby necessarily withdraw from the civil constituency of the church, but by his acts and conduct, especially participating in the organization of an- other society, he may be deemed to have abdicated liis office, which thereby became vacant and might be filled by a new election. Laight St. Church v Noe, 12 How. Pr. (N. Y.) 497.

Actions, De Facto Trustees. The trustees de facto of an uiiincori»onited society may maintain an action for trespass on the society's property. Green v Cady, 9 Wend. (N. Y.) 414.

Actions, Illinois Eule. In Illinois actions by or against a

TRUSTEES 807

religious society must be iu name of trustees. Ada St. Meth- odist Episcopal Church v Garnsey, 60 111. 132.

Actions, Pre-Organization Contracts. "The trustees of au incorporated church, as the representatives of all the mem- bers of a church, may in the corporate name enforce agree- ments made for the use and benefit of the society before its legal organization." Whitsitt v Trustees l»reemption i'res- byterian Church, 110 111. 125.

Action, Trespass. Where a religious society consisting of many worshipers was the owner of certain lands in contro- versy its trustees were entitled to sue for an injury to the freehold, consisting of a wrongful removal of coal from be- neath the land, withont joining the members of the con- gregation. I'enny v Central Coal and Coke Company, VAS Fed. 700.

Appointment by Court. The action of a circuit court in appointing trustees of church i)roperty is the subject of ai)peal, and the question of the regularity or validity of their appointment cannot be questioned collaterally in an action of ejectment by newly appointed trustees to recover possession from trustees removed. Kreglo v Fulk, 3 W. Va. 74.

Appointment by Minister. The preacher in charge, by a certiticate iu due form, appointed trustees of the society. It was held that this constituted the persons trustees of the property. On the day of their appointment the trustees received a deed of land in trust for the erection of a house of worship thereon, according to the rules and Discipline of the denomination. A house of worshi]) was erected on the land in 1854. An action was brought to quiet the title, Avhich involved many questions relating to trusts aud the validity of the trust contained in the original conveyance, but these were not disposed of by the court. Methodist Episcopal Church, Newark v Clark, 41 Mich. 730.

Borrowing Money. The power to borrow money is implied in a charter of a religious society unless such power is actually denied by the charter. The trustees had general

SOS Till'] CIN'lL LAW AND THE CHUKCH

supervision of tlie corporation affairs. Under this implied power, an individual note given by a trustee lor money borrowed to rebuild the church edifice was lield to be a debt against the cor])oration, and an action was maintain- able thereon. Plrst Baptist Church, Erie v Caughey, 85 Pa. St. 271.

Building Committee. Where a building committee repre- senting an unincorporated religious association consists of live members, authority to make binding contracts in behalf of the committee would have to be exercised by a majority of the members, either directly or by delegating the power to a less number. One member alone could not contract without being authorized so to do by a majority. New Ebenezer Association v Gress Lumber Company, 81) Ga. 125.

By-Laws. The society or congregation ap])oints the trus- tees, and may remove them and fill the vacancies. It may adopt such rules and regulations in relation to the duties of the trustees, and the management of its society, as the members may deem proper. Calkins v Cheney, 92 111. 463.

By-Laws, Assessments on Pewholders. The trustees of a reli- gious association may adopt by-laws or resolutions to equal- ize the amount necessary for its support, and assess the pro- portionable amount on each pewholder, though there is no provision in the constitution or articles of association authorizing them so to do. A pewholder was liable for any increased assessment so levied by the trustees. Curry V First Presbyterian Congregation, 2 Pittsburgh (Pa.) 40.

Closing Church. The trustees of a religious society do not have the power of closing its church at their own will, be- cause of their judgment to keep the church open will be to defeat the pur])ose for which the association was formed. Their i)ower is only to nmnage the prudential affairs of the society. Canadian Keligious Association v Parmenter, 180 Mass. 415. See Ministers, Exclusion from Church Edifice.

Control of Property. The trustees, as officers of the cor- poration, have entire control over the property owned by

TRUSTEES 809

the corporation, includiug the church or phice of worship, aud courts of equitj^ have uo jurisdiction to interfere with the actions and doings of the trustees in the management of the property belonging to the corporation, for the reason that the Legislature had expressly exempted religious cor- porations from the jurisdiction which had been given to these courts over other corporations. Isham v Fullager, 14 Abb. N. C. (N. Y.) l^(^:\. But see the act of 1875, chap. 79, also the act of 1876, chap. 17G. These acts concern the trus- tees as agents of the corporation. The title to the property continued in the corporation, but it was made the dut}^ of the trustees to use and manage the property and revenues of the corporation according to tlie rules, usages, and dis- cipline of the church or denomination to which it belongs, that is, the spiritual body, the members thereof who organ- ized and were instrumental in creating the corporation ; and if they depart from this rule, they are subject to be restrained hj the courts. Isham v Fullager, 14 Abb. N. C. (N. Y.) 303.

Conveyance. Where trustees of a gospel lot were by stat- ute declared to be a bodj' politic and corporate a deed of a part of the land signed by them as individuals was sus- tained. De Zeng v Beekman, 2 Hill (N. Y.) 489.

Conveyance By, When Required. I*ersons who purchase land in their own names but for the benefit of a religious society are bound to convey such land to the society upon its incorporation. Such conveyance is charged with a trust in favor of the society. Trustees So. Bapt. Church v Yates, 1 Hoffman Ch. (N. Y.) 141.

Corporate Character, Maryland Rule. The trustees and not the members constitute tlie cori)oration. African Methodist Bethel Church, Baltimore v Carmack, 2 Md. Ch. 143.

Corporate Control of. Robertson v Bullions, 11 N. Y. 207, sustained the right of a portion of the corporators to pre- vent the trustees from applying the temporalities of the church in paying for the services of a minister who had been duly deposed from his office.

SIO THE CIVIL LAW AND THE CHURCH

Covenant of Warranty. Trustees in a deed of churcli prop- erty included a covenant of warranty. There was no evi- dence of authority from the congregation to make this war- ranty. It was held that the trustees were personally liable on the covenant. Klopp v Moore, G Kan. 27.

De Facto. A de facto trustee is one who is acting as an officer under color of having been rightfully elected or ap- l)ointed. Trustees, East Norway Lake Norwegian Evangel- ical Lutheran Church and others, v Halvorson, 42 Minn. 503.

A deed of land to trustees de facto of an unincorporated religious society conveys no title to the society. Bundy v Birdsall, 29 Barb. (N. Y.) 31.

The proceedings of de facto trustees are valid till they are ousted by a judgment at the suit of the people, and no advantage can be taken of any nonuser or misuser on the part of the corporation by any defendant, in any collateral action. All Saints Church v Lovett, 1 Hall's Sup. Ct. (N. Y.) 19.5.

Diversion of Property. In a proceeding based on an allega- tion that the pastor and certain trustees had conspired to- gether to change the ecclesiastical denomination of the so- ciety, and divert its temporalities from the religious de- nomination with which it was connected, to another, it was held that under the act of 1875, chap. 79, the trustees were charged Avith the care of the temporalities of the corpora- tion and prohibited from diverting such temporalities to any other use. It was also held tluit one member of the society could maintain a proceeding against Ihe trustees to procure an injunction restraining them from diverting the property. First Reformed Presbyterian Churcli v Bowden, 14 Abb. N. C. (N. Y.) 356.

"A grant of land was made in 1789 to the trustees of an evangelical Lutheran congi*egation, consisting of two churches, 'for the common use and benefit of the said Lu- theran congregation forever.' Prior to 1800, with other dona- tions, a house of worship was erected by each church, and other temporalities were acquired. Each church became

TRUSTEES 811

incorporated under the general statute. At the time of these endowments their standard of faith and doctrine was the Augsburg Confession of Faith. In 1830 they became a part of the Hartwick Sj nod of the Evangelical Lutheran Church. In 1837 the trustees of the two churches, in connection with the pastor and the church councils, dissolved their connec- tion with the Hartwick Synod and united with other churches in forming a new synod, which adopted a declara- tion of faith, essentially variant in three principles and cardinal doctrines, from the Augsburg Confession. Held that these proceedings of the trustees were a perversion of their trust, and an unlawful diversion of the property of the churches from the objects and purposes for which it was originally contributed." Kniskern v Lutheran Church, 1 Sandf. Ch. (X. Y.) 439.

Under the religious cor})orations act of New York, 1813, as modified by the laws of 1875, chap. 79, and laws of 1876, chap. 170, the trustees cannot permit the use of the church edifice by a clergyman who adopts and advocates religious views at variance with the articles of faith of the denomina- tion to which he and the trustees belong; and the adher- ents of the church who maintained the original faith are entitled to an injunction restraining such use of the prop- erty. Isham V Trustees of the First Presbyterian Church of Dunkirk, 03 How. Pr. (N. Y.) 405.

Election. If the rules of a church require its trustees to be elected on a particular day in the year, after notice given on the preceding Sunday by the pastor, a board of trustees elected on a different day, without the notice, are not trus- tees de jure. Trustees de facto of a church may rightfully eject from the church persons who claim to be its trustees, and who have taken possession of it, but Avho are neither trustees de facto nor de jure, and are mere intermeddlers with its temporalities. First African Methodist Episcopal Zion Church v Hillery, 51 Cal. 155.

By statute the trustees were divided into three classes, the seat of one class becoming vacant every year, thus requiring

812 THE CIVIL LAW AND THE CHUKCH

au aumial election of one third oi' tlie number, which election was required to be at least six days before the vacancy should happen. It was held that au election on Piuxter Monday (Monday after Whitsunday) in each year, though a movable holy day, and not a day certain, was valid.

Differences having arisen in the church, the trustees closed the doors of the church edifice against the minister and the congregation. The minister and the congregation having broken into the church, they were held liable for indictment for forcible entry and detainer. People v Eunkle, 9 Johns. (N. Y.) 147.

Election, Burden of Proof. In questions involving elections, the burden of proof is on persons claiming to have been elected. African Baptist Church v White, 24 Ky, Law Rep. 646.

Election, Place. When the usual place of meeting of a society has been changed by them, an election of trustees at the old place of meeting is invalid. Miller v English, 21 N. J. Law, 317.

Employment of Counsel. In Parshley v Third Meth. Church, 147 N. Y. 583, plaintiff brought an action to recover for legal services as counsel in prosecuting charges against the min- ister in a church tribunal. There was no official action by the trustees for the plaintiff's employment, the only author- ity being conferred by the individual suggestion of certain trustees, and there was no evidence of a ratification by the board. The plaintiff was held not entitled to recover; the court expressed some doubt whether the board of trustees could lawfully employ counsel to take proceedings against a minister in a church tribunal.

Excluding Minister from Church Edifice. See Ministers.

Forcible Entry and Detainer. A majority of the corpo- rators forcibly expelled the trustees from the church edifice and assumed control thereof. It was held that the trustees could not maintain an action for forcible entry and detainer but that the action must be brought in the name of the cor- poration for the reason that the corj)oration as such, and

TRUSTEES 813

not the trustees, held the legal title to the property. People ex rel Fulton v P'ulton, 11 N. Y. 94.

Holding Over. Trustees regularly elected for a fixed period hold their offices until removed by others being elected in a similar manner ; but such removal cannot take jjlace in less than one year after their election. American Primitive Society v Pilling, 4 Zab. (N. J.) 653.

Trustees do not hold over where successors have been actually chosen, although the election was subsequently de- clared invalid. Judgment of ouster in such case creates a vacancy which may be filled by a new election. I*eople ex rel Cock v Fleming, 59 Huu (N. Y.) 518; 13 N. Y. Supp. 715.

Individual Authority. Trustees of a religious corporation organized under the general act of 1813 as amended have no separate or individual authority to bind the corpora- tion, notwithstanding evidence that a nuijority agreed as to a particular transaction. The trustees can only act as a body. People s Bank v St. Anthony's Church, 109 N. Y. 512.

Individual Liability. Trustees nuide a written agreement with a contractor for the completion of a parsonage, sign- ing the contract as individuals, and not as trustees, although they were described in the paper as trustees. Afterward the contractor made another agreement with the trustees as such, which agreement was signed by them as trustees. The contractor brought an action against the trustees who signed the first agreement, seeking to recover of them in<lividually. It was held that their individual liability had been merged in the official liability b}' reason of tlie second contract, and that an action could not be maintained against them as indi- viduals. McGhee v Lose, 22 Pa. Co. Ct. 371.

A minister was called by an instrument under a form prescribed b}' the rule of the denomination and signed by three elders and one trustee. This was held not to be a call by the officers signing it, but was a call of the congregation, and the persons signing the call were not individuallj^ liable for the minister's salary. Paddock v Brown, G Hill. (N. Y.) 530.

814 TITi: CIVIL LAW AND THE CHURCH

Joint Interest. Trustees are in law but a single person, and an action cannot be maintained by church trustees against a cotrustee for trespass to the property for the rea- son that as trustee he has the same interest as the other trustees, and he cannot be both plaintiff and defendant. Trustees of a religious society have possession and custody of the temporalities of the church, whether real or personal estate, and are the proper parties to bring an action for an injury to either. A trustee alleged to be a trespasser could not be sued while he continued in office. Trustees, First Society of the Methodist Episcopal Church. Fultney, v Stewart, 27 Barb. (N. Y. ) 553.

Liability, Property Sold to Pastor. The trustees of a church are not as such liable for the price of lumber sold and deliv- ered to the pastor on his individual account, wlien in making the purchase he neither acted as agent of the trustees nor had authority to do so, and this is so though the lumber was with their knowledge, used in improving tlie property of the church. Montgomery v Walton, 111 Ga. 810.

Meeting, Duty to Attend. People ex rel Kenney v Winans, 29 St. Eep. (N. Y. ) 651. A writ of mandamus was granted on the application of the rector to compel certain vestrymen to attend a meeting of the vestry.

Meeting Necessary. Trustees cannot bind the corporation except by action at a meeting at which a quorum is present. Even a majority of the trustees cannot legally act except in this formal manner. Ross v Crockett, 14 La. Ann. 811 ; see also Thompson v West, 59 Neb. 677.

The trustees of a religious corporation, organized under the incorporation act of Illinois, are the only persons em- powered to bind the corporate body legally, and in order to do this the trustees must meet as a board and take action as such. The separate and individual action of the trustees, or any number of them, without holding a meeting of the board, is not binding upon the corporation, and cannot of itself create a corporate liability. First Presbyterian Church, Chicago Heiglits v M((\>lly, 12(; 111. App. :!3;!.

TRUSTEES 815

Under tlie New York religious corporations act of 1813, as amended in 1803, trustees have no separate or individual authority to bind a corporation. The}^ must act as a body. The trustees of a corporation have no separate or individual authority to bind the corporation, and this although the majority or the whole number, acting singly and not collec- tively as a board, should assent to the particular transaction. People's Bank v St. Anthony's Roman Catholic Church, 109 N. Y. 512.

The trustees of a religious corporation can alone bind the corporate body, and to execute this power they must meet as a board, so that they may hear each other's views, delib- erate, and decide. The separate action of the trustees indi- vidually, without meeting and consulting together as a board, even though a majority in number should agree upon a certain act, is not binding upon the corporation, and does not and cannot of itself create a corporate liability. Constant v St. Albans Ch. 4 Daly ( N. Y.) 305.

Mingling Charitable and other Funds. ''If the officers of a religions society intermingle funds hehl by them upon dis- tinct trusts, one of which is charitable, and another, al- though not strictly charitable, is in the nature of religious uses, and there is evidence by which the amount of each fund can be approximately ascertained, the charity will not, for that reason, be entitled to the whole amount but the court will determine, with as much accuracj^ as ])ossible, the amount now justly belonging to each fund." Attorney- General v Old South Society in Boston, 13 Allen, (Mass.) 474.

Minister's Employment. In this society, which was inde- pendent, the property was vested in trustees, and it was held that the employment of a minister ought to be sanc- tioned by them, especially where it appeared that such employment, though api)roved by a majority of the congre- gation, might destroy the peace and harmony of the church. German Ref. Ch. v Busche, 5 Sandf. Sup. Ct. (3(50.

Occupying Property After Termination of Contract. As to

816 THE CIVIL LAW AND THE CHUKCH

the right of a minister to occupy the church edifice after his contract with the society, see Conway v Carpenter, 80 Hun. (N. Y.) 429, where it was held that after such a termina- tion of the contract, even if unlawful, the minister had no right to continue to occupy the property. He might, accord- ing to circumstances, have a right of action against the society for unlawfully excluding him from the pulpit.

Official Term. At the time of the incorporation of the society the term of office of trustees, as fixed by the Gen- eral Conference, was unlimited, but the General (conference of 1864 limited the term of office to one year. It was held that a trustee elected in 1862 could not hold office perma- nently, but his office became subject to the limitation imposed by the General Conference in 1864, and he was therefore entitled to hold only one year unless reelected. Currier v Trinity Society, M. E. Church, Charlestown, 109 Mass. 165.

Official Title Must Be Shown. Trustees must show title to office in action relating to church property. Antones et al V Eslava's Heirs, 9 Port. (Ala.) 527.

Ouster, Effect. A vacancy is created by a judgment ousting certain trustees illegall}^ declared to have been elected. New . elections may be ordered to fill the vacancy. People ex rel Cock V Fleming, 59 Hun (N. Y.) 518, 13 N. Y. Supp. 715.

Possession of Property. The trustees held the church prop- erty in trust for the church and congregation and it is their possession ; and the courts are bound to protect them against every irregular and unlawful intrusion made against their will, whether by members of the congregation or by strang- ers. People V Runkle, 9 John. (N. Y.) 147.

Trustees of a religious society organized under the act of 1813, chap. 60, sec. 3, were held to be vested with the custody, possession, management, and legal control of the property and temporalities belonging to their particular society, in the same manner and to the same effect as the directors of private corporations are entitled to the possession and con- trol of their property : and such trustees may sue in the name of the coriioration an<l to recover possession of the property

TRUSTEES 817

from which they were evicted by persons claimiug to be a majority of the corporators. The trustees are the legal representatives of the corporation and the individual cor- porators have no control over its temporalities except to vote at the election of the trustees. The coryjorators cannot take possession of the property and control it as against the trustees. The corporators who took possession of the prop- erty in defiance of the trustees were trespassers. An eviction of the trustees was in legal effect an eviction of the corpora- tion. First M. E. Church in Attica v Filkins, ?> T. & C. (N. Y.) 270. See also People ex rel Fulton v Fulton, 11 N. Y. 94.

Powers, Georgia Rule. In Georgia, it was held that trustees appointed by the superior court have prima facie a right to represent the trust committed to them, and to protect it from an improper and illegal diversion by others. Bates v Houston, (;(; Ga. 11)8.

Powers, Maine Rule. In Maine, trustees of Methodist Epis- copal churches liold i)ro])erty in trust for the use of the society or church, and their powers and duties are con- tinued to their successors. The title to property is in those persons who are trustees for the time being. They have no authority to create a debt for materials to be used in build- ing a church edifice, and an action cannot be maintainetl against them for such a debt. Bailey v Methodist Episcopal Church, Freeport, 71 Me. 472.

Powers, New York Rule. Under the New York religious corporations act of 1813 ''the relation of the trustees to the society is not that of a private trustee to the beneficiaries of the trust, but they are the managing officers of the corpora- tion, and trustees in the same sense in which the president and directors of a bank or railroad company are trustees, and are invested, in regard to the temporal affairs of the society, with the powers specifically conferred by the sta- tute, and with the ordinary discretionary powers of .similar corporate officers. Gram v Prussia Emigrated Evangelical Lutheran German Society, 36 N. Y. 161.

818 THE CIVIL LAW AND THE CHURCH

Powers, Pennsylvania Rule. A church caimoL be bound by the action of the trustees beyond the express powers granted by the members. Miller v Church, 4 Phila. (Pa.) 48.

Presumption of Official Title. Persons who are in the open and peaceable exercise of the powers and duties of officers in a corporation are presumed to have been duly elected, and to be entitled to the position they occupy. Strangers cannot be permitted to contest their title, or to impeach the validity of their acts by assigning irregularities in their election, or in any of the antecedent proceedings of the corporation. Reformed Methodist Society, Douglas v Draper, 1)7 Mass. 34!).

Promissory Note. Where the business of a church corpora- tion is required by the articles of incorporation to be con- ducted by its officers as a board of trustees, the president and secretary have no power to execute a note binding upon the cori)oration without authority from such board. Au- thority conferred by the trustees to erect a church building, however, would carry with it the power to contract debts necessary for that purpose, and notes executed therefor would be valid. Cattron v First Universalist Society, Man- chester, 46 la. 106.

The defendants gave a promissory note for labor per- formed in the erection of a parsonage. The note was signed by the defendants as trustees. They were held to be agents of the society and personally liable. Chick v Trevett, 20 Me. 462.

The trustees of the society gave their promissory note for money borrowed, to be used in the erection of a church edi- fice. The note was signed by them as trustees of the society. It was held that the note became their individual obligation and judgment was rendered accordingly. Parol evidence was inadmissible to explain the character and purpose of the note, and to show that it was understood to be an obli- gation against the church. Hayes, et al, v Brubaker, 65 Ind. 27.

Five trustees of the society made a promissory note, each person signing it as trustee. This was held to be the act of

TRUSTEES 819

the society. The trustees are the corporate bodj', and thej^ aloiie can act for and bind the society b}' tlie assumed name. Little V Bailey, 87 111. I'^U.

Where one of the trustees negotiated a loan for the society, and he and another trustee signed a iironiissory note in which the trustees were described as such, and in which they assumed to give the note for and on behalf of the church, and the note was afterward signed by the otlier trustees, but without any action by the board either authorizing the loan or the giving of the note, it was held that the society was not liable, but tliat the holder might recover against the trustees individually. Denuisou v Austin, 15 Wis. 331.

A pastor's wife brought an action on a note for the balance due him on sahny. The note had been given by the trustees. There was some question relative to the authority to give the note and whether it liad received the sanction of the society by a proper resolution. Tlie judgment for the plaintiff was affirmed on ai)peal. Gladstone Baptist Church V Scott, 25 Ky. Law Rep. l':J7.

The trustees gave a promissory note, describing them- selves in it as trustees of the society, and signing it in the same manner. This was held to be the note of the corpora- tion, and the makers were not individually liable. New Market Savings Bank v Gillet, 100 111. 254.

An incorporated church nuiy delegate to their vestry and wardens the power of transferring a note by indorsement. Garvey v Colcock, 1 Nott & ^Ic(\ ( S. Car.) 138.

Property, Trustees Cannot Distribute. The trustees have no authority to distribute the property of the society among its individual members or any class of them, nor can this author- ity be conferred by tlie county court by an order directing a sale of the church property. Wheaton v Gates, 18 N. Y. 395.

Quorum. Under the New York religious corporations act the provision requiring a majority of the vestrymen was held to contemplate a majority of the legal number, and not merely of a less number actually in office. Moore v Rector, St. Thomas, 1 Abb. N. C. (N. Y.) 51.

820 THE CIVIL LAW AND THE CHURCH

duo Warranto. The title of rival claimants to the office of trustee of a religious corporation cannot be determined in an equitable action brought by one claimant or set of claimants against another claimant or set of claimants. The remedy is hj an action brought by the attorney-general in the name of the people. Reis v Rohde, 34 Hun (N. Y. ) 161,

The title as corporators of trustees de facto of an incor- porated religious society cannot be impeached in a collateral proceeding by showing that they are not trustees de jure. This can be done only in a direct proceeding by information in the nature of quo warranto. First I'resbyterian Society, Gallipolis v Smithers, 12 Ohio St. 248.

This was held the proper remedy to test the title to office of trustees of a religious society. Commonwealth ex rel Gordon v Graham, G4 I»a. St. 339.

The title to office of a rival trustee of a religious corpora- tion cannot be tried in an action of ejectment. Such a ques- tion can be determined only in an action of quo warranto brought by the attorney -general. Concord Society, Strykers- ville V Stanton, 38 Hun (N. Y.) 1.

It is the settled law of this country that an information in the nature of a quo warranto will lie against one who intrudes himself into the office of trustee of a church cor- poration. Lawson v Kolbenson, 01 111. 405.

Religious Services. ''The trustees of all religious societies hold the property subject to its appropriate use, and have no legal right to determine when the religious meet- ings shall be held, or who shall officiate, unless such power is given to them by the rules and discipline of the denomi- nation to which they belong, and they may be com- pelled by proper proceedings at law, or in equity, to fulfill their duty," American Primitive Society v Pilling, 4 Zab. (N. J.) 053.

Removal. Trustees are not necessaril}^ communing mem- bers of the church. Excommunication from communing members does not disqualify them, even if the excision be regular. They cannot be removed from their trusteeship

TRUSTEES S21

by a juinority of the cUuicli society or uieetiug, without waruiug, and aetiug without charges, without citation or trial, aud in direct contravention of the church rules. Boul- din V Alexander, 15 Wall. 131 (U. S.j 131.

An action by an individual member of the society for the removal of an alleged faithless trustee was sustained. Nash

V Sutton, 117 X. Car. 231.

Representative Character, Cannot Act in Two Capacities. An attempt to consolidate this society \Nith a Wesleyan society to be organized for the sole purpose of consolidation and take property of the original society was held invalid. It appeared that a majority of the board of trustees of the original society were also a majority of the proposed new Wesleyan society, and it was held that a consolidation could not be effected. By the joint action of such majorities such trustees could not act in two capacities; the Court Street church and its property could not in this manner be trans- ferred to a society belonging to another denomination, which society was proposed to be organized for the sole puipose of such consolidation and transfer. Matter of M. E. Society

V Perry. .51 Hun (X. Y. ) 104.

Representative Character. The trustees of an incorporated religious societj' can alone bind the corporation. The action of the vestry has no such force. Where the act relied upon was adopted at a meeting of liie conference or council, which consisted of the minister, elders, deacons, and trus- tees, convened in nuiss. the corporation was not bound, al- though a majority of the trustees were present. ^^ here the exercise of corporate acts is vested in a .select body, an act done by the persons composing that body in a mass meeting of all the corporators, or in union or amalgamated with other like bodies, parts of the congregation, is not a valid corporate act. Cammeyer v United German Lutheran Churches, New York, 2 Sandf. Ch. (X. Y'. ) 20S.

The trustees hold the property in trust for tlie bene- ficiaries, consisting of pewholders, contributors, and other persons directly connected with the society. Such persons

822 THE CIVIL LAW AND THE CHURCH

are entitled to the use in common of the church edifice for worship and to the benefit of the revenues of the church to aid in the support of the public worship in the church edi- fice. They, and they alone, hav^e a personal pecuniary inter- est in the church property. Everett v First Presbyterian Church, 5a N. J. Eq. 500.

The trustees of a religious society are mere agents to give effect to the will of the corporators, or a majority of them, as to all matters within the scope of the corporation. Kulin- ski V Dambrowski, 29 Wis. 109.

Trustees alone can represent the society in making con- tracts, and from it alone they receive their instructions which are not expressed in their charter. A meeting of the church members, as such, is not a meeting of the incorpo- rated society, and it cannot instruct the trustees in their duties or assume any power over them. The court granted an application by the trustees for an injunction restraining certain members of the church from interfering with the possession of the church property by the trustees. Baptist Congregation v Scannel, 3 Grant's Cas. (Pa.) 48.

Roman Catholic, How Chosen. Under a statute authorizing the incorporation of a Roman Catholic congregation it was held that the provision in the statute for the selection of two lay members by a committee of the congregation was mandatory, and that persons chosen by tlie congregation without a committee were not entitled to hold the office. State v Getty, 69 Conn. 28().

Seating, Power to Regulate. In Sheldon v Vail, 28 Hun (N. Y.) 854, it was held that the trustees of a free church might regulate the seating and forcibly remove from a seat a person who had been asked to take anotlier place.

Status. The office of trustee does not confer on the incum- bent any legal interest in the property of the corporation, or impose on him any personal liability for its debts or assessments; therefore a commissioner appointed to deter- mine the damages to land taken for a street was not disquali- fied because he was a trustee of a religions corporation own-

TRUSTEES 82:J

iug i^remises liable to assessments for benefits. I'eople v Mayor, 03 N. Y. 21)1.

These officers are trustees in the same sense with the presi- dent and directors of a bank, or of a railroad company. They are the officers of tlie corporation to whom is delegated the power of managing its concerns for the common benefit of themselves and all other corporators; and over wliom the body corporate retains control, through its power to super- sede them at every recurring election. Robertson v Bullions, 11 N. Y. 243.

Statute of Limitations Cannot Be Waived. Trustees of a religious corporation should not be permitted to allow claims against the corporation which are barred by the stat- ute of limitations. Matter of Orthodox Congregational Church, Union Village, fi Abb. N. C. (N. Y.) 398.

Temporalities. Trustees have control of the temporalities l)elonging to the church. Bristor v Burr, 120 N. Y. 427.

Title to Office. Trustees were elected at a time other than that fixed by the custom of the church, and witliout the usual notice. The election did not make the persons chosen trus- tees de jure. An entrance into the church by persons thus irregularly chosen was held not to attect the rights of the existing trustees who held office under previous elections, and were entitled to the possession of the church property. First African Methodist Episcopal Ziou Church v Hillery, 51 Cal. 155.

Title to Office, Necessary to Maintain Action. Persons claiming to be trustees of a religious society, but who have not been admitted to the office or exercised any functions thereof, cannot maintain an action in the name of the society to restrain individuals, in possession and claiming to be trustees of the society duly elected, from closing the church edifice and from preventing the pastor from holding reli- gious meetings therein, etc. Plaintifl's must first establish their title to the office, and this question cannot be deter- mined on a motion for an injunction. North Baptist Ch. v Parker and others, 3(3 Barb. (X. Y.) 171.

TRUSTS

Advowson, 825.

Archbishop, moral trust, 825.

Auburn Theological Seminary, 826.

Beneficiary, how determined, 826.

Bishop, 826

Cemeteries, 827.

Charitable, defined, 827.

Church, incapacity, 827.

Christmas presents, 827.

Church hbrary, Sunday school, 828.

Corporate capacity, 828.

Court to administer, 828.

Dedication of land for reUgious purposes, 829.

Denominational limitation, 829.

Denominational use, 830.

Discretion of trustees, 830.

Diversion, 830.

Donor's intention, 831.

Equity jurisdiction, 831.

Foreign, unincorporated society, 832.

Funds, how applied, 832.

Hom.e for aged persons, 833.

Implied from beques£ or conveyance, 833.

Indefiniteness, 833.

Legislature cannot modify, 834.

Legislative power, 834.

Limitation, 834.

Marine Bible Society, 835.

Missions, 835.

Object, how ascertained, 835.

Other States, 836.

Parol, when insufficient, 836.

Parsonage, 837.

Phihps Academy Divinity School, 837.

Poor Jewish families, 837.

Poor ministers, 837.

Princeton Theological Seminai'y, 838.

lieligious services, 838.

824

TRUSTS 825

Sectarian purpose, 839.

Sunday school, 840.

Suspending power of alienation, 840.

Title, 840.

Unincorporated society, 840.

Universalist Church, 842.

Worship, usage, how determined, 842.

Advowson. A testator gave so much of his residuary per- sonal estate as should be applicable to charitable purposes to trustees upon trust "to invest the same, apply the income, or any portion of the capital, in grants for or toward the purchase of advowsons or presentations or in erecting or contributing to the erection, improvement, or endowment of churches, chapels, or schools, or in paying, or contribut- ing to the salaries or income of rectors, vicars or incumbents, masters or teachers, but upon the following conditions." The specified conditions were in effect that no churches, schools, clergj' or teachers should receive any benefit unless they belonged to the Evangelical party in the Church of England. None of the conditions apx)lied in terms to the purchase of advowsons or presentations, and the will did not create a charitable trust as to the advowsons, and there being no apportionment, the whole bequest failed, and there was an intestacy. Hunter v Attorney General, 80 Law Times Rep. N. S. (Eng. ) 732.

Archbishop, Moral Trust. Testator gave the residue of his estate to St. Teresa's Church, and also to St. Josejjh's House for Homeless Industrious Boys, with a proviso that if he died within thirty days after making the will, then the residue should go to Archbishop P. J. Ryan, of Philadelphia, absolutely. The testator died within thirty days after mak- ing the will. The archbishop testified that he did not know testator, and had not heard of him. It was held that the property became the absolute property of the archbishop, but he acknowledged his obligation to administer it accord- ing to the testator's intention, and for the advancement of religious and charitable interests. It was not legally im-

826 THE CIVIL LAW AND THE CHURCH

pressed with a trust, but there was a moral trust which the archbishop recognized and declared his intention to observe. It was held that the archbishop was entitled to the property. Flood V Ryan, 220 Ta. 450.

Auburn Theological Seminary. Previous to the Revised Statutes a pecuniary legacy to a corporation, payable out of the proceeds of real estate, which the executors were directed to sell, was valid, although the corporation was not author- ized by its charter to take real estate by devise. Auburn Theological Seminary v Childs, 4 I'aige Ch. (N. Y.) 419.

Beneficiary, How Determined. If a deed is made to three named persons as trustees for "The Christian Church," a court of equity should enforce the trust in favor of "the Church of Christ," where it is shown that the Church of Christ was legally incorporated, and that the persons named as trustees in the deed were in fact the trustees of the Church of Christ, and there was no proof that there was any legally organized or any unorganized religious society, or church having the name "The Christian Church" at the time the deed was made, nor one thereafter legally organized. Church of Christ V Christian Church, Hammond, 193 111. 144.

Bishop. A conveyance to a bishop and his successors of a lot on which there was a church, and in which church the grantor had a technical fee, and for which conveyance he received a valuable consideration, with the jjrovision that the property should be forever for the use of the Protestant Episcopal Church at Old Town, Maine, was held not to con- tain a condition which could be the basis of a forfeiture, but that the property was received by the bishop in trust for the benefit of the local parish. Neely v Hoskins, 84 Me. 386.

A trust conferred upon a bishop or other ecclesiastical functionary, so far as concerns title and ownership of land, is in itself not different from a trust vested in any other natural person. The death of a bishop who simply holds lands in trust, like that of any other individual who occupies the position of a trustee, vests the trust in the courts. If a sviccessor in the trust is desired, ai)peal must be made to the

TRUSTS 827

proper court for his appointment. This is so whether tlie individual be an ecclesiastical functionary of the highest rank or a layman of the humblest degree. Dwenger v Geary, 11:3 Ind. 10(;.

Cemeteries. A sum of money was bequeathed to ecclesias- tical societies to be invested as a perpetual fund, the annual income thereof, or so much thereof as sbould be necessary, to be applied in keeping in good order certain burial lots, and the remainder of the income, if any, applied to the main- tenance of the religious services of the societies. It was held that a bequest for keeping burial lots or cemeteries in good order or repair was not given in charity, and, therefore, was not protected by the statute of charitable uses. Coit v Comstock, 51 Conn. 352.

Charitable, Defined. Charitable trusts include all gifts in trust for religious and educational purposes in their ever- varying diversity ; all gifts for the relief and comfort of the poor, the sick and the afflicted, and all gifts for the public convenience, benefit, utility or ornament, in whatever manner the donors desire to have them applied. Carter v Whitcomb, 74 N. H. 482.

Church, Incapacity. A trust created by the rules of a church, which is not shown capable of making contracts, accepting benefits, or compelling performance, is not recog- nized by the law. Baxter v McDonnell, 155 N. Y. 83.

Christmas Presents. Testator bequeathed to the Sunday school of this society a fund the interest of which was to be used annually in making Christmas presents to the members of the school. It does not appear what the gifts were to be ; it does not appear that they are even to be rewards of merit, or to be used as a means of inducing attendance on the part of scholars at the school, or to promote their good conduct there, or of inciting them to attention to religious instruc- tion given to them there; nor whether they are to be given to all the scholars or part only. The gift is m trust, and it is not a charity in the legal sense, and was void. Goodell v Union Association of the Children's Home, 29 N. J. Eq. 32.

828 THE CIVIL LAW AND THE CHURCH

Church Library, Sunday School. Testator bequeathed to the church a fund which was to be kept invested by the church and the income paid to his housekeeper during her life, but after her death the income was to be used for the purchase of a church library, the support of a Sabbath school in the church, and for other church purposes as might be deter- mined by the society. It was held that the corporation could not act as trustee in a matter in which it had no interest, but in this case the power of the corporation to take the property for its own use carried with it as an incident the duty of administering the trust for the benefit of the house- keeper. Matter of Howe, 1 Paige (N. Y.) 213.

Corporate Capacity. When the powers of a corporation are not defined and restricted by its charter, or by any general law, its capacity to take, hold, and dispose of real estate is precisely the same as that of a natural person, and such a corporation may hold lands as trustee. Real estate may be granted to any religious corjjoration, in trust, for any specific use or purpose comprehended in the general object of its incorporation. Tucker v St. Clement's Church, NcAv York, 3 Sandf. Sup. Ct. (N. Y.) 242, afle'd 8 N. Y. 558 n.

Court to Administer. Testator in 1850 made a will, devising certain property to be applied to the education of poor young men of Bedford County, that may be deemed by the court worthy and intend preparing themselves for the ministry, without regard to religious sect, being Christian as a matter of course. Testator died in 1873, and his heirs contested the validity of the trust. It was held that the testator intended to vest the discretion of the selection in the court of common pleas, and while that court could not exercise such a discre- tion either by itself, or a trustee of its appointment at the date of the will, yet at the time of the death of testator it had acquired that capacity by virtue of the act of 2Gth of April, 1855, which empowers said courts to act as testa- mentary trustees. Although the act of 1855 is prospective only, and the court, therefore, liad no power to act as trus- tee at the date of the will, the testator here having appointed

TRUSTS 829

the coiii't, the act removed this disability^ and made it com- petent to administer the trust. Mann v Mullin, 84 Pa. St. 297.

If a legacy for charitable purposes is given to an associa- tion which is incapable of undertaking the trust, this court will appoint a trustee to receive the legacy and apply it to the purpose intended by the testator. In this case a legacy was given to the Bible Society of the Methodist Episcopal Church, but that Bible Society had been discontinued before the will was made. The total fund available was less than this legac}'. The will also gave a legacy to the American Bible Society; that society being willing to undertake the trust, the court directed the payment to it of the fund in trust that the society should expend the amouut received in the circulation and distribution of Bibles. Bliss v American Bible Society, 2 Allen (Mass. i :i:;4.

Dedication of Land for Religious Purposes. Two persons, owners of real estate, gave it to two religious societies for the purpose of erecting thereon a church and establishing a burying ground. The agreement was by parol. Members of the congregation and others contributed funds with which the church was erected, and it was used as a house of wor- ship b}' both congregations. In an action to recover posses- sion of the property brought by a person who claimed to derive title through a judgment against one of the grantors, on which his interest had been sold, it was held that the per- sons who made the dedication and the successor of one of them, through the sheriff's sale, held the property in trust for the uses originally intended. The legal effect of the agreement was to vest the equitable title in the original subscribers to the fund for the erection of a house of wor- ship, and also in their representatives and successors, and it was a dedication for a valuable consideration to them. In I*ennsylvania, religious and charitable institutions have always been favored without respect to forms. Beaver v Filson, 8 Pa. St. 327.

Denominational Limitation. Where a deed of lands gave to trustees the right to appoint, not an iudividnal corporation

830 THE CIVIL LAW AND THE CHURCH

or society, but some religious denomination to exercise eccle- siastical control over the premises, namely, the occupation for religious services on Sundays and Wednesday evenings, the appointment of a designated religious denomination necessarily implies a limitation of such use to the doctrines and purposes of that denomination. An appointment of a Primitive Methodist Church under tliis deed was sustained in Cape v Plymouth Congregational Church, i:>0 Wis. 174.

Denominational Use. Under a trust for the purchase of a lot and the erection of a church, conditioned that the Meth- odist Episcopal Church should have the right to occupy the house two Sabbaths each month and other religious denom- inations the other Sabbaths, the Methodist Church may law- fully transfer its interest to another denomination using the same property. Alexander v Slavens, 7 B. Mon. (Ky.) 351.

Discretion of Trustees. A devise for the "dissemiaation of the gospel at home and abroad" was held not void for uncer- tainty. The method of administering the trust, and the instrumentalities to be used, were committed to the discre- tion of the trustees. Attorney-General v Wallace, 7 B. Mon. (Ky.) 611.

Diversion. A change in the ecclesiastical relation of a church for whose benefit property is held in trust does not necessarily involve any perversion of the trust or diversion of the fund from its legitimate purpose. Swedesborough Ch. V Shivers, 16 N. J. Eq. 453.

"A fund created by a religious society for the instruction and education of children in the faith and doctrines of the society as professed at the time of the creation of the fund cannot be diverted from its original object and destination ; if a diversion be made or attempted, a court of equity will interpose and correct the procedure." In such case the ques- tion is not which faith or doctrine is the soundest or most orthodox, but for what object or purpose was the fund orig- inally established by the founders of it. The court will en- force the trust, but will not seek to enforce the peculiar faith and doctrines. Field v Field, 9 Wend. (N. Y.) 395.

TRUSTS 831

Where a trust was established for the purpose of erecting a schoolhouse and church, and maintaining a burying ground, the society designated as trustees cannot create a new use, or convey the estate for purposes inconsistent with those for which they held it, and, therefore, a grant by the trustees to another religious society of equal rights and privileges to the property was held invalid, but it was held that this diversion of the property might be ratified by the beneficiaries, and was deemed to have been ratified by Arti- cles of xVssociation between the original society and the grantee society, by which it was agreed that the property should be used and enjoyed by the two societies as tenants in common. Brown v Lutheran Church, ^2:^ l*a. St. 495.

Donor's Intention. The donor's intention must be implic- itly followed, or nothing can be done. Attorney General v Bishop of Oxford, 1 Bro. C. C. (Eng.j 44i n.

Equity Jurisdiction. It is the duty of equity tribunals to give ettect to the powers of the trust if they be legal, and to that end they must ascertain and determine its scoi)e and object; and in that investigation they are authorized to resort to the early history of the church, as contained in standard and authentic works on the subject, prior in date to the existence of the particular controversy. Ebbinghaus v Killian, 1 Mackey (Dis. of Col.) 247.

If property is dedicated by will or deed of the donor for the express purpose of being held and exclusively used for the teaching, sui)port, or maintenance of some specific dogma, or creed or form of religion, and that purpose is declared by the instrument under which the property is held, a trust arises, and a court of equity Avill prevent a perver- sion of the trust attached to its use. So long as there are persons or agencies within the meaning of the original dedi- cation, and willing to carry out the uses intended to be main- tained by the donor, a court of equity upon their application will extend its aid in executing the trust. Brundage v Dear- dorf, 92 Fed. 214, aft'g 55 Fed. 839.

The dedication of a meetinghouse to the use of a religious

S;J2 THE CIVIL LAW AND THE CHURCH

society creates a charitable trust, enforceable in equity ; and where the object of a bill is to secure a trust, secure peace and enjoin multiplied invasions of an alleged right, chancery has jurisdiction of it. Curd v Wallace, 7 Dana (Ky.) 190.

In Tennessee the rule that where a trust is created for a lawful object, definite in its character, and vested in trus- tees, so that it is properly cognizable in the courts of chancery, has continued in existence from the earliest period and is still in force. Dickson v Montgomery, 1 Swan (Tenn.) 348, sustaining bequests to the treasurer of Clarke and Erskine College in trust for home missions, for foreign missions, and also for the education of ministers under the auspices of the Associate Reformed Synod of the South,

When the devisee is indefinite the court can name a trustee to administer the gift as a trust. Kingsbury v Brandegee, 113 App. Div. (N. Y.) GOG.

If the object of the trust be lawful, and sufficiently specific and definite to enable the court to execute it, it will never fail for want of a trustee. The court will execute the trust. Attorney-General v Jolly, 1 Rich. Eq. (S. C.) 99.

In Bowden v McLeod, 1 Edw. Ch. (N. Y.) 588, it was held that the court of chancery had complete jurisdiction of trusts for religious purposes, and trustees of religious soci- eties, and will interfere in any abuse of the trust and will compel the trustees to discharge their duties fairly with respect to the property.

Foreign, Unincorporated Society. In Washburn v Sewall, 50 Mass. 280, it was held that a bequest by a testatrix resid- ing in Massachusetts to the Concord Female Charitable Society located in Concord, New Hampshire, was valid although the society was not incorporated and that a court of equity would appoint a trustee to receive the bequest in trust for such charities as were administered by such society.

Funds, How Applied. Under a will providing for the estab- lishment of a free church and the maintenance of a minister and public worship therein, with authority to use the prin-

TRUSTS 833

cipal for rebuilding the house if destroyed, it was held that the expenditure of a portion of the income for the services of a sexton and for fuel was not a misapplication of the trust fund. Attorney-General v Union Society, Worcester, 116 Mass. 167.

Home for Aged Persons. In Odell v Odell, 10 Allen (Mass.) 1 the court sustained a bequest to a savings bank in trust to be invested by the bank, the interest to be added to the prin- cipal semiannually for fifty years. At the end of that time the sum which shall have accumulated shall be appropriated by a society of ladies from all the Protestant religious so- cieties in Salem, to i)rovide and sustain a home for respect- able, destitute, and aged native-born American men and women. "The above annual payment shall be made from the income of my real estate, which real estate shall be held in trust by my executors uutil the last payment shall have been made to the trustees of the Salem Savings Bank; then my real estate shall be divided among the grandchildren of my late brother," etc. The bequest was valid, even if the direc- tion for accumulation was invalid.

Implied from Bequest or Conveyance. A conveyance or be- quest to a religious association, or to trustees for that asso- ciation, necessarily implies a trust. Fuchs v Meisel, 102 Mich. 357.

Indefiniteness. "The owner of property may do as he jjleases with it, provided the disposition be not to unlawful l)urposes, and what he may do himself he may do by agent while living or by executor after death." In this case testa- trix directed her executors to distribute and pay the residue of her estate to and among such religious charitable and benevolent purposes and objects or persons or institutions as they, in their discretion, might deem best and proper. The will created a valid trust which was not void for uncertainty or indefiniteness. The executors had full power as to the distribution of the fund, and tlie court would not interfere with the exercise of their discretion so long as they were acting in good faith. l>ulles Estate, 218 Pa. 162.

834 THE CniL LAW AND THE CHURCH

A bequest for the iniuislers of the New York Yearly meeting: of Friends called Orthodox, who are in limited and straitened cirennistances, is not too vague or uncertain, or too indefinite in its objects. So of a bequest for the relief oP such indigent residents of the town of Flushing, as the trus- tee or trustees of the town for the time being should select. Both gifts were held to be valid. Shotwell v Mott, 2 Sandf. Ch. (N. Y.) 46.

Testatrix provided contingently for the use of a part of her estate by paying it to such worthy poor girls as the executors might select, to aid in their education. The executors were given full power as to the amounts to be paid and the times of payment. This provision was held void for uncertainty. A^Tieelock v American Tract Soc. 109 Mich. 141.

Legislature Cannot Modify. Tharp v Fleming, 1 Houst. (Del.) 580, held void a statute providing for the sale and conversion of real estate into personalty, devised by a tes- tator in perpetuity and trust to a charity.

Legislative Power. Land dedicated to the use of several religious societies to be a perpetual fund for the support of the ministration of the gospel on the premises, and to be divided equally between the societies, was held valid, al- though no trustee was created by the deed. The Legislature had power to apjioint a trustee to administer the trust. Bryant v McCandless, 7 Ohio (pt. 11) 135.

Limitation. Under the New l''ork religious corporations act of 1813 the trustees cannot take a trust for the sole benefit of members of the church as distinguished from other members of the congregation, nor for the benefit of any por- tion of the corporators to the exclusion of others, no trust being authorized by the statute except for the use and benefit of the whole society. The trustees of a religious corporation in this State cannot receive a trust limited to the support of a particular faith, or a particular class of doctrines, for the reason that it is inconsistent with those provisions of the statute which give to the majority of the corporators, with- out regard to their religious tenets, the entire control over

TRUSTS 835

the revenues of the corporation. Robertson v Bullious, 11 N. Y. 243 ; Gram v Prussia Emigrated Evangelical Lutheran German Society, 36 N. Y. IGl ; see also Bellport Parish v Tooker, 29 Barb. (N. Y.) 256.

Marine Bible Society. The testator made a bequest to the Marine Bible Society, but there was no such society in exist- ence at the time of his death. There had been previously a society known as the Boston l^oung Men's Marine Bible Society, organized for the purjjose of circulating Bibles among destitute seamen. The court sustained the trust, not- withstanding the nonexistence of the society named in the will, and appointed a trustee to receive and dispose of the legacy, by appropriating the avails thereof to the purchase of Bibles, to be distributed among destitute seamen, as near as may be in conformity with the constitution and b3"-laws of the Boston Young Men's Marine Bible Society, as it for- merly existed. Wiuslow v Cummings, 3 Cush. (Mass.) 358.

Missions. A bequest of money to be applied to the sup- port of missionaries in India, under the direction of the General Assembly Board of Missions of the l*resbyterian Church in the United States, was held void for uncertainty. The court could not determine whether all missionaries were to be beneficiaries, or only Presbyterian missionaries, or whether missionaries in service at the date of the will, or at the death of the testatrix, or for all future time were to be included. The true rule as to such bequests is that the beneficiaries must be certain and definite, and so clearly ascertained that they have a standing in a court of equity to enforce the trust. Board of Foreign Missions of the Presby- terian Church V McMaster, Fed. Cas. No. 1,586 (Cir. Ct. Md.).

Object, How Ascertained. Land was conveyed to the trus- tees of the society. There was no trust unless the mere con- veyance to a religious society constituted a trust. It was held that although the religious opinions of the grantor might not be inquired into for the purpose of ascertaining the nature and extent of the trust, the circumstances sur-

S3G THE CIVIL LAW AND THE CHURCH

rounding the making and accepting of the conveyance may be inquired into for the purpose of ascertaining the object of the trust. In this case a trust was implied that the projjerty should be used for the purposes of those adher- ing and in subordination to the religious denomination to which it was conveyed. The presbytery decided that the minority were adhering and in subordination to it ; and that those trustees who had withdrawn from the society were not adherents of the Presbytery. It was held that the seceding trustees could not, as they had attempted to do, lease the property to a Congregational church. First Constitutional Presbyterian Church v Congregational Society, 23 la. 567.

Other States. The validity of a bequest of a New York testatrix to a religious denomination for the purpose of acquiring real property in another State on which to erect a church and rectory must be determined by the law of such other State. Mount v Tuttle, 183 N. Y. 358.

Parol, When Insufficient. A trust in land cannot be created by parol in an unincorporated religious societ3\ Where several persons, members of different denominations, and some apparently not members of anj^ denomination, signed a subscription paper for the erection of a church edifice, the paper providing that the building when not occupied by the Baptists be opened for any Christian denomination con- tributing to its erection and paying their portion of the inci- dental expenses. The Universalists and Liberal Christians joined the enterprise. The money was paid to a Baptist minister, who bought a lot and erected a building thereon, which was used by the Baptists on Sundays and other days and also by the Universalists. The minister conveyed the property to certain persons, describing them as trustees of the Baptist societ3\ There was no such corporation. The grantees refused to allow the house to be used by any de- nomination except the Baptists, and in an action against them it was held that the subscribers to the fund for the erection of the church had acquired no right in the premises, nor was any valid trust created on their part which would

TRUSTS 837

Hutliorize the court to grant the relief sought. Pollett v Badeau, 26 Hun. (N. Y.) 253.

Parsonage. A conveyance of i)r<)pert.y in trust for use as a parsonage to be occupied by ministers of the Methodist Epis- copal Church of the United States, according to the rules and Discipline adopted by the General Conference, was held void for uncertaintj- under the statutes of Mrginia and West Virginia. The property was not specifically conveyed in trust for the use of a local congregation as the minister's residence. The property was conveyed for the benefit of a I»articular circuit, but a circuit is not a permanent terri- torial division, as its boundaries were likely to be and in this case had been changed. The trust was, therefore, not for the benefit of a particular local congregation as required by statute. The members of the Methodist Episcopal Church residing within the bounds of the circuit, liable at any time to be changed, did not constitute a congregation within the meaning of the statute. There were, in fact, several distinct congregations within the circuit mentioned in the deed. Carskadon v Torreyson, 17 W. ^'a. 43.

Philips Academy Divinity School. For a history of its foundation and purposes, see Trustees Philips Academy v King, 12 Mass. oM't, where the court sustained a bequest to that part of the academy known as the divinity school, to be administered according to the plan of the "associate foundation" previously established, and held that technical interpretation of biblical texts in support of the principles of Calvinism should not prevail as against the more liberal purpose of inculcating the broader principles of Chris- tianity as applied to the mode of daily life and the regulation of personal conduct.

Poor Jewish Families. A bequest for the benefit of poor deserving Jewish families, residing in New Haven, Connect- icut, was sustained in Bronson v Strouse, 57 Conn. 147. The trustees had power to determine what families were within the description and might disburse the fund accordingly.

Poor Ministers. A bequest for the benefit of poor ministers

838 THE CIVIL LAW AND THE OHUKCH

of a specified religious deiiomination is valid, though it does not appoint the trustees of the fund. It is competent for a testator to empower the executors and trustees of his Avill to designate the first trustees of such fund. If it were other- wise, the trust would remain, and tlie court of chancery would appoint the trustees. Shotwell v Mott. 2 Sandf. Ch. (N. Y.) 40.

Princeton Theological Seminary. The Associate Keformed Church authorized the collection of funds and the establish- ment of a theological seminary with a suitable library. In Associate Keformed Church v Trustees Theological Semi- nary, Princeton, 4 N. J. Eq. 77, it was held that the General Synod had no power to effect a consolidation with the Gen- eral Assembly of the Presbyterian Church and thereby transfer the library and funds from the tlieological semi- nary of the Associate Keformed Church to the Presbyterian Theological Seminary at Princeton.

Religious Services. A bequest to a person in trust for the purpose of maintaining religious services during her lifetime in a private unincorporated memorial chapel, was void for the reason that there was not in existence any person, cor- poration, or clergjmian who could enforce the trust; and a bequest over, after this trustee's decease, to the parochial fund of the Protestant Episcopal Church in the Diocese of Western New York was also void, for the reason that the trustees of this fund could not take the trust under the act creating the organization. The trust attempted to be estab- lished through this society provided that the income thereof should be used for paying a clergyman who should hold divine services in the said memorial chapel as often as convenient, also for keeping it in repair as well as its cemetery adjacent. The charter contemplated an organized body having legal existence; and the language of the will in question did not specify any particular parish, or any organized body which should receive the income. Butler v Trustees Parochial Fund I*rotestant Episcopal Church, W\'stern New York, 1)2 Hun ( N. Y.) m.

TRUSTS 830

Sectarian Purpose. If a trust in created, or a charity given for the benelit or use of a sectarian society by its sectarian and denominational name, it is to be presumed that it was intended to be used to advance the peculiar doctrines of that sect; and if a meetinghouse is conveyed in trust for certain persons, to be under the control of the society of Christians, it would be the duty of the court, upon proper application and proofs, to see that the house was controlled by a society of Christians, and not by Mohammedans, pagans, or infi- dels, even though a majority of the original society have apostatized from the l;iith of the sect wliidi formed the society.

The denominational name of a religious society to which, or to whose use, a donation or grant is made, and the doc- trines actually taught therein at the time of the gift or grant, and immediately after, and the length of time they continue to be thus taught without interruption may be resorted to, to linut and define the trust in respect to doc- trines deemed fundamental; that where the conveyance is merely to the religious corporation b}^ name, with no other designation of its puryjoses or trusts (as in this case), the denominational name, in connection with the contempora- neous acts of the corporators, may be a sufficient guide to the nature of the trust ; tliat where there is no specific designa- tion in the deed as to tlie particular religious toiets or doc- trines whicli it is to be used to advance or support, the denominational name may indicate the nature of the trust, so far as respects doctrines admitted to be fundamental; and that, if the society of one religious sect or denomination becomes incorporated with a strict denominational name descriptive of the fundamental doctrines of Ihe sect to which it belongs, it will be presumed that it was constituted for the purpose of advancing the vital doctrines of such sect or denomination, and that society or those having control of property held in trust for the benefit of such religious societj^ should be restrained from applying the property, or the use of it, to the promotion of tenets or doctrines

840 THE CIVIL LAW AND THE CHURCH

dearly opi»ose(l and adverse to the fuudameutal principles of the faith and doctrines of sucli sect or denomination at the time, and immediately after the trust was created. Hale V Everett, 53 N. H. 1.

Sunday School. I'roperty was conveyed to trustees in trust for the uses of a Sabbath school, for the diffusion of Christian principles as taught and practiced by Christian r^vangelical denominations, with power to erect, repair, and renew from time to time all buildings necessary to carry out the object and ])urposes of the trust herein described. The trustees and their successors had power to sell the land to this society, and received in exchange other land which was subsequently reconveyed to the society, Such transfer required the concurrence of all the trustees, and it was there- fore held that the trustee who did not give his consent could maintain an action to set aside the conveyance and restore the i)roperty. Morville v Fowle, 144 Mass. 109.

Suspending Power of Alienation. A conveyance to trustees of an unincorporated religious society for the purpose of erecting a house of worship on the land conveyed, with the provision that vacancies in the office of trustee should be filled by the congregation, does not suspend the jjower of alienation, for the reason that such trustees are persons in being, by whom an absolute fee in possession could be con- veyed. Fadness v Braunborg, To Wis. 257.

Title. A conveyance of property to a religious society for general religious purposes vests the title in the trustees of the society and they become seized for the use of the body. Each member of the church becomes entitled to a beneficial interest in the property of the church so long as his or her connection or membership continues. Brunnenmeyer v Buhre, '^2 111. 183.

Unincorporated Society. Land was conveyed to two persons in trust for an unorganized religious society, and upon the organization of the society was conveyed to them, upon con- dition that they should hold, occupy, and improve the same for religious worship, and support a minister there. It

TRUSTS 841

was held that the minister and a minority of the society, not being pewholders, nor having paid any purchase money, could not maintain a bill in equity to restrain the society from reconveying the estate to the trustees, discharged of any trust, nor to compel them to permit the minister to preach in the house. Clark v Evangelical Society, Quincy, 12 Gray (Mass.) 17.

Under the New York act of 1813 property, both real and personal, may be held in trust for the use of an unincor- porated religious society without any restriction as to time, except that it shall terminate upon lawful incorporation of the religious society, when by virtue of the act the title vests in the corporation. The trust may be shown by parol as well as by deed. The same rule governs as to personal property held by an incorporated religious society for the use of an unincorporated society as if it were held by natural persons. Rector, etc., Church of the Redemption v Rector, etc., Grace Church, 68 N. Y. 570.

Where propertj^ is purchased by an unincorporated reli- gious society for a special purpose, or is taken in the name of a third person with the purchaser's consent, a trust is created which can be enforced, although not in writing. Fink V Umscheid, 40 Kan. 271,

The fact that a religious society to whose trustees land was conveyed in trust for the erection thereon of a church had not been incorporated when the deed was delivered did not invalidate the trust. The deed in such case vested the legal title in the trustees, and upon the subsequent incorpora- tion of the society such legal title became vested in the cor- poration subject to the trust. Fadness v Braunborg, 73 Wis. 257.

A conveyance of land to a committee of a congregation or an unincorporated religious society, vests the title in such committee as trustees "for a body of individuals who have united together and contributed of their means to pur- chase land and erect a house of public worship," and the pewholders and other persons associated with the congre-

842 THE CIVIL LAW AND THE CHURCH

gatioii are beneficiaries of the trust. An uuiucorporated congregation or society is incapable of taking title to real projjerty, but the conveyance must be to a person or persons in trust for the society. The legal estate is in the trustees, but the beneficial estate is in the members. Such a trust may be terminated and new denominational relations assumed and formed by consent, and especially by the unanimous consent of the members of the society. Attorney-General v Proprietors of meetinghouse in Federal Street, 3 Gray (Mass.) 1.

A purchase of land for a church by an unincorporated society, the title to be taken in the name of two designated members who were to convey the property to a corporation to be subsequently organized, imposed on such grantees a trust which was fully discharged by the conveyance to the corporation. Centenary Methodist Episcopal Church v Parker, 43 N. J. Eq. 307.

Where there is a devise of real estate to a church incapable of taking the title because not incorporated, the devise is not void, but the legal title descends to the heirs, charged with the trust, which they will be required to execute, or a court of equity will appoint a trustee to execute the trust, until the church becomes incorporated, and acquires the capacitj^ to hold the legal title. Byers v McCartney, 62 la. 339.

Universalist Church. A bequest for the establishment of a universalist society, with provision for the erection of a building, and the employment of a preacher, was held a charity and valid. Cory Universalist Society v Beatty, 28 N. J. Eq. 570.

Worship, Usage, How Determined. "Where an institution exists for the purpose of religious worship, and it cannot be discovered from the deed declaring the trust what form or species of religious worship was intended, the court will inquire into the usage of the congregation respecting such worship, and if the usage turns out ujion inquiiw to be such as can be supported, it will be the duty of the court to

TRUSTS 84r}

administer the trust iu such manner as best to establish the usage, considering it as a matter of implied contract between the members of the congregation. Where a congre- gation becomes dissentient among themselves the nature of the original institution must alone be looked to as the guide for the decision of the court, and to refer to any other cri- terion— as to the sense of the existing majority, would be to make a new institution." "If any persons seeking the benefit of a trust for charitable purposes should object to the adoption of a different system from that which was intended by the original donors and founders; and if others of those who are interested tliink proper to adhere to the original system, the leaning of the court must be to support those adhering to the original system, and not to sacrifice the original system to any change of sentiment in the per- sons seeking alteration, however commendable that proposed alteration may be." Attorney-General v Pearson, o Merv. (Eng.) 353.

UNINCORPORATED SOCIETY

Bequest to, void, 844.

Church assessments, 844.

Conveyance to, valid, 844.

Incorporation, effect, 845.

Incorporation, effect on title to land, 845.

Members, liabiUty, 845.

Property, how held, 846.

Right to sue, 846.

Roman Catholic, 846.

Trustees, protected, 846.

Bequest to, Void. In New York a voluntary unincorpo- rated association has no legal capacity to receive a bequest even for a charitable purpose. Pratt v Eoman Catholic Orphan Asylum, 20 App. Div. (N. Y.) 352.

A bequest to an unincorporated association or society is void — there can be no valid trust without a certain donee or beneficiary. First Presbyterian Society, Chili v Bowen. 21 Hun (N. Y.) 389.

Church Assessments. Members may be exempted from assessment for support of parish church, Adams v Howe, 14 Mass. 340.

Conveyance to, Valid. An unincorporated society may purchase land for a church and take the title in the name of designated members to be conveyed to the corporation to be subsequently organized. Upon such a conveyance to the corporation the trust imposed on the first grantees is fully discharged, and no trust follows as against the corporation itself. Centenary Methodist Episcopal Church v Parker, 43 N. J. Eq. 307.

A conveyance to an unincorporated religious society of land for church purposes is valid, and vests title in the offi- cers of the society. Alden v St. Peter's Parish, Sycamore, 158 111. 631.

844

UNINCORl'OKATED SOCIETY 845

Incorporation, Effect. If an unincorporated society be- comes incorporated, property owned by it jjasses to the new corporation. Gewiu v Mt. Pilgrim Baptist Church, 1(36 Ala. 345.

Incorporation, Effect on Title to Land. A conveyance was made in 1SS2 to certain persons, describing them as trustees of this society. The next year, 1883, the society erected a church edilice on the land. In December, 1885, the society' was incorporated. The trustees named in the incorporation pai)ers were the same j)ersons named as grantees in the deed. Under the statute the corporation became the owner of prop- erty previously acquired by the unincorporated society, including that conveyed to trustees as above described, and was held to be in possession of it at the time of this action, but owing to defects in several conveyances, it seems that the church had not acquired a good title to the proj^erty. De Sanchez v (trace Methodist Episcopal ('hurch, 114 Cal. 295.

Members, Liability. Members of a church organization having no legal existence, who are directly instrumental in incurring liabilities for it, or who authorize or ratify trans- actions made in its name, are per.soually liable, while those members who do not in any way participate in such transac- tions are exempt from liability. The members of a building committee of such an organization who have charge of the work of constructing a church building are personally liable for materials furnished to them for such purpose, although the account was charged in the name of the society', and although the seller was informed that the church intended to raise the necessary funds by a church fair and by indi- vidual subscriptions. Clark v O'Kourke, 111 Mich. 108.

In Thurmond v Cedar Spring Baptist Church, 110 Ga. 816, it was held that the members of an unincorporated reli- gious .society were liable as joint promissors or partners for a debt contracted in the erection of a church edifice.

The societ}' Avas not incorporated, and it had not filed and recorded its name and objects as required by the code. It was held that the society could not be sued as such but

846 THE CIVIL LAW AND THE CHURCH

that its members were liable on its contracts as joint prom- issors or partners. Wilkins v Wardens etc., St. Mark's Prot. Epis. Ch., 52 Ga. 351.

A member of an unincorporated religious society is not responsible for its debts unless he in some way sanctioned or acquiesced in their creation. Males v Murray, 7 O. Msi Prius Re. 614, citing De Voss v Gray, 22 O. S. 159 ; see also Plattsmouth First National Bank v Rector, 59 Neb. 77.

Property, How Held. Members of voluntary unincorpo- rated associations can hold property in no other way than through the medium of trustees acting as depositaries of the legal title, and this equitable interest entitled each beneficiary to the same voice in the management and con- trol of the property as if he were a joint owner and holder of the legal title. Clark v Brown, 108 S. W. (Tex.) 421.

Right to Sue. In an action by the society against its treasurer to recover funds in its hands, the treasurer objected to the capacity of the society to sue, on the ground that it had not become a corporation. Several meetings of the society were shown, and the transaction of various items of business, but the court said these things might have been done by an unincorporated association, and were not neces- sarily evidence of the existence of a corporation. It was also said that the treasurer was not estopped from denying the corporate existence of the society. Fredenburg v Lyon Lake Methodist Episcopal Church, 37 Mich. 476.

Roman Catholic. In the Roman Catholic Church, property owned by an unincorporated society is conveyed to the bishop. But property purchased by a congregation for its special use continues subject to its control notwithstanding a conveyance to the bishop who holds it in trust for the particular congregation, and it cannot be used for general church purposes. Fink v Umscheid, 40 Kan. 271.

Trustees, Protected. Courts of equity will protect unin- corporated societies in what they hold, in order to sustain trusts, because of their charitable uses, which would other- wise be held void. Hundley v Collins, 131 Ala. 234.

UNITARIANS

Bequest sustained, 847.

Doctrines and worship, schism, 847.

Taxation, 851.

Bequest Sustained. In Congregational Unitarian Society V Hale, 2!) A. 1). (N. Y.j 30G, this society was held entitled to receive a legacy given by a New York testator, although the society was not incorporated, it appearing that under the laws of Massachusetts such a society was entitled to take and hold property.

Doctrines and Worship, Schism. This society was incorpo- rated in 1827 for the purpose of promoting religious knowl- edge and Christian virtues. In 1828 a meetinghouse was erected for the i)urj)Ose of promoting Christian worship. The fund for erecting the house was provided by stock, sold to several persons, nearly all of wliom were members of the society. A conveyance of the land on which the meeting house was erected was made to five persons in trust for the general purposes of the society, which conveyance vested the proprietors of the ]>r<)perty with the management and control thereof, including the sale and occupancy of the pews. At a meeting of the proprietors, held prior to the sale of the i>ews, an annual pew tax was established, the pro- ceeds to be used for the promotion of public worship under the direction of the society. Pews were sold and conveyed in accordance with these regulations. Vacancies in the board of trustees were duly filled from time to time by elec- tion. The legal title to the property was held by trus.tees of the society in trust for the use of the stockholders or l)roprietors of said meetinghouse, but not for their general or unrestricted use.

A question arose as to the right to the title and posses- sion of the propert5% growing out of religious opinions an- nounced by the pastor of the society. It was claimed by one

847

848 THE CIVIL LAW AND THE CHURCH

party that he had ceased to hold, maintain, and preach the doctrines of Christianity as held by the founders of the so- ciety and their successors, and that he had preached doc- trines opposed to the Christian faith and tending to subvert it among the members of the society. The trust was reposed in this society because it was composed of Unitarian Chris- tians, and the trust was not established for the benefit of persons who were simply members of a civil corporation.

It Avas held that the defendants, who claimed to be a ma- jority of the society, had in fact, most of them seceded from the doctrines and faith of the original sect which founded the society, and were no longer in any proper sense of the term Unitarian Christians. The meetinghouse of this society was dedicated by Christian ministers of the Unitarian con- gregational churches in the usual form, and the first min- ister was ordained by the same council of ministers that dedicated the church. Before the dedication a church cor- poration was formed comjjosed of members of the society.

On the 26th of April, 1829, the Dover Unitarian Society adoi)ted the following covenant :

"As it seems to be the duty of every Christian church cautiously to obey the injunction of the apostle that all things be done decently and in order, while at the same time it avoids imposing anything by way of covenant or articles of faith, which may not be conscientiously complied with by all who profess faith in our Lord Jesus Christ, and thereby deprive many of the benefit of Christian ordinances who have a right and privilege to enjoy tliem ; therefore,

'^Resolved, That the following acknowledgment shall be the covenant of this church, to be assented to by all who may hereafter wish to unite themselves with us for the benefit of Christian ordinances: Do you believe in Jesus Christ as the Messiah, and accept his religion as a revela- tion from God, the true guide of your fnitli and rule of your duty? With a deep sense of your imperfection and weak- ness, and a humble and grateful reliance upon God for the pardon of sin, and assistance in duty, will you solemnly and

UNITARIANS 840

earuestlj' endeavor, by atteiidaucc upon the services of reli- gion, aud In' the oflkes of Clirisiiaii charity and piety, to become a sincere disciple of Jesns Christ, that being faithfnl to yourself, yonr fello^v men, and to God, yon may not be found wanting in that day when he shall judge the world in righteousness by that Man whom he hath appointed?

^''Resolved, further. That any person wishing to unite with us in the celebration of the Lord's Supper, his desire having been previousl)^ signified h\ the pastor of the church, he shall, unless some serious objection be made, be received on the acknowledgment of the above covenant, or any other form of words he may prefer expressing a belief in Chris- tianity, to tlie full communion of this church to the enjoy- ment of all its benelits.

"Resolved, further. That baptism shall be administered to all who desire it, to themselves or their children, upon their assent to the following declaration, which shall be put to them by the pastor before administering the ordinance: Do you believe in Jesus Christ as the Messiali, and regard his religion as a revelation of God?"

The Lord's Supper was administered April 2(>, 1829. The court held that this society Avas not only Christian in name but also in its princi])les, doctrines, and ordinances. The court further held that the society, since its organization and until September, 18()4, had maintained regular public Chris- tian worship on the Sabbath, and had jireaching by regularly ordained nnnisters of the Unitarian denominaticni for Chris- tians, who there, at such ineetings, preached and taught the doctrines of Christianity, as held by the sect of Christians called Unitarian.

The defendant, Francis E. Abbott, became pastor of the church on August 31, 18(U, and continued as such until April 1, 1868, when he resigned. During the latter part of his ministry he said that "Jesus Christ was like other men, with no more authority," and compared Christ with Gar rison and other good men ; that he considered Christ as a mere man, and fallible like other men; that Christ was not

850 THE CIVIL LAW AND THE CHUKCH

the Messiah, and that if he (Christ) believed himself to be the Messiah, he was mistaken. Finally Mr. Abbott said he was not a Christian nor a Unitarian so far as Unitarianism was based npon Christianity, or the recognition of Christ as the Messiah ; and proclaimed himself a theist and preached his theistical doctrines to snch an extent as to give great dissatisfaction to the members of the church and society. In consequence of snch dissatisfaction, Mr. Abbott, acting on the advice of friends, resigned the pastorate, wliich took effect on the 1st of A])ril, 180S. The text of liis fare- well sermon, preached on the 2!>th of March, ]S()8, was from the writings of Ralph Waldo hiUierson.

The 1st of April, 1808, Mr. Abb(jtt commenced preaching for an independent society in a hall in Dover, and after preaching there a few Sabbaths, he returned to the church of the Unitarian Society, and preached there alternate Sun- days for a few months. Later, in a communication to the Liberal Christian, published in New York, Mr. Abbott said, among other things : "I have come to the conclusion that in no sense is Jesus the Messiah or Christ of God. The soul is its own Christ. Humanity is its own Messiah. I reject Christianity that I may still cleave to religion, which admits of no mediator, because it is immediate." "Religion has no more to do with Jesus than it has with Judas. It leaves the soul alone with God. It acknowledges no leader ; is loyal to no master; imitates no exemplar, looks to no redeemer; needs no Saviour, knows no Christ." He said he could not make the confession that Jesus was the Christ of God.

In May, 18G8, a large number of members of the society made a written protest against the use of the church i)rop- erty excei>t for the avowed purposes of its organization. Mr. Abbott admitted the general change of sentiment from that of a minister of the gospel of Jesus at the time of his ordination to that of the gospel of humanity.

After Mr. Abbott's resignation some of the wardens who sympathized with him invited him to continue to occupy the pulpit, but he declined to do so unless the society would

UNITARIANS 851

cliaiige its name to ooiiforni to his owti change of view by which he had ceased to be either a Unitarian or a Christian. At a parish meeting on the 1-th of April, 1868, the wardens were instructed to emi)loy only Unitarian Christians to sniJ- ply the desk. Mr. Abbott's friends organized an independent society. This society held its first meeting on the 26th of April, 1868, in the American Hall, at which time Mr. x\bbott took charge of the services. On the 27th of April another parish meeting of the regular society was held, and wardens were elected and a resolution adopted assigning the use of the church to each of the two divisions of the society for one half the time, under which arrangement the independent so- ciety was permitted to occup}' the church half of the time. Mr. Abbott occupied the pulpit.

The court said that the defendants, except Mr. Abbott, by forming an independent society had abandoned the regu- lar Unitarian society, and forfeited all right to that society's l)roi)erty, which belonged to the old society', and it could not be diverted to purposes not contemplated by the original trust. An injunction was granted against the use of the meetinghouse by Mr. Abbott or by any other persons preach- ing the same doctrines, or permitting the use thereof, except for the purposes for which the original society was formed. Hale V Everett, 53 N. H. 1.

Taxation. The statute of Connecticut exempted from taxa- tion a fund not exceeding |10,000, composed of stocks, bonds, etc., owned by a religious society, and invested for the benefit of the church, the income derived therefrom being used for local church purposes. It was held that an invest- ment of such a fund in real estate did not continue the exemption but such real estate was subject to taxation. It was also held, in this case, that in view of the long continued practice in the state of exempting church property from taxation, an occasional renting of church property for lec- tures, concerts, readings, amateur theatricals, and other like entertainments did not subject the property to taxation. First Unitarian Society, Hartford v Hartford, 66 Conn. 368.

UNITED BRETHREN IN CHRIST

Amended constitution and confession of faith, 852.

Amending constitution, 1885-1889, 853.

Canada, 853.

Division, 855.

Government, 856.

History, 859.

History and form of government, 860.

Majority's right, 861.

Philomath College, 862.

Amended Constitution and Confession of Faith. In 1849 land was conveyed to trnstees for the use of the local society, according to the rules and discipline of the denomination. There was then a house of worsliip on the land conveyed. The legal title to the property was held by such trustees, and their successors, regularly chosen by the society.

The General Conference of 1889 adopted a revised consti- tution and confession of faith by a vote of 110 to 20. The minority of that General Conference withdrew and organ- ized another General Conference, declaring its adherence to the old constitution and confession. Each party having representatives in the local society elected trustees accord- ing to the rules and discipline of the denomination. The trustees representing the minority party brought an action against the majority trustees to obtain the church property. It appeared that after the adoption of the revised constitu- tion and confession of faitli in 1889 there was no change in the teaching of doctrines or beliefs of the denomination which were the same as those taught prior to that date. The amended constitution and confession of faith approved by the vote taken in November, 1888, and ratified and declared adopted by the General Conference of 1889, became the only constitution and confession of faith of the denomination. Lamb v Qain, 129 Ind. 48G.

852

UNITED BRETHREN IN CHRIST 85:J

A church was erected in Sparta in 1S75, and a parsonage in 1880. The defendants in November, 1891, by force broke into the chunli, removed the lock therefrom, and since such date have so retained tlie property. In 1802 the defendants took forcible possession of the i>arsonage of said church, and have continuously held i)ossession thereof. This case involved the question as to the validity of the action of the General Conference of 1889 in adopting an amended consti- tution and revised confession of faith, and it was held, fol- lowing Bear v Heasley, 98 INIich. 279, that the revised con- stitution and confession of faith were not constitutionally adopted, and were therefore invalid. Lemp v Raven, 113 Mich. 375.

Amending Constitution, 1885-1889. The General Conferences of 1885 and 1889 were reguhir and properly constituted according to the law of tlie cliurch. The constitution could be amended, and the confession of faith revised at the same time, as they were, in fact, amended and revised in 1889. This amendment and revision were regular and in substan- tial compliance with the law of the denomination. The revised confession of faith is not in conflict with the original confession, and does not constitute a serious departure from tlie ancient landmarks of the church. Griggs v Middaugh, 19 Ohio Dec. (MS.

Canada. Brewster v Hendershot, 27 Ont. App, (Can.) 232, considers the division of the Ignited Brethren denomination in Canada. According to the statement of facts in the case, it seems that the action arose out of the dispute "amongst the members of the religious society known as the United Brethren in Christ, which in 1889 culminated in the with- drawal of a small section from the main body. Those re- maining, representing the great majority of the members, have become known as the Liberals; those withdrawing were for some time known as the Radicals, but they have now assumed the title of Conservatives. The differences between these two sections soon extended to questions re- lating to the title of property held for the use and benefit

854 THE CIVIL LAW AND THE CHURCH

of the church, and resort was had to the courts. Suits were instituted in the courts of several of the States of the Union, and in every instance except one the courts resolved that the liberals represented the church and were entitled to the church property."

The present case involves the right to a parcel of land in the village of Stevensville, in the county of Welland, with a church building erected thereon. The land was conveyed to trustees of the United Brethren in Christ "in trust for the United Brethren in Christ forever." The j^laintiffs repre- sent the Liberals, and the defendants the Radicals, or Con- servatives. Since the division in 1889 the church building had been occupied by the Radicals subsequently known as the Conservatives. On the trial it was established by admis- sion that there was then no congregation of Liberals at Stevensville, and that the plaintiff's trustees were appointed by the yearly conference of the United Brethren Church for Canada, and also by resolution of the Quarterly Conference of the circuit to which Stevensville belongs, and not by the congregation at Stevensville. The court says, citing Itter V Howe, 23 Ont. A. R. 256, that the plaintiffs represent the denomination known as the United Brethren in Christ. Two of the defendants were also two of the trustees to whom the title to the jiroperty was originally conveyed. The court said the title to the property was in these two defendants as surviving trustees, and although they had withdrawn from the original denomination, they were bound to hold and administer the property on behalf of, and for the pur- poses of their cestuis que trust of that denomination, and not for those who, though calling themselves by the name of the United Brethren in Christ, are not that body. The persons who, calling themselves Radicals, withdrew from the original denomination had no authority to consider themselves the true church. The plaintiffs, and those in harmony with them have been adjudged to be the church, and as such entitled to the use and benefit of the property held for it, and there being no congregation at Stevensville,

UNITED BKETHKEN' IX CHK1«T 855

the court, uiitler the Ontario statute, directed that the pro- ceedings be taken for the appointment of trustees by the court.

Division. l*rior to May 13, 1889, the church of the United Brethren in Christ was a united single ecclesiastical organ- ization, governed by a system of judicatories, consisting of llie otiicial board having authority' in and over a particular congregation ; Quarterlj' and Annual Conferences having jurisdiction over the churches within a particular territory, and a General Conference, composed of representatives elected by the Annual Conference, which had jurisdiction over all. A division occurred in the General Conference of 1881), and a small minority withdrew from the place in which the Conference was in session, and organized themselves into a General Conference and claimed to be the true and only organization having valid succession and authority as the General Conference of the church. This division ex- tended into many of the Annual Conferences and congrega- tions. Those thus withdrawing were in large part a party which, in the United Church, had been known as "Radicals," and those remaining were called "Liberals." The voluntary religious society, called the church of the United Bretliren in Christ, was organized in the year 1800, or about that time. No creed or formal confession of faith was adopted until 1815, when the General Conference of that year adopted and promulgated the instrument called the Old Confession of F'aith. In 1811 the General Conference of that year adopted an instrument for the government of the church, being the body of organic law called the Old Constitution. That constitution was never submitted to the members of the society for their adoption or apjjroval, and was the act of the General Conference alone, a body then composed of a small number of clergymen, representatives of the Annual (Conferences by whom they had been elected. The constitu- tion of 181:1 was adopted by the General Conference of that year. It was not authorized by any direct delegation of authority, nor sanctioned by any subsequent vote of the

856 THE CIVIL LAW AND THE CHURCH

members. Nothing more clearly demonstrates the supreme authority claimed and exercised by the General Conference than this fact that it imposed a constitution and confession of faith upon the church without special authority thereto- fore conferred, or submitting its work for adoption or rejec- tion by the membersliii). This constitution provided that there should be no alteration of it except by the request of two thirds of the society, and the same constitution prohib- ited the adoption of any rule or ordinance altering or doing away with the confession of faith as it then stood. Some l)lan being necessary in order to carry into effect these con- stitutional provisions, it was competent for a General Con- ference to formulate such plan. Whether lay assent should precede or follow action by the Conference was not of the essence of the matter. Neither was it vital that such lay concurrence should be indicated by vote or by petition. The General Conference of 1885 adopted a report formulating a l)lan for the submission of questions relating to the altera- tion of the constitution and revision of the confession of faith, and i)rescribed the method of ascertaining the opinion of the society, and provided that if two thirds of all the votes cast should be in favor of the proi)osed alterations, the bishops should announce the result, and the alteration should thereui>on take eflfect. The General Conference of 1889 adopted a resolution, reported by a special committee, confirming the action of the General Conference of 1885, and the commission created by it, in submitting to the society an amended constitution and a revised confession of faith, and declaring that such amended constitution and new confession of faith had been duly adopted, and were in full force and effect. Brundage v Deardorf, 92 Fed. 211, aff g 55 Fed. 839.

Government. This church was an organized religious society having otlicial bodies for the govcniment of tlie church, its members, congregations, and otlicers, each being clothed with certain powers, as follows:

First. The official boai*d of each congregation, which

UNITED DKICTHKEN IN CHRIST 857

meets luoiitlily aii(] transacts the business of the congrega- tioDS. It consists of the recognized preachers, exlioiters, leaders, stewards, and trustees, and Sunday school superin- tendents, wlio resi(U' within the ]>onnds of tlie congregation, or hold niendjershi}) tliercin.

Secoud. The Quarterly Conference, conii)osed of the pre- siding elder of tl)e district and the preaclier in charge, and recognized preachers, exhorters, class leaders, stewards, trus- tees, and Sunday school superintendents, who reside within the district, or hold membership therein. It meets (pnirterly, and among other things aj)i)oints trustees of tlie meeting- houses, who hold during the pleasure of the Quarterly Con- ference.

Third. The Annual Conference which meets yearly, is composed of the elders, and licentiate preachers who have been received by the Annual Conference in each district, and is presided over by the bishop of the church.

Fourth. The General Conference, which meets every four years, composed of elders elected bj' the church members in every Conference district throughout the society.

The official board is subordinate to the Quarterly Confer- ence, the Quarterly Conference to the Annual Conference, and the Annual to the General Conference, the last being the highest legislative and judicial body of the church.

Some time prior to the year 1800 the church of the United Brethren in Christ was organized as a religious society. No General Conference of the cluirch was he.ld until 1815, when on the 6th of June of that year the first General Conference was held at Mt. Pleasant in Pennsylvania, in pursuance of a call which had before that time been made. This Confer- ence formulated a Discipline which contained the rules and doctrine or confession of faith of the church. Some modifi- cations in the confession of faith were made by subsequent General Conferences until 1885. The confession of faith was not submitted to the members of the church for approval.

The General Conference of 1841 adopted a new constitu tion. The constitution was not submitted to the members

858 THE CIVIL LAW AND THE CHURCH

of the church for approval. The General Conference of 1885 appointed a committee on revision which at the same Con- ference presented a report recommending a revision of the constitution, and also of the confession of faith. On the adoption of this report a commission was ajipointed with jjower to prepare a plan for submitting the proposed revised constitution and confession of faith to the members of the church prior to the next General Conference. The plan adopted required the submission of the question to the mem- bers of the church in November, 1888. The plan was sub- mitted.

The total enrollment of members of the church at that time was 204,517. Of this number only 54,369 voted either way on the revision plan. Nearly the entire vote cast was in favor of the revision. The General Conference of 1885 had provided that the revision should be deemed adopted if approved by two thirds of all the votes cast on the proposi- tion. The actual affirmative vote was much more than two thirds of the votes cast, but much less than two thirds of the entire church membership. The vote was ratified and approved by the General Conference of 1889, and by its direc- tion the bishops issued a proclamation on the 13th of May, 1889, announcing the adoption of the revised constitution and confession of faith.

The vote of approval in the General Conference of 1889 was 110 in favor of the revision and 20 against it. A minor- ity withdrew and organized another General Conference, transacted business, claimed to be the true General Confer- ence, and declared its adherence to the old constitution and confession of faith.

The majority, continuing the General Conference, adopted resolutions declaring, among other things, that the minority had, by the withdrawal, separated themselves from the church and ceased to be members of it. The minority were known as the Radical party, and the majority as the Liberal party.

The Indiana court held that, for the i^urpose of consider-

UNITED BRETHREN IN CHRIST 859

iug the question of an approval of the constitution by the required percentage of the vote, the whole number of votes cast must be considered as including all the legal voters, observing that any other rjile would be impracticable and would lead to endless confusion and contention. The Gen- eral Conference of 1889 determined and declared the adop- tion of the revised constitution and confession of faith. This was the highest declaration that could be made by the church. The General Conference had power to make this determination, and the civil courts were bound by such adjudication. The court held that the constitution and confession of faith adopted in 1889 became the true constitu- tion and confession of faith of the denomination, and the members of the denomination who adhered to this constitu- tion and confession constituted the true church, and those who rejected this action by the General Conference of 1889 became seceders. Lamb v Cain, 129 Ind. 480. See also Philomath College v Wyatt, 27 Or. 390, where it was held that members of the church who had joined it since the adop- tion of the constitution of 1841 are presumed to know the contents of the constitution, and to have assented to it, and were bound by it. Members who joined prior to 1841, and remained in the church were bound by the constitution. History. This church originated in a voluntary associa- tion of Protestants of various denominations at some period during the eighteenth century ; and its original creed was simply that of the orthodox Protestant churches generally, but allowing divergencies in matters where they differed. It receives its first organization from a Conference of its ministers held at Baltimore, Maryland, in the year 1789. Its first General Conference was held at Mt. Pleasant, Pennsylvania, in 1815, at which time a form of Discipline and a confession of faith were adopted. Up to this time the church was without any formal Discipline or confession of faith, nor until the year 1841 did it have any constitution. A constitution was adopted by the General Conference of 1841.

860 THE CIVIL LAW AND THE CHURCH

At the General Coufereuce of 1889 a new constitution and a revised confession of faith were adopted by a vote of 110 to 20. Thereupon the minority assembled in another part of the city, (York, Pennsylvania) and undertooli to carry on the session of the Conference, claiming that it had ex- ceeded its i)Owers, and that the other delegates, by their illegal action in adopting and adhering to the amended con- stitution and revised confession, had abandoned the church of the United Bretliren in Christ and organized another and distinct church. Both organizations continued to use the old name; and their respective adherents have come to be called, tliose of the majority organization "Liberals," those of tlie minority "Radicals." Horsman v Allen, 129 Cal. 131.

History and Form of Government. In Bear v Heasley, 98 Mich. 279, it was said that this church was originated nearly a century and a half ago, but it had no written con- fession of faith until 1815, when its General Conference, held in Pennsylvania, adopted one. This confession of faith was recognized and adhered to as containing the funda- mental doctrines of the church until 1889. The church had no written constitution till 1837, when a General Con- ference, lield at Germantown, Ohio, formulated and unani- mously adopted one. The members of that Conference doubted their authority to adopt a constitution, and there- fore the Conference issued a circular to give notice to the church throughout the nation that ''we intend to present a memorial to the next General Conference, praying them to ratify the constitution now adopted." The Conference met quadrennially, and when it assembled in 1841 it appears to have ignored entirely the constitution of 1837 and the validity of its adoption and adopted another, which is one of the subjects of this controversy. The regularity of the adoption of this constitution was early questioned by some members of the church. It is too late now, however, to ques- tion it, since it was recognized and treated as the organic law of the church for nearly fifty years. It provided for a

UNITED BRETHREN IN CHRIST 861

General Conference to consist of the bishops, and of elders elected by the members of every Conference district through- ont the society. All ecclesiastical power to make or repeal any rule of discipline was vested in this Conference. The Discipline, which was early adopted, made it the dutj^ of tlie General Conference ''to examine the administration of each Annual Conference, whether it has strictly observed the rules and preserved the moral and doctrinal principles (»(■ the Discipline in all its transactions." In 1SS5 the Gen- eral Conference adopted a resolution declarini> the General Conference to be the hijuliest judicial authority of the church. The General Conference is the liighest judicatory of the cliurch, and is iiilnisted with the general supervision of its affairs, botli temixn-al aiMl sj)iiitual. In all matters, there- fore, in wliich it has juris<liction its judgmenis are binding n|)<>n the church, its clergy, and its members, and will not be reviewed by the civil courts. The relation between the mem- bers of this association is one of contract, and the confes- sion of faith and the constitution constitute the terms of the agreement, which is binding upon all. An amendment of the constitution of a society must be adopted in accord- ance with the provisions of the constitution in force at the time of sudi adoption res])ecting such amendment; other- wise it is invalid. See also Russie v Brazzell, 128 Mo. 9o.

Majority's Right. A division of the society occurred in conse(pKMice of ditferences arising from the adoption of the new constitution and revised confession of faith by the Gen- eral Conference in 1880. Each party to the action claimed title to the local j)roi)erty, because, as alleged, it represented the true church. The majority was in possession of the property. The minority based its claim to the property on the ground that the so-called revised constitution and confession of faith were void.

The property in question was deeded to the trustees of the local society in 18GG. It was held that though there be a change in church polity, or alteration in the expressed form of faith, if the substantial theological doctrine and the

8G2 THE CIVIL LAAV AND THE CHURCH

general polity be retained, there is no such departure as would amount to a misuse or perversion of the trust. The principles of the denomination, its general polity and articles of faith, were not materially altered by the action of the General Conference of 1889 in adopting the new constitution and revised confession of faith, and this action did not constitute a departure from the established faitli and policy of the denomination. The majority of the local church was held entitled to pos^session of the property. Kuns V Robertson, 154 111. 394. See also Griggs v Middaugh, 10 Ohio Dec. 648; Schlichter v Keiter, 156 Pa. St. 119; Horsman v Allen, 129 Cal. 131 ; Brundage v Deardorf, 92 Fed. 214 afif'g. 55 Fed. 839 ; Itter v Howe, 23 Ont. App. Rep. (Can.) 256.

Philomath College. An action was brought by the college (Philomath College v Wyatt, 27 Or. 390) which involved the status of the religious bodies from which the parties claimed to derive their title and their right to hold the col- lege property. Each set of trustees was elected by an Annual Conference claiming to be the Annual Conference of the said church in Oregon, and the decision of the case turned on the question which was the true Annual Confer- ence; and this decision depended on the question whether the revised confession of faith and amended constitution of the church had been regularly adopted, and were in force.

This confession of faith and amended constitution had been approved by more than two thirds of the members of the church voting thereon, in November, 1888, according to a plan submitted by a revision commission created by the General Conference of 1885. The result of this vote was reported to the General Conference of 1889, and it was approved. Following this ratification the proclamation was issued by the bishops announcing the adoption of the revised confession of faith and amended constitution, which there- upon became operative and in full force. The i^laintiff, the college, adhered to the revised confession of faith and amended constitution as approved and proclaimed in 1889.

UNITED BRETHREN IN CHRIST 86^5

The defendants adhered to the confession of faith and con- stitution as they existed prior to 1880. The college was incorporated under an Oregon statute in 1865, as a general literaiy and educational institution, under the auspices of the church known as the United Brethren in Christ. The trustees of the institution were chosen by the Oregon Con- ference of the church. The decree sustained the proceeding of 1881) adopting the revised confession of faith and amended constitution. This decree was affirmed on appeal by a divided court.

UNITED PRESBYTERIAN CHURCH

Organization, 864, Minority's right, 864.

Organization. The United Presbyterian Church was formed in the year 1847 by the union of two churches which had separated from the Established Church many years be- fore, and were Ivuown as the United Associated Synod and the Relief Church. General Assembly of Free Church of Scotland v Overtoun, (1904) Law Rep. Appeal Cases, p. 515.

This church was formed in 1858 by the union of the "Asso- ciate Presbyterian Church of North America" and tlie "Asso- ciate Reformed Church of North America." Wilson v Liv- ingston, 99 Mich. 594.

Minority's Right. A deed conveyed property to certain persons as trustees of the Associate Congregation of I 'leas- ant Divide, subordinate to the Associate Presbytery of Iowa, subordinate to the Associate Synod of North America. After the union of the Associate and the Associate Reformed Churches, a majority of the congregation at Pleasant Divide refused to assent to the union, while a minority organized as a United Presbyterian Church under the union. It was held that the trustees of the United Presbyterian Cliurch while representing a minority of the members of the former association were trustees named in the deed, and were en- tithMl to the possession of the property described therein. McBride v Porter, 17 la. 204. See Associate Reformed Church.

864

UNIVERSALISTS

Action, how to be brought, 865.

Bequest sustained, 865.

General convention, 865.

Pews, by-laws, 865.

Stock, subscription, 866.

Taxation, 866.

Transfer tax, 866.

Trust sustained, 866.

Unincorporated society, conveyance directed, 867.

Action, How to Be Brought, lu an action by the society by name, it was held that the action should have been brought in the name of the wardens and vestrymen, or trustees as such of the church, naming it. An action in the name of the society was improperly brought. Drumheller v First Uni- versalist Cliurch, IMerceton, 45 Ind. 275.

Bequest Sustained. Teslator made a bequest to the Uni- versalist religious denomination in the county to constitute a pennanent fund, the use to be applied annually for the support of that denomination. The bequest was held to be sufticienth' certain and definite, and the court provided for trustees to administer the fund. First Universalist Society, North Adams and others v Fitch, 8 Gray (Mass.) 421.

General Convention. The Universalist General Convention was incorporated and organized under the laws of the State of New York. A Virginia will contained a devise of a re- mainder to the General Convention, the land to be sold by the convention and the money applied to mission work in the United States. The devise was sustained, and the con- vention was held capable of taking and holding the property, and selling it for the purposes specified in the will. Jordan V Universalist General Convention Trustees, 107 Va. 79.

Pews, By-Laws. This society which was incorporated,

865

866 THE CIVIL LAW AND THE CHURCH

erected a house of worship and sold pews uuder a contract by which they were to remain the property of the purchasers so long as all assessments thereon for expenses of the church were regularly paid, but on default for one year the pew was to revert to the society. Afterward bj^-laws were adopted regulating the proceedings relative to the assess- ment and collection of taxes. Subsequently the name of the society was changed. It was held that the society had power to make the by-laws, and that a person who purchased a pew after the change of name, could not object to the pro- ceeding by which the name had been changed. Mussey v Bulfinch Street Society, 1 Cush. (Mass.) 148.

Stock, Subscription. The society made a by-law relative to subscriptions to stock in support of the church, fixing the price of each share at |25, with a provision that a person paying |3 more might receive a redeemable certificate. The by-law was held valid, and a holder of a certificate issued in accordance with the by-law was entitled to recover the par value of the stock. Davis v Proprietors Second Uni- versalist Meeting House, 8 Mete. (Mass.) 321.

Taxation. After the assessment for a given year in which the church had been exempted, it ceased to be used as a church. It was held that the board of revision had a right to add the property to the receiver's list, charged with a just proportion of taxes, corresponding to the unexpired fraction of the current year. Moore v Taylor, 147 Pa. 481.

In Henderson v Erskine, Smith's N. H. Rep. 36, it was held that Universalists did not constitute a separate sect entitling them to exemption from taxation, for the support of a Congregational minister.

Transfer Tax. A devise to a religious society of land and buildings thereon, to be used exclusively as a parsonage, was not subject to the succession tax under the Massa- chusetts act of 1891. First Universalist Society, Salem, v Bradford, 185 Mass. 310.

Trust Sustained. A testator, by his will, bequeathed a fund to trustees to be used for the erection of a hall in Sparta for

UNIVERSALISTS 8(57

the purpose of establishing a Uuiversalist church in that town. The trustees were required to secure the incorpora- tion of a Uuiversalist society under the New Jersey law, and erect a hall within one year after the testator's death, and in case of a failure so to erect the building the fund should revert to t^he testator's estate. By a codicil it was provided that the fund was to be paid over to certain trustees therein named, after they should have established a society of the Uuiversalist denomination in Sparta, and also should have been incorporated, and a part of the fund was available in the discretion of the society for the employment of a Uui- versalist preacher. These provisions were also to be carried out within a year after the testator's death. It was held that the executors having refused to pay over the fund, the trustees named in the will and codicil were not in default, and the bequest had not been defeated by any negligence on their part. The society was incorporated within a year after the testator's death. Cory Universalist Society v Beatty, 28 N. J. Eq. 570.

Unincorporated Society, Conveyance Directed. Land was conveyed to three trustees in trust for an unincorporated religious society. A church edifice was afterward erected on the land, and the society was incorporated. Two of the trustees thereupon conveyed the land to the corporation, but one of them refused to execute a conveyance. In an action brought to compel the conveyance he defended on the ground that the society was largely indebted for expenses of erecting the church edifice for which he was personally responsible, and he objected to parting with the title until the debts were paid. Notwithstanding this situation the court ordered the execution of a proper conveyance. Fourth Universalist I»arish v Wensley, 5 Wkly. Note Cas. (Pa.) 273.

VOTERS

Assessment, 868.

Contribution, 868.

Episcopalians at Congregational meeting, 869.

Qualifications, how determined, 869.

Qualifications, how fixed, 870.

QuaMfications, in general, 870.

Stated attendants, 872.

Withdrawal, effect, 872.

Women, meeting for incorporation, 872.

Assessment. If the law requires an assessment as the basis of a right to vote at a parish meeting, the omission of a per- son's name from the assessment list deprives him of the right to vote even if he has the requisite property. Sparrow v Wood, IG Mass. 457.

Contribution. A person whose right to vote depends on his contribution to the church and expenses must contribute to its support according to the usages and customs thereof. This undoubtedly means substantial and vital aid and sup- port, material support without which the organization can- not exercise its ordinary functions and perform its custom- ary and appropriate duties and ministrations. It means the parting with, and contribution of, a portion of one's worldly substance, in the usual and customary way, to be used in meeting and defraying tlie expenses incurred by the church, congregation, or society in the support of public and divine worship. People v Tuthill, 31 N. Y. 550.

In State v Crowell, 9 N. J. L. 391, it was held that a jjer- son was not entitled to vote as a member of a Presbyterian congregation, who does not contribute his just proportion according to his own engagements or the rules of that con- gregation, to all the necessary expenses of the church, and that an election of trustees of a Presbyterian Church made

VOTERS 860

by persous not being contributors to the support of the church (and therefore not qualified by their rules to vote; is void.

Episcopalians at Congregational Meeting. The First Society of Chatham, not Episcopalian, was entitled to the income of the proceeds of certain lands granted in January, 1702, by the town of Middletowu, which then included the town of Chatham afterward erected, such income to be applied in support of schools or of a minister, in the discretion of the members of the society. Subsequently Episcopalians resid- ing in Chatham assumed the right to vote at a meeting of the First Society and did vote to appropriate the income of the fund for the support of schools. It was held that the Episcopalians were not members of the First Society, and had no right to vote at a society meeting, and no right to any part of the money resulting from such original appro- priation of land. Sage, etc. Committee of the First Society, Chatham v White, 2 Root (Conn.) 111.

Qualifications, How Determined. The presiding officer at a church election acts judicially in receiving a vote, and if unchallenged, the person offering the vote is presumed to possess the requisite qualifications, and after the result of the election has been declared the presiding officer cannot reconsider the matter, determine that the voter was not qualified, and reject his vote. Re Williams, 57 Misc. (N. Y.) 327.

The society was incorporated by a charter which provided that all Old School I'resbyterians were entitled to member- ship, and that adults who had, during the year immediately prior to an election, contributed to the support of the church a sum not less than |2 for a pew or portion of a pew are eligible as trustees and voters at such an election. Subse- quently the pews were made free and there was no pew rent. After this change it was held that persons were members of the corporation and therefore voters, who had, during the year preceding an election, been regular attendants at the church services, and had contributed not less than |2 for its

870 THE CIVIL LAW AND THE CHURCH

support. Commonwealth ex rel Scull v Morrison, 13 Fhila. (Pa.) 135.

Aliens otherwise qualified were held entitled to vote at elections. An inspector of election was held eligible as a candidate. By-laws were sustained authorizing the presi- dent to appoint inspectors of elections, and providing that tickets should contain nothing but names of candidates. Commonwealth v Woelper, 3 Ser. and R. (Pa.) 29.

In M'llvain v Christ Church, Reading, 8 Phila. (507), it was held that a person was entitled to vote at an election of vestrymen who at any time before the election had taken a pew or sitting, and paid its rate, for the preceding year; and it was not necessary that the pew or sitting should have been taken and held for the year preceding the election.

Qualifications, How Fixed. If the qualifications of voters at the election of oflScers of a religious society are not pre- scribed by statute, such qualifications may be determined by each denomination. American Primitive Society v Pilling, 4 Zab. (N. J.) 653.

Qualifications, in General. See People ex rel Sturges v Keese, 27 Hun (N. Y.) 483, holding that the New York act of 1868 Ch. 803, amending former statutes relating to the qualifications of voters did not apply to existing corpora- tions unless the provisions of the act were adopted by the vestry. These provisions had not been adopted by this society.

Upon questions affecting the property of a religious corporation, the right to vote thereon should not be confine<l to persons only who are members of the church. Those who have contributed to its support, although not members, should be allowed a voice in such matters. Niccolls v Rugg, 47 111. 47.

In Commonwealth v Cain, 5 Ser. and R. (Pa.) 510, the court sustained by-laws limiting the right to vote to persons who had been members of the society twelve months, and prohibiting persons from exercising the right who were in arrears two years on pew rents.

VOTEKS 871

It having been i)i-ovi(led in the fourth section of the act of incoipoiatiou of the Church of the Holy Trinity iu the city of rhiladelphia that the members of the church having sub- scribed to the building of the same, or who shall hereafter contribute not less than 10s. annually toward the sui)i)ort of (he church, sliall meet at a time designated iu the act, in each year, at such place in the said city as shall be appointed by the trnstees, of which notice to be given, and choose by ballot eight lay trustees by a majority of mend)ers so qualified to vote; it was held that i>ersons who only a few days before the election, or less than a jear before it, had contributed 10s. or more to the support of the church, but who ha<l not for several years before been contributors, were not annual contributors witliin the meaning of the act, and were not entitled to vote, either at the election for trus- tees, or at the preliminary meeting for the election of officers to conduct it, thougli their contributions were made with a bona fide intention of becoming members of the church. Juker V Commonwealth ex rel Fisher, 20 Pa. St. 484.

In Weckerly v Geyer, 11 S. and K. (Pa.) 35, it appeared that the charter of a congregation was granted by the Pennsylvania pro])ri('l()rs in IHm under which a voter must have been a contributing member and a communicant. This charter was confirmed by the assembly in 1780 with some alterations, one of which was that no person should be entitled to vote who was under the age of eighteen years. It was held that considering both charters together, a voter must have been a contributor, a communicant, and eighteen years of age.

The (piestion as to the (pialification of voters at an elec- tion for trustees of a religious society ari.ses for decision when the voter ofi'ers his vote. If the vote is not cliallenged, it must be received; if it is challenged, the inspectors must determine the question of qualitication. Having received the vote, the inspectors have decided the question, and they cannot afterward disregard the vote on the ground that it is illegal, and the inspectors, at the close of the polls, having

872 THP: CJVIL law and the CHUKCm

canvassed the votes aud declared that certain persous had received a specified number, which was a plurality of all the votes received, cannot afterward review their own action in receiving the votes aud make a certificate declaring, in effect, that certaiu votes alleged to be cast for the successful candidates were in fact illegal. The reception of the votes by the inspectors was conclusive as to the voter's right to vote, and such certificate assuming to review and revise the vote is a nullity. Hartt v Harvey, 32 Barb. (N. Y.) 55.

Stated Attendants. "A stated attendant is one who at- tends statedly which is defined to be regularly at certaiu times, not occasionally."

Regular attendance at the stated times for worship as established in the church, or society or congregation, as distinguishable from irregular or occasional attendance, is what is necessary. This attendance must be personal and cannot be supplied by another. The regular attendance of the wife, or other members of the family, will not answer. And no amount of contribution to the support of the church or society can be accepted in lieu of this personal presence statedly.

Persons who attend a few times only in the course of the year, as compared with the number of stated times for wor- ship within such year, and at irregular and uncertain inter- vals are clearly not stated attendants, l^eople v Tuthill, 31 N. Y. 550.

Withdrawal, Effect. A member of this society withdrew therefrom, and afterward demanded the right to vote at a parish meeting, producing a certificate of the clerk of the society that he had ceased to be a member thereof. It was held that until he joined this society he was subject to taxa- tion in the parish, and was a voter therein, and that when he ceased to be a member of the society his original rela- tions to the parish were restored including the liability to taxation and the right to vote. Oakes v Hill, 10 Pick. (Mass.) 333.

Women, Meeting for Incorporation. The certificate of

VOTERS 873

incorporation recited that the meeting was composed ol the male members of the society, but it did not appear that the female members were excluded, or were prevented from participating in the meeting. It was held that the female members of the society, if any, must be presumed to have absented themselves from the meeting; and if they did, the male members were competent to take the necessary pro- ceedings for incorporation. Lynch v Pfeiffer, 110 N. Y. 33.

WESLEYAN METHODISTS

Bequest sustained, 874.

Conference, powers relating to the trial and suspension of a minister, 874.

History, 874.

Member when right of action lost, 875.

Request Sustained. Testatrix gave certain property to tlie trustees to be applied according to directions to be given by the annual meeting of the ministers of the Wesleyan Meth- odists of Canada, including a small annual payment to the local society for the support of preaching. The provision in the will did not constitute a charitable use, and was there- fore valid, at least in part. Doe v Read, 3 U. 0. K. B. (Can.) 244.

Testator bequeathed a fund to t)ie Wesleyan Methodist Society of Belturbet, and to the Wesleyan Methodist Society of Ireland. These bequests were held valid. The court said that the two societies named by the testator in his will were, respectively, the local Methodist Society of Belturbet and the General Methodist Society of Ireland. The addition by the testator of the word "Wesleyan" did not throw the least doubt on his meaning. Hadden v Daudy, 51 N. J. Eq. 154.

Conference, Powers Relating to the Trial and Suspension of a Minister. The Conference had power to submit to a com- mittee questions relating to the conduct and trial of a min- ister. The committee had power to suspend the minister for a specified period. Dempsey v North Michigan Conference, Wesleyan Methodist Connection of America, 98 Mich. 444.

History. A large number of Wesleyan Methodist Associa- tions cooperated in June, 1843, in forming a convention at which a religious denomination was organized called the Wesleyan Methodist Convention of America. The conven- tion adopted a Discipline and rules regarding the details of

874 *

WESLEYAX METHODISTS 875

organization including Annual Conferences, and also a Gen- eral Conference to meet once in four years, beginning in 1844. Smith V Bowers, 57 App. Div. (N. Y.j 252 affirmed 171 N. Y. 6G9.

Member, When Right of Action Lost. In Smith v Bowers, 57 App. Div. 252, affirmed 171 N. Y. GOO, it was held that a person who had for more than a year ceased to be a stated attendant at the services of the church of which he had formerly been a member, and whose name had been dropped from the roll of members, could not maintain an action against the society, nor its trustees, to prevent the use of the church pro])erty for purjtoses inconsistent with the discipline and rules of the association.

WILL

Auburn Theological Seminary, 876.

Bishop to be appointed, 877.

Capacity to take, 877.

Conditional bequest, 877.

Constitutional Umitation, 877.

Conveyance, includes will, 878.

Corporation, bequest by nonresident, 878.

Dissolution of society, effect, 879.

Foreign beneficiary, 879.

Foreign society, 880.

Identifying beneficiary, 880.

Indefiniteness, 881.

Intention, 884.

Legacy forfeited by change of doctrine, 885.

Legislative sanction, 885.

Misdescription, 886.

Parol evidence, 886.

Perpetuity, 886.

Quakers, yearly neeting, void devise, 886.

Religion, advancement, 886.

Reward of merit, 887.

Sailors' Home, Boston, Massachusetts, 887.

Slavery and intemperance, 888.

Sunday school, 888.

Testator's religious opinions, 888.

Time limit, 888.

Trustee, will acknowledging trust, 892.

Undue influence, 892.

Unincorporated society, 892.

Unitarians, 893.

Ursuline Community, 893.

Young Men's Christian Association, 893.

Auburn Theological Seminary. A legacy to the Auburn Theological Seminary, payable on the death of the testator's daughter without lawful issue, was sustained in Trustees of Auburn Theological Seminary v Kellogg, 16 N. Y. So. The

876

WILL 877

seniiuary was authorized by its charter to take a legacy t'oi- the imiposes siiecified iu the will, namely, "to endow a pioiossoishi]) in tin- seniinaiy."

Bishop to Be Appointed. A legacy (in England) for the establishment of a bishop in America, not yet appointed, is not void, but the money was to remain in court until the appointment of a bisho}). Attorney-General v Bishop of Chester, 1 Bro. C. Cases (Eng.) 444.

Capacity to Take. Testator made a bequest to this society to be i)ai<l after five years from his death. The fund be- queathed was larger than the society was authorized to receive at the time of the testator's death, but before the lirst payment became due, the Legislature increased the amount which the society was authorized to take, but it was licld that this did not aid the society, the want of capacity' at liie «leath of the testator could not l)e rtMnoved l>y subse(iuent legislation; such legislation coubl only be ])rospective in its operation. Fiist Congregational Cluirch, New Orleans v llendtMscMi. 1 Kob. (La.) 211.

Conditional Bequest. A gift to a church for the purpose of aiding in the payment of a mortgage on the church property, on condition that the remaining amount of the debt should be raised within two years after the testator's death, was held to be a condition precedent and the bequest was invalid. Booth V Baj)tist Church of Christ, i*oughkeepsie, 120 N. Y. 215.

Constitutional Limitation. The constitution of Missouri made void every gift, sale, or devise of land exceeding one acre in extent "to any minister, teacher, or preacher of the gospel, as such, or to any religious sect, order, or denomina- tion."

A devise to three persons in trust for a religious society to be organized and known as St. Mary's Church, including projierty intended for a rector's residence, the church and a school, exceeding in amount the one acre limited by the constitution of Missouri, was held good as to an acre. Barklev v Donnelly, 112 Mo. 561.

87S THE CIVIL LAW AND THE CHURCH

The court held to be invalid a devise to the society of an acre of land, and a bequest supposed to be snflicient to erect a church thereon. Such devise and bequest were prohib- ited by the Missouri constitution. First Baptist Church v Robberson, 71 Mo. 326.

A will of testatrix was regularly admitted to probate, excejit a clause which gave the residue of the estate to Peter Richard Kenrick. In a proceeding for the probate of this clause its probate was contested on the ground that it vio- lated the i^rovision of the constitution of 1805 forbidding any gift, bequest, or devise for tlie support, use, or benefit of any minister, public teacher, or preacher of the gospel as such, or to any religious sect, order, or denomination. It appeared that prior to the present will the testatrix made another will, in which the residue of the estate was given to I'eter Richard Kenrick in his official capacity as arch- bishop of the Roman Catholic Church for the benefit of the church. The first will was made prior to the adoption of the constitution, and a new will was thereafter made, omit- ting the archbishop's title and the object of the bequest. It was held that the bequest was void under the constitution. Kenrick v Cole, Gl Mo. 572.

In Boyce v Christian, 69 Mo. 492, it was held that this society was a religious sect and therefore incapable under the Missouri constitution of receiving a devise, notwithstand- ing it was but a local congregation uncontrolled by any general ecclesiastical organization.

Conveyance, Includes Will. A will is a conveyance within the meaning of the 3 Vic. chap. 4, clause 16, relative to a deed or conveyance made to a bishop or rector or other incumbent of the Church of England, provided such deed or conveyance be made and executed at least six months before tlie death of the person. Doe Baker v Clark, 7 U. C. Q. B. (Can.) 44.

Corporation, Bequest by Nonresident. A New York act of 1860, cliap. 360, which ])rovide(l that "no ])erson having a husband, wife, child or parent, shall, by his or her last will

WILL 879

aud testament, devise or bequeath to any benevolent, char- itable, literary, scientitie, religious, or missionary associa- tion or cori)oration in trust or otherwise more than one half l»art of his or her estate, after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one half and no more," was held not to apply to a Massa- chusetts testator; accordingly, it could not prevent a New York corporation from receiving a bequest from a nonresi- dent testator without regard to the limit of amount. Healy V Keed, 15:; Mass. 11)7.

Dissolution of Society, Effect. A testator devised real estate in trust, for the payment of the income in sup^mrt of a pastor, or elder in a church in the town wliere testator resided, of a certain faith and practice so long as the mem- bers of tliat (liurcli or their successors shouM maintain the visibility of a church in such faith and order. Afterward the only two members of the chnicli at a meeting called by public notice, voted and resolved that they would no longer endeavor to maintain the ajtpearance of a visible church, and declared the church dissolved and extinct. It was held that the chunh was thereujion dissolve*!. aii<l ceased to be a vis- ible church, and that the trustee held the estate as a result- ing trust, for the testator's heirs-at-law. Easterbrooks v Tillingliasl, .') (Jray (Mass.) 17.

Foreign Beneficiary. In Magill v Brown, Fed. Cas. No. 8,1)52 (U. S. (Mr. Ct. Pa.) (Brightly N. T. 347), it was held that one of the jjrivileges secured in eveiy State to the citi/.ens of the several States by art. 4, sec. 2 of the constitu- tion of the United States, is that of exemption from the law of alienage and the consequent right of enjoying jtroperty in the several States; and, accordingly, a devise or be- quest cannot be defeated on the ground that the beneficiary is a citizen or a corporation of another State than the testator.

In this case the will of a resident of Pennsylvania con- tained bequests largely for religious purposes to persons, societies, or institutions in I*ennsylvauia, Maryland, Ohio,

880 THE CIVIL LAAV AND THE CHURCH

and Virginia. These bequests were sustained under the clause of the federal constitution which provides that ''the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States."

Foreign Society. A bequest to a Massachusetts religious society by a resident of New York was sustained in Re Bul- lock, G Dem. Sur. Ct. (N. Y.) 335. The capacity of the society to take was to be tested by the Massachusetts law, under which the bequest was valid.

Identifying Beneficiary. It is not necessary that the name of the devisee should be mentioned in the will ; it is enough if the devisee be described by words that are sufficient to denote the person meant by the testator; and to distin- guish him from all others. Evidence is admissible to show the beneficiary intended in case of doubt. Button v Amer- ican Tract Society, 23 Vt. 336.

A devise to the Diocese of Central New York to be used as a bishop's residence was sustained in Kingsbury v Brand- egee, 113 App. Div. (N. Y.) 606, on the grouud that although there was no corporation by tlie technical name mentioned in the will, the testatrix evidently intended to give the prop- erty to the corporation known as the trustees of the Diocese of Central New York.

The testator devised a portion of his estate to the Society for Ameliorating the Condition of Jews. At the time of his death the only society of this class in existence was the "American Society for Ameliorating the Condition of the Jews," which was incorporated by the Legislature of New York in 1820. This society was held entitled to receive the devise. Brewster v McCall's Ex'rs., 15 Conn. 274.

The misnomer of a legatee or devisee, whether that legatee be an individual or a corporation, will not invalidate the gift or devise, if the true object of the testator's bounty can be ascertained either from the will itself or by evidence aliunde. It was competent to show that a bequest to '"St. Mary's Roman Catholic Church of Cooperstown, N. Y.," was in- tended for the ''Church of the Lady of the Lake, Coopers-

WILL 881

town, N. Y.," that being the true name of the corpocatioii. Ke Foley Estate, 27 Misc. (N. Y.) 77.

Testatrix made a bequest to tlie treasurer for the time being of the Society for the Propagation of the Gospel among the Jews in aid of the general jjurposes of that society. There was no society bearing that name. There were two societies organized for the same general purpose as that named in the will, one "The London Society for Promoting Christianity among the Jews," and the other *'The British Society for the Propagation of the Gospel among the Jews." Evidence was admitted to show which of these societies was intended by the testatrix, and the fact that she had sub- scribed to the London Society was held to turn the scale in favor of that institution, and the legacy was made payable accordingly. Re Fearns W\U, 27 Wkly. Ptep. (Eng.) 392.

A will dated in 1S2G devised a portion of the testator's estate to the American Tract Society. The testator died in 1838. At that time there were two American Tract societies, one in Boston, which was incorporated before the execu- tion of the will ; the other was in New York, was not incor- porated, and was organized after the execution of the will. It was held that the Boston society was entitled to the devise. Brewster v McCalFs Ex'rs. 15 Conn. 274.

A testator made a bequest to the Franklin Seminary of Literature and Science, New Market, New Hampshire. There was no institution of that name, but there was an institution incorporated by the name of the trustees of the South Newmarket Methodist Seminary. It was held that there was a latent ambiguity in the description of the legatee in the will, which might be explained by parol evidence. South New Market Methodist Seminary v Peaslee, 15 N. H. 317.

What is sufficient description of corporations or societies as beneficiaries? A corporation or an individual entitled to take by devise may take as well by description as by name. American Bible Society v Wetmore, 17 Conn. 181.

Indefiniteness. A bequest of a certain sum to the Univer-

882 THE CIVIL LAW AND THE CHURCH

salist religious denomination in the County of Berkshire as a permanent fund, the use to be applied annually for tlie support of that denomination, is not void for uncertainty; and if no trustee is named in the will, equity will appoint trustees to execute the trust, on a bill filed by the organized Universalist societies of the county. First Universalist Society, North Adams, and others v Fitch, S Gray (Mass.) 421.

A bequest was made to the Protestant Church Bible So- ciety. So far as appeared in tlie case, no such society ever existed. Tlie court said that it must be inferred from the bequest tliat the testator meant a society whose objects were charitable, as the cheai) distribution of Bibles would be. The testator's object was held to have failed, and a decree was made directing the application of the fund according to a scheme to be determined. Cottrell v Parkes, 25 T. L. R. (Eng.) 523.

Testatrix bequeathed a portion of her residuary estate to her husband for the j)urpose of making such distribution among religious, benevolent, and charitable objects as he may select. This was held void for indefiniteness. Hege- man's Executors v Roome, 70 N. J. Eq. 562.

A testator made a bequest to a trustee to be used only toward the erection of a church, and directed that it should not be paid by the trustee until he is perfectly satisfied that no debts of any kind whatever rest on said church property, or until said amount with accrued interest, would place tlie church entirely out of debt. The erection of the church was begun in testator's lifetime, and completed three years before his death. During the time of its building the testator contributed various sums, but for other purposes than that <lesigiiated by the legacy. At the testator's death there was a small debt against the church. It was held that the church was entitled to the whole amount of the legacy, less tlie inheritance tax. Keiper's Estate, 5 Pa. Co. Ct. 568.

Devises for poor and needy people of a church who are dependent upon their ownlnbor for a livelihood, for religious

WJJ.L 883

societies of a said city witlioiit regard to sect wlio prefer to work for the good and well-being of mankind, and for build- ing and maintaining of a foundling hospital to relieve unfortunate females and protect their offspring, describe beneficiaries with sufficient certainty. Phillips v Harrow, 'XI la. 92.

A testator made a bequest for the use of "Roman Catholic priests in and near London." The legatee died during the lifetime of the testator. It was held that the legacy did not lapse, but was intended for the benefit of Koman Catholic priests in and near London both at the testator's death and afterward; the legacy was not deemed indefinite because of the use of the wor«l "near," for the reason that the court might direct a sclieme to be approved by the master. Attorney-General v (Jladslone, l.'J Sim. (Eng. ) 7.

Testator gave his residuary estate to tlie Orthodox Trotes- tant Clergjinen of Delphi and their successors to be ex- pended in the education of colored children, "botli male and female, in such way and manner as they may deem best, of which a majority oi' them shall determine; and my object in this bequest l)eing to j)romote the moral and religious imi)rovement and well-being of the colored race."

There was no organization like that named in the will either in T)eli)hi. Indiana, or elsewhere. It was, therefore, held that there was no trustee competent to take the devise. The devise was also held void for uncertainty, for the rea- son that it was impossible to select the beneficiaries intended to be the objects of the testator's bounty; no method was pre- scribed for selecting the colored children who should re- ceive the ])roitos(Ml insti'uction. Grimes Executors v Har- mon and others, .">"> Ind. 108.

Testator gave his real estate to his wife for life, with a provision that ui)on her death the real estate should be dis- posed of by the bishop (of Dubuque) and apply so much thereof to the church or to the education and maintenance of poor children as he. in his wisdom might think proper and legal.

884 THE CIVIL LAW AND THE CHURCH

The devise was held void for uncertainty, the court observ- ing that it is uncertain what church is intended. It is uncer- tain what poor cliildren are intended to be tlie recipients of the testator's bounty. The poor children of no particular city, town, church, or State are designated. If there were no difficulty in this respect, it is still uncertain whether the testator intended his bounty should go to the church or to the poor children. It is uncertain how much is to go to the charity. The bishop is to determine not only the object, but the amount of the fund it is to receive, and how much it is proper and legal should be so applied. It is uncertain whether the bishop is to administer the trust in his official or in his individual capacity, and whether the power is to be exercised by him or his successors. Lepage v McNamara, 5 la. 124.

A devise of real estate, describing the devisees only as "those members of the Society of the Most Precious Blood who are under my control and subject to my authoritj^ at the time of my death," is void because not pointing out with suffi- cient certainty the persons who are to take. Society of the Most Precious Blood v Moll, 51 Minn. 277.

A legacy in* aid of a mission to be established in Africa by the Protestant Episcopal Church was sustained in Domestic and Foreign Missionary Society's Appeal, 30 Pa. St. 425, although the objects of the bounty were not definitely de- scribed. A legacy to a mission is sufficiently definite.

Testator, who died in 1809, made a bequest to the Meth- odist Episcopal Church in America whereof Francis Asbury is at present (the date of the will) the presiding bishop. The bequest was held void for uncertainty. The Methodist lilpiscopal Church of America was an aggregate body, com- posed of a multitude of individuals not incorporated, and was incompetent to hold projjerty of any kind. Holland v Peck, 2 Iredell Eq. (N. C.) 255.

Intention. A bequest to the "Baptist societies for foreign and domestic missions, and the American and Foreign Bible societies" is valid and sufficiently si^ecific; and if societies

WILL 885

cau be found, which were organized and known by those names at the time of the testator's deatli, Ihey will be con sidered the societies referred to in the will and capable of taking the bequest whether incorporated or not. Carter v Balfour Adm., 19 Ala. (N. S.j 8U.

Testator made a bequest to the Catholic Church, and the Baptist, Presbyterian, and Methodist Churches. It was held that the churches in the town where the testator resided were intended as the objects of his bounty. Trustees, Catholic Church Taylorsville v Oflfutt's Adm., 6 B. Mon. (Ky.) 535.

For the purpose of explaining a devise to a I*rotestant Episcopal church in New Canaan, Connecticut, evidence was admitted to show that there was an incorporated society with a complete organization bearing that title, and that there was also another bod}- composed only of communicants and baptized persons called the church, and that the testator referred to the latter body and intended the devise for its benefit and not for the incorporated society. Ajres v Weed, IG Conn. 291.

Legacy Forfeited by Change of Doctrine. Testator, a Uni- tarian, made a bequest to a town for the support of Uni- tarian doctrines and teachings. The society afterward changed its faith and doctrine and became Trinitarian. It was held that the legacy was thereby forfeited. Princeton V Adams, 10 Cush. (Mass.) 129.

Legislative Sanction. Under the provisions of art. 38 of (he Maryland Declaration of Rights, that ''every devise or Ix'quest of lands and of goods and chattels, to or for the benefit of any minister, public teacher, or minister of the gospel, as such, or any religious sect, order, or denomination, without prior or subsequent sanction of the Legislature shall be void," it was held that such sanction by the Legislature was valid, even if expressed in an act passed after the death of the testatrix. The Legislature had power to express its sanction within a reasonable time after such death. Church l]xtension of the Methodist Episcopal Church v Smith, 5G Md. 362.

88G THE CIVTL LAW AND THE CHURCH

So in Matter of Fitzimmons, 29 Misc. (N. Y.) 731, it was held that where a foreign corporation could not take without action upon the part of the Legislature of its domicile, the court directed that the legatee be given a reasonable time to obtain the legislative sanction.

Testatrix by a will, which was admitted to probate in September, 187G, gave a legacy to the above society. The Legislature in 1878 passed an act approving the bequest, but the executor's final account had already been filed. The society was held entitled to receive the legacy. England v Vestry Prince George's Parish, 53 Md. 4G0.

Misdescription. Legacies were given to religious societies by names which were not their correct corporate names but which plainly described the respective institutions the tes- tator had in mind, but no other institution of similar name claimed either of them. The bequests were sustained. Re Dickenson's Estate, 5G Misc. (N. Y.) 232.

Parol Evidence. If the object of the bequest is uncertain, parol evidence is admissible to exj^lain the testator's inten- tion. Roy V Rowzie, 25 Graft. (Va.) 599.

Perpetuity. A provision in a will directing the executor to pay the net annual income derived from the rent of certain real estate to religious corporations for twenty years, after which the property was to be sold, created a perpetuity under the Wisconsin statute, and was therefore void. De Wolf V Lawson, Gl Wis. 4G9.

Quakers, Yearly Meeting, Void Devise. A devise to a Yearly Meeting of Quakers for the purpose of aiding a boarding- school in I*rovidence was held void, for the reason that the Yearly Meeting was only an unincorporated voluntary asso- ciation, and could not take by devise. Greene v Dennis, G Conn. 293.

Religion, Advancement. A bequest to testator's parents with directions that on their death a specified sum should be used "for the interest of religions, and for the advancement of the Kingdom of Christ in the world," and for that purpose the sum specified was to be paid to several organizations in

WILL 887

(litfereiit ])ortious, it was held that these residuary bequests did not eoustitute a trust, uor was the provision void for uncertaiutj'. The money devoted to the advancement of religion was to be expended by well-known religious organ- izations, and they were entitled to receive the residuary bequests and use them for the purposes expressed by the testator. American Tract Society v Atwater, 30 Ohio St. 77.

Testator provided that his residuary estate after the death of his widow, should be ai)]>ropriated by the executor for the advancement of religion, in such manner as in his judgment will best promote that object. In a j^roceeding to have this provision declared void for uncertainty, the court held that it was capable of execution by the executor, at the proper time, and that tlie court could not anticipate that the ex- ecutor would not properly apply the bequest when the resid- uary provision became ettective. Miller v Teachout, 24 Ohio St. 525.

A bequest made for the use of the Welch Circulation (Jharity Schools as long as they should continue, and the increase and improvement of Christian knowledge and pro- moting religion, and to purchase Bibles and other religious books, pamphlets, and tracts as the trustees think fit, was sustained, but a devise of the house in which such charity should be carried on was declared void. Attorney General V Stepney, 10 \'es. Jr. (Eng. ) 21.

Reward of Merit. A becpiest of a fund, the income of which was to be used for rewards of merit to poor pupils in the l)arochial schools of Louisville was sustained in Coleman v O'Leary, lU Ky. 388.

Sailors' Home, Boston, Massachusetts. Testator gave a leg- acy to the Sailors' Home in Boston. Two societies claimed the legacy, one called the National Sailors' Home, which had no sailors' home in Boston, and the other, the Boston Ladies' Bethel Society, which was maintaining a sailors' home in Boston at the time of the testator's death. The latter society was held entitled to the legacy. Faulkner v National Sailors' Home, 155 Mass. 458.

THE CIVIL LAW AND THE CHURCH

Slavery and Intemperance. Legacies were given to this society so long as it should bear public testimony against slavery and intemperance. When such public testimony ceased the right to the legacy ceased, and thereafter the residuary legatees became entitled to the fund. Matter of Orthodox Congregational Church, Union Village, 6 Abb. N. C. (N. Y.) 398.

Sunday School. Testatrix bequeathed to the society a sum of money for the use of the Sunday school, one half for the library and one half for running expenses. This was held to be a trust to be administered by the court by the appoint- ment of a trustee if necessary. Cowan's Estate, 4 Pa. Dist. Rep. 435.

Testator's Religious Opinions. In Attorney-General ex rel Bailey v Moore's Executors, 19 N. J. Eq. 503, it is said that "the cases in which consideration of the religious faith of the founder of a charity is resorted to for the purpose of ascertaining his intent, are, without exception, cases in which tlie primary object of the foundation was the propaga- tion of religious doctrines, or the donor in the instrument of foundation has made some express provision relative to the religious instruction to be given."

Time Limit. A testator died five days after making his will. A bequest to the college (of St. Francis Xavier) was held invalid, for the reason that it was not made at least two months prior to the testator's death as required by sec. r; of the act of 1848, chap. 319. Matter of Fitzimmons, 29 Misc. (N. Y.) 731.

A bequest to the society (of St. Vincent de Paul) was sus- tained on the ground that the society was not subject to the two months' limitation in the act of 1848, chap. 319. Matter of Fitzimmons, 29 Misc. (N. Y.) 731.

A devise of the residuary estate to the Roman Catholic Little Sisters of the Poor was held void because the will was made within two months of the testatrix' death. Marx v McGlynn, 88 N. Y. 357.

A devise to the society was held void under a will uv.ulv

WILL 889

within one calendar month prior to the death of the testator. The will was dated February 10, and the testator died March {). Be Carnell's Estate, 9 Phila. (Pa.) 322.

Testatrix made provision in her will for the education of a relative for the l*resbyterian ministry, directing the pay- ment of the expenses occasioned by his education until he should have become an ordained Presbyterian minister ; but if he should refuse to accept the provision for his education, or neglect to pursue the required studies to lit him for the ministry, then the money available for such education was to be paid to Princeton College, and to be used for the educa- tion of Presbyterian ministers. It was held that this was not a trust primarily for religious uses, but that the primary purpose was the education of the relative, and the testatrix having died within one niontli after making her will, the bequest did not become void under the Pennsylvania statute. McMillen's Appeal, 11 Wkly Notes of Cases (Pa.) 440.

In Stephenson v Short, 92 N. Y. 433, it was held that the two months clause relating to devises and bequests to cor- porations, contained in sec. 6, chap. 319, of the Laws of 1848, ap])lied to all wills, and therefore that a bequest to a mis- sionary society in a will executed two days before testator's death, was invalid.

Under a Pennsylvania statute declaring void bequests among other things for religious uses unless the will was made at least one month before the testator's death, it was held that a legacy to a church to be used in saying masses for the repose of the testator's soul was void, it appearing that the will was made within one mouth before testator's death. Khymers Appeal, 93 Pa. St. 142.

Testatrix executed a will on October 8, 1899, between the hours of 3 and 5 o'clock p. m. She died on November 8 of the same year between the hours of 7 and 8 o'clock p. m. It was held that the testatrix died within one calendar month after the execution of the will, the court observing that the manifest meaning of the statute, Pennsylvania act of 1855. is that such a month must fully elapse between the

890 THE CIVIL LAW AND THE CHURCH

dates of the two events. A calendar mouth is made up of days, in this case thirty-one days, and the time to be com- puted in this case meant thirty-one full calendar days, begin- ning when October 8 ended, at midnight, and ending at the close of November 8, at midnight. Concerning the object of the statute making void a will executed within one month j)rior to the testator's death, the court said that tlie statute is for the protection of a testator of the last full calendar month of his life against jdelding to any inlluences during that period — so often a susceptible one — which may unduly lead him to divide his estate, or any portion of it, to religious or charitable uses. Re Gregg's Estate, 213 Pa. 200.

Simmons v Burrell, 8 Misc. (N. Y.) 388, holds that a residuary bequest to corporations made within two months before testator's death, is invalid.

Sec. 6 of chap. 319 of the New York Act of 1848, declar- ing invalid a will executed within two months prior to the death of the testator so far as it affects a gift to a charitable corporation, was not rejiealed nor amended by chap. Gil of the laws of 1881. Matter of Conner, 44 Hun (N. Y.) 424, 1 St. Rep. (N. Y.) 144.

The provision in the act of 1848, chap. 319, sec. 6, prohib- iting gifts to certain corporations by a will made within two months prior to the death of the testator applies only to corporations organized under that act, and it was, accord- ingly, held that gifts to certain foreign corporations author- ized b}^ their charters to receive such gifts were valid. Gifts to corporations described in the act are not against public policy, and testamentary gifts to such institutions are not condemned by any policy outside the statute. Hollis V Drew Theological Seminar}, 95 N. Y. 106.

In Harris v American Baptist Home Mission Society, 33 Hun (N. Y.) 411, it was held that a bequest to this society was not subject to the provision contained in chap. 319 of the laws of 1848, making invalid such a bequest made within two months prior to the death of the testator.

A gift to Yale College made by a will executed within two

WILL 8!J1

months before the testator's death, aud including property, the annual income of which exceeded !i?lO,000, was sustained. The only living relative of the testator was an aunt. Re Lampson, 161 N. Y. 511.

See Kavanagh's Will, 125 N. Y. 418. Testator died within one month after the will was made. The case holds that the court may take judicial notice that the fifth edition of the revised statutes, published in 1851), was in common use in ISGO, when an act was passed apjilying to certain provisions of the revised statutes, and that under the circumstances this edition of the revised statutes must have been intended by the Legislature.

A person executed a will, disposing of her property to vari- ous persons and societies. Two days after the execution of the will she, then being very ill, was informed that if she should die within a month the bequests to charities would fail. She thereuijon executed documents making an imme- diate transfer of property for the purposes, or some of them, indicated in the will.

This disposition of her property was sustained as a valid gift, and was not within the prohibition of the Pennsylvania statute prohibiting a legacy or devise for charitable pur- poses contained in a will executed within one month prior to the testator's death. McGlade's Appeal, 99 Pa, St. 338.

A legacy to a church contained in a will made within thirty days of the death of the testatrix was held valid under the Pennsylvania act of 1855, for the reason that the will was made in pursuance of a i)roniise by the testatrix to one who bequeatlied the property to her that she would give to the church. The church was entitled to invoke the aid of a court of equity to compel the performance of the promise. Re Hofifner's Estate, IGl Pa. 331.

Testatrix bequeathed a fund to the pastor of the church, but there was no trust or condition for charitable use. It was held that, under the circumstances, the bequest was to the pastor as an individual, and was not subject to the pro-

892 THE CIVIL LAW AND THE CHURCH

visions of the statute making void a bequest for religious purposes made witliin the one month prior to the death of the testatrix. Re Hodnett's Estate ; O'Reilly Appeal, 154 l»a. 485.

The testatrix had no children and no descendants at the time of executing the will, which was executed less than ninety days before her decease, and which made the bequest to charitable uses. The will was held valid under the Georgia Code, which applied the restrictive time limit only to a testator leaving a wife or children or the descendant of the child. Reynolds v Bristow, 37 Ga. 283.

Trustee, Will Acknowledging Trust. Testator who was a trustee of a fund for the payment of the salary of a minister of this church, by his will acknowledged such trust as bind- ing on him, and appointed trustees to hold, invest, and man- age said fund, and pay its income on such salary, and be- queathed the fund to them for that purpose. The bequest was held valid. Morris Executors v Morris Devisees, 48 W. Va. 430.

"Undue Influence. A member of the society conveyed a large amount of property to the pastor, nominally for the benefit of the society. The burden was on the pastor to show good faith in the transaction, although he derived no per- sonal benefit from it, as the laAv presumes undue influence. Where a person enfeebled by age and illness, and susceptible to influence, conveys property to his pastor, in trust for the parish, greatly in excess of its needs, in addition to pre- vious liberal gifts, and contrary to his intentions, expressed before and after making the conveyance, and the pastor had opportunities to exert influence, the law presumes that the conveyance is invalid, and in the absence of evidence, over- coming the presumption, the conveyance must be set aside. Good v Zook, IIG la. 582.

Unincorporated Society. A devise directly to a voluntary association was held void in Tennessee, but having been made to trustees for the use and benefit of the association (Friendship Church, Polk County) it was sustained. Equity

WILL 8y:j

would enforce the trust. Cobb v Denton, G Baxter (Teun.j 235.

A bequest to the Ladies' Mite Society was held invalid for the reason that the society was not incorporated. Such an unincorporated society could not take the property by be- quest, and was incapable of enforcing the trust declared by the will for its benefit. Church Extension of the Meth- odist Episcopal Church v Smith, 56 Md. 362.

Testator devised land to Francis Asbury for the use of the Methodist society and a school. The Methodist society was not incorporated, and was, therefore, incapable to take the devise which was held void. Murphy v Dalhini, 1 Bland Ch. (Md.) 529.

Unitarians. A legacy to the minister or ministers to be applied by them to the support of Unitarians was sustained. Re Barnett, 21> (:58 Ft. 1) L. J. Ch. (Eng.) 871.

Ursuline Community. A bequest to Bishop England, of South Carolina, in trust for the ladies of the Ursuline order residing in Charleston, was sustained. It appeared that at the time the will was executed there was in Charleston an institution which had been incorporated by the name of ''The Ladies L^rsuline Community of the City of Charleston," and it was and now is known and spoken of invariably as "The Ladies of the L^rsuline Convent" or "order" ; and there had not been and was not any similar society or institution in the State of South Carolina. The designation in the will was deemed sufficiently definite. Banks v Phelan, 4 Barb. (N. Y.) SO.

Young Men's Christian Association. Testator bequeathed the interest of |1,000 yearly to help form a Young Men's Christian Association. The gift was sustained. Goodell v Union Association of the Children's Home, 29 N. J. Eq. 32.

WINEBRENNERIANS See the article ou Chiircli of God at Harrisburg.

894

WITNESS

Atheist, 895.

Child, 895.

Competenc}', 897.

Deaf mute, 899.

Evidence, 899.

Idolater, 899.

Immunity from examination, 900.

Oath, 900.

Party, religious belief, 900.

Quaker, 900.

ReUgious belief, 900.

Roman Catholic, oath how administered, 903.

Universalist, 904.

Atheist. In Anon vinous. Fed. Cas. No. 446, it is said that the testimony ol" an atheist is not admissible.

The Connecticut court permitted evidence to show that a witness was an atheist. Beardsly v Foot, 2 Koot (Conn.) 399.

An affidavit cannot be excluded by the presentation of a counter afiidavit that the tirst affiant is an atheist. His competency cannot be questioned ex parte, but he must have an opportunity to explain his views. Leonard v Ma- nn nl, 1 Hall's Sup. Ct. ( N. Y. i 200.

Child. Where a child of tender years, upon being ex- amined by the court as to her competency to testify as a wit- ness, stated that if she swore falsely and did wrong she would go to hell, but that if she told the truth and did right she would go to heaven, such answers show the child to be a competent witness without being questioned as to her belief in a Supreme Being. Grimes v State, 105 Ala. 86.

A child nine years of age testified, on a preliminary examination, that she ^'understood the nature of an oath, and that if she did not swear to the truth she would get

895

81)6 THE CIVIL LAW AND THE CHURCH

into hell fire." She was held to be competent. Draper v Draper, 68 111. 17.

A child ten years of age, upon examination, said she did not know what God and the laws of the country would do to her if she swore falsely, but that she would tell the truth. She was held to be a competent witness. Davidson v State, 39 Tex. 129.

A child can be examined as a witness if there is a belief in a state of rewards and punishments, and a conviction that punishment will follow falsehood, although she was ignor- ant of the meaning of an oath. Commonwealth v Ellenger, 1 Brewst. (Pa.) 352.

It is for the trial court to determine after a proper examination whether a child understands the nature of an oath, the obligation it imposes, and his responsibility to the Supreme Being for not testifying to the truth. Com- monwealth v Mullins, 2 Allen (Mass.) 295.

A girl of thirteen years of age called as witness said she understood an oath was to tell the truth, and that she would be punished if she did not, but did not know how or by whom she would be punished. Before being sworn, she was instructed by a Christian minister who told her God would punish her if, after taking the oath, she testified what was not true; and that she did not know this before. She was held to be competent. Commonwealth v Lynes, 142 Mass. 577.

A Negro girl about nine years of age who said she did not know what the Bible was; had never been to church but once, and that was to her mother's funeral; did not know what book it was she laid her hand on when sworn; had heard tell of God, but did not know who it was; and if she swore to a lie, she would be put in jail, but did not know she would be punished in any other way, was held incom- petent as a witness. Carter v State, 63 Ala. 52.

In Jones v Brooklyn B. and W. E. R. Co., 21 St. Rep. (N. Y.) 169, a boy eleven years old testified that he believed in heaven, the home of God, and in hell, the home of the devil,

WITNESS 897

that at death the good will go to heaveu and the bad to hell, and that it was bad to lie. He was held competent as a witness.

A boy of twelve years who could repeat the Lord's Prayer, and had heard that the bad man caught those who lied, cursed, etc., but had never heard of God, or the devil, or of heaven or hell, or of tlie Bible, and had never heard and had no idea what became of the good, or of the bad after death, is not a competent witness. State v Belton, 24: S. Car. 185.

A girl ten jears old said she attended Sunday school, and knew it was wrong to tell a lie. It was held not to be error to admit her as a witness. Johnson v State, 1 Tex. Ct. App. G09.

Competency. One who believes in tlie existence of God, and that an oath is binding on the conscience, is a competent witness, though he does not believe in a future state of rewards and punishments. Bi-ock v Milligan, 10 Ohio 121.

A person who believes in a God, though not in future [»unishments, is a competent witness. The Pennsylvania act of 1SS5 removed everj- form of incompetenc}' including that arising from defect of religious belief. Commonwealth v Kauttman, 1 Pa. Co. Ct. 410.

No person is incai)acitated from being a witness on ac- count of his religious belief. I'erry v Commonwealth, :j Graft. (Va.) G82.

In Massachusetts it was held in Commonwealth v Burke, IG Gray (Mass.) 33, that a jjerson offered as a witness could not be examined as to his religious belief. The purpose and effect of the provision of the general statutes, 1860, chap. 131, sec. 12, were to render persons who were disbelievers in any religion competent witnesses, and to cause their dis- belief to be proved only to affect their credibility.

A person who does not believe in the obligation of an oath, and a future state of rewards and punishments, or in accountability after death, is not a competent witness; but cvei-y person who does so believe, whatever may be his reli-

898 THE CIVIL LAW AND THE CHURCH

gioiis creed, is competent, being sworn according to that form of oath which he holds to be obligatory, Curtis v Strong, 4 Day (Conn.) 51.

The true test of competency is whether a person believes in the existence of a God who will punish him if he swear falsely. Persons who believe that future punishment is not eternal are included in this rule. Cubbison v M'Creary, 2 Watts & S. (Pa.) 262.

In Commonwealth v Barnard, Thach. Crim. Cases (Mass.) 431, a person offered as a witness at first testified that he believed in a God, but that he considered an oath no more binding on his conscience than a simple promise. He attached no religious obligation or sanctity to an oath. He further said that he had no idea of such a being as the one living and true God, who knows the secrets of all hearts, who takes knowledge of the actions of men, and who will reward or punish them as their conduct in this life is good or evil. He was held not competent as a witness.

Neither belief in a Supreme Being nor in divine punish- ment is requisite to the competency of a witness in Florida. The common law rule does not apply in that State. Clinton V State, 53 Fla. 98.

A person believing in the being of a God, and in his attri- butes, as a righteous avenger of wickedness, and in the exist- ence of a future state, is competent to be sworn as a wit- ness. Commonwealth v Batchelder, Thach. Cr. Cas. (Mass.) 191.

A person who is proved to have openly and repeatedly avowed that he had no belief in the existence of a God, can- not be admitted to testify in a court of justice. Norton v Ladd, 4 N. H. 444.

A person's religious belief or unbelief cannot render him incompetent as a witness. Ewing v Bailey, 36 111. App. 191.

A person is not rendered incompetent by reason of his dis- belief in God. Londener v Lichten, 11 Mo. App. 385.

All persons who believe in the existence of a God and a future state, though they disbelieve in a punishment here-

WITNESS 899

after for crimes committed here, are competent witnesses. Noble V People, 1 111. 54 (Breese, Beeclier).

It seems that a member of an eleemosynary corporation is a competent witness in a suit in which the corporation is a party. Miller v Trustees of Mariner's Church, 7 Me. 51.

A person not believing in the existence of a Supreme Being who will punish false swearing is not a competent witness, but the objection to his competency must be taken before he is sworn. After he has testified his disbelief may be shown, to affect his credibility. The People v McGarren, 17 Wend. (N. Y.) 460.

A person offered as a witness is subject to examination by the court as to his religious belief. Commonwealth v Winue- more, 1 Brewst. (Pa.) 356.

A person is a coni])etent witness who believes in the exist- ence of a God, and that he will punish falsehood and perjury in this world, although he does not believe in future rewards and punishments. Blocker v Burness, 2 Ala. (N. S.) 354.

Deaf Mute. A deaf and dumb person who can be com- municated with by signs is a competent witness under our statute, if he has sufficient discretion, and understands that perjury is punishable by law, though he has no conception of the religious obligation of an oath. Snyder v Nations, 5 Blackf. (Ind.) 205.

Evidence. In Connecticut, parol evidence was admitted to show that a proposed witness was an infidel and did not believe in the being of a God and in revealed religion. Bow V Parsons, 1 Root (Conn.) 481.

Idolater. In Ormichund v Barker, 1 Wilson K. B. (Eng.) 84, the case is stated as follows : An infidel, pagan, idolater may be a witness. It was held by the Lord Chancellor, assisted by Lord Chief Justice Lee, the Master of the Rolls, the Lord Chief Baron, and Justice Burnett, that an infidel, pagan, idolater may be a witness, and that his deposition sworn according to the custom and manner of the country where he lives may be read in evidence ; so that at this day it seems to be settled that infidelity of any kind doth not

900 THE CIVIL LAW AND THE CHURCH

go to the competency of a witness. lu the debate of this point, Ryder, the attorney-general, cited the covenant be- tween Jacob and Laban, Genesis, chap. 31, v. 52, 53, where Jacob swore by the God of Abraham, and Laban swore by the God of Nahor. Vide Psalm 115 ; 106, v 36.

Immunity from Examination. A witness cannot be required to testify to his want of belief in any religious tenet, nor to divulge his opinions upon matters of religious faith. Dedric V Hopson, 62 la. 562.

Oath. An oath is an appeal to God, by the witness, for the truth of what he declares, and imprecation of divine ven- geance upon him, if his testimony shall be false. The wit- ness must believe in the existence of God. He must believe in rewards and punishments after death, and a belief that men will be punished in this life for their sins, but imme- diately after their death be made happy, is not sufficient to entitle a witness to be sworn. Atwood v Welton, 7 Conn. 66.

An oath is an appeal to God to witness what we say, and we thus invoke punishment if what we say be false. Mo- hammedans may be sworn on the Koran ; Jews on the Penta- teuch, and Gentiles and others, according to the ceremonies of their religion, whatever may be the form. Jackson v Gridley, 18 Johns. (N. Y.) 98.

Party, Religions Belief. A party has a right to be a witness in his own behalf, and this is a civil right, protected by the constitution. A party who claims the right to testify in his own behalf cannot be denied on the ground that he does not believe God will punish perjury. State v I'owers, 51 N. J. L. 432.

Quaker. A Quaker's testimony on his affirmation is ad- missible in an action of debt on statute 2 Geo. 11, chap. 24, against bribery. Atcheson v Everitt, 1 Cowper ( Eng. ) 382.

Religious Belief. The proper question to be asked a wit- ness in order to ground an objection to his competency is not whether he believes in Jesus Christ, or the holy gospels, but whether he believes in God and a future state. King v Taylor, 1 Peake's N. P. (Eng.) 11.

WITNESS 901

Some kind of religious belief has always beeu considered indispensable, in order to the binding obligation of an oath on the conscience of the one sworn. At times it has been deemed an essential prerequisite that the person sworn should believe in all the articles of the Christian faith. And Mr. Starkie, in the last edition of his work on Evidence, says, ''All persons may be sworn who believe in the existence of God, a future state of rewards and punishments, and in the obligation of an oath." "It is obvious that a sincere deist, a Mohammedan, or a pagan of any name, if he believe in the existence of God, may feel the sanction of an oath as binding upon his conscience as the most devout Christian." Arnold v Arnold, 13 Vt. 363.

This convent (Ursuline Convent) was destroyed by a mob August 11, 1834. Twelve persons were indicted for capital burglary and capital arson. Various questions arose dur- ing the trial relating to the competency of witnesses, and the admissibility of evidence, especially the right to inquire as to the religious faith and prejudices of the witnesses and jurors, and the numner of administering oath. Common- wealth V Buzzell, 16 rick. (Mass.) 153.

In order to be a qualified witness a person must believe in the existence of a Deity and a future state of rewards and punishments. Perry's Adm. v Stewart, 2 Har. (Del.) 37; Wakefield v Boss, 5 Mason (U. S.) 16.

In order to test the competency of a witness on account of his religious belief, he may be either interrogated person- ally concerning it, or his declarations to others upon the subject may be shown. The question, whether or not such declarations have been correctly understood and reported, will, of course, be open to proof of a like character. Harrel V State, 38 Tenn. 125.

A person who does not believe in the existence of a God, nor in a future state of rewards and punishments, cannot be a witness in a court of justice under any circumstances. Jackson v Gridley, 18 Johns. (N. Y.) 98.

Note: Under the New York constitution (art. 1, sec. 3)

902 THE CIVIL LAW AND THE CHURCH

as amended in 184(), "no person shall be rendered incom- petent to be a witness on account of his opinions on matters of religious belief."

In Commonwealth v Buzzell, 16 I'ick. (Mass.) 153, the court held that the religious faith of a witness was not a subject for argument or proof, for the purpose of showing that he was entitled to more or less credit than witnesses of a different religious sect; and that under the constitution and laws witnesses of all religious persuasions are placed on the same footing, and each is to stand on his own individual character.

One who does not believe in the existence of God is not a competent witness. Thurston v Whitney, 2 Cush. (Mass.) 104.

An acknowledgment of belief in God and his providence is sufficient to establish the competency of a witness who has been objected to on account of defective religious belief. Jones V Harris, 1 Strobh. Law (S. Car.) 160.

"A person who believes there is no God, is not a competent witness." Scott v Hooper, 14 Vt. 535, citing Arnold v Arnold, 13 Vt. 362.

In Bush V Commonwealth, 80 Ky. 244, it was held that a rule which excludes a witness in a criminal case on account of his religious belief, or his disbelief in any system of reli- gion is in violation of the constitution and the policy of free government.

"One who believes in the existence of a Supreme Being, and that God will punish in this world for every sin, though he does not believe that punishment will be inflicted in the world to come, is a competent witness." Shaw v Moore, 49 N. C. 25.

Evidence is admissible that a witness does not believe in a God nor in future rewards and punishments. Arnd v Amling, 53Md. 192.

A person who does not believe in the existence of a God other than nature, nor in a future state of existence is not a competent witness. U. S. v Brooks, 4 Cranch C. C. (U. S.) 427.

WITNESS 903

A person who has no religious belief, who does not ac- knowledge a Supreme Being, and who does not feel himself accountable to any moral punishment here or hereafter, but who acknowledges his amenability to the criminal law, if he forswears himself, cannot become a witness. Central Military Tract R. R. Co. v Rockafellow, 17 111. 541.

In I'ennsylvania a belief in a future state of reward and jtunishment is not essential to the competency of a witness, nor is it cause of exclusion tliat one does not believe in the inspired character of the Bible. The test of competency is whether the witness believes In the existence of a (Jod who will i)unish liim if he swears falsely. But whether the pun- ishment will be temporary or eternal, inflicted in this world or that to come, is immaterial u]»on the question of compe- tency. Blair v Seaver, 20 Pa. 274.

In U. S. V Kennedy, 'A McLean (F. S. ) 175 it Avas held that a witness to be competent must believe in God, and in rewards and punishments, but that he is competent if these are received in this life.

In State v Townsend, 2 Harr. (Del.) 543, it was held that a person could not be a witness who did not believe in a God and a future state of existence.

A person who believes in a God and also in the Bible, but does not believe that the onlj^ punishment inflicted for wrongs in this life is the i)angs of a guilty conscience, or in a future state of rewards and punishments after death, is a competent witness. Bennett v State, 1 Swan (Tenn.) 411.

Roman Catholic, Oath How Administered. In Common- wealth v Buzzell, 1() Pick. (Mass.) 153, 156, et. seq. (33 Mass.), in the course of the trial the witnesses were severally called to be sworn on the Holy l']vange]ists. When Bishop Fenwick was called to take the oath, he inquired the reason for this distinction, and objected to it, if this departure from the usual form was intended or could be construed as estab- lishing an invidious distinction against Catholics. Where- upon it was stated by the court, that whether the oath be

1)04 THE CIVIL LAW AND THE CHURCH

takeu iu the usual mode, by holding up the hand, or any other, it is in law equally binding, and that false testimony in either case would equally subject the party guilty to the punishments of jjerjury. It was also a rule of law, now adopted in practice, that a witness is to be sworn, accord- ing to the form which he holds to be the most solemn, and which is sanctified by the usage of the country or of the sect to which he belongs. It is well understood as a matter of general notoriety, that those who profess the Catholic faith are usually sworn on the Holy Evangelists, and generally regard that as the most solemn form of oath, and for this reason alone that mode is directed in this court, in case of administering the oath to Catholic witnesses. This is done b}^ the witness placing his hand upon the book, whilst the oath is administered, and kissing it afterward. The oath was then administered to Bishop Fen wick in this form.

ITniversalist. One who believes in the existence of a God, who will punish him if he swears falsely is a competent wit- ness. This includes a Universalist who believes that future ])unishment will not be eternal. Butts v Swartwood, 2 Cow. (N.Y.) 431.

YOUNG MEN'S CHRISTIAN ASSOCIATION

Auxiliary, 905. Property, limitation, 905. Taxation, 906.

Auxiliary. The Auxiliary of the Youiij^ Men's Christian Association is a society composed of women, whose object is to extend spiritual, intellectual, social, and financial hell) to the Young Men's Christian Association of Nashua. The purpose of the latter association, as set forth in its charter, is to improve the spiritual, intellectual and social condition of the young men of Nashua, and its property to tlie amount of 125,000 is thereby exempted from taxation. It is deemed a charitable institution, and its projiert}' is exempt from taxation and the Woman's Auxiliary belongs to the same class. Carter v Whitcomb, 74 N. H. 482.

Property, Limitation. A corporation known as the Young Men's Christian Association of Decatur, Illinois, was duly formed under the Illinois statute, for the purpose of pro- moting growth in grace and Christian fellowship among its members, and aggressive Christian work, especially by and for young men, and to seek out and aid the worthy poor. It prescribed no form of worship and imposed no obligations on its members in this respect. The association was not subject to the limitation contained in the Illinois statute ])rohibiting a religious corporation from holding more than ten acres of land, and therefore a devise of an undivided one half of IGO acres to the Association was sustained.

Incidentally, the court observed that questions relating to the amount of property which a corporation might take under statutory limitations were to be determined only on the application of the State, and not of parties interested in the property itself. Hamsher v Hamsher, 132 111. 273.

905

!)()(; THE CIVIL LAW AND THE CHURCH

Taxation. The assocititiou in Aiiburu, Maine, owned real estate valued at |20,000; a portion of the property was let for a boarding honse, and another portion for stores. An assessment of |10,000 was made on the uonexempted portion of the property. It was held that the rented portion of the property was liable to taxation. Auburn v Y. M. C. A., Auburn, 86 Me. 244; see also the article on Religious Wor- ship, subtitle Buildings, Exemption from Taxation.

INDEX

Abbott, Francis E., change of re- ligious opiniorLs, 849.

Actions, general article, 1; agent, when liable, 1; architect for plans, 2; building committee, 2; compromise, when effectual, 3; corporation against majority of members, 4; damages against rail- road company for disturbing re- ligious services, 4; debts, ."); ejectment, 5; elections, (i; forci- ble entry and detainer, 6; jm-or, 6; mechanic's hen, 7; minister's salary, 8, 348; minister, statute of limitations, 13; partition, 13; I)ersonal judgment, when not proper, 14; promissory note, 14; quieting title, 15; rector, deposi- tion, when no action for damages, 15; reforming deed, 15; replevin for seal, 16; Shakers, 10; sjiecific performance, 16; title, action to compel conveyance, 16; trespass, 16; trustees, de facto, 18; trus- tees, Illinois rule, IS; trustees, New York rule, 18; trustees, restraining unauthorized acts, IS; trustees, right to sue, 19; trus- tees, title to ofhce, 20; unincor- porated associations, 20; unin- corporated society, 20; when minister cannot i-ecover parish fund, 184; damages not recover- able for disturbing person in rehgious meeting, 202; Evangel- ical Association, Des Moines Annual Conference, relative to status of Bishop, 243; none by trustees after term expires, 246; Universalist Chiu-ch, how brought, 865.

Acts, 15; quoted, 111.

Adams, Rev. Edward P., pastor of Presbyterian Church, Dunkirk, deposed, 377.

Adverse Possession, when not sus- tained, 15; 30 years' occupancy, 17; burial ground, 58; notes rel- ative to, 521.

Advowson, note on, bequest in- valid, 825.

African Methodist Episcopal Church, organization, 21; amend- ing charter, 21; dismissing pastor, 21; municipal ordinance against meetings, 21; Similar to Method- ist Episcopal Church, 21; charter cannot be amended without pre- vious notice, 21; action of Meth- odist Episcopal Church, South, relative to, 306.

Agent, when reliable on society note, 1; when may maintain action for forcible entry and detainer, 6; trustees giving prom- i.ssory note for materials, 14; appointment on Sunday, when valid, 745; unauthorized accept- ance invahd, 745.

Alabama, declaration of rights, re- ligious freedom, 625.

Alaska, property of Lutheraas, how affected by cession to United States, 298; Russian toleration of Lutherans in, 306.

Alexander VI, Pope, grant of church privileges by, 685, 687.

Amana Society, civil courts will not settle differences in creed, 142; described, 107

American Bible Society, contribu- tion from Methodist Episcopal churches, 338; trust for, sus- tained, 829.

American Home Missionary Society, bequest sustained, 22; succeeded by Congregational Home Mis- sionary Society, 184.

American Revolution, did not affect right of British corporations to hold proi)erty in I'^nited States, 70.

907

908

INDEX

American Society for Ameliorating the Condition of the ,]ewn, en- titled to legacy, 880.

American Sunday School Union, subject to taxation in Pennsyl- vania, 793.

Ames, John H., Judge, what consti- tutes religious worship, 654.

Andrew Chapel, Savannah, note on, 367.

Annual Conference, EvangeHcal As- sociation, 241, 244; Evangehcal Association, status of adherents of Philadelphia Conference, no power to appoint ministers, 247; United Brethren in Christ, 855, 857; Wesleyan Methodist, 875.

Appeal, none in Baptist Church, 34; from decision of church ju- dicature, when civil com'ts may exercise jurisdiction, 130.

Arbitration, church rule, 23; when conclusive, 128; question of sale of church property cannot be submitted to, 346; trustees, title to office carmot be determined by, 346; award on Sunday, void, 746, 758.

Archbishop, of Cashel not a cor- poration, 47; deed of burial ground to, effect, 59; may direct use of bequest, 80; when mort- gage by, void, 417; bequest for masses sustained, 471; when may appoint directors of corporation, 658; title to property, 659; as- signment for creditors, 663; Inde- pendent society cannot be com- pelled to transfer property to, 672; general powers, 681; when utterances concerning priest con- stitute slander, 727; moral trust, 826.

Architect, action for plans, 2.

Arminians, alleged persecution of Lutherans, 304.

Arminius, doctrines noted, 250.

Articles of Religion, description, 24.

Asbury, Francis, bishop Methodist Episcopal Church, noted, 884; devise to him for Methodist so- ciety and a school, unincorpor- ated, invahd, 893.

Asbury Park, liquor license invalid if sale within one mile from Ocean Grove, 55.

Associate Reformed Church, history and form of government, 25; described, 26; synod, jiower, 27; union of Associate and Associate Reformed Chm-ches, 27; union with Presbyterian Church, 28; missions, bequests sustained, 29; synod of New York, 25, 26; general synods of the west, 25; general synod, 25; government Presbyterian in form, 26, 28; merged in Presbyterian Church, merger invahd, 26; Theological Seminary established, 28; will relating to, 512; Theological Semi- nary, transfer of trust funds denied, 838.

Association, Baptist, powers and fimctions, 33.

Auburn Theological Seminary, be- quest for, sustained, 826, 876.

Augsburg Confession, basis of cer- tain religious doctrines, 269; adopted by Lutherans, 300; adopted by the Norwegian Evan- gehcal Lutherans, 425; described, 545.

B

Baldwin, Henry, Judge, decision on legacy to unincorporated society, 267; opinion, reUgious toleration in Pennsylvania, 676.

Baltimore Chiu-ch Home and In- firmary, note on, 549.

Baltimore Conference, Methodist Episcopal Church, status, prop- erty rights considered, 336; 338, 357; joins Methodist Episcopal Church, South, 362; new Confer- ence organized, attached to orig- inal church, 362.

Baltimore Yearly Meeting, Friends, noted, 262.

Baptism, place of, injunction denied restraining interference with, 283.

Baptist Chiu-ch, articles of faith may be altered, 30; Baptist Association, 31; congregation, powers, 32; creed, 32; English toleration, 32; government, 33; majority may control property, 34; minority, right to control property, 35; missions, 36; offi- cers, 36; pastor, how settled, 37; property, control of, 37; Texas

INDEX

;»<>:)

general convonlion, 37; local so- ciety independent, 31; associa- tion, messenger, function, 31; local societ}' a democracy, 33, 36; no constitution, 33; pastor and deacons onl}' officers, 3G; two elements, church and society, 37; property, controlled by congrega- tion and trustees, 37; deacons, ex officio trustees, 196; when jiastor restrained from using church, 2S9.

Barbarians, invading Roman Em- pire, protected church property, 682.

Barclay's Treatise on Church Gov- ernment, quoted, 223.

Behef, ReUgious. See Religious Be- lief.

liells, chime, bequest sustained, 39; fixtme, 39; injunction against ringing, 39, 40; nuisance, 40; chimes, keeping in repair, 80.

BenecUct, St., founder of order of St. Benedict, 172.

Bible, inspiration, 41; New Testa- ment, 41; not a sectarian book, 41, 45, 715; Old Testament, 42; Protestant translations, 42; schools, use in, 43; versions, 46; school authorities to determine question as to use of, 46; only creed of Campbellites, 51 ; ba,sis of ecclesiastical government, 101; constitution in harmony with, 100; only creed, Church of Clod at Harrisburg, 124; (^ongrega- tionalist, only standard in test of religious truth, 179; basis of Protestant reformation, 545; gov- ernment not capable of int(>r- jH'eting, 593; may be used in Girard College, 594; in schools, note on, 654; Iowa, use in schools, 713; reading in school in Massa- chusetts, 713; Texas, use in public schools sustained, 717; reading in school constitutes sectarian in- struction, 718; quoted as to form of oath between Jacob and Laban, 899.

Binn's Meeting, Friends, note on, 262.

Bishop, first Protestant Episcopal in America, 47; legacy to estab- lish in America, 47; office not a

corporation, 47; witness, meaning of canon, 48; bequest for chari- table pm-pose, official not per- sonal, 79; procedure and charges against rector, 222; Evangelical Association, 241, 244; Evangelical Association, deposed, 242; Meth- odist Episcopal Chui-ch, power to consohdate societies, 339; con- sent of needed for mortgage, 418; Georgia, property held in trust, 566; Roman Catholic Church, relation to priest, 659, 678; au- thority, 660; control over priest, 660; liability on contract, 661; not liable for priest's salary, 661; general powers, 661; general su- pervision, 662; title to propert}^, 663, 664, 681; when holds prop- erty in trust, 664, 665; when not liable in damages, 666; may remove or suspend priest, 679; when priest not bishop's agent, 680; when priest has no action against, 681; no title to sub- scription for church edifice, 737, 740; Protestant Episcopal Chiu-ch, trust for local parish, 826; death of, trust passes to court, 826; to be established, legacy for, sus- tained, 877.

Blasphemy, described, 49, 98; his- torical sketch, 49.

Board of Chmch Erection J^und, Presbyterian Chm-ch, noted, 416.

Board of Publication, Evangelical Asso c i a t i o n, composition and powers, 242; fixing meeting place of General Conference, 243, 246.

Bonaparte, Napoleon, cession of Louisiana, exacted religious free- dom for inhabitants, 621.

Bohemian Roman Catholic Central Union, member, suspension, ef- fect, 670.

Book Concern, Methodist Episcopal Church, estabUshed, 340; interest of Methodist Episcopal Church, South, in, 340, 363.

Book of Doctrine and Covenants, Mormon, noted, 409; marriage covenant, 412; revelations noted in, 414.

Boston Young Men's IVIarine Bible Society, designated by court to administer trust, 835.

010

INDEX

Bouvier's Law Dictionary, quoted, defining chapel, 67.

Bowman, Samuel, Bishop, Me- morial Church, 153.

Bread, bequest for supplying, 70.

Brewer, M. H. B., Methodist Mis- sion at Wascopum, Oregon, 352.

British subjects, rights protected by treaty of peace, 70.

Brockway, Rev. Albert A., rector, note on transfer, 559.

Browne, Robert, founded sect of Independents, 282.

Building, church is, under mechan- ic's lien law, 8.

Building Committee, when not personally liable, 2; when liable, 2, 3; action may be ratified by society, 3; when not liable, 14, 629; powers, 808.

Building contract, when trustees liable on, 17.

By-Laws, when property bound by subsequent alterations, 54; regu- lating elections, 234; may be modified by subsequent meeting, 235, 314; admission of member, 317; parish, 439; regulating for- feiture of pews, 455; regulating interments, sustained, 538; effect as contract, 601; power to make, 629; society's authority to make, 808; may regulate powers of trustees, 808; assessment of pew holders, 808; Universalist Church, relative to pews, 865; Universalist Chiu-ch, stock certificates, 866; fixing qualifications of voters, 870.

C

Cahfornia Missions, status, 666.

Call, minister described, 373; rela- tion to congregation, 373.

Calvin, John, Disciples establish Presbyterian Church, 482; rela- tion to Protestant reformation, 545.

Calvinists, members of German so- ciety, 276; note on, 575.

Calvinistic Baptists, ministers, scope of ordination, 374.

Cambridge Platform, cited, organ- ization of Congregational Church, 183.

Campbell, Alexander, founder of

Campbellites, 51; quoted organ- ization of church, 198.

Campbellites, congregation, powers, 51; majority, control of property, 52; division, two parties, 52.

Camp Meetings, by laws, 54; ease- ment, 54; municipal ordinance, 54; Ocean Grove Association, 54; Sunday admission fee, 55; taxa- tion of property, 55; temperance, 56; title to property, 56; traffic, limitation, 56; disturbing, 205, 213; religious worship at, 651; erection of public buildings and cottages, 729; compulsory pay- ment of admission fee violates Sunday law, 751; persons may lawfully travel by railroad on Sunday to attend, 786.

Canada, United Bretlii-en in Chiist, note on, 853.

Canon Law, authority limited, 173; instituted by apostles, 232.

Cary, Rev. George, superintendent Methodist Mission in Oregon, 352.

Cathohc Knights of Wisconsin, note on, 667.

Cayuse War, Oregon, note on, 354.

Cemetery, mechanic's lien cannot be enforced against, 8; access to lot, 58; adverse possession, 58; chm'ch yard, 59; disinterment, state control, 59; ecclesiastical jurisdiction, 60; free burial ground, 60; legislature, power to direct sale, 60; lot o^mers right, 61; mechanic's lien, 63; municipal ordinance, 63; park, taking for, 64; Roman Catholic, religious test, 64; sale, application of pro- ceeds, reinterment, 64; suicide, 65; title, lease or fee, 65; title of grantee of lot, 65; town, English rule, 65; tomb owners' right, 65; tombstone, title, 66; removal of remains, legislature may authorize, 65; may restrict interments and authorize re- moval of remains, 60, 64; injunc- tion restraining inteiference with access to lot, 283; granted to prevent sale of lot, 284; Catholic, mandamus refused for burial of Freemason, 308; bishop's title to land, 663; when land subject to taxation, 666; Roman Cathohc,

INDEX

lill

Froemason not ontillt'cl to burial in, 667; received for jirine of lot, cfTect, 668; Roman Catliolic, sui- cide not entitled to burial in, 669; New York, exempt from taxa- tion, 793.

Center College, Danville, Kentucky, question as to election of trus- tees, 483.

Central New York Diocese, Prot- estant Episcopal Church, note on, 550; legacy for, sustained, 880.

Chancel, bequest for repair sas- tained, 71.

Chapel, defined, 67; bequest for sustained, 71; Massachusetts, be- quest for in Ireland sustained, 73; Unitarian, bequest for sus- tained, 82; cannot become inde- perident of parent church, 630.

Charitable Use, defined, 68; de- scribed, 69; history, 69; benev- olent institutions, 69; bread and education, 70; Hritish corjjora- tion, how affectetl by American Revolution, 70; chapel, 71; church yard, repair of vault, 71; common law, 71; diversion, 72; donors' opinions, 72; foreign count r\', 73; Georgia, 73; hospitality not a charitable use, 73; Illinois, 74; incorporated society, 74; indef- inite, 74; limitation of, cj' pres, 75; Maine, 76; Massachu-setts, 76; masses, 76; New York, 77; Or- phan A.sjium, 77; religious read- mg, 77; religious .services, 77; Roman Catholic, clerg\'men, 80; sermons and music, 80; Shakers, 80; South Carolina. 81; Sunday school, diversion, 81; unincor- porated society, 81; Unitarian, 82; vault and tomb, repaii-s, 82; ecclesia-stical authorities to reg- ulate administration of, 128; gift for .services, sustained, 471; Cal- ifornia, gift for masses sustained, 474; bequest to Reformed Dutch Church, 585.

Charity, alteration or diversion, in- valid, 1; beneficiaries, present or future, 84; defined, 84; history, 84; discretion of trustees, 84; Di.s.senters, 85; donor's intention, 86; foreign corporation, 86; iden- tifying beneficiary, 87; indefinite,

87; Irving .society, 87; Parlia- mentarj' restriction, 88; poor 88; principles universal, 88; reUgious exerci-ses and .self-denial, 89; re- ligious instruction, 89; trustees to account, 90; uncertainty, free churches, 90; unincorporated so- ciety, 90; Spiritualists, sustained, 730; bequest for care of cemetery lots invalid, 827.

Charles V, Emperor of Germany, beginning of Protestantism, 545.

Charters and General Laws of Massachusetts, cited, organiza- tion of Congregational churches, 182.

Chesterfield Preparative Meeting, Friends, note on, 264.

Children, poor, bequest for, 75; ward, religious education, 281; entitled to be instructed in re- ligion of parents, 590; parental neglect, note on, 597; as members of corporation, 610; parental duty as to rights of conscience, 622; neglecting to furnish medical aid for, 649; child as witness, 895.

Christ, Jesas, all Clu-istians believe in him, 98; believers constitute church, 108.

Clu-ist Church, New York, formed from Trinity Church, 304.

Christian, defined, 97, 98; general chissification, 97.

Clu-ist ian Catholic Apostolic Church of Zion, founded by John Alex- ander Dowie, 148.

Christian Church, formed from divi- si<m of Campbellites, .52; organ- ization, 92; form of government, 93; changing doctrine, 93; Church of Christ, 94; division, effect on property rights, 94; incorpora- tion, effect, 95; officers constitute corporation, 96; unincorporated society, 96; when entitled to use pro pert V owned by other socie- ties, 530.

Christianity, Christian, defined, 97; blasphemy, 98; England, 98; law of the land, 98; Massachusetts, 99; nation, 99; New York, 99; Ohio, 100; Pennsylvania, 100; scope of influence, 100; part of common law, 113; synonymous

912

INDEX

with gospel, 277; teufliing not prohibited in Girard College, .594.

Christian Missionary Society, be- quest sustained, 102.

Christian Science, described, 103; expulsion of members, 103; healer, knowledge required, 103; medical attendance, religious belief, 103; Missouri constitution, 104; Penn- sylvania constitution, 104; Sun- day school treasurer, 105.

Christmas Festival, not a meeting for worship, 201; when a re- ligious service, 201.

Church, defined, 106; Universal and Particular, 108; authority over members, 108; chm-ch purpose, 109; church, separate from so- ciety, 109; classification, 109; Congregational, defined, 109; con- secration, 110; creed and polity, 110; discipline, subordinate to state law, 110; division, 110; doctrinal controversy, 111; ele- ments, 112; expulsion of members, 112; extinct, what constitutes, 112; house of worship, 112; incor- poration, effect, 113; independ- ence, 113; lecture room, 113; legislative power, 113; liquor tax law, 114; majority, power, 114; merger, 115; minister, liability for libel, 115; organic law, 115; property, beneficiaries, 116; rela- tion to congi'egation, 116; rules and regulations, effect, 116; sew- ing circle, 117; temporalities de- fined, 117; territorial limitation, 117; union, 117; Virginia, cannot be incorporated, 117; who con- stitute, 117, 645; building used for social gatherings, effect, 113; differs from parish, 181; juris- diction over belief of members, 223; Scotland, Kirk, status of, 230, when doctrines may not be changed, 253; equality of mem- bers, 318; relation to corporation, 321; separation from state, 326; investigations, when not binding on civil courts, 341; should sup- port religious teachers, 399; when cannot be consolidated with an- other denomination, 584, 600; relation to state, 590; members oi-iginally had exclusive right of

suffrage, 591; may not contract for excursion, 602; denomina- tional character, 604; when not liable in damages for injiuy I'eceived by employee, 607; jiroji- erty liable to assessment for local improvements, 613; compulsory attendance prohibited, 625; may change denominational relations, 630; when minority controls, 636; freedom of organization, 637; individual rights, 638; members, when individually liable for debts, 641; self government, 642; sep- aration, effect, 642; threefold aspect, 643; withdrawal, effect, 645; secession, when an abandon- ment, 695; when seceders cannot make independent church, 698; property, sacred character of, protected by barbarians, 682; when may not separate from general organization, 705; corpor- ate securities, subject to taxation, 794; property, exemption, New Hampshire rule, 796; property used for other purposes, when not taxable, 799, 851; trustees, ap- pointment by minister, 807; early history, when to be examined by com-t, 831; dissolution, effect on legacy, 879; when may invoke aid of com-t to compel perform- ance of promise to make will, 891.

Chm-ch Edifice, proper place of public worship, 116; defined, 119; not subject to execution, 119; when may be closed, 119; meeting house, lease of, 436; may be removed without court order, 535, 538, 540; when meeting house cannot be taken in execution, 641 ; used for othei- purpose, when may not be taxed, 7;99, 851.

Church of Christ, formed from division of Campbellites, 52; deed for benefit of. sustained, 94; en- titled to benefit of trust, 826.

Church of England, trust for prop- agating doctrines in Scotland partly invalid, 88; clergymen, regular defined, 120; clergymen, neglect of duty, 120; communion, 120; estabhshed church, 121; evil liver, 122; Maryland, 122; min- ister cannot refuse to bury child

INDEX

1)13

of a dissenter, 122; not a cor- poiation, 122; Quaker not bound to accept office of church warden, 123; sacrament, who may take, 123; King, head of, 222; parish, 433; rule as to pews, 461; prayers for the dead not prohibited, 476; institution of clergymen, defined, 563; advowson, note on, bequest invalid, 825.

Church of (jod at Harrisburg, his- tory and form of government, 124.

(^liui-ch of the Lady of the Lake, entitled to legacy, 880.

Chiuch Wardens, Cluistian Church, ])art of corporation, d't; Quaker not bound to accept office of, 123, 266; account, spiritual court can- not settle, 126; business powers limited, 126; ecclesiastical powers, 126; moral guardians, 126; Eng- land, account cannot be settled by church judicatory, 229; elec- tion of, rector may be required to recognize, 240; distribution and control of pews, 447, 454, 460; Protestant Episcopal Church, sta- tus, 571; may preserve order at religious service, 654; Louisiana, are legal owners of property, 673.

Churchyard, burial in, 50.

Civil Courts, flccline to expre.ss opinion on differences among CampbcUites, 52; .secular courts nuist respect regulations and cu.s- toms of chiuch, 113; charitable use, 128; church arbitration con- clusive, 128; church judicatories, limits of judicial revi(nv, 133; civil rights only, 138; church judicatories, when action final, 128; consolidation of churches, 144; constitution of church, 142; cretnl, 142; criterion, 142; Cum- berland Presbyterian Church, 143; divei-sion of church funds, 144; tiiversion of propertj', 144; doc- trine, 145; Dowie's successor, 148; ecclesiastical questions, 148; elec- tions, 149; expulsion of members, 150; Friends, form of government, 151; heresj', 151; judicial notice, 152; jurisdiction, true rule, 152; jurisdiction, 1.53; members, sta-

tus, 154; minister, 155; non- interference, 156; officers, powers, 156; property rights, three classes, 157; property rights, 157; Prot- estant Episcopal vestry, 158; Quakers, who arc overseers, 158; rehgious questions, 158; resulting trust, beneficiaries, 162; salary, pajonent cannot be enforced, 162; schism, 162; separation, 163; temporahties, 163; trusts, 103; I'^nited Brethren in Christ, 165; worship and doctrine, 166; no control over election of deacons, 196; no jurisdiction over questions of doctrine, 215; may determine whether church tribunal is legally constituted, 229; jurisdiction, gen- eral rule, 285; cannot determine question as to confession of sins, 300; cannot determine question of church membership, 319; cannot determine question relative to forms of worship, 302; jurisdictif)n over question of expulsion, 322; when con.solidation of churches binding on, 339; church investi- gations not binding on, 341; no jurisdiction of question as to propriety of excommunication of priest, 387; no jm-ischction of question of removal of pastor, 308; rule as to disorganized so- cieties, effect of division, 527; cannot determine questions of doctrine, 619; no jurisdiction to determine proj^riety of priest's expulsion, 679.

Clarke and Erskine CoUege, trust sjustained, 832.

Clarkson's Portraiture of Quaker- ism, quoted, 260.

Classis, German Reformed Chm-ch, 273; examination of candidates for ministry, 380; supervision of ministers, 380; Reformed Dutch Church, 579, 583; classis of 1822, 580.

ClergjTnan. See Pastor, Priest, Min- ister; Church of England, 120; who mav prosecute for neglect of duty, 120.

Clock, injunction restraining strik- ing of, 40.

Coal, action for digging and re- moving, 17.

914

INDEX

Coke, Sir Edward, describes place of worship, 113.

Colson, Frederick D., Librarian New York State Law Library, acknowledgments to, v.

Columbia Conference, appoints trustees of Corvallis College, 364.

Committee, tenm-e, 431, 432; gen- eral powers, 631; action against, 731; when agents of subscribers, 734.

Common Law, applicable to trusts in Pennsylvania, 70 ; apphcable to chai'itable uses in Pennsylvania, 71; Vermont, bequest for chari- table uses invalid, 81 ; Christianity in New York, 99; Ohio, status of Christianity, 100; Pennsylvania, Christianity in, 100; Christianity a part of, 113; church open to all parishioners, 116; Church of Eng- land not a corporation under, 122; disturbing religious meeting, 202; King head of church, 222; ecclesi- astical law and courts part of, 222; quorum at corporate meet- ing, 31'6.

Communion, Church of England, 120.

Community Societies, Am ana So- ciety, 167; Harmony Society, organization, 168; Jehovah Pres- bytery of Zion, Preparation, Iowa, 171; Oneida Community, 171; Order of St. Benedict, 172; Separatists, 173; Shakers, 175.

Compromise, members may settle suit, 3.

Concordat, defined, 677.

Concord Female Charitable Society, bequest sustained, 832.

Confession of Faith, Cumberland Presbyterian Church, alteration sustained, 143; defined, 176; Westminster, Cumberland Pres- byterian Church dissents from, 190.

Congregation, Baptist, sole legis- lative and judicial body of church, 32; Baptist, control of property, 37 ; CampbeUite, powers and func- tions, 51; relation of church to, 116; public, defined, 177; defined, 177; government, 178; Cumber- land Presbyterian Church repre-

sentation in session, 194; tem- poral affairs not subject to church judicatory, 229; when vicar may not adjourn meeting, 234; cor- porate meeting, when not affected by society meeting at same time and place, 239; Greek Church no power to choose priest, 279; right to control religious services in church, 287; Lutheran, powers and functions, 301; exclusive power to admit or exclude mem- bers, 318; call of minister, 373; Presbyterian Church, powers, 484; Presbyterian Church, calling a minister, 499; Protestant, defined, 545; Reformed Dutch Chiu-ch, right to withdi-aw, 581; relation to corporation, 631; division, ef- fect, 632; union with another denomination, effect, 645; usage as to religious worship, 655; when may control property held by bishop, 664, 665; Roman Cath- olic, relation to church, 669; authority over property, 822; trust* invalid for part only of members, 834.

Congregational Church, minister, bequest of income for, 72; Dem- ocratical in character, 109; def- inition, 179; described, 180; organization, general principles, 183; advisory councils, 183; dea- cons, status, 183; Home Mis- sionary Society, 183; minister, mode of settlement, 184; minister, contract of settlement, 184, 376; missions, 185; platform, 185; repubhcan government, 185; Say- brook platform, 185; each church independent, 180; origin of asso- ciations, 180; deacons are a corporation, 181; method of se- lecting minister, 181, 398; legal character of, 181; local society independent, 185; minister, when exempt from taxation, 400; min- ister, new to-wn, status, 438; societies, how composed, 632; majority may control, 696.

Congi'egational Home Missionary Society, entitled to receive be- quest to American Home Mis- sionary Society, 184.

Congregationalists, in England same

INDEX

915

as Independents, 179; separation from Presbyterians and other sects, 179; Scriptures only stand- ard and test of religious truth, 179; origin from Independents, 282; early association with Pres- byterians, 483.

Connecticut, bequest for religious services and charitable use, 77; religious toleration, 647; towTis, support of public worship, 800.

Conscience, rights of, constitutional establishment in Massachusetts, 99; government no control of, 100; rights of, not violated by law restricting practice of med- icine, 103; right inalienable, 187; rule, 188; cannot be coerced, 624; Sunday observance, freedom of, 757.

Consistory, German Reformed Church, 273; power of expulsion hmited, 319; Reformed Dutch Church, 579, 581, 583.

ConsoHdation, churches, when may be set aside, 293, 601; three Methodist Episcopal churches, sustained, 142, 339, 342; Presby- terian Church, when invalid, 484; power limited, 600; when in- valid, 633; when societies in different denominations may not consolidate, 821.

Constant ine, Emperor, law relating to church property, 682.

Constitution, Massachusetts, limita- tion on action for ministers' salary, 10; Baptist Church has none, 33; Michigan, when Bible readings do" not violate, 44; Pennsylvania, reading Bible in schooT^no violation of, 45; Ohio, does not prevent or require read- ing rehgious books in schools, 45; Wisqpnsin. reading Bible in schools a violation of, 45; A^nssa- chusetts, statute prohibiting "blas- phemy not repugnant to, 49; does not prevent amending char- ter and altering trust, 84; har- mony with Bible, 101 ; Missouri, refusing charter of CEristian Science Society, 104; national and State binding on church, 116; acquiescence of church for fifty years conclusive on courts, 142;

of church recognized by civil coiu"ts, 142; right of conscience inalienable, 187; church, defined, effect, 189; statutes against dis- tm-bing meetings sustained, 214; Friends, no provision for decision on basis of numbers, 261 ; adopted by Methodist Episcopal Church, 334; Norwegian Evangelical Lu- theran Church, 426; Presbyterian Church, adopted, 481; Presby- terian Church, general assembly subject to limitations, 491; Wis- consin, will requiring legatee to attend church, sustained, 619; religious society, limited charac- ter, 634; Missouri, Westminster College act did not violate, 514; Reformed Dutch Church, 579, 585; United States relation to religious questions, 592, 625; Ohio, insures religious freedom, 595; constitution and by laws make contract, 601; Pennsyl- vania, religious freedom, 623; Iowa, use of Bible in schools, 713; Kansas, when religious exer- cises in school do not constitute religious worship, 713; Nevada, sectarian defined, 714; Nebraska, what constitutes religious worship, 714; Ohio, note on religious instruction in schools, 714; Kentucky, when prayer not sectarian instruction, 715; South Dakota, sectarian aid pro- hibited, 716; Texas, sectarian aid prohibited, 717; Wisconsin, sec- tarian instruction prohibited, 718; Massachusetts, Shakers, religious freedom, 722; when restrictions on Sunday barbering, unconstitu- tional, 747; South Carolina, mu- nicipal o r d i n a n ces regulating Sabbath observance, valid, 768; Maryland, Kentucky and Texas, Simday observance statute, sus- tained, 782; California, Sunday laws unconstitutional, 783; Geor- gia, exemption of church property from taxation, valid, 794; Illinois, taxation for local improvements, exemption unconstitutional, 794; New Hampshire, exemption of church property, 796; Kentucky, when parsonage exempt from

dk;

INDEX

taxation, 796; Illinois, when par- sonage not exempt from taxation, 797; United Brethren in Christ, 857; limitation of devise for religious purposes, 877; United States privileges and immunities of citizens, foreign beneficiaries under will, 879.

Contract, minister, laws of denom- ination presumed to be included, 374; limitations on religious cor- porations, 602; note on, 634; liability of bishop on, 661; con- ditional, 732; United Brethren in Christ, relation of members to association, 861.

Contribution, as basis of right to vote, 868, 871.

Convention, Baptist, powers and functions, 33.

Corporation, may sue members, 4; may sue trustees, 4; may recover damages against railroad com- pany for disturbing religious services, 4; chm'ch, distinct from society, 107, 112; Church of England not a, 122; who are members of, 154; Congregational Church, deacons constitute, 181; relation to society, cannot expel member, 321; corporators cannot regulate services, 342; foreign, not subject to New York law as to sale of property, 540; no power to exj)el member of society, 609, 610; reorganization, effect, 610; i-elation to church, 610; as trus- tee, when may execute trust, 614; who constitute, 615; relation to congregation, 631; dissolution, notes on, 636; organization, sub- stantial compliance with law, 637; changing name, 640; reincorpora- tion, identity, 641; validity of organization may be questioned in action on subscription, 733; may receive property in trust, 828; limitation of property, how question determined, 906.

Corvallis College, Oregon, note on, 364.

Council, Baptist, described, 33; in early church, settled doctrinal controversies. 111; advisory. Con- gregational Chvu-ch, 183.

Courts, ancient Hebrew Courts sat

on the Sabbath, 758; charging jury on Sunday unlawful, 758; early Chi'istian custom as to courts on the Sabbath, 759; New York City magistrates may sit on Sunday, 759.

Cowdery, Oliver, minor children receive title to land in Inde- pendence, Missouri, 410.

Cranmer, Thomas, Archbishop, re- lation to Protestant reformation, 545.

Crawford, Rev., minister Reformed Presbyterian Church, 587.

Creed, Baptist, described, 32; Campbellites, Bible only, 51; relation to church, 110; Bible only. Church of God at Harris- bm-g, 124; civil courts will not settle differences, 142; Friends, defined, 261; Mormon, 407

Crofts, George D., Librarian Buffalo Law Library, acknowledgments to, vi.

Cuba, Spanish appropriations for support of church in, 685.

Cumberland Presbyterian Church, altering confession of faith, sus- tained, union with Presbyterian Church, 143; history, 190; com-ts, 191; general assembly, 192; gen- eral assembly, powers, 192; name, doctrines, etc., how changed, 193; Presbytery, 193; session, 194; synod, 194; unincorporated so- ciety, liability, 194; union with Presbyterian Church, 194; dissent, from Westminster Confession of Faith, 190; points of difference, 190; general assembly formed, 191; membership, 1906, 191; union with regular Presbyterian 'Church, 191, 194; courts, notes on jurisdiction, 192; doctrine, how changed, 193; Presbytery, how constituted, 193; .synod, how constituted, 194.

Curate, Legislature cannot deter- mine what constitutes, 126; sta- tus, 550.

Cuthbert, Katherine L., Assistant Librarian Buffalo Law Library, acknowledgments to, vi.

Cy Pres, applying rule, of to char- 'itable bequests, 76, 86, 88; altering terms of trust, 83.

INDEX

917

D

Dalles, Methodist mission at, 351.

Damages, may be recovered against railroad company for disturbing religious services, but not for depreciation in value of church property, 4; individual member may not recover damages for disturbing him while attending religious service, 4, 202; rector, deposition, no action for, 15; when society not liable for injury received by employee, 607; mem- ber expelled, no claim against corporation, 009; when bishop not liable for, 060.

Davies, Henry Vj. Judge, .John Street Church case, '.i-M.

Deacons, Bajjtist Church, 196; ecclesiastical officer, 190; courts no control over election of, 196; when not hable on building con- tract, 3; Shakers, may maintain action for trespass, Iti; oflicc^rs in Baptist Church, 36; Cluistian Chui'ch, part of cori)oration, 95; Christian Church, powers and functions of, 93; when they con- stitute the corporation, 111; Church of God at Harrisburg, 124; when vahdity of election not subject to inquiry bj- c-ivii courts, 149; Congregational Church, constitute corporation, 181, but see page 183; promissory note, when void, 183; Methodi.st Episcopal Church, status, 391; included in term minister imder tax law, 300; Shakers, not to be sued for coumi unity property, 719; Shakens, action by, 721; Shakers, election and duties, 725.

Debts, when chm-ch property liable for, 5 ; when members individualh' liable for, 8; when judgment against trustees for not a lien on property, 17; when members not liable for, 603; reimburse- ment, 604; dissenters liable lae- fore withdra\\'al, 634; when mem- bers individually liable for, 641.

Decatm', Illinois, report of union of Presbjierian churches adopted at, 191.

Declaration and Testimony, Pres-

byterian Church, general assem- bly noted, 131; Presbyterian Church, character and effect, 486.

Dedication, see property, 523; for house of worship, sustained, 829.

Deed, conveyance to trustees is conveyance to society, 5; action to reform, 15; of burial lot, effect, 63; of vault or burial lot, title of purchaser, 65; when presumed, 634.

Denomination, defined, 197; con- tract with minister, rules pre- sumed, to be included in, 374; use of property, 524, 527; when chiu-ches in different denomina- tions may not consolidate, 584, 600; character of corporation, 604; society may change relations, 630; based on religioas belief, 635; union with another, effect, 645, 696; changing relations, effect, 696; limitation and ase of prop- erty in triLst, 829, 830; when may ptescribe qualifications of voters, 870.

Des Moines Annual Conference Evangelical Association, action concerning bishops, 243.

Dickson Coimty, T(>nnessee, Cum- berland Presbyterian Church or- ganized in, 190.

Diocese, Protestant Episcopal Church described, 550, 552.

Disciples of Christ, government, 198; meeting, powers of minority, 198.

Discipline, Evangelical Association, 242, 244; German Reformed Church, 274; Methodist Chm-ch of Canada, 331; ]\Iethodist Epis- copal Chm-ch, 334; Methodist Episcopal Chm-ch, consolidation of societies, bishop's power, 339; Methodist Episcopal Chm-ch property to be held in trust, 355; Methodist Episcopal Church, South, 361; Methodist Episcopal Church, South, publishing hoase, 369 ; Methodist Protestant Chm-ch, trustees of local society, 371; ^lethodist Episcopal -Church subordinate to State Law, 605; binding on society, 636; United Brethren in Christ, when formu-

!M.S

INDEX

lated, 857; Wesleyan Methodist, 874.

Dissenters, Lady Hewley's charity for, 85; bequest for, 86; Church of England cannot refuse to buiy, 122; England, 199.

Disturbing Religious Meeting, as- sembly, what constitutes, 200; camp gi'ound, traffic, 201; Chi'ist- mas festival, 201; Christmas tree celebration, 201 ; chui-ch trial, 201 ; common law, 202; conduct, 202; damages, not recoverable, 202; decorum required, 202; defined, 202; described, 203; dispersion of congregation, 203; evidence, 205; extent, 208; extent, one person, 208; father removing child, 208; fighting, 209; grantor preventing occupancy of property, 209; in- tention, 209; interruption by ex- pelled member, 209; intoxicating Mquor, 209; intoxication, 210; meeting prevented, 211; motive, 211 ; patrolman's unreasonable in- terference, 211; preaching by rival, 211; protest against min- ister, 211; removal of distiu'ber, 212, 654; riot, 213; Salvation Army, 213; scope of statute, 213; singing, 213; singing by choir, 214; statutes constitutional, 214; simimary conviction, 214; Sunday school, 214; individual member of congregation cannot recover damages for, 429; disturber may be removed, 569 ; what constitutes meeting for religious service, 652; preserving order at, 653.

Doctrine, civil courts no jurisdic- tion, 147, 215; how ascertained, 215; predestination, 215; occasion of religious controversies. 111; church speaks for itself, 145 ; new, effect of, 147; judgment of church judicatui'e conclusive, 148; when may not be altered, 159; courts will not inquire into questions relating to, 166; Cumberland Presbyterian Church, how changed, 193; jurisdiction of church over, 223; Arminius noted, 250; when church may not change, 253; when pew owners cannot decide what shall be preached, 452; abandoning, ef-

fect on property, 521, 523, 524, 526; deviation in, effect on trust, 586; civil courts no jurisdiction over, 619, 627; change of, effect on property rights, 630; when change does not affect status of society, 636; society may control, 637 ; change of, may forfeit legacy, 885; when testator's religious opinions maj^ be considered in construing will, 888.

Domestic and Foreign Mission- ary Society, Protestant Episcopal Church, note on, 550, 553.

Donor's Opinions, when considered in construing will, 72, 77.

Dordrecht, Synod of, note on, 580.

Dowieism, leadership, question of succession, 216; religious belief as excuse for parental neglect, 216.

Dowie, John Alexander, successor, civil courts decline to determine, 148; founder of sect, 216.

Drew Theological Seminary, be- quest sustained, 69, 344; educa- tion of ministers, 380.

Drum, beating of in streets, when may be prohibited, 621, 691; beating not an act of worship, 691.

Dubs, Rudolph, Bishop, Evangel- ical Association, suspended and reelected, 243.

Dunkers, deed, license, trust, 217; separation, effect, 697.

Dunkirk, N. Y., Presbyterian Church at, note on, 377.

Dutch Reformed Chm-ch of Hol- land, deacons, election, when court will not inquire into, 149.

E

Easement, for camp meeting, when perpetual, 54; church yard used for burial, 59.

East Pennsylvania Annual Confer- ence, Evangelical Association, designates Philadelphia as meet- ing place of General Conference, 246.

Ecclesiastical Council, defined, 219; described, 219; minister, change of religious tenets, 219; when called to consider change of miu-

INDEX

DID

ister's belief, 374; practice rel- ative to call of, 379; when no jurisdiction to excoinniiinicatc minister, 387.

Ecclesiastical Courts, arbitrary pro- ceedings, 221; denominational rules, 222; ecclesiastical question, defined, 222; England, 222; Eng- land, jm-isdiction, 223; Friends, 223; judges, should be impartial, 223; judgment, effect, 224; judg- ment, how enforced, 226; judg- ment, when binding on civil courts, 227; judgment, when con- clusive, 227; jiuisdiction, general rule, 227; jurisdiction, when ex- clusive, 227; Legislatm-e, jui-is- diction, 228; mandanms, 228; members, trial, 228; object and purpose, 229; pew holder's right, 229; power limited, 229; power, necessity of limitation, 229; Scot- land, 230; secret investigations, 230; state not bound bv decision, 230; Vermont, 231. "

Ecclesiastical Law, origin, 232; sub- ordinate to civil law, 232; part of common law, 222; decisions of ecclesiastical courts, 230; English, basis of Protestant Episcopal Church system, 551.

Eddy, Mary Baker G., author of Science and Health, 105.

Education, defined, 44; bequest for, 70, 71; religious reading, bequest for, 77; charit}- for, valid, 84; of yoimg men for ministry, 85; poor children, trust for, too indefinite, 87; for instruction of Baptist young men, void, 90; minister, defined, 380.

Ejectment, action against minister occupying parsonage, 5; right of action, 5; trustees of unincor- porated society cannot main- tain, 6.

Elders, Clu'istian Chmxh, powers and functions of, 94; Church of God at Harrisbiu-g, 124.

Eldership, Church of God at Harrisburg, general and local, powers and functions, 124.

Eldon, Lord, ruling as to dissenters, noted, 199.

Election, Doctrine of, schism caused by discussion, 428.

Elections, adjournment, 233; bvu- den of proof, 234; by laws, 234; certificate cannot be modified, 234; hand vote, 235; illegal votes, 235; mandamus, requiring notice, 235; meeting, justice may call, 235; method, congregation may regulate, 235; nominations, 236; notice, 236; place, 236; presiding officers, 236; referee, 237; regular- ity, qualifications of voters, 237; rescinding vote, 238; silence, ef- fect, 238, 316; validity, notice, 239; vahdity, other meeting at same time, 239; voter, right can- not be reconsidered, 240; when recejition of illegal votes does not vitiate election, 238; special, when may be ordered, 6, 237, 311; comt may supervise, and order special election, 6; when civil courts will inquire into, 149; Protestant Episcopal Church, rec- tor's authorit}', 551.

Elizabeth, Queen, England, estab- lished church in reign of, 592.

Elizabeth, Statute of, scope and apphcation, 69; not in force in Pennsylvania, 70; Georgia, trusts enforced without statute, 73; in force in Illinois, 74; when be- quest cannot be sustained with- out, 75; in force in Maine, 76; not in force in New York, 77; not adopted in South Carolina, 81.

Emerson, Ralph Waldo, writings of used as text of sermon by Fran- cis E. Abbott, 850.

Encyclopedia of Religious Kiiowl- edge, quoted, 97.

England, ecclesiastical law and coiu-t, defined, 222; jurisdiction of ecclesiastical courts, 223; re- ligious toleration act, 592.

England, John, Bishop, bequest in trust for Ursuline Commimity, sustained, 893.

Estabhshed Church, Church of England, 121; in Maryland, 122; Legislatm-e cannot take any ac- tion to form one, 126.

Evangefical Association, minister's right to compensation a property right, 1 1 ; Zion Church, Bay City, Michigan, note on, 382; history

1)20

INDEX

and form of govonimcnl , 1241; organization, 243 ; descript ion, 244; division of i)roperty, effect, 245; expulsion of member termi- nates office, 245; General Con- ference, plac(> (jf meeting, 246; minister, power of appointment, 247; secession, when seceders can- not control property, 247; bishops deposed, 242.

Evangelical Association of North America, General Conference of 1891, appointment a church ques- tion only, 135; note on, 243.

Evangelical Baptist Benevolent and Missionary Society, bequest sus- tained, 36.

Evangelical Lutheran, historical sketch, 249; division of society, effect on projierty rights, 249.

Evangelical Lutherans, pastoi- must be member of synod, 9; historv noted, 297.

Evangelical Lutheran Seminary, be- quest to, 80.

Elvidence, election of trustees, bur- den of proof, 234.

Ewing, Finis, one of the founders of C u m b e r 1 a n d Piesbvt erian Church, 190.

Excm-sion, church may n(jt make contract for, 602.

E.xecution, when church may not be taken on, 119.

Expulsion, of member, when court \\ill not consider regularity of, 34, 150; of minority by majority sustained, 148, 154; court will not determine who ought to be members, 150; when void, 151; Shakers, no action for damages by expelled member, 721.

Fenwick, John, Bishop, method of

taking oath as witness, 904. Ferdinand, King of Spain, head of

Catholic ChiU'ch in American

possessions, 087. Fink's Asylum, note on, 546. Fixture, church bell a, 39. Forcible Entry and Detainer, action

for, 6; action must be in name

of corporation, 6, 812. Foreign Corporation, when may

take under West .Virginia will, 86.

Fox, George, followers called Quak- ers, 262.

PVanconia Conference, Mennonites, note on, 329.

Free Baptist Clnu'ch, creed, 250; property, when transfer to regular Baptist chiu'cli invalid, 250.

P'ree Church of Scotland, organiza- tion noted, 199; organization, 252; diversion of property, 252; minor- ity's right, 253; union did not affect freedom of private opinion, 254; see note on Free Portuguese Church, 487.

Freedmen, defined, 87; bequest for, too indefinite, 87.

Freemason, when not entitled to biu'ial in Roman Catholic cem- etery, 64, 308, 667.

Free Portuguese Church, note on, 487.

Friends, organization and methods of business considered by com-t, 152; history, 255; three groups, 256; described, 257; business, how transacted, 260; creed, 261; Ohio Quarterly Meeting, 261; Philadel- phia Yearly Meeting, 262; Pre- parative meeting, onlj' one regu- lar, 264; affirmation, 265; division of society, effect, presiding officer, 265; exempted from military duty, 266; meetings, 266; office, when not bound to accept, 266; title, not forfeited by removal of building, 267 ; unincorporated, clerk, status and powers, 265; declaration of religious toleration, ()50; when legacy to Yearly Meet- ing invalid, 886.

Friendship Liberal League, descrip- tion, 268.

Fugitive Slaves, trust providing for care of, 84.

G

General Assembly, A.ssociate Re- formed Church, 25; Presbyterian Chm'ch, organic law, 115; Presby- terian Church political deliver- ances, 131, 499; Presbyterian Chm-ch, action relative to union with Cumberland Church, sus- tained, 143; Cumberland Presby-

INDEX

921

terian Church, formed, 191 ; powers, 192; Scotch Chui-ch, powers considered, 230; Free Church of Scotland, 252; Presby- terian Chui-ch, board of erection fund, IIG; Presbyterian Church described, 482, 489; Presbyterian Church, action on Declaration and Testimony, 486; Presbyterian Church, division at outbreak of Civil ■\\'ar, 489; Presbyterian Church, declarations concerning slavery, 510.

General Conference, M e t h o d i s t Church of Canada, 331; ]\Iethod- ist Episcopal Church, original, 334; 1844, power to divide cluux-h, 343, 345; Methodist Episeo))al Church, South, 301; Methodist Protestant Church, authority over extinct churches, 370; Wesleyan Methodist, 875; Evangelical Asso- ciation, 241, 240; United Brethren in Christ, 855, 857.

General Council, Lutheran, note on, 289.

General Convention, Protestant Episcopal Church, membership, 552; Universalist ("hurch, New York corporation, 8()5.

General Synod, German Reformed Church, 273.

George I, England, established church in reign of, 592.

CJeorgia, trusts enforced without statut(> of Elizabeth, 73; powers of trustees, 817.

CJeorgia Conference, Methodist Episcopal Church, South, rela- tion to Anchew chapel, 367.

German Baptists. See Dunkers.

German Evangelical L u t h e r a n Church, diversion of propertv, 269.

German Evangelicals, historv noted, 297.

Cierman Evangelical Synod of North America, projierty, sep- aration, injvmction, 271.

German Reformed Chiu-ch. descii]}- tion, 273; dissolving relation to classis, effect, 273; joint title, division, effect, 274; judicatories, 274.

Gemian Societv, Washington, D. C, 276. •

Girai'd College case, notes on, 593.

Girard, Stephen, will establishing college, 593.

Glebe Land, note on, 551.

Godly Widows, defined, 85.

Gordon, Patrick, Governor of Penn- sylvania, informs council of erec- tion of Roman Catholic Church in Philadelphia, 076.

Gospel, defined, 277.

Greek Chm-ch, comi)arison with other Catholic chm-ches, 278; diversion of property, 278; priest, appointment and removal, 279.

Griffin, Marguerite E., author's reader and stenographer, acknowl- edgments to, V.

Griswold College, note on, 552.

Guardian, removal on change of religious faith, 280; ward's reU- gious education, 281, 590; holds offic(> of tru.st, 623.

Guild, building subject to control of vestry, 553.

H

Hardwicke, Lord Chancellor, de- cision on Quaker's right of affirmation, 265.

Harmony Society, organization and phin of government, 168, 169, 170.

Ilarrisburg, Church of God at, note on, 124.

Heidelberg Catechism, noted, 273; described, 546.

Heidelberg Confession (See Heidel- berg Catechism), note on, 575.

Hemy II, England, confirms early canons prohibiting judicial pro- ceedings on the Sabbath, 759.

Heresy-, law knows no, 151, 618 647; minister adopting, forfeits rights, 388.

Hewley, Lady, charity for dissent- ers, 85.

Hicks, Ellas, Friends, promin("nt part in dividing society, 256.

High on Injunctions, cited, ecclesi- astical question, 285.

Hillsborough School, trust for, void for uncertainty, 87.

Hinman, Alanson, at Oregon mis- sion, 354.

History of Latin Christianity, Mil- man, quoted, 682.

922

INDEX

Hoffman's Ecclesiastical Law, cited,

322. Hospitality, not a charitable use, 73. Hoyle Meeting, Friends, note on,

262. Hus, John, relation to Protestant

reformation, 545.

Iceland, Lutherans, doctrines and customs derived from, 302.

Iliad, use in schools, 45.

Illinois, trustees must sue or de- fend for society, 18; statute of Elizabeth in force in, 74; bequest for charitable use valid, 81; rule as to property held bj' local society, 529; status of organized religious societies, 637; rule as to actions by corporation, 806.

Ilhnois Industrial School for Girls, status, 710.

Illinois Orphans' Home, note on, 491.

Illinois, Preachers' Aid Society, be- quest for, 345.

Incorporated Society, bequest for charitable uses, 74.

Independents, in England same as Congregationalists, 179; defini- tion, 282.

Indianapolis, Indiana, Evangelical Association, General Conference, meeting, 1891, 242, 246.

Indians, bequest for benefit of sustained, 71; missions, bequest for, 74; missions among, 351; re- lation to California missions, 666.

Injunction, when cannot be granted in action to restrain use of in- strumental music, 18; pastor excluded from office, restrained from further official acts, 32; restraining ringing of churrli bells, 39, 40; restraining striking of clock, 40; not proper remedy to determine title to property, 56; restraining expulsion of mem- ber of Chi'istian Science Society', 103; pastor deposed, restrained from occupying church property, 155; trial of member, restraining tribunal not legally constituted, 229; granted to restrain transfer of property from Free Baptist to

Regular Baptist Church, 250; re- straining transfer of property of Free Church of Scotland, 253; restraining majority from divert- ing property, 272; gi-anted to prevent transfer of property to Orthodox Greek Catholic Russian Church, 278; Alaska, Lutheran property, granted restraining erection of building by unauthor- ized claimants, 299; baptism, use of stream for, 283; cemetery, obstructing access to lot, 283; cemetery, removal of bodies, 284; diversion of property, 284; ecclesi- astical bodies, 285; expulsion of members, 285; lease, 286; mem- bers, interfering with trustees, 286; minister, dissolving relations, 287; members, interfering with property, 286; minister's occu- pancy of church, 287; minister, restraining call, 290; pews, re- arranging, 290; priest, restraining exercise of functions, 291; re- moval of building, 291 ; restrain- ing increase of salary, 291; sale of property, 291; use of building, 292; denied in action relating to confession of sins, 300; denied restraining trustees from regulat- ing services in Lutheran churches, 302; denied to reinstate pastor excluded by majority, 303; not granted to restrain church from employing another pastor, 382; granted to restrain trustees from preventing use of chm"ch by pas- tor, 383; granted to minority to restrain improper use of church by majority, 387; denied restrain- ing change of pews, 447; denied restraining repairs to building, 462; granted restraining collec- tion of debt against pastor, 500; restraining exclusive use of church edifice by society primarily en- titled thereto, 531; restraining minority from occupying prop- erty, 532; denied restraining transfer of property, 558; denied restraining vestry from removing rector, 564; granted restraining minister who has deviated in doctrine from occupying pulpit, 584; bishop restrained from pro-

INDEX

923

feeding against a priest pending an appeal, 660; granted restrain- ing burial of suicide in Catholic cemeterj', 668; granted restrain- ing the closing of a church, 670; granted restraining interference with plaintiffs' title after seces- sion, 699; granted restraining in- terference with church property, 700; granted to restrain trustees from diverting property, 810; granted to restrain use of church by minister who has changed his religious opinions, 811; granted restraining interference with trus- tees in their possession of prop- erty, 822; denied restraining irregular trustees from control of property, 823.

Inspiration, Bible, notes on, 41.

Institution, of dcrgjTnen, defined, 563.

Iowa, Bible reading in schools, note, 713.

Iowa Diocese, note on, 5.53.

Ireland, chapel in, mji.s.ses, bequest for sustained, 73.

Irving, Edward, church founded by. 88.

Irving Society, cluuit}- for su.s- tained, 87.

Isabella, Queen (jf Spain, head of Catholic Church in American possessions, 687.

Jehovah Presbytery of Zion, Prepa- ration, Iowa, noted, 170; founded by Charles B. Thomp.son, 411; sketch of, 411.

Jerome, relation to Protestant ref- ormation, 545.

Jesuit Order, see Loyola and society of Jesus, 672.

Jews, cemetery, right of disinter- ment, question for court, 59; members of German society', 276; bequest sustained, 293 ; consolida- tion disapproved, 293; consolida- tion, when may be .set iiside, 293; dismis.sal of teacher, 293; may take oath on Old Testament, 430; legacy to, sustained, 46S; Civil War claim, allowed, 645; must observe same rule ;xs Chiistians

relative to Sabbath observance. 763, 769; poor families in New Haven, bequest sustained, 837.

John Street Church, New York, note on, 345.

Judgment, against trustees for debt, when not a lien on property, 17; may be for corporation in action by trustees, 19; ecclesiastical courts, effect on civil courts, 224; ecclesiastical court, how enforced, 226; when conclusive, 227; ecclesi- astical court, scope of sentence, 229; ecclesiastical courts, not binding on state, 231.

Judicial Notice, Protestant Epis- copal Church, institution and in- duction, court will not take judicial notice of meaning, 152; Roman Catholic Church, civil rights and powers, court will not take judicial notice of, 152; char- acter of American Congregational- ism, 182; various n>ligious mat- ters, 406; Mormon doctrine of celestial marriages, 406; that certain acts constitute religious worship, 654; pope's position un- der International Law, 677; not that smoking cigar by habitual smoker is a necessity, 752.

Julius II, Pope, grant of church privileges by, 685, 687.

Juror, when not disqualified, 6.

Justice of the Peace, when may call meeting, 235, 315, 639; when cannot call pew holders' meeting, 460.

Justinian's Code, cited, 682.

K

Kansas, reciting Lord's Prayer and 23d Psalm in school does not con- stitute public worship, 713.

Kemper, Jackson, Bishop, Memorial Church, 153.

Kendrick, Peter Richard, .Arch- bishop, appoints directors of cor- poration, 658.

Kentucky, form of prayer used in school not sectarian instruction, 715.

Kentucky Baptist Education So- ciety, subscription for valid, 737.

!IL'4

INDEX

Kentucky Christian Missionary Convention. See Christian Mis- sionary Society.

King, head of Enghsh church, 222.

King, Samuel, one of the found- ers of Cumberland Presbyterian Church, 190.

Knox, John, relation to Protestant reformation, 545.

Koran, use in schools, 45; Moham- medans may be sworn on, 900.

Kramer, Elsie, author's reader and stenographer, acknowledgments to, vi.

Ladies' Mite Society, imincorjjor- ated, bequest invalid, 893.

Law, William, Mormon Councilor, note on, 414.

Lease, by church officers, when in- junction against refused, 286.

Lecture Room, place of worship, 113; social gatherings, 113.

Lee, Daniel, Rev., establishes In- dian missions in Oregon, 352.

Lee, Jason, Rev., establishes Indian missions in Oregon, 352.

Legislature, may restrict interments and authorize removal of remains, 60, 64; may authorize sale of cemetery, and reinvestment of proceeds, 64; jurisdiction of eccle- sia.stical questions, 227 ; entertains charges against rector, 228; power of cannot be exercised by church judicatory, 229; scope of author- ity on religious matters, 595; power to enact Sunday regula- tions, 765, 766; cannot modify trust, 834; when legacy may be validated, 885, 886.

Libel, when minister liable foi', 115; excommunication, 295; priv- ileged communications, church discipline, 295.

Lien, when judgment against trus- tees not a lien on property, 17.

Limitations of Actions. See Stat- ute of Limitations.

Lincoln, .\l)niham, Pn^sident, Proc- lamation of Kmancipntion, com- mended by Presbyterian (lenerMl Assembly, 510.

Lindenwood Female College, elec- tion of trustees, 131.

Long Island Diocese, Protestant Episcopal Church, property ex- empt from taxation, 553.

London Yearly Meeting, Friends, organization and jjowers, 255, 259.

Lord's Prayer, reciting in school does not constitute ])ublic wor- .ship, 713.

Louisiana, church questions for ecclesiastical tribunals only, 141; rule as to pews, 457; religious freedom guaranteed, 621 ; Church of St. Louis, note on, 662; church property, wardens legal owners of, 673.

Louisville, Ky., convention organ- izes Methodist Episcopal Church, South, 360, 361.

Loyola, Ignatius, founder of So- ciety of Jesus, 672.

Luther, Martin, some writings ac- cepted others rejected, 297; rela- tion to reformation, 545.

Lutheran Church, member, when not disqualified as a juror, 6; church tribunals have exclusive jurisdiction of c[uestions relating to worship and doctrine, 166; joint occupancy of ])roperty with German Reformed, effect, 274; division of 1867, 289; minister, how chosen, 389.

Lutherans, history, 297; organiza- tion, 298; Alaska, property, effect of cession from Russia to United States, 298; Associations, 299; close communion, 300; confe.ssion of sins, .should it be public or private, 300; dissolving connec- tion with synod, effect, 301; Ger- man language in service, 301; Icelandic Church, 302; Independ- ent Congregation, status, 303; minister, how employed, 303; New York City, 304; Russian toleration, 306; secession, 306; .synod, 307; large number in Russia, 306; members of German Society, \\ ashington, D. C, 276; Independcnl, injunction denied restraining use of church by pas- tor, 289; accept ance of cert.nin (loct rini^s declnred by Luther, 297; division of societj', effect, 700.

IXDEX

925

M

Maine, statute of Elizabeth in force in, 76; missionan*' society, be- quest for, 349; towns, parochial powers, 801; powers of trustees, 817.

Maine Baptist Missionarj- Conven- tion, bequest siLstained, 36.

Maine, Preachers' Aid Society, be- quest sustained, 346.

Majority, may compromise suit against society, 3; may be sued by corporation, 4; may maintain action for forcible" entry and de- tainer, 6; may establish and alter articles of faith, 31; Baptist Church, power of, 33; may con- trol property, 34, 37; Campbell- ites, control of property, 52; power of, 114, 116, 142; when maj' take j^roperty into another church, 117; expulsion of minority sustained, 148, l.")4; when may not control i)roperty, 271 ; power at society elections, 238; when may control use of ])roperty, 287; power at corporate meeting, 314; when may be restrained by mi- nority, 387; may not divert prop- erty from use intended, .525; notes on right of, 532; notes and j)ov.er of, 541; when acts binding on minority, 608; seceding, when cannot take property, 636; gen- eral powers, 639; secession, when cannot control property, 642; may control on questions relating to music, 653; general powers, 701, 834, 862.

Mandamus, cemetery, burial, 308; expulsion of member, .308; joint use of property, 308; member, restoration, 309; minister, rein- statement, 310; special election, 311; trustees, title, 312; vestry, 312; vestrj', duty to attend meet- ing, 312; not proper remedy to prevent reading Bible in schools, 45; not gi'anted to compel burial of Freemason in Roman Catholic cemetery, 64; when not available, 228; rector may be required to give notice of election, 235; can- not be is.>^ued to induct into oflicc I)erson not regularly elected, 23(j;

granted requiring rector to join in notice of special election, 237; not pi'oper remedy to determine validity of election, 239; rector required to recognize result of election, 240; not granted to com- pel chiu-ch to receive ])astor, 381, 383; contrary rule, 384, 385, 386; when not gi-anted to reinstate minister, 397; not proper remedy to recover possession of pew, 457, 460; not proper remed}^ to test question of expulsion, 609; not granted to compel city offic(>rs to enforce Sunday Liquor Law, 781.

Mansfield, Lord, sketch of early Ckristian custom as to courts on the .Sabbath, 7.59.

Mansion House of God, Lord Coke's definition of church, 113.

Marriage, Mormon, note on, 411; may be perfornifxl on Simday, 768.

Maryland, Church of England established church, 122; termi- nated, 122.

Massachusett.s, status of public, teacher in, 11; statute prohibit- ing blasphemy not repugnant to constitution, 49; English doc- trine of charitable uses in force in, 76; establishment of Chris- tianity in, 99; corporate character of clun-ches in, 110; Friends, pre- parative meetings, gi-anted cor- jjorate powers, 2.58; parish, note on, 435; rule as to parsonages, 441; rule as to pew, 457; parish; rule as to title to property, .534; bin of rights, religious freedom, 622; status of religious corpora- tion, 639; religious societ}', cler- ical organization only, status, 640; apportionment of money raised for public worship, 65.5; Bible reading and prayer at opening of school session, when sustained, 713; Shakers, religious freedoin, 722; towns, parochial powers, 801.

Masses, defined, 313; describ<'d, 313; not a superstitious use, 313; valid in Ireland, 477; when bequest liable to transfer tax, 795; celebra- tion of, when not a charitable object, 76.

Mc,\doAV, Samuel, one of the found-

\)'2{)

INDEX

ers of Cumberland Presbvterian Church, 190.

Mechanic's Lien, when action to en- force may be maintained, 7, 8; when no action against unincor- porated society, 8; church is building under Lien Law, 8; can- not be enforced against cemetery, 8; pastor also a mechanic, when may enforce lien, 11; on church edifice, cannot be enforced against gi-aveyard, 63; subject to prior mortgage on land, 417.

Meetings, by laws, 314; chairman, 314; majority, 314; notice, 315; quorum, 315; silence on taking vote, effect, 316; when may be called by justice of the peace, 235, 639; presiding officer, casting vote, 558, 567; New York rule, 568; notice of annual meeting necessary, 639.

Melanchthon, Philip, relation to Protestant reformation, 545.

Members, admission, effect of by laws, 317; Baptist, powers of congregation, 318; dismissal, 318; dues, effect of nonpayment, 318; equahty, 318; excommunication, effect, 318; expulsion, 319; expul- sion, damages, 321; expulsion, evidence required, 321; expulsion, notice, 322; expulsion, rules, no- tice, 323; general duties, 323; how constituted, 323; judicial control, 324; law governing, 324; letters of dismission, effect of, 324 ; liabil-

■ ity for debts, 324; powers, 325; quahfications, how determined, 325; relation to society, 326; rights, 326; stated attendant, ef- fect of nonat tendance, 327; sta- tus, how determined, 327; town society, 327; transfer by Legis- lature, 328; withdrawal, 328; withdi-awal, effect, 328; incorpo- ration, effect, 609; expelled, no claim for damages against cor- poration, 609; corporation may sue, 4; may compromise suit against society, 3; individual may not recover damages for disturb- ing him while attending religious services, 4; juror, when not dis- qualified, 6; not individually liable for pastor's salary, 13; when in-

dividually liable for chm-ch debt, 8; when not Uable to personal judgment, 14; equitable right against property, 14; when may not sue other members, 18; when may sue trustees, 19; of unin- corporated society, when person- ally liable, 20; expulsion, when court will not consider regularity of, 34, 150; authority of church over, 108; church, expulsion, 112; governed by rules and regula- tions, 116; court will not decide who ought to be, 150; status, when courts may determine, 154; need not be inhabitants of parish, 181; trial, relation to tribunal, 229; injunction against illegal tribunal, 229; expulsion, effect. Evangelical Association, 246; ex- pulsion, injimction restraining, 285; expulsion, when injunction denied, 286; interfering with property, injunction gi-anted, 286; interfering with trustees, injunc- tion granted, 286; expulsion, mandamus to test right of, 308; expulsion, restoration, mandamus not proper remedy, 309; contra, 310; expulsion without notice, invalid, 319; expulsion for polit- ical reasons, 321; relation to cor]>oration and society, 327; re- nunciation of membership, what constitutes, 328; termination of membership, effect on property, 533; expulsion, effect on property rights, 534; exclusive right of suffrage, 591; when not liable for debts of society, 603; ownership of property, effect of dissolution of corporation, 605; expulsion, corporation no power of, 609; when not liable on corporate debt, 609; when minors included, 610; when individually liable for society debts, 641; when court may determine rights of, 658; expulsion, Roman Catholic Church, effect, 670; Roman Cath- olic Church, when excommuni- cated by civil marriage; 678; expulsion. Shakers, expelled mem- ber, no action for damages, 721 ; when exempt from taxation in Massachusetts, 795; Presbyterian

INDEX

927

cannot be taxed for Congrega- tional minister, 795; withdrawing, when not liable to assessment, 795; excommunication, when no- tice required, 820; officially and individually interested in trust for society, 840; unincorporated society, extent of liability, 845; when cannot vote at meeting of another denomination, 869; or- ganization, 329; majority may control proi)erty, 329.

Mercer Home, Presbyterian Chinch note on, 493.

Merger, of religious societies, effect, 115.

Messenger, to Baptist association, function, 31.

Methodist Book Concern, noted, 339.

Methodist Chuich of Canada, min- ister, status. Conference has ex- clusive jurisdiction, 155; historical sketch, 331; form of government, fixing status of minister, 331; separation from IMethodist Epis- copal Church, 331, 345.

Methodist Episcopal Church, organ- ization, 333; anti-slavery control, 335; Baltimore Conference^, 335; Baltimore Conference, separation of 1844, 338; Bible society dis- continued, 338; bishop's authority to consolidate churches, 339; Book Concern, 340; Church E.x- tension Society, 341; church in- vestigations, 341; consolidation, 342; corporators, cannot evict trustees, 342; division, 342; di- vision of 1844, 343; Drew Theo- logical Seminary, 344; Foreign Missionary Society, bequest, 344; General Conference, power to divide church, 344; Illinois, Preachers' Aid Society, 345; John Street Church, New" York, 345; Maine, Preachers' Aid Society, 346; Methodist Preachers' Aid Society, Baltimore, I\Id., 346; ministers, how appointed, 347; minister's salary, 348; missionary society, 349; missionary bequest, 349; missions, 349; New York, 9th Ward, bequest for purchase of coal, 350; Ohio corporation, 350; Oregon mission, 351; prop-

erty to be held in trust, 355; separation, Church South, plan final, 355; separation. Church South, Holston Conference, 356 separation, title to local property, 356; separation, 1844, home rule as to future relation, 357; separa- tion, when property cannot b-^ transferred to Church South, 357; Tennessee Annual Conference, 357; when minister cannot be excluded from church edifice, 384; minister, no contract relation with society, 394; deacon, local preacher, when exempt fi-om tax- ation, 399; minister occupying parsonage, relation to society, 442; preacher sent by bishop must be accepted, 537; general, before incorporation could not receive legacy, 884; minister, no contract relation as to salary, 10; minis- ter's salary, how deficiency col- lected, 10; local .society, when liable to action for deficiency in minister's salary, 10; (Quarterly Conference fixes minister's salary, 10; Discipline not superior to State law, 110; consohdation of churches by Bishop Walden sus- tained, 142; equal lay representa- tion adopted, 334; division, effect on title to propertj-, .533.

Methodist Episcopal Church, South, arbitration under rules of, vahd- ity, 23; origin, historical sketch, 359; organization, 361; Baltimore Conference, 361; Book Concern, Church North, sharing proceeds, 363; border society, 363; church edifice, change of site, effect, 364; Corvallis College, Oregon, 364; liability for local debts, 364; mi-s- sions, 365; property, division of general church, effect, 365; prop- erty, when withdrawing members cannot change title, 367; prop- erty, who may enforce trust, 368; publishing house, taxation, 368.

Methodist Preachers' Aid Society, Baltimore, Maryland, bequest sustained, 346.

Methodist Protestant Church, Gen- eral Confei'cnce, when entitled to property of extinct church, 370; propert)', forfeiture, free seats,

928

INDEX

370; property, secession, effect, 370; property, title in trustees, effect, 371.

Mexico, Roman Catholic Church, title to projjerty, 674.

Michigan, constitution, when Bible readings do not violate, 44; selec- tion of trustees does not make a corporation, (310.

Milman, Dean, history of Latin Chi-istianity, quoted, 682.

M i n i s t ers, occupying parsonage, ejectment against, 5; action for salary, 8; when previous immor- aUty no defense, 9; action for salary, cannot be maintaine<l un- der call not accepted, 9; when not entitled to emoluments of office, 9; society must use due diligence to collect subscriptions, 10; Methodist Episco})al Church, no contract relation as to salary, 10; Massachusetts, constitutional limitation on action for salary, 10; Methodist Episcopal Church, sal- ary, how deficiency collected, 10; when may enforce mechanic's lien, 11; right to compensation a property right, 11; when can- not maintain action to recover moneys assessed for public wor- ship, 11; town, when liable for salary, 12; not an employee of church, 12; dismission, when does not j)revent action for salary, 12; salary fi.\ed by the parish com- mittee, when conclusive, 12; not entitled to salary during suspen- sion, 12; if there is no contract for salary he is entitled to a just compensation, 13; salary, mem- bers not individually liable for, 13; statute of limitations applies to claim for ministerial service, 13; settled, when may maintain action of trespass, 17; manager of society, does not jwevent so- ciety receiving bequest, 70; Con- gregational, bequest of income for, 72; trust for support of, sus- tained, 86; liabiUty for libel, 115; when conducting religious service, congregation implied, 116; Church of P^ngland, cannot refuse to bury child of a dissenter, 120; Churcli of (!od at Ilarrisburg, status, 124;

change of religious belief, when com't may consider, 147; title to office, when com't may not con- sider question, 155; Methodist Church of Canada, status. Con- ference may determine, 155; em- ployment and pajmient, civil courts no jurisdiction, 156; Con- gregational Chiu'ch, method of selecting, 181 ; Congregational Church, how settled, 184; when not entitled to recover income of parish fund, 184; change of reli- gious tenets, 219; illegal suspen- sion, 223; subject to jurisdiction of ecclesiastical courts, 224; Bap- tist, when not deemed elder under election law, 236; Evangelical Association, when appointment invalid, 247; dissolving relation, when injunction granted, 287; when restrained from occupying church, 287, 289; adopting hereti- cal views, injunction against use of church, 288; Independent Lu- theran Society, injunction denied restraining pastor from using chiu-ch, 289; Baptist, when re- strained from using church, 289; vestry may call without firsti having salary fixed, 290; Lu- theran, how called, 304; dismissal, restoration, when mandamus not proper remedy, 311; cannot arbi- trarily dismiss member, 318; M e t h o d i st Episcopal Church, traveling preachers, sovereign power of, 345; Methodist Epis- copal Church, how appointed, 346 ; Methodist Episcopal Church, no contract relation with society, 348, 398; first settled, defined, 374, 387; Emeritus, when status declared, 380; settled, defined, exemption from jury duty, 387; settled, note on, 1389; includes ordained deacon, 391; ordination, resulting status, 392; Methodist Episcopal Church, appointed by bishop must be accepted, 537; deviating in doctrine, restrained from occupying pulpit, 584; peo- ple taxed for support of, 591; may jireserve order at public worship, 654; when comment on conduct of constitutes slander,

INDEX

920

727; subscription for su{)port of, 736; emplo^Tnent on Sunday valid, 751; does not hold public office, exempt from taxation, 796; salary, when trust funds cannot be used for, S():-5; appointment of church trustees, S()7; call, 373, 494; call, ineffective, voluntary contributions, how disposed of, 373; C'alvinistic Baptist societies, 374; chanfiinK religious beli(f, 374; contract, 374; contract, dissolu- tion, 375; covenant, what consti- tutes breach, 375; defined, 37(1; defined. Congregational, 37G; de- fined, Massachusetts. 377; de- posed, cannot occupy chuich, 377; deposed, status, 37S; dismissal, 378; dissolving relation, 379; ecdesiiust ical council, 3SU; educa- tion, 3X0; examination and li- cense, 3S(): exclusion from church edifice, 381; excommunicated, when society may not em()loy, 386; excomnnmication, expulsion, 387; excomnnmii-ation, 387; ex- emption from jury duty, 3S7; first settled, :W7; general rights, 387; heresy, 38S; intruding into church, 388; land granted for support, 389; Lutheran, how chosen, 389; marriage ceremony, right to perform, 390; member of association, 392; oblij.Mlions ;i93; office, not i)ublic, 393; olfire not a vested property right, 393; ordinance. 394; parish. 394; par- ish, incumbent's title to prop- erty, 394; pastoral relation, ;395; pastor defined, 395; i)a.stor's opin- ions, 395; Presbyterian rule, 395; priest's i>rofes,sion his prop- erty, 396; public duty, 396; regularity of appointment, 396; relation to church, 397; rela- tion to society, 397; reinstate- ment, mandamus not jjroper remetly, 397; removal, 398; right to occupy house of worship, 398; salary, actions for, 398; salarj', de- vise "for, 398; settlement,' 398; statedly officiates, meaning, 398; support, duty of church. 399; taxation, exemption, 399; tenure, 401; terminating relation, 402; selection, Presbyterian rule, 395;

Protestant defined, 396; Xorw<'- gian Evangelical Lutheran Church, how called, 427; new town, status, 438; Elaine parish system, note on, 438; occupancy of parsonage, relation to societj-, 441; land devised for, status, 468; support, legacy for, sustained, 468; Presbyterian Church, char- acter of office, how called, 493; excluded from Girard College, 593; ministerial fund exempt, 796; bequest for poor, sustained, 837.

Minister of the Cospel, defined, 85.

Minority, cannot maintain action for partition, 13; when may con- trol property, 35, 36, 253, 271, 636; may be restrained from use of building, 115; when may con- trol election, 238; when entitled to property, 370, 583; when en- titled to injunction agninst ma- jority, 386; when not entitled to property, 427; when may resist diversion by majority, 524; when cannot control property, 534; when bound by acts of majority, 608; limitation of right of, 675; secession, when an abandonment, 695; Congi-egational Church, can- not expel majority, 696; when may hold property after division, 697, 703; general rights of, 703.

Mi.ssionar>- House of Kest, Presby- terian Church, note on, 496.

Missionary Society, MethodLst Epis- copal Church, becjuest for, 344, 349, 350; devise lejected, society unincorporated, 349; liable for transfer tax, 349; mi.ssion to Wascopum Indians, 351; receives compensation for Oregon prop- erty, 355.

Missions, Associate Reformed Church, bequest sustained, 29; Maine Baptist Missionary' Con- vention, 36; bequest for, 74; Con- gregational Church, note on, 185; Methodist Episcopal Church, South, devise sustained, 365; mi.s- sion defined, 403; missionary de- fined, 403; bequest, imcertain, 404; legatee not capable of taking bequest, 404; taxation of bequest, exemption, 404; testator's inten- tion, 405; legacy sustained, 469;

!);u)

INDEX

Protestant Episcopal Church, legacy sustained, 884.

Missouri, Christian Science charter refused, 104.

Mistake, in deed, action to cor- rect, 15.

Mob, property destroyed by, value may be recovered, 534.

Mobile, Alabama, Roman Catholic Church, Spanish King buys prop- erty for, 686.

Moderator, synod, Associate Re- formed Chiu-ch, powers and func- tions, 26.

Monimient, when may be removed by other than owner, 63; see Tombstone; bequest for keeping in repair, sustained, 71.

Moore's Digest of International Law, quoted, 669.

Morality, may be taught in schools, 44.

Mormons, church, disincorporation, effect, 406; creed, judicial notice, 406; incorporation, 407; Inde- pendence, Missouri; Church of Latter Day Saints, 409; Jehovah Presbytery of Zion; Preparation, Iowa, 411; marriage, divorce, 411; marriage, 412; name and succes- sion, 413.

Mortgage, condition broken, right to foreclose, 416; court order, 416; leave of court, 416; priority as be- tween mortgage and mechanic's lien, 417; validity; archbishop having no title to the land, 417; validity, executing without author- ity, 417; validity, extent of trus- tees' authority, 418; validity, le- gitimate debt, 418, 539; validity, meeting of trustees; purchase money, 418; validity, trustees afterward ousted from office, 418; validity, trustees no power to mortgage property, 419; Re- formed Dutch Church, validity sustained, 583.

Mortmain, defined, 420; Delaware, 420; Grenada, 420; Pennsylvania, 420; South Carohna, 420.

Municipal Corporation, ordinance prohibiting rehgious assembUes, sustained, 21.

Municipal Ordinances, how affects camp meeting within corporate

limits, 54; may regulate inter- ments, 63; parades, 421; preach- ing on Boston Common, 421; discrimination as to Sabbath ob- servance, 619, 649; South Caro- lina, as to Sabbath observance, sustained, 768. Music, instrumental, action to re- strain use of, 18; Campbellites, singing school not permitted in church building, 52; bequest for singers, 80; Christian Church, organ use discontinued, 94; Christian Science, organ, liability of treasurer for funds collected for, 105; singing, when not dis- turbance of meeting, 214; choir, when singing not disturbance of meeting, 214; bequest for, when valid, 422; country choirs, 422; instrumental, 422; organist, 422; instrumental prohibited in Scotch Presbyterian Church, 505; organ in service, minority may not introduce against majority's pro- test, 653; musical instruction when not worship, 653.

N

Nation, Christian in policy, 99.

Nebraska, Roman Catholic Chiu-ch, status of, 675; when u.se of school- house for Sunday School does not make it a place of public worship, 694; religious worship described, 714.

Necessity, imder Sunday Law, de- fined, 752.

Nevada Orphan Asylum, a sec- tarian institution, 714.

New England Yearly Meeting, Friends, note on, 262.

New Hampshire, town, parochial powers, 802.

New Jerusalem Church. See Swe- denborgians.

New Thought Church, described. 424.

New Testament, only rule of faith and practice, 30; used in adminis- tering oaths, 41.

New York, trustees, must sue in name of corporation, 18; statute of Elizabeth not in force, 77; Christianity the religion of the

INDEX

!>;]]

people, 99; questions of faith and practice not subject to review by civil com-ts, 137; rule as to membership in corporation, 610; status of religious societies imder act of 1813, 640; Roman CathoHc churches, how incorporated, 676; Society of Shakers, not a religious corporation, 722.

Nonconformists, Lady H e w 1 e y 's charity for, 85.

North Carolina, Protestant Epis- copal Church, division of diocese, effect, 554.

Norwegian Evangelical Lutheran Church, organization and form of government , 425 ; uidependent so- ciety, division of i)ro[)erty, 426; property, division, effect, 427; trustees, controversy over elec- tion not a schism, 428.

Northwest Texjxs Conference, rela- tion to Waco Female College, 364.

Norwich, Connecticut, three Meth- odist Episcopal Churches consol- idated, 339, 342.

Nuisance, when ringing of church bells not, 40; damages, 429.

Oath, defined, 430, 900; Jew, 430, 900; idolater, 899; Mohammedan, on Koran, 900; Gentiles, mode of taking, 900.

596; Methodist Episcopal Church incorporated in, 350.

Ohio Yearlv Meeting, Friends, note on, 261. '

Old Ladies' Home, Protestant Epis- copal Church, bequest sustained, 555.

Oneida Community, described, 171.

Order of St. Benedict, described, 172.

Oregon, rehgious freedom guaran- teed, 623.

Oregon Mission, Methodist Episco- pal Chm-ch, note on, 351.

Orphan Asylum, bequest for sus- tained, 77; when not place of worship, 653; Brooklyn, not a common school, 676; St. Mary's Boys' Orphan Asylum, Roches- ter, status, 708.

Orthodox Greek CathoUc Russian Church, comparison with other Greek churches, 278; injunction preventing transfer of propei'ty to, 279.

Old Testament, used in administer- ing oaths to Jews, 42.

Overholtzer, Rev. John, leader of faction of Mennonites, 329.

Overseers, Quakei's, title to office, how determined, 158; Friends, method of selection, 258.

O

Ocean Grove Association, restric- tion on sale of liquor not affected by Asbmy Park license, 55.

Officers, de facto, what constitutes, 18; pastor and deacons in Baptist Church, 36; Christian Church constitute corporation, 95; when action of subject to judicial in- quiry, 156; Quakers, overseers, title to office, how determined, 158; may remove disturbers of meeting, 212; committee, tenure, 431; de facto, 431; ehgibility, when presumed, 431; holding over, 432.

Official Board, United Brethren in Christ, functions, 856.

Ohio, constitution does not restrain nor require reading religious books in schools, 45; status of Chris- tianity, 100; rehgious freedom in,

Papinian, quoted, ase of church property, 682.

Parent and Child, when father may not disturb meeting by forcibly removing child, 212.

Parish, differs from chm'ch, 181; church members usually inhab- itants of, 181; minister, how se- lected, 181; fund, when minister not entitled to recover, 184; re- ligious society in, status, 328; minister, general status, 394; town as, New England rule, 800; business, how transacted, 433; clerk, 433; committee, contract, 434; defined, 434; dissolution, ef- fect, 434; division, effect, 434; ecclesiastical council, 435; Massa- chusetts, 435; Massachusetts, his- tory, 435; meeting house, may be leased, 436; meeting house, title

982

INDEX

after division of town, 436; mem- bers, liability for debt, 436; member, reimbursement for claim paid, 437; membership, 437; min- ister, 437; minister, how ap- pointed, 438; minister's title to property, 438; minor, taxation, 438; parishioner, 438; parsonage, 439; poor parish, 439; powers, 439; P r o t e s t a n t Episcopal Church, defined, 439; Roman Catholic, 440; taxation, 440; Massachusetts, rule as to title to property, 534; register, how available as evidence, 676.

Parish Committee, when minister's salary fixed by, conclusive, 12.

Parishioner, defined, 438.

Park, cemetery may be taken for, 64. ' ]

Parsonage, minister occupying, ejectment against, 5; division of local society, effect, 365; under parish system, note on, 439; Massachusetts rule, 441; minis- ter's occupancy, 441; town land, 442; trust for, when invalid, 443; use, 443; when exempt from tax- ation, 796; see Taxation, sub- title Parsonage, 796, 585.

Particular Baptist Chm-ch, Particu- lar Baptists, 444.

Particular Baptists, noted, 30.

Partition, minority cannot maintain action for, 13; denied in suit against Separatists, 175; joint church ownership, 445; of prop- erty of Shakers not permitted, 724.

Partridge, Edward, bought land for Mormons, 409.

Pastor, dissolving relation, 8, 9, 12; Evangelical Lutheran must be member of synod, 9; when may enforce mechanics' hen, 10; note given by, when no action lies against building committee, 14; removed, restrained from fur- ther official acts, 32; in Baptist Church, how settled, 37; changing religious doctrine, effect, 269; when trustees not restrained from employing another, 289; not en- titled to injunction to reinstate after exclusion by majority of congregation, 303; call, right to

contributions, 374; authority to regulate worship, 379; trustees restrained from preventing use of church, 383 ; relation described, 395; defined, 395; opinions sub- ject to denominational control find discipline, 395; stated supply is not a, 396; relation to church, 397; statedly officiates, meaning of, 398; salary, land may be sold to pay, 534; Protestant Episcopal Church, status of reader, 556.

Patronage, right of, Roman Cath- olic Church in America, possessed bj^ Spanish sovereigns, 688.

Peace, breach of, defined, 749.

Penn, William, Clu-istianity estab- lished in Pennsylvania, 100; note on, 267; declaration on religious toleration, 650, 676.

Pennsylvtinia, constitution, reading Bible in schools no violation of, 45; statute of Elizabeth not in force in, 70; common law prevails as to charitable uses, 71; Chris- tianity part of common law, 100; Christian Science charter refused, 105; lay control of chvn-ch prop- erty, 531; reUgious freedom, 623; religious toleration, 649; religious garb in public schools, 626, 715; powei's of trustees, 817.

Pennsylvania Convention, member- ship and powers, 555.

Perkins, H. K. W., Rev., establishes Indian missions in Oregon, 352.

Perley, Ira, Judge, opinion. Congre- gational associations, 180.

Perpetuity, masses, bequest for when invalid, 76, 476.

Persuasion, defined, 187, 197; Con- gregational defined, 376.

Pews, when church judicatory may not regulate sittings, 229; injunc- tion denied reconstruction and rearrangement, 290; free, when not affected by sale of property, 370; vestry may assign, 569; owners may form corporation, 611; society, by laws may provide for assessment of, 808; distribut- ing, power of trustees, 822; Uni- versalist Church, by laws relative to, 865; historical note, 446; assessment for expenses, 447; changing, injunction refused, 447;

INDEX

933

church usod for general purposes, 447; distribution, 447; disturbing possession, 448; oiisement, 449; Enghsh custom, 453; execution, sale, 454; forfeiture, 454; incor- poreal hereditament, 455; indem- nity for loss, 455; locking pew, 457; loose bench, 457; Louisiana rule, 457; mandamus, 457; Massa- chusetts rule, 457; new building, 45S; new pew, 459; parish prop- erty. 4f)(); perpetual lease, 4()(); ])(>w holder's corporate I'ights, 4(10; possession, mandamus, 4()(); pre- scription, 4()0; presumption, 4G1; real estate, 461; rent, char- acter of debt, 4G2; rent, when preferred debt, 462; repairs, 462; Roman Catholic, 462; sale of property, 464; sale, 464; taxation, 4t)4; terminalion of right, 465; title, 465; title transferable, 4ti6; trespass, 46(); archbishop's rela- tion to, 659; sale of to apply on building contract, 733; jiew hold- ers' share in trust for sustained, S41.

1 'helps Mission, could not be con- solidated with a Presbyterian Church, 484.

Philadelphia, lA'angelical Associa- tion, Ceneial Conference, meet- ing, 1891, 242. 24t).

I'liiladeliihia I'-piscojial Academy, property exempt from taxation, .")5.5 .

l'hiladeli)hia Orphan Asj'lum, Prot- estant Episcopal Church, proj)- erty exempt from taxation, 556.

Philadelphia Society for Organizing Charity, entitled to bequest for care of poor, 87.

P h i 1 a d e 1 p h i a Yearly Meeting, Friends, status of, 256, 262; de- clared to be a corporate body, 263.

Philippine Islands, statas of lioman Catholic Church, 677; .Spanish appro]M-iati()n for support of church, 685.

Philips Academy Divinity School, bequest sustained, 837.

Philomath College, United Brethren in Christ, iu)te on, 862.

Pien-e University, Presbyterian school, a sectarian institution, 716.

Pious Uses, defined, 467; described, 467; Jews, 468; land, devised, right of possession, 468; minis- terial land, 468; minister's sup- l)ort, 468; missionaries, 468; poor, 469.

Place of Worship, defined, 718; as to what constitutes place of wor- ship see items under Sectarian Instruction.

Political Differences, in local so- ciety, when not to affect property rights, 704.

Polygamy, prohibited, 407; a crime, 1)23; state may prohibit, 648.

Poor, bequest for relief of sustained, 71, 75, 469; when bc^quest for void, 78; cliarity for, 84, 87; Lady Hewley's charity for, 85.

Poor and Godly Preachers, d(>fin(Hl, 85.

Pope, Roman Catholics admit au- thorit}' of, 97; Protestants den}' authority of, 98; acknowledged as head of United Greek (,'hurch, 278; no civil authority in Louisi- ana, ()73; position under Inter- national Law, 677; Alexander VI and Julius II, grant t)f church j)riyileges by, 685; grant to Span- ish sovereigns of control of church in America, ()85, 687.

Porto Rico, status of Roman Cath- olic Church, 678; American occu- l)ation, 6S5; Spanish aiijjrojjiia- tion for sujiport of church, 685.

Poverty, vow of, valid, 172.

Prayer, ba.sis of Cluistian Science j)ractice, 103; form of, not sec- tarian instruction, 715.

Prayers for the Dead, affirmative, 470; negative, 474; Chiu-ch of England, 476; general, 476; per- petuity, 476; religious use, 477; superstitious use, 477; time limit, beciuest, 478; transfer tax, 479.

Predcstinaticm, note cm, 215.

Presbyterian ('hurch, form of gov- ernment, 25; A.ssociate Reformed Chmch, merged in, 26; aristocrat- ical in character, 109; organic law. General Assembly, 115; bound by national and state constitu- tions, 116; General Assembly, political deliverances, 131; decla- ration and testimony, noted, 131;

934

INDEX

union with Cumberland Presby- terian Church sustained, 143; union with Cumberland Presby- terian Church, 191, 194; mission to Indians, 351; rule as to call of minister, 373; Dunliirk case, 377 ; rule as to selection of pastor, 395; board of erection fund, 416; New Orleans, legacy for poor, sustained, 469; historical sketch, 481; description, 482; govern- ment, form of, 482; association with Congregational churches, 483; Center College, Danville, Kentucky, 483; congregation, au- thority, 484; consolidation, 485; division of society, apportion- ment of property, 484; division, powers of presbytery, 485 ; excom- munication by General Assem- bly, 486; Free Portuguese Church, 487; Foreign Missionarj' Society, 488; General Assembly, Southern, 488; General Assembly, described. Old School, 489; General Assem- bly, division, effect on legacy, 489; General Assembly, organized, 490; General Assembly, status, 490; General Assembly, when decisions binding on church, 490; Illinois Orphans' Homo, 491; Independ- ent Church not possible, 491; joint ownership, 492; local so- ciety, status, 492; Mercer Home for Disabled Clergymen of the Presbyterian faith, 493; minister, character of office, 493; minister, how called, 494; minister. Pres- bytery's power of appointment, 495; missionary house of rest, 496; missions, 496; Old and New School; division of 1838, 497; Old School Assembly, claims bequest, 498; Old School, General Assem- bly, political deliverances, 498 ; or- ganization, 499; organization and form of government, 499; pastor, terminating relation, 500; Penn- sylvania, English congregation, 500; political deliverances, no effect on local property, 501 ; Presbytery, membership, 502; Presbytery of New York, powers, 502; Presbj^tery, relation to sy- nod, 503; property, how held and managed, 503; publication com-

mittee, 504; ruling elders, elec- tion, synod's power limited, 504; Scotch Presbyterian Chiu-ch, 504; Scotland, 505; secession of 1838, 505; secession, effect on pastoral relation, 507; session, 508; ses- sion, powers, 509; slavery agita- tion, 510; sovereignty, not in membership, 511; synod of seces- sion, church, 512; sjmod, powers, 513; trustees, 513; unconstitu- tional dehverance on political questions, 513; Westminster Col- lege, 514; independent local government, 482; early association with Congi-egationalists, 483 ; Foreign Missionary Society in- corporated in Pennsylvania, 488; right of separation, 705; Pierre University, South Dakota, a sec- tarian institution, 716; election by noncontributors, invalid, 868.

Presbyters, Associate R e f o r m ed Church, defined, 25.

Presbytery, of whom composed, 25; Cumberland, organization of, 190; jurisdiction over sessions, 192; Cumberland Presbyterian Chm-ch, representation in Gen- eral Assembly, 192; Cumberland Presbyterian Church, how con- stituted, 193; illegal exclusion of members, 221, 223; Buffalo, de- poses pastor of Dunkirk church, 377; stated supply, appointment of, .396; Presbyterian Church de- scribed, 481 ; Presbyterian Church, power to divide society, 486; Presbyterian Church, relation to call of minister, 494 ; Presbyterian Church, of whom composed, 502; Presbyterian Church, cannot dis- solve corporation, 502; Presby- terian Church, whether sale must be approved by, query, 539; Reformed Presbyterian Church, Philadelphia, suspends relations to General Synod, 587.

Presiding Elder, Methodist Episco- pal Church, note on, 347.

Priest, profession his propertj^ 145, 396; may remove disturber of meeting, 212; Greek Church, how chosen, 279; injunction against exercising fimctions in contraven- tion of bishop's order, 291;

INDEX

935

excommunication, not question for civil courts, 387; not to en- gage in secular employment, 399; right to rent pews, 464; intruder not entitled to execute bequest for masses, 476; deposed, not entitled to occupy property, 535; relation to bishop, 659, 678; removal by bishop, 660; no claim against bishop for salary, 661 ; action against for slander, 678; authority- limited, when liable for assault, 679; bishop may remove or suspend, 679; maintaining order at meeting, 679; when not bishop's agent, 680; obligation described, 680; when not removed without notice, 680; no action against bishop for removal, 681 ; when not liable for slander, (585; when archbishop's utterances con- cerning constitute slander, 727; generally church treasurer, 736.

P r i m i t i v e Bajitist Church, de- scribed, 515.

Primitive Methodist C'hiu-ch, organ- ization and form of government. 516; adherence to fimdamental princijiles, 517; division of proj)- erty, limited, 517; note on, 633.

Profanity, defined. 519.

Promissory Note, given by pastor, when no action li(>s against build- ing committee, 14; by trustees, when valid, 14, 818; ratified Ijy vestry is valid, 14; given by president and secretary of trus- tees without authority, invalid, 14; by deacons, when void, 183; when unincorjiorated society not liable on, 194; by vestry, when society liable, 570; when makers not pei-sonally liable, 603; when society not liable on, 607; when coi7)oration not liable on note given by officer, 611; made by officers of Roman Catholic Church, when not binding on corporation, 676; made by trus- tees of Shakers, society liable, action on, 736, 739.

Property, liable for building claims, etc., 5; trust in, trustees may not impair, 7; minister's right to compensation a property right, 11; when no right against the

church, 12; control in Baptist chm-ch, 37; priest's profession his, 145; rights, three classes, 157; rights, when civil courts have exclasive jurisdiction, 157; title, when religious ojiinions may be subject of inquiry-, 161; inherent right to acquire and iiold, 173; division, effect. Evangelical Asso- ciation, 245; division, effect, 249; transfer from Free Baptist to Regular Baptist Churcli invalid, 250; adherents of particular doc- trines may not take pn)[)erty over to another denomination, 2.50; diversion, effect. Free Churcli of iScotlanil, 253; secession, minor- ity's right, 253; when title not forfeited by removal of buikling, 267; diversion, change of doc- trine, 2(i9; diversion, right of minority, 271; diversion, who en- titled to tem})oralities, 274; joint occupancy, eff(M't, 274; Greek church, diversion restrained, 278; diversion, injunction against, 284; sale, trustees cannot on own mo- tion institute proceedings for, 346; sale, question cannot be submitted to arbitrator, 346; changing site of church edifice, effect, 364; secession, effect, 365, 370; church, belongs to corpor.a- tion; minister's right limited, 388; Presbyterian Church, when di- vided between adherents of old and new school, 484; division of and distribution between factions, 487; corporation, right to hold, 611; Roman Cathohc Church, held by bishop, 681 ; schism, effect on, 693; how divided after sep- lU'ation, 697; separation, which party entitled to hold, 097, 698; Shakers, how held, 725; exemp- tion. New Hampshire rule, 796; church, used for other pm-poses, when not taxable, 799; trustees cannot distribute among mem- bers, 819; how held by unincor- porated society, 846; corporation, limitation of amount, how ques- tion determined, 905; abandoning doctrines, effect, 521; adverse possession, 521; Alaska, effect of transfer from Russia to United

936

INDEX

States, 522; dedication, diversion, 522; dedication, 523; dedication to religious uses, 523; denomina- tional use, 523; diversion, 524; division of society, 527; execu- tion, 528; gospel and school lots, 529; Illinois rule, 529; joint use, 529; lay control, Pennsylvania rule, 53 1; limitation of amount, right to excess, 531 ; majority's right, 532; member's right, 533; member unlawdFully expelled, right to be heard, 533; Methodist Episcopal Church, se])aration, ef- fect on title, 533; minority's right, 534; mob, destruction by, action for damages, 534; oljject and use, 534; parish, Massachusetts rule, 534; pastor's salary, land may be sold to pay, 534; jiriest's occu- pancy, 535; pulpit, cannot be seized on execution, 535; removal of church edifice, 535; reversion, 535; reversion and discontinuance of specified use, 536; sale, 537; sale for debts, 538; sale or mort- gage, 539; sale, reinvesting pro- ceeds, 539; sale, when coiu't order not necessarj', 540; s(^wing circle, funds, 541; special trust, effect, 541; Sunday school building, 542; suspending power of alienation, 542; siu'])lus on sale, 542; taxa- tion, 543; title, how held, 543; title, when not affected by exclu- sion of society, 543; trust, lim- itation by testator, 543; trustees, general rights, 544; unincorpor- ated society, 544; vestry room, 544; unincorporated society, title, 567; cannot be transferred to another denomination, 584; when de facto corporation may hold, 604; effect of change of doctrine, 630; title following division of society, 636; test of right to con- trol, 642; unincorporated society, right of, 644; when archbishop has title to, 659; bishop's title to, 663, 664; Roman Catholic Church, independent society, can- not be compelled to transfer prop- erty to archbishop, 672; Louisi- ana, church wardens legal owners of, 673. Protestant, denies authority of

pope, 97; minister defined, 396; Augsburg Confession, 545; con- gregation, 546; Fink's Asylum, 546; Heidelberg Catechism, 546; vital principle of, 547. Protestant Episcopal Church, Sea- bury first American bishop, 47; Domestic and Foreign Missionary Society, bequest to, 74; monar- chical, 109; institution and induc- tion, court will not take judicial notice of meaning of terms, 152; rector, status when not a question for civil courts, 155; vestry, when civil courts will not interfere with, 157; procedure on charges against rector, 222; parish, dehned, 439; Baltimore Church Home and Infirmary, 549; bishop, 549; Cen- tral New York Diocese, 549; curate, 550; described, 550; Do- mestic and Foreign Missionary Society, 550; elections, rector's power, 551; English origin, 551; glebe land, sale, 551; governing body, 551; government owner- ship disapproved, 552; Criswold College, 552; guild, 553; Iowa diocese, 553 ; Long Island Diocese, 553; missions, 553; North Caro- lina, legacy apportionment, 554; Old Ladies' Home, trust for sus- tained, 555; Pennsylvania Conven- tion, 555; Philadeli)hia Epis(;opal Academy, 555; Philadelphia Or- phan Asylum, 556; property, title of general denomination, 556; reader, status, 556; rector, call, dissolving relation, 556; rector, cannot be excluded from prop- erty, 557; rector, title of local society, 557; rector, casting vote, 558; rector, charges against, 558; rector, changing diocese, effect, 559; rector, defined, 559; rector, dissolving relation. 560; rector, election, sufficiency, 561; rector, exclusion from church, 562; rec- tor, exclusion, when unlawful, 562; rector, how called, 563; rector, legacy for support sus- tained, 563; rector, right to occupy property, 563; rector, tenure of office, 564; sale, legis- lative power, 564; sale of church property, 565; Trinity Church,

iMn:x

!);;'

chart »T, odr); Trinity f'luircli, (•haJ"t(T suiwrior, 505; Triiiitj' Ohuich, St. Jolin's Cliapcl, 5t)(); trust, convcvanco to bishoj), 500; trustees, cannot act fur two societies, 5t)0; unincorporated so- ciety, cannot take title to land, 507; vestry, (;annot a(;t without meeting, 507; vestry, ojistinp; vote, 5()7; vestry, acting without formal resolution, 508; vestry, incrciisinfi, 5()S; vestry, meetings 5()S; vestry, powers, 509; vestry, promissory notes, 570; \'irginia, early church, 570; N'irginia, Edu- cation Society, 571; wardens and vestry, status, 57'J; \\ arfield Col- lege, 572; Western New "\"ork Diocese, 572; widows' and or- phans' fund, 572; worshij), rec- tor's authority, 'i7'.i; estahlLshed church in Knghmd, 592; vestry, constituti' c(jrp()ration, t)15; mem- bers cannot vote at congrega- tional meeting, Kti9.

I'rotestant Ej)iscopal Education 8o- cietv, \'irginia, bequest sustained. 57 1!

Providence Hospital, incorporat<'d, property how held, (iSli.

Psalm, 2:id. Se(> Twentv-third Psalm.

Publication Committee, Presby- terian Church, note on, 504.

Public Teacher, status in Massa- chu.setts, 11.

Public Worship, taxation for, when minister cannot recover tax, 11; reading Hible makes school a place of, 45; place of includes chapel, 07; beiiuest for chapel sustained, 7;^; gift for j)rom()ti()n of, 79; phice of, Christian Science charter refu.sed, 105; a function of tlie church, 107; church a place of, li;}; lecture and Sunday school room, a i)lace of, 113; church proper phice of, 110; not subject to judicial intjuiry, 100; right of congiegat ion to control, injunc- tion against interfering with right, 2S7; wlu'U cor|)orators may not regulate, 342; when piustor may r(>gulat e. 379 ; Presbyterian Church, session lu^ e.xclusive juiisdiction of cjuestions relating

to, 423; Presbyterian Clunch, session to legulate, 509; disturb- ei-s may be ri'movinl, 509; rector may regulate. 573; originally sup- I)ortetl by towns, 591; town reciuired to ])rovid(> i)lace of, 591; people required to attend, 591; society may regulate, 043; not compulsory, 047, 049, ()52; min- ister to regulate and preside at, 054 ; i)riest , may main! ain order at, 079; place of, use of schoolhouse for Sunday school, not a, 094; when reading \Mh\v in school does not constitute, 713; prayer, when does not make schoolhouse a place of worship, 715; compulsory payment of admission fee on Sunday- unlawful, 750; Boston, inhabitants not taxable for, 799; suj)port bv towns in Connecticut, SOO.

Publishing House, Methodist Epis- copal Church, South, property exempt from taxation, 309.

Pulj)it, when cannot be seized on execution, 535.

Puritans, described, 282.

Q

(Quakers, not bound to accept office of c-hinch warden, 123; ovej-seers title to office, how determined, 158; aided Separa- tist.s, 173.

(Quarterly Conference, Methodist Episcopal Church fixes minister's salary, 10; EAangelical A.s,socia- tion, 241; M(»thodist lOpiscopal Church, of whom composed, 347; riiited Brethren in Christ, 855, S57.

(Quieting title, wh(>n action for may be maintained, 15.

(Quorum, defined, powers, 310, 641 ; vestry meeting, 569; rule as to vestry, 819.

Quo Warranto, trustees, 574; ves- trymen, 574; to determine valid- ity of incorporation. OfX); proper remedy to determine title to office of trustee. 820; to determine right of parties claiming posses- sion of property, 50; remedy to determine election of ti-ustees,

938

INDEX

428; to inquire into election of trustees of Presbyterian General Assembly of 1888, 507.

R

Railroad Company liable in dam- ages for distm-bing religious serv- ices, 4.

Rapp, George, leader of Harmony Society, 168.

Reader, Protestant Episcopal Church, status, 556.

Rector, deposition, when no action for damages, 15; status, when civil courts will not determine, 155; charges against, procedure, 222; Virginia, Legislature enter- tains charges against, 228; may be required to give notice of elec- tion, 235; authority as presiding officer at elections, 237; may be required to join in notice of special election, 237, 312; may be requu-ed to recognize election of churchwarden, 240; striking names from parish register, in- junction denied, 285; a member of the corporation, 381; cannot be excluded from possession and use of church edifice, 381, 386; Protestant Episcopal Church, au- thority at elections, 551; call, dissolving relation, 556; cannot be excluded from property, 557, 562, 564; casting vote, 558; charges against, trial, 558, 567; defined, 559; dissolving relation, 560, 564; when may not resign, 561; how called, 563; tenure of office, 564; New York rule, 568; may regulate worship, 573; Ro- man CathoHc Church, ratifying act, 683.

Referee, may be appointed to con- duct special election, 6, 237, 312.

Reformation, noted. 111.

Reformed Church, description, 575; diversion of property, 576; divi- sion of society, effect, 576 ; legacy, limitation, 576; succession to Calvinist Society, 576; successor to Reformed Dutch Church, 576; trust, intention of testatrix, 577. Reformed Dutch Church, origin in America, 578; history, 579; classis

of 1822, 580; consoUdation, when void, 580; congregation, right to withdraw, 581; consistory, gen- eral power, 581; division of so- ciety, adverse possession, 581; division of society, effect, 581; judicatories, 583; minister, devi- ation in doctrine, no right to use pulpit, 584; property, transfer to another denomination prohibited, 584; society, how formed, 585; ta.xation of parsonage, 585 ; Theo- logical Seminary, legacy sustained, 585; trust, when deviation in doctrine not objectionable, 585; trust, when vaUd, 586.

Reformed Dutch Church of Amer- ica, name changed to Reformed Church of America, 577.

Reformed Presbyterian Church, di- vision of society, majority's right, 587.

Reformed Presbyterians, union with Associate Presbyterians to estab- Ush Associate Reformed Church, 25.

ReUgion, articles of, see articles of religion, 24; Christian, bequest for support of, 72; bequest for promotion of, 78, 79; religion and pohtics should go hand in hand, 101; advancement of, bequest sustained, 886, 887; defined, 589; children, education, 590; church and state, 590; Constitution of the United States, 591; duty of state, 592; EngUsh toleration acts, 592; freedom, 592; Girard Col- lege case, 593; goverrmient not to teach, 595; importance to society 595; legislative regulation, 595 Ohio, 595; rational piety, 596 restraining interference, 596.

Religions of all Nations, Robbins, quoted, 97.

Religious, defined, 77.

ReUgious BeUef, no excuse for neglecting parental duty, 597; basis of sect or denomination, 635 ; cannot be restrained, 647; lim- itation on exercise of right, 648; when defense to parents for failiire to provide medical attend- ance for children, 104; Christian Science charter refused in Mis- souri, 104; basis of church fellow-

INDEX

930

ship, 108; not to be restrained, 020; when indicated by apparel, 626.

ReUgious Body, defined, 109.

Iteligiou.s Corporations, when con- .sohdation may be set aside, 293; majority, power at corporate meeting, 314; when cannot arbi- trarily e.xpel member, 321; three Methodist Kpi.scopal churches consolidated, 142, 339, 342; rela- tion to spiritual church, 502; New York, order for sale of jjroperty, rule not apjjlicable to foreign corporation, 540; New York, Shaker Society, not in- cluded in, 722; amending charter, 599; a-ssigniiicnt for creditors, n9[i; banking, .'j99; business block, .599; capacity to take property, how determined, 6(X); changing form of government, 600; charter, (MM); consolidation, 600; constitution and by laws make contract, 601; contract, excursion, 602; corpor- ate acts, 602; corporator's right, how acquired or lost, 602; debts, members not personally hable, 603; debt ratification, 603; debt, treasurer's loan, ()03; debts reim- bursement, (U)4; dc facto, pr(j|)- erty rights, 604; de facto, 604; denominational character. 604; dissolution, effect, 605; dissolu- tion, slate law superior to church law, 605; diversion of trust, 605; government, 605; in- corporation, 606; incorporation, collateral intjuiry, (iOti; incorpora- tion, validitv, how questioned, 606; liabihty for debt, 607; ha- bility for injuries caused by negligence of emplove<>, ti07; lia- bihty for injuries to employee, 60S; majority, when action bind- ing on minority, 608; majority's right, 608; members, 60S; mem- ber, exjielled, no claim for dam- ages, 609; member's exjjulsion, 609; member's liabihty, 609; membei-s, when may not be ex- cluded, 609; Michigan rule, 610; minors as members, 610; new organization, effect, 610; New York rule, 610; object and pur- pose, 610; organization, notice.

610; pew owners, 611; presump- tion, 611; promissory note, 611; I)roperty, limitation, 611; reli- gious connection, 612; removal to new house, 612; Roman Catholic, charter, 612; status, 613; status, as compared with English parson, 613; taxation, 613; three elements, 613; trustee, 614; trustees, pow- ers, 614; trustees, majoritj' must meet and act, 615; unauthorized sale of property, 615; who con- .stitute, 615; Young Men's Chris- tian Association, 616; Young Women's Christian Association, 61t}.

Religious EstabUshment, defined, 617.

Religious Freedom, when civil courts cannot interfere with ques- tions relating to church organ- ization, creed and discipline, 144; comment on, 151, 1.52; note on, .592; American rule, 61 S; charita- ble institutions, 61 S; civil courts, limitation of power, 619; civil courts, 619; compulsory church attendance, 619; discrimination not allowed, 620; hmitation, 620; Louisiana, 621; Ma.ssachu.setts, 621; memorials, 622; minor chil- dren, 622; officer, 622; Oregon, (')23; Pennsylvania, 623; })olyg- amy, (>23; .sectarian controversies, 624; I'nited States, 624; \'irginia, 625; voluntary basis, 625; con- tinuing subscription for church purpose not affected by suc- cessor's change of religious opin- ions, 74 1 ; not affected by munici- ])al ordinances regvdating Sab- bath observance, 76S.

Religious Carb, New York, 626; l\-imsylvania, 626, 715.

Religious Principles, defined, f)27; limits of inquiry, 627.

Rehgious Seniinaiy, reading Bible makes school a, 45.

Religious Services, bequest for, 77; in German language, bequest for sustained, 78; bequest for ser- mons, 80.

Religious Societies, Illinois, how ac- tion brought, 18; New York, trustees must sue in corporate name, 18; action by trustees,

910

INDEX

judgment, may bo for oor|>ora- tion, 19; may change opinions, 31; may exercise jm'isdiction over cemeteries, 60, 63; amentling charter and altering terms of charity, 84; status in civil courts, 141; peojjle have right to organ- ize, 151 ; when may not be consolidated, 293; equality of members, 318; when cannot be consohdatod with society in an- other denomination, 585; build- ing committee, 629; by laws, 629; change of denominational rela- tions, 630; change of doctrine, effect, 630; chapels, 630; commit- tee, defense in legal proceedings, 631; congregation a corporation, distinction, 631 ; congregational, 632; congregational, division, ef- fect, 632; connectional relations, 633; consolidation, 633; constitu- tion, 634; contract, 634; convey- ance, presumption, 634; debts, 634; debts, when subscribers not liable for, 634; defined, 635, 718; devise, diversion, 635; devise, New York rule, 635; dissolution, 636; diversion of property, 636; division, effect on property, 636; division, minority's right, 636; doctrine and worship, control, 637; freedom of organization, 637; Illinois ride, 637; incorporation, 637 ; incorporation, certificate seal 637; incorporation, how proved, 637; incorporation, not necessary, 638; independent, diversion of trust, 638; individual rights, 638; joint incorporation, 638; liability, 638; liability of members, 638; majority, powers, 639; Massachu- setts rule, 639; meetings, 639; meeting, how called, 639; name, 639; New York act of 1813, 640; organization, powers, 640; prop- erty, conveyance to members, effect, 640; property, how to be used, 641; quorum, 641; reincor- poration, identity, 641; rules of order, 641 ; school moneys, sharing in, 641; secession, 642; self- government, 642; separation, ef- fect, 642; separation or inde- pendence, when impossible, 642; services, society may regulate

admissions and condiict, 642; sub- scriber's right to prevent diver- si(jn, 643; threefold aspect, 643; two societies, one minister, 643; unincorporated, status, 644; union with another denomination, 645; war claim, 645; who constitute, 645; withdrawal from synod, effect, 645.

Religious Toleration, granted by Russia, 306; vital principle of Protestantism, 547; English act, effect on trusts, 592; Connecticut, 647; described, 647; Mormons, 648; municipal ordinance, 648; parental duty, 649; Pennsylvania, 649; Protestantism, 650; denied in Mexico, 674 ; asserted in Texas, 674.

Rehgious Worship, decorum re- quired, 202; removing disturber, 212; officers maj'^ preserve order, 212; basis of public recognition, 651; camp meeting, 651; defined, 652; duty of person attending, 652; majority may regulate, 653; musical instruction; singing, 653; orphan asylum, 653; place of, when exempt from taxation, 653; preserving order, 653; meetings, 654; regulations, when illegal, 654; i-emoving disturbers, 654; right of choice, 655; Sunday school, when not excluded, 655; taxes, apportionment, 655; usage of congregation, 655; beating drum, when not an act of, 621, 691; Nebraska, what constitutes, 714; when miscellaneous exercises constitute, 746, 778; trustees can- not control services, 820; when bequest for religious services in- valid, 838.

Replevin, to recover seal, 15.

Reversion, notes on, 535, 536.

Rhode Island Yearly Meeting, Friends, oldest in America, 256.

Rigdon, Sidney, Mormon Councilor, note on, 414.

Riot, disturbing religious meeting, 213.

Robbins, "Religions of all Na- tions," 97.

Roberts, Rev. William, superin- tendent of Methodist mission in Oregon, 352.

INDEX

941

llobiason, John, founder of Inde- pendents, 282.

Roman Catholic Church, bishop, office not a corporation, 47; cem- etery, n'gulating interments, 64; archhislKj]) taking title to burial P'ound. o(>; chapel in Ireland, Massaduisetts betiuest for, sus- tained, 78; archbishojj may direct use of bequest, 80; canons, when subordinate to state law, 110; civil rights and powers, court will not take judicial notice of, 152; tariff i)rescrib('d by bishop cannot be enforced, 102; exer- cising coordinate sjjiritual and temjwral power, effect, 229; se- cret investigations, 230; elections, qualifications of voters in special case, 238; comi)arison with United Greek Church, 27S; bishop's con- trol of priest, 291; mission to Indians, 351; excommunicated priest cannot be continued in office, 3St); excoininuMication of priest, civil courts no jurisdiction over, 387; duty to support priests, 399; parish, 440; rule as to pews, 463; priest's right to rent pews, 4M; deposed, not entitled to occupy property, 535; Iloman Catholic Church, charter, note on, 612; relation to Illinois In- dustrial School for C.irls, 710; lease of b:L><enient of church for pubhc school, sustained, 712; sub- scription, when it becomes pro])- erty of congregation, instead of bishop, 737, 740; trusts for book teaching doctrines of the church, invahd, 790; trustees, how chosen, 822; archbishop, may appoint directors of corporation, 658; archbishop, title to property, 659; archbishoi), title to property, pews, 659; bishop and priest, relations, 659; bishop, authority, 660; bishop's control over priest, 660; bishop, Hability on contracts, 661; bishoj), no contract relation whh local church, 661; bishop not Uable for priest's sahu-y, 661; bishop's pow ers, 661 ; bishop, rela- tion to corporation, Louisiana Church of St. Louis, 661 ; bishop's supervision, 662; bishop's title to

land — cemetery, 663 ; bishop's title to property, 663; bishop, when not hable in damages, 666; burial ground, 666; Cahfornia missions, 666; Catholic Knights of Wisconsin, 667; Catholic, relar tion how determined, 667; cem- etery, exclusion of non-Catholics, 667; cemetery, suicide not en- titled to burial, 668; congregation, relation to general church, 669; corporate rights, 669; English toleration, 6(59; fraternal benefi- ciar>' society, 670; independent corporation, powers, 670; inde- pendent society, St. .\nthony Church, 672; Jesuit Order, 672; Ladies' Club, 672; Louisiana cor- poration, powers of local officers, 673; Mexico, 674; Mexico and Texa.s, 674; minority's right, 675; Nebnuska, status of church, 675; New York, incorporation, effect, 675; orphan a,sylum, not a com- mon school, 676; parish register, 676; Penasylvania, early tolera- tion, 676; Philippine Islands, 677; pope's position imder Interna- tional Law, 677; Porto Rico, 678; jjricst, 678; priest, action against for slander, 678; priest's author- ity, 679; priest, bishop's power of removal, 679; priest, ex-pulsion, 679; priest, maintaining order at meetings, 679; jniest, power to preserve order in church services, 680; priest, not bishop's agent, 680; priest, obligation, 680; priest, removal without notice, 680; priest's right of action against bi-shop, 681; priest, salary, 681; property, how held, 681 ; property riglit, 682; Providence Hospital, 683; rector, ratifying acts, 683; St. Anne's Catholic Apostolic and Roman Church, Detroit, Michi- gan, 684; sexton's salary, 684; Sisters of St. Francis, 684, slander, excommunication, 685; Spanish America, 685; Spanish America, hmitation of Papal authority, 686; Spanish sovereignty', 687; Spanish supremacy in colonies, 687; students, voting residence, 688; Texas, 688; unincorporated church, trust sustained, 688;

•142

INDEX

Woodstock CoUego, Maryland, 689; accepts authority of pope, 97; members of German society, 276; inmates of charitable institu- tions, entitled to ministrations of clergjinen of same faith, 619; status, how determined, 667; wit- ness, oath on Holy EvangeUsts, method, 904; Archbishop of Cashel not a corporation, 47.

Ruhng Elders, when cannot main- tain action, 18; Presbyterian Church, how chosen, 25; powers, 499; additional, when election in- vahd, 504.

Russia, Greek churches in, 278; SjTiod of, how composed, 278; rehgious toleration, 306; property of Lutherans, how aJi'ected by cession to United States, 298; Alaska, toleration of Lutherans in, 306.

Ryan, P. J., Archbishop, bequest, moral trust, sustained, 825.

S

Sacrament, Church of England, who may take, 123.

St. Anne's Catholic and Roman Church, Detroit, Michigan, note on, 684.

St. Benedict, founder of Order of St. Benedict, 172.

St. Benedict, Order of, see Order of St. Benedict.

St. John's Chapel (Trinity Church), closed, action of vestry sustained, 141, 566.

St. Maiy's Boys' Orphan Asylum, Rochester, status under New York constitution and statutes, 708.

St. Matthew's Church, New York, formed in part from Trinity Church, 305.

Salary, minister, action for, 8; min- ister, when previous immorality no defense, 9 ; minister, action for, call must have been accepted, 9; subscriptions, society must use due diligence to collect, 10; Methodist Episcopal Church, minister, no contract relation as to salary, 10; minister, Massa- chu.setts, constitutional limitation

on action for, 10; minister, Meth- odist Episcopal Church, how de- ficiency collected, 10; of minister, when town hable for, 12; of minister, when only voluntary contribution, 12; of minister, ex parte dismission no bar to action for salary, 12; fixed by parish committee, when conclusive, 12; minister suspended not entitled to, 12; minister, if no contract, entitled to a just compensation, 13; members not individually liable for, 13.

Sale, church property, notes on, 537.

Salem, Oregon, Indian mission at, 351.

Salvation Army, disturbing meeting of, 213; described, 690; devise sustained, 690; municipal ordi- nance, Kansas, 691; municipal ordinance, Michigan, 691; mu- nicipal ordinance. New York, 691 ; municipal ordinance, Pennsyl- vania, 691.

Sanhedi'in, custom as to courts on the Sabbath, 758.

Schism, effect on property rights, 145; when not subject of judicial inquiry, 162; in Mennonite so- cieties, 329; controversy over election of trustees does not constitute, 428; Presbyterian Church, Old School and New School formed, 497; effect on property rights, 642, 700; de- fined, 693; effect on property rights, 693; in Unitarian society, effect, 847.

Schoolhouse, other use, 694; leasing basement of chm'ch for, sus- tained, 712; when religious exer- cises do not make it a house of worship, 713; prayer in, when does not make house a place of worship, 716; lease of parochial school building for, sustained, 716.

Schools, foundation ahd purpose, 44; morality may be taught in, 44.

Science and Health, Christian Sci- ence text book, quoted, 105.

Scotch Presbyterians, originated Associate Reformed Church, 25; General Assembly status of, 230;

INDEX

IHP.

instruiiH'iital niu.sir prohibit eil, 50").

Scotland, propagating Church of England, doctrines in, 88; Kirk established church of, 229; note on Presbj'terian Church, 505.

Scriptures. See Bible. Not to be interpreted by government, 593.

Seabur}', Samuel, first Protestant Episcopal bishop in America, 47, 549.

Seal, treasurer, custodian of, 15; when replevin not maintainable for, 15.

Secession, effect on ijrojjerty rights, 245; when adhering minority may control i)n)|H'rty, 253; ejectment against seceders, 307; when .se-

* ceders forf<'it right of property, 365, 36t), 427 ; Pre s b y t e r i a'n Church, in local society, effect, 508; notes on, 540; effect, 576, 582; abandonment, when demand effective, 694; changing denom- inational relations, 694; Congre- gational, 694; con.sent, when necessarj', 696; diversion, 696; division of property, ()96; effect, 697; effect on proj)erty rights, 697; forf<'iting church proi>erty, 699; forfeiting proi>erty rights, 700; injunction, 700; Lutherans, 700; majority's right, 701; minor- ity's right, 702; poUtical differ- ences, 704; Presbyterian Church, 705; proof necessarv, 705; right of, 705; Roman Catholic, 700; temj)orary withdrawal, 706; trust fund, 70(); trustees, seceding, 70(5; United Brethren, 706.

Sect, defined, 197, 714; based on religious beUef, 635.

Sectarian Institution, general note, 70S.

Sectarian Instruction, Bible not a sectarian book, 42, 45; govern- ment not to teach religion, 595; Illinois Industrial School for Girls, 710; Illinois, 712; Iowa, 713; Kaasius, 713; ^lassachusetts, 713; meaning;, how determined, 714; Nebra.ska, 714; Ohio, 714; Penn.sylvania, 715; praj'er, 715; South Dakota, 716; ta-xpayers' presumption of consent, 716; Texas, 717; Wisconsin, 718.

Separatists, described, 173; aided by Quakers, 173; suit against, partition denied, 174.

Sermon, bequest for on Ascension Day, 80.

Session, when members not en- titled to maintain action, 18; A.s,sociate Reformed Church, 25; jurisdiction of Presbj'terj', 192; C'umberland Presbyterian Church, powers, 193; Cumberland Presbyterian Church, relation to congregation, 194; of whom com- I)osed. 194; Presbyterian Church, exclusive jurisdiction of questions relating to worship, 422; Presby- terian C'hurch described, 481, 493; Presbyterian Church, powers con- sidered, 493; Presbyterian Church, membership and powers, .509.

Seventh Day, observance as Sab- bath, no excu.se for violating Sunday Law, 781.

Sewing Circle, funds belong to church, 117, 541.

Shakers, deacons may maintain action for trespass, 16; note on, 80; noted, 175; community of interest, no action for personal services, 719; competency as wit- nesses, 720; covenant, 720; dea- cons, actions by, 721; expulsion, effect, 721; Massachusetts, 722; New York, 722; partition or withdrawal of property, not per- mitted, 724; property, how held, 725; tru-stees, i)romissory note, 726.

Shaw's Reports of Cases in the Court of Sessions, cited, 199.

Simpson, Matthew, Bishop, arbi- trator in John Street Church matter, 346.

Singing. See Music.

Singing School, not permitted in Campbellite Church, 52.

Sinsinawa Mound College, note on, 664.

Sisters of St. Francis, note on, 684.

Slander, statement by priest, when, 679; when priest not liable, 685; archbishop's criticism of priest, 727; minister, 727; privileged statements, church trial, 727.

Slaverj', agitation concerning, effect

044

INDEX

on Methodist Episcopal Church, 359; Presbyterian Church, agita- tion concerning, 510; bequest to aid in suppressing sustained, 888.

Smith, Joseph, 1st, founder and head of Mormon Church, 409; death of, 413.

Smith, Joseph, 2d, anointed head of Mormon Church, 414.

Society, must use due diUgence to collect subscriptions for minis- ter's salary, 10; may maintain action to reform deed and correct mistake, 15; church, distinct from corporation, 107, 112.

Society for the Propagation of the Gospel in Foreign Parts, Ver- mont, grant of society's property void, 70.

Society of Jesus, described, 672.

South Carolina, Statute of Eliza- beth, not adopted in, 81.

South New Market Methodist Sem- inary, entitled to legacy, 881.

Spain, King, supreme patron of Roman Catholic Chm-ch in Amer- ica, 685; control of church in Spanish America, 086.

Specific Performance, action on con- tract for sale of church property, 16.

Spelman, Sir Henry, quoted, He- brew courts on the Sabbath, 758.

Spiiitual and Philosophical Temple, division, minority's right, 728.

SpirituaUsts, camp groimds, 729; • devise rejected, 729; trust sus- tained, 729; unincorporated so- ciety, cannot take bequest, 730.

Starkie on Evidence, quoted, com- petency of witness, 901.

State, not bound by decisions of ecclesiastical courts, 230; separa- tion from church, 326; relation to church, 590; duty relating to religion, 592; recognition of re- ligious worship, 651; Christian Sabbath a civil institution, 766.

Stated Attendants, defined, 872; rule applied to Wesleyan Method- ist, 875.

Statedly Officiates, meaning of, 398.

Stated Supply, selection and super- vision of, 396.

State Law, superior to church dis- cipline, 110.

Statute of Limitations, applies to minister's claim for services, 13.

Stewards, Methodist Episcopal Church, functions, 348.

Story, Joseph, Judge, comment on Girard will, 594.

Strong's Relations of Civil Law to Chm-ch Polity, quoted, 663.

Subscription, for minister's salary, society must use due diligence to collect, 10; building committee, action by, 731; condition ac- cepted, 731; condition, variation, 732; condition, specified amount to be raised, 733; consideration, 733 ; defective incorporation, when a defense, 733; existing debt, 733; liability is several, 734; mutuality, 734; performance b5^ society, 735; perpetual liabiUty, 736; promissory note, 736; revo- cation, 737; Roman Catholic Church, special purpose, 737; special agi-eement, 738; subscrib- er's death, effect, 738; sub- scriber's intention as to object, 738; subscription note, validity, 739; Sunday, 739; Sunday school, 739; title tx3 fund, 740; unincor- porated society, 740; withdrawal from society, effect, 741.

Suffrage, Right of, limited to church members, 591.

Suicide, not entitled to burial in Catholic cemetery, 668.

Summary Conviction, disturbing re- ligious meeting, 214.

Summary Proceeding, to recover property occupied by deposed priest, 535.

Sunday, worldly business, compul- sory admission fee to camp meet- ing, 55; observance, when mu- nicipal ordinance invalid, 620; chiu"ch subscription on, when vahd, 739; agent's appointment, 745; agent's unlawful acceptance, 745; amusements, 745; arbitra- tion, award, 746; assignment for creditors, 746; attachment, 746; attorney's clerk, extra compensa- tion, 747; banker, 747; bank paper, 747; balloon ascension, 747; barber, 747; baseball, 749; bill, acceptance, 749; bill of ex- change; indorsement void, 750;

INDEX

1)45

bill of sale, 750; bond, 750; business, 750; butcher, 750; camp meeting, charge for admission, 750; canal lock keeper, 751; char- itable institution, resolution, 751; chattel mortgage, 751; church, resolution to employ minister, 751; cigars, 752; commercial jxiper, 752; common carrier, 753; contract, 753; conversion, driving horse beyond contract hmit, 758; courts, 758; courts, Ancient He- brew custom, 758; courts, chai'g- ing jiuy, 758*; courts, early Cliris- tian custom, 759; courts, New York Citj' magistrates, 759; deed, 759; defined, 760; demurrage, 760; disorderly conduct, 760; em- ployer and employee, 761 ; execu- tion, 761; food, 761; foreclosure sale, 761; games, 762; gaming, dice, 762; habeas corpus, 762; ice cream, 762; immoderate driv- ing, 762; injuries, action for damages, 762; insurance, 762; in- toxicating liquor, 763; Jews, 763; justices extra conipensatit)n, 764; laborer, hiring, 764; lease, 7()4; legal proceedings, 764; legislative powers, 765; levy, 768; loan, 768; mail carrier, 7t)8; marriage, 768; meat market, 768; moving pic- tures, 768; municipal ordinance, 768; necessity, 769; newspapers, 771; object, 772; omnibus, 772; one olTense only, 772; ordinary calling, 773; payment on debt, 773; ))hysician's prescription, 773; Iilainliff's violation of law, when no defense, 773; preserving prop- erty, 773; i)rocess, 774; promis- sory note, 774; redemption from sheriff's sale, 777; religious serv- ices, 778; rescission of contract, 778; sale, 778; salesman, servi(;es on Sunday, 780; saloon, 781; saloon closing, mandamus, 781 ; search-warrant, 781; sea-weed, 781; security for good behavior, 781 ; seventh day observance, 781 ; slot machine, 781; social club, treasurer receiving money, 782; soda water. 782; stage coach, 782; statute, constitutional, 782; stat- ute of limitations, 783; statute, unconstitutional, 783; statute,

when retrospective, 783; sub- scriptions on Sunday, 783; sunset, 784; surety contract, 784; tel- ephone, 784; tippling house, 784; tort, 784; traveling, 784; ti'espass, adjusting damages, 787; trust, declaration, 787; vaudeville, 787; violation, remed}- for, 787; wai- rant, 787; warrant of attomej^, 788; will, 788.

Simday School, bequest sustained, 71; library, bequest for, 79; be- quest in aid of, 81; betjuest for, siLstained, 89; Christian Church, flourishing condition of, 94; Clu-is- tian Science, liabilit}- of treasurer, 104; room a place of worship, 113; Christmas festival, not a meeting for religious worship, 201; dis- turbing meeting of, 214; certain books prescribed by Lutherans for use in, 298; building, fund for belongs to chuich, 542, 739; not a place of religious worship, 655; when schoolhouse cannot be used f(jr, 694; ^\■hen use of school- house for does not make it a place of public worship, 694; relation to church. 789; treasurer, when responsible to parent so- ciety, 789; building, when exempt from taxation, 798; when fund raised for belongs to church, 803; gift of fund for Christmas pres- ents, invalid, 827; gift of fund for library, invalid, 828; bequest sustained, 888.

Superstitious Use, mass, not a, 313; gift for masses sustained, 473; when bequest for masses invalid, 477; existence noted, 790; origin, 790; Roman CathoUc pubhca- tions, 790; Shakers, 791.

Suspension of Power of Alienation, note on, 542.

Swedenborgians, bequest, rejected, 792; bequest sustained, 792.

Synod, Associate Reformed Church, 25; how constituted, 25; officers of, 26; procechu-e, 26; Cumber- land Presbyterian Church, how constituted, 194; when decisions not conclusive, 226; Cerman Re- formed Church, 273; variou.s Lutheran synods noted, 297, 307; Norwegian Evangelical Lutheran

946

INDEX

Church, 425; Presbyterian Church described, 481 ; Reformed Dutch Church, 579. 583; Re- formed Presbyterian Church, 587.

Synod of Buffalo, Lutherans, rule as to confession of sins, 300.

Synod of Dort, denounces Lutheran tenets, 304.

Sj'nod of New York, Associate Reformed Church, 25; composi- tion and jmisdiction, 26.

Synod of Ohio, Lutherans, rule as to confession of sins, 300.

Synod of Russia, of whom com- posed, 278.

Synods of the West, Associate Re- formed Church, 25.

'axation, for public worship, when minister cannot recover tax, 11; camp meeting property, 55; when minister exempt, 399; minor, in what parish taxed, 438; parishes, 440; pews, 404; legacy for masses, when subject to trartsfer tax, 479; when property exempt, 543; par- sonage, when subject to, 585; for support of ministers, 591; prop- erty liable to assessment for local improvements, 613; Young Men's ChrLstian ^Association, not a re- ligious corporation, 616; Yoimg \\'omen's Chiastian Association, exempt from inheritance tax, 616; lilace of worship, exemption, 653; when cemetery land subject to, 666; Roman Catholic Church in IVIexico, supported by, 674; mem- bers of unincorporated society may be exempted from assessment for support of parish church, 844; American Sunday School Union, 793; camp meeting associations, 793; cemetery, 793; corporate securities, 794; dissenters, 794; Georgia rule, 794; Illinois nile, 794; land adjacent to building, 794; liquor tax law, 795; masses, 795; member, exemption, 795; member, liability, 795; members, support of church, 795; member, when liabiUty arises, 795; minis- ters, 796; see Ministers, Taxation, Exemption, 399; New Hampshire,

796; ownership and use, 796; par- sonage, 796; Pennsylvania rule, 798; resulting benefits, 798; Sun- day school building, 798; transfer tax, 798; use for other purposes, 799, 851; worship, Boston, 799; Young Men's Christian Associa- tion, 799; use of church discon- tinued, apportionment of tax, 866; Universalist Church, when not exempt from supporting Congre- gational minister, 866.

Tax Law, use of chm-ch building, effect, 114.

Tenet, when comi may inquire con- cerning, 145, 158.

Temporalities, defined, 117; Civil Courts may prevent diversion of, 144; courts will protect, 163; di- version, who entitled to posses- sion, 274; trustees have genera) charge of, 503; trustees charged with care of, 810, 816, 823.

Tennessee Annual Conference, be- que.st to invalid, 358.

Territorial Limitation, note on, 117.

Texas, Roman CathoUc Church, title to property, 674; rehgious toleration in, 674; revolution and independence, effect on Mexican titles, 688; use of Bible in pubhc schools sustained, 717.

Texas General Convention, exclud- ing member of, 37.

^iheological Seminary, Associate'Re- formed Church, New York and Princeton, 29.

Thompson, Charles B., founder of Jehovah Presbytery of Zion, Preparation, Iowa, 411.

Toleration (see also Religious Tol- eration), of Baptists in England, 32; scope of, 49, 50.

Tomb, rights of owner, 65; grant for repair not a charitable use, 82.

Tombstone, title of OA\'ner, 66; see Monument.

TowT), settled minister, when may maintain action for salary, 12; bequest for religious purposes, 72; rehgious society in, status, 328; division into parsonages, effect on title to meeting house, 436; land held for parsonage, note on, 442; ministerial land, status, 468; sup-

IXDKX

947

port of j)i-blir worship, 591; ro- quired to provide place of public worshij), oOl; Connecticut, eccle- siastical affairs, 800; Maine, paro- chial powers, 801; Massachusetts, parochial powers, 801; New Hampshire, gospel land, 802; New Hampshire, parochial jxnv- ers, 802.

Treasurer, custodian of corporate seal, 15; Christian Science, liabil- ity of treasurer for funds collectwl for organ, 105; when society liable for debt contracted by treasurer, (iO.'i; priest, generallv is, 730; general duty, 803; li.abilify, 803; j)()wer to borrow money, 804; liiibility for society funds, 846.

Treaty of Paris, 18<18. recognition of Roman Catholic Church, ()7S; 1703, recognition of ancient Cath- olic organizations, i)S4.

Treaty of Peace, Kngland. properly of British subjects protected bv, 70.

'rrespa.-ss. Shakers, fli-acons may maintain action, Ki; action for digging and removing coal, 17; when society cannot maintain. 17; by .><ettled minister, 17.

Trinity Church. Xew '\'ork, closing St. John's Chapel, action .sus- tained, 141; note on, 304; char- ter, 505.

'IVust, when may not be impaired by trustees, 7; when may not be altere<l, S4; for support of minister sustained, S(i; Theo- logical questions not considere<l by civil courts, Itil; courts will prevent j)erversion of, 103; when courts will inquire into 'reli- gious opinions, 1()5; sj)ecial effect, 541; Protestant Ki)iscopal Church, bi.shop of Cioorgia, note on, 566; testator's intention, 577; when jifTected by deviation in doctrine, 586; Reformed Dutch Church, conveyance sustained, 586; effect of English toleration act, 592; cannot be divert (hI, 605; when corporation may execute, 614; siLstained ;us to Roman Catholic unincorporate<l society, 68,8; ,se- ccders not entitled to share in funds, 706; Shakei-s, note on, 723;

librarj' for study of Spiritualism, sustained, 730. Trustees, when not liable on build- ing contract, 3; may be sued by corporation, 4; constitute cor- poration, 4; conveyance to them conveyance to society, 5; when cannot maintain action for for- cible entry and detainer, 6; not permitted to impair trast in church property, 7; may give note for materials, 14; President and Secretary cannot give valid note without authority, 14; do facto may maintain action for trespass, 16; action for digging and remov- ing coal, 17; title described, 17; when liable on contract, 17; managing temporalities, exclusive right to bring action, 18; when no action against to restrain use of in.strumental music, 18; de facto, what coastitutes, 18; Illinois, must sue or defend for society, 18; New York, must sue in cor- jjorate name, 18; restraining un- lawful act, 18; when liable to suit by members, 19; action by, judgment may be for corpora- tion, 19; when action may be in name of, 20; must show title to office, 20; unuicorporated society, de facto may maintain action, 20; Baptist Church, control of property, 37; of charity must account, 90; Christian Church, part of corporation, 95; deacons, ex-officio, Baptist Church, 196; election, burden of proof, 234; election, when justice may call meeting for, 235; election must be regular, 238, 239; no action after expiration of term, 246; members interfering with, injunc- tion granted, 286, 287; Lutheran, relation to church, 289; Lu- theran, when maj' not be re- strained from regulating public worship, 302; Alaryland, title, mandamus proper remedy to test, 312; cannot be evicted by cor- porators, 342; cannot on o^^"n motion institute proceedings for sale of propert\', 346; title to office cannot be determined by arbitration, 346; when may hold

948

INDEX

property as against corporation, 371; mortgage by, validity, 418; no jurisdiction of questions re- lating to public worship, 422; controversy over election does not constitute schism, 428; may control distribution and use of pews, 448; Presbyterian Church, relation to call of minister, 499; Presbyterian Church, 513; con- trol of property, 544; cannot act for two societies, 566, 601; cast- ing vote, New York rule, 568; quo warranto, only remedy to test title to office, 574; when act not binding on corporators, 602; making promissory note, when society not liable on, 607; no power to expel member of so- ciety, 609; must meet to act, 611, 615; element of corporation, 613; general powers, 614; directors, archbishop may appoint, 658; se- ceding, status, 706; Shakers, note on, 721, 722; of unincorporated society, protected by court, 846; abandonment of office, 806; ac- tions, de facto, 806; actions, Illinois rule, 806; actions, pre- organization contracts, 807; ac- tion, ti'espass, 807; appointment by court, 807; appointment by minister, 807; borrowing money, 807; building committee, 808; by laws, 808; by laws, assessments on pew holders, 808; closing church, 808; control of property, 808; conveyance, 809; conveyance by, when required, 809; corporate character, Maryland rule, 809; corporate control of, 809; cov- enant of warranty, 810; de facto, 810; diversion of property, 810; election, 811; election, burden of proof, 812; election, place, 812; employment of counsel, 812; excluding minister from church edifice, 812; forcible entry and detainer, 812; holding over, 813; individual liability, 813; joint in- terest, 814; liability, property sold to pastor, 814; meeting, duty to attend, 814; meeting necessary, 814; mingling charitable and other funds, 815; minister's employ- ment, 815; occupying property

after termination of contract, 815; official term, 816; official title must be shown, 816; ouster, effect, 816; possession of property, 816; powers, Georgia rule, 817; powers, Maine rule, 817; powers, New York rule, 817; powers, Pennsylvania rule, 818; presump- tion of official title, 818; prom- issory note, 818; property, trus- tees cannot distribute, 819; quo- rum, 819; quo warranto, 820; re- ligious services, 820; remoA^al, 820; representative character, cannot act in two capacities, 821; repre- sentative character, 821; Roman CathoUc, how chosen, 822; seat- ing, power to regulate, 822; status, 822; statute of limitatioas cannot be waived, 823; temporal- ities, 823; title to office, 823; title to office, necessary to maintain action, 823; United Brethi-en in Christ, how appointed, 857. Trusts, advowson, 825; archbishop, moral trust, 825; Aubiu-n Theo- logical Seminary, 826; beneficiary, how determined, 826; bishop, 826; cemeteries, 827; charitable, de- fined, 827; church, incapacitv, 827; Christmas presents, 827; church library, Sunday school, 828; corporate capacity, 828; court to administer, 828; dedic^a- tion of land for religious piu-poses, 829 ; denominational Umitation, 829; denominational use, 830; discretion of trustees, 830; diver- sion, 830; donor's intention, 831; equity jurisdiction, 831; for- eign, unincorporated society, 832; funds, how applied, 832; home for aged persons, 833; implied from bequest or conveyance, 833; indefiniteness, 833; Legislature cannot modify, 834; legislative power, 834; limitation, 834; Ma- rine Bible Society, 835; missions, 835; object, how ascertained, 835; other states, 836; parol, when insufficient, 836; parsonage, 837; Philips Academy Divinity School, 837; Poor Jewish families, 837; poor ministers, 837; Princeton Theological Seminary, 838; re- ligious services, 838; sectarian

INDEX

949

purpose, 839; Sunday school, 840; suspending power of alienation, 840; title, 840; unincorporated society, 840; Universalist Church, 842; worship, usage, how deter- mined, 842. Twenty-third Psalm, reciting in school does not constitute public worship, 713.

U

Unincorporated Society, when trus- tees of ("innot maintain eject- ment, 6; when not u necessary party to an action on a building contract, 17; when cannot sue nor be sued, 20; when members arc personally liable, 20; trustees, de facto may maintain action, 20; cannot take bequests, 22; devise to vestry for use of sus- tained, 81; such beque-sts v;ilid in Illinois, 81; when grant of land to, valid — sub.se(iuent incor- poration, SI; b('(juest to, when void, DO; Christian Chiuch, may take and hold property, 90; title to property, .')44, 567; status, rights of property, 044; Roman Catholic Church, trust siLstained, ()HS; Si)iritualists, bequest invalid, 730; when sub.scription for valid, 740; trusfccs dc facto, may main- tain trespa>s, S(H); fru.^t for, when valid, 841; beciucst to, void, 844; church a.-<.<essments, 844; con- veyance to, valid, 844; incorpora- tion, effect, 84.j; incorporation, effect on title to land, 84.5; mem- bers, liabihtv, 84.5; jiroperty, how held, 840; 'right to sue, 840; Roman Catholic, 840; trustees, protectcnl, <S4(); when truste<vs may be comiielled to execute conveyance, 867.

L nitarians, cha|)el, bequest for sustained, 82; bequest sustained, 847, 893; doctrines and worship, schism, S47; taxation, 851.

I nited Baptist Cluu-ch, formation of, 444.

United Brethren in Christ, revision of constitution and confession of faith subject to review by civil courts, 10(5; secession from local society, effe<'t, 700; amended con-

stitution and confession of faith, 852; amending constitution, 1885- 1889, 853; Canada, 853; division, 855; government, 856; history, 859; history and form of govern- ment, 800; majority's right, 861; Philomath College, 862.

United Evangelical Church, noted, 246.

United German Lutheran Churches of New York, note on, 305.

United Greek Church, differs from other Greek churches, 278.

United Presbyterian Chiu-ch, union with Free Church of Scotland, 2.52; note on origin of, 512; organ- ization, 864; minority's right, 864.

United States, rehgious freedom, 625; relation to Roman Catholic Church, 669.

Universalist, minister, Massachu- setts, limitation of action for salary, 10; voluntary association, teacher not entitled to share in public money, 055; bequest for establislunent of church, sus- tained, 842; legacy to Berkshire Society, sustained, 882; action, how to be brought, 865; bequest sustained, 865; general conven- tion, 865; pews, by laws, 865; .stock, subscription, 866; taxa- tion, 866; transfer tax, 866; trust sustained, 866; unincorporated society, conveyance directed, 807; competencj' as witnesses, 904.

I'rsuline Communitv, bequest sus- tained, 893.

Utah, Mormon Church charters, 407.

Vann, Irving T., Judge, quoted, 663.

Vault, in churchyaid, use of, 59; title of purchaser from society, 05; bequest for repair, void, 71; grant for repair not a charitable use, 82.

Vermont, grant of property of Society for Propagating Gospel in Foreign Parts, void, 70; be- quest for charitable uses, invalid, 81 ; has no religious establish- ment, 231.

Vestry, when not hable on building

950

INDEX

contract, 5; must act as a body, 5; may ratify note given by war- dens, 14; may receive devise for unincorporated society, 81; Trin- ity Church, closing St. John's Chapel, action sustained, 141; when civil courts may not inter- fere with, 158; may remove dis- turber of meeting, 212; when restrained from dismissing minis- ter, 287; may call minister, when injunction against denied, 289; when special election may be ordcied, 311; mandamus to com- pel attendance at meeting, 312; cannot exclude rector from pos- session and control of church edifice, 381, 386, 562; when may not make mortgage wthont bish- op's consent, 418; may take jiroceeding for sale without vote of corporators, 539; room for use of, 544; control of guild building, 553; cannot remove rector, 557; presiding officer, casting vote, 558; cannot act without meeting, 567; meeting, quoriun, 569; as- signment of pews, 569; disturber may be removed, 570; promissory notes by, when society liable, 570; status, 572; quo warranto proper remedy to test title to office, 574; constitute corporation, 615.

Vicar, when not entitled to adjourn parish meeting, 234.

Virginia, church cannot be incor- porated, 117; Legislature enter- tains charges against rector, 228; early established church, 570; re- ligious freedom, 625.

^'oters (see also Elections, and Meetings), qualifications, by-laws regulating, 234; qualifications in special case, 2.38; illegal, when reception does not vitiate elec- tion, 238; right cannot be recon- sidered after result of election declared, 240; assessment, 868; contribution, 868; Episcopalians at congr(»gational meeting, 869; qualifications, how determined, 869; qualificMt ions, how fixed, 870; qualifications in general, 870; stated attendants, 872; with- drawal, effect, 872; women, meet- ing for incorporation, 872.

W

\N'aco Female College, Texas, elec- tion, debt, action relating to, 364. Walden, John M., Bishop, consol- idation of Methodist Episcopal Churches sustained, 142, 339, 342. Waller, Alvin F., Rev., Oregon, Methodist Mission at Wascopum, 352.

Ward, religious education, 281, 590; guardian holds office of trust, 623.

Warfield College, Protestant Epis- copal Church, bequest sustained, 571.

Wascopimi Indians, Methodist mis- sion to, 351, 352.

Washington, D. C, German Society constituent elements of, 276.

A\'ayland, Francis, Rev., descrip- tion of New England Baptist churches, 37.

Webster's International Dictionary, quoted, mass, 313.

Welch Circulating Charity Schools, bequest sustained, devise invalid, 887.

Wesleyan Methodist, bequest sus- tained, 874; Conference, powers relating to the trial and suspen- sion of minister, 874; history, 874; member, when right of action lost, 875.

Wesleyan Methodist Convention of America, organizations, 874.

Wesley, John, founder of Method- ism, 334.

^^'estern New York Diocese, trust for, invalid, 572.

Westminster College, Presbyterian Church, note on, 514.

Westminster Confession of Faith, Cumberland Presbyterian Church dissents from, 190; tenet of Free Church of Scotland, 253.

West Virginia, will, when foreign corporation may take under, 86.

^\'eyth, establishes mission to In- dians on Wallamet River, 351.

Whitman, Dr., takes charge of Oregon mission, 352, 353.

Whitman, Perrin B., has charge of Oegon mission, 353.

WicklifTe, John, relation to Prot- estant Reformation, 545.

Widows' and Orphans Fund, Prot-

INDEX

951

ostant Episcopal Church, bequest sustained, 572.

Will, bequest , domicile of legatee gov- erns validity, 22; unincorporated society, cannot take bequest, sub- sequent incorporat ion d(X's not cure defect, 22; 9th ward, New York, bequest for coal to inhabitants, 350; testator's intention, 4()4; Auburn Theological Seminary, 876; bishop to be appointed, 877; capacity to take, 877; conditional bequest, 877; constitutional lim- itation, 877; oonveyancc. includes will, 878; corjioration, b('C|ue.-t by non-resident, 878; dissolution of society, efT<'ct, 879; foreign bpn(>- ficiary, 879; foreign society, 880; identifying beneficiary, 880; in- definiteness, 881; intention, 884; lega<ty forfeited by change of doctrine, 885; legislative sanction, 885; misdescription, 880; parol evidence, 886; perpetuity, 886; Quakers, yearly meeting, void devise, 886; religion, advance- ment, 886; reward of merit. SS7; Sailors' Home, Boston, Mjiksi- chusetts, 887; slavery and in- temperance, 888; Simday .school, 888; testator's religious opinions, 888; time linut, 888; truste<-, will acknowledging trust, 892; undue influence, .S92; unincorj>orated .so- ciety, 892; Unitarians, 893; Ur- suline Community, 893; Young Men's Christian .\ssociation, 893.

William the Conqueror, confirms early canons jirohibiting judicial proceedings on the Sabbath, 7.59.

\\'ilmington .\nnual Conference, provision for education of min- isters for, 344.

Window, ornamental, bequest for sastained, 71.

\\'inebrennerians, set> Church of CJod at Harrisburg, 124.

Winebrenner, John, foimder of Church of God at Harrisburg, 124.

Wirth, Augustin, member of Order of St. Benedict, 172; action against Order, 173.

Wisconsin, constitution, reading Bi- ble in schools a violation of, 45; will sustained requiring legatee to attend church, 619; sectarian in- struction in schools prohibited, 71S.

\\'itne.ss, Protestant Ejiiscopal bishop competent to define parish and rector, 48; Shakers, com- petencv !us witnes.ses, 720; atheist, 895; child, 895; competency, 897; immunity from examination, 900; oath, 9<J0; partv, religious belief, 1KK3; Quaker, 900; religious b(- lief, *KK); Roman Catholic, oath how administered, 903; Univer- salist, 904.

\\ooflstock College, bequest sus- tained, 689.

^^'orship. See Public ^^'orship, and Religious Worship.

Worship, Place of. See Place of W orship.

^^'ylie, Rev. 'Iheodore W. J., minister, l^eformed Presbyterian Church, 587.

^ Oung, Brigham, Mormon leader, 413.

"^'oung Men's Christian Association, not exemj)t from transfer tax, 616; when i)roperty subject to taxation, 799; bequest for organ- ization .sustained, 893; au.xiliary, 1X)5; |)roperty, hmitation, 905; taxation, 906."

^ oung Women's Christian Associa- tion, described, exempt from in- heritance tax, 616; auxiliary to "b'oung Men's Christian Associar tion, 905.

Z

Zion Church, New York, formed from Trinity Church, 305.

Zuinglius, relation to Protestant Reformation, 545.

>

"'•'~'.i-.-;=s:=:"-'-

t-^ *:■#:-#!€"«

m .., jsj

« «

t ^a t '^n ii ^^ . ^. ■*?■ ^'" *^

^A $■'■■ :fi tfi

1. :%,

4 t). ,. ^..

^ . *i #k |i 'Mi m ^., *' *i iijr .*:r iS^ '^ *. ^ >>■

^% n 1^ If h t I*

X- ,- K-^ . \\ ^ h 1% J^

■ ' : .fe -f

'T# Ji rt ^ 1^

4^ a i** i^

Jt B

-■ - J .' ^- ^^ ^ ^ ^ )V iV " !^ ■ • .

V.-'S-.* «.*«.'^ -.*^-ft <? 1' '' i^- " "

. '■ ■^- ft _1» ^ t* . ff

..#,. e., S^(;

' ■■ '■" it 'X it W ft' 1^ li ;i IV

i^ ,:it :, 1^ ,^ # ^ M\^ \ if ^ §■ * n •' ^ " ,$ ^ ,c ^

.J , V? ft >H iV - 1

i»: ^. (I t ^i ■ '• ^

■ '■^' . • -^ ^ ^ r ^» . '* '^■■

	■ ■■■
^^^m ^^^m ^^^m ^^^m
■ ■■■ ■ ■■■

¥ ■ 'I

}X "M

^. .-^ ;? '^ ^ ' B il :? ■■ It" ]^ 1% '	;!; i^, ji ;f V i'i
^' ';^ i? t« ' (« ^	1 ■ S: "' it
r^ ^* Jf- if ;i:	li i.r Jf

■ ""#■ ^^ ,^^- ...-^.^^

•^ If 1^5^ " \^' i .-■ % i l^. t ' t

^ ^ ^: - H It? i

'^,^^^^^.: t ,.. ^\\^ •:ii''.i> '^il^^l' ^ .. ^- .i^ P- t :i* . i? 1* ^^ .

l&:. Ifc ^ • /^ ^* ;k.>*^' ^ ^

. i%: -1*^- m. m^ r ' -^

l^' \% ...it (S^ I .

p. : i* :i '^ ii: ^

/sr k:!^ ii^f ■ 5% ' c^r

^ 4.

•f( f(_ -'I

■*:::'*

' ^ ^^^^

-v.. tl.

a, m

•j; , .^.

%.„^ -^^i':*!.. :|i

■« •§

t,' « 'ti-