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:=:"-'-
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11