creed to belong to the complainants or their successors, or that an account might be taken of the interests of the complainants, and of the corporators they represent, in the meeting-house and pews, and that the defendants might be compelled to pay them the amount thereof for the benefit of their church and society.

The contest arose out of the following circumstances: In 1813 A. Norton and wife conveyed to "the elder or minister, deacons, wardens, or vestrymen, and their successors in office, of the first Baptist church in Hartford," a lot of ground for the erection of a Baptist church for the sole and only use of the said Baptist church and society or congregation as such, in regular standing and fellowship with the Baptist Association. A meeting-house was erected on the lot and the expense defrayed by the sale of the pews. In 1829 Witherell and a majority of the church being thought by the minority to be pursuing an unchristian course of conduct, and one at variance with the principles of the Baptist church, an appeal was taken to the Washington Baptist Association, a tribunal constituted by all the Baptist churches in the county of Washington to decide upon ecclesiastical grievances, which tribunal decided that such minority was the regular Baptist church in Hartford. The minority, then duly incorporated, possessed themselves of the meeting-house and the temporalities of the church, except the church records and the communion vessels, which some of the defendants withheld. The complainants then alleged that the defendants obtruded themselves into the meeting-house on the Sabbath, occupied the same, excluded the complainants' minister from preaching, and still retained possession of the church; and that the complainants and those they represented owned more than two thirds of the meeting-house, while the defendants with their adherents owned less than one third.

The defendants, in return to the notice of the application for an injunction, put in an affidavit and certificate showing that they had become incorporated, and that the certificate was acknowledged and recorded according to the statute.

S. Stevens, for the complainants.

J. Crary, contra.

The CHANCELLOR. It is evident from the affidavit on the part of the defendants that here are two corporations, or bodies claiming to be corporations, contending for the possession of this meeting-house. If the only contest between these parties

is as to which is the corporation legally entitled to the possession of the temporalities of the church or society originally formed in Hartford, I think the complainants have mistaken their remedy. They should have settled that right either by an action of trespass against the individuals who took possession of the pulpit, or by an action of ejectment to recover possession of the meeting-house. By referring to the statute relative to the incorporation of religious societies, 3 Rev. Stat. 295, sec. 4, it will be found that the trustees of a church or society, when legally incorporated, are authorized to take into their possession all the property of the society, whether the same was given directly to such church or society, or to any other person for their use; and they are to hold such property as fully and amply as if the right or title thereto had been originally vested in the trustees. I think the only rational construction which can be given to this part of the statute is, that if the grantor or any other person held the estate originally in trust for the church or society, the legal estate is transferred to the corporation whenever the requisites of the statute are complied with, so as to render them legally competent to take property in their corporate character.

In the case of The Trustees of the Philadelphia Baptist Association v. Hart's Executors, 4 Wheat. 1, the supreme court of the United States decided that an unincorporated association could not take land by devise to them in the name of their society, and that a devise of that description could not be executed by a court of chancery as a charity by the common law. But in a subsequent case the same court sustained a bill by the nominal trustees of an unincorporated religious society, to protect their right to a lot of ground granted for the use of such society by the name of "The German Lutheran Church." Beatty and Ritchie v. Kurtz, 2 Pet. 566. And in the late case of Inglis v. The Sailor's Snug Harbor, 3 Id. 114, they held a devise valid, which provided for the vesting of the property in a corporation to be thereafter created. Similar decisions have been made in several of the state courts in respect to lands granted or devised for pious uses, or other purposes of charity: 1 Greenl. 271; 9 Mass. 44. At the time the deed of Norton and wife was executed, conveying the property to this society, by their associate name, the statute was in existence by which the members of the society were authorized to incorporate themselves whenever they thought proper; and by which statute it was declared that the legal title to property thus conveyed should

AM. DEO. VOL. XXIV-15

in that event vest in the corporation. The legal title being in the corporation which was first properly constituted, the parties must be left to their legal remedy to ascertain whether the complainants are entitled to the possession of the property, or the corporation of which a part of the defendants are trustees, if there can be any doubt on that subject.

It may, however, be proper, as it may save unnecessary litigation to these parties, to state briefly my views on that question. The complainants appear to have acted on the supposition that the decision of the ecclesiastical judicatory, that a certain portion of the members of the Baptist church in Hartford were heterodox in doctrine or practice, and were not the true church, must have a legal effect upon the incorporation of the members of this religious society. But I apprehend that in this they have overlooked the distinction between the congregation and the church strictly so called, which comprises only a part of the congregation or society. The church consists of an indefinite number of persons, of one or both sexes, who have made a public profession of religion, and who are associated together by a covenant of church fellowship, for the purpose of celebrating the sacrament, and watching over the spiritual welfare of each other. But a religious society or congregation, as recognized by the third section of the statute providing for the incorporation of religious societies, is, with us, what is usually denominated a poll parish in some of the neighboring states. It consists of 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 ordinances of baptism, etc. Although a church or body of professing Christians is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church, as such, the legal or temporal tribunals of this state do not profess to have any jurisdiction whatever, except so far as is necessary to protect 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 judicatories, to which they have voluntarily subjected themselves. But, as a general principle, those ecclesiastical judicatories can not interfere with the temporal concerns of the congregation or society with which the church or the members

thereof are connected. It follows, from this view of the subject, that these defendants, although they may have been rightfully excluded from the communion and fellowship of the Baptist church, on account of anti-sabbatarianism, or some other heresy, as suggested by the complainants' counsel, yet they may still not only be legal voters as members of the congregation or society, but they may be elected trustees, and have the management of the temporal concerns of the congregration.

The affidavit on the part of the defendants shows that the incorporation of the society, on the sixth of September last, was made upon due notice from the pulpit, in the usual form as prescribed by the statute; and that the members of the congregation generally attended and voted for trustees. Although one of the notices must probably have been given by Elder Witherell after the decision of the ecclesiastical council, this did not render the notice invalid. It is not pretended but that he was at that time the minister in fact of the congregation; although, as a member of the schismatic part of the church, the council had decided against him. If I am correctly informed as to the usages of the Calvinistic Baptists, it is to ordain their clergyman to the work of evangelists, or ministers of the gospel at large, and not as the 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 connection, by church membership, with a particular church. Although as a member of this church Elder Witherell may have been rightfully excluded from church-fellowship with the Baptist Association of Washington county, it is not alleged in the bill that the council had any authority to deprive him of the privileges of the ministry. And they certainly had no right to remove him from his situation as minister of any particular society or congregation, without the consent of the majority of the members thereof; or of their legally constituted trustees, if they were incorporated. My opinion, therefore, upon the facts now before me, is, that the corporation organized on the sixth of September succeeded to the temporal rights of this society, and that the trustees of that incorporation are legally entitled to the possession and control of the meeting-house and other temporalities of the congregation.

The fact that the corporators whom the complainants represent own two thirds of the pews, can not alter the rights of the parties. The grant of a pew in perpetuity does not give to the

owner an absolute right of property, as in a grant of land in fee. The grantee is only entitled to the use of the pew for the purpose of sitting therein during divine service: Sayer's Rep. 177; 1 Phil. 323; 3 Pick. 344; 4 N. H. 480; 7 Pick. 138. 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 his legal right to use his pew for that purpose.

The question whether the trustees of this society can lawfully change the nature of the institution, as originally established, can not be decided between the present parties. If the defendants, as trustees of the corporation which has the legal control of the temporalities of this society or congregation, abuse the trust reposed in them by the corporators or those for whose benefit they hold the property, and misapply the funds of the society, I am inclined to think this court, at common law, has power to compel them to account for such misapplication; notwithstanding the provision in the revised statutes excepting religious incorporations from the visitorial power which is expressly given to the chancellor in relation to ordinary corporations: 2 Rev. Stat. 461, art. 2. But it must be a most plain and palpable abuse of power, which will induce this court to interfere as to any dispute growing out of religious or sectarian controversies. In the case of The Attorney-general v. Pearson, 3 Meriv. 353, to which I was referred on the argument as a leading case on this subject, Lord Eldon did interfere to prevent the trustees of a church erected for Trinitarian Protestant dissenters from being converted into a Unitarian chapel; although a great portion of the members of the congregation were said to have embraced the new doctrines. It must, however, be recollected that the chancellor was there administering the equity of the statute, 43 Eliz. c. 4, relative to charitable uses; which statute is not in force here. His lordship puts his decision upon the ground that the court is bound to see the trust executed according to the intention of the original founders of the charity, without inquiring whether the doctrines. intended to be taught in that particular church be right or wrong.

In the case under consideration, I presume the original founders of the Baptist church in Hartford, in conformity with the generally received opinion among Calvinistic Baptists, believed the holy Sabbath was of divine institution; and that they intended such doctrines should be taught in that church and