is one principle common to the trustees of all incorporated churches. They have the possession and the custody of the temporalities of the church. They are considered virtute officii entitled to the possession and are lawfully seized of the grounds, buildings and other property belonging to the church. Though they hold the church property in trust for the congregation, still, it is their possession, and the courts are bound to protect them against every irregular and unlawful intrusion made against their will, whether by the pastor, members of the congregation, or by strangers. ''62

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Since, however, church buildings actually stand empty the greater part of the time, the possession which the law thus casts upon the trustees is largely a constructive one. They are in possession "by reason of having the right of possession. '63 Though their possession consists only of the ordinary use which is made of church property for divine services and Sunday-school purposes, it will nevertheless carry the same legal consequences as actual continuous possession of ordinary residence property,65 will include such of the land on which the building is standing as is used for purposes connected with it and will be notice to a purchaser of it. Such possession may be maintained by a clergyman as the agent of such trustees and may be defended by the trustees against the trespass of strangers representatives of the members7° and even the clergyman of the congregation" by action of trespass clare clansum

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62 German Evangelical Congregation of Lafayette v. Pressler, 17 La. Am. 127, 129; People v. Runkle, 9 Johns 147, 156 (N. Y.)

63 People v. Runkle, 8 Johns 464, 469.

64 Whitsitt v. Preemption Presbyterian Church, 110 Ill. 125.

65 Randolph v Alexander, 8 Tenn. (Martin & Yerger), 58, 60; Macon v. Shephard, 21 Tenn. (2 Humph) 335.

66 First Parish in Shrewsbury v. Smith, 31 Mass. (14 Pick) 297, 301.

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69

67 Macon v. Sheppard, 21 Tenn. (2 Humph) 335.

68 Probst v. Domestic Missions of Presbyterian Church, 3 N. M. 373, 5 Pac. 702; Heiss v. Vosburg, 59 Wis. 532, 18 N. W. 463.

69 First Parish of Shrewsbury v. Smith, 31 Mass. (14 Pick) 297.

70 Howard v. Haywood, 51 Mass. (10 Met) 408.

71 German Evangelical Congregation of Lafayette v. Pressler, 17 La. Am. 127; People v. Runkle, 8 Johns 464, s. c. 9 Johns 147. (N. Y.)

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fregit by injunction proceedings and even through indictments for a forcible entry and detainer."

Real property, however, is not generally the only earthly possession which churches enjoy. While churches owning stocks and bonds and other forms of investments are rare almost all, even the humblest, will own articles of personal property such as altar pieces, communion plate, record books and the like. There can be no question that such articles in the absence of a by-law giving their control to some particular officer are to be kept and controlled by the trustees. This has been held or intimated in cases involving communion plate,75 church records," melodeons," corporate seals and funds collected for a particular purpose by a committee or by a ladies' society or a similar instrumentality of the church. Such personal property does not enjoy the protection of the ancient Spanish law which regarded it as holy, sacred and religious, and may, therefore, be sold,81 though courts will hesitate to affirm such sale when it has been effected by execution.82.

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It will sometimes be a question of intention whether bells used by a church are its property or are real or personal propertys or whether even the church building itself

72 Howard v. Haywood, 51 Mass. (10 Met) 408; First Parish of Shrewsbury v. Smith, 31 Mass. (14 Pick) 297; Green v. Cady, 9 Wend. 414; Walker v. Fawcett, 29 N. C. 44.

73 German Evangelical Congregation of Lafayette v. Pressler, 17 La. Ann. 127.

74 People v. Runkle, 8 Johns 464, s. c. 9 Johns 147. (N. Y.)

75 Page v. Crosby, 41 Mass. (24 Pick) 211; Stebbins v. Jennings, 27 Mass. (10 Pick) 172.

76 Sawyer v. Baldwin, 28 Mass. (11 Pick) 492; First Parish in Sudbury v. Stearns, 38 Mass. (21 Pick) 148. See Youngs v. Ransom, 31 Barb. 49, 61.

77 Shipton v. Norrid, 1 Colo. 404. 78 Protestant Episcopal St. Stephens Church v. Blackhurst, 11 N. Y. Supp. 669.

79 M. E. Church of Cincinnati v. Wood, 5 Ohio 283; First Church of Christ Scientist v. Schreck, 127 N. Y. Supp. 174, 70 Misc. Rep. 645.

80 First Baptist Church in Franklindale v. Pryor, 23 Hun. 271; Bristor v. Burr, 120 N. Y. 429, 24 N. E. 937 affirming 12 N. Y. St. Rep. 638. See First Constitutional Presbyterian Church v. Congregational Society, 23 Iowa 567; Eis v. Croze, 149 Mich. 62, 112 N. W. 943; Kendall v. Calder, 2 Posey Unreported Cas. 732 (Tex.)

81 Ternant v. Bondreau, 45 La. (6 Rob.) 488.

82 Lord v. Hardie, 82 N. C. 241, 33 Am. Rep. 683.

83 Fourth Parish in West Springfield v. Root, 35 Mass. (18 Pick) 318; Congregational Society of Dubuque v. Fleming, 11 Iowa 533.

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is real or personal property. Whatever its nature, however, it will be under the control of the trustees. So also will horse-sheds built on church land by individuals under a license from the trustees 85 be under their control and may be torn down where they obstruct access to the property. When other bodies, such as school societies, Sundayschool associations, clubs and other congregations, are permitted to use the property of the church they will be considered as mere licensees or tenants at sufference whose privileges may be withdrawn by the trustees.

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However, the control which trustees exercise over church property is not the only duty with which they are charged. Though the power of church corporations to make contracts is quite limited as compared with the power of commercial corporations, it is a power which nevertheless will frequently have to be exercised. Indeed, the trustee may, by taking the proper steps, "bind the body upon all contracts within the scope of its corporate powers.'' They cannot, however, bind the corporation for an adverse interest of their own. Even if they have no such adverse interest they cannot bind the corporation to any contract which is beyond its powers. If they act, nevertheless, they will signally fail to bind their principal, but will wake up to the uncomfortable realization that by such unauthorized action they have bound themselves personally. It can, therefore, readily be seen that a knowledge of the powers

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89 Read v. Church of St. Ambrose, 137 Pa. 320, 20 Atl. 1002, 27 W. N. C. 203, 11 L. R. A. 727; Hamblett v. Bennett, 88 Mass (6 Allen) 140.

90 Cammeyer v. United German Lutheran Churches, 2 Sandf. Ch. 186; Landis Appeal 102 Pa. St. 467; Allen v. Paul, 24 Gratt. 332. (Va.)

91 Miller v. Milligan, 9 Am. L. Rec. 419, 6 Ohio Dec. Reprint 1000, 1004.

92 United Brethren Church of New London v. Van Dusen, 37 Wis.

54.

93 Dennison v. Austin, 15 Wis. 334.

possessed by their principal is a matter of the utmost importance to them.

It does not require any deep reflection to determine that these powers will not be the same in all cases arising as they do out of forty-eight jurisdictions. In fact they vary greatly in the various states of the Union and will even differ considerably in single jurisdictions being affected by the articles, constitutions and by-laws adopted by the various churches. The first inquiry in any case, therefore, must be whether any proposed action is within the powers of the trustees under the particular statutes, and corporate instruments applicable to it. Only if they act within the powers so outlined will they be able to escape personal liability. If they go outside of them the result achieved so far as it concerns the corporation will be as void as an unconstitutional statute passed by Congress or a state legislature. Where, therefore, the trustees are by by-law limited in their expenditures, they cannot bind the church beyond the limit so imposed.94 Where the discharge of a debt is the object in view of a sale authorized by a congregation, the trustees cannot execute a mortgage on the property instead, since that merely creates a lien for the security of the debt, leaves the congregation still liable for it and places it no nearer to a liquidation of its indebtedness than it was before."

But such authority to do the act proposed will not of itself protect the trustees from personal liability. They must not only do acts which are within their power but they must do them according to the method outlined by the law under which they act. They cannot therefore make a contract in their own names and then shoulder the liability onto the corporation and thus defeat a personal action brought by the other party to the contract. They

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96 Hodges v. Green, 28 Vt. 358; St. Patrick's Roman Catholic Church v. Gavalon, 82 Ill. 170, 25 Am. Rep. 305.

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cannot with impunity yield to looseness in the performance of their official duties. They cannot bind the corporation by action taken at casual meetings on street corners, at club houses, in hotels and at other places." The corporation is not represented by such accidental meetings of its governing body. As well might it be contended that a city council or a state legislature could pass ordinances and statutes binding on the citizens while gathered together at the festive board or at a Fourth of July celebration. To exercise their corporate functions the trustees must, therefore, "meet as a board so that they may hear each other's views, deliberate and then decide.""99 They must act as a whole, as a body.100 "The powers which a corporation may exercise are vested in the trustees, and can only be exercised by them in their collective capacity, or by such agents, real or ostensible, as they have accredited, or by their conduct are deemed to have accredited." "101 "A call is a call of all the trustees, and a lawful meeting is one which all have at least constructive opportunity to attend. ''102 The trustees must, therefore, not only meet, but they must meet officially at official meetings, and under official authority conferred at official meetings.103 No trustee should be excluded at such a meeting104 except possibly where he has openly joined the opposition which has developed in the church.105 And when a special meeting is

97 M. E. Church of Sun Prairie v. Sherman, 36 Wis. 404.

98 United Brethren Church of New London v. Van Dusen, 37 Wis. 54, 59.

99 Cammeyer v. United German Lutheran Churches,, 2 Sandf. Ch. 186, 229; Columbia Bank v. Gospel Tabernacle Church, 127 N. Y. 361, 368, 28 N. E. 29.

100 Worrell v. First Presbyterian Church of Millstone, 23 N. J. Eq. 96; Miller v. Milligan, 9 Am. L. Rec. 419, 6 Ohio Dec. Reprint 1000; Young and Fulton Lumber Co. v. Taylor Street M. E. Church, 5 N. P. 378, 7 Ohio Dec. 449; United Breth

ren Church of New London v. Van Dusen, 37 Wis. 54.

101 Thomasen V. Grace M. E. Church, 113 Cal. 558, 560, 45 Pac. 838.

102 United Brethren Church of New London v. Van Dusen, 37 Wis. 54, 59, 60.

103 Leonard v. Lent, 43 Wis. 83, 88; State v. Aucker, 31 S. C. Law (2 Rich. Law) 245.

104 St. Mary's Church Case 7 S. R. 516. (Pa.)

105 St. Vincent's Parish v. Murphy, 83 Neb. 630, 120 N. W. 187. See Cicotte v. Auciaux, 53 Mich. 227, 18 N. W. 793.