
    Joshua Gorton vs. William Hadsell & others.
    The question whether the application to a justice of the peace, under Kev. Sts. c. 20, § 35, to call a meeting of the proprietors of a meeting-house, was signed by five at least of such proprietors, as preliminary to the question of the admissibility of the records of such meeting, is for the judge and not for the jury.
    Unless a meeting-house, at the time it is torn down by a vote of the proprietors, is not only unfit for public worship, but so old and ruinous as to render its entire demolition necessary, a pewholder is entitled to indemnity for the destruction of his pew.
    This was an action of trespass, brought in the court of common pleas, for tearing down a pew in the Old Baptist meeting-house in Hancock, of which the plaintiff claimed to be the proprietor.
    The defendants filed a specification of defence, by which they justified the taking down of the pew, under and by virtue of a vote passed by the proprietors of the meeting-house, at a meeting held on the 21st day of March, 1850, and called by a warrant issued by a justice of the peace, on the application of five of the proprietors ; at which meeting it was voted to give the meeting-house to the town of Hancock, on condition that the town would erect a new town-house out of the materials of the meeting-house. Two of the defendants were two of a committee of three, appointed by the town at a legal town meeting held on the first day of April, 1850, at which meeting it was voted to accept the proposition of the proprietors, and this committee were chosen to take down the meeting-house and construct a new town-house. The other defendant named in the writ was the contractor who took down the house.
    
      The plaintiff, to prove his title to the pew, introduced a deed of the pew from one Southworth to him, dated in 1823, acknowledged and recorded; and evidence that he or his family had, from time to time, occupied the pew on Sundays; and that the house had been occupied as a place of public worship up to the time it was taken down. The defendants objected, that this was not competent and sufficient evidence to prove a proprietorship in the pew; but the presiding judge, Byington, J., ruled that it was evidence from which the jury might infer a proprietorship in the pew.
    The defendants introduced the records of the town of Hancock, of the meeting held April 1, 1850, and offered the records of the meeting of persons claiming to be the proprietors of the meeting-house, held on the 21st of March, 1850, and the written application to the justice signed by more than five persons; but offered no records of any meeting of the proprietors prior to such 21st of March, or any evidence by whom the house was owned. But the judge ruled that the records of the proprietors’ meeting were not admissible as evidence, without proof that five, at least, of the persons who made the application to the justice to issue'his warrant for calling the meeting, were proprietors in the meeting-house at the time of making the application. The defendants then introduced evidence that five of the applicants were proprietors in the meeting-house at that time, and claimed that it was evidence for the jury to consider. But the judge held that it was his province to determine upon the sufficiency of the evidence, as preliminary to the admission of the record; and, being of opinion that the evidence did not show a proprietorship in the house in five of the applicants, refused to admit the records of the proprietors’ meeting as evidence.
    There was evidence that two of the defendants, namely, Hadsell and Whitman, had nothing to do with the alleged trespass, except that they contracted, as a committee of the town, with the other defendant, Worden, for the taking down of the house. The defendants requested the judge to instruct the jury that, if they were satisfied that Hadsell and Whitman had nothing to do with the taking down of the house except the making of the contract as agents, then they were not liable in this action ; but the judge declined so to instruct the jury.
    The defendants further requested the judge to instruct the jury that, if they were satisfied that the meeting-house, at the time of the alleged trespass, had become unfit for the purpose of public worship, the plaintiff was not entitled to recover any thing in this action; and they offered evidence that the house was wholly unfit for the purposes of public worship. But the judge ruled that the facts, if proved, would not justify the defendants’ acts, and proposed to admit the evidence only in mitigation of damages, declining to instruct the jury that the plaintiff would not be entitled to recover, if the house was so unfit for purposes of public worship.
    Whereupon a verdict was taken for the plaintiff, by consent, and the defendants alleged exceptions.
    
      I Rockwell, for the defendants.
    1. The evidence that the five persons who signed the application to the justice, were proprietors in the meeting-house, should have been allowed to go to the jury. Proprietors of Church in Brattle Square v. Bullard, 2 Met. 363; Melvin v. Locks a/nd Ccmals, 17 Pick. 255.
    2. This action cannot be maintained, if the meeting-house had become unfit for the purposes of public worship. Rev. Sts. c. 20, §§ 36, 38 ; Gay v. Baker, 17 Mass. 435 ; Daniel v. Wood, 1 Pick. 102; Wentworth v. First Parish in Canton, 3 Pick. 344; Howard v. First Parish in North Bridgewater, 7 Pick. 138; Jackson v. Roimseville, 5 Met. 127.
    
      E. Merwin, for the plaintiff.
    1. Whether the applicants were proprietors, was a question, in the first instance at least, for the judge, and not for the jury. The admissibility of the records offered, depended on the fact whether the meeting had been called by a proper application, and this was a preliminary question, which is always for the judge. 1 Greenl. Ev. §§ 49, 177, 425; Russell v. Coffin, 8 Pick. 143; Witter v. Latham, 12 Conn. 392; Foster v. Mac-kay, 7 Met. 531; Page v. Page, 15 Pick. 368; Donelson v. Taylor, 8 Pick. 390; Seymour v Harvey, 11 Conn. 275; 
      Harris v. Wilson, 7 Wend. 57; M’Managil v. Ross, 20 Pick. 99.
    2. Although the house was unfit for public worship, that was no justification to the defendants. The ruling was sufficiently favorable to them, and should be taken in connection with the fact that the house and pew remained and were in use. Bolivar Manufacturing Co. v. Neponset Manufacturing Co. 16 Pick. 241; Fullam v. Cummings, 16 Yerm. 697.
    While the house remains, its unfitness is no justification to a trespasser. Proprietors themselves can only take down for the purposes enumerated. Rev. Sts. c. 20, §§ 36-38. Went-worth v. First Parish in Crnton, 3 Pick. 344. Though the house was unfit, the plaintiff with the other proprietors had a right to determine whether it should be repaired, which the defendants’ trespass had rendered impossible.
   Metcalf, J.

Only two of the exceptions taken at the trial have been argued by the defendants’ counsel. The others have very properly been given up. And we are of opinion that those which have been argued are not well taken.

1. It is argued for the defendants, that the judge should have left it to the jury to decide, upon the evidence offered, whether the application to a justice of the peace, to call a meeting of the proprietors of the meeting-house, was signed by five of those proprietors, as required by the Rev. Sts. c. 20, § 35. But it is the province of the judge, who presides at the trial, to decide all questions on the admissibility of evidence.. It is also his province to decide any preliminary questions of fact, however intricate, the solution of which may be necessary to enable him to determine the other question of admissibility. 1 Phil. Ev. (N. Y. ed. 1849,) Part I. c. 1. And his decision is conclusive, unless he saves the question for revision by the full court, on a report of the evidence, or counsel bring up the question on a bill of exceptions which contains a statement of the evidence. Dole v. Thurlow, 12 Met. 157; Foster v. Mackay, 7 Met. 531, 538; Odiorne v. Bacon, 6 Cush. 185; Bartlett v. Smith, 11 Mees. & Welsb. 483; Doe v. Davies, 10 Adolph. & Ellis, N. S. 314, 323; Cleave v. Jones, 7 Welsb. Hurlst. & Gord. 421.

2. It is also argued for the defendants, that this action cannot be maintained, if the meeting-house, at the time of the alleged trespass, was unfit for the purpose of public worship. And Wentworth v. First Parish in Canton, 3 Pick. 344, and Howard v. First Parish in North Bridgewater, 7 Pick. 138, are relied on to sustain this position. But they do not sustain it. In those cases the question was, whether the house was so far decayed, and was so old and ruinous, as not only to be unfit for public worship, but also to render its entire demolition necessary.

And it was held that when such was the condition of the house, a pewholder had no remedy for the destruction of his pew, if the proprietors of the house had pursued the proper course. But this consequence does not follow from the mere fact that a meeting-house, on a certain day, is unfit for the purpose of public worship. A temporary unfitness for this purpose may be caused by accident, or by partial decay, or even by the making of necessary alterations or repairs. And, for aught that these exceptions show, the unfitness of the house in question, at the time of the alleged trespass, may have been the effect of either of those causes.

Exceptions overruled.  