
    
      Vestry & Wardens of the Episcopal Church of Christ Church Parish v. Thomas Barksdale. Thomas Barksdale & William Matthews v. The Vestry & Wardens of the Episcopal Church of Christ Church Parish.
    
    Where there is no agreement or understanding of the parties, tire right to commissions for services rendered, must depend on tire usage in like cases.
    Where the Secretary and Treasurer of the Vestry and Wardens of a Church, had not only never made any charge of commissions, but it further appeared from the journals, kept by himself, that the thanks of the Vestry had been voted to him, for his gratuitous and able management of the church funds, the Court refused to allow him afterwards to charge commissions.
    It is a well settled rule, that what a party intended as a gift, he shall not after-wards be permitted to convert into a charge.
    The Court has no authority to interfere with or control the discretion of the Vestry and Wardens of a church, in their management cfits funds, unles they transgress the limits of their charter. However unwisely they may exercise their potyer, they are responsible only to their constituents, in whose hands a complete remedy exists through the quiet operation of the ballot box.
    These two cases were argued before Dunkin, Ch. at Charleston, February, 1845, and on ¿ppeal were considered together by this Court.
    The facts are sufficiently set forth in the following circuit decrees.
    Dunkin, Ch. The object of these proceedings is to obtain an account of the funds belonging to the Episcopal Church of Christ Church Parish. It appears, from the answer of the defendant, as well as from the evidence, that he held the office of Secretary and Treasmer of the Vestry and Wardens of this Church, from 1822, until the annual meeting on Easter Monday, in 1844, when Mr. John Hamlin was elected to the office.
    The defendant, in his answer, says, that the funds of the Church.now exceed in amount the sum of eleven thousand dollars, and, with the exception of four hundred and eleven dollars, cash in the Bank, they have been invested m the mode set forth in the exhibit, filed with his answer. He admits that he has been called on to deliver to his successor in office “ the funds and papers of the Church, and that, being thus called on, he was ready to comply on being paid his ordinary and well earned commissions, for disbursements and reinvesting the funds, which he claims as his reasonable and customary due. But as the Corporation declined to receive the funds with this deduction, the defendant has not yet come to any settlement with, them; but that he has been, at all times, ready to do so, and to account fully for his acts and doings,” «fee. The defendant, files with his answer the specifications of his claims for commissions, since June, 1822, amounting to about the sum of four thousand dollars.
    The only question which properly arises under the pleading is, as to the defendant’s right to commissions. Where there is no agreement or understanding of the parties, this must depend on the usage in like cases. No evidence was offered as to the usage, and it is not intended by the Court to intimate any opinion on the subject. Nor was any evidence given of any positive agreement between the parties. But it is not doubted that the defendant was at liberty to render his services gratuitously ; and it is a well settled rule that what a party intended as a gift, he shall not afterwards be permitted to convert into a charge.
    At the period of the defendant’s election to the office ofSecretary and Treasurer, he was also one of the Yestry of the Church. His accounts as Treasurer of the Church were submitted to the Yestry and Wardens at their regular annual meeting on Easter Monday, or at such other time as they assembled. The account was referred to a committee, and, after their examination and approval, was ordered to be entered by the defendant, as Secretary, in the books of the Church. Several annual accounts of the defendant, thus certified and approved by the Yestry and Wardens, were adduced in evidence, in which no charge of commissions was entered, nor was any account produced in which such charge appeared.— But it further appears, from the journals of the Church, kept by the defendant, that on the 15th May, 1830, the thanks of the Yestry were voted to the defendant for his gratuitous and able management of the Church funds ; and on the 15th August, 1840, a meeting of the Yestry and Wardens was held at the house of the Chairman, at Moultrieville, Sullivan’s Island, at which meeting the defendant was present, as Secretary and Treasurer. After the usual transaction of business it was, “ on motion, resolved, unanimously, that the thanks of the Yestry be voted to Thomas Barksdale, Treasurer, for his gratuitous care and attention, improvement and addition to the Church funds.” While nothing can be more creditable to the defendant than these testimonials of his fidelity, it is scarcely necessary to add that they are conclusive as to the terms on which his services had been rendered. The claim of commissions must be disallowed.
    The defendant’s zeal, good judgment and fidelity in the discharge of his trust, is not only cheerfully conceded on the part of the complainants, but abundantly manifested by the improved condition of the fund while under his management. He has been mistaken on the subject of commissions ; as the Court thinks, clearly mistaken. But after more than twenty years of faithful and successful devotion to the discharge of a gratuitous trust, it would be too severe justice to mulct him in the cost of the litigation.
    It is ordered and decreed, that the defendant pay over to the Treasurer of the complainants the balance of cash as appears by his exhibits, with interest from the 22d April, 1844, and that he also assign, transfer and deliver to the said Treasurer the bonds, certificates of stock, and other securities belonging to the Vestry and Wardens of the Episcopal Church of Christ Church Parish, or which have come to his hands as Treasurer of the same. Finally, it is ordered that each party pay their own costs.
    
      Decree on the Cross Bill.
    
    Dunkin, Ch. The facts of this case will be fully understood from the pleadings. It may be proper, however, to state that the Parish Church is about six miles distant from the ferry at Haddrill’s Point. For many years the Church has not been opened during the summer months, as the climate is unhealthy, and the planters are absent from the neighborhood. A considerable portion of the worshippers at the Church remove, during the summer, to the village called Mount Pleasant, at Haddrill’s Point. In 1833, they erected a building for public worship, according to the forms of the Episcopal Church, and made titles for the same to the Vestry' and Wardens of the Episcopal Church of Christ Church Parish. The building was consecrated by the Bishop in 1835. During the summer months, the clergyman of the Parish Church performs divine service, by direction of the Vestry, at the Chapel, at Haddrill’s Point. There was no proof on the* subject, but it is reasonable to suppose that the salary of the minister is fixed in reference as well to his services during the winter months at the Parish Church, as to his services at the Chapel during the summer. The complainant, Thomas Barks-dale, has been, for many years, anterior to April, 1844, Treasurer of the Church, and in possession of the funds, amounting to about eleven thousand dollars. He declined to pay an order, which the defendants drew on him in favor -of the minister, on the ground (among other reasons) that the fund could only be applied “to sustain the Parish Church, and to supply the pulpit during that portion of the year when the parishioners and their families reside on their plantations, and not to pay for services, rendered in a different place from the Parish Church, to a part of the congregation, who settled in the village for the summer season.”
    At the election in April, 1844, the complainant, Thomas Barksdale, was suspended by the choice of the defendant, John Hamlin, as Treasurer. The object of this bill is to restrain the defendants from appropriating any part of their funds to the payment of services rendered by the clergyman, at the chapel or church in the village, on the ground that it is not warranted by the act of incorporation, and is a misappropriation of the fund entrusted to their charge.
    This church was incorporated in 1787, and it may aid in the determination of the question to ascertain what had been the previous usage in the church. The worship of the Church of England was established by law in the Province of South Carolina, in 1706. All the American Colonies formed part of the diocese of the Bishop of London. In 1707, the General Assembly passed an Act, providing for the maintenance of the clergy, and appropriating a certain amount for that purpose. From this period, until the revolution, churches were erected, and the salaries of the clergy of the established church paid, either in whole or in part, from the public treasury. By the Act of 1708 (2 Stat. 323) the boundaries of several of the parishes were defined, and among others, Christ Church Parish, which is described as “on the south-east of Wando river.”— From a very early period, it was the custom of the General Assembly, where the boundaries of the parish were large, and the convenience of the parishioners required it, to establish other places of worship, besides the parish church. These were called chapels of ease; and the Acts establishing them required the Rector of the Parish Church, at stated periods, to celebrate divine service, and to perform other sacred and ^ministerial offices, in the chapel of ease. An instance of this is found as early as 1714, in the establishment of the chapel at Ehaw, in the Parish of St. James, Santee, (2 Stat. 618).— In 1731, this law was repealed, and two chapels were established in the same parish, the Rector of the parish being thereby required to perform all ecclesiastical duties in the said parish, one Sunday at the parish church, the next Sunday at the lower chapel, and the third Sunday at the upper chapel, alternately. Provision was also made for defraying the expense of building the chapels out of the public treasury. (3 Stat. 304.) So in 1725, the chapel at Strawberry Ferry was established, on the petition of many of the inhabitants oí St. John’s, Berkley, who by reason of the distance of their residence from Biggin Church, were prevented from attending public worship. The Act required the “ rector or minister of the parish, to repair to the chapel and celebrate divine service every fourth Sunday throughout the. year, and not oftener.” Many other instances occur in the statute book. After the revolution, Church and State became separate. In 1785, the Vestry and. Wardens of the Episcopal Churches in the parishes of St. Philip and St. Michael, called and known by the name of the “ Church of England,” petitioned the General Assembly, setting forth that since the adoption of the constitution of the State, the support which was formerly provided by the Legislature for the clergy and other officers of that church was withdrawn, and that many well-disposed persons had contributed a fund for the maintenance of ministers, repairs of- the church, &c.; and prayed that the Vestry and Wardens might be incorporated, in order that these intentions might be carried into effect. An Act was accordingly passed in conformity with the prayer of the petition, providing, however, “that-in case any of the sums to be subscribed, or gifts or bequests made, for the purposes aforesaid, should be appropriated to any other use than the payment of ministers of the said churches,, performing divine service therein, or of any other churches or chapels, of the principles and tenets of the Church of England, that may be hereafter built in the city of Charleston, and for the payment of the salaries of the officers of the said churches or chapels, respectively, and the repairs of the said churches and chapels and parsonage houses, it shall be lawful for the persons subscribing, giving, or bequeathing, &c., or their heirs, or executors, or administrators, to sue the said Vestry and Wardens, and recover back the said subscriptions, gifts, devises, or bequests, with interest.” (8 Stat. 130.) Two years later, to wit: in March, 1787, the Vestry and Wardens of the Episcopal Church in Christ Church Parish were incorporated and “ vested with all the powers and authorities which were vested in any corporated or established church in this State.” Their petition had recited the wanton burning down of the Church, by the British army, during their operations in this State; — and the preamble to the Act stated that “ several pious and well disposed persons, by their last will and testament, as also others by voluntary subscriptions, had given divers sums of money for re-building and fitting up the said church, and for providing for the maintenance of a minister and other proper officers of the same.” The Vestry and Church Wardens were authorized to re-build the church, and to assess the pews, in order to pay the costs and expenses thereof. They were also empowered “ to appoint and choose proper clergymen and ministers for the said church, and all other necessary officers, and, at their will and pleasure, to remove and displace such persons, and to appoint such salaries for the labor and service of such ministers and other officers in the said church, as they shall, from time to time, approve and think fit.”
    For the purposes aforesaid, the Vestry and Wardens were authorized to manage and dispose of the funds of the Church in such manner as they, or a majority of them, should think expedient. (8 Stat. 140.)
    In 1822, when Mr. Barksdale became the Treasurer of the Church, the funds amounted to twenty-two hundred dollars. Of the origin or history of this fund the Court had no evidence. The resources of the Church, as has been stated, now amount to about eleven thousand dollars. A portion of the interest of this fund, the defendants admit, they intend to apply to the payment of the salary of the minister who officiates at the Parish Church, during the winter, and the village church or chapel, during the summer months. It is quite clear, that this Court has no authdtity to interfere with or control the discretion 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 constituents, in whose hands a complete remedy exists, through the quiet operation of the ballot-box. By the Act of incorporation, absolute power is vested in the defendants to appoint and remove the minister, and to fix and pay his salary ; and the funds of the church are placed at their disposal, for this and other purposes. But it is said, the minister officiates at the village chapel, as well as the Parish Church, and part of his remuneration is for these latter services. — ■ The village of Mount Pleasant is within the boundaries of Christ Church Parish. The chapel was built under the vote of the Episcopalians of the parish, for that purpose assembled, and with their means, was conveyed to the Vestry and Wardens, and afterwards dedicated, with the usual solemnities, to the service of God. For more than a century it had been the custom of the country, that the parish clergyman should officiate, at a convenient period, in the chapels, one or more, as well as in the Parish Church. Formerly, the authority to establish these chapels was in the Legislative authority, who also supported the minister as well as built the edifices. . Whether this authority now rests in the people, in the Vestry and Wardens, or in the Diocesan, is immaterial for the present inquiry, as all these powers have sanctioned the establishment and dedication of this house of worship. As the Court has remarked, there was no evidence as to the origin of the fund, or of any particular purpose to which it was to be appropriated, further than appears from the charter of incorporation. If, as was supposed by the complainants, it was the gift of pious and benevolent individuals to the corporation, they must have intended that the Vestry and Wardens should apply it as the funds had been usually appropriated, to wit, to the payment of a minister, who should not only perform divine service in the Parish Church, but also officiate in such- other places of public worship, according to the Episcopal form, within the parish, as the constituted authorities might, from time to time, direct and appoint.
    The only object in the establishment of these chapels, was the convenience of the parishioners. It is not for the Court to say whether the convenience of the parishioners was sub-served by the establishment of the church at Mount Pleasant. That has been settled by themselves. But the complainants make no objection on this account. They do not allege that it would he proper or advisable to have service at the Parish Church during the Summer months, or that the opportunity of divine service at the village chapel is not a great convenience to the majority of the worshippers in the Parish Church. They complain only of what, in the judgment of the Court, has, by the law, been wisely confined to the Vestry and Wardens of the church. It is ordered and decreed that the bill be dismissed.
    Benj. F. Hunt, for appellant.
    The bill states the leading facts of the case to be, that in 1787 the Legislature was informed, (see Stat. at Large, vol. 8, p. 140,) in a petition to them, that 'during the war their church was wantonly burned by the British, “and whereas several pious and well disposed persons, by their last wills and testaments, and also others, by voluntary subscriptions, have given divers sums of money, for rebuilding and fitting ■up the said church, and for providing for the maintenance of a minister, and the payment of the proper officers of the same; and those pious and good intentions would be more effectually carried into execution, if the prayer of the said petitioners, that the Vestry and Wardens, elected or to be elected, by said inhabitants and pewholders, were incorporated and made one body politic and incorporate, in law, and vested with all the powers, privileges and immunities which any of their sister churches enjoy — ■
    “1. Be it enacted,” &c. Then the section incorporates the Vestry and Wardens, and declares them capable to hold “all the lands, tenements and hereditaments, and the rents and income thereof, which now are vested in the Vestry and Church Wardens of the said church” — giving them ample power over these funds, to increase and accumulate them.
    The second section authorizes them to receive donations, &c. “for the benefit and advantage of the said Vestry and Church Wardens, for the purposes aforesaid.”
    The third section authorizes the Vestry and Wardens to rebuild the church, and to assess the pews; and the fourth section authorizes them to sell also.
    The fifth section says, “It shall and may be lawful for the said Vestry and Church Wardens, and their successors in office, or a majority of them, to appoint and choose proper clergymen and ministers, for said church, and all other necessary officers, and, at their will and pleasure, to displace and remove such persons, and supply others in the room or stead of him or them so removed, and to appoint such salaries, perquisites and other reward, for the labor and service of such ministers and other officers of said church, as they shall, from time to time, approve and think fit.”
    The Vestry and Wardens thus became the trustees for these pious donors, and proceeded to execute their trust, and nothing material occurred, until-, when funds, amounting to-, came into the hands of Mr. Barksdale, who has succeeded in nursing them so well, that he has repaired the church, and had an accumulated fund of-, which was barely sufficient to supply the pulpit during the season most of the parishioners wei e in the parish. Some of them resort to a sand-hill, called Mount Pleasant, as a safe residence during the summer months.
    On 15th October, 1833, as will appear by the books, the following proceedings were had by the Vestry :
    
      Copies of Resolutions from the Journal of the Vestry and Wardens of the Episcopal Church of Christ Church Parish, pages 270, 271.
    “Tuesday, October 15, 1833.
    This day a meeting of the Vestry and Wardens of the Episcopal Church of Christ Church Parish, took place in Charleston, at the house of Dr. Read, Chairman,
    
      Present.
    
    William Read, Chairman.
    Taomas Barksdale, Secretary,
    Samuel Venning,
    John Hamlin,
    Nicholas Venning, Jr.
    There being a quorum, proceeded to business.
    
      “Several gentlemen attended,-and stated to the Yestry that it was contemplated to build a church at the Tillage, near HaddrilPs Point — it was intended and wished that the Minister of the Parish should preach at the church, intended to be built, during the summer and sickly months, where most of the congregation resided at that time, and that said church should be governed by the Yestry of the Parish Church of Christ Church. In consequence of the above statement, the Yestry consented to the Minister of the Parish Church officiating at the church to be built; and also, they, the Yestry, to take charge of said church.
    Then the following preamble and resolutions were adopted.
    “ Whereas, it is in contemplation to build an Episcopal Church in the Tillage, near HaddrilPs Point, in Christ Church Parish, and it has been solicited that this said church be connected, in many respects, with the Episcopal Church of Christ Church Parish, (six miles from the said village) such as the same Minister that preaches at the Parish Church, be, and is considered as, the Minister of the Tillage Church; that the same Yestry and Wardens act for both churches, &c. but
    “ Resolved, That it be clearly, fairly and fully understood, that the Tillage Church, in its connection with the aforesaid Parish Church, do not nor shall not have any thing to do with the funds of said Parish Church, 6 miles (six) from the village — that it has not, nor shall not hereafter have, any claims, interest or demands whatsoever, on the said aforesaid Parish Church funds; and be it further
    
      “ Resolved, That in case any intimation or proposition of the fund of the Parish Church being appropriated in any way, or at any time whatsoever, for the benefit of the Village ^Church in any manner or respect, that in such case, be it ‘fully
    
      “ Resolved, That the said Parish Church immediately withdraw from the said Village Church and have no further connection or communication with the said Tillage Church.
    “ The foregoing certified by us the present Yestry and Wardens.
    
      Vestry. Wardens.
    
    William Read, Chairman, Nicho. VeRning, Junr,
    Taomas Barksdale, Trea. & See.
    Jacob Bond Pon,
    Samuel Venning,
    Nicholas Yenning, Sen’r.
    Jno, M. Phillips,
    Paul Weston,
    
      At page 276.
    “ The Yestry and Wardens met at the Tillage, Mount Pleasant, at the Chapel lately built, on the 27th of August 1835. Were present J. B. I’on, Samuel Yenning, Robert Yenning, John Hamlin and N. Yenning. The Chairman and Secretary being absent, Col. Fon was called to the chair, and Mr. Yenning appointed secretary pro tern. A letter was received from Doctor Read, resigning as Chairman. J. B. Fon was appointed in his place.
    
      “A committee appointed by the congregation of the Chapel, communicated to this meeting that they had been instructed to tender to the Yestry, the Chapel and its grounds; it was
    “Resolved, That this meeting accept the same. A committee, of the Minister, the Rev. A. Fowler, R. Yenning and John Hamlin, were appointed to call on the Bishop of the Diocese, informing him that the building was finished and ready for consecration, and that he appoint a day for its consecration.
    
    Adjourned.”
    It thus appears, that not a Chapel of Ease, spoken of m the circuit decree, but “ a village church,” was contemplated, and the solicited connection with the Parish Church was expressly stipulated not to affect the funds. But the sequel shows how little confidence can be placed in mankind, even in the most sacred things, where their pecuniary interests are concerned. The Parish Church was erected, the Yestry and Wardens, as desired, aided in its consecration, and then came the full development of the scheme. Mr. Barks-dale was treasurer, and a descendant, through several generations, horn the ancient inhabitants of the parish; and a draft was drawn on him for the payment of the salary of the minister of the new village church, which he refused to pay, as it was a misapplication of the funds, and in violation of the plighted faith of those who sought to connect that church with the old Parish Church — and then followed the usual manoeuvre. They went to work to get a majority of those interested to strip the old church for the new, into the Board of Yestry and Wardens, and then elected another treasurer, of their own party, and thus acquired the means of violating the agreement so solemnly made. A bill was filed against Mr. Barksdale, the old treasurer, to get the books, stocks and effects, which he has nursed and increased for so many years. He resisted the delivery of the funds, unless he was allowed his commissions, as any other agent — not that he would derive any emolument from his services to the church, butsolely with the view, as he saw the other funds perverted from their original destination, that he might save the amount of his commissions, as a secure fund for his ancient ancestral church. He also filed a bill, in conjunction with William Matthews, another parishioner, who was connected with the family of Mr. Barksdale, and owner of a farm formerly occupied by-Charles Pinckney, one of the supposed benefactors of the church, in which he charged the Vestry and Wardens with a design and the present practice of perverting their trust, by applying the funds of the Parish Church to the support of the minister of the new village church.
    The Vestry admitted that they had, and intended to continue so to apply them. The circuit decree requires the delivery, in the first case, of all the funds of the church to the new Vestry; and, in the second case, the decree treats the village church as a Chapel of Ease, and sustains the right of the Vestry to appropriate the funds of the Parish Church to the support of this new church, in spite of the agreement, and refers those who dislike it to the ballot-box. Thus ruling that the majority of the parish can divert or apply these funds as they please.
    From both these decrees Mr. Barksdale appealed. On the first, because, as the laborer is worthy of his hire, he was entitled to his commissions; but if he succeeds in his bill to compel the Vestry, as trustees, to execute the trust, he has no object to gain, in his defence to the first bill. So that the question for the Appeal Court is, has Equity jurisdiction of the matter? And if so, are the complainants entitled to relief, on the first ground ? If the Act of the Legislature affords satisfactory evidence that there was a fund, derived from wills and donations, belonging to the church — and so it says — then the Vestry and Wardens are the trustees, and the fund in Court is the trust fund. In that case the jurisdiction is sustained by the case of McCarter vs. Orphan Asylum, 9 Cowen, 438; also 2 Story, sec. 1145 and 1187. The Stat. Eliz. also gives any one aggrieved a right to apply to Chancery.
    The circuit decree rules, that the application to the uses of the village church, is substantially the same as to the original Parish Church, and alludes to cases where the State, who, at the time, was the support of the Church, established chapels of ease in the same parish; but no instance is cited where, without any State authority, the fund of a well known church, derived from “ pious individuals,” was ever so disseminated.
    It was urged that these gifts to corporations, like gifts to individuals, vested the entire property — to do with it as they pleased; but where a clear charity, such as building a church and paying a minister, is contained in the gift, it would be a palpable misapplication of the fund.
    It is vain' to say that this application to the village church is warranted by the doctrine of “cy presas that is resorted to when the specified object is illegal or impracticable. It is also true that where a charity is given, it must be accepted on the terms named — it cannot be altered by a new agreement. (See Attorney General vs. Platt, Cas. T. Finch, 221; 1 Vernon, 55.)
    The donations to the Parish Church, a particular, well known house of worship, to keep it in repair and supply it Avith a minister, is a clear, distinct object, which the donors are entitled to have literally pursued. But the resolution of the Vestry shoAvs that the village church was not to be a chapel of ease, to be supported out of the general fund; that was expressly negatived: and the reference to the ballot-box is unfortunate in a case where the law is appealed to, to protect the minority, which is its most honored function. It was, at least, treachery, to get the village church under the wing of the mother church, by false pretences, and thus, by means of a majority, accomplish what they protested they would not attempt. Charity may covér a multitude of sins, but charitably to help themselves to the funds of the Parish Church, and thus lessen its means to keep up the worship in winter, merely to save a part of the congregation the expense of paying for their OAvn preaching in summer, as the rest of the parishioners do, requires a cloak thicker than even charity affords. If the minority are right the ballot-box cannot despoil them; and they rely upon the Act, which gives the only history of the fund, and the resolutions under which the village chinch was patronized, to show that this was a trust fund— a charity well defined; and that a diversion of the fund, to keep up another and different church, is a perversion of the trust, for selfish purposes-,- and perpetrated in eminently bad faith.
    Memminger & Jervey, contra.
    
   Per Curiam.

Dunkin, Ch.

In both these'cases this Court concur in the judgment of the circuit court, and the appeal is dismissed.

Appeal dismissed.  