
    Amos Sawyer et al. versus Abraham C. Baldwin
    It being referred to the Court to determine whether a certain book was the record' of a church, or a private memorandum, it appeared thht during the whole time it was kept a certain individual was the minister of the parish and pastor of the church, that the book was kept wholly or principally by him, that it contained a regular statement, in proper form for a record, of the admission of members, the choice of officers, and the transaction of the regular business of the church, and that no other book was kept as a record; and thereupon it was held, that the book m question was the record of the church.
    On the same considerations it was held, that the book was originally purchased for or given to the church for the purpose for which it was used, and that by force of St. 1785, c. 51, the legal property in it vested in the deacons of the church, and that they were entitled to recover it in an action of replevin against a person having it in his possession.
    Replevin brought by the plaintiffs in their capacity of deacons of the church connected with the Congregational Society in the town of Berlin, to recover the possession of a book purporting to be a record of the proceedings of that church.
    On a case stated it appeared, that the Congregational Society was organized in 1778, and a church connected therewith was established in 1779. In September 1781 the Rev. Reuben Puffer was settled as the minister of the church and society, and continued so until his death in April 1829. Difficulties having arisen among the members of the church and society, a second religious society, called the Evangelical Congregational Society, was established in the town, in January 1830. All the male members of the church connected with the Congregational Society, except one of the plaintiffs (S Carter) and one Johnson, became members of the Evangelical Congregational Society, before the first Monday of March 1830. On the 10th of February 1830 the Rev. Robert F. Walcutt was duly ordained as the minister of the Congregational Society. On the 16th of September of the same year the defendant was ordained as the minister of the other society. All the male members (including the two deacons) of the church connected with the Congregational Society, except Johnson, ceased to attend public worship at the meetinghouse with the members of the Congregational Society, on the 6th of September 1829, and continued to worship at another place from that day until the ordination of the defendant, with whose society they have since been connected as a church. The plaintiff Carter, who was a member of the church connected with the Congregational Society, withdrew with a majority of that church and met with them until the settlement of Mr. Walcutt, soon after which he returned to the Congregational Society, and he has since acted as a member of the church connected with that society. Johnson, above mentioned, was unable, by reason of age and infirmities, to attend any meeting of any church or society in Berlin during the years 1829 and 1830 ; and he took no part in relation to the settlement of Mr. Walcutt and Mr. Baldwin. There were three female members of the church connected with the Congregational Society, who did not withdraw with the majority of the church, and who have always worshipped with the members of that society and partaken of the sacrament with the church connected with it. After Mr. Walcutt’s settlement and before the 13th of September 1830, several persons, of both sexes, were duly admitted members of the church connected with the Congregational Society ; among others, the plaintiff Sawyer. On September 13, 1830, the plaintiffs were duly elected deacons of that church, provided that the persons so claiming to be a church, were, under the facts agreed, a church, and as such competent to elect deacons. After Mr. Walcutt’s settlement, the church connected with his society statedly received the sacrament and held church meetings, agreeably to former usages. Before the service of the writ a legal demand of the book in question was made upon the defendant, who held the same in his possession and refused to deliver it to the plaintiffs as the deacons of the church connected with the Congrega tional Society. It was agreed that the greater part of the book was written by Mr. Puffer, that he kept no other record of the proceedings of the church, and that the minister is the proper person to keep the church record.
    It was referred to the Court to consider, upon the evidence, and upon inspection of a book produced and agreed to be the book in question, whether the book was a church record.
    
      Oct. 14th.
    
    
      Oct. 13th.
    
    Judgment was to be rendered for the plaintiffs or the defendant, according to the opinion of the Court upon the foregoing facts.
    
      Hoar and Kendall, for the plaintiffs,
    relied on Stebbins v Jennings, 10 Pick. 172 ; Baker v. Fales, 16 Mass. R. 492, 494 ; St. 1785, c. 51.
    
      Newton and Lincoln, for the defendant.
    To maintain re plevin the plaintiffs must have either a general or a special property in the book replevied, and not a mere possessory right. Waterman v. Robinson, 5 Mass. R. 303 ; Ladd v. Billings, 15 Mass. R. 15. The question is, whether they can sustain this action as trustees, by virtue of St. 1785, c. 51. By this statute the deacons of a protestant church are a body corporate, so far as to take “ grants and donations,” to the church, and to sue and defend all actions touching the same. Here their power ends. There is no evidence that this book was “ a grant or donation ” to the Church, (unless the book itself shows the fact,) or that it was purchased with the proceeds of a grant or donation ; nor does it contain any entries respecting the property of the church.
   Shaw C. J.

delivered the opinion of the Court. The first question presented is a question of fact, whether the book in controversy is the church record, or a private memorandum, kept by Dr. Puffer for his own information. It appears that during the whole time it was kept, Dr. Puffer was the minister of the parish and pastor of the church, that the book was kept wholly or principally by him, and that the pastor is the proper officer to keep such a record. On inspection, it appears to be a regular statement, in proper form for a record, of the admission of members, the choice of officers, and the transaction of the ordinary business of the church. We must take notice of a usage so general as that of a church to keep a record. It is also to be considered, that the law recognises the existence and organization of a church, as an aggregate body, takes notice of its acts and doings, and annexes thereto various civil rights and powers. It is in virtue of this organization and these proceedings, that deacons are elected; and being thus elected, they are empowered and qualified by the law to sue as a corporation. The law therefore does, by necessary implication, authorize and require a church, by a proper officer, to keep some record of its acts. We are therefore satisfied, that a record of the proceedings of the church of Berlin was kept; and as the book produced bears all the marks of being such record, and as no other was kept, we are satisfied that the book in question is the record of that church.

We are also satisfied by the same considerations, that the book was originally purchased for or given to the church, for the purpose for which it was used ; that it was kept by Dr. Puffer as an officer of the church for their use, and not for himself; and that therefore, by force of the statute vesting the property of all grants and donations of real and personal estate, made to the church, in the deacons, the legal property was in those persons who were rightfully and legally the deacons of the Congregational church of Berlin, when this action was brought.

The remaining question is, whether11 the plaintiffs are those deacons ; and upon the facts stated we think they are. They are the deacons of the church connected with the Congregational Society of which Dr. Puffer was the minister and pastor, and which has not ceased to be the same church, although a majority of its members have withdrawn. The case is not to be distinguished from that of Stebbins v. Jennings, 10 Pick. 172.

Defendant defaulted. 
      
      
         See Fourth. Parish in West Springfield v. Root, 18 Pick. 320.
     
      
       See Rev. Stat. c. 20, § 39 et seq. An action of trover or replevin may be maintained for the recovery of the parish records, in the name cf the parish. First Parish in Sudbury v. Stearns, 21 Pick. 148
     
      
        Haskell v. Haven, 3 Pick. 404; Scott v. Dickinson, 14 Pick. 276; Leach v Hill, 3 Metc. 173; Niles v. Hancock, ibid. 568; Bussey v. Briggs, 2 Metc. 132 Brown v. Putnam, ibid. 271; Agry v. Betts, 3 Fairf. 415; Black v. Ballard 1 Shepl. 239.
     