
    REV. JOHN MILLER v. THE TRUSTEES OF THE BAPTIST CHURCH AND CONGREGATION AT ALLOWAYSTOWN.
    What is a sufficient call of, or contract by a Church with, a minister of the Gospel, to make the Trustees liable to an action for the recovery of his salary. Quere ?
    
    On motion to set aside a non-suit ordered at the Circuit, and grant a new trial.
    STATE OF THE CASE.
    The plaintiff is a minister of the Gospel; and brought this action on an indebitatus assumpsit, and quantum meruit, for salary alleged to be due to him from the defendants, in whose congregation and Church, he had laboured.
    It appeared that a call had been voted to him, both by the Church and congregation. The Church appointed a committee to present the call — which they did; and it was accepted, and services performed in pursuance thereof. The trustees as such, did not join in the call, though they or a greater part thereof, were present, as a part of the Church or congregation. . And a majority of the committee to present the call, were also trustees. Notice was then given, at the same meeting, in the name of the president of the trustees, of a meeting of the trustees to rent pews to raise a salary — one man said, for Mr. Miller; but was not certain Miller’s name was mentioned. The meeting took place; the witness thinks that the object of the meeting was then talked of to raise salary for Mr. Miller. A part of the trustees, as well as of the congregation, were present. But it did not appear that at that time or any other, the trustees, as such a body, had any vote on, or otherwise expressly sanctioned the call. But all the trustees or if not all, certainly all but one, attended on the ministration of the plaintiff, for a portion of the time during which he laboured in their Church. It was also proved that the president of the trustees, who acted as their treasurer also — had paid money to the plaintiff on account of the salary voted to him, by the congregation and Church.
    After the plaintiff had rested his cause, the defendants moved for a non-suit, on the ground that the Corporation was not bound. That however the Church or congregation, or even the committee, might be in some way responsible;-Yet there was no evidence to bind the trustees — as such, or the congregation.
    The Judge being of the opinion that some more direct and express evidence must be given, that the trustees as such, had sanctioned the call — had agreed to the employment of the pastor, or to pay him salary; or in other words had passed some vote on the subject, when duly convened — concurring in, or adopting the call, or concurring in the employment of the plaintiff. Or that this action could not be supported — directed the plaintiff to be called.
    
      Jeffers and MoOullooh, for plaintiff.
    
      R. P. Thompson, for defendants.
   The opinion of the Court, was delivered by

Ryekson, J.

The defendants in this cause, are a Corporation under our statute entitled “An act to incorporate trustees of religious societies,” Rev. Laws 475. It may be remarked, that religious societies in this state, whose trustees are incorporated under the said act, present a three-fold aspect. First The congregation who usually meet together for religious worship and instruction: Secondly The Church — strictly so called — composed of those entitled to full church privileges; and lastly the trustees — or corporation. Each of these may act separately. The efficacy of their respective acts, or how they are to be rendered responsible therefor, or how their respective duties or obligations are to he enforced may sometimes become an important inquiry. The employment of a pastor, may be submitted or allowed to the congregation at large. Or it may be done by the Church, strictly so called. But unless the trustees, as such, are parties to the contract, no action at law can he sustained against the society, whatever other remedy may exist. The trustees may refuse their assent to the employment of a pastor whom the Church or congregation may employ. And if they do — no action lies — -and the only remedy I can conceive of against them, would be not against them as a corporation, but against them personally, by removal from office, or in some other mode, for a dereliction of personal duty. But it must be borne in mind, that although they as trustees are entitled to the custody of the temporalities of the society; they ought not to act capriciously, or arbitrarily. When the society has regularly employed a pastor, it becomes the duty of the trustees, to fulfill their trust by exerting the means in their hands, to provide the stipulated support. This duty it is to he presumed they will fulfill. And where their dissent does not expressly appear, it is to be presumed that they have undertaken to perform their duty. Where a minister is invited by the Church or congregation to perform the pastoral office, with a promise express — or implied, of .compensation therefor, and the trustees interpose no obstacle to his introduction into the charge; and more especially, if they open, (or what would seem to be the same in effect, where they permit to be opened, unto him,) their place of worship, and allow him to discharge the duties to which he is invited; the facts are sufficient to warrant the inference, that they have undertaken to pay him. It had become their duty so to do, and the presumption is that they have and will perform it.

Upon the trial of this cause, I required of the plaintiff proof direct that the defendants, by some act or vole as a body of trustees, had assented to the hiring, and had concurred in the promise of reward, before they could be as a Corporation held liable to an action. This proof, I conceived, had not been given, and therefore non-suited the plaintiff. I did not indeed, suppose that the old doctrine was now law that a Corporation could only be bound by an express contract; and far less that such contract could only be made in one particular form. But I did suppose that all power that could be recognized in a Court of law, resided exclusively in the board of trustees, and until they as a body, as a Corporation, were shown to have acted — no binding, legal obligation had been assumed, or could be inferred. I am now of opinion, I took too narrow a view of the subject, and that the non-suit should be set aside; with costs to abide the event of the suit. See 12 Johnson’s Rep. 227; 14th lb. 118; 3 Halst. 182 where will be found an extensive collection of cases bearing on this subject.

Cited in Worrell v. Presbyterian Church, 8 C. E. Gr. 102-106.  