MILLER V. BAPTIST CHURCH AT ALLOWAYS TOWN.

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 McCulloch, for plaintiff.

R. P. Thompson, for defendants.

The opinion of the Court, was delivered by

RYERSON, 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

MILLER V. BAPTIST CHURCH AT ALLOWAYSTOWN.

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 be 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 be 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 fulfil their trust by exerting the means in their hands, to provide the stipulated support. This duty it is to be presumed they will fulfil. 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 vote as a body of

Cook v. WOOD.

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 Ib. 118; 3 Halst. 182 where will be found an extensive collection of cases bearing on this subject.

COOK v. WOOD.

A sheriff cannot seize or levy upon any property real or personal, under an execution, after it has been returned.

A sheriff cannot sell by virtue of an execution, any property upon which he has not previously levied, by virtue of such execution.

A delivery of an execution to the sheriff with instructions to do nothing, is no delivery. It would be a nullity, and would bind nothing.

An indefinite stay of an execution, by plaintiff's orders, although there be a levy under it; if the property levied on, remain, with plaintiff's consent, in defendant's possession and under his control, is such a suspension of the plaintiff's lien, that a subsequent execution shall have the preference if proceeded upon before the sheriff is ordered to execute the first writ.

A. L. Eakin, in behalf of the plaintiff William Cook, in

Cook v. WOOD.

September T. 1836, obtained a rule on the sheriff of the county of Salem, to bring into this Court, or, with the consent of parties, to retain in his hands, so much of the moneys raised by him on two certain executions, one against Thomas B. Wood, and the other against him and Isaiah Wood, at the suit of Charles Wood, as would be sufficient to satisfy the execution of William Cook against the said Thomas B. Wood, subject to the order of this Court; and also that the said Charles Wood shew cause why the money so to be brought in or retained by the sheriff, should not be applied to the satisfaction of the said William Cooks' execution; and that each party have leave to take affidavits &c.

Mr. Eakin, now moves to make the rule to shew cause absolute. W. N. Jeffers, contra.

HORNBLOWER, C. J. On the fourth day of March 1835, the following executions were delivered to the sheriff of Salem county viz. one at the suit of Charles Wood against Thomas B. Wood for one thousand seven hundred and seventy-five dollars and twenty-six cents, another against the same defendant at the suit of Hannah M. Wood for two hundred and twenty-five dollars and eighty-four cents and another at the suit of Charles Wood against Thomas B. Wood and Isaiah Wood, for ten hundred and twenty-five dollars and fifteen cents.

The judgments on which these several executions were founded, had all been entered up by confession on the day preceding the one, on which the executions were delivered to the sheriff. All the executions were indorsed by William N. Jeffers as attorney for the plaintiffs therein named. The person who put them in the hands of the sheriff, told him that Mr. Jeffers would give him directions about them. Soon after, and on the same day, the sheriff saw Mr. Jeffers and enquired of him, what course was to be taken in relation to the collection of the money on the executions? Mr. Jeffers said, that "that matter was not yet determined;" but told the sheriff "not to shut up the store, as Charles Wood did not wish that to be done, and that the executions would be stayed, or he expected they would be stayed." The sheriff upon reflection, not feeling it safe to let the matter

Cook v. WOOD.

rest in that way, requested Mr. Jeffers, to give him a stay, upon the executions. This he declined doing, but told the sheriff that in a day or two, in all probability, he would issue an execution against Thomas B. Wood at the suit of Grant Gibbons, which would supersede the necessity of a stay. The sheriff however went that same evening to Allowaystown, and levied upon the estate real and personal of Thomas B. Wood, and afterwards made an inventory which he returned with the executions. The several executions were numbered, that of Charles Wood v. Thomas B. Wood being marked No. 1. and Mr. Jeffers told the sheriff they were to have priority according to the number they bore.

On the 6th of March, two days after the delivery to the sheriff of the above stated executions-Mr. Jeffers delivered to him an execution against Thomas B. Wood, at the suit of Grant Gibbons; and shortly after that, the sheriff received a letter from Thomas B. Wood, the defendant, inclosing written stays of the executions against him at the suit of Charles Wood, and also of Hannah M. Wood; the former signed by Charles Wood and the latter by Hannah M. Wood. The writing signed by Charles Wood bears date the 14th of March 1835, and directs the sheriff to stay all further proceedings against Thomas B. Wood, on the executions in his favour and on the one in favour of Hannah M. Wood, until furthers orders from him the said Charles Wood. The one signed by Hannah M. Wood is to the same effect so far as relates to her execution, and directs the sheriff to stay all further proceedings, until further orders from her.* The sheriff soon after received similar writter instrnctions from Grant Gibbons.

*The stays are in the following words-To David S. English esq. sheriff. Sir you will please stay all other proceedings against Thomas B. Wood, and Isaiah Wood on those executions, you hold in my favour and myself and John Wood, and Hannah M. Wood until further orders from me.

Pittsgrove, March 14, 1835. Your's respectfully Charls Wood.

To David S. English esq.-Sir you will please to stay all further proceedings on that execution you have in your hands in my favour against Thomas B. Wood until further orders from me.

Your's respectfully Hannah M. Wood.

Pittsgrove Salem county March 24th 1835.