The Clergyman's Hand-book of Law Part 6

*212.* _Trust, Court of Equity._-A conveyance in trust for the use of a church vests the use in the church and it will be protected by a court of equity.(381)

*213.* _Injunction, Closing Church, Paying Money, Disturbances._-A court of equity will issue an injunction against the trustees of a church from wrongfully closing it or keeping it closed even against a small minority.(382) Church property vested in trustees of a religious body is held under trust and a court of equity has jurisdiction to enforce the trust.(383) A court of equity may restrain the trustees of a church from paying money to a duly deposed minister.(384) But a court of equity will not interfere to quell religious disturbances when no question as to property or civil rights is involved. The board of trustees of a church can not remove a priest against the will of the congregation.(385)

*214.* _Suits, Parties._-Where a number of persons have contributed to the erection of a church, it is not necessary for all who contribute to join in an action to restrain a sale of the property for mercantile purposes.(386) Any member of a church not incorporated may come into a court of equity in behalf of himself and others and enforce the execution of a trust in favor of the church.(387) The same rule would apply to a church where any one in authority is violating the law.(388) If several congregations of a diocese are interested in litigation, to hold all the property of the diocese liable for the debt of a parish, each congregation is ent.i.tled to be made a party.(389)

*215.* _Complaint._-A complaint that the plaintiffs hold one doctrinal standard and the defendants another is sufficiently definite without explaining the difference between the two.(390)

*216.* _Church Tribunal, Courts._-Courts are reluctant to interfere in the church doctrine or discipline or inquire into the regularity of the proceedings of the church tribunal. When such tribunal has deposed a pastor or expelled a member, it is final. However, in contracts, property rights, and civil rights of a citizen, the courts take jurisdiction. It is no defense to a pastor's expulsion that there is salary due him.(391)

*217.* _Unincorporated Congregation, Actions, Interest._-An unincorporated congregation may be sued on contract in its a.s.sociate capacity, though no persons are named as trustees or committeeman.(392) In all actions by or against a congregation the civil courts will not permit suits to be brought by complainants who have no interest either legal or equitable in the temporalities of the church.(393) A suit against a society of Shakers consisting of indefinite members.h.i.+p with changing additions, withdrawals, and deaths, whose property is held in common without any individual interest, may properly be brought in equity as the remedy at law would be inadequate.(394)

*218.* _Blasphemy, Sabbath, Lord's Prayer, Bible._-Christianity is a part of the common law of the United States; it is on this ground that blasphemy and violation of the Sabbath are made criminal offenses and that the Lord's Prayer and the Bible are used in the schools.(395)

CHAPTER XVIII. EVIDENCE

*219.* _Judicial Notice._-A church takes judicial notice without proof of its own rules, laws, and doctrines. Every other fact should be proved according to the rules of evidence of the church, and in the absence of a church rule the following rules of the courts of this country should prevail:

1. Nothing should be admitted in evidence unless it directly proves or disproves an evidentiary fact forming a link of a chain of facts that will prove a fact in issue.

2. It is sufficient to prove the substance of the issue, unless the exact word or thing forms the issue.

3. The burden of proof is on the one who a.s.serts the fact, whether it is stated affirmatively or negatively, and its proof is necessary to his making a case.

4. The best evidence that the case in its nature affords must be produced.

5. Mere hearsay evidence shall not be allowed, excepting:

(a) Matters of public or general interest.

(b) Declaration against interest.

(c) Dying declarations.

(d) The testimony of witnesses since dead or absent.

(e) Admissions.

(f) Confessions.

*220.* _Competent Witness._-Everybody who has the use of reason and understands the import of an oath is a competent witness.

*221.* _Confessions, Secret Societies._-At common law, confessions were admissible; but there is no case in the United States since 1813 where the court has sent a priest to jail for contempt for refusing to disclose a confession, and no case in which a priest disclosed a confession.

Immediately after a priest was committed for contempt for refusing to divulge the secrets of the confessional, in 1813, New York enacted the following law: "No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination." A similar law has been adopted in the following States and Territories: Alabama, Arizona, California, Colorado, Idaho, Iowa, Kansas, Kentucky, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, New York, Oklahoma, South Dakota, Utah, Was.h.i.+ngton, Wisconsin, Wyoming, and Hawaii. The secrets of a secret society are not privileged, and a member as a witness must answer all relevant questions in court.(396)

*222.* _Privilege, Answer._-When a question concerning a matter privileged is put, the priest should say: "I claim my privilege as a clergyman and ask the court not to require me to answer"; "Whatever he said concerning the matter, was said to me in the confessional as a priest"; "I talked with him about the matter only in my professional capacity as a priest and confessor"; "I did not speak to him about the matter except in my confidential capacity as priest;" or a similar statement that sets up the clergyman's privilege without giving facts. A clergyman should not say: "He confessed it to me," or "He told it to me in confession," or give any other answer that implies what was said in confession, as jurors are always watching for a hint of what was said. Neither should the priest say, "I refuse to answer," without stating that he refuses because of his privilege as a clergyman. The trial judge or the attorneys trying the case may put proper questions to determine whether the information was given the witness in the confessional or in his capacity as confessor.(397)

*223.* _Admissions, False Statements._-Admissions or statements made to a clergyman not in his capacity of confidential adviser or in the course of discipline, are not privileged.(398) Neither are false statements made to a committee investigating charges; but all statements made to such a committee or an officer of the church, unless false and made with malice, are privileged.(399)

*224.* _Anonymous Letter, Clergyman._-Where a priest received an anonymous letter alleged to have been written by a defendant, which he read to her, he was not disqualified from testifying that she was excited and that she stated she had no idea how the fire started, and that the letter was unknown to her, etc.(400) The mere fact that a communication is made to a clergyman does not make it privileged. It is privileged only when made in confidence of the relation and under such circ.u.mstances as to imply that it should forever remain a secret in the breast of the confidential adviser.(401) When a matter is privileged, it is not left to the witness whether or not he shall testify concerning it; but he can not testify without the consent of the other party.(402)

*225.* _Voire Dire._-Where a priest made a preliminary examination of a woman to ascertain her mental capacity to make a confession, her answers in such preliminary examination were admissible in a contest on a will; but her confession was not admissible.(403)

*226.* _England, Confession._-The rule is now accorded priests in England, but was not formerly. Where a priest turned a watch over to its owner, the court ordered him, under pain of contempt, to tell where he got the watch.(404) But in another case it was held that a priest need not divulge the confession of a defendant who was held for crime.(405)

*227.* _United States, Rules._-In the United States courts, the rule prevails that such confidential communications to a priest shall not be divulged.(406)

*228.* _Presumptions, Usage._-The usage of a church or the laws of its organization as a religious society, if they are to be considered in deciding legal controversies, must be proved as facts.(407) In the absence of proof, it will be presumed that subordinate bodies, as congregations, can not dissolve their connection with the princ.i.p.al organization without permission.(408)

*229.* _Funeral Expenses._-Witnesses' opinions as to the reasonable amount for burial or as to the cost of a funeral being reasonable, are not binding on a court or jury. The station of a man, the property that he leaves, the life that he has followed, all should be considered by the court. The whims and notions of societies and others are of minor consideration. Those who make funeral expenses that are not allowed by the court must pay them.(409)

CHAPTER XIX. CONTRACTS

*230.* _Business, Religious Service._-A church organization has the legal right to make any contract concerning its own affairs that is not prohibited by its by-laws or its charter, subject to all laws of legal contracts in the business world. When the consideration is a religious service duly performed, there seems to be no objection to it. Therefore, a minister may collect for preaching a sermon, attending the sick, or saying prayers, or performing any other religious service. But an incorporated church has no authority to enter into a contract for an ulterior purpose, such as the employment of a vessel for the purpose of an excursion.(410)

*231.* _Incorporated Body._-The only way a religious society that is incorporated can make a contract is by a vote of the aggregate body or of the board of trustees, or through an agent authorized by a vote of one body or the other.(411)

*232.* _Mortgage, Deficiency Judgment._-Where a mortgage had been foreclosed against church property before the congregation was incorporated, a deficiency judgment can not be rendered against such church corporation.(412) But where a congregation was incorporated after a debt had been incurred and took charge of the property, it a.s.sumed the debt.(413)

*233.* _Building Contracts._-The taking part in a meeting by voting and appointing committees to make contracts will bind those taking part in all contracts made in accordance with the directions of such meeting. In some States the individuals are held only to the amount that each subscribes, but in other States each individual is liable for the entire debt.(414)

*234.* _Individual Promise, Subscriptions, Signature._-An individual promise to give a donation to charity, can not be enforced.(415) But subscriptions to build a church or other charitable inst.i.tution or to pay the salary of a clergyman when signed by more than one person, have been held binding in some cases on the disputed rule of a-promise-for-a-promise consideration.(416) In the foregoing cases the donor might revoke his subscription or in case of his death his estate would not be liable.(417) However, when expenses have been made or steps taken in the carrying out of the object of the subscriptions, the general rule is that the subscriptions become binding contracts.(418) If the object of the subscriptions be abandoned or changed without the consent of the subscriber, he is thereby released. A promissory note given for the subscription, unless negotiated for value in due course of trade, does not change the foregoing rules.(419) Where many persons subscribed to build a church and some of them failed to pay, one who paid brought an action on behalf of himself and others and collected the unpaid subscriptions.(420) The defendant Nalty signed "Nalty Family, $1,000," but he was held personally liable.(421)

*235.* _Special Purpose, Suit._-When money is subscribed for a special purpose, as for rebuilding a church, it belongs to the church organization; and in a suit to recover the money the action should be brought in the name of the corporation, if incorporated, and if not incorporated it should be brought in the name of the interested party.(422)

*236.* _Promise, Consideration._-A promise made by the owner of land to a trustee for the benefit of a religious society, that he would convey the land to such society if it would build a church thereon, is a good and lawful consideration; and after work was begun on the church, the contract was enforceable in a court of equity.(423)

CHAPTER XX. PEWS

*237.* _Sold, Rented._-Prior to the Reformation pews were not sold nor rented and every member had the right to sit wherever he pleased in the body of the church. After the Reformation, the ordinary or bishop was granted the right of "faculty" to rent or sell pews.(424)

*238.* _Incorporeal Hereditament._-The English t.i.tle in a pew is in the nature of a right of way through another's land; it is an incorporeal hereditament. In the absence of express law, the t.i.tle to pews in this country is said to be in the nature of real estate, and in fact not very different from the English t.i.tle.(425) In some States the t.i.tle is made personal property by statute.(426) And in others the courts have inquired into the law of the church and adjudged the t.i.tle accordingly.(427) The general rule is that the owner of a pew simply has an eas.e.m.e.nt.(428)

*239.* _Catholic Church, Pew Rights._-In the Catholic Church, by the canon law, the owners.h.i.+p in or control over a pew is forbidden to laymen.

Notwithstanding that, if the party holding the t.i.tle violates the rule of the church by giving a deed to the pew-holder, the courts would probably sustain his t.i.tle.(429) However, as the clergy can neither rent nor sell pews without becoming subject to the law of the land and the jurisdiction of our courts, it is important to know what the law of the State is.