#### The Trustees of the German Evangelical Congregation of New Elm vs. Hoessli and others.

A complaint by the trustees of an incorporated religious society alleged that the plaintiffs were in possession of, and held in trust for said society, all its real and personal property, including a meeting house used for stated divine service, and that the defendants, under the false pretense of being themselves the trustees of said society, had often interfered with its property, and threatened to take into their custody all its temporalities, and transact all affairs relative thereto; and prayed for a perpetual injunction, restraining them from interfering with such property, &c., or using the name of such corporation. *SelcL,*on demurrer, that the action was properly brought by the trustees in their own (corporate) name, and not in the name of the state.

NKá, also, that the complaint showed a proper case for an injunction.

Although the writ of injunction is abolished by chap. 129 of the Revised Statutes, still when the complaint lays a foundation for an injunction, it will be granted, whether as a final judgment or as a provisional remedy, in all cases where it would have been allowed under the old chancery practice.

Section 2, chapter 129, R. S., 1858, rather enlarges than restricts the power of the court over the remedy by injunction.

In cases of private trespass an injunction will generally not be granted, because the party aggrieved has an adequate remedy at the common law.

But where the injury complained of goes to the destruction of the estate in the character in which it is enjoyed, or where the mischief would be irremediable and such as damages would not compensate, courts of equity will grant an injunction.

APPEAL from tbe Circuit Court for *Winnebago*County.

Tbe complaint in tbis case alleged tbe following facts: That on tbe 8th of September, 1851, tbe members then belonging to tbe religious society called tbe German Evangelical Con*349gregation in. New Elm, (in the county of Winnebago,) nottben incorporated, having previously been duly notified, met getber at tbe place then used by them for- stated divine worship, and duly elected three of their number trustees to take charge of the property of said religious society, and to transact all affairs relative to the temporalities thereof, and resolved that said trustees and their successors in office should forever after be known as “ The Trustees of the German Evangelical Congregation in New Elmthat a certificate of the proceedings of this meeting, in due form and .properly acknowledged, (a copy of which is set forth in ¡the complaint,) was duly recorded, in the same month, in the clerk’s' office of said county;' that thereupon said trustees became a body corporate, by the name aforesaid; that one trustee had thereafter been annually elected pursuant to the statute and to the by-laws of said corporation; that said corporation has never been dissolved, but has ever since continued to .be and now is a body corporate, and is the plaintiff in this suit; that the members of said religious society, ever since September, 1851, have continued to hold stated divine service; and the plaintiff has taken into its possession and now holds in trust for said society, certain real and personal property acquired by it for that purpose, including a meeting-house, &c. The complaint also alleges, that in July, 1857, the defendants, for the purpose of laying a foundation to usurp and interfere with the name and interests of the plaintiff, and with the estate held by the plaintiff in trust for said religious society, fraudulently caused to be recorded in the office of the clerk of the board of supervisors of said county, a false certificate, whereby, after reciting that the German Evangelical Congregation in New Elm, incorporated on the 8th of September, 1851, had been dissolved less than six years before, and that the remaining members were desirous of incorporating said congregation again, under the statute, it was declared that in pursuance of due notice given to the members of said congregation on three successive Sabbaths, an election was held on the 27th of July, 1857, for three trustees, for the purpose of incorporating said congregation, and that at such election the defendants were duly elected *350^rus^ees take charge of the estate and property belonging said congregation, and that it was resolved that said trus-an(^ successors in office should forever be known as “ The Trustees of the German Evangelical Congregation in New Elm.” The complaint alleges that the defendants, at the time of said pretended election, if members of any religious society at all, were members of one already duly incorporated ; that none of the defendants were at the time trustees of said German Evangelical Congregation of New Elm; that no public notice of such election was ever given at the usual place of meeting of said congregation, or at any place where the members thereof statedly attended for divine worship, nor was such election held at any such place of meeting, but if held at all, was held at some other place, without the knowledge of a majority of the members of said congregation, and without the knowledge of the trustees of said congregation, or of its officers. The complaint also alleges that the defendants falsely claim to be “ The Trustees of the German Evangelical Congregation of New Elm,” and acting under that name have often interfered with the property held by the plaintiff in trust as aforesaid, and now threaten to take into their custody all the temporalities of said religious society, and transact all affairs relative there-Prayer, that the defendants might be forever restrained from using the aforesaid corporate name, and from in any manner usurping or interfering with any of the rights, property, &c., of the plaintiff, or with the temporalities of said religious society.

The defendants demurred to the complaint, and from an order overruling their demurrer, appealed. The grounds of demurrer are stated in the opinion of the court.

*Weisbrod & Finch,*for appellants,

contended that the plaintiffs’ remedy was under sec. 6 or sec. 14 of chap. 160, R. S. ; that a suit under either of those sections must be brought in the name of the state, and by the attorney general, unless he refused to act, in which case it might be brought by a private person; and that a *quo warranto*was the proper proceeding to determine whether the defendants possessed the corporate powers claimed by them, as alleged in the com*351plaint. 2 Kent’s Comm., 318; 3' John., 134; *She vs. Bbom,*5 Johns. Ch. R., 380; *Attorney General vs. Earl of*17 Yesey, 491;' *Att’y Genii vs. Utica Ins. Go.,*2 Johns. Ch. R, 376, 378, 388; *The King vs. Whitwell,*5 Term R, 85; *Commonwealth vs.*Arrison, 15 Serg. & Rawle, 127; *Comm. vs.*Woelper, 3 id., 29; *Comm. vs.*Cain, 5 id., 510. The plaintiff, having thus a complete remedy at law, cannot maintain a suit in equity for an injunction. 1 Story’s Eq. Jm\, 7th Ed., § 33; *Shephard vs. Genung,*5 Wis., 397; *Att'y Gen’l vs. Utica Ins.*Co., 2 Johns. Ch. R, 376, 390-1. If this case should come to an issue of fact, the question of dissolution, by forfeiture or some other cause, would necessarily arise (5 John. Ch. R., 379); but a court of chancery never deals with the question of forfeiture. 2 Kent’s Comm., 314, and cases there cited.. 2. The circuit court can grant an injunction only where the complaint is filed by the attorney general. 3. The complaint does not show that the plaintiff is a corporation. The provisions of sec. 4, chap. 148, R S., do not apply to religious corporations. See sec. 38, same chapter. The general averment in the complaint that the plaintiff is a corporation, is controlled by the specific facts alleged to show compliance with the statute (chap. 47, R S., 1849) under which it claims to have become incorporated. 4 Wis., 112. If the complaint does not contain the necessary averments to meet the rj^uirements of that statute, the defect may be taken advantage of by demurrer. 7 Wis., 282. But there is no allegation that the members of the Germ. Ev. Gong, who elected trustees in 1851, were “ *of full age;"*nor that the trustees then elected were classified by lot. See sections 1 and 12 ‘of the statute.

*Bowk fy*Edmonds, for respondents:

1. It was not necessary to state in the complaint that the electors of the first trustees, in 1851, were of full age. The presumption is always against minority. Whoever seeks to take advantage of infancy, as a defense, whether it be the infant, himself or some other person, must aver and prove it 1 Phil. Ev. (4th Am. Ed.), 83; 1 Greenl. Ev., § 81; 2 id., § 362; *Borthwich vs.*Carruthers, 1 T. R, 648; *Earthy vs.*Wharton, 11 A. & E., 934; *Lessee of Battin vs.*Bigelow, Pe*352ters C. C. B., 452; *Leader vs. Bary,*1 Esp., 353 ; *Jenne vs.*Ward, 2 Stark., 326. 2. The classification of the trustees is not required to be made before the filing of the certificate, and therefore does not affect the original incorporation. And it is not necessary to aver all the subsequent proceedings of the corporation, but a general allegation showing continued user, and denying a dissolution, is all that was required. 3. Upon the facts stated in the complaint, the defendants are mere pretenders, using the name and seeking by fraud to get possession of the temporalities of a religious society. Their interference with the property of the society in the possession of the plaintiff, may be restrained by injunction. *Beatty vs.*.'Kurtz, 2 Peters, 566, 584; Story’s Eq. Jur.,-§§ 925 et seq. The defendants are at best in the situation of persons acting under a void charter, in which case neither *scire facias*nor *quo warranto*is necessary, for a void charter affords no protection to those acting under it. Ang. & A. on Corp., § 778 and case there cited; *Saclwille College Case, Lcl*Bay-mond, 178 ; *Butler's*Case, 2 Tent., 344; *Bex vs.*Pasmore, 3 T. B., 244; 2 id., 556; *The Pres. &c., of Kish. & Cent. Tump. B. Co. vs.*McConaby, 16 Serg. & B., 145 ; *Karl of Butland’s Case,*8 Coke, 55, a.; *Bex vs. Kemp,*12 Mod., 78. 4. The name of a corporation is a part of its franchises. Ang. & A. on Corp., §§ 99, et seq.; Grant on Corp., pp. 13 and 50. Where religious society has incorporated itself, choosing its own corporate name, under our statute, its only remedy against other persons incorporating or pretending to incorporate themselves under the same name, is by injunction. 11 Serg. B., 73, 74; *Wardens Sc. vs. Hall,*22 Conn., 125; *Minot vs. Curtis,*7 Mass., 441; *Newburgh T. Co. vs. Miller,*5 Johns. Oh. B., 112 ; Story’s Eq.. Jur., §§ 927, 951, and cases there cited.

January 15.

*%y gie (foug-t,*

Cole, J.

We are of the opinion that the order overruling the demurrer to the complaint in this case, must be affirmed. Objections are taken to the complaint on several grounds. First, it is insisted that there is a defect of parties plaintiff, and that the state should be made a party. But we think this objection is clearly untenable. The ac*353tion is brought by tbe trustees of a religious society, which was incorporated under the provisions of chap. 47, R. 1849, for the purpose of restraining the appellants from terfering with the rights, estate and temporalities of the church and society, and to prevent them from using the name of the corporation. Thus the gravamen of the complaint, or ground of action, appears to be a trespass upon the rights and property of a religious society. Now it is Very clear that in a controversy of this character, the state, as such, can have no direct interest. Assuming, as we must upon this demurrer, that the allegations of the complaint are true, still the state has no further interest in the matters in controversy than it would have in an ordinary trespass upon the property of a religious society. Again, it is objected that the plaintiff has no legal capacity to sue, because it appears from the complaint that the plaintiff is not a corporation ; and that it does not appear therefrom that the attorney general has refused to act. The first branch of this objection is certainly unfounded, since it is alleged in the complaint, with all necessary and reasonable certainty, that the religious society was duly incorporated under the statute; and that the respondents were elected trustees of the same. This would give the trustees a right to bring a suit in their corporate name for an injury to the property. (See chap. 47, R. S., 1849, and chap. 66, R. S. 1858, secs. 7 and 8). The other branch of the objection seems to imply that the suit is brought for the purpose of dissolving a corporation having an actual existence, or to oust certain parties from acting as a corporation, or to test the fact of their incorporation. We have already stated that the object of the suit appeared to be to restrain the appellants from interfering with the possession and enjoyment of the temporalities of the church and society, upon the ground that they had no right whatever so to do, and that we could not see that the state or attorney general had any particular interest in the litigation. The proceeding is not analogous to an information in the nature of a *quo warranto.*This is very apparent if the allegations of the complaint are considered. It is quite probable that the question whether the religious society has been dissolved, or *354if not dissolved, whether the appellants or respondents are the lawfully chosen trustees thereof, and as such entitled to take into their possession and under their control the tempo-ralities of the church and society, may come up for judicial inquiry on the trial; tout no such question can possibly now arise in view of the allegations of the complaint. The next, and, as we consider, the chief objection to the complaint is, that it does not state facts sufficient to constitute a cause of action. Upon this point we must say that the case is not entirely free from difficulty. But the .difficulty does not grow out of the fact that the code has abolished all distinctions between actions at law and suits in equity, or abridged the power of the courts of this state to grant equitable relief in a proper case — a proposition contended for on the brief of the counsel for the appellants. Eor although the writ of injunction is abolished by chapter 129, E. S., still when the complaint lays a foundation for an injunction, it will be granted by the court, either as a final judgment in the action or as a provisional remedy, in all cases where it would be allowed under the old chancery practice. Sec. 2, chap. 129, which provides, that when “ it appears from the complaint that the plaintiff is entitled to the relief demanded, and that such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce an injury to the plaintiff,” &c., would seem rather to enlarge than restrict the power of the court over the remedy by injunction. But we are further of the opinion that a court of chancery would grant an injunction under the facts stated in the complaint. The general rule undoubtedly .is, that in cases of private trespass an injunction would not be granted, for the reason that the aggrieved party had an adequate common law remedy by action, where proper damages could be assessed by a jury. In ordinary cases this was found to be sufficient for the protection of property. “But in cases of a peculiar nature, where the mischief was irremediable which damages could *not*compensate, or where the injury reached to the very substance and value of the estate, and went to the destruction of it in the character in which it was *355enjoyed,” then courts of equity would grant an injunction to prevent tbe injury complained of. *Beatty et al. vs.*Kurtz, 2 Peters, 566; *Jerome vs. Ross,*7 J. C. R., 314; *Varick vs. the Mayor*&c., *of the city of New York,*4 id., 53. Now it must be admitted that tbe circumstances of this case are so special, tbe nature and use of tbe property itself are so peculiar, tbat an ordinary action of trespass would furnish no adequate compensation for an injury to tbe possession. For would any mere pecuniary damages furnish any compensation to a religious society for repeated and constant acts of trespass upon its property and temporalities ? Most clearly not. Tbe entire value of such property consists in its free and undisturbed use and enjoyment for religious worship. Considering, therefore, the nature of this property, the use and purpose to which it is dedicated, tbe mischief arising from acts of trespass upon it, and tbe insufficiency of the ordinary legal remedies, we must say tbat, in our opinion, the complaint states a proper case for an injunction.

Tbe order of the circuit court overruling the demurrer, is affirmed.