#### The Attorney General ex relatione, The Independent or Congregational Church of Wappetaw, Christ Church Parish, *vs.*The Society for the Relief of Elderly and Disabled Ministers and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the City of Charleston, and others.

33y an Act passed in 1789, a number of persons belonging to the “Independent or Congregational Church in Charleston,” commonly called “The Circular Church,” were incorporated under the name of “ The Society for the relief of elderly and disabled Ministers, and of the Widows and Orphans of the Clergy, of the Indepen-dentor Congregational Church *in the State of South Carolina,*9*In 1834, by Act to amend the Charter, the Act of 1789 was repealed, the name of the corporation changed to that of “The Society for the relief of elderly and disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church *in the City of Charleston,”*and the Society was authorized to appropriate its funds “ to such charitable, benevolent, religious and other purposes, for the benefit of the said corporation, and of the said Independent or Congregational Church *in the City of Charleston,*in such manner as may be determined by a majority of the members thereof: — ”

*Held,*that any Independent or Congregational Church in South Carolina, whether in existence in 1789, or afterwards established, was within the purview of the charter of 1789, and entitled to participate in the benefits of the charity; and that the amended charter of 1834, did not limit its benefits to the Circular Church in Charleston alone.

Other questions reserved with leave to plaintiff to amend his pleadings so as to bring them properly before the Court.

BEFORE DUNKIN, CH., AT CHARLESTON, JUNE, 1855.

The information and bill is as follows: — •

Informing, shows unto your Honors, Isaac W. Hayne, Attorney General of the State of South Carolina, by and at the relation of The Independent or Congregational Church of Wappetaw, Christ Church Parish, in the State aforesaid, of which the Rev. Edwin Cater is Minister; and Dr. Anthony *Y.*Toomer, Dr. Daniel Legare, Messrs. J. T. White, Geo. White, and William Yenning are Deacons; and Messrs. J. T. White and William McCants are Wardens: That the said Independent or Congregational Church was incorporated by an Act of the *191General Assembly, Sated 22d March, 1786, by the name of the Independent Church in Christ Church Parish, with a perpetual succession of officers and Members, and vested with all the rights, powers, privileges, and advantages which are specified and expressed in an Act for incorporating divers religious Societies, dated 26th March, 1784; and that the said.Church desiring to establish a Branch Church at Mount Pleasant, their Summer Retreat, were re-incorporated by an Act of the General Assembly, dated 20th December, 1858, by the name of the Independent or Congregational Church of Wappetaw, Christ Church Parish, with power to establish a Branch Church at Mount Pleasant, in the said Parish, with the same succession of its officers and Members, and vested with the same powers, privileges, and advantages as previously granted; except limiting the right to hold property to the sum of fifty thousand dollars — all of which will more fully appear upon reference to the said Aets of the General Assembly. And the said Attorney General, at the relation aforesaid, also informs your Honors, that certain benevolent and charitable persons, sensible of their Christian obligation to provide for the relief of their elderly and disabled Ministers, and of the Widows and Orphans of their Clergy of the Independent or Congregational Church, in the State of South Carolina, which faith and form of worship they professed and held, formed themselves into a Society for establishing a fund for their relief, and bound themselves together in the following manner, viz: “We, the subscribers, desirous of carrying this good purpose into effect, and testifying our regard to those who have faithfully labored amongst usin the Gospel, do hereby solemnly associate and bind ourselves together under the following Rules:” to which Preamble, Rules and By-Laws of the said Society, your Re-lators beg leave to refer. And that the said Associates for the purposes aforesaid were incorporated by an Act of the General Assembly, dated 7th March, 1789, by the name of “ The Society for the Relief of Elderly and Disabled Ministers, *192and of the Widows and Orphans of the Clergy of the Independent or Congregational Church *in the /State of South Carolina,”*with a perpetual succession of its officers and members, with power to hold lands, make rules and by-laws for their benefit and government; hold donations, and appropriate the same for the benefit of the corporation; and with power to retain the property it then possessed. And that the said Society, by an Act of the General Assembly, dated 17th December, 1834, obtained an amendment to their former Charter, by which it was repealed, and they were re-incorporated as follows: “Sec. 2d. And be it further enacted by the authority aforesaid, That the persons and members hitherto known by the name of The Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina, and their successors, Officers, and Members, shall be hereafter, and are hereby declared to be, one body corporate, in name and in deed, by the name of ‘ The Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church *in the City of Charleston,’*and by said name” to have a perpetual succession of officers and members, with right to hold property, and to sell and alien the same, to sue and be sued, to implead and be impleaded, answer and be answered unto, in any Court of Law and Equity in the State; to make rules and by-laws for the benefit and government of the Corporation, as the majority may agree upon; to hold lands and personal estate, and appropriate the same, as specified in the third section of the said Act of Incorporation, which reads as follows, to wit: “ Sec. 3. And be it further enacted by the authority aforesaid, That it shall and may be lawful for the said Corporation hereby erected, to take and hold to itself, and to its successors forever, any charitable donations or devises of lands and personal estate, and to appropriate, as also all other their funds, real and personal, *to such charitable, benevolent, reli**193*gious, and other purposes, for the lenefit of the said Corporation, and of the said Independent or Congregational Church, in the City of Charleston,*in such a manner as may be determined by a majority of the members thereof,” with power to retain the property heretofore held by it; to which Acts of the General Assembly your Relators beg leave more particularly to refer. And the said Attorney General, at the relation aforesaid, further informs your Honors, that the Independent or Congregational Church of Wappetaw, Christ Church Parish, some of whose members were formerly, and some of whom are now members of the said Society, and have contributed to its funds, constitute a part; and that their Ministers are of the Clergy of the Independent or Congregational Church in the State of South Carolina; and that they are interested as well under the. Constitution and By-Laws of the said Society as under the Acts of their incorporation, in all the funds of the said Society —and are entitled to benefits and advantages arising therefrom, and its proper application according to the charitable and benevolent purposes for which it was established. And the said Attorney General, at the relation aforesaid, further shows unto your Honors: That the funds of the said Society, in 1853, amounted to about fifty-eight thousand dollars; and that the said Society, or a majority of them, about that time, upon an application from the Circular Church of the City of Charleston, appropriated about eighteen thousand dollars of their said funds for the purpose of re-building or repairing that Church, an object totally disconnected with the purposes for which the said fund was established.

And the said Attorney General, at the relation aforesaid, further informs your Honors, That the said Society..for the: Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the City of Charleston, at present consists of twenty-three members; that its business is regularly transacted by a President, Yice President, Treasurer, Secretary, and a *194Committee of Finance consisting of five chosen from among the members by a majority of those present, at every Annual Meeting ; the Secretary and Treasurer to be residents in Charleston. That Henry A. DeSaussure is now President; Thomas Lehre, Vice President; Basil Lanneau, Treasurer; and Theodore Rud-dock, Secretary; and that the present Committee of Finance consists of William Lloyd, Thomas Lehre, Richard Yeadon, Geo. B. Locke, and H. A. DeSaussure. And that the seventh Rule of the said Society provides aid, by appropriation, for Elderly and Disabled Clergymen; and the eighth Rule provides, in like manner, for the Widows and Orphans of any deceased Clergyman entitled to the benefits of the Institution; and that no other appropriations are provided for in the Rules and ByLaws of the said Society; and that the President, Secretary, and Treasurer of the said Society, more especially the Treasurer, are in the habit of receiving, on behalf of the said Society, the rents and profits arising from the funds and estates of the said Society, and of settling the accounts respecting the same; and are entrusted with, and keep in their possession, the deeds, specialties, certificates of stock, dioses in action, and money of the Society. The books and papers of the said Society furnish an annual statement of accounts, and the said Officers are well acquainted with all the particulars of the foundation of the said Society, endowments of the said Society, of all the funds and estates belonging to the same; the rents and profits thereof, and of all deeds, evidences, and writings relating thereto.

And the said Attorney General, at the relation aforesaid, further informs your Honors, That your Relators, upon being advised of the said misapplication of a portion of the said Trust funds of the said Society, (viz: eighteen thousand dollars,) by a majority of its members, immediately and frequently since, have applied to the said Society through its Officers, and to the Officers of the said Society, and requested them to restore the said sum of money to the Trust funds of the said Society, and *195to account for interest on the said sum, and to hold and apply the said funds in future *only*to the purposes of the Trusts upon which the said funds and estates were received by them, and are vested in them; and your Relators hoped that the said Society, through its officers aforesaid, would have so accounted for the said sum of eighteen thousand dollars, (so misapplied as aforesaid,) and would have paid it, or caused it to he paid back into the Treasury of the said Society, to he applied according to the Trusts, viz: to the benefit of such person or persons as are éntitled thereto by virtue of the Constitution, Rules and By-Laws of the said Society, and the Acts of the General Assembly incorporating the said Society, and also of the benevolent and charitable intentions of the donors and founders of the said fund. But now so it is, may it please your Honors, that the said Society, and the Officers and Members of the said Society refuse to pay back into the Treasury of the said Society, the sum of money which they have misused as aforesaid, or to account for the same in any manner whatsoever, but allege that they had a power under their amended Charter so to appropriate the said Trust funds, or any portion thereof; and that the Church at Wappetaw, since the Act of the General Assembly amending their Charter, has no right or interest in and to the said Trust funds of the said Society, or any of the benefits and advantages arising therefrom. Whereas, your Relators charge, that the Act of 1834 only changed the corporate name of the Society, and not its object and purposes; and does not limit the benefits and advantages tobe derived from its funds to the Church in the City of Charleston *alone ;*that the charitable intention of the founders of the said Fund and of the said Society, would be entirely frustrated by such a construction of that Act; and there is no power given by the said Act to the officers and Members of the said Society to apply the funds of the said Society to objects and purposes disconnected with, and not for the benefit of the specific charity; and that the Church at. Wappetaw *196is not deprived by that Act of their interest in the said funds of the said Society, or of the right of their Clergy, and the Widows and Orphans of their Clergy to derive benefits and advantages from that fund. And your Relators further charge, that the Officers and Members of the said Society who misapplied that portion of the funds of the said Society, as aforesaid, ought to restore the same to the Treasury of the said Society, with *interest;*and that the said Society, and its officers and members, ought to be restrained from committing any further waste upon the funds of the said Society, or misapplication of the said funds, or any part thereof. All which actings and doings, pretences and refusals of the said Society, and of the Officers and Members of the said Society, are contrary to Equity and good conscience, and tend not only to the manifest wrong and injury of your Relators in the premises, but also to frustrate the charitable intention of the donors and founders of the said Fund, by applying them to other objects and purposes. In consideration whereof, and for as much as your Relators can only have adequate relief in the premises in a Court of Equity, where matters of this nature are properly cognizable and re-lievable. To the end, therefore, that the said Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the City of Charleston, may by Henry A. DeSaussure, its President; Thomas Lehre, its Vice President; Basil Lanneau, its Treasurer; Theodore Ruddock, its Secretary; and William Lloyd, Thomas Lehre, Richard Yeadon, George B. Locke, and Henry A. DeSaussure, its Committee of Finance, both as officers of the said Society, and as Trustees for the Funds of the said Society, full, true, direct, and perfect answer make, to all and singular the matters aforesaid, upon th(eir several and respective corporal oaths, to the best and utmost of their several and respective knowledge, remembrance, information, and belief; and that as fully and particularly, as if the same were here repeated, and they and every *197of them distinctly interrogated thereto; and that they and every of them may more especially answer and set forth, what funds they have now in their hands belonging to the said Society, and in what does it consist, and what is the net annual income arising therefrom ; what was the amount of said Fund previous to 1853; what appropriations have been made out of said Fund before and after 1853, and for what, purposes were said appropriations made; has any appropriation been made for the re-building of the Circular Church, or for any other purposes connected with said Church, at any time, when, how often, and in what amounts; and more especially did not they appropriate about eighteen thousand dollars of the said Funds of the said Society, some time in 1853, for the purpose of improving the Building of the Circular Church in the City of Charleston ? How many of the members were present at the meeting when that appropriation was made ; who they were ; and who voted in the affirmative, and who in the negative? Whether the money was raised by the transfer or sale of the Stocks, or other securities of the said Society, or not; and if not in that way, how it was realized ? that the said Charity may be fully established, declared, and set forth; and what rights, interests, benefits, and advantages, your Relators, and their Clergy, and the Widows and Orphans of their Clergy, may have in the said Funds of the said Society; and that an account may be taken by and under the direction of this Court, of all and singular the Funds and Assets of the said Society; the receipts and disbursements of the said Funds; and that they may answer for such parts of the said Funds as shall appear to have been improperly applied by them, from such time as this Court shall direct; .and that it may be referred to the Master to settle a plan for the future application of all the rents and profits of the estates, and other revenues belonging to the said Society, to the proper uses of the said Charity; and that the said Society, its Officers and Members, be in the mean time restrained by the Injunction of this Court, from making any *198further appropriations out of the said Funds of the said Society; and that for the purposes aforesaid, all necessary directions might he given; and that your Relators may have such other and further relief in the premises, or that such further and other directions may be given for the benefit of the said Charity, as the nature of the case may require, and to your Honors may seem meet, &c.

The answer of the defendants is as follows:—

That on reference to the Statute Law of the State of South Carolina, (8 Statutes at large, p. 184,) it will be found that a church was incorporated by an Act of Assembly, passed 22d March, 1786, by the name of “ The Independent Church, in Christ Church Parish,” which should ha *re perpetual succession,*and be vested with all the powers, privileges, and advantages specified in the Act for incorporating divers religious societies, passed 26th March, 1784.

2. That, by an Act of Assembly, passed 21st December, 1822, (8 Stat. p. 325,) “ those persons who now are, or hereafter shall be, members of the Independent or Congregational Church at Wappetaw, in the Parish of Christ Church, be, and are hereby declared, a body politic and corporate by the style and title of “ The Congregation of Wappetaw, in the Parish of Christ Church,” for fourteen years from the passing thereof, and until the next meeting of the Legislature and no longer.”

3. That, by an Act of Assembly passed 21st of December, 1836, (8 Stat. p. 448,) “ those persons who are now, and may hereafter become members of ‘ The Congregational Church of Christ Church Parish,’ shall be, and are hereby declared a body politic and corporate, by the name or style above assigned,” for fourteen years.

4.That, by an Act of Assembly passed 20th December, *1991853, (12 Stat. 236,) all free white persons who now are, or hereafter may become, members of “ The Independent or Congregational Church of Wappetaw,” “with power to establish a Branch Church at Mount Pleasant, Christ Church Parish,” are hereby declared and constituted to be a body politic and corporate by the name and style above assigned.

Whether the above-mentioned four several corporations, under the four several distinctive corporate names of,

1. “ The Independent Church in Christ Church Parish,” with a perpetual charter.

2. “The Congregation of Wappetaw, in the Parish of Christ Church,” with a charter for fourteen years.

3. “ The Congregational Church of Christ Church Parish,” with a charter for fourteen years, (which expired in 1850.)

4. “ The Independent or Congregational Church of Wappe-taw,” chartered in 1858,

are identical, and whether (notwithstanding the charter of the third body expired in 1850, and no new charter granted to Christ Church Parish or Wappetaw, until 1853,) they constitute the same church or corporation, are legal propositions denied by the defendants, and submitted to the judgment of the Court. It is more than doubtful whether any one, or all of those bodies could be brought within the category of “ The Independent or Congregational Church, in the State of South Carolina,” but assuredly it is certain and conclusive that they cannot be included within the charity of the “ Independent or Congregational Church in the City of Charleston.”

And these defendants further answering, say, That by an Act of Assembly passed 9th October, 1778, (8 Stat. p. 119,) *200entitled “ an Act for Incorporating divers Religious Societies therein named,” the Circular Church was incorporated by the name and style of “ The Independent or Congregational Church in Charleston,” under a *perpetual*charter, under which it still exists and acts.

And these defendants say, that a Society was formed in the said Circular Church, between the years 1778 and 1789, for the support of the elderly and disabled ministers of the said Church and their families. By an Act of Assembly passed 7th March, 1789, (8 Stat. p. 152,) the said Society was incorporated by the name of *“*The Society for the relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina.”

The preamble to the Act states its intent and object, by setting forth that William Hollinshead and Isaac S. Keith, and Josiah Smith, (the two collegiate pastors and the deacon of the (Circular) Independent or Congregational Church in Charleston,) with sundry other members of the Society for the relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina, had taken into serious consideration the distressed situation in which many of the said Ministers and their families were frequently placed and left, and had associated themselves together for the charitable purpose of establishing a fund for their relief, but thinking so benevolent a design would be most effectually promoted by their being incorporated, they prayed that a law might be passed for incorporating them as a Society for that purpose. The Act therefore declares that the Society above-mentioned, and the persons who are, or shall hereafter be, members thereof, shall be, and are hereby declared to be a body corporate by the name herein before stated.

The venerable historian, Dr. David Ramsay, in his history of the said (Circular) Church, published in the year 1815, *201(page 50,) says: “ Besides the property belonging to the Church, the individuals composing it form so great a majority of the Society incorporated in 1789, for the relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church, in the State of South Carolina, that its capital stock, amounting to more than thirty thousand dollars, may, in a qualified sense, be considered as an appendage to the Church. An annual contribution," enforced by an appropriate sermon in its favor, is made by a standing order of the Church.” No other contributors to the said funds or to the said Society, out of the said Church or Society, are known to the defendants, and their journals furnish no record of any other contributions. No annual collection in this behalf is made in any other church. If there shall have been any such contributors, and they have since died or withdrawn from the Independent or Congregational Church in the City of Charleston, and have united themselves with the Wappetaw Church, as alleged in the bill, or any other congregation, such contributors, if members of the Society, have forfeited their membership, and the rights and privileges incident thereto upon ceasing to be members or supporters of the said Independent or Congregational Church in the City of Charleston, as is declared and established by the Sixth Rule and By-Laws of the said Society, in the following words, viz: *“*That no person shall be eligible as a member of this Society, who is not at the time of his application a member or supporter of the said Independent or Congregational Church ; and every member of the Society shall forfeit his membership, and the rights and privileges incident thereto upon his ceasing to be a member or supporter of the said Independent or Congregational Church in the City of Charleston.”

And these defendants further answering, say, That for reasons and circumstances hereinafter stated, an alteration of the charter of the said Society was deemed expedient and proper; *202whereupon, by Act of Assembly, passed 17th December, 1834, (8 Stat. p. 388,) by and with the consent of the said Corporation, the Act of 7th March, 1789, incorporating in perpetuity, “the Society for the relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina,” was *repealed,*and its then and future members were incorporated for the term of twenty-one years, by the name of the “ Society for the relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the City of Charleston.” The new corporation was confirmed in the possession of the property it then held, and authorized to appropriate the same, and also all other their funds, real and personal, “ to such charitable, benevolent, religious and ether purposes for the benefit of the said corporation, and of the said Independent or' Congregational Church in the City of Charleston, in such manner as may be determined by a majority of the members thereof.” •

These defendants further answering, deny that the Attorney General, on behalf of the State, or the complainants, the Wappetaw Church, have any right to institute this suit, or call them to the account demanded by the bill of complaint. If this defendant, the corporation, has by any act violated its charter, it can only be called to account, and cognizance taken of it by the State, or the donors or founders of the charity. Now, in this case, the State is estopped by its own solemn act, *for, by and with ther consent of the corporation,*(which assent would, undoubtedly, be sufficient for its dissolution.) the supreme Legislative power of the State repealed the old charter of the Society of 1789, authorized a different disposition of the funds, and prescribed a new mode of action, and new beneficiaries, under the new charter of 1834. The defendants, therefore, have acted, for upwards of twenty years, under express Legislative authority, and the State cannot call them to *203account for doing acts which it has deliberately and expressly authorized under its highest sanction — neither can the complainant, the Wappetaw Church, require an acccount from them, for it is not a *cestui qne trust*or beneficiary under the Act of 1834, (neither is it the founder of the charity nor donor under the Act of 1789,) nor has any annual contribution ever been made by it as a body to the knowledge of these defendants. In the various transmigrations and ambiguous legal names through which this Wappetaw Church may have passed, there is no record of their contribution, as a church, to the funds of the Society, and if any individuals ever worshipped at both churches, and contributed to the Society, their union with the Wappetaw Church dissolved their membership in the Society, by its rules and by-laws ; and the Wappetaw Church from the casual contribution of any of its worshippers to the funds of the Society, could scarcely predicate thereon a legal claim to participate in the bounty and funds of the Society. No temporal or ecclesiastical connexion has ever existed between the Church or Society in Charleston, and the church in Christ Church Parish, by whatsoever name it has been called. Each was independent of the other, formed its own articles of faith and government, and established its separate and distinctive organization. The real founders and donors of the Society are the members and supporters of the Independent or Congregational Church in Charleston, (commonly called the Circular Church, for brevity,) whose annual collections and donations for nearly two-thirds of a century, have created and accumulated its funds. There the Society originated ; its meetings were held under officers of that church only: there it was located, managed and regulated, and there, with scrupulous fidelity, its funds are solely and judiciously applied to the purposes of the trust. The alteration of the charter was made with the assent of the members and supporters of the Circular Church, who alone could be and were members of the Society, *204and who alone were interested in the disposition of the funds of the Society.

And these defendants, further answering, say, That by the original charter of the Society, in 1789, its funds were designed to provide for the “relief of Elderly and Disabled Ministers, and the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina.” If this clause be strictly and literally construed, none other can claim relief under it, but a clergyman of the Congregational Church, or his widow or orphans. The present Minister of -the Wappetaw Church, whose name is recorded in the caption and forefront' of this bill, is a Presbyterian minister, a member of the Charleston Presbytery, and in ecclesiastical connexion with the Presbyterian organization of this State, and of the General Assembly of the Presbyterian Church of the United States. Can such a pastor of another church have a legal claim on funds provided by Oongregation-alists only, in their domestic Society, for the relief of their own ministers ? Is there either delicacy or morality in the claim ? The quotation in the complainant’s bill (page 2,) states that “We, the subscribers, desirous of testifying our regard to those who have faithfully *labored amongst us*in the gospel can the terms “labored amongst us,” refer to any other but the ministers of the church in which the Society originated, existed and prospered under the fostering and exclusive care of its own members ?

These defendants, further answering, say, that it is fairly inferable from the contemporaneous history of the Circular Church, that the society formed within it, and chartered in 1789, was designed for the benefit of elderly and disabled ministers, and of the widows and orphans of the clergy of the *Independent or Congregational Church,*in the State of South Carolina, *which then worshipped in the church edifice in Meeting street,*in the city of Charleston, in the State of South Carolina, *and for none others.*

*205This inference is deducible,

1. From the name of the church mentioned in the charter of the society in 1789. there being no other church in the State chartered as “Independent or Congregational,” until the complainants *also assumed*that name in the year 1853. There was one chartered “Independent” — another, “Independent Calvinist” — another, “ Independent Presbyterian” — another, “ Presbyterian or Congregational” — but no church was then chartered in the State or known as the “ Independent or Congregational Church,” except the church worshipping in their house in Meeting street, in Charleston, now designated as the Circular Church.

2. If there had been any other churches in the State, chartered by the name ofIndependent or Congregational,” they could not have been legitimately included in the words used in the charter of the society, which words are, “ Independent or Congregational *Ohurch,” not churches.*The fundamental principle of an “ Independent or Congregational Church” (without whieh there can be no such church) is, “ that the church should ordinarily consist of only so “many members as can conveniently assemble together for public worship, the celebration of religious ordinances, and the transaction of church business,” and that each congregation is a local church, complete in itself, separate and distinct from all others. The idea of an *extended*Independent or Congregational Church, composed of a number of such churches, would be self-contradictory, and has never been so applied. The names of the Roman Catholic Chureh, the Episcopal Church, the Presbyterian Church, the Methodist Church, are applied to *extended*bodies, having common and imperative subscriptions, and being amenable to some central or eommon power; but we never hear of the Independent or Congregational *Ohurch,*as meaning a body composed of *a number*of such churches. When they are spoken of collectively, it is always in the plural number — as, the Independent churches *206of Great Britain, the Congregational Churches of Connecticut or Massachusetts. The charter term, then, “ The Independent or Congregational Church in the State of South Carolina,” must be restricted in its m.eaning and signification to some one church in the State, which church that was, is clearly indicated by the circumstances connected with the charter, and the conduct of the Society under it.

8. The only persons whose names are recited in the application for the charter of 1789, are Dr. William Hollinshead and Dr. Isaac S. Keith, the co-Pastors, and Josiah Smith, Deacon of the Independent or Congregational Church in Charleston. There is no evidence, nor is it believed, that any persons but members or supporters of the said church, joined in the petition, or belonged to the Society for which the charter was obtained. It is believed, and as to the'best knowledge of these defendants averred, that the funds were raised by the members or supporters of the said church. An annual collection in its behalf was taken up in that church, “ enforced by an appropriate sermon in its favor under a standing order of that church,” for many years. No such collection for it is ever known, to these defendants, to have been taken up in the Wap-petaw or in any other church. Hence, upon recurring to the History of the Independent or Congregational Church in Charleston, by Dr. David Ramsay, published in the year 1815, (page 50) hereinbefore referred to, he says, with propriety, that the capital stock of the said Society “ may, in a qualified sense, be considered as an appendage to the church.” This language (on same page) “the individuals composing it (the church)form so great a majority of the Society,” may he satisfactorily explained by the fact, that a number of planters in the vicinity of Charleston, resided in Charleston for health during the summer, and rented pews in the said church, and thus were eligible, under the proviso in the Sixth Rule of the Society, to membership — but which “membership” and the rights and priyi-*207leges incident' thereto, was forfeited upon his ceasing to he a member or supporter of the said Independent or Congregational Church in *the Qity of Charleston.*

4. There never has been any relief extended by the Society to any elderly or disabled minister, or to any widow or orphan of any of the clergy of any of the *other hinds of Independent Churches*in the State, though it is probable such cases of necessity for relief may have existed among them; and if they had supposed themselves entitled to relief from the funds of the Society, doubtless, application would have been made for it. The records of the Society show that in 1827 and in 1834, application was made for relief to be extended to the widow of the Rev. Mr. Bascom, a Congregational Minister, who had been employed as a missionary in Charleston, and in different churches in it, and who died at Camden, in this State, while laboring there. The application, however, was *twice unanimously rejected,*as not coming within the scope of the charter of the Society. The records further show, that Dr. Anthony Y. Toomer, (whose name is now enumerated among the Deacons of the Wappetaw Church, as stated in the caption of this bill,) then a member of the Society, was one of the committee appointed to consider the application of Mrs. Bascom, and reported against it. Dr. Toomer has since given up his pew, and left the Circular Church, and, by the Sixth Rule of the Society, has forfeited his membership therein.

5. When the Society was chartered in 1789, the Independent or Congregational Church in Charleston had two houses of worship, one in Meeting-street, and the other in Archdale-street, and two ministers, Drs. Hollinshead and Keith, who officiated in them alternately, every Sabbath morning and evening, though they met for the transaction of business as one body, constituted and were but one corporation and one body of communicants or members. Hence, the Society was formed *208and chartered for the Relief of Elderly and Disabled Ministers, not minister, of “ The Independent or Congregational Church, in the State of South Carolina.” In the year 1814, a division took place in the church, which resulted in the Arch-dale street house of worship passing into the hands of Unitarians, who adopted, in the charter they subsequently obtained from the Legislature, the name of “ The Second Independent or Congregational Church in Charleston.” To prevent them (as they had departed from the fundamental doctrines and articles of faith of those who procured the charter of the Society in the year 1789) from ever making any application for assistance from the funds of the Society, was the reason why the Society applied to the Legislature in the year 1834, and obtained their present, charter. The records of the Society show, that Dr. A. V. Toomer, then a member of the Society, was a member of the committee appointed by the Society to petition the Legislature for a new charter and for an amendment of the former charter, “ so as to make the title of the Society apply only to the Independent [Circular] or Congregational Church in Charleston.” On 17th October, 1834, the Committee reported to the Society [Dr. Toomer present] that the Society should apply to the Legislature for a new charter, and an amendment of the former charter, so as to confine its operation and benefits to the Independent or Congregational Church in the City of Charleston, which report was *unanimously adopted*by the Society.

6. If the complainant, the Wappetaw Church, by procuring a new charter in the year 1853, and adopting the name of the “ Independent or Congregational Church,” can claim, legally, a share in the funds of the Society, [which they did not create,] then every other church in the State now chartered as “ Independent,” “ Independent Calvinistic,” “ Independent Presbyterian,” “Presbyterian or Congregation,” “United Independent or Congregational Churches,” or even by any other *209name may have a similar claim, simply by obtaining from the Legislature a new charter, and being re baptized by a more politic and propitious name. This mode of proceeding might, peradventure, create capital for them in an unexpensive and summary manner; but, irrespective of its morality, would, doubtless, frustrate the intentions of the original donors and founders of the Society.

And these defendants, further answering, say, That the vested capital and funds of the Society, in the year 1852, amounted to fifty-eight thousand five hundred dollars.

Since which time, upon the special and formal application of the Corporation of the Independent or Congregational (Circular) Church in Charleston, the Society has granted to the said church the sum of about twenty-four thousand five hundred dollars for necessary repairs and improvements to the said church, which the latter had no means to make without such aid and assistance. The defendants deemed themselves fully justified in making such judicious appropriation, under the comprehensive terms of their charter of 1834, which authorized and empowered them to appropriate their funds to such charitable, benevolent, religious and other purposes for the benefit of said corporation, “ and of the said Independent or Congregational Church, in the City of Charleston,” in such manner as might be determined by a majority of the members thereof. The present vested capital and funds of the Society amount to about thirty-four thousand dollars.

The defendants, however, deny the right of the complainants to any claim for, or account of, the funds of the Society, or the appropriation thereof. If the persons named in the bill of complaint as officers of the Wappetaw Church, claim to be such, and rely thereon as a material allegation in the case, these defendants require that the fact be established by competent evidence, inasmuch as some of such persons have, to some individuals of these defendants, disclaimed the holding of *210the offices imputed to them. The individuals named as co-defendants, admit that they hold the respective offices in the Society, alleged in the bill of complaint. And without that, that there is any other matter, cause or thing, in the complainant’s said bill of complaint contained, material or necessary for these defendants to make answer unto, and not herein, and hereby, well sufficiently answered, avoided, traversed or denied, true to the knowledge or belief of these defendants, pray to be hence dismissed, with their reasonable costs and charges in this behalf wrongfully sustained.

Dunkin, Oh. On 7th March, 1789, a society was incorporated under the name and style of “The Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church- in the State of South Carolina.” The records of this society anterior to 1826, appear to have been lost, or mislaid; and the most authentic account of its origin is found in Dr. David Ramsay’s “ History of the Independent or Congregational Church in Charleston, South Carolina,” published in 1815. It appears that about the year 1750, the Rev. Josiah Smith, who had been for many years, the faithful and highly esteemed pastor of this congregation, was struck with paralysis. He survived the shock more than thirty years. In the language of the historian, “this paralytic affection of the Rev. Mr. Smith rendered him, for more than thirty years, incapable of performing the duties of his office, and the inadequate support he had received for the preceding twenty-three years of active service, put it out of his power to provide for the extraordinary emergency. He was, therefore, in a great degree dependent on his eldest son, Josiah Smith, for the means of a living. The providential affliction of the Rev. Mr. Smith suggested to the church, in its latter days of prosperity, the expediency of providing a permanent fund for the support of elderly and disabled ministers and their families. *211This has been so uncommonly prosperous, that the few objects within the strict letter of the Act incorporating it do not exhaust one half of the interest of its capital. In this manner a hind Providence has overruled a partial temporary evil for a general and. permanent good.” The Rev. Mr. Smith died at Philadelphia, a prisoner of war, in October, 1781. In consequence of the loss of records, it is not certainly known who were members of the Society at the time of the incorporation in 1789; but the preamble of the Act recites that the petitioners for a charter were William Hollinshead, Isaac S. Keith and Josiah Smith, with sundry other members of the Society for Relief, &c. William Hollinshead and Isaac S. Keith were at that time pastors, and Josiah Smith a deacon, of the Independent or Congregational Church in Charleston. By the rules of the Society, the annual meetings were held at the Independent Church in Charleston, in October, when a sermon suitable to the occasion was preached, and a collection taken up for the benefit of the institution. Nor was any person eligible as a member of the society, who was not a member, or supporter, of the Independent or Congregational Church in Charleston. It was proved by *Kinsey Burden,*a witness, born in August, 1775, that he had been a member of the Circular Church since 1793, and that he became a member of the Clergy Society between 1793 and 1795 — that the annual meetings were always held in that Church, and for a great many years, an annual sermon was preached, and a collection made, for increasing the funds of the society — the members of the society contributed five dollars annually — for some years past, both sermon, collection and annual contribution have been discontinued, — he believes that the society originated with this Church —no members elsewhere were elected, except some from Wap-petaw, who held pews in the Circular Church — he knows only of two of this class, who were Dr. Toomer and Dr. Legare'— no collection was made in any other than the Circular Church *212—officers of the society were always selected from the Circular Church, and the society always met in that church.

No allowance was ever made by the society to any clergyman, or their families, who had not been pastors of the Circular Church, except a gift of five hundred dollars to the widow of Dr. Clarkson, a deceased clergyman, of John’s Island, who had no claim on the society, but the gift was made at the request of Dr. Keith.

After enumerating the benefactors of the Circular Church, and referring to its financial condition, Dr. Ramsay (at page 50) says, “Besides the proper estate belonging to the church, the individuals composing it form so great a majority of the ‘ Society incorporated in 1789, for the relief of elderly and disabled ministers, and the widows and orphans of the clergy of the Independent and Congregational Church in the State of South Carolina,’ that its capital stock, amounting to more than thirty thousand dollars, may, in a qualified sense, be considered as an appendage to the church. An annual collection, enforced by an appropriate sermon in its favor, is made by a standing order of the church.”

In addition to these annual collections and the annual contributions of the members, it appears from the same book, (p. 18,) that the Rev. Andrew Bennet, who had been the pastor of this congregation, and who died at Bermuda in 1804, bequeathed to this society the sum of two thousand dollars.

In December, 1834, an Act was passed, entitled, “ An Act to amend the charter of the Society for the Relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina.” ' By the first clause of the Act it is declared, that the Act of Incorporation ratified 7th March, 1789, be, and the same was, “thereby repealed, by and with the consent of the said corporation.”

The second clause provides that the persons and members of the society hitherto known by the name of “ The Society for *213the Relief of Elderly and Disabled Ministei’s, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church *in the State of South Carolina”*and their successors, &c., shall be hereafter, and they are thereby declared to be a body corporate, by the name of “ The Society for the Relief of Elderly and Disabled Ministers, and of the Widow’s and Orphans, of the Clergy of the Independent or Congregational Church *in the City of Charleston.”*

By the third clause, the society thus incorporated was authorized to take and hold any charitable donation, &c., “ and to appropriate the same, as also all other their funds, real- and personal, to such charitable, benevolent, religious and other purposes, for the benefit of the said corporation, and of the said Independent or Congregational Church in the City of Charleston, in such manner as may be determined by a majority of the members thereof.”

The fourth clause declares that “ the said corporation shall be able, and capable in law, to have, receive, enjoy possess and retain all such estate, &c., which it is now possessed of or entitled unto, or which has already been given, devised or bequeathed to it,” &c.

By the fifth clause the charter is to continue for twenty-one years.

Upon reference to the minutes of the proceedings of what is concisely termed “the Clergy Society,” it appears that the application to the Legislature, in 1834, was made on a resolution of the society, unanimously adopted, 17th October, 1834, and the new charter was accepted and adopted 12th October, 1835.

In 1854 these proceedings were instituted in the name of the Attorney General, at the relation of “ the Independent or Congregational Church of Wappetaw, Christ Church Parish, of which the Rev. Edwin Cater is minister, and Dr. Anthony Y. Toomer chairman,” &c. The right of the relators to act is first set forth, to which reference will be hereafter made. The *214Act of 1789 and of 1834, are then sufficiently set forth, together with the names of the officers and committee of finance, who are made defendants. It is alleged that, in 1853 the funds of the society amounted to fifty-eight thousand dollars, and that “about that time the said society, or a majority of them, upon an application of the Circular Church of the City of Charleston, appropriated about eighteen thousand dollars of said funds, for the purpose of re-building or repairing that Church.” It is charged that this is a misapplication by the society of the funds held by them, and not warranted by the charter ; and it is specifically charged “ that the Act of 1834 only changed the corporate name of the society, and not its object and purposes ; and does not limit the benefits and advantages to be derived from its funds to the church in the City of Charleston alone ; that the charitable intention of the founders of said fund, and of the said society, would be entirely frustrated by such a construction of that Act, and that there is no power given by the said Act to the officers and members of the said society to apply the funds of the said society to objects and purposes disconnected with, and not for the benefit of the specific charity.” The prayer of the bill is, that “the officers and members of the said society who misapplied that portion of the funds of the society may he required to restore the same, with interest, to the treasury of the said society”— that the charity may he established and declared, as also the rights of the relators and their clergy, &c., that an account may be taken of the funds, and that it may be referred to the Master to settle a plan for the future administration of the charity, &c.

The answer of the defendants is full and elaborate, setting forth succinctly the origin not only of the society, but of the Independent or Congregational Church in Charleston, frequently called “ The Circular Church.” The answer cannot be, with propriety, abridged. The inference, which the defendants deduce from the history of the church and the *215society, is, that the society was originally formed and chartered in 1789, “for the beneft of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church, in the State of South Carolina, which then worshipped in their Church edifice in Meeting-street, in the City of Charleston, in the State of South Carolina, and for none others.” It is insisted that this was the only church then known as the Independent or Congregational Church ; and that the relators were never incorporated under that title until 1853. The defendants, finally answering, admit the appropriation of funds, as 'charged, for •the necessary improvements and repairs of the Circular Church; and submit that they were fully warranted, under the plain construction of the terms of the charter of 1834, which authorized the appropriation of the funds of the society “ for the benefit of the said corporation, and of the said Independent or Congregational Church in the City of Charleston in such manner as may be determined by a majority of the members thereof.”

In order to ascertain the meaning of the terms used in the charter of 1789, it may be necessary to look at the situation of the various societies of Christians in the state at that period. By the 38th section of the constitution of 1778, it was declared that all denominations of Christian Protestants in this state shall enjoy equal rights and civil privileges, and it was provided, among other things, “ that whenever fifteen or more male persons', not under twenty-one years of age, professing the Christian Protestant religion, shall agree to unite themselves in a society for the purpose of religious worship, they shall (on complying with the terms hereinafter mentioned) be constituted a church, and be esteemed and regarded in law as of the established religion of the State, and on a petition to the Legislature, shall be entitled to be incorporated and to enjoy equal privileges — that every society of Christians so formed shall give themselves a name or denomination by which *216they shall be called and known in law, and all that associate with them for the purposes of worship, shall be esteemed as belonging to the society so called.” The Constitution then provided five • articles of belief, the subscription of which was necessary to entitle a religious society to the privileges of incorporation.

The Constitution was adopted on 19th March, 1778. On 9th October of that year an Act was passed, reciting this provision of the Constitution, and under it several religious societies were incorporated under their several appropriate names or denominations. Among others, was incorporated “ The Independent or Congregational Church in Charleston.’’ In accepting this charter, and readily subscribing to the articles of belief as therein set forth, the congregation added an explanation of their particular creed, with this preamble : “ Although we acknowledge that the foregoing articles (those provided by the Constitution) do not contain anything contrary to truth, yet, as they do not discriminate truth from error, and are no way declaratory of those distinguishing truths which this church has always heretofore acknowledged, and at this time do recognise to be the scripture doctrines of grace ; and as the foregoing articles are now received by this church, merely in compliance with the requisitions of the legislative body of this country, and in order to entitle it to the privileges of establishment and incorporation, lest any persons should take occasion from them to attempt to introduce any doctrines into this church, not heretofore received and acknowledged by it as Scripture doctrines, we lay down the following three articles as the fundamental doctrines of this church.” Then follow the three articles, embracing the doctrine of the Trinity — the Fall of Man, and the Atonement.

In 1787 was published “The Constitution or form of Government of the Independent or Congregational Church, worshipping in Meeting and Archdale-streets, in Charleston, South Carolina.” The preamble declares as follows : “ In *217matters of church government, we hold it to he an unalienable right, as a Christian Church, to govern ourselves in such manner, as to us appears most expedient, and best suited to our circumstances, without control, in ecclesiastical matters, from any man, or set of men; nevertheless, in difficult cases, we think it prudent to ask advice of such Protestant Churches and ministers, as we may judge proper.” The mode of government by the congregation within itself is then prescribed by the several articles.

Such was the creed and such the form of government of this church, in the body of which wras formed the Society for the Relief of Disabled Ministers, &c., which was incorporated by Act of Assembly, 7th March, 1789.

The creed and the form of government have all the marked characteristics which distinguish this denomination of Christians. Thus Schaff (a recent writer of some celebrity) says, in speaking of this denomination, “they form the extreme left, wing of orthodox Protestantism, maintaining the keenest and most unyielding hostility to Romanism.” In matters of faith, he again says, “ they are strictly orthodox, still holding to the Westminster confession and catechisms, drawn up by an Assembly of Calvinistic Divines in London, in 1642.” “ But the leading peculiarity of Congregationalism, which essentially distinguishes it, even from the Genevan Calvinism and the Scottish Presbyterianism, lies in its theory of church government, which exalts and develops the independence of single congregations. It proceeds on the ground that each congregation (hence the name, Congregationalism,) is a complete church of Christ, and, as such, independent of all earthly supervision (hence the name, Independency); directly united to Christ, and only responsible to Him; therefore entitled and bound to choose and maintain its own officers, and conduct all its own affairs, internal and external, as prescribed by the Divine Word *itself.”*— Schaff’s *America,*1¿¡8, 181.

The preamble to the Act of 1789 sets forth the names of the *218most prominent petitioners — the general purposes of the society, and the motives of their application for a charter. The petitioners recited that “ they, with many others, had taken into their serious consideration the distressed situation in which elderly and disabled ministers, and the widows and orphans of the Clergy of the Independent or Congregational Church were frequently placed and left, and therefore associated themselves together for the charitable purpose of establishing a fund towards their relief,” and that they thought so benevolent a design would be most effectually promoted by an Act of Incorporation, under the name and style therein suggested. In accordance with this petition, the society was incorporated.

In order to maintain the conclusion that the object of the petitioners, as well as the Legislature, was to secure a fund for the support of the Clergy of the Congregation of which the petitioners were members, it was contended, and as the Court thought with truth, that this was the only congregation in the State of South Carolina which, at that time, answered the description in the charter. Whatever may have been the intention, it may be safely assumed that it was *not*the intention either of those petitioners or of the Legislature, to provide for the Clergy of any denomination other than that which professed their principles, adopted their form of church government, and which bore their name. By the Constitution of 1778, every society of Christians, asking for an Act of Incorporation, were required to “ give themselves a name, or denomination, ¡by which they shall be called and known in law.” Between that time and the period when the Clergy Society was incorporated, about forty religious societies had been incorporated among those formerly called Dissenters, or who did not belong to the Episcopal Church. Each religious society had its appropriate name. Some were Presbyterians, some Baptists, some German Lutheran — “ Calvinist Church of French Protestants” — “ The Independent Calvinist Church in *219the City of Charleston” — “ The Independent Church in Christ Church Parish.” But the only religious society which had been incorporated, or was then in existence, bearing the name of “ Independent or Congregational Church,” was that to which the petitioners belonged, and which had been incorporated in 1778, with a perpetual charter, by the name and style of “ The Independent or Congregational Church in Charleston.” It is not necessary — it might be invidious — to institute an inquiry as to the particular creed or form of government of any of these numerous religious associations. If they have declined, or refrained from, assuming the title of Independent or Congregational Church, they had the right to do so for any reason, or for no reason. But it is not to be presumed that, in 1789, either the founders of this charity, or the Legislature, intended to include as objects of the bounty, ministers of any existing religious society which was well known by a different name.

But a charity may be created, not only for the benefit of those who are in existence, (communities or individuals,) but of those who may come into existence, or who may qualify themselves to become objects of the bounty. It)may be more likely to suppose that known, and ascertained, and proximate objects were intended, than those more distant, or which may never exist. The defendants are entitled to the benefit of this presumption. The Court is well satisfied from the evidence that the society was formed by members or supporters of what is called familiarly “ the Circular Church,” that none but worshippers at that Church could be members of the Clergy Society — that the funds of the society were chiefly created by the contributions of these members, and the annual collections made in that Church — and that, at the time of the charter, no other religious denomination of Christians existed in South Carolina known in law as an Independent or Congregational Church— and, as an inference, that the pastors of the congregation with which these founders of the charity habitually worshipped *220■would be the natural objects of their solicitude as they were of their veneration and affection. This presumption in favor of the construction adopted by the defendants may be also fortified by the consideration that, from the creation of the charter until the institution of these proceedings, a period of about sixty-five years, no one had been recognized as an object of the bounty of the society, except such as had been pastors or ministers of “ the Independent or Congregational Church in Charleston,” or the families of such ministers. Still, all such presumptions must yield to the declared will of the founders, and of the Legislature, as set forth in the Statute of,Incorporation, if the.language of the Statute be, in itself, susceptible of a plain and obvious interpretation at variance with such presumptions derived from external circumstances..

In the preamble the petitioners ■ are said to represent a Society for the Relief, &c., of Ministers, and of the Widows and Orphans of the Clergy of the *Independent or Congregational Church in the State of South Carolina. '*They set forth that the petitioners, *“*with many others, had taken into their serious consideration the distressed situation in which elderly and disabled ministers, and the widows and orphans of the Clergy of the Independent or Congregational Church were frequently placed and left,” &c. There were in other States ‘ numerous religious societies of this denomination. The language plainly implies that the petitioners were moved by the contemplation of what frequently occurred to the Clergy (or other families) of this denomination of Christians.

It was argued (and with some force) that the term “ Church” was not properly applicable to a body which is not united by any general organization. Dr. Baird, the author of Religion in America, while classing this among the Protestant Churches of America, and stating that it was the second which appeared in this country, intimates a doubt whether the term “ Church” was strictly applicable to independent bodies of Christians of this denomination. But the inquiry is of a practical character, not so much as the accuracy of the term used in an ecclesiasti*221cal sense, but the object intended to be designated by those who used the expression. When the petitioners speak of the distressed situation in which the “ Clergy of the Independent or Congregational Church are frequently left,” it is difficult to doubt, that they referred to the Clergy of the societies of that denomination of Christians as distinguished from the Clergy of the Episcopal Church, the Presbyterian Church, or the pastors of any other Church. Influenced by these motives, and desirous of providing for the necessities of those who had served as ministers to congregations of this denomination, but at the same time limiting the sphere of their operations, they obtained a charter for “the Society for the relief of Elderly and Disabled Ministers, and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina.” If it had been contemplated still further to restrict the benevolent aetion of the society, and to confine the charity to the pastors of that congregation to which the members of the society belonged, it would have been so declared. Ten years previously this congregation had received an Act of Incorporation under the name and style of “ The Independent or Congregational.Church in Charleston.” The comprehensive language of the charter of the society implies not merely that it was not exclusively for the relief of Ministers of “the Independent or Congregational Church in Charleston,” but that there were, or might be, other congregations in the State of South Carolina, whose Clergy were intended to be included in the scheme of charity thereby established. It may be here remarked, that the preamble of the Act of 1789 seems to have been borrowed from that of 1786, incorporating “ The Society for the Relief of the Widows and Orphans of the Clergy of the Protestant Episcopal Church in the State of South Carolina ;” and it is not improper to refer to that preamble, as well to indicate the sense in which the term “ Church” was generally understood, as also the geographical limits of that Church within which the society was formed, and for whose benefit it was instituted.

*222The charter of 1789 was not limited'in its duration. Coextensive with its existence might be the period within which objects for their bounty, according to the provisions of their charter, might be presented. In 1789 but one religious society existed in the State professing the faith, having the form of government, and bearing the name of “ The Independent or Congregational Church.” If, during the next succeeding ten years, (for instance,) as many religious societies had been incorporated having the same faith and form of government with the congregation in which the society originated, and bearing the corporate name of “ The Independent or Congregational Church of Columbia, in the State of South Carolina,” and another “of Camden,” &e., in the judgment of the Court the elderly and disabled ministers of these several religious societies or congregations would fall within the purview of the charter of 1789, and might properly be the recipients of the bounty of the society thereby incorporated. The relators, “The Independent or Congregational Church of Wappetaw,” never fell within the category until December, 1853. It remains to inquire whether they can have any interest in the fund, and are entitled to move in these proceedings. The solution of this inquiry requires an examination and construction of the Act of 1884.

It seems almost superfluous to premise that, in the exposition of statutes, where the language may admit of more than one interpretation, the Court will adopt such construction as will render the statute consistent with established rights, rather than, by a different construction, infer an intention of the Legislature to disregard or subvert those rights. The Act of 1834 purports by its title to be “ an amendment” of the charter of 1789. The petition of the Society was for “an amendment” of their charter. The relators have put the argument strongly that the Act of 1834 only changed the corporate name of the Society, “ but did not *limit*the benefits and advantages to be derived from its funds to the Church in the City of Char*223leston *alone;*that the charitable intention of the founders of the said fund, and of the said Society, would he frustrated by such construction of that Act.” The clauses of the Act must he taken together ; and the Court concurs in the construction that the language does not exclude from the benefit of the fund any objects who might become entitled to participate in it according to the provisions of the Act of 1789. The Court is, therefore, of opinion that the relators professing the principles and having the same form of government with the congregation in which the Society was formed, and now bearing the name of an “Independent or Congregational Church,” have such interest as entitles them to become a party in these proceedings.

The last question to be considered is of far more difficult solution. It is not certainly known what was the amount of funds of the Society is 1789 when the Act of Incorporation was passed. From the recent origin of the association, they were probably inconsiderable, and the limited nature of their views may be inferred from the eighth rule of the Society, which provides that the *maximum*allowance óf a disabled minister shall be four hundred dollars per annum, but that the annual allowance, thus made, *“*shall at no time exceed the annual income of the Society.” In 1814 the funds of the Society amounted, it is said, to thirty thousand dollars, and the annual income exceeded two thousand dollars. In 1828 the funds of the Society had so largely increased, and so few were the demands on its bounty, that its funds were doubled since 1814, and, by a vote of the Society, the annual sermon and collection in aid of the Society were suspended, and have never since been resumed; and the annual contribution by members was either suspended or fell into disuse. Six or seven years after-wards, to wit: in December, 1834, the amendment of the charter was made “by and with the consent of the corporation,” as is declared in the body of the Act.

On the part of the relators it is insisted that, by the Act of *2241834, no power is given to the officers and members of the said Society to apply any portion of their funds towards assisting the Independent or Congregational Church in Charleston in repairing or re-building their Church. On the other hand, the defendants, admitting that, on the formal application of the said Church, the Society had made a grant of money to them for the improvement of the Church edifice, which the Church had no means to make without such aid, submit that their proceedings are fully justified under the comprehensive terms of the Act of 1834. In expounding an Act of the Legislature, the enquiry is, What was the meaning of the Legislature, as derived from the language they have used ? If this can be ascertained, it is entirely beside the question to enter into any scrutiny as to the purposes of those who proposed the law, or of any member of the Legislature who may have advocated its passage. It is sometimes very possible that if the Legislature were advised of all the views of those who proposed a law, or even of the construction which would hereafter be given to their language, they would refrain from a ratification of the Act. The Court has already declared that, after a careful analysis of the Act of 1834, the construction of the relators is so far sustained, that it was not the intention of the Legislature thereby to cut off from the benefits of the charity any who would have come within the purview of the charter of 1789. But it is at least equally clear that it was the object of the Legislature, by the Act of 1834, to enlarge the sphere of this charity, and to include, as an object of its bounty, what had not been theretofore included. By the third clause of the Act it is provided that the corporation thereby erected shall be authorized to appropriate their funds “ to such charitable, benevolent, religious and other purposes, for the benefit of the said corporation, *and of the said Independent or Congregational Church in the City of*Charleston, in such manner as may be determined by a majority of the members thereof.” It is not doubted that the grant in question wras made on the vote of a majority of the *225members of the Society, and therefore in strict conformity with the plain language and manifest purpose of the Act. The only issue presented by the terms of the pleadings is upon the construction of the Act. At the hearing of the cause it was argued that, if this construction should prevail, the Act of 1834 was a violation of the Constitution. The counsel of the defendants insisted that the constitutionality of the Act of 1834, was a different issue from that presented, and was a surprise upon them — that a question of so grave a character should be distinctly presented by the pleadings, and opportunity afforded them to meet it in the same way. In reference to this branch of the case, the history of the Society,- and of the Church were adverted to, and facts stated as susceptible of proof. In December, 1834, the Society had been in existence some forty-five years. During that time there had existed no religious congregation in the State of South Carolina, whose ministers, &c., were entitled' to the aid of the Society, except that of “ The Independent or Congregational Church in Charleston.” The funds of the Society were swollen from five or six thousand dollars to some sixty thousand dollars — the annual income from four or five hundred dollars to, perhaps, as many thousand. The funds of the Society were continuing to accumulate, and judging from an experience of nearly half a century, the objects within the strict letter of the charity would never require one-half, or one-fourth, of the annual income. It was alleged that this judgment was vindicated by the subsequent experience of nearly twenty years after the passage of the Act, during which no other religious community in the State had come within the purview of the charity. Many other facts and circumstances' were suggested in the argument; but, in the opinion of the Court, enough.has been already stated to require an amendment of the pleadings, if the judgment of the Court is demanded in reference to this inquiry.

In *Fletcher*vs. *Peek,*6 Cranch, 87, this is the language of the Court: “ The question whether a law be void for its repug-*226nancy to the Constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful ease. The Court, when impelled by duty to render such a judgment, would be unworthy of its station, could it he unmindful of the solemn obligation which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its Acts are to be considered as void. The opposition between the Constitution and the law should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.” And in *Dartmouth College*vs. *Woodward,*4 Wheat. 518, Chief Justice Marshall says, “ On more than one occasion, this Court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared, that, in no doubtful case, would it pronounce a Legislative Act to be contrary to the Constitution.”

The general positions assumed by the relators were well sustained both by argument and authority. . The charter of 1789, created a private eleemosynary corporation. It is the duty of those who undertake to administer a charity, whether corporate bodies or individuals, to act up to the end or design, whatever it be for which it was established — and it is within the province of this Court to correct the malfeasance or neglect of those intrusted with this duty. Equally sound is the doctrine recognized and enforced in the *Dartmouth College*case, that an Act of the State Legislature, altering the charter of a corporation of a character similar to that created by the Act of 1789, “ without the consent of the corporation, in a material respect, is an Act impairing the obligation of the charter, and is unconstitutional and void.” *That*was a proceeding by the trustees of Dartmouth College, under a charter granted in 1769, impugning an Act of the Legislature of New Hampshire passed in 1816. The Court, in sustaining the right of the trustees to institute proceedings, remarked that, so soon as the charter *227was granted, “ the founders of the charity, at least those whose contributions were in *money,*parted with the property bestowed upon it, and their representatives have no interest in that property. The donors of *land*are equally without interest, so long as the corporation shall exist. Could they be found, they are unaffected by any alterations in its constitution, and probably regardless of its form, or even of its existence.” “ Their descendants are, in this respect, not their representatives— they are represented by the corporation — the corporation is the assignee of their rights, and stands in their place.” Although the trustees had no beneficial interest to be protected, they were held entitled to maintain the suit. It may here be added that in the event of the civil death of a corporation; either by *surrender*of its charter, or by a *forfeiture*of the same for any cause judicially ascertained and declared, or in any other way, the personal estate of the corporation, in England, vests in the Icing; and in our own country, in the people or State, as succeeding to the right and prerogative of the crown. Co. Litt. 136; 2 Kent. Com. 246, 247.

The principle settled in the *Dartmouth College*case wras, that the charter of a private corporation, whether civil or eleemosynary is an executed contract between the Government and the corporators; and that, under the tenth section of the first article of the Constitution of the United States, the Legislature cannot repeal, impair, or alter the charter, *against the*consent, or *without*the *default*of the *corporation*judicially ascertained and declared. And, moreover, that it is competent for the trustees of a corporation to impeach the validity of such Act, and have the same declared null and void. It is not proposed, in any manner, to intrench upon the principles thus recognized and established. But, without impugning this and other authorities to the same effect, it remains to be determined (if it shall ever be so determined) that the Legislature may not, with the consent of such corporation, so amend and enlarge the charter as to embrace objects not directly contemplated or included in the *228original provisions. And if the power of the Legislature in such case he denied, it may still be worthy of inquiry whether it be competent for this Court, in proceedings instituted in the name of the State, to decree restitution against those who may have had no agency in procuring the amendment of the charter, and who have done no more than was enjoined or authorised by the statute. These questions will be properly made when that of the repugnancy of the Act of 1834 to the provisions of the Constitution is directly made by the pleadings. The solution of the principal inquiry may be of great practical importance, involving, not only the validity of much past legislation, but the general power of the Legislature to protect corporate bodies of its own creation. Many religious societies are formed for the purpose of erecting and maintaining houses of worship in particular localities — the funds of the Society are made up by voluntary contributions among the members and by other benevolent individuals. The Society becomes incorporated for these purposes. In process of time Black Creek (or whatever be the locality) becomes unhealthy, and the congregation remove to a different and healthier part of the parish. The funds, by frugal management, have greatly increased; but they were subscribed for building and keeping in repair a Church at Black Creek. May not the Legislature, with the consent of the corporation, amend the charter and authorise the building and keeping up of the Church fifteen miles off, without violating the Constitution ? But suppose the corporation and the Legislature refrain from acting, and the neighborhood is entirely deserted, but in the meantime the fund for erecting and maintaining the Church at Black Creek has greatly increased, can it be doubted that under those circumstances, and to avoid a forfeiture for *non user,*the corporation might surrender its charter, and accept a new charter by which the funds would be preserved for the same congregation ? But the *Dartmouth College*case affords a more apt illustration. It was originally a charity school, established by Dr. Wheelock, in 1754- *for the instruction**229of *Indians*in the *Christian religion.*He afterwards solicited and obtained contributions in England, through the Earl of "Dartmouth, for carrying on and extending his undertaking. Dartmouth College was built at Hanover, on the banks of the Connecticut, “ that situation being supposed favorable for carrying on the original design among the Indians, and also for promoting learning among the English.” In 1769 the charter was granted to the trustees of Dartmouth College. It was this charter which the Legislature of New Hampshire, in 1816, undertook' to alter *against the consent of the trustees.*But if, at that session of the Legislature the trustees had presented a petition, setting forth 'that the funds of the College had greatly increased — that very few Indian youth now remained to be converted, or instructed in the Christian religion, and that, from the circumstances of the Revolution, and other causes, not many presented themselves who might strictly be called English youth, and praying such amendment of their charter as would convert the College into a University, authorise the admission and instruction of youth of any nation, and the appropriation of a portion of their funds in the erection of buildings and endowment of professorships, it would be difficult to find any constitutional impediment in granting the prayer of the petition and enacting a law in conformity to their wishes. If the purposes of the founders have been fulfilled, or are in the course of fulfilment, and a large surplus fund remains without any legitimate object of appropriation within the strict letter of the charity, what violation of contract is committed by the Legislature in enlarging the powers of its trustees, consistently with the preservation of their original rights and duties ? Although good faith should always be observed and maintained in the execution of trusts, it is against the policy of the country that funds of this character should be unnecessarily accumulated in the hands of eleemosynary corporations. Speaking in reference to the policy of the Mort-main Acts, Lord Hardwicke remarked that, “ in former times *230the clergy got nearly half the real property of the kingdom into their hands, and he wondered they had not got the whole.” One of the most disturbing controversies which has for years agitated the State of New York, is in relation to the property of Trinity Church. Originally a donation of unimproved land was made for the benefit and support of this Church, which exists under the ordinary charter of incorporation. The land given now constitutes the most populous and valuable portion of the City of New York — some have estimated the value at millions. Trinity Church not only maintains its rector, with several assistants, but, by an enlarged view of the charity, many of the churches in different parts of the State have been established, or their establishment materially aided. Still the Church funds accumulate to a degree which renders it an object of extreme jealousy, if not of well grounded alarm. The purposes of the charity are abundantly accomplished by a comparatively inconsiderable portion of the income of their property; but without an amendment of their charter, the trustees (if they were inclined) have no authority to appropriate their surplus funds. If the property of the Church had been made up of contributions in money which had thus accumulated, and the Legislature of New York, with the consent and at the instance of the corporation of Trinity Church, should so amend their charter as to authorise the appropriation of a portion of their surplus moneys to the support of the poor of that Church, or to the education of the blind of that congregation, -what principle of the Constitution is violated by the State, or what fiduciary obligation would be disregarded by the trustees ?

It is not deemed necessary at this time further to pursue these inquiries. While it is proper that this Court should hold individuals to the observance of perfect good faith in the discharge of their trusts, and should preserve the Constitution from infringement, even under legislative sanction, such conduct should not be presumed, or lightly inferred. Although, by the first clause of the Act of 1834, the Act of 1789 was repealed, *231yet, in the next clause, the officers, members and successors of the Society of 1789 are re-incorporated, so that the effect was to change the name, limit the charter to twenty-one years, and enlarge the powers. See *Smith*vs. *Smith,*3 Eq. R. No doubt was suggested — none is entertained by the Court — of the good faith of those who procured the amendment of the charter in 1834, nor of those who made the application of the funds in 1852. It would scarcely be competent for the relators — the Wappetaw Church — or those who represent them, to call in question the good faith of the proceedings in 1834. The present venerable chairman of the congregation, who now appears as relator, was in 1834 a member of the Society for the Relief of Elderly and Disabled Ministers — he was at the same time (as he had been for many years) Treasurer of the Wappetaw Church, situate in the neighboring parish of Christ Church, about fifteen miles from Charleston. It appears from the journals of the Church that they were about that time holding frequent meetings. In October, 1834, when the Clergy Society unanimously resolved to petition the Legislature for the amendments of their charter, this relator appears by the records of the Society to have been present at the meeting. Another prominent member of the Wappetaw Church was, at that time, Yice President of the Clergy Society, and was present at the meeting when the resolution was thus unanimously adopted. He presided at the meeting when the charter of 1834 was formally accepted; and, for several subsequent years, was the honored President of the Society. According to the evidence of the Reverend Mr. Cater, the congregation of Wappetaw Church has not more than fourteen voting members. The meetings, at which these proceedings were directed, did not consist of more than five members. If the Wappetaw Church, in 1834, deemed themselves interested in the funds of the Clergy Society, it is difficult to suppose that, with Dr. Toomer and the late Dr. Legare among their members, they were ignorant of the initiatory proceedings for the amendment of the charter. The Court is bound to presume that, for *232the succeeding nineteen or twenty years, they were fully advised of the statute by which the charter of the Society had been amended. All these circumstances, while they serve to vindicate the good faith of the defendants, and of those who preceded them, may very well warrant the inference that the .proceedings of 1834 were not unknown to the Wappetaw Church, and were sanctioned either by their approbation or subsequent acquiescence. But, in the view taken by the Court, they had no interest in the funds of the Society — had no authority to interfere — until the amendment of their own charter in December, 1853. Under the name and character which they now maintain, their elderly and disabled ministers, &c., fall within the sphere of the charity instituted by the Act of 1789, and enlarged by that of 1834. And it is so declared by the Court.

It is further ordered that, if the relators seek to hold the defendants responsible for a misappropriation of the funds on the ground of the alleged unconstitutionality of the Act of 1834, they have liberty to amend the pleadings in such manner as they may be advised. The costs of the proceedings, up to this time, to be paid out of the funds of the Society represented by the defendants.

The defendants appealed on the grounds,

1. That the Wappetaw Church was not within the original purview or scope of the Charity set forth in the bill, as founders or otherwise ; but that the same was originally and exclusively confined to the Independent or Congregational Church in Charleston, commonly called the Circular Church, where the Clergy Society originated, and whose members were its corpo-rators.

2. That the Wappetaw Church not having been originally within the scope of the said Charity, it is respectfully sub*233mitted; that its incorporation in the year 1853, cannot confer on it any participation therein.

3. That if the Wappetaw Church ever had any interest in the said Charity, it is excluded therefrom by the Act or Charter of 1834.

4. That if the object of the bill be, to vacate the Charter of 1834, either in whole or in part, the proceeding should be by *scire facias*or *quo warranto*at law, and not by bill in Equity in the nature of information.

5. That the application of a portion of the funds of the Society to the repair of the Circular Church (charged in the bill as a misapplication) having been expressly authorized by the Act of Charter of 1834, the proceeding by information in the name or the Attorney General cannot be sustained.

6. That the State, by its Charter of 1834 to the Society, having authorized the appropriation of the funds of the Corporation “ to such charitable, benevolent, religious and other purposes, for the benefit of the said Corporation, *and of the said Independent or Congregational Church in the City of Charleston,*in such manner as may be determined by a majority of the members thereof,” is itself estopped, by its own solemn act from disputing or Questioning such appropriation for repairs and improvements, for the *benefit of the Independent or Congregational Church in the City of Charleston.*

7. That his Honor the Chancellor having decreed, that the Relators, the Wappetaw Church, *“*had no interest in the funds of the Society until the amendment of their own Charter on 20th December, 1853,” it is respectfully submitted, that the Relators have no right to question the appropriation of its funds by the Society, made in August, 1852, being sixteen *234months before their rights and interests existed, according to the decree.

8. That the Attorney General and the Relators, having, in open Court, before the Chancellor, at the trial, disclaimed and repudiated all intention of making the defendants responsible for a supposed misappropriation of the funds for the repairs and improvements of the Circular Church, it is respectfully submitted, that leave should not have been given them (unasked for) to amend the pleadings, so as to controvert or repudiate their own public declarations in open Court.

9. That the Wappetaw Church presenting no beneficiary claiming the present benefit of the Charity, and there being no misapplication of the Charity or the funds, of the Society, there is no case for the interposition of the Court of Equity, and the bill should be dismissed.

10. That the decree is, in these and other respects, contrary to law and evidence, and ought to be reversed.

*Yeadon,*for appellant.

*Rutledge,*contra.

*W. Whaley,*same side. T/he decree decides that a Charity may be created for the benefit of those who may come into existence qualified to partake of its benefits. That the charity in the present case is for the benefit of the Congregational Churches in the State, and is not restricted to the Circular Church. That the original Charter of 1789 was not repealed, but only amended, by the Act of 1834. That Wappetaw Church falls within the scope of the Charity, and is entitled to be a *235party to these proceedings. That the Relators have leave to amend the pleadings to try the question of misappropriation and the constitutionality of the Act of 1834.

1. “That a Charity may he created not only for the benefit of those in existence (communities or individuals) hut for those who may come into existence, or who may qualify themselves to become objects of the bounty.” This principle is denied by the first and second grounds of appeal, and renders necessary a brief statement of the character of this Charity. 'It is a lay eleemosynary private corporation, endowed by individuals — incorporated and thereby perpetuated, but in no respect altered in nature. The Charter expressing the will of the founders is the foundation, and the corporators trustees for the beneficiaries, whoever they may be and whenever they may come into existence. See *Attorney General*vs. *Governors of the Foundling*Hospital, 2 Yesey, Jr., 42 ; *Dartmouth College*Case, 4 Wheaton, 518. Such is the general doctrine of Trusts, as exemplified in Marriage Settlements, settling estate for life, with power to appoint, or remainder to the issue of the marriage — until issue horn or power executed the person entitled to take is uncertain, but, on the happening of the event, becomes entitled as of strict right. See *Vidall*vs. *Executors of*Girard, 2 Howard, 127.

The decree decides,

2. “ That this Charity was founded on Charter for the benefit of the Elderly and Disabled Ministers and of the Widows and Orphans of the Clergy of the Independent or Congregational Church in the State of South Carolina, as a denomination.” This is, from its nature, purely a question of construction, and whether the word church is to he considered as designating one particular congregation, or as referring to all congregations of the same denomination within the specified locality (the State) can only be decided by reference to the History of the Society and the language of the founders, expressing their intentions *236at the time of its incorporation — and the evidences furnished from both these sources clearly show that the Charity was intended for the denomination throughout the State, and not for the Church in Charleston alone.

3. That the Act of 1789, is the foundation of the Charity, and was not repealed by the Act of 1834, but amended; the effect of which was to change the corporate name of the Society, enlarge its powers, and limit’ its Charter to twenty-one years, but not to limit its benefits to the church in the City of Charleston alone, or exclude from its benefits any objects who might be entitled to participate in it according to the provisions of the Act of 1789. The opinion of the Court thus expressed is fully sustained by the authorities. See *State*vs. *Fields,*2 Bail. 554 ; *State*vs. *Stephenson, 2*Bail. 334; *King*vs. *Rogers,*10 East, 537; Dwarris on Statutes, 534.

4. That the Wappetaw Church is an Independent or Congregational Church and within the scope of this Charity. It having been already shown that the Charity is co-extensive with the limits of the State, and embraces all churches of that denomination which exist or may exist within those limits, and as it is admitted that the Wappetaw Church has since the last Act of Incorporation in 1853 been, and considered to be, an Independent or Congregational Church, as such, it falls within the provisions of the decree,'and is entitled to the benefit of the fund. It might be suflicient to rest here, but it is susceptible of easy proof that the church at Wappetaw has, from its earliest organization been recognized as an Independent or Congregational Church — in faith and government — although incorporated at different times under different names.

Wappetaw Church was first incorporated in 1786 (8 Stat., 134) by the name of “ The Independent Church in Christ Church Parish,” with a perpetual charter, and in the Articles of Faith in her Record Book of that date, she is styled “ The *237Independent or Congregational Church worshipping at Wap-petaw.” By Act in 1822 (8 Stat. 325) this corporation was re-incorporated, with a limited charter, as “ Members of the Independent or Congregational Church at Wappetaw,” under the name of ‘The Congregation of Wappetaw in the Parish of Christ Church.’ In 1836 (8 Stat. 448) the corporation was re-incorporated under the same title as above, and in 1853 was again incorporated by the name and style of “ The Independent or Congregational Church of Wappetaw.”

The original charter of 1786 was perpetual, and never repealed in any of the subsequent incorporations which were for a limited period and expired by their own limitation, and never being repealed, remained in force at the granting of the last charter in 1853. See Lord Raym., 399.

5. That the Relators have such an interest as entitles them to he a party to these proceedings. As a question of the mismanagement of Charity funds by trustees, Chancery has jurisdiction of the case. *St. John’s College ease,*(1 Burr, 200); 2 Fonblanque’s Equity, 207, and will interfere to protect the beneficiaries ; but when, as in the present ease, the beneficiary —the *cestui que trust*— is not in existence, but liable to be in existence, and who has fixed rights in the trust whenever he is in existence, and for whom the corporators are trustees to preserve the trusts, the mode of procedure is in the name of the Attorney General, with a Relator who may even be a stranger, devoid of interest. *Attorney G-eneral*vs. Maddeton, 2 Vesey,' sen., 328 ; Story Equity, § 1191; 3 Blackstone, 427 ; Hill on Trustees, 667, 668 ; *Corporation of Mew Castle*vs. *Attorney General,*12 Clark & Ein. 402 ; *Attorney General*vs. *Vivian,*1 Russel, 236 ; Story Equity Pleadings, § 8 ; *Attorney General*vs. *Jolly,*1 Rich. Eq., 106; *The Presbyterian Church Case,*2 Rich. Eq.

6. That the Relators should have leave to amend their bill *238to try the question of misappropriation under the constitutionality of the Act of 1834. But it is respectfully submitted that the amendment of the pleadings can merely present in form what is now in substance before the Court, and upon -which the Court can act. The circuit decree decides that the appropriation to the Circular Church is not a misapplication of the funds under the enlarged power given in the Charter of 1834. The Act of 1834 is, as the circuit decree decides, but an amendment of the Act of 1789 — not a repeal; and the two are to be construed *in pari materia.*It has also been decided that Wap-petaw Church has equal right to partake of the benefits of the Charity — but if the appropriation of the funds here complained of is sustained by the Court, it will-in effect establish the principle that the trustees can admit a single beneficiary to the enjoyment of the Charity in exclusion of others equally entitled to participate. Now, the Acts of 1789 and 1834 are to-be construed *in pari materia,*and, taken in connection, constitute the Charter of the Society; and the appropriation made under the supposed authority of the Act of 1831, to a purpose foreign to the intention of the founders of the Charity, and not by any construction within the original scope of the Charity, as declared in its original Charter — is an encroachment upon the established rights of those entitled to claim under the Charity as originally established. Having vested rights under the original Charter, they cannot be deprived of them by subsequent legislation operating an indirect repeal. The amount so misappropriated cannot affect the principle. If permitted as to a part, it may be allowed as to the whole, and the entire Charity monopolized by a single beneficiary. The trusts declared were for the support of the Elderly and Disabled Ministers and of the Widows and Orphans of the Clergy of the Independent or Congregational Churches in the State, and that the Court will interfere to enforce the trusts as they are declared, and to prevent the trustees from doing any acts tending to alter, impair or destroy the rights of the *cestui que trusts,*is clear both *239upon principle and authority. See *Attorney General*vs. *South Sea Company,*4 Beav. 458 ; *Attorney General*vs. Kerr, 2 Beav. 428 ; *Bush*vs. *Bush,*1 Strob., 377 ; *Mayrant*vs. *Gui-gard,*3 Strob. Eq., 112.

It is equally clear that a Charity must be accepted upon the same terms upon which it is given, and once accepted, no subsequent agreement can alter the rights so vested. See Story, Equity Juris., § 1175 ; Ambler, 373; *Langdon*vs. *Plymouth Congregational Society,*12 Conn. 113. These principles are at variance with that construction of the Act of 1834 which would extend the benefits of the Charity to purposes not contemplated by the founders, and sustained as they are by authority so weighty, must, it is respectfully submitted, override such construction.

*Be Saussure,*in reply.

The opinion of the Court was delivered by

Dunkin', Ch.

The defendants (the Clergy Society) have appealed from the decree of the Circuit Court on various grounds. Upon the points definitively adjudicated by the decree, and which are called in question by these grounds of appeal, this Court concurs in the conclusions of the Chancellor.

It is not important now to determine at what time the re-lators held or acquired the character which placed them within the purview of the Act of 1789. It is enough for the decision that they maintained the character of an Independent or Congregational Church prior to the institution of these proceedings. And it is not intended now to declare that they may not have held that character anterior to the charter of 1853. *240In any subsequent proceedings this inquiry may be important as well to the defendants as to the relators.

The eighth ground of .appeal objects to the order granting leave to the plaintiffs to amend their pleadings, if they should be so advised. In ordinary cases, this Court rarely interferes with the exercise of the Chancellor’s discretion in such matters, as is stated in *Lancaster*vs. *Seay,*6 Rich. Eq. 111. Rut in this case leave was given in order to meet the reasonable objection made by the defendants, that they ought not to be called on to defend the constitutionality of the Act of 1834, until it had been properly put in issue by the pleadings. It is hardly necessary to superadd that if, upon the amended pleadings, the constitutionality or validity of that statute should be successfully assailed, the propriety of the appropriation of the funds of the charity made by the defendants will be fully open for inquiry.

The appeal is dismissed.

Johnston and DaRGan, CC., concurred.

*Appeal dismissed.*