*Beaufort District.*

Heard *by*Chancellor Disaussure,

*Útí tsxxia.*

#### The Vestry of St. Luke’s Church, *vs.*The Reverend Philip Mathews.

A Clergyman entered into a contract with a vestry, who were not legally elected, but who wereyet the vestry de facto, for a year’s service in the church. He was ignorant of the illegality of the election, and there was no collusion. He performed the duties, and is entitled to the benefit of his contract. Butin the ensuing year he entered into another contract with the same vestry, when apprized of the illegality of their election. This furnishes sufficient proof of collusion, and the court decreed a perpetual injunction against any suit for the services rendered the second year.

JUNE, 1815.

This case was argued, and the following decree was made thereon by the presiding judge:

This is a bill filed to restrain the defendant from availing himself of a judgment at lavr, obtained for a year’s salary, alledged to be due to him on a contract made with the vestry and wardens of the Episcopal Church of St. Luke’s Parish, to servé as rector of tha£ church, from Easter 1811 to 1812.

The hill states “ that the defendant was rector of St. Luke’s church, by the appointment of certain persons, who had usurped the office of vestry an d wardens $ and that the defendant was knowing to the usurpation, and therefore came in by collusion with them.” That such the intimate understanding between the defendant *579and these usurpers, that the terms of agreement were that the defendant was to be paid as long as he chose to v • ‘ *■*° continue with them. 'That when the title of these usur-j>ers came to be .examined in court, ,on a motion for a mandamus, .the application was dismissed, because .the mandamus was not the proper *remedy;*of which cause of dismissal the presiding judge informed the parties* and apprized them, that the tenure by which those persons held their offices was illegal £ yet after tills the defendant renewed his engagements with the usurpers in question. 'Thatthe complainants were not satisfied that the defendant is recognized as an Episcopal minister, by the church of this state. That the complainants, and the body of the parishioners never concurred in defendant’s appointment, but regarded him as an unfit person* on account of the reports which hád reached them, concerning his general character. That the defendant Mathews lias obtained judgment at law, for the amount of one year’s *salary;*and issued his execution, and threatens to levy upon, and sell the eliurch.

The hill prays for an injunction against the judgment at law, and that the complainants may not be further troubled at law. The answer of Philip Mathews denies that he had any knowledge of any conspiracy between the vestry and wardens elected in April 1811, to retain their appointments, in despite of the wishes of the congregation. That defendant for five years before he came to St. Luke’s Parish, had been rector of the Episcopal church of St. James, Santee. That receiving pressing letters from Capt. J. W. Alston, an officer of the church of St. Luke, encouraging Aim to expect the appointment to that church, with a salary of Si,400, to be the minister for St. Luke’s and Hilton Head, he was induced to leave his residence. That at that time the defendant was entirely ignorant of any contention existing in St. Luke’s. That on his arrival, he found in office J. W. Alston and' others, who appeared from the books of the said church to have been members and officers of the same for several *years;*by whom the defendant was engaged to preach every Sunday in .said chmtah, for a salary of $800. *580That although the defendant was present on the day of election, in April, 1811, having come into the parish only the evening before, he was entirely unacquainted with the nature of the controversy between the conflicting parties of the said church. But heunderstood it at that time to he a contention who should ■ have the disposition of the funda of the said church. The defendant further* states, that the charge of complainants, that the defendant is not a legally ordained minister of the Episcopal Church is false and unfounded j be having been ordained by bishop Madison, who conferred on him the grade of deacon and priests oiders, on the same day, as would appear by exhibits filed with the answer. That the defen-, dant is recognized by the parish of St. Helena, as its rector, and has been returned by the vestry to bishop Dehon, who promised to enrol his name *;*having been previously enrolled, to wit, in 1805, by the standing^ committee.

This defendant farther states,' that he agreed with the vestry and wardens of St. Luke’s, to serve as rector for the year 1812, (which was his second year,) before the Court of Common Pleas had pronounced any deci* sian on the question then in litigation ; as the said vestry and wardens were then recognized by a largo portion of the congregation. That J. W. Alston was either a warden or a vestry-man, for several years, before any dispute originated *;*and that this defendant did not abandon the said congregation, till he found that he could not reconcile them. That the charge of collusion with usurpers is untrue, for at the time of passing the bye-law, so much complained of, the defendant was in the enjoyment of the rectory of St. James.

Defendant defies his enemies to substantiate a single charge of criminality on him. That during the first year of defendant’s services in the church of St. Luke’s, the church was well attended on Sundays, and would have continued so, had it not been for party animosities. — . That the defendant did not know the papers belonging to "the church had been detained, till informed thereof by O. W, Morral!, who Ifad detained, thpip, because, what *581vas due. to defendant, was withheld by men illegally elected. That the defendant haring received no compen-satiori for his two years’ services, (so that his hoard and physician’s bills remained unpaid,) commenced an action atlaw to recover his salary' of the year 1811, and obtained judgment *tlmrefor;*and his attorney proceeded to levy on any property he could find ;■ that defendant was unwilling to levy on the church, but the present vestry refused to pay him in any other wav.' The answer denies combination.

On the trial of this cause, the following evidencie Was produced;

The act of the legislature of the 29th February 1788, incorporating the Protestant Episcopal Church of St. Luke’s, and sundry others therein named, by which it is enacted, *“*that the vestry shall be elected in manner 'accustomed.” To shew what “ the manner* accustomed” is, the act of the 30th November, 1706, (see Trott’s Collection of the Laws, No. 260,)-was produced. By the 30th sect. p. 138, it is enacted, « that on Easter’,Monday in each year, the inhabitants of each parish, that are of .the religion of the church of England, and that do con» form to the same, and that are either freeholders within the same parish, or that contribute to the public taxes, and charges thcjreof, or so many of them as shall think fit to attend, shall meet at their parish church, (or for want of one, at some appointed public place,) and there elect seven sober and discreet persohs, that are of the religion of the church of England, and do conform to tho same, and that are either freeholders, within the same parish, or that do contribute to the public taxes and charges thereof; to be vestry-men, for the said parish, for the space of one year.” And church wardens are to be annually elected at the same time, and by the same persons.

To shew that the election of vestry men and wardens of St. Luke’s, which took place on Easter Monday ip the year 1811, was not made in the manner accustomed, the journals of the proceedings of the vest y of St. Luke’s were produced, by which it appeared (see .page 59,) that on the 8th of April 1811, the then vestry, *582entered into a resolution, which they called a bye-law^ by which it was enacted, that every person desirous to join the church of St. Luke’s, should pay the sum of §50, or }ie should not be admitted a member, nor be entitled to its privileges. By the same journal, page —— it appeared, that an election of vestry men and church wardens took place on the 15th April, when Mr. Josias W. Alston, and sundry other persons, were entered as elect» ed. It also appeared, by the same journal, that on the 16th of April 1611, a resolution was entered into, by th$ vestry so chosen, to employ attornies to defend the rights of the vestry. And that on the 27th April, 1.811, the vesr try resolved to authorize the church wardens, to employ the Reverend Philip Mathews, as the -rector of the church, for a year, at §800 .per annum. And that on the!2d Nov. 1811, several persons were admitted *to be*members of the church, who *were*approved by the vestry. So also, on the 7th of March 1812. On the 30.th March 1812, there appears to have been an assemblage of the vestry, to try the Rev. P. Matthews, on a charge of infidelity,, said to have been made by St. R. Proctor; but Mr. Proc-, tor refusing to give evidence, as he denied the power of the vestry, Mr. Mathews was acquitted.

By the same journal it appeared, that on the 28th of Nov. 1812, the vestry entered into a resolution to em<ploy Mjr. Mathews as the minister of St. Luke’s, till he chose to resign by letter, at §600 per *annum;*which was done on Mr. Mathews’ own motion. There was also a letter by the vestry to the bank in Charleston, dated 12th July, 1811, which related to the money of the church, of which they claimed the disposal, though its payment to them was forbidden by those who thought them illegally elected. The minutes from the court of sessions were produced in evidence, by which it appeared, thata rule was taken out on the — day of April 1811, for the vestry and wardens of St. Luke’s, to shew cause why the election should not be set aside as irregular.

Several witnesses were called. Those on the pant of the complainants, testified, that they were present at the election of vestry-men and church wardens, for St *583Jíuke’s church, in April 1811. That the new rüíc, reqUiring the payment of fifty dollai’s as a qualification to vote was enforced. That they never heard of the rule till the day of election *;*and that a much greater number of persons were rejected from voting, by the operation of that rule, than the number who voted. That the great hulk of those who were rejected, were Episcopalians ; and that they would have voted against those who wepe elected vestrymen, as they expressed their sentiments openly ; but were prevented from votingby the operation of that bye-law. Their votes would have changed the election. The witnesses did not see any of those who ball been actually subscribing, and recognized members of that church, prior to the bye-law, refused permission to vote j but all who were entitled, and then came for the first time to subscribe and to vote, (and these were many,) were refused unless they paid the fifiy dollars, required by the new *bye-law;*and many of the old members refused to vote on account of that law. Almost all who were rejected on that day, became regularly members of the church, as soon as they could,

Mr, Mathews was present on the day of election,, &nd saw and heard tiie contention among the people. — > The bye-law was produced and discussed, and all present knew of it; and one of the witnesses thought he, Mr. Mathews, must have known that the bye-law was deemed illegal. Another of the witnesses heard Mr. Mathews answer Mr. J. W. Alston, that he had got one of his Setters of invitation to come to the parish : — Also heard him lament the differences existing, and say, that he Would leave the parish speedily.

Mr. Mathews said, about the close of his stay in the parish, that there were great abuses in the books of the Church, which ought to be put to rights.

Two witnesses were produced on the part of the defendant, one of them testified, that he did not see any of the old members of the church, (former members,) repelled from voting. That several persons present were strangers, to wit, Dr. Proctor, and Mr. Patterson. — - Some came from curiosity, and some from other churches. *584That Mr. Mathews was present, but he was a stranger. The witness heard him say, that he regret-^10 disscntiona he saw among the people, and it would be his duty to heal them.

Another witness said, that he attended once at tlia church, soon 'after Mr; Mathews was pastor, and,he had a full congregation. On his examination he said, that lie had learned from Captain Josias.W. Alston, that the object of the bye-law was to keep others out, who might incline to put out the then vestry, knd putin others.

I have been thus full in stating this case, from the importances of the principles involved in if, as well as from idle great interest taken in the cause, by a respectable church and community.

The questions made in the cause were as follows :

First, — Whether the defendant Philip Mathews, was a regularly ordained episcopal minister of the goe-pel, entitled to perform the functions of a clergyman of that denomination.

Second, — Whether he was regularly appointed rec-for of St. Luke’s, by a vestry regularly elected, and duly qualified to act in that behalf.

Third, — Whether the persons acting as vestry-men, if not duly elected, were such a vestry de facto, as would ' authorize their acts, and bind the church to .pay for services actually performed.

Fourth, — Whether the defendant, P. Mathews, colluded with a vestry, illegally elected, and thereby deprived himself of the benefits of the contract made, with ' them, as a vestry, and performed by him.

The first question was not discussed, for notwith- . standing the doubt stated in the complainant’s bill, the defendant gave a distinct and positive answer, affirming that he was a regularly ordained clergyman of the episcopal church, which he supported by documents, and - which were not contradicted by any testimony. The counsel for the complainants, candidly gave up this point, for defect of *proof;*and we must consider Mr. Mathews as a regularly ordained minister of the gospel, capabler • of performing all the functions of that holy office, in the protestant episcopal church,

*585The second question, involves two points: First, Whether Mr. Mathews was regularly appointed by the vestry, to be the rector of *St*Luke’s parish, in the year 1811 ? Second, whether that vestry were regularly elected, and duly qualified to act in that behalf?

There does not seem to be any difficulty on the first point. The entry in the journals of the church shews that Mr. Mathews was duly appointed by the vestry, on the 27th of April 1811, to be the rector of the church of St. Luke’s, for one year, at the salary of gSOO, and the evidence shews that he accepted the office, and performed the duty.

The second point requires more discussion. The right of a corporation to malte bye-laws is not questioned, but they must be conformable and subordinate to the regulations of the *charter;*and they must be reasonable. If we test by these rules the bye-law made a few days before the election, and kept secret from all but a few, until the day of election, requiring that each inhabitant of the parish, otherwise entitled to vote, should be obliged to pay g50, before he should be allowed to vote, we shall find that it will not stand an examination. The act of incorporation of 1788, directed elections to be made in. the customary manner, and the ancient law which fixed that manner, allowed all persons residing in the parish, or paying taxes therein, and conforming to the Protestant Episcopal Church of England, to vote at the elections for the vestry and wardens. The new byelaw, requiring a new qualification to entitle persons, otherwise qualified, to vote, was therefore an attempt to transcend the powers given, and to alter the qualification of voters, and was a violation of the charier. The byelaw was therefore a mere nullity. The manner too of. the enactment, a few days before the election, and kept secret till the people were assembled, when few could be prepared to comply with the new bye-lav/, and the object avowed to one of the witnesses of defendant, to exclude persons, who might interfere with the then vestry, rendered this an unreasonable oye-Iaw. And it was unreasonably exercised; for we perceive, that mi was made *586by the vestry, to make the right of the voters depend upon their approbation, even when they complied with thebyc-law, by paying the fifty dollars required. See two entries to that effect, it is true, it is said in 3 Burr 1833, that when the electors are described in the charter, their number may be restrained by a bye-law, in order to avoid riot and confusion. But it is added, that a bye-law cannot strike off an integral part.

This power, if it be really lawful to a corporation, must be exercised with great caution, with no sinister designs, and without counteracting the charter, or substituting a new' rule, to entitle it to support. It deserves no support, under the circumstances of this case.

Upon every ground therefore, I am satisfied, that the bye-law was unwarranted and illegal, and void,- and that those, who by virtue of its sudden and unexpected application, (as was pretty strongly proved by the witnesses,) were elected vestry men under it, were illegally elected; and though they might not perhaps, bo said to be usurpers, as they held under colour of an election, however irregular, yet they were unlawfully in, and.held their office de facto, and not de jure. And this brings us to the consideration of the 3d question, ■whether the persons acting as vestrymen, were, such a vestry defacto, though not do jure, as would authorize their acts, and bind the church to the contract made with Mr. Mathews ? And it docs appear to me, after the best consideration I can give the case, that they were a vestry de facto, and that their contract with Mr. Mathews (unless we suppose, he acted by collusion with them,) bound the church, and entitled him to the payment stipulated, when he had performed the service. In the case of the People *vs.*Collins, reported 7th Johnson’s New-York Reports, 549 to 554, it is laid down by the court, in conformity to the old cases, that the acts of commissioners, though coming in, or acting irregularly, and liable to a penalty, orto be turned out, were the acts of commissioners de facto, since they came to their office by colour of title j and that it is a well settled principle of law', that the-acts of such persons arc valid, when they concern the *587public, or the rights of third persons, who have an interest in the act done: and', this ruléis adopted, to pre-x A vent a failure of justice. *“*The limitation to this rule, is as to such acts as are arbitrary and voluntary, and do not affect the public utility.?’ So also the King *vs.*Lisle, Andrews, 263, 5. T. Rep. 56. Cowp. 413. Salk. 43. LordRaym. 1244.

During the year for which these men were so irregularly elected, they could be removed, only by a quo warranto. 2 Term Rep. 239. 1 East, 78. 1 W. Blackstone, 445. 3 Burr. 1454. 4 Burr. 2008.

In the People *vs.*Runkel,- 9 Johnson’s Rep. 147 to 159, the court again laid it down, that trustees, even if not regularly elected, were at least trustees by colour of office, and their acts would be good.

In 1 Woodeson’s Lectures, 491, it is laid down from 2 Lev. 242, that if an officer de facto, perform a corporate or judicial act, as if a mayor seal a bond, or a sheriff pronounce a sentence, their proceedings are valid, though they are not de jure qualified for their respective stations. There must however have been an election, (however irregular,) otherwise he is a mere usurper. Being sworn in, and acting, do not, without an election, constitute an officer de facto. 2 Stra. 1000. Now the act done by the vestry de facto, who came in by colour of title, in the case under consideration, was precisely the - ■act, which, if they had been duly elected, they ought to have done. They appointed a-‘ clergyman to fill the vacant church. It ivas not an arbitrary act, and can scarcely be called a voluntary one, for it was a duty to fill the vacancy. The contract made by the vestry, in this case, with Mr. Mathews, to serve the congregation as their minister, for a year, seems to be analogous to the presentation and induction in England, which put the clergyman in complete possession of the benefice, though admitted on a wrongful and illegal presentation • or though insufficient and illiterate, for he is a parson de facto, and the acts creating him so, are not mere nullities. 1 Woodeson, 315. A clergyman presented by a stranger, that hath no right, is not liable to he dispossessed, *588even by the *patron, but he lost his turn*of presentation fey it *•*because the intent of the law in creating this species of property, being to have a fit person to celebrate divine service, it preferreth the peace of the church, (provided the clerk were once admitted and instituted.) to the right •of any person whatever. See 3 Black. Com. 342, 3. Unless therefore, there was collusion, between the vestry do facto, and Mr. Matiiews, I consider his appointment valid, and that he is entitled to the stipulated reward for the first year of his services.

This brings u$¡ to the consideration of the 4th question, which is, whether Mr. Mathews did collude with the vestry de facto, knowing the illegality of their election ? And is he thereby subject to be deprived of the stipulated salary, after performance of the service ? The defendant Mr. Mathews, in his answer positively denies the collusion charged, and states, that being in possession of a benefice, in St. James’ Santee, he was invited by an officer of St. Luke’s Church, whose legality, at that time, has novel’ been questioned, to come to St. Luke’s Parish, to be employed in that church. That he arrived the evening before the election of the vestry and church wardens, and was present at the election on the 15th April, 1811. That he saw much discord, but he was not acquainted with their regulations, nor could he judge of the points in controversy among the parties. That he verily believed the point in dispute related to the disposition of the funds of the church. He was appointed rector of the church by the vestry elected in April, on the Sfth of that month, for one. year, at 800 dollars. And ho remained in the parish and performed the duties of his station. To the peremptory denial of collusion, made by the answer, there is nothing opposed, hut the proof, that Mr. Mathews was present at the election, and saw the strife, which prevailed ; and one witness thought he must have heard the discussion *about the*bye-law, and have known of its illegality, and yet consented to be employed by a vestry so elected. "Whence the collusion is inferred. It is indeed very probable, as the witness supposed that Mr. Mathews hoard the dis-*589cushion on the day of election. But it would be too muck to infer, contrary to his express denial on oath, that he understood the subject so well, as to be able to determine on the legality of the bye-law, and the regularity and validity of the election. It required particular attention to the facts, and some legal discrimination to decide upon the validity of the proceedings, I cannot therefore say, that I am prepared to pronounce, that such a case-of culpable collusion lias been made out, as would justify the court in setting aside the contract, where the party has performed his part of it.

It is said that a rule of court was taken out in April 1811, for the vestry to shew cause, why a mandamus should not go out against them. But Mr. Mathews, who was appointed about the same time, is not proved to have known of this rule 5 and if he had, it is not certain that he was bound to act upon it, until the determination of the-court was known. It would be too great a hardship on a clergyman to make the payment of the sum due him for services performed, to depend on the regularity of the election of the vestrj, and upon the correctness of his legal judgment upon the points in controversy, between the parishioners. A very flagrant case of misconduct on his part, and of plain and culpable collusion with the party, palpably in the wrong, would alone warrant the interference of this court, to deprive him of tiie benefit of his labours. And it is of great importance throughout this case, to remember that the act done, and complained of, was not in itself incorrect, but was precisely the act which duty required the vestry, whether de jure or de facto, to perform, to wit, the filling the church with a clergyman of the Protestant Episcopal church, to perform the duties of that holy function.

Upon the whole, therefore, I am of opinion, that Mr. Mathews was entitled to the salary stipulated to be paid him for one year’s service from April 1811, to April 1812. I do not know whether the proceedings in this case are so made up, as to require the judgment of the court upon the claim of Mr. Mathews, for compensation, from April 1813 to the time he lefMhe parish. .But the prayer of *590Die bill, for relief, seems to reach the whole case,' and the parties went into evidence, on the contract made in Nov. 1812. So that I presume the judgment of the court is desired. And as it may prevent further litigation, I have no objection to give it.

Upon that point, I have no doubt Mr.'Mathews had been long enough in the parish, to know the whole controversy *;*the hooks and proceeding's were under his eyes, and lie must have known, that the judgment of the court of law was against the legality of the election of the vestry, his patrons. With a full knowledge of all these circumstances, and that the vestry was an illegal body, acting without authority, and against the will of the congregation, he renews his engagement with them, nay it is on record, that he himself is the mover in the vestry that he. should be employed, indefinitely, until he chose to resign by letter. This was a plain and wilful *collusion,*of a culpable nature, andt he became an usurper. The congregation in disgust withdrew from him, and lie frequently had no auditors, and was obliged to abandon the church. If, therefore, Mr. Mathews lias wasted his time uselessly to others, and without benefit to himself, jt is his own fault. lie is not entitled to compensation.

It is therefore ordered and decreed, that so far as the complainant’s hill seeks relief against the judgment at law, for the year’s salary claimed by the Rev. Philip Mathews, under his first contract with the vestry de facto, of St. Luke’s Church, the same he dismissed, and the injunction dissolved. And that so far as regards any demand which he may have against the Protestant Episcopal church of St. Luke’s parish, under, or by virtue of any subsequent contract, with the persons claiming to be the vestry of said church, or for services alleged to have, been rendered by him, that he be'forever enjoined from prosecuting the same.

It is further ordered and decreed, that the costs of suit be paid by the complainants out of the funds of the Church.

(Signed)

IJ.ENRT *W'*BzSAXTSSrKE.

*591General Huger and Mr. Pettigrue for complainants. lsiff. Mr. Morrall for defendant.

From this decree there was no appeal.