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    HENRY MILLER AND OTHERS, TRUSTEES OF THE ANTIPÆDO-BAPTIST SOCIETY MEETING IN SALEM, v. ISAAC ENGLISH AND OTHERS.
    1. The question of property and right of possession, between two bodies, each claiming to be the trustees of an incorporated religious society, is a question to be determined at law.
    2. A dissension having arisen in an incorporated religious society, growing out of the question whether a house of worship should be built at another place, a part of the congregation built the new house, and elected a board of trustees. A part of the congregation remained in the old building; and the persons claiming to be the trustees of the old society refused to the new party entrance into the old burying-ground for the purpose of burial, and the new party, on several occasions, broke open the gates of the old burying-ground, for the purpose of burying therein. On bill filed, an injunction was granted restraining such forcible entry. On answer and argument the court held that a forcible entry for such purpose was not such an injury as called for the interposition of the court by injunction.
    3. On motion to dissolve an injunction, affidavits in support of the injunction, to contradict matters in the answer alleged to be irresponsive to the bill, cannot be read if the defendant’s counsel disclaim and waive reliance on any irresponsive matter.
    The bill filed May 17th, 1847, is exhibited by Henry Miller, William Brown, William H. Nelson, Mark Armstrong, William Robinson, George O. Mitchell and Adam H. Sickles, of the county of Salem, trustees of the Anti-Psedo-Baptist Society meeting in the town of Salem, in the State of New Jersey.
    It states that, in 1743, the first Baptist meeting-house near Salem was built at a place called “ Mill Hollow,” and that, in 1757, it was constituted as a church.
    That the congregation having greatly increased, a new and large house became desirable and necessary, and a large and commodious brick building was erected in the town of Salem, in 1787; and the society continued an established and constituted religious society, by the name of “ The First Day Baptist Society in the town and county of Salem, in the State of New Jersey,” until July 3d, 1786, when the said society resolved to be constituted a body politic and corporate, under the act entitled “An act to incorporate certain persons as trustees in every religious society or congregation in this state, for transacting the temporal concerns thereof,” passed March 16th, 1786; and did, accordingly, become so incorporated, under the name of “ The Trastees of the Anti-Psedo-Baptist Society, meeting in the town of Salem, in the State of New Jersey ; ” and elected John Holme, Thomas Sayre, Benjamin Holme, John Briggs, Samuel Vance, Anthony Keasbey and Howell Smith the trustees of said body corporate.
    That Mary Dunlap, by her will dated August 23d, 1790, devised to the trustees of the said society and their successors in office, all her lands in the town of Salem or elsewhere, forever, for the sole use and benefit of the said church, for the support of the gospel, aud ministers or pastors to supply the said church, that may or shall be of the same faith and order that the said church was aud now is established on ; and authorized the trustees lor the time being, whenever they, with the said church, should think it may be the most advantage to and for the support of a minister for the said church, to sell the said lands, or any of them, or to exchange them for other lands. That she also bequeathed the residue of her personal property, not otherwise bequeathed, to the said trustees for the same use and objects.
    That the said society continued in apparent peace and harmony until a few years ago, when dissensions crept in among them, growing out of a proposition to erect a more modern and costly church edifice in a more central part of the town of Salem.
    That frequent meetings were held on the subject, at which ¡¡ouch disagreement and acrimony appeared.
    That all the complainants, (except William Robinson, who lived out of the town of Salem,) and many in the vicinity of the said town, opposed the building of a new church edifice, and the expenditure for that purpose of the funds of the society, devised to them for other purposes.
    That, as far back as May, 1840, it was suggested, by some or one of the persons who advocated the building of a new church edifice, that no record of the certificate of the first trustees, nor of their oaths of office, could be found in the office of the clerk of the county of'Salem, and that the original certificate signed by the said first trustees was lost. Aud, thereupon, it was resolved that it was expedient to incorporate the said Baptist church and congregation, pursuant to the act entitled “An act to incorporate trustees of religious societies,” passed June 12th, 1799; notwithstanding that the original corporation remained undissolved.
    That in pursuance of said resolution, a meeting was held on the 5th of February, 1844, and a new incorporation formed, under the said act of June 12th, 1799, and Stephen Mulford, since deceased, John W. Challiss, William L. Seagrave, Henry Freas, William Johnson, Isaac English and John N. Cooper were elected trustees of said new corporation, who took and subscribed the oaths, &c.
    That the said trustees thus last elected usurped the name of “ The Trustees of the Anti-Psedo-Baptist Society, meeting in the town of Salem, in the State of New Jersey,” and certified such name to the clerk of the county of Salem, who recorded the same, by reason of which proceedings, as the complainants are advised and believe, they abjured the former corporation, which is still in being.
    That the said last-named trustees, having in their possession the funds, property, books and records of the original corporation, made sale of the said devised lands, in small lots, to several purchasers, and thereby raised about $2000, and appropriated the same toward the erection of a large, new, costly building, for the said newly erected body corporate; which, the complainants are advised and believe, was illegal and contrary to the true intent and meaning of the will of the said Mary Dunlap.
    The bill states that the meeting at which the question was put, whether the congregation should remove to the new edifice, was held without any notice given of the object or intent thereof, or consulting with the members opposed to the removal. That on the question being put, about sixty rose in favor of going to the new church; the members and congregation and persons attending the church being about 250. And it was determined, at one of the meetings, of which due notice was given, that the old church building should not be pulled down.
    That the last-elected trustees, and such of the members of the said society or congregation as preferred the new body corporate,. after the said meeting, and about December, 1846, separated and withdrew from the old church and from the original society or congregation, and went to the new building; and, having so removed and seceded, declared themselves to be the original, ancient corporation, and claimed all the property thereof, and use force and violence to enter upon the ancient property in possession of the complainants.
    That a large number of the ancient society or congrogaiion remained in their ancient house of worship, under their first original act of incorporation, of July 3d, 1786, never having seceded or separated themselves therefrom, or ceased to be members of the said ancient, original society and corporate body.
    That the complainants, with the larger number connected with thorn, in order to perpetuate the line of succession under the said act of 1786, on the public notice required by law, assembled on tlie 16th of January, 1847, and elected six trustees, who, with William Robinson, who was a trustee and remained in the ancient society, are the complainants in this bill.
    That the said trustees, after having taken the oaths prescribed by law, met, and elected Henry Miller president of the board of trustees, and opened a church book, and entered and continue to enter all their proceedings therein. And that they took upon themselves the charge and control of the lands remaining unsold of the said original corporation, and of the meeting-house premises and the burial ground adjoining the same. And that they gave notice to the defendants, and in two newspapers published in Salem, apprising those who wished to bury their dead in the old Baptist burying ground to make application to William Jarmon, the duly appointed sexton, which notice was signed by Henry Miller, president of the board of trustees.
    That the defendants, and others who adhere to the new corporation, have, on several occasions, (stating them particularly) forcibly entered upon the said old burying ground, by breaking locks, &c., and dug graves therein, and threaten to continue to do so, and to force open the said old meeting house, and to raze it to the ground.
    That on the 14th April, 1847, the complainants applied to the Supreme Court for leave to file an information in the nature of a
      quo warranto against the said Isaac English, &c., for usurping the office of trustee of the Ante-Psedo-Baptist Society meeting aforesaid, incorporated July 3d, 1786. And the said Supreme Court, on the 26th April, 1847, made an order or rule that the said defendants show cause, on the first day of the next term of said court, why an information in the nature of a quo warranto, at the relation of these complainants, should not be filed against the defendants herein named, by or in the name of the attorney-general, for usurping the office of trustees as aforesaid. But that the defendants, although served with the said order or rule, still persist in such forcible and violent entries as aforesaid.
    That the complainants have frequently expostulated with the defendants, and requested them to desist from such force and violence, as the complainants would, freely, on proper request and application, let them enter and bury their dead, and preach funeral sermons, under the usual conditions of payment, &c. And requested that they would yield the quiet possession of said premises to the complainants, and deliver to the complainants the church book of record, or let them have access thereto, and all papers, deeds, writings and documents of or belonging to the said original body corporate, all which was refused.
    The bill prays that the defendants may be decreed to account with the complainants, and to pay to them the amount of the sales made by the defendants of the real estate of said original corporation, and such other funds of said corporation as the defendants may have in their hands; and that the defendants may be restrained by injunction from entering upon the. premises of the said original corporation in the charge of the complainants, without due application to, and leave granted by Henry Miller, president of the board of trustees, or the duly appointed sexton, and upon complying with the usual rules and payments in such cases for burying the dead; and from forcing any entrance into the said old church edifice, and from tearing down or in any way injuring the same.
    On this bill an injunction was allowed by an injunction master. The defendants filed their answer on the 25th of May, 1847. They admit that about the year 1675 there was a number of Baptist families in the vicinity of Salem, West New Jersey, and that in the year 1743 a Baptist meeting-house was erected at Mill Hollow, about two miles from Salem ; that the society continued to increase, and required a larger place of worship, and that in the year 1787 a new brick edifice was erected by said society, in the upper end of the town of Salem ; that the said Baptist society left the old building at Mill Hollow, and removed to the how building in Salem, and has continued from the year 1787 to the twelfth day of December, A. D. 1846, to worship therein, as a church and congregation, and that no one, as far as these defendants have ever known or heard, has ever charged their removal from their old house at Mill Hollow to their new house then erected in the upper end of Salem as an act of secession or breach of discipline, or contrary to church government.
    And these defendants further admit, that on the third day of July, A. D. 1786, the said society was incorporated according to the then existing laws of the State of Mew Jersey, and became a corporate body by the name of “The Trustees of the Auli-Pssdo-Baptist Society, meeting in the town of Salem, in the Slate of New Jersey,” and that they did elect such trustees, who took the oaths of office and made such certificate to the clerk of the county of Salem, as the complainants have in their bill alleged j and that they also admit, that the said corporation has been since continued, and the succession of trustees hath been constantly kept up and perpetuated, and that the defendants, William Johnson, William K. Seagrave, John W. Challis, Henry Ereas, and Isaac English, are the regular trustees of the said corporation j and that they now hold the full right and power to use, possess, and direct and control all the property of the said corporation, under the said act of 1786, and that the other defendants are either members of the said Baptist society, so incorporated in 1786, and therewith connected, or have acted under the direction of tiie said trustees in the several matters set forth in the said bill of complaint.
    And these defendants further answering say, that the brick edifice in which the said Baptist society had worshipped from the year 1786, was situated in the upper end of the town of Salem, about three-quarters of a mile from the most densely populated part of the town, at an inconvenient distance for many of the members of the church and congregation, and had become much out of repair; that in consequence thereof it became, in the judgment of most of the members of the society, a matter of great importance to their spiritual as well as temporal interests that a new edifice should be erected, of larger size and in a more suitable location; that at a regular church meeting, held on the nineteenth day of March, A. D. 1842, a resolution was passed to hold a meeting of the church and congregation, on the second day of April ensuing, “ to obtain the voice of the church in relation to building a new meeting-house in Salem.” Regular notice' of this meeting was given from the pulpit, according to the usages of the society, and at the meeting so held on the second day of April, A. d. 1842, at which at least one hundred and fifty persons attended, and Henry Miller, William Brown, and others of the complainants being present, resolutions were passed without a dissenting voice, “ to give their aid to help raise funds to build a new meeting-house,” and a committee was appointed to procure a suitable lot. Several meetings on the subject were subsequently held, and on the sixteenth day of August, A. D. 1842, at a meeting of the church and congregation, it was resolved, with a view to consult the opinions of all the congregation and ascertain clearly the desire of a majority, that a meeting should be called for the express purpose of considering and deciding “ whether to remodel the old house, or build a new one.” Due notice in the usual mode from the pulpit was given of this meeting, and the time fixed for September 22d, 1842. At such meeting, which was fully attended, a committee was appointed, consisting of those who were in favor of re-building and repairing the old house, and some who were friendly to a new building; this committee met, and after a full interchange of views, they agreed upon a compromise, and made a report in which they say, “ the committee appointed by the church to mature some plan for the mutual and harmonious action of this body, and also to give all a fair chance to carry out their views, either in new modeling or in building a new house, report in their opinion the best plan to preserve the peace and harmony of the church and congregation ; ” which plan was in substance that an effort should first be made to raise funds to remodel and repair the old house, and if after nine months the estimated amount could not be raised, that then an effort should be made to raise the funds necessary to build a new house. On the 19th day of August, A. D. 1843, a period of more than sixteen months, at a meeting of the church and congregation, of which due notice had been given from the pulpit, according to the uniform usage of said society, the committee last appointed made a final report that sufficient funds could not be raised to re-model the old house, and “ that they now give it uj) into the hands of those who are favorable to erecting a new house, for them, to carry out the spirit of the resolution” passed at the meeting of April 2d, 1842. A new committee was then appointed to collect funds and obtain a. lot, which was accordingly done; and on the twentieth day of October, A. d. 1843, the congregation, in pursuance with previous notice from the pulpit, met at their meeting-house, and there resolved, by a unanimous vote, to build a new meeting-house on the Firth or Thompson lot, and the trustees were ordered to take a deed for the same. On the sixteenth of March following, a building committee was appointed, who proceeded to the immediate erection of the new edifice. On the twentieth day of December, A. D. 1845, at a regular appointed church meeting, a resolution was passed, directing the trustees to use the funds of the church in their hands for the completion of the new meeting-house ; and the yeas and nays being desired, were taken, when sixty-seven voted for the* resolution, and eleven against it — the whole of the persons present having voted, with the exception of perhaps three to five.
    And these defendants further answering, admit that there was some difference of opinion in the congregation in relation to the building of the said new house, but that such difference of opinion was slight, and did not, in any serious degree, affect- the peace or harmony of the said church ; and these defendants insist that no action or movement of the said trustees, church, or Baptist congregation, was ever liad or attempted on the subject of building said new house, or any proceeding relating thereto, without previous notice, according to the well-known usage of such society, and thus affording to all its members full opportunity to be present and take part therein, if they desired to do so; and that, in every instance, when any business connected with the question of buildiqg a new house was to be transacted, a majority of the whole church and congregation attending the said meeting voted for and decided the different propositions, such as these defendants insist before this honorable court, and are ready to maintain and prove, being the fundamental principle of all Baptist societies in their church government, that a majority of the votes of those present shall always decide, and these defendants do expressly deny that any of the votes have ever been falsely or erroneously entered on the books or minutes of the said society, as the said complainants have improperly and falsely alleged.
    And these defendants further answering say that, in obedience to the often-expressed wish of the said church and congregation, and pursuant to the orders and resolutions so passed at the said several meetings, the said William Johnson, John W. Challis, Henry Freas, William K. Seagrave, Stephen Mulford, since deceased, and Isaac English, trustees of the said Anti-Psedo-Baptist society, did, in conjunction with William Bobinson, one of the complainants, proceed to the purchase of the said lot herein-before mentioned, and did erect thereon a large and convenient brick edifice, and finished and completed the same in a suitable manner for religious services, according to the ancient usages of the Baptist society in the United States, and that after the new edifice had been completed, and some time in the month of November of the year 1846, at a meeting of the said Baptist church, of which due notice from the pulpit, according to their ancient usage, had been previously given, held at their old meeting-house, a large number, to the amount, as these defendants believe, of over one hundred members, having been present, it was unanimously resolved that the new meeting-house should be dedicated to Almighty God on Saturday, the twelfth day of December, A. X). 1846 ; and also resolved that, from and after that day, the religious services of the said Anti-Psedo-Baptist Society should be held and conducted in the said new meeting-house, and these defendants expressly aver that due notice was previously given from the pulpit of the time of such meeting; and these defendants aver that there was not at such meeting any dissent or opposition to the proposition to remove the place of worship to the new house • and these defendants do aver that if the said William Brown and his associates, as is alleged in the said bill of complaint, did feel or entertain any such opposition to the removal, tiiat they did not express it audibly or let it be known to others ; and these defendants aver that the said William Brown did, on that day, in such meeting, publicly declare “ that he hoped no one would oppose the removal,” and “that he should not oppose it;” and further these defendants aver that the said William Brown, one of the said complainants, did, about a week after said meeting, say to Samuel Lowe, one of these defendants, that lie, the said William Brown, Henry Miller, another of complainants, and one Joel Simpkins, had determined to come down and attend at the new house; that they had consulted the Eev. Mr. Dodge, a venerable and highly-esteemed minister of said Baptist society, who had advised that course as proper to be pursued.
    And these defendants further answering say, that on the 12th day of December, 1846, the said new edifice was dedicated to Almighty God, according to the ceremony, usage and practice of the Baptist church, and then became and now is the regular place of worship of the said Baptist society; and that, from that day, the worship of the said Baptist church has been regularly held and conducted on Sabbath day, and at such other times as are appointed, at the said new meeting-house; and that the said society has, since that day, only used the old meetinghouse for funeral occasions; and they further say, that these defendants, part of whom, to wit, William Johnson, William K. Seagrave, Henry Freas, John W. Challís and Isaac English, are the regular “Trustees of the Anti-Pado-Baptist Society, meeting in the town of Salem, in the State of New Jersey,” and the residue of whom are members of or connected with the said society, have worshipped in the said new building with the said regular Baptist church.
    But these defendants do expressly deny that they ever seceded from the Baptist church, or departed, either in worship, discipline, faith, doctrine or church government, from the regularly established and well-known usages of the said Baptist church, as held in the United States by all Baptist churches of sound religious faith and good standing. And these defendants do deny that they have erected or established amongst themselves a new body within the limits of the ancient society, as the complainants have set forth in their bill of complaint; but they affirm it to be true, and insist that they, the said defendants, are and have always been connected with the ancient regularly constituted body corporate and politic, incorporated in the year 1786, and that the same is now and hath always been in full force.
    And these defendants further answering admit that in consequence of an erroneous belief of some of the Baptist society that the incorporation of July 3d, 1786, had not been recorded, a search was instituted, and on several occasions prior to the year 1840, and since, efforts were made to find such record, but without success, and it was the universal wish of all the church and congregation that some steps should be taken to supply an omission of consequence to the whole society; no dissenting voice was heard, and all united on this as proper and necessary. Accordingly, counsel was sought and given, and on or about the 4th of February, 1844, the church and congregation, after legal notice had been duly given, and under the full but erroneous belief that no' such record was in existence, held a meeting, elected the same trustees, assumed the same name as was originally given in 1786, took the oaths, and certified the proceedings to the clerk of the county, as required by law.
    And these defendants further answering say, that within a very short time after the said trustees had been chosen as aforesaid, and before any act or thing had been done in any degree affecting the said Baptist society, or its property, the record of the act of incorporation of July 3d, 1786, was found inserted in one of the road books of the clerk’s office of the county of Salem, instead of the book of miscellanies, where such proceedings are in all other cases recorded; but these defendants earnestly insist, that William Johnson, William R. Seagrave, Henry Freas, John W. Challis and Stephen Mulford, then living, and all of whom, on the 4th day of February, 1844, were regular trustees of the said corporation, and are so admitted by the said complainants in their said bill of complaint, did not, on that occasion, or at any other time, resign their office of trustees, or do any act or thing to give up, abate, destroy or surrender any of their rights, powers, privileges or duties under the said original charter of July 3d, 1786. And that on that day the said several persons were severally in the full exercise of all the rights and powers which were ever conferred upon them by operation of law, under the said ancient act of incorporation; and that the same rights, powers and privileges still continue in full force, and are held to the same degree and extent by the said William Johnson, William E. Seagrave, Henry Freas, John W. Challis and Isaac English, who have been duly elected to fill a vacancy and perpetuate the succession.
    And these defendants further answering say, that these defendants consider the said William Eobinson to be a regular trustee under the charter of 1786, and he has acted as such with the said William Johnson, William E. Seagrave, John W. Challis, Henry Freas and Isaac English, since the said fourth day of February, A. ix 1844, by superintending the erection of the said new building, the sale tif the town lots devised by Mary Dunlap, attending said sales and fixing conditions of sale, and signing the same with his own proper signature, by attending at the new meeting-house since its completion at the time of renting the pews, and aiding the other trustees in renting the same, and sundry other official acts ; and the defendants do aver that the said William Eobinson never did dissent, as far as they know or believe, to the erection of the new meeting-house, but, on the contrary thereof, was, as these defendants believe, entirely willing that it should be erected, and was one of the building committee, and active in its construction ; and that the said William Eobinson, on the day of the dedication of the new edifice, to wit, on the twelfth day of December, a. d. 1846, attended a meeting of the trustees held in the said new meeting-house, took part in the business and voted with the said trustees, refusing to give to the said Henry Miller, or any of his associates, the keys of the old house.
    And the said defendants further in answering say, that at the meeting of the said Baptist congregation, held on the said fourth day of February, A. D. 1844, for the purpose of electing trustees, as above set forth, Henry Miller, William Brown and others of the said complainants were present and took part in all the proceedings, without dissent or objections, and that every act and proceeding had and done on that occasion, was conducted in & peaceable, harmonious and proper spirit; that it seemed to be the well-meant effort of a Christian church and congregation to correct what was then erroneously supposed to be an omission affecting their corporate rights, and as such acquiesced in by all the church, and by all the members of the congregation in the proper spirit, and that the mistake having beén very soon discovered, no use was made of the said proceedings, and no vote or act given, done or attempted under the said act of February 4th, 1844, in the slightest degree affecting the said society or conflicting with the original act of 1786, and that the said trustees who were in office prior to that day, are so still in the full exercise of all their corporate rights, and that they constituted a majority of the board of trustees with whose concurrence all official acts have been since transacted.
    And these defendants further answering say, that after the said Baptist society had, by their aforesaid resolution, removed their regular place of worship to their new edifice, the old meeting-house was locked up on Sabbath day, after the usual worship j the gates also were locked by Isaac English, the president of the board of trustees, and every part of the said church property, including the burial-ground, was in the peaceable possession of the said trustees, as the same had always been in their predecessors’ under the ancient charter of 1786, and so remained until, to the great surprise and regret of the said trustees, the said Henry Miller, William Brown, Adam H. Siekler and others of the complainants, aided by a number of evil-disposed persons, on or about the thirteenth day of December, A. x>. 1846, forcibly, illegally, and with strong hand, broke and entered the yard gates of the said old meeting-house, so in possession of the said ancient society or corporation; and on the nineteenth day of December, A. D. 1846, broke and forcibly entered the old meeting-house, and put on new locks and fastenings, setting at defiance the lights of the said corporation, and disregarding the laws of the land, and uttering threats of personal violence against any of the trustees who should attempt to interfere with them.
    And the said trustees, defendants aforesaid, after time for reflection and consultation-, and deeply impressed with the injury with such conduct of professing Christians was calculated to do to the cause of religion, and really desirous as long as possible to avoid collision and controversy with the said complainants, determined that they would permit them to worship in the said house, with the earnest hope that the Dispenser of all good would so far enlighten their understandings and subdue their evil inclinations that harmony might again be restored and Christian union reestablished j but at the same time these defendants fully admit, as the complainants allege in their bill of complaint, that the said trustees, defendants, “have declared themselves lo be the only ancient corporation ” of the said Baptist church, “ and as such entitled to, and claiming the use, possession and property of the original body corporate and politic; ” but these defendants deny that the'said trustees, or any of the defendants, have threatened to use any force or violence, or to make any illegal or other entry upon tiie said premises, unless compelled in self-defence to save their altars from violation, and to secure the right of interment for the dead.
    And these defendants further answering say, they admit that a vote was taken, as the said complainants have in their bill of complaint alleged, as to the propriety of tearing down the old house and using the materials thereof and that it was decided ia the negative; but these defendants, though many of them thought and all of them are now convinced by sorrowful facts, that it would have been much better to have torn it down, yet they all submitted without a murmur to the will of the majority, and have since abandoned any idea of tearing down the said old house, nor have they, or any one of the said defendants, any intention to tear it down or otherwise injure it.
    And these defendants further answering admit that the said Henry Miller and his associates did meet and hold such pretended election of trustees, and take such oaths as the said complainants have in their said bill set forth; but these defendants do insist, and are ready to maintain and prove as this honorable court may direct, that such election was utterly without legal authority and void; that at the time of such meeting and pretended election, there was but one regular Baptist church and congregation in the town of Salem, and that was the church and congregation to which these defendants were then and are now attached; that the said Henry Miller and his associates, at the time of said meeting, and still are but a small minority of the Baptist society to which they were formerly attached, and from which they are nowseceders and disorganizers • that they have violated the discipline and church government of the Baptist church, have broken their articles of church government, and brought contempt upon the cause of religion.
    And these defendants further answering say, that.at the time of such meeting and pretended election, the said Henry Miller» William Brown, George V. Mitchell, and such of their associates »s had formerly been members of the Baptist church, were under the censure of the regular Baptist church in the town of Salem, for breach of their church covenants and unchristianlike conduct, and that they have since been disowned and deprived of membership, and that not one of the said complainants is now a member of a Baptist church, according to its ancient faith, usages and discipline, nor could the said Henry Miller^ or any of his associates, be now recognized as a Baptist church by any Baptist church in the United States, of good faith and standing ; nor could they be admitted as a Baptist church into the Baptist Association of the State of New Jersey, or be recognized as such, or admitted to any of the privileges of a Baptist church, according to the ancient usages, faith, discipline and church government of said society.
    And the said defendants further answering admit that there is connected with the said old meeting-house, and adjacent thereto, a burial ground belonging to the said ancient Baptist society, and these defendants insist that for more than half a century the members of the said Baptist society, and persons connected therewith by ties of blood and otherwise, have been buried there. Amidst all the conflicts of party, whether in church or state, and in all the past history of this ancient society, no human being has heretofore been found, who sought to shut out from interment in this resting place of the dead, any of the members of said Baptist society. In this consecrated ground the bones of those dear to these defendants are laid; there have been set apart family lots for burial places for some of these defendants, and others have erected family vaults, holding the remains of their loved and. lost: there, side by side, having been laid father and mother, husband and wife, parent and child, brother and sister ; and there is not one of these defendants that cannot point out, in that ancient burial-ground, the grave of a relative or friend, nor is there one who has not hoped, when his own career on earth was ended, to be laid in that burial-ground of his ancestors, by the side of those whom they so loved on earth, and hoped to meet in Heaven. And these defendants do, with ail possible respect for this honorable court, firmly protest that the right of interment for the dead is a ¡nos! sacred privilege, which ought not to be interfered with or prevented by any order of this or any other court; that it is so esteemed and regarded in every land beneath the sun, where Christianity is established, and that to deny it to these defendants, and to more than one thousand souls, who, as these defendants solemnly insist, are this day entitled to interment in the burial-ground of the Baptist society at Salem, of which they are wholly deprived by the injunction of this court, is a wrong of the most alarming and serious character, and calls for the prompt action of this honorable court, and more particularly so when, as these defendants insist, there is no other burial-ground for the Baptist society within six miles of the town of Salem, and none intended or expected to be made at their new meeting-house, or elsewhere. And the said John W. Challis, Charles Mulford, John P. McCune, and Jacob Mankin, answering for themselves and the said defendants, say that the board of trustees of the said Anti-Psedo-Baptist Society, at a regular meeting of said corporation, appointed the said John W. Challis superintendent of the burial-ground; and it became one of his duties, when application was made for burials, to point out the place of interment; that the said Jacob Mankin was the gravedigger of the said Baptist society, and that Charles Mulford and John P. McCune were members of the said church, and interested in all its concerns; that on the said several days and times set forth by the said complainants, funerals had been appointed, the bodies of the dead were awaiting interment in the said burial-ground, when it was found necessary, in order to secure the right of Christian interment for the dead, and counteract the inhuman conduct of the said Henry Miller and his associates, that the gates should be opened, and the ground broken and the graves dug, which was accordingly done, under the full sanction and authority of “The Trustees of the Anti-Psedo-Baptist Society, meeting in the town of Salem, in the State of New Jersey,” as they lawfully might do. But these defendants expressly deny that they took to their aid any “posse,” or used any violence, or uttered any threats or menace, as alleged by the complainants but that they proceeded in a quiet but firm manner to the performance of a painful but conscientious duty, and in a manner calculated to prove and maintain their own rights, which they know to be both sacred and well established.
    And these defendants, further answering, admit that the said Henry Miller and his associates did apply to the Supreme Court of New Jersey, at or about the time specified, to obtain the “leave of the court for the attorney-general to exhibit an information in the nature of a quo warranto against the said William Johnson and others, for usurping, intruding into, and exercising the office of trustees of the Anti-Paedo-Baptist Society.” And these defendants admit that, after argument, the said Supreme Court did not grant the leave asked for, but did grant a rule to show cause, with leave to take affidavits, to be heard at the next term of the said Supreme Court. And these defendants had well hoped that the said complainants would have been content to await the full examination and decision of the said cause and controversy, in all its bearings, before tribunals competent to settle this dispute, and where these defendants will be ready and willing to meet them, and where these defendants insist that the respective rights of the two parties can be fully settled, and that the said Henry Miller and associates would have not invoked the extraordinary power of this honorable court, to harass, oppress, and injure these defendants, and to obtain, for the first time in the history of the State of New Jersey, an injunction restraining and preventing the right to bury the dead in their ancient burial-ground.
    And these defendants admit that Mary Dunlap did, about the time and in the manner alleged by the complainants, make such devise of real estate to the said corporation as the complainants have in their said bill of complaint set forth, and these defendants insist that the said Mary Dunlap meant and intended to vest in the trustees, acting in concert with the said Baptist church, a discretionary power to sell the said lots so by her devised, whenevcr, in the opinion of the said “ trustees,” with the said church, 's it would be most to the advantage for the support of a minister for the said church,” and the said trustees, having derived from the said lots but a very small annual income, and believing that the support of the minister could be increased, and the interests of the church promoted by a sale of the said lots, took measures to bring the subject before the church at one of their regular monthly church meetings, and, at such meeting, the church united with the said trustees in Ihe belief that it would be most to the advantage and for the support of a minister, for the said church to sell the said lots, and a resolution was passed, without a dissenting voice, to sell the said lots, and accordingly the trustees sold a portion of-the property so devised by Mary Dunlap, and used the funds as authorized to do by the resolution passed on the 20tli of December, 1845, and hereinbefore set forth, and the defendants insist that the sale of said lots has been found greatly to ihe advantage of the minister j that while the said lots were rented and applied, with the pew rents of the old meeting-house, to the support of the minister, the whole annual receipts never exceeded $300, and since the erection of the new edifice they have greatly enlarged accommodations; many persons who never before attended have joined the congregation, and the annual revenue to be derived from all their pews will be $1066 j the larger number being already rented for the sum of $830 or thereabouts.
    And these defendants insist that the proceeds of the sale of ihe said lots has had the effect to increase the salary of the pastor of the said church, and that all the funds received by the said defendants, trustees, from the rent of pews in their new edifice, have been applied to the support of the gospel, the payment of clerical services, and other church purposes; that no part of the said fund so derived under the will of Mary Dunlap, has been wasted or mismanaged; and these defendants do insist that the said trustees have faithfully carried out the will of Mary Dunlap, according to its true intent, spirit and meaning.
    And these defendants, further answering, say that the said Henry Miller, William Brown and Adam H. Sickler, three of the complainants, have, from time to time, since the said 4th day of February, 1844, acknowledged and recognized the full right and official power of the said William Johnson, William R. Seagrave, John W. Challis, Henry Freas and Isaac English, as trustees of the Anti-Psedo-Baptist Society aforesaid. That the said Henry Miller, in the fall of 1846, on the death of his son, applied in the usual mode to the said trustees through George Kirk, their sexton, and obtained leave of burial in their yard ; that the said Henry Miller and William Brown, in the month of, October or November, 1846, were appointed by the regular Baptist church a committee to make assessments on members for expenses for said church, which office they accepted and the duties of which they performed without objection to the authority or power of said church; and the said Adam H. Sickler, on or about the-day of--, 1847, and since his pretended election of trustee, has paid to Jonathan Belton, an officer of the said regular Baptist church, acting with these defendants, the church-tax due from his wife to said Baptist church, and at the same time the said Adam H. Sickler paid to Henry Colgar, the regular appointed collector of said Anti-Pssdo-Baptist Society, the pew rent due from said Adam H. Sickler to the said Baptist church for his pew in the old house, thus admitting to its full extent the rights of these defendants as the regular Baptist church, und.er the original ancient charter of July 3d, 1786.
    And the said John W. Challis, answering for himself and the-said defendants, says that he has not at this time any distinct recollection of the different conversations that he has held with the several persons as set forth in the said bill of complaint, but he expressly denies that he has ever said to William Darmon, in his lifetime, or to “ an elderly respectable citizen of the town of Salem,” or to a “ clergyman of the Baptist church,” such things as are alleged by the said complainants in their said bill of complaint in that behalf.
    And the said Henry Freas, answering for himself and the said defendants, admits that he has said to Henry Miller that it would be better for the church to divide, and that they would both prosper better separated, or words to that effect ] but the said Henry Ereas expressly denies that he ever said to Henry Miller “ that Isaac English and John N. Cooper were not legal trustees, as they had been elected under the new incorporation.”
    And the said William E. Seagrave, answering for himself and the said defendants, expressly denies that he ever said to any person in reference to any notice or advertisement of any kind whatever, posted up on the yard gate or elsewhere, “ that they did not want anybody to read it,” “ they were afraid,” nor any like expression whatever.
    And these defendants deny all unlawful combination and confederacy in the said bill charged.
    On the 17th June, 1847, a motion was made to dissolve the injunction.

      Mr. Ealdn offered to read affidavits in support of the injunction, to contradict which he said new matter was set up in the answer not responsive to the bill.
    The counsel on the other side said that they should not rely on anything contained in the answer which was not responsive to the bill, if it contained anything not responsive.
    The court said the affidavits could not be read.

      R. P. Thompson and J. C. Hornblower, in support of the motion to dissolve.

      A. L. Eakin and P. D. Vroom, contra.

   The Chancellor.

The controversy is between two bodies of men, each claiming to be the Trustees of Anti-Paedo-Baptist Society, or in another aspect, between two parties, one of which claims that the other has seceded. Each body claiming to be the trustees, or each party, by the body of men it claims to be the true trustees, asserts the right to the possession and care of the property of the Anti-Paedo-Baptist Society. This question of property and right of possession belongs to another tribunal.

The interposition of this court, by injunction, was asked by the body or party claiming to be in possession of the old meeting-house and burying gronud of the Anti-Paedo-Baptist Society, to restrain any entry thereon without their permission. When the answer came in, the true nature of the controversy was more fully disclosed to the court. And the question now presented is, whether the injunction granted on the reading of the bill should be continued, in view of the case as it now appears on the bill and answer.

It appears from the bill and answer, that, the party in possession of the old building and burying ground do not refuse permission for funeral services and funerals, by the other party, from any unwillingness that such services and burials should be performed and made there; nor on the idea that such services and burials would be any serious injury to the premises. All they require is, that the other party shall ask permission to do so, and pay the usual charger by way, I suppose, of recognizing their right.

The other party refuse to moke such recognition by asking permission..

As to these funeral services and burials, therefore, the parties, as the case now appears, are standing upon no vital or very essential question. These funeral services and burials, without permission, would be at most mere trespasses, doing not only no irreparable, but no serious injury.

Under these circumstances, I think it is not a case in which this court should continue its interposition by injunction.

Trespasses, or alleged trespasses of this char acto, must be left to the law tribunals.

The injunction will be modified by being dissolved, sa U this part of it.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    IN THE MATTER OF THE APPLICATION OF JOHN I. HOPPER FOR THE APPOINTMENT OF COMMISSIONERS TO ASSIGN DOWER TO MARIA HOPPER.
    Testator died seized of lands in two counties, devising Ms lands in one county to A, and directing his executors to sell all the rest of Ms lands. An application by A to the Ordinary for the appointment of commissioners to assign to the widow of the testator her dower in the lands of which the testator died seized, was denied. Semble — -The word “ purchaser,” in Section 17 of the “ Act relative to dower,” does not include a devisee.
    Jacob I. Hopper presented a petition to the Ordinary, setting forth that John I. Hopper died seized of lands situate in the counties of Bergen and Hudson, leaving Maria Hopper, his widow, entitled to dower therein; and that he, the petitioner, is one of the heirs-at-law and devisees, and praying the appointment of commissioners to assign to the said widow her dower in the lands whereof the testator, the said John I. Hopper, died seized.
    The notice of the application was, that John I. Hopper, one of the heirs-at-law and devisees, would apply for commissioners.
    An action was pending in the Supreme Court, brought by the widow against the petitioner for her dower in the lands in Bergen county.
    The application was opposed.

      E. R. V. Wright and W Halsted, for the application.
    P. D. Vroom, contra.

   The Chancellor.

The old act, to be found in Elmer 145, provides that it shall be lawful for any widow entitled to dower in any lands of which her husband died seized, or for any heir or heirs, or guardian of any minor child or children, entitled to any estate in said land, to apply to the Orphans’ Court for the appointment of commissioners to assign to such widow he r dower in the said lands. Devisees are not mentioned in the act.

It is further provided by the said act, that where a husband shall die seized of lands in two or more counties, it shall be lawful for the Ordinary or Surrogate-General to appoint commissioners to set off the dower.

The Revised Statute (Rev. Stat. 75, § 17,) provides that it shall be lawful for any widow entitled to dower in any lands of which her husband died seized, or any heir or heirs, or guardian of any minor child or children, entitled to any estate in the said lands, or for any purchaser thereof, to apply to the Orphans’ Court for the appointment of commissioners to assign dower. And Section 21 of this act provides that when a husband shall die seized of lands in two or more counties, it shall be lawful for the Ordinary to appoint commissioners.

The question presented is, whether, on the application of a devisee of the lands in Bergen, for the appointment of commissioners to assign dower in all the lands of which the testator died seized in both counties, the Ordinary can make the appointment.

It is difficult to understand what the intention of the legislature was in introducing the words “or for any purchaser thereof,” in the last statute. The provision of the statute is, “ That it shall be lawful for any widow entitled to dower in any lands of which the husband died seized, or for any heir, &c., entitled to any estate in the said lands, or for any purchaser thereof,” &c.: this is the connection in which the words are found. Is the word purchaser, in this connection, to be taken as including a devisee ?

If the husband dies intestate, the estate descends to the heir, or to all the heirs together. If the heir, or heirs all together, sell to a purchaser, there can be no difficulty in allowing him the same right to apply for commissioners to assign dower as the heir or heirs had. If one of several heirs sells his interest, the purchaser from him would stand in his place, in reference to any proceedings for the assignment of dower.

But where there is a will devising a part of the testator’s lands to one, and a part to another, can either devisee apply to the Orphans’ Court and obtain an order for commissioners to assign dower in all the lands of which the testator died seized ; or, if the testator devises his lands in one county to one person, and his lands in another county to another person, can either devisee apply to the Ordinary and obtain an order for commissioners to assign dower in all the lands, in both counties ?

It is clear that, under the original act, a devisee could not apply for commissioners to assign dower. The omission of devisees in this act shows, as we must infer, that the legislature were aware of the embarrassments which would be produced by extending that act to devisees. They are many, and would be very perplexing, and, in view of them, I cannot suppose that the word “ purchaser,” in the late act, was intended to include devisees.

The petition and notice in this case are, I think, defective. They state that the application is made by the petitioner, as heir and devisee, without any explanation.

There is also difficulty growing out of the pendency of an action in the Supreme Court, by the widow, against the petitioner, for her dower in the lands in Bergen county, but I do not find it necessary to consider this objection particularly.

Application denied.