§ 81. Of the rights of pewholders in religious societies.In this country a church may be built by a parish, an incorporated society, or by an individual. "The persons who built a meeting-house in either of these ways may retain the fee and maintain an action of trespass for an injury to yard or buildings, and the right to a seat or to the pews may be in other individuals entirely distinct from them. The interest of the pewholders is several. They have an exclusive right to occupy a particular seat, to the exclusion of all others, when the house is used for the purpose for which it was erected." "Pews constitute a subject of peculiar ownership. They are defined to be inclosed seats in churches, and it is said that according to modern use and idea they were not known till long after the Reformation, and that inclosed pews were not in general use before the middle of the seventeenth century, being for a long time confined to the family of the patron." In England the right of property in a pew is a mere easement or incorporeal right, and hence the English doctrine that an action on the case only will lie for disturbance of the occupant. But in this country the owner of a pew has an exclusive right to its possession and enjoyment for the purpose of public worship, not as an easement, but by virtue of an individual right of property, derived in theory at least, from the proprietors of the edifice or freehold, and hence trespass quare clausum lies for a violation of the owner's right of possession. It is now well settled in this country, that in the absence of any statutory provisions, this kind of property is to be considered as real estate in all cases arising under the statute of frauds, or of conveyances, or of descents and distributions. The rights thus acquired are, however, limited, and are subject to

1 Kellogg v. Dickinson, 18 Vt. 266; "Bakersfield Congregational Soc. v. Baker, 15 Vt. 119; s. c. 40 Am. Dec. 668.

2 Kellogg v. Dickinson, 18 Vt. 266; quoted in O'Hear v. De Goesbriand, 33 Vt. 593; s. c. 80 Am. Dec. 653.

3 Hook's Church Dict. tit. "Pews," quoted in O'Hear v. De Goesbriand, 33 Vt. 593; s. c. 80 Am. Dec. 652. 4 O'Hear v. De Goesbriand, 33 Vt. 593; s. c. 80 Am. Dec. 653.

5 O'Hear v. De Goesbriand, 33 Vt. 593; s. c. 80 Am. Dec. 653, citing 1 Greenleaf's Cruise on Real Property, 44; Shaw v. Beveridge, 3 Hill, 26; s. c. 38 Am. Dec. 616; Jackson v. Rounseville, 5 Met. 127; Kellogg v. Dickinson, 18 Vt. 266; Hodges v. Green, 28 Vt. 358; Barnard v. Whipple, 29 Vt. 402; s. c. 70 Am. Dec. 422; First Baptist Church v. Bigelow, 16 Wend. 28; Vielie v. Osgood, 8 Barb. 130.

the right of the society to have the meeting house in such place as will best accommodate the whole. A reservation of this right is implied in the grant of a pew in a house of public worship. The convenience of individuals must in such cases be subject to the general convenience of the whole, and whoever purchases a pew, purchases it subject to this right of the society. Pewholders have merely a qualified and usufructuary right in their pews, subject to the right of the religious society to remodel them, and to alter the internal structure of the buildings, or enlarge or remove it, or sell the edifice and rebuild elsewhere. It is said, however, that in case of altering or removing a pew, compensation should be tendered the holder.3

§ 82. Of the rights and powers incident to membership in cost-book companies.- Cost-book companies are associations of persons organized for the purpose of working mines or lodes. Having assembled and decided upon the number of shares into which their capital is to be divided and the number of shares to be allotted to each member, they appoint an agent, commonly called a "purser," to manage the affairs of the mine. The minutes of their proceedings are entered in a book called the cost-book, and are signed by all present. A license to try for ores for twelve months, or some short period, is then obtained, followed, if the search be promising, by a "sett," that is, a lease of the minerals or a license to dig, or

1 Fisher v. Glover, 4 N. H. 180, per Clark, J. Cf. “Property in Church Pews," by W. C. Schley, 19 Am. L. Reg. (N. S.) 1, 65; "Rights of Pewholders," by James A. Seddon, 15 Cent. L. J. 101.

2 Sohier v. Trinity Church, 109 Mass. 1; Guy v. Baker, 17 Mass. 438; s. c. 9 Am. Dec. 159; Daniel v. Wood, 1 Pick. 102; s. c. 11 Am. Dec. 151; Fassett v. First Parish in Boylston, 19 Pick. 361; s. c. 3 Kent. Com. 533; Kimball v. Second Parish in Rowley, 24 Pick. 347. "A pewholder's right is only a right to occupy his pew during public worship: and when the meeting-house is in

such a ruinous condition that it can not be and is not occupied for public worship, he can recover only nominal damages for injury to his pew." Howe v. Stevens, 47 Vt. 262. "Pewholders, in the ordinary cases of meeting-houses or churches, built by incorporations under the statute, have only a right of occupancy to their seats, subject to the superior right of the society owning the pew." Perrin v. Granger, 33 Vt. 101. See further "Pews or Seats in Parish Churches," 1 L. Mag. 574, and 2 L. Mag. 1.

James v. Towne (1878), 58 N. H. 462; s. c. 42 Am. Rep. 602.

both, granted by the land owner to the purser, or to one or two of the members, without any expression of trust on their part for the rest, or any other person, for a term of years, commonly twenty-one, stipulating for the annual payment of some portion of the ore raised to the land owner.1 There being a purser, or manager of the mine, all acts are in general done by him, such as ordering the supply of the necessary materials for working the mine, hiring of labor; and a shareholder has no power to bind his co-shareholders by any contract for materials, not necessary, nor for money lent, nor upon bills of exchange, nor has the purser for money lent, or upon bills of exchange. The rules are simple, and all the concerns of the partnership are entered in the cost-book; and all the shareholders meet and order their general affairs, without the assistance of any directing body, and consider and resolve upon the purser's reports, made to them at their meetings, which are seldom at greater intervals than two months. Sometimes there is a committee of management, but they are only appointed from general meeting to general meeting; they have no power to make calls nor to declare dividends, and all their acts are subject to the review of a general meeting.2

1 Wharton's Legal Dictionary, tit. "Cost-Book Mining Companies."

2 Wharton's Legal Dictionary, tit. "Cost-Book Mining Companies."

§ 83. Introductory.- In companies having capital stock, there is no power of expulsion independently of statutory or charter provisions. Such a company has no power to pass by-laws respecting the expulsion of members. Membership, generally speaking, consisting merely in owning a share in the capital stock,3 a shareholder can not be deprived of his right to participate in the corporate affairs save by forfeiture of his stock for failure to pay calls and assessments. But even this power of forfeiture does not exist independently of charter or statutory authority, and can not be created by a

In re Long Island R. Co., 19 Wend. 37; s. c. 32 Am. Dec. 429; Evans v. Philadelphia Club, (1865) 50 Pa. St. 107; State v. Chamber of Commerce, (1879) 47 Wis. 670; Dickinson v. Chamber of Commerce, (1871) 29 Wis. 45, in which it is held that there may be a lawful expulsion under a valid by-law. Cf. upon the "Power of Expulsion "contributed article by A. G. McKean, in 17

L. J. (Eng.) 205; "Remedies for Improper Expulsion and Suspension from Societies and Fraternities," by Eugene McQuillin, (1890) 30 Cent. L. J. 327.

2 People v. Saint Francisco's Benevolent Soc., (1862) 24 How. Pr. 216; Roehler v. Mechanics' Aid Soc., 22 Mich. 86; Green v. African Methodist Epis. Soc., 1 Serg. & R. 254. 3 Vide supra, § 61.

by-law,' the remedy of the corporation at common law being by an action against the shareholder to recover the amount due upon the stock. A clear distinction is recognized between the powers of corporations and that of non-incorporated societies to expel members. Where a corporation expels a member, whether by virtue of express power under its charter, in pursuance of its by-laws, or through the inherent power attaching to it, the courts will, at the instance of the expelled member, investigate the action of the corporation, determine whether it acted in accordance with its power, whether the by-laws were legal and reasonable, whether the expulsion was fair and just, and whether the cause of expulsion was such as would produce an injury to the corporation. As may be inferred from the general constitution of clubs, in the absence of any express rule, there is no power of expulsion inherent in the members of a club, for such a power forms no part of the written contract by which the members are bound; and therefore, even an otherwise unanimous vote of the club could not expel a member who refused to resign. It is, however, usual for clubs to have a rule giving the committee a power of requesting the resignation, and in case of refusal, of expelling members. The common form of what is usually termed "the expulsion clause" gives this power to the committee "if, in the opinion of the committee," or that of a certain specified number of members of the club, who shall

1 Perrin v. Granger, 30 Vt. 595; Williams v. Lowe, 4 Neb. 382; In re Long Island R. Co., 19 Wend. 37; s. c. 32 Am. Dec. 429; Cartan v. Father Matthew &c. Soc., 3 Daly, 20; Hill v. Nisbet, 100 Ind. 341; Westcott v. Minnesota &c. Co., 23 Mich. 145; Adley v. Reives, 2 Maule & S. 53; Dixon v. Evans, L. R. 5 H. L. 606; Clarke v. Hart, 6 H. L. Cas. 633; Campbell's Case, L. R. 9 Ch. 1; Kirk v. Norwill, 1 Term Rep. 118. See, however, Lesseps v. Architects' Co, 4 La. Ann. 316, where it was held that the acceptance of certificates at the foot of which was printed a by-law providing for for

feiture was a tacit acquiescence in and submission to the by-law." Cf. Knight's Case, L. R. 2 Ch. 321; Perrin v. Granger, 30 Vt. 595; Kennebec &c. R. Co. v. Kendall, 31 Me. 470.

2 This subject will be treated in detail in connection with CALLS AND ASSESSMENTS.

3 Hiss v. Bartlett, 3 Gray, 468; s. c. 63 Am. Dec. 768, and the annotations, 772-778.

4 Labouchere v. Wharncliffe, 13 Ch. Div. 346; s. c. 28 W. R. 367; s. c. 41 L. T. 638; see review of this case, Canada L. Jour. Oct. 15, 1881, 381.