Leahey v. Williams , 141 Mass. 345 ( 1886 )

W. Allen, J.

The Church of the Immaculate Conception was a Roman Catholic church belonging to the diocese of Boston. The defendant was the bishop of the diocese, and held the title to the real estate used for the church.

The pastors of the church borrowed .money of the plaintiff, and of many other persons, for the use of the church, upon written contracts of repayment in the form of deposit-books in the name of the church. As the church had no corporate existence, and was incapable of contracting or of holding property, there was no validity in the contracts as between it and the plaintiff. The plaintiff’s case is, that the defendant is the principal, on whose credit the pastors borrowed the money. The only exception we need consider is that to the refusal of the court to rule that the evidence was not sufficient to charge the defendant.

The evidence was undisputed, that the money received from the depositors was mingled with the revenues of the church, and went to constitute a common fund, out of which were paid the ordinary expenses of the church, debts of the church, including payments to depositors, and payments for real estate.

The defendant, in accordance with the usages of the Roman Catholic Church in this country, held the legal title to all the real estate of the church. The court properly instructed the jury, that, if the defendant borrowed the money by his agents, and put it into real estate, it was immaterial whether such real estate was held by him in trust, or as his individual property. No inference, however, that the money deposited belonged to the defendant can be drawn from the fact that the pastors applied a portion of it to the purchase of real estate for the church, the legal title of which was put in the defendant. There was no evidence that the defendant had any connection with the real estate, or with the moneys deposited by the plaintiff or others, except what arose from his relations to the church and its pastors as their bishop. There was no' express authority given by him to the pastors to borrow the money on his credit, and all his acts in relation to it are properly referable to his official character as bishop.

The argument is, that the pastor of-a Roman' Catholic church exercises, in regard to the church over which he is placed, only the delegated authority of the bishop, and acts only as agent of the bishop; and therefore that those transactions are to be regarded as made by the bishop himself. Assuming, without deciding, that in such case the bishop would be personally liable on the contracts made by the pastor in the name of his church, we do not think that there was evidence in this case to prove that the pastor of a Roman Catholic church is, in regard to the pecuniary affairs of his church, the agent of the bishop, exercising for him rights belonging to him. The legal rights of the bishop in regard to the temporalities of a church are not prescribed by the municipal law, and must arise, if at all, from the relations created by ecclesiastical law. What that law is was matter of evidence, and could be known only by the very meagre and general reference to it in the evidence. The testimony of the defendant, the only witness to it, that, under the canon law, which is the law of the Roman Catholic Church, the bishop has full power in the administration of church affairs; that there are no separate parishes; that the diocese is the parish, and the bishop the universal parish priest; that all power possessed by priests or pastors is delegated from the bishop; that the clergyman in charge of a church for the time being has charge of all its temporalities; that it belongs to such pastor to make all contracts relating to the temporal affairs of the church, and he is not the agent or servant of the bishop in such matters; that the only control of the bishop over the pastor is by ecclesiastical discipline; and that a bishop cannot remove a priest except for cause, and by ecclesiastical discipline, — will not permit an inference that the legal possession and control of the temporalities of a church, and the right of making contracts in regard to them, are vested in the bishop, and can be exercised only by him personally, or by his agent.

The decrees of council put in evidence do not afford a different conclusion. The supervision required of the bishop over the contracting of debts by priests does not appear to be the supervision of a legal principal over his agent, but of an ecclesiastical superior over the conduct of his subordinate, and the debts which a bishop is forbidden to allow a priest to contract without written permission do not appear to be the debts of the bishop himself. It is in accordance with the decree that bishops acquire a title to the real estate of the churches, but they do not derive title from it. The authority which the bishops delegate to the priests must be authority vested in them under ecclesiastical law, and prima facie is ecclesiastical authority, and must be presumed to be so, in the absence of all evidence to the contrary.

It being a rule of the ecclesiastical law, to- which the church was subject, that a pastor shall not contract debts in the name or for the sake of his church without the written permission of the bishop, such written permission cannot be evidence that debts contracted under it are the legal debts of the bishop. Nor can the fact that, after such debts are contracted in the name of the church, the bishop procures money for paying them by mortgaging the real, estate of the church of which he has the legal title, and on his personal security, be sufficient to prove that he is under a legal liability to pay them; nor the fact that a bishop receives from a dying pastor funds of the church, which are paid over to the pastor’s successor, be sufficient evidence that the funds belong to the bishop.

It is argued that the defendant must he liable, because, if he is not the party to the contract, there can be no contract and no legal liability. The questions whether any one other than the defendant is liable on the contract, or whether, if there be no contract, any one is liable to the plaintiff in tort, or whether the only remedy of the plaintiff is against the fund, are not before us. It cannot be assumed that the plaintiff could not have given credit to the fund. The fund would have been the ultimate resort for payment, had the church been incorporated under the statute, or had the deposits been in an incorporated savings bank; and it is not necessary that there should have been any personal liability on the contract in order that there should be a remedy against the fund.

But these questions need not be discussed. In order to charge the defendant, it must be shown that he is liable on the contract; it is not sufficient that no one else is a promisor on it. We think that the evidence was not sufficient to hold the defendant, and that the instructions asked to that effect should have been given.

Exceptions sustained..