Hubbard, J.
It being admitted that the levy made by the demandant is free from objection as to matters of form, the question turns upon the validity of the tenants’ title; the estate having been, just prior to the deed under which the tenants claim, the property of the judgment debtors, and, as such, was attached and afterwards levied upon by the demandant.
It is agreed, for the purposes of this action, that the tenants are a religious society in the city of Lowell, regularly organized, and, as such, capable of purchasing and holding real estate for religious purposes. They claim title to the premises, on a part of which the demandant made his levy, by force of an indenture dated October 27th 1842, and made between the Proprietors of the First Freewill Baptist Meeting-house in Lowell, of the first part, and themselves, of the second part, and of which premises they were in possession under a lease made between the same parties, and bearing date May 19th 1841. The lease was read in evidence on the trial, and was admitted, not as an independent title under which the tenants claimed, but as evidence bearing on the indenture of October 27 th 1842. If the last indenture can be sustained, the verdict must be confirmed ; otherwise, it must be set aside, and a new trial granted.
This last indenture purports to be executed by Nathaniel Thurston, agent, of the one part, and by Jonathan Woodman, elder, and Ira Caverly, Cyrus Latham, Lorenzo G. How, and Levi Gilman, deacons, of the other part.
Many points, growing out of the transaction, have been discussed ; but the principal question arises on the authority of Nathaniel Thurston to execute the deed, on the part of the Proprietors of the First Freewill Baptist Meeting-house in Lowell, to the tenants. The facts on which his authority rests, as [309]*309derived from the records of the corporation, sufficiently appear in the statement of the evidence given at the trial. And the question is, whether the meeting of the corporation on the 14th of October 1842, or the adjournment of it at which the votes passed authorizing the sale, and appointing said Thurston to execute the deed, was a meeting valid and binding, as regards the creditors of the corporation; and if not, whether this demandant can take advantage of it.
And first, viewing the proprietors of the meeting-house as a religious society, they are authorized, like other corporations, “ to make by-laws and regulations for their own government, and for the due and orderly conducting of their affairs and the management of their property.” Rev. Sts. c. 44, <§> 1. And their meetings are to be. “ warned in such manner as the society shall, by any by-law or vote, provide ; and when they shall make no such order, the meetings shall be warned in such manner as their assessors or standing committee shall, in their warrant for such meeting, direct.” Rev. Sts. c. 20, § 8.
In the case of this society, no by-law or vote appears to have existed, directing the manner in which meetings should be warned. Nor is it shown that assessors were appointed; and the directors, chosen by the society, do not, as such, appear to have appointed any meetings.
By the Rev. Sts. c. 20, <§> 17, it is provided, that when “ the assessors or committee of any religious society shall unreasona.bly refuse to call a meeting, or if there are no assessors or committee qualified to call one, any justice of the peace for the county, upon the application of five or more of the qualified voters, may call a meeting, in the same manner as a justice ol the peace is authorized to call a town meeting.” Section 27 provides, that “ any justice of the peace for the county in which such religious society may be, upon application in writing by any five or more of the qualified voters thereof, may issue his warrant for calling a meeting of the same.”
In the present instance, no such application to a justice ot the peace, since the meeting of August 1840, has been made, and there do not appear to have been assessors or a committee [310]*310authorized to call one. But in regard to the regularity or irregularity of meetings prior to that holden on the 14th of October 1842, we do not feel called upon directly to express an opinion. That meeting of October 14th 1842 was called by the clerk, on an application made to him by only four members of the society.
Treating this as a religious society, the meeting, though called after the manner of other meetings of the society, was not called by any board of assessors, or standing committee of the society, nor by a justice of the peace, upon the application of five or more qualified voters. It is not, therefore, we think, within any of the provisions appointed by law for the regular notifying and calling together of the members of religious societies, for the transaction of the common business of the society.
Our attention has also been called to <§> 35 of c. 20 of the Rev. Sts., which- authorizes and directs the clerk to warn a meeting, on an application in writing by any five of the propri etors, by posting a notification, fourteen days at least before the time appointed for such meeting. Without deciding how far the provisions of that section are applicable only to cases con templated by §§ 32, 33, 34, it is sufficient to say that the present notice by the clerk was not issued on an application of five proprietors; nor was the fourteen days’ notice given, as required by that provision of the statute.
It is true that, at the adjourned meeting of November 10th 1842, a vote was passed to confirm such of the proceedings as might have been invalid; and although, on the 8th of the same November, the clerk was requested to notify such of the proprietors as were not present at the adjournment of the meeting, yet the request was limited to those who were in the city.
A corporation may indeed revise and confirm its previous proceedings, by votes duly passed at a legal meeting called for that purpose. But in the present case, there is no evidence that all the proprietors were present at the adjourned meeting; and we cannot infer that this was the case from the mere use of the phrase, in the records, that “ the proprietors met,” &c,, because the terms may intend a part as well as the whole ; and [311]*311they rather import, that the company or society had assembled, and not that each individual member of the company was in attendance. Besides; the adjournment itself was that of a meeting not warned according to the provisions of the statute.
Viewing this then as a religious society, unless we disregard all the provisions of the statute for warning meetings, which are various and convenient, and sanction meetings called by the clerk without a previous vote authorizing them, and without a proper application by a competent number of the proprietors ; unless we intend to give countenance to a custom of calling meetings in a manner not pointed out by the law, nor approved by any direct vote of the society; we are not justified in sustaining the votes of the 14th of October, and those connected with it on the subsequent days of adjournment.
If the objections had been merely formal, and on examina tion of the records of the society we had found that the laws had been substantially complied with, we might have had more hesitation; but viewing the objections as material and fully supported, we cannot doubt as to the propriety of holding, that the meetings were not binding, so far at least as the rights of creditors were concérned.
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Hubbard, J.
It being admitted that the levy made by the demandant is free from objection as to matters of form, the question turns upon the validity of the tenants’ title; the estate having been, just prior to the deed under which the tenants claim, the property of the judgment debtors, and, as such, was attached and afterwards levied upon by the demandant.
It is agreed, for the purposes of this action, that the tenants are a religious society in the city of Lowell, regularly organized, and, as such, capable of purchasing and holding real estate for religious purposes. They claim title to the premises, on a part of which the demandant made his levy, by force of an indenture dated October 27th 1842, and made between the Proprietors of the First Freewill Baptist Meeting-house in Lowell, of the first part, and themselves, of the second part, and of which premises they were in possession under a lease made between the same parties, and bearing date May 19th 1841. The lease was read in evidence on the trial, and was admitted, not as an independent title under which the tenants claimed, but as evidence bearing on the indenture of October 27 th 1842. If the last indenture can be sustained, the verdict must be confirmed ; otherwise, it must be set aside, and a new trial granted.
This last indenture purports to be executed by Nathaniel Thurston, agent, of the one part, and by Jonathan Woodman, elder, and Ira Caverly, Cyrus Latham, Lorenzo G. How, and Levi Gilman, deacons, of the other part.
Many points, growing out of the transaction, have been discussed ; but the principal question arises on the authority of Nathaniel Thurston to execute the deed, on the part of the Proprietors of the First Freewill Baptist Meeting-house in Lowell, to the tenants. The facts on which his authority rests, as [309]*309derived from the records of the corporation, sufficiently appear in the statement of the evidence given at the trial. And the question is, whether the meeting of the corporation on the 14th of October 1842, or the adjournment of it at which the votes passed authorizing the sale, and appointing said Thurston to execute the deed, was a meeting valid and binding, as regards the creditors of the corporation; and if not, whether this demandant can take advantage of it.
And first, viewing the proprietors of the meeting-house as a religious society, they are authorized, like other corporations, “ to make by-laws and regulations for their own government, and for the due and orderly conducting of their affairs and the management of their property.” Rev. Sts. c. 44, <§> 1. And their meetings are to be. “ warned in such manner as the society shall, by any by-law or vote, provide ; and when they shall make no such order, the meetings shall be warned in such manner as their assessors or standing committee shall, in their warrant for such meeting, direct.” Rev. Sts. c. 20, § 8.
In the case of this society, no by-law or vote appears to have existed, directing the manner in which meetings should be warned. Nor is it shown that assessors were appointed; and the directors, chosen by the society, do not, as such, appear to have appointed any meetings.
By the Rev. Sts. c. 20, <§> 17, it is provided, that when “ the assessors or committee of any religious society shall unreasona.bly refuse to call a meeting, or if there are no assessors or committee qualified to call one, any justice of the peace for the county, upon the application of five or more of the qualified voters, may call a meeting, in the same manner as a justice ol the peace is authorized to call a town meeting.” Section 27 provides, that “ any justice of the peace for the county in which such religious society may be, upon application in writing by any five or more of the qualified voters thereof, may issue his warrant for calling a meeting of the same.”
In the present instance, no such application to a justice ot the peace, since the meeting of August 1840, has been made, and there do not appear to have been assessors or a committee [310]*310authorized to call one. But in regard to the regularity or irregularity of meetings prior to that holden on the 14th of October 1842, we do not feel called upon directly to express an opinion. That meeting of October 14th 1842 was called by the clerk, on an application made to him by only four members of the society.
Treating this as a religious society, the meeting, though called after the manner of other meetings of the society, was not called by any board of assessors, or standing committee of the society, nor by a justice of the peace, upon the application of five or more qualified voters. It is not, therefore, we think, within any of the provisions appointed by law for the regular notifying and calling together of the members of religious societies, for the transaction of the common business of the society.
Our attention has also been called to <§> 35 of c. 20 of the Rev. Sts., which- authorizes and directs the clerk to warn a meeting, on an application in writing by any five of the propri etors, by posting a notification, fourteen days at least before the time appointed for such meeting. Without deciding how far the provisions of that section are applicable only to cases con templated by §§ 32, 33, 34, it is sufficient to say that the present notice by the clerk was not issued on an application of five proprietors; nor was the fourteen days’ notice given, as required by that provision of the statute.
It is true that, at the adjourned meeting of November 10th 1842, a vote was passed to confirm such of the proceedings as might have been invalid; and although, on the 8th of the same November, the clerk was requested to notify such of the proprietors as were not present at the adjournment of the meeting, yet the request was limited to those who were in the city.
A corporation may indeed revise and confirm its previous proceedings, by votes duly passed at a legal meeting called for that purpose. But in the present case, there is no evidence that all the proprietors were present at the adjourned meeting; and we cannot infer that this was the case from the mere use of the phrase, in the records, that “ the proprietors met,” &c,, because the terms may intend a part as well as the whole ; and [311]*311they rather import, that the company or society had assembled, and not that each individual member of the company was in attendance. Besides; the adjournment itself was that of a meeting not warned according to the provisions of the statute.
Viewing this then as a religious society, unless we disregard all the provisions of the statute for warning meetings, which are various and convenient, and sanction meetings called by the clerk without a previous vote authorizing them, and without a proper application by a competent number of the proprietors ; unless we intend to give countenance to a custom of calling meetings in a manner not pointed out by the law, nor approved by any direct vote of the society; we are not justified in sustaining the votes of the 14th of October, and those connected with it on the subsequent days of adjournment.
If the objections had been merely formal, and on examina tion of the records of the society we had found that the laws had been substantially complied with, we might have had more hesitation; but viewing the objections as material and fully supported, we cannot doubt as to the propriety of holding, that the meetings were not binding, so far at least as the rights of creditors were concérned.
Believing, from the finding of the jury, that no fraud has been committed in this case, and that the tenants are to be viewed in the light of bona fide purchasers so far as then own conduct is concerned, we have examined carefully the able and elaborate arguments of their counsel, and have considered the question whether (treating the proprietors of the meeting-house as a joint stock corporation, having no relation to a parish or a church, and therefore not within the restrictions of the act for the protection of parishes and the support of public worship, but clothed with authority to purchase, hold, and dispose of, estate, both real and personal) the votes passed by them, authorizing the deed to be given, can be sustained.
Such corporations are authorized to make by-laws, where no provision is specially made for the purpose of determining the manner of calling and conducting their meetings. And it is urged here, that there being no by-laws, a reasonable notice [312]*312¿o the members of an intended meeting is sufficient; and in this case, it is argued that the notice was reasonable, as it was in conformity to the usage of the corporation for the greater part of its existence, and that it was to be assumed as a fact, where nothing appeared to the contrary, that all the members had notice. But we are of opinion, where a corporation has no by-laws prescribing the manner of calling meetings, of which the members must be presumed to be conusant, that votes passed at meetings of such a corporation cannot be binding, unless it is proved that all the members had notice. Stow v. Wyse, 7 Connect. 219. Angelí & Ames on Corp. (2d ed.) 392. And though corporations, where no rule is prescribed, may act by majorities, yet before such majority can be authorized to act, all the-members should be notified. And in regard to the usage, relied upon in this case, of notifications by the clerk without by-law or direction of any committee, however they might avail as to unimportant and ordinary meetings, yet where business of the greatest importance is to be transacted, and much of the property of the company proposed to be sold, whereby the rights of third parties may be affected, we can neither presume that all the members of the corporation were notified, nor legally infer that they ever agreed to such a mode of warning their meetings. We should rather say that such a mode of calling had crept in, through inadvertence and negligence, without the sanction of a majority of the members, and is such as this court will be slow to confirm. We cannot therefore sustain the deed relied upon by the tenants, treating this company as a joint stock corporation, merely for the transaction of common trade in the buying, selling and exchange of estates.
But further; we are of opinion, that though the proprietors appear to have departed from the design of their incorporation, in the purchase of real estate not apparently wanted for their church, and to have entered into speculations with a view to promote the interests of the society, yet they were, notwithstanding, a religious society, acting under a charter conferring no other privileges, and that they continued to be bound by [313]*313the statute prescribing the mode and terms of their corporate action.
In respect to the competency of Daniel G. Holmes to testify, to whom an objection was made, on the ground of interest as a creditor of the proprietors, it is unnecessary to decide ; because we are of opinion, that though a stockholder and a creditor, yet, as the clerk of the corporation, making their records and keeping their books, he was, for the single purpose of identifying the books and verifying the records, a competent witness, from the necessity óf the case where such clerk is a corporator And it often happens that it is most convenient and useful to select the clerk from among the members. See Union Bank of Maryland v. Ridgely, 1 Har. & Gill, 408. Angell & Ames on Corp. (2d ed.) 518.
In regard to the lease, we express no opinion as to its validity, or whether the plaintiff, who is said to have been a member of the society at the time of its execution, is estopped to deny the tenants’ title under it. But in this stage of the cause, there is nothing shown why the demandant may not be allowed to give proof, whether, so far as it regards the proprietors, any thing passed, by the deed of October 27th 1842, to the tenants or not, that it cannot affect the right of creditors of said proprietors to levy on the property, for the payment of their debts.
Verdict set aside, and a new trial granted