The two objections to the verdict which may seem to deserve examination, are, 1. The alleged variance between the indictment and the evidence, as to-the name of the corporation ; and, 2. That by an irregularity in the election of trustees, the corporation of 1784 was dissolved, and the complainants, who assumed to be trustees under that incorporation, were not the lawful trustees.
If these two points are decided against the defendant, the motion on his part must be denied; for according to the provisions of the statute for the incorporation of religious societies, and according to the opinion of the court, when this cause was formerly before it, (8 Johns. Rep. 464.) the trustees have the possession and custody of the temporalities belonging to the church, whether the same consist of real or personal estate. They must, therefore, be considered as being, virtute officii, entitled to the possession, and as lawfully seised of the ground, and of the buildings belonging to the church, and the merit or demerit of their conduct, in closing the doors of the church against the defendant, cannot be taken into consideration in this case. If they have abused their trust, the congregation, who are their constituents, have ample remedy; but this remedy does not consist in a forcible entry upon their possessions. Though the trustees hold the church property in trust for the church and congregation, still it is their possession ; and the courts are bound to protect them against every irregular and unlawful intrusion made against their will, whether by members of the congregation or by strangers.
1. The proceedings under the statute to prevent forcible entry and detainer, are of a peculiar and anomalous kind. They are loose, and of a mixed nature, being in substance a civil, and in form, a criminal prosecution. The formal parties to the record are the people and the trespasser; and the injured party and his interest need only be stated in the indictment with sufficient certainty, to enable the court to ascertain the injury, and to award restitution. If the complainant be designated sufficiently for this purpose, it is enough; any further technical precision which the forms of pleading might otherwise require, seems not to be requisite. In this case, the trustees of the church have a corporate name by which
*157they are to sue or be sued, and this corporate name is “ The Corporation of the German Reformed Church in the city of New-York.” In the indictment they are not described exactly by that name, but as “ The Trustees of the German Reformed Church in the city of New-York.” It has been suggested that the corporate name begins with the words The German Reformed, &c. and if so, there was no variation. But admitting that the name begins with the words The Corporation, the variation does not appear to be essential, for the corporation, qua corporation, is not the plaintiff upon the record. The trustees are known and designated in the statute, by the name of trustees. They are so called throughout the statute; and by the 4th section of the act of 6th April, 1784, they are declared to be trustees for the church for which they shall be chosen, and are authorized to take into their custody and possession, all the temporalities belonging to the church for which they should be elected trustees, whether the same consist of lands, &c. In this case, the trustees not being parties to the record, we are not obliged to require them to be described with rigorous precision. We may adopt the more reasonable rule laid down by Kyd, (on Corporations, vol 1. 286. 288.) that the variance must be materially different, in substance, to injure. This doctrine is to be met with in the books. Thus it is said, (Com. Dig. tit. Pleader, 2. B. 2.) that if a personal action be brought against a corporation, and they plead misnomer, the plaintiff may reply that they were known as well by the one name as by the other. And Lord Coke, says, (10 Co. 125. b.) that in pleading, or in a special verdict, in many cases, if by express averment, or by the finding of the jury, it shall be made apparent to the court, that the true name of the incorporation, and the name in the lease, grant, &c. are all one, in effect, it will much enforce the matter; although, in words, there is some seeming of difference,” The trustees of the church are better known by the name of trustees, than by any other corporate name. It is the name given them in all the statutes which relate to religious incorporations. The church is here truly designated, and the difference between the corporation of that church, and the trustees of that church, is not an essential variation, in a case like this, where they are not the formal parties to the record.
2. It was proved that the election of trustees “ had always been held on Pinxter Monday.” This was not an exact annual election, as Whitsunday is a moveable holyday, and varies with the *158time of Easter Sunday, but that fact does not prove the corporation *° have been thereby dissolved. In the first place, there was always a majority of the trustees in office, as only one third part were to be annually chosen. The act of 1784 did not prescribe the precise time when the trustees were to be chosen. The trustees first to be chosen were to continue in office “ for the space of three years, to be computed from the day of their election,’ and were to be divided into three classes, and the seats of one class were to be “ vacated at the expiration of every year ; so that one third might be “ annually chosen.” The time of the annual election was to be appointed by the minister, and was to be “ at least six days before the vacancies should happen.”
The church having fixed upon a yearly religious epoch for the election of trustees, it would be very revolting to hold the corporation absolutely dissolved, from the very first time that the elections were so held, and that all its subsequent elections and acts were void, merely because the holyday selected for the election did not correspond with the solar year. We cannot, with propriety, have any annual election that will so correspond, because the calendar day will frequently be the day of the Christian sabbath, and a given day of the week, in any month, would not agree precisely xvith the solar year. We must give the statute a reasonable and liberal construction, for the benefit of the churches. Neither a precise day of election, or of entering upon office, is given. There are many decisions in the books showing that the election in such cases will be valid, if made after the year, and especially, if an integral part of the corporation remains. Thus, in the case of Hicks v. The Town of Launceston, (H. B. 8. C. 1. 1 Roll. Abr. 512. 514.) it was held, that though by a charter of incorporation, the vacancy occasioned by the death or removal of an alderman, was to be supplied by an election within eight days thereafter, yet an election at any time, afterwards, was good; for the power of election was incident to the corporation, and the affirmative poxver to elect within eight days did not take away the implied power. So, in the case of Foot v. Prowse, Mayor of Truro., (Str. 625.) it was decided, in the exchequer chamber, and afterwards affirmed in the house of lords, that though the aldermen of Truro were to be annuatim eligend. these words were only directory, and the aldermen were good officers after the year, and until others were elected.
Again, in the case of The Queen v. Corporation of Durham *159(10 Mod. 146.) the court of K. B. Said, that though a town clerk be annuatim eligibilis, he remains town clerk, after the year, and until another was chosen; but if he had been eligibilis ¡pro uno anno tantum, his office would have expired at the end of the year.
It is unnecessary to contend, in this case, that the trustees held over, after the expiration of the year. Perhaps the language of the statute is too peremptory, that the seats of one third are to be “ vacated at the expiration of every year.” But the corporation is not thereby dissolved, for two thirds of the trustees continue in office, and the election of the successors to those whose seats expire, cannot be deemed void, though it might sometimes happen, in consequence of the moveable Whitsunday, that the election was not “ at least six days” before the vacancy. The trustees so elected would, at least, be trustees, by colour of office, and their acts would be good. The corporation still remains, and the irregularity, (if any,) as to the time of the election, would cure itself in the subsequent year. Whether any part of the trustees in office at the time of the trespass, and of the indictment found, came in by an election held within the six days, or after the year, &c. does not appear. In no point of view, therefore, is there any ground to consider the proceedings as irregular, on the pretence of the dissolution of the corporation, or from the want of competent trustees.
Motion denied.
N. B. It was suggested that the defendant ought to be fined, and restitution awarded. The Court said, they awarded restitution, and assessed the damages at six cents, so as to carry the costs; but the statute did not require this court to set a fine.