The First Baptist Society vs. Rapalee, 16 Wend. 605

By the Court, Cowen, J. Several objections were raised in the course of the trial, but it is unnecessary to notice them, for the first objection is fatal. The statute, 3 R. S. 292, § 1, is, that the certificate shall be acknowledged before the chancellor,. or one of the judges of the supreme court, or one of the judges of the court of common pleas of the county where the church is situate. The 3d

section is, that the certificate being proved or acknowledged as above directed, shall be recorded, &c. and such trustees and their successors shall thereupon, by virtue of this act, be a body corporate, &c. It is scarcely necessary to observe, that the proof dr acknowledgment before the proper officer is an essential prerequisite to the proceedings taking effect as

an act of incorporation ; and there is no pretence that this has been corp-plied with. We are referred to the statute of March 24th, 1818, Sess. Laws of that year, p. 44, which authorizes the commissioners created by that act to take the acknowledgment of deeds; and we are reminded that this court have said, in The People v. Peck, 11 Wendell, 611, that they must give the statute a reasonable and liberal construction in favor of churches. But giving a reasonable construction to the language of the court, they never meant to say they would legislate in favor of churches.

If the word deed, in the act of 1818, does not mean a certificate of church incorporation, “it is impossible for us to allow this acknowledgment. We might as well extend the statute to a writ or warrant under seal. The paper is no less a church certificate, and no more a deed, because it -happens to have a seal. Nor was the defendant estopped to deny that the plaintiffs were a corporation.

The defendant, apparently some months before the certificate was recorded, and even before the defective acknowledgment, signs this subscription, promising to pay, not the plaintiffs, “ The First Baptist Society,” but the “ Trustees of the First Baptist Church and these, it is stated in the case, were proved at the trial to mean the plaintiffs. It is somewhat difficult to see how that could be, unless we put this society in a corporate attitude, entirely independent of any statute, general or special. Corporations, in this state, are the creatures of statute, and have always been so since the revolution.

Perhaps the defendant subscribed after the certificate was recorded. In any view, however, it is enough to refer to the Welland Canal Co. v. Hathaway, 8 Wendell, 480, and especially the reasoning of the present chief justice at p. 483, 4, to see that this contract was any thing but an estoppel. A new trial must be granted, the costs to abide the event.