¶1The indictment states, that The Trustees oj the German Reformed Church, were seised of the *469church, until the forcible entry charged, and by which , .. . , _ , . , . they were disseised. It was, then, a material question, upon the trial, who were those trustees. If the persons who directed the church to be opened, and by whose permission the defendant entered, were the legal trustees, there was no force. This fact the defendant offered to show, and it was overruled. There was no evidence that the prosecutors were such trustees, or had actual possession of the church, at the time, except what might be inferred from the fact, that they had been elected trustees in June, 1808, which was two years before the time in question, and that one of them kept the key for some months before. This was sufficient evidence, in the first instance, of possession, but it is not so conclusive as to preclude all inquiry into the fact who were the legal trustees .in 1810. If those persons, by whose direction the defendant entered, were the trustees, the law would cast the possession of the church upon them. Trustees of a church, qua trustees, cannot be in possession, but constructively, by reason of having the right of possession. Gilfort might, as an individual, have had possession in fact, but the indictment does not charge the entry as upon him, but upon the trustees of the church; and the defendant ought, therefore, to have been permitted to have shown that the prosecutors were not the trustees.
¶2Upon this ground, and without examining the other points that were raised, the verdict ought to be set aside.
¶3New trial granted.