author: Paxson, J:

text:
    October and November Term, 1883,
    No. 185.
    October 29, 1884.
    The Pittsburg and Birmingham Passenger Railway Company v. Boyd.
    1. Defendant offered in evidence the cross-examination only of a deposition taken on his behalf. Plaintiff’s counsel objected “ unless the whole of the deposition be read.” The Court ruled: “ We will admit the part that is offered, and any part of the deposition that is necessary the plaintiff may offer.’'' Held, that the plaintiff was entitled to have the entire deposition read to the j ury by the party offering it.'
    2. Southwark Insurance Co. v. Knight, 6 Wharton, 327, followed.
    3. The examiuation-in-ehief in the deposition showed-the witness to have been in the employ of the defendant. Held, that, though a slight circumstance, plaintiff was entitled to have it go to the jury as affecting any question of bias on the part of the witness.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to Common Pleas, No. 1, of Allegheny County.

    Feigned issue by The Pittsburgh and Birmingham Passenger Railway Company, claimant, against John Boyd, to determine the ownership of five horses, levied upon as the property of Joseph L. Tipton, trading as Tipton & Craig, at the suit of John Boyd.
    Upon the trial in the court below, before Collier, J., the plaintiff gave testimony to show that the railway company had four horses that were not suitable for passenger railway use ; that Craig, who was a partner in the firm of Tipton & Craig, horse-dealers, was introduced to the president of the railway company as a man who could get good railway horses ; that the company employed Craig to take these four horses and trade them for others more suitable for the railway business, or to sell or dispose of them and buy others, if necessary, for the company; that Craig was the employ6 or agent of the company for that purpose ; that Craig disposed of the four horses and purchased five others, as agreed upon, for the company, and that the five hoi-ses levied upon by the sheriff were not the property of Tipton & Craig, but belonged to the railway company, in pursuance of the contract between the company and Craig.
    The defendant gave testimony to show that Craig took nine horses with him to West Virginia, where he traded and sold them ; that the five horses levied upon were not purchased by Craig, in pursuance of the alleged contract between him and the railway company, but were purchased with partnership money, and were the property of Tipton & Craig.
    Defendant’s counsel also offered in evidence the cross-examination of the deposition of William Wackerly.
    Plaintiff’s counsel objected unless the whole of the deposition be read.
    By the Court : “We will admit the part that is offered, and any part of the deposition that is necessary the plaintiff may offer.”
    Objection overruled. Exception by plaintiff.
    The following is the deposition :

      William Wackerly, sworn, says :
    I live in Butler county, Pennsylvania; came to Pittsburgh last night; am going away in the morning; I worked for John Boyd in the winter of 1879-80; I left him some time in the spring of 1880; Mr. Boyd sent me over to the stables of the Pittsburgh and Birmingham Passenger Pailway Company with one horse; it was a bay horse; I left the horse in the stable of the Birmingham Street Car Company; I gave it to the stable-boss; he was one of the several horses brought from Virginia, belonging to Tipton & Craig; this horse, when I took him to Birmingham stable, was sick; I gave the horse to the stable-boss, and came back to Boyd’s stable: that is the last I ever saw of the horse.

      Cross-examination by T. C. Lazear, Esq.:

      Q. How do you know this was Tipton & Craig’s horse?

      A. He was sent up in a boat in Tipton & Craig’s name; I saw cards on the horses in Tipton & Craig’s name; I went to the boat and brought the horses up, and they had those cards on; I could not tell whether each of the horses had a card on or not; the cards were fastened to the halter; Mr. Boyd’s clerk sent me down to the boat to get the horse and I forgot the clerk’s name.

      Q. How long had this horse been in Mr. Boyd’s stable before you took him over to the Pittsburgh and Birmingham Passenger Pail way Company’s stable?

      A. I couldn’t tell you that.

      Q. Was it a week, or a day, or an hour?

      A. I can’t tell you.

      Q. Can you tell how long it was from the time you got the horse on the boat till you took him over to that stable?

      A. I couldn’t tell you that, either. I don’t know the name of the boss at the stable I left this horse with; he was a little, low, heavy-set man; I couldn’t tell how long the horse had been sick ; I think he had the distemper.”
    - May 23, 1882, verdict for defendant, upon which judgment was afterwards entered.
    Plaintiff then took out a writ of error, and assigned as error the action of the Court in admitting in evidence the cross-examination of the deposition of William Wackerly without requiring the whole deposition to be read.

      H. W. Wier and Thomas O. Lazear for plaintiff in error.
    A party who offers in evidence a deposition taken in his behalf must read the whole, and cannot select portions and omit others: Southwark Ins. Co. v. Knight, 6 Wh., 329; Logan v. McGinnis, 12 Penna., 27.
    The suggestion of the Court that the plaintiff might read the examination-in-chief was a concession we could not accept, for this would be to give credit to the witness, and in effect to make him our own. We were entitled especially to have his statement brought to the attention of the jury that the witness had been in defendant’s employ, being a circumstance showing bias, without being compelled to read the deposition ourselves.

      Knox & Reed and A. M. Brown for defendant in error.
    The portion of the deposition not read was regarded as wholly irrelevant to the issue, and defendant’s counsel merely proposed to read the cross-examination, which contained pertinent and relevant matter. Plaintiff’s counsel did not read the omitted part, because it was wholly against the plaintiff and in favor of the defendant. Its admission or exclusion did not, and could not, prejudice either party: Breyfogle v. Beckley, 16 S. & R., 264; Edgar v. Boies, 11 S. & R., 445; Hosier. Gray, 71 Penn., 198; Irwin v. Trego, 22 Id., 368; Hoffer v. Miller, 53 Id., 156; Howell v. McCoy, 3 Rawle, 256.
    January 5, 1885,
   the opinion of the Court was delivered by

Paxson, J:

It was held in the Southwark Insurance Company v. Knight, 6 Wharton, 327, that where a party offers in evidence a deposition taken on his own behalf, he must, if required by the other party, read the whole, and cannot select-some portions and omit others. See also Logan v. McGinnis, 2 Jones, 27.

Upon the trial below, the defendant’s counsel offered in evidence a portion only of a deposition taken "on his behalf. The' portion offered was the cross-examination. The plaintiff’s counsel objected “unless the whole of the deposition be read.” The learned Court ruled: “We will admit the part that is offered, and any part of the deposition that is necessary the plaintiff may offer.” This is the ruling as it appears in the record as printed, and differs slightly from that set out in the assignment of error. As it is wrong either way, the difference is not very material.

It was certainly an anomalous proceeding to offer the cross-examination in chief. The permission accorded the plaintiff to offer or read the balance of the deposition does not meet the difficulty. The examination-in-chief was not in evidence, and what is not in evidence cannot be read to the jury. The only way open to the plaintiffs to get it before the jury was to offer it in evidence themselves. This would have made the witness their own to that extent, and even the reading of it by the plaintiffs under the circumstances would have been a qualified indorsement of the witness.

The plaintiffs were entitled to have the entire deposition read to the j ury by the party offering it.

It was urged, however, that the error was technical, and not hurtful to the plaintiff. If we could safely say so we would not reverse, but just what effect the testimony of the witness may have had upon the jury we do not know. The defendant evidently regarded the examination-in-chief as unfavorable, or he would have offered it in evidence and read it. The examination-in-chief showed the witness to have been in the employ of the defendant. This is a slight circumstance, but it was in the deposition, and the plaintiffs were entitled to have it go to the jury, as affecting any question of bias on the part of the witness.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Green, J.:

license: Public Domain

text:
    October and November Term, 1884,
    No. 140.
    November 10, 1884.
    Riddle v. Stewart.
    1. In an action of replevin by 0 against A andB, it appeared that A and B, engaged as A, B & Oo., in the business of manufacturing and selling brushes, became indebted to C in a large sum, for which they gave him their judgment note. C entered it of record, issued execution, levied upon the stock in the store of A & B, and beeamethe purchaser at the sale. O at once re-opened the store under the firm name of A, B Co., and placed A and B in charge. The defendants gave evidence that some weeks after the sale, 0 called on A and B and made this proposition to them, which was accepted: Here, what has been done is neither here nor there; my errand to-niglit is to give this busi ness to A and B; of course, on these conditions: that they pay me my $24,000, with interest, and 1 don’t want you to tell a living soul that I have given you the business until you get my debt considerably reduced. ' Held, that the alleged contract was in no sense a gift, but was, in legal substance, a sale and transfer of title for a full consideration.
    2. The vendees being already in possession, no formal delivery of the goods was necessary in order to pass title as between them and the vendor.
    3. On the trial, the Court charged generally that the plaintiff could recover upon showing to the satisfaction of the jury either a general or special property and a right to the possession of the goods at the time the writ was issued. The Court also affirmed defendant’s point, “that unless the jury find from the evidence, that W. ST. Riddle, the plaintiff, was, at the time of issuing the writ of replevin in the case, the sole and exclusive owner of the property in dispute, and at the time had the right to the immediate possession he is not entitled to recover, and the verdict should be for the defendants.” Held, that as no distinction between absolute and qualified property was raised by any aspect of the testimony, and as the point related only to the number and connections of owners, and not to the character or quality of the title, it did not conflict with the general charge, and would not form ground for reversal, the point itself being entirely harmless and of no consequence in the case. 1
    4. Where a witness testified that in his capacity of client he made a certain request to his counsel, the evidence of his counsel that he made no such request is competent.
    5. This competency does not extend, however, to privileged communications between client and counsel made at an earlier time, as to which the client had given no testimony and had not been interrogated.
    6. The client cannot be held to have waived his privilege as to such communications.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    .Error to the court of Common Pleas, No. 1, of' Allegheny County.

    Replevin, by W- N. Riddle against W. C. Stewart and C. E. Stewart, for a stock of goods valued- at $41,000 in two stores in Pittsburgh.
    The facts of the case, as they appeared on the trial Defore Collier, J , are as follows: The defendants, with their mother, Mrs. Catharine Stewart, under the firm name of Stewart Bros. & Co., had for some time prior to March 21, 1878, carried on the business of manufacturing and selling brushes in the city of Pittsburgh. The plaintiff had indorsed largely for this firm, and to secure himself, lie took from them their two judgment notes, one for $24,000 — the amount of his indorsement for them — ■ and one for $10,500. These notes he caused to be entered, and on March 21, 1878, executions were issued thereon, levy made upon the goods in the store of Stewart Bros. & Co. on March 23, 1878, and sale thereunder of the same on April 5, 1878, when W. N. Riddle, the plaintiff, became the purchaser to the amount of $18,040 — of all the stock in the two stores, except goods which were sold for cash, to the amount of $720. These amounts were credited on his judgment, and the sheriff delivered to him a bill of sale and actual possession of the goods. Immediately after the sale, the stores were re-opened by Mr. Riddle, and the business resumed in the name of Stewart Bro’s. Co., the defendants, Charles E. and W. C. Stewart, remaining in charge, under the direction of the plaintiff. There was no dispute by any of the parties that at this time W. N. Riddle was the sole owner of the business; lie signed checks; leases and insurance policies were made in his name, and certificates to the United States Government stated his ownership. The two defendants and two other persons — members of their.family — testified that a few weeks after the sale the plaintiff came to their house, and in the presence of Mrs. Catharine Stewart, the two defendants, their sister Kate, and brother David, said: “ Here, what has been done is neither here nor there; my errand here to-night is to give this business to Charley and Billy; from this night the business belongs to Charley and Billy (the two defendants'); of course, on these conditions : that they pay me my $24,-000, with the seven per cent, interest; Í want you to keep this perfectly quiet; I don’t want you to tell a living soul that I have given you the business until you get my debt reduced considerably.” The defendants alleged that they had accepted this proposition; that they took charge of the-business from that time, and that-they had paid more than half their debt to plaintiff, and had offered him a certified check for what they believed the balance to be. The plaintiff denied having made this agreement; claimed that the business was conducted by the defendants for him until September, 1882, when, he says, he expressed to defendants his desire to sell to them, or any one they would name, the entire business for the exact sum his business relations with the Stewarts had cost him. A dispute arose between the parties as to what this sum was, and the writ of replevin in this suit was then issued, October 13, 1882. During the trial, the plaintiff, in cross-examining Charles E. Stewart, one of the defendants, showed that in proceedings for divorce with alimony, instituted against him by his wife, he had testified, sometime in April, 1882, that Mr. Riddle was che proprietor of the business; that he (the witness) and his brother were working under a salary of $1,200 per annum, managing the business under Mr. Riddle. The witness explained that he had made these statements while laboring under great mental excitement and when in ill health, and that seeing it in “black and white afterwards,” he had asked his attorney,.Thomas C. Uazear, Esquire, for'an opportunity to correct it. Mr. Lazear, being called by the plaintiff in rebuttal, testified that the defendant, C. E. Stewart, had made no such request to him. Plaintiff then made the following offer :
    “One of the defendants having testified that the testimony having been given by him in a certain legal proceeding, and identified by him on the stand, was given when he was greatly excited, and that he asked his counsel to afford him an opportunity to correct that testimony ; we propose now to show by counsel referred to by defendant, not only that he was not called upon to afford an opportunity to have the testimony corrected, but that it was consistent with, and in identical terms with, what defendant informed him in advance of said taking of testimony would be testified to by him, and immediately before taking of said testimony, and which he disclosed to his counsel for the purpose of having said counsel bring out in the examination said fact in the divorce proceedings referred to. • This for the purpose of contradicting the defendant, C. E. Stewart, and for the purpose of further corroborating testimony given by said Stewart in the divorce proceedings. ”
    Refused.
    (Sixth assignment of error.)
    The plaintiff submitted, inter alia, the following points:
    “Under all the evidence, the possession of the goods was in W. N. Riddle, on April 11, 1878, and the defendants held only for him; their actual possession was his possession, and there is no evidence of any legal change up to the time the writ in this case was issued.”
    Refused.
    (First assignment of error.)
    “Under all the evidence, there is no proof of any delivery of the goods in dispute to the defendants.”
    Refused.
    (Second assignment of error.)

      “The defendants allege a gift to them, in the spring of 1878, by the plaintiff, as the basis of their right to these goods. If the jury should find there was no such gift, then their verdict should be for the plaintiff.”
    Refused.
    (Third assignment of error.)
    The Court charged, inter alia, as follows :
    “The law requires, under that state of facts, that the case shall be tried, and it requires that on the trial the plaintiff shall show, to the satisfaction of the jury, that lie has either a general or a special property in the goods, and a right to the possession of them.
    “The only matter .to determine is whether the plaintiff has shown a general or a special property in the goods replevied, and whether the plaintiff was entitled to the possession. If he shows that, then, in this action, he has shown all that he is required to do, and any other matters of difference between the parties must be settled in some other way.
    “With that understanding, let us proceed to what is claimed on both sides.
    “ The plaintiff, when he commenced his side of the case, showed you he had a judgment of between $24,000 and $26,000; that he issued an execution on that judgment and sold the property; that after selling it he took possession, and after taking possession put these two boys, the defendants, in the store, they having been connected with the old business and understanding something about it, and being a friend of their family; that he ran the business as his own, they acting under him as his agents or clerks. He further showed that the books were opened in accordance therewith; that he ’signed all checks (or most of them) in the business; he signed leases; had some policies of insurance transferred to him, and that he was liable for all the debts under such circumstances, and that he so continued to run it until the time of the issuing of the writ of replevin, when, as he alleges, they were trying to come to some understanding; the defendants disclaimed his title, and, with an oath, said they would show him whose the property was and with that he issued his writ of replevin.
    “Now, gentlemen, if that is believed, if that is satisfactory, then the plaintiff has clearly made out a case for himself, prima facie, and until it is overthrown the plaintiff would be entitled to a verdict for the property.
    “Now, before we come to the defense, I may say that you have nothing to do with the items of the judgment in this case. The judgment cannot be impeached collaterally in a proceeding o£ this kind, nor has it been attempted. You have nothing to do with the original judgment. The judgment stands for the amount. .
    “We come now to the defense.
    “The defendants set tip a defense, and it is this : They say it is true that Mr. Riddle did own the property; that he did start to carry it on himself; that they were put in there under him; that he was to sign the checks and carry on the business. They say that is true at the time he bought the goods, and for some weeks after; but that some weeks after that, he (Riddle) being a friend of the family, came to their house, and used language somethingdike this, in the presence, they say, of the family: T want to make you feel good; from this night, I either give to you, or the business is yours, Charley’s and Billy’s,’ alluding to these defendants. ‘I expect you to pay me my $24,000 which is coming to me, with seven per cent, interest, and "you keep this matter quiet until you have paid a good deal of it, and that will be all right.’ That is the essence of the allegations. They allege that they accepted that; that they were in possession under him; that they continued to run the business; that they put into the business some of their own money, and then allege that they took charge of the business from that time, and that they kept paying on the debt, as they call it, until they paid about $13,000 — paid more than half of it • — and that they were ready to pay the balance, and, I believe, one of the young men offered, if the amount was satisfactory, to give a certified check for it, but they could not agree upon the amount.
    “ Now, gentlemen, it that agreement was made, no matter how unreasonable you may think it was, the plaintiff would have to abide by it. This is testified to, in substance, by three or four witnesses — members of the family. You heard them all called, and what they said.
    “ If such a bargain was made, if the plaintiff chose, after he had the goods arid had thus far secured that much of his claim, chose to make that kind of a bargain and take the risk, that is a matter of his own, and whatever you may think of the act, if he really made that bargain, of course' he would have to stand to it; and if you believe that that agreement was made, carried out, and executed, acts done on the strength of it, money paid on it, then the plaintiff would have to look for the balance, if there be any comingto him, to them individually, and he could not claim these goods. This is the first defense. There is another branch of the defense set np by the defendants, and it is this : They allege that even if yon should not find that, if from the evidence, you should find that a different bargain was made, to wit: that there was an agreement made between them that the boys should keep possession of the property and carry on business themselves, and that the plaintiff was to keep the title, that it was not to pass from him until they had paid the debt; then it was necessary for the plaintiff, before he took the goods out of their hands, to give them a reasonable notice and make a demand of them to pay the money or he would take the goods.
    “Although the theories may seem inconsistent, still if the evidence would show that, the proposition is sound. If you find'that they did not have any1 notice, and were not given a reasonable time, that proposition would be correct, and it is for you to say whether there is evidence to sustain that or not.
    “Now, gentlemen, those are the defenses setup. Most of the evidence relates, as far as I can see, to the first branch. The defendants maintain they Have offered evidence tending to strengthen that position; they allege they have offered you the acts of the plaintiff; they have offered some papers, notes, etc., and offered evidence tending to show you that they acted on the strength of that; that they went on and carried on the business themselves ; that they put in the business all the money they could get; that they sold the property and put the proceeds in the business to run it and pay off this debt. You will remember the testimony. All that evidence is for you. The evidence relative to the books is not given for the purpose, as I said before, of settling the account. You cannot do that in this case. The object of that/evidence was to show you acts done in accordance with that theory of the defense.
    “Now, the plaintiff rebuts and denies ail that. He alleges no such bargain was made. He admits he had in his mind ultimately, or at some time when he was in a proper condition — when his claim was paid — to give the business to them. But he alleges he never made any such bargain, for the very obvious reason that it would injure the security to his claim, and he offers evidence of acts done on the part of the defendants utterly inconsistent with their view. He offers 'evidence to show you that the books were started in his name ;. and not altered till after divorce suit. One of the defendants answers by saying that he was directed by the plaintiff to make the alterations. The plaintiff denies that. There is a great deal of contradictory testimony, and you will have to work it out yourselves.
    ‘ ‘ Then the plaintiff offers other evidence to contradict the defendants. He offers a certificate to the government, made a short time before this suit, before there was any difficulty between the parties. They wanted to get a government contract, and the government rules required the ownership of the establishment to be stated. One of the defendants made out in writing a certificate to the government that Mr. Riddle was the actual owner, wrote it in his own handwriting, took it to Mr. Riddle, and Mr. Riddle signed it on the theory that he was the owner, and had been the owner all the time.
    “ So that you give to that such weight as you see proper in a matter "of that kind, and unless it be explained, it would be one item of evidence, it strikes me, of some weight. But that, of course, is for you. You heard the answer to that.
    “ The plaintiff offers other acts of the defendants. He offers the testimony of one of the defendants in a divorce suit in which he said he was not the owner; that he was under salary, and that Mr. Riddle was the owner, (and in that case the object was to see how much he was worth so that his wife would get alimony,) and he also testified that he was getting then $1,200 salary ; that he had been getting $2,000; and that he did not own this property at all.
    “ On the other side, that was answered by the defendant saying he was suffering under great mental excitement and trouble ; that he had been taking a good deal of quack medicine, and that he was in a bad mental condition, and'until the testimony was printed he didn’t understand it and told his counsel, Mr. Brown, (and Mr. Brown so testified,) that he wished to correct it.
    “Now, there is a great deal of testimony in the case which is very contradictory, and it is your duty to reconcile it if you can, and determine upon which side the weight lies.
    “I think I have called your attention, gentlemen, to the salient points in the case. I will say again, so as to get it thoroughly before you, that if the plaintiff has satisfied you from his evidence that he bought that business (and that is not disputed), that he went into possession of the property (and that is not disputed) after a sale on a valid judgment (which you cannot now inquire into); that he put these defendants in under him, to run his business ; that he did run it; that he remained the owner ; that he acted as owner; that the books were opened showing it as his property ; and that it continued in that way down to the issuing of the writ of replevin, he would have a case for recovery in his favor, unless the defendants have satisfied you of their defense, or satisfied you that that is not correct. As I said before, the only question in the case is: has the plaintiff satisfied you that he had a general or special property in these goods, and the right of possession at the time the writ of replevin was issued ? You have nothing to do with the^settling of the accounts of the parties. It is a simple question whether he was right in issuing the writ of replevin.
    “ Then, if the defendants on their side have satisfied you that it is not true, or if they have satisfied you with either of the defenses set up, your verdict should be in their favor.”
    Defendants presented, inter alia, the following point:
    “First. That unless the -jury find from the evidence that W. N. Piddle, the plaintiff, was, at the time of the issuing of the writ in this case, the sole and exclusive owner of the property in dispute, and, at the time, had the right to the immediate possession, he is not entitled to recover, and their verdict should be for defendants.”
    Affirmed.
    (Fourth assignment of error.)
    Verdict for defendants and judgment thereon, whereupon plaintiff took this writ, assigning for error the refusal of his points and offer of evidence and affirmance of defendants’ point given above.
    The Fifth assignment of error was as follows:
    The charge of the Court was contradictory and tended' to mislead the jury in this : That, while in the general charge, the Court ruled in substance that if the plaintiff had a general or special property in the goods replieved, and was entitled to the possession thereof when the writ was issued, he could maintain the action ; whereas, in affirming the first point of defendant in error, the Court charged that, in order to maintain the action, the plaintiff must be “ the sole and exclusive owner of the property in disputed

      John Dalzell, D. T. Watson, and Isaac VanVoorhis for plaintiff in error.
    To have vested the title to the goods in dispute in the Stewarts, delivery was necessary ; a mere parol gift by word of m.outh or executory contract does not pass title: Houser ». Kemp, 3 Pa. St., 208; Lester v. McDowell, 18 Pa. St., 91; Winslow ». Leonard, 24 Pa. St., 14.
    While it is true that, in the preface to the general charge, the Court said that either a general or special property would enable a party to maintain replevin, yet this is contrary to the doctrine affirmed at the request of the defendants that, before the plaintiff could recover, he must satisfy them that he was, at the time the writ of replevin issued, “ the sole and exclusive owner of the property in dispute/ ” and it left the jury with contradictory views as to the title the plaintiff must have in order to maintain the action. This, of itself, was error, because, if the charge tended to mislead, the Court will reverse. Nothing could certainly be more misleading than directly contrary opinions on exactly the same point.
    The offer of evidence, the refusal of which forms our sixth assignment of error, was, beyond question, relevant. Why not competent ? It is said because it was a confidential communication from Stewart, as client, to Mr. Lazear, his attorney. But Stewart himself opened the door, and of his own motion. May we not follow and show, not merely the one detail he refers to, but all the facts so far as they bear on the question ? Did Stewart, by mistake and inadvertently, make such statements in his testimony in the divorce case, as he now alleges he did, or was it a calm, deliberate statement of facts? The protection insured by the relationship of lawyer and client is created solely for the benefit of the client, and there is no ground for protection where he waives it: Wharton’s Ev. (Sec.,) 584, and Note3 ; Hamilton». People, 29 Michigan, 183 ; Hartford Ins. Co. ». Reynolds, 36 Michigan, 502.

      T. M. Marshall, A. M. Brown, O. O. Dickey, and Slagle & Wiley for defendants in error.
    The assumption by plaintiff that defendants allege a gift to them as the basis of their defense is without foundation. Such an agreement as that alleged by defendants is in no sense a gift, it is clearly a purchase, the consideration being the payment of claims which had been partially extinguished by the sheriff’s sale.
    If, then, the agreement amounted to a purchase of the goods by the defendants, as the jury have found, the goods being at the time in their possession, no delivery could be made, and, therefore, none was necessary.
    Even if the Court was not strictly right in affirming the defendants’ first point, under the charge of the Court and answers to other points, the jury could not have been misled as to the real question in issue, and, therefore, no harm could have been done to plaintiff.
    Although part of a charge may seem Erroneous, there is no error if, taken as a whole, the question at issue is left fairly to the jury : Reese ®. Reese, 90 Pa. St., 89 ; Little Schuylkill Nav. Co. ®. French, 81 Pa. St., 374 ; Vandike ®. Rosskam, 67 Pa. St., 334 ; Brightly Dig., 882, pi., 210.
    The offer of evidence, the refusal of which is the ground of the sixth assignment of error, was clearly incompetent for the purpose of contradicting the defendant, C. E. Stewart, for the reason that he had not been asked in reference to any conversation prior to the taking of“ the testimony.
    But it was clearly incompetent, because the conversations which they proposed to prove were privileged.
    It was admitted, the offer itself shows, that they were given to Mr. Lazear as counsel in the case then pending, and to enable him to conduct that case, and Mr. Lazear was permitted, without objection, to contradict the-only matter to which Mr. Stewart had referred.
    It is apparent that this testimony was not competent for the purpose of contradiction, and it was not competent for the “purpose of further corroborating testimony given by said Stewart in the divorce proceedings: ” Moore ®. Bray, 10 Pa. St., 519 ; Miller®. Weeks, 22 Pa.. St., 89.
    January 5, 1885,
   the opinion of the Court was delivered by

Green, J.:

“The transaction in controversy in this case was, in no sense, a gift. A gift is a gratuity, and nothing of that kind was claimed by the defendants. The contract alleged by them was, in legal substance, a sale; a transfer of title upon the payment of a full consideration, and upon that issue the case was thoroughly tried, and carefully committed to the jury by the learned Court below. The defendants being already in the possession of the goods, no formal delivery of possession was necessary in order to pass title as between the plaintiff and them. The first three assignments are without merit, and are not sustained. As to the fourth and fifth assignments, it is only necessary to say that no question involving the distinction between absolute and qualified property was raised by any aspect of the testimony. The plaintiff claimed title to the goods in suit as owner, and the defendants claimed that they were the owners. The Court repeatedly told the j ury that the plaintiff; could recover upon either a general or special property, and a right to the possession of the goods at the time the writ was issued, and this was not contradicted by the affirmance of the defendants’ first point. It is not easy to see that there was any occasion for the point, as the plaintiff claimed title as sole owner, and there was no evidence showing that he held title jointly with others. The point, therefore, was entirely harmless, and, as it related only to the number and connection of owners, and not to the character or quality of the title, the answer did not conflict with the general charge, and the point itself was of no consequence in the case. •

“ The offer of contradiction covered by the sixth assignment was too large. It was competent to contradict the witness, C. E. Stewart, by showing that he had not called upon his counsel, Mr. Lazear, for the opportunity to correct his testimony in the former case, because he had testified that he had done so on cross-examination. But that was the whole of his testimony on that subject. In point of fact, this contradiction was offered and given in evidence immediately before the enlarged offer was made. This offer, however, went far beyond the subject of the contradiction. It proposed to give in evidence privileged communications between client and counsel made prior to the time of the testimony in the former case, and as to which the client had given no testimony and had not been interrogated. It cannot be said, with any fairness, that the client had waived his privilege as to any such communications, and the offer to give them in evidence was, therefore, properly rejected!”

Judgment affirmed.


author: Per Curiam:

text:
    October and November Term, 1884,
    No. 95.
    October 30, 1884.
    Appeal of Rev. Nevin Woodside et al.

    1. The First Reformed Presbyterian congregation of Pittsburgh, at a meeting held for that purpose, elected W as their pastor, which election was certified to the Pittsburgh Presbytery, and by it acceptedand forwarded to the Northern Presbytery, of which W was a member. W regularly accepted the call, and was dismissed from the Northern to the Pittsburgh Presbytery as being in good and regular standing. W then gave up his church in Brooklyn, removed to Pittsburgh, and commenced preaching in said church, but was never regularly installed. By the rules of the church the pastor-elect has not the right of a pastor until installed by the Presbytery. The usual bond of the trustees was given him, promising to pay him $1,600 a year. Afterwards, resolutions were passed by the elders and trustees forbidding W to preach in the church, and he was enjoined by the Pittsburgh Presbytery from preaching therein, which action was sustained by the Northern Presbytery and by the General Synod. W continued to preach in, and retain possession of, the church.

      Held, that W’s attempt to disregard the action of the Presbytery was in violation of the duly constituted authority of the church, and there was no error in decreeing a perpetual injunction to restrain him from preaching in the church building or officiating as pastor.
    Before Mercttr, C. J. ; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of Rev. Nevin Woodside et at. from tlie decree of Common Pleas, No. 1, of Allegheny County, making perpetual an injunction restraining defendants from preventing Samuel W. Douglas, or any other person whom the Pittsburgh Presbytery may appoint, from preaching in, and occupying the pulpit of, the First Reformed Presbyterian Congregation of Pittsburgh; restraining Rev. Nevin Woodside from preaching in said church building or officiating as pastor, and restraining defendants from interfering with and preventing plaintiffs from lawful occupation, enjoyment, and possession of said church property, &c.
    Bill in equity by the First Reformed Presbyterian Congregation of Pittsburgh et at. against Rev. Nevin Wood-side et at.

    A preliminary injunction was granted on January 3, 1881. An answer was afterwards filed, and C. Hasbrouck was appointed examiner and master.
    October 11, 1883, the master filed his report, finding, inter alia, the following facts :
    The members of this church or congregation were incorporated in 1839, by the name of the “Trustees of the First Reformed Presbyterian Congregation of Pittsburgh.” The charter provided, among other things, for the election of trustees annually, by “all persons who shall be regularly enrolled worshipers in said congregation,” &c. In 1843 an amendment was made to the charter, whereby the election of trustees was restricted to “all male persons who shall be regularly enrolled worshipers in said congregation,” &c.
    The congregation owns certain real estate, on which is the church building, &c., on Oak alley, in the city of Pittsburgh — the title to which is held by the trustees.

      This congregation is a constituent part of the Reformed Presbyterian church in North America, being governed by the general synod, and by the Pittsburgh Presbytery of that church,"and by its own session. The general synod is the chief and sole legislative authority and supreme judicatory of the Reformed Presbyterian church in North America, having appellate jurisdiction in all cases, and original jurisdiction where it seems fit to exercise it, over the congregations, officers, and members of that church.
    The Pittsburgh Presbytery has jurisdiction and control over the congregations and members within its bounds ; the right to appoint ministers to preach in vacant pulpits ; to accept or reject a minister elected by a congregation; and if it accepts him, to install him as pastor of such congregation. By the rules of church government in the Reformed Presbyterian church, a pastor elect who has accepted the call has not the right or power of a pastor over the congregation until he is regularly installed by the Presbytery. The preaching to the congregation by the pastor-elect before installation, as usually occurs, is only by permission of the Presbytery ; and the Presbytery to which the congregation belongs may appoint any other minister to preach to that congregation, until a pastor is installed. Nevertheless, it is customary, when no objection is made, as a matter of courtesy, to accord to such pastor-elect all the right of a pastor installed, and in such case he performs the duties of a pastor, by the presumed consent of Presbytery and all others concerned.
    The session of a church or congregation is composed of the elders, with the pastor as moderator, or presiding officer. It has the spiritual government over the congregation, under and subject to the Presbytery. In the absence of an installed pastor, the elders may call upon the Presbytery to send them a minister of the same Presbytery to act as moderator ; or, if requested by the elders, #the pastor-elect may preside over them on a particular occasion, presumably with the consent of the Presbytery.
    The former pastor of this congregation, Rev. Wm. Young, having died in 1878, the pulpit became vacant, and after being supplied for a time in the usual way by the authority of the Presbytery, the elders and members took action towards procuring a settled pastor. And on the 8th of September, 1879, an election was held by the congregation in the church building, for selecting a pastor. That election, or congregational meeting, was presided over by the Rev. Samuel Young, then the moderator of the Pittsburgli Presbytery. Some time prior to this meeting the session or elders had drawn up a certain form of procedure, or regulation for conducting the election, to be submitted to the meeting, and among them was a provision authorizing absent members to vote by proxy. They also had prepared printed blank forms of proxy to be used. These forms of procedure and forms of proxy were presented to the meeting, and adopted by it, before the election began. These proxy votes, 83 in number, were cast by both parties, and no objection was made at that election to voting by proxy, nor does it appear that more proxy votes were cast for one candidate than for another. It does not appear for whom they were cast. Objections were made to certain persons voting, but not the manner of voting by proxies ; and all questions arising upon the objections were decided by the moderator. At that election, 283 votes were cast, of which 167 were for Rev. Nevin Woodside, and 116 for the other three candidates combined ; making a majority over all others of 51 votes for Rev. Nevin Woodside; and he was declared by the moderator elected. An appeal was taken from the decision of the moderator, in deciding that Rev. Nevin Woodside was elected, to the Pittsburgh Presbytery; which, at a special session held September 24, 1879, sustained the decision of the moderator — thus sustaining his election.
    From that decision of the Presbytery, an appeal was taken to the general synod; but this last appeal was never carried up to the synod ; it was abandoned.
    That election was certified to the Pittsburgh Presbytery as a call; was accepted by the Presbytery at its said special session of September 24, 1879, and according to the laws and discipline of the church, forwarded to the Northern Presbytery of the Reformed Presbyterian church, of which Rev. Nevin Woodside was then a member, and under its care ; and by the Northern Presbytery, accepted and presented to Rev. Nevin Woodside, who accepted the call; and thereupon, according to the laws of the church, the Northern Presbytery, on October 13, 1879, granted him the usual certificate in such cases, dismissing him from the Northern Presbytery to the Pittsburgh Presbytery as a pastor in good and regular standing.
    That certificate was placed in the hands of the moderator of the Pittsburgh Presbytery, and immediately thereafter Rev. Nevin Woodside removed from Brooklyn, N. Y., where he had been pastor of the First Reformed Presbyterian church of that city, and came to the city of Pittsburgh, and on the 19th day of October, 1879, commenced preaching in this church. The usual obligation (called a bond) of the trustees was given to him, promising to pay him $1,600 a year, while he should remain pastor of the congregation ; this was dated September 24, 1879.
    On November 7, 1879, another special meeting of the Pittsburgh Presbytery was held for the purpose of receiving the credentials of Rev. Nevin Woodside, and, as is usual with that body, the first question put was: £ Shall the call for this meeting be sustained ?’
    On being put to vote, it was not sustained, for what reason does not appear.
    On November 27, 1879, another special meeting of the' Pittsburgh Presbytery was held for the same purpose as the last, when, after sustaining its own call, instead of passing upon the question of receiving the credentials of Rev. Nevin Woodside, some other resolution was offered as a substitute for it.
    The moderator, Rev. Samuel Young, thereupon ruled this substitute as out of order, as not being within the terms of the call, and that, a special meeting such as this could not act upon anything not specified in the call for the meeting. An appeal was thereupon taken to the house for this ruling of the moderator-, and the moderator was overruled.
    Rev. Samuel Young, the moderator of the Pittsburgh Presbytery for the then current year, presiding at that special meeting, being unwilling to take a part in what he believed to be a violation of rule 31, left the chair, and refused to act further as moderator at that meeting ; thereupon, Rev. John Alford was elected moderator by that special meeting in place of Rev. Samuel Young. Some other proceedings were then had, but no further action was taken at that meeting relating to the First Reformed Presbyterian church.
    ' On October 21, 1879, at a meeting of the elders of this congregation, a resolution was passed by a majority of them declining to have Rev. Nevin Woodside preach in this clmrch.
    On October 24,1879, at a special meeting of the board of trustees of this church, all being present, nine in number, a resolution was offered forbidding Rev. Nevin Woodside to preach in this church, and that steps be taken to prevent his. installation, as being in accordance with the will of the elders. At this time the board of trustees.consisted of Samuel Barckley, president; Henry J. McCracken, Josiah Stevenson, Hugh Young, (four of the defendants,) Alexander Black, Thomas Biggerstaff, James W. Houston, James W. Logan, and A. K. White-side, secretary, (five of the plaintiffs.)
    The meeting was called to order by President Barckley, and, thereupon, Barckley, McCracken, Stevenson, and Young protested against this meeting being held on the ground that no notice of this meeting liad been read from the pulpit, and that it had not been called by the president of the board; It had, in fact, been called by the secretary, Mr. Whiteside, sending notices to all the members. The question whether it was a 1 legal ’ meeting was put to vote, and decided in the affirmative by five to four.
    The resolution forbidding Bev. Nevin Woodside to preach in the church was voted upon by all, and carried by the same vote, five to four. Then the resolution to take steps to prevent his installation was offered, which was objected to, and a motion to adjourn was made, and put, and voted down, four to five, by the chairman, Samuel Barckley, hearing only four yeas and two nays, decided the meeting adjourned, and Mr. Barckley, Mr. Mc-Cracken, Mr. Stevenson, and Mr. Young rose to leave the meeting. Then a motion was made to declare the chairmanship vacant, and to elect Alexander Black president of the board, which was voted by the five, and the other four left the room.
    The charter of this church provides (Article 8) that the trustees, or a majority of them, may meet as often as they deem proper, on'their own adjournment, and upon such notice and in such manner as shall be regulated by the laws ; and the said trustees, or a majority of them, so met, .are empowered to elect from among themselves a president, and from themselves, or other members of the congregation, a treasurer and secretary, and to remove, change, or continue all, or either of them, at their pleasure, &c.
    The charter also provided (Article 11) that vacancies in the board of trustees occurring between the annual elections, by death, resignation, or otherwise, shall be filled by the remaining members, &c. And by Article 3 : The trustees have the power to make by-laws, &c.
    There is no by-law authorizing the secretary, or any other person, to call' a special meeting of the board of trustees, nor any providing how notice shall be given for a special meeting.
    At the time of the above meeting of trustees, on Friday, October 24, 1879, the church building was locked up, and the key was in the hands of Mr. Biggerstaff, one of the trustees, acting with the majority. They intended to keep Rev. Nevin Woodside locked out, and to have Rev. Mr. Mackey preach in the church on the following Sabbath, the 26th. On the next day, Saturday, the 25th, some of the adherents of Rev. Nevin Woodside got into the church, and took possession of it, and put a new lock on the door, and kept possession, and on Sabbath, the 26th,’Rev. Nevin Woodside occupied the pulpit, and continued to preach in the church until after this bill was filed, and until the preliminary injunction was granted in this case.
    On the 8th of December, 1879, was the next regular stated meeting of the board of trustees, when all of them, nine in number, were present, and the meeting was called to order by Samuel Barckley, when the question was at once raised whether he or Mr. Black was the president. Both claimed it. The question was put to vote, and decided (5 to 4) that Mr. Black was president of the board. A motion was then made to approve the minutes of the last previous meeting of October 24th, which passed by the same vote, five to four.
    On December 16, 1879, the elders were authorized by Presbytery to engage a minister to supply the pulpit, ami they engaged Rev. Mr. Clyde to preach in the morning of the following Sabbath, the 21st, but, to avoid a conflict, he was advised by his friends not to go to the church.
    On December 21,1879, Rev. Nevin Woodside preached in the church in the morning, and Sabbath-school was held at 2 o’ clock in the afternoon.
    The other party (opposed to Rev. Woodside) had appointed that afternoon at half-past three for preaching by the Rev. Mr. Clyde, and met at that hour, when the Sabbath-school was about closing. Both parties then met in the church, when a strife arose between them ; the police were called in to quell it, and the Rev. Mr. Clyde did not preach in consequence of .the trouble.
    And from this time forth the trustees were divided into two parties, (five to four,) each party claiming to be the regular board.
    At this meeting of the five trustees, (March 9, 1880,) they, constituting a quorum, organized with Mr. Black as president, and, among other things, passed unanimously a by-law providing: ‘ Whenever the church building is destroyed by fire, or by other causes, or possession of the same is inaccessible to any of the trustees, or, in the opinion of the president of the board of trustees, it will not be expedient or advisable to hold the meeting for the election of trustees on the last Monday of March, at the church building, as provided in Article 9 of the charter and its amendment, that the said meeting on the last Monday of March, for the election of trustees, shall be held at the house occupied by the janitor, on the church premises, or at any other place the president may suggest,’ &c.,. and provides for notice thereof by publication, &c.
    The elders of the congregation, six in number, were likewise divided into two parties, each party claiming to be the true session of the church. They stood four against the Rev. Nevin Woodside, and two for him, at first; but, soon after, five to one.
    On the 26th of January, 1880, those of the congregation supporting Rev. Nevin Woodside elected five additional elders, thus bringing their number up to six.
    On January 28, 1880, the Pittsburgh Presbytery held another special session at Beulah to ‘ investigate existing difficulties in the First Reformed Presbyterian church, Pittsburgh, Pa., and take such action as may be deemed necessary to adjust them.’ This call was unanimously sustained by that Presbytery.
    At that session of Presbytery, J. W. Houston and Alexander Black, two commissioners from this church, appeared and presented a complaint against Mr. Wood-side, and petitioned the Presbytery to enjoin him from preaching in their pulpit until he had been regularly installed, and to take control of their pulpit, etc., and to take immediate steps to bring charges against him before the Northern Presbytery for his conduct since he came within the bounds of this Presbytery.
    That complaint was received, and, thereupon, that Presbytery resolved :
    “That Presbytery enjoin Rev. Nevin Woodside from preaching in the First Reformed Presbyterian Church of Pittsburgh, &c.”
    An adjourned meeting of this Presbytery was held at Deer Creek, February 18, 1880, at which Rev. Samuel Young presented and read an appeal.
    It was resolved that the appeal be not received.
    Rev. Nevin Woodside desired to read a declaration, which was ruled out of order.
    It was then
    ‘‘ Resolved, That the injunction restraining the Rev, Nevin Woodside from preaching in the pulpit of the First Reformed Presbyterian church of Pittsburgh, or in any way interfering with, or controlling, be indefinitely continued, and that the charges against Rev. Nevin Wood-side be accepted and forwarded to the Northern Presbytery.’
    On March 16, 1880, the Northern Presbytery met in New York in special session, on call of the moderator, ‘to consider complaint made by the Pittsburgh Presbytery against Rev. Nevin Woodside for disorderly conduct, &c.’
    Whereupon, it was
    “Resolved, That the Rev. Nevin Woodside is hereby directed to cease preaching in the First church, Pittsburgh, and to retire from the occupancy of that pulpit until after the meeting of General Synod, to which court this Presbytery refers the whole matter.”
    Mr. Woodside attended at this meeting of the Northern Presbytery, his name being on the roll of members.
    From November 29, 1880, on, there have been two boards of trustees, each claiming to be the true one under the charter of this church, and entitled to the possession of the property.
    On May 4, 1880, the Northern Presbytery met in New York, and the trial of Mr. Woodside was taken up.
    Mr. Woodside read a list of persons, (from fifty to seventy in number,) he wished to be cited, or requested to appear as witnesses. His request was referred to a committee, who reported that ‘Mr. Woodside should have made his request at the proper time. The committee consider the request as vexatious, and tending to retard business,’ which report was adopted.
    At this stage of the proceeding, Mr. Woodside arose and declined the authority of the court, stating that lie would appeal to the General Synod, and left the house, declaring that ‘ now and forever he retired from the jurisdiction of this court.’
    At an adjourned meeting the committee reported that ‘ Rev. Nevin Woodside had been convicted upon evidence of the charges preferred against him by the Pittsburgh Presbytery, and by the session of the First church, Pittsburgh,’ and expressed the ‘judgment of this court to be that Rev. Nevin Woodside be suspended from the exercise of his office until evidence of his reformation be exhibited.’
    The report was adopted and sentence pronounced.
    The General Synod of the Reformed Presbyterian church in North America met in Pittsburgh, Pa., May 19, 1880, at which the following was adopted :
    “ Whereas, Rev. Nevin Woodside was suspended from the office of the ministry by the Northern Presbytery, after due trial;

      “And whereas, Synod has refused to sustain his declination and appeal to Synod ;

      “And whereas, He has declined the authority of the Synod, appealed to the great head of the church, and withdrawn from our j urisdiction ; therefore,
    “ Resolved, That his name be, and hereby is, stricken from the roll of General Synod.”
    The master reported, inter alia, as follows :
    “I am of opinion that those seven named in the plaintiff’s bill, to wit: Alexander Black, Thomas Biggerstaff, James Logan, James W. Houston, A. K. Whiteside, James N. McMillan, and A. D. Munn, together with Samuel Barckley and H. J. McCracken, two of the defendants, making nine in all, were the' trustees of this church at the filing of this bill, for the following reasons : Prior, and up to the election of trustees, March 29, 1880, the board consisted of Samuel Barckley, H. J. McCracken, Alexander Black, Thomas Biggerstaff, James Logan, and James W. Houston, (six elected in 1878 and 1879,) and A. K. Whiteside, Josiah Stevenson, and Hugh Young, (three elected in 1877,) whose terms would.expire March 29,1880.
    “ The last time they all (9) met and acted together was December 8, 1879, after which they divided into two parties — five of them, Black, Biggerstaff, Houston, Logan, and Whiteside, composing a majority, and, therefore, a quorum, continued to meet as a board from time to time, up to the election of trustees, March 29, 1880, when, at the election held at Col. Stone’s office, and presided over by Alexander Black, president of the board, A. K. White-side was reelected, and John McMillan and A. D. Munn were elected for three years, in place of Josiah Stevenson and Hugh Young, whose terms then expired.
    “This election was presided over by Alexander Black, president of the board, as required by the charter.
    “The other election was presided over by Samuel Barckley, who had been superseded in his office of president by Alexander Black on October 24,1879. The change of President from Barckley to Black, made October 24, 1879, was within the express power of the board, as we have seen, (charter, Art. 8,) and this change was again confirmed at a full meeting of the board, December 8, 1879.
    “Alexander Black was, therefore, the president of the board of trustees, and who alone could preside at an election of trustees.
    “Now, the trustees hold the church property to be used for religious purposes as the ecclesiastical authorities, the session, and Presbytery shall direct.
    “The power to regulate the public worship in the church belongs wholly to the church judicatories, and is a matter with which the courts will not interfere further than is necessary to protect individuals, as citizens, in their lights to property, or emoluments connected therewith.
    - “Having thus ascertained who were the trustees, and finding that seven of the nine, composing a majority and quorum, capable of acting as a board, are among the plaintiffs in this suit; and finding also that the board of trustees had previously, at a meeting held October 24, 1879, passed a resolution forbidding Rev. Nevin Wood-side to preach in this church, and that the church building was in the possession of the defendants at the time of bringing this suit, and held by them against the will of the majority of the lawful trustees, it follows that tbe said trustees, plaintiffs, or their successors in office, must be restored the possession of the church property. And this without regard as to who were the elders or session of the congregation at the time, a question made by the eighth section of the bill and answer; for the lawful board of trustees must be put in possession before they can respond to the session or Presbytery as to the use of the property.
    ‘ ‘ And. this court cannot anticipate that the lawful board of trustees, when put in possession of the church property, will not manage it according to the direction of the true session and Presbytery, nor until the trustees shall err in their duty in the premises can this court be called upon to decide which of these two parties compose the true congregation.
    “And, notwithstanding Rev. Nevin Woodsidehas been suspended by the Northern Presbytery and by the General Synod for disobeying the injunctions issued at one of those meetings of Presbytery, forbidding him to preach in this church — which injunction was issued without a hearing, and was accompanied by an order striking down the election by this congregation, as well as the acts of a former session of Presbytery — it would seem that he has been the victim rather than the cause of the unhappy division of this congregation, and that he has been supported by the majority of the congregation in a struggle which lie and they believed, at least, to be in the support and maintenance of the rules and discipline of the Reformed Presbyterian church.
    ‘ ‘And whether they have erred therein or not, it is not now the duty of this” court to decide. It is sufficient that the lawful trustees be put in possession of the church property.
    “For these reasons lam of opinion that the injunction heretofore granted should be made perpetual, and that the defendants be decreed to pay the costs of this proceeding, including the master’s fee.”
    ■Both parties filed exceptions to the master’s report, which were dismissed, and on April 17, 1884, it was ordered, adjudged, and decreed that the injunction theretofore granted be made perpetual, and that the defendants pajT- the costs, etc.
    The Court Stowe, P. J., filed the following opinion:
    “We are not called upon, as this case comes before us, to consider any of the principles of law specially relating to rights of churches and congregations, where secession or excision, conformity or non-conformity to the tenets of a religious society are involved. The rights of all parties here must be controlled by the rules of government and discipline peculiar to the Reformed Presbyterian church, and the only question for the court now to determine is, under the evidence before us, which party is entitled to the possession of the pulpit and the consequent occupancy of the First Reformed Presbyterian church, under the established system of government recognized by that body. *
    “ The substantial facts, so far as they are important to this view of the question, are as follows:
    “There being a vacancy in the pastorate of this church, an election was held by the congregation on the 8th September, 1879, for the purpose of selecting a pastor at a meeting, presided over by the Rev. Samuei Young, then moderator of the Pittsburgh Presbytery, to which this congregation belonged. At that election the Rev. Nevin Woodside was declared to be elected, but a large number of persons, including some, if not all, of plaintiffs, protested against the election as illegal, and appealed to Presbytery for a determination of the controversy.
    “ On the 24th Séptember, a body claiming to be the Presbytery met, and, after a consideration of the question, sustained the election, and recognized the call of Rev. Woodside as valid and legal, thus overruling the appeal; and the call was- thereupon duly certified to the Northern. Presbytery, of which he was a member. The Northern Presbytery also recognized the call, and submitted it to Mr. Woodside in the ordinary manner. He accepted it as a regular call, under the laws of the church, and the Northern Presbytery then gave him the usual certificate of dismission, (so called,) and character required in such cases. The bond required under such circumstances was also executed and delivered to Mr. Woodside, securing him a salary of $1,600 per annum while he remained pastor of First Reformed church of Pittsburgh. He shortly after removed here, commenced preaching in the church, and has continued to do so, claiming the right as'pastor of this congregation till the present time, but has never been installed.
    “Here arises the first ground of contention. The defendants claim that Mr. Woodside had a legal right to occupy this pulpit from the time he accepted the call and entered upon the duties of pastor, and that the foregoing facts, without installation, were all that was necessary to create the relation of pastor between him and this congregation, and that the Presbytery had no right to interfere, and prevent or refuse his installation, or otherwise to enjoin his preaching or acting as pastor, without legal cause alleged and shown upon a trial, with proper notice, according to the established discipline of the church. . j
    “If this were so, then it would follow that the proceedings of the Pittsburgh Presbytery at Beulah and Pittsburgh, subsequent to the meeting which ratified the call of Mr. Woodside, would be disorderly, and go for nothing in this hearing, because, whatever its form and pretense, it would have been practically a trial and ouster of a duly arid legally constituted pastor, without regular process, notice, and hearing, and therefore illegal and void. But we think that, under the rules, for the government of this church, Mr. Woodside never was the pastor of this church, and that his acceptance of the call and dismissal from the Northern Presbytery, and the other facts in evidence in regard to that matter, did not and could not of themselves create the legal relation of pastor between him and this congregation.
    “The utmost that can be claimed under the evidence on the part of the defendants is that it is customary, under such circumstances, for the pastor-elect to occupy the pulpit as though he were the pastor in fact until the installation, and that his claim for salary is recognized from the time he begins to perform the duties of his office, This, in cases where the pastor is subsequently installed, seems only just and proper, even where there may be considerable opposition and delay, but, so far as wfe can see, throws no light upon the practice where there never was a subsequent installation, by reason of the interposition of the Presbytery.
    ‘ ‘ The evidence leads us, unhesitatingly, to the conclusion that, under the laws of this church, until installation, the pastoral relation is merely expectant, and that Presbytery may, for reasons satisfactory to itself, refuse to install, and direct the candidate to vacate the pulpit. If, therefore, the Pittsburgh Presbytery have, by due process, refused to install Mr. Woodside, and ordered him to desist from preaching in this church, his action in persisting to occupy the pulpit since notice of such order- has been disorderly, and in violation of his duty to the powers of the church.
    “This brings us to consider the action of the Presbytery at Beulah. The evidence shows that at the election of Mr. Woodside, a large number of the members of the congregation signified their dissatisfaction, and appealed to the Presbytery for redress, alleging an undue election. On the 24th of September, several persons, undoubtedly members of the presbytery, but whose right to act as such was earnestly resisted by reason of alleged irregularity in the call under which it convened, met at Pittsburgh, overruled the appeal taken by plaintiff, ratified the election of Mr. Woodside, and declared the action of the congregation a ‘Gospel call.’ Afterwards another meeting, undoubtedly properly called, was held at Beulah, on the 28th January, 1880, specially called “to investigate existing difficulties in the First Reformed Presbyterian church, and take such action as may be deemed necessary to adjust them.” At this meeting complaint wus made, inter' alia, that Mr. Woodside had been illegally elected, and that the appeal of complainants had been disregarded and treated with disrespect by the so-called Presbytery of September 24, and that its action in the ratification of the call was improper and unfair, and injurious .to the best interests of the church. The Presbytery examined into these complaints, and took action thereon by finally ordering that Revs. John Alford, Alex. Savage, and Samuel Young be enjoined from ordaining any ‘so called’ new elders, and resolved that the Rev. Nevin Woodside preach no more in the First Reformed Presbyterian church without a regular appointment from the Pittsburgh Presbytery. Of these proceedings, it is apparent that neither Mr. Woodside nor the 6 new elders ’ received any such notice as is required by the laws of the church wherh individuals are charged with scandal or other personal offenses against its discipline, and therefore the respondents claim these proceedings of Presbytery were illegal and void so far, at least, as their interests are affected by them. While it is undoubtedly true that the civil courts will not ordinarily undertake to interfere with the decisions of church judicatories as to the meaning of its constitution, confession of faith, and discipline, where civil rights or property are involved they will supervise, and, when necessary, control their action so far as to inquire and adjudge whether the judicatories have properly conformed to their own laws. And it cannot be denied that in all matters directly involving the rights or standing of individuals' in the church, which, under its laws, are made the subject of investigation and punishment, said persons should have due notice of the charges against them, and be allowed time and opportunity to prepare and produce their defense, and then, if they desire it, to be reasonably heard by themselves or counsel, unless it may, perhaps, be where the established laws of the church, expressly or by necessary implication, authorize ex parte proceedings.
    “The question now recurs: Was the action of the Presbytery such as required notice to Mr. Woodside and the ‘new elders’ to give it legal effect, and was it, so far as it was intended to operate upon them, illegal or void ? We think not. There was, in no proper sense, a trial of any of those parties. So far as was material to the investigation before Presbytery, the matters for its consideration and determination in no respect necessarily involved their personal conduct.' They were solely in regard to the regularity of the elections and the proceedings of the Presbytery which ratified the call óf Mr. Woodside, on the 24th September, so far as affects the case. These matters it was not only the right, but the duty, of Presbytery to inquire into, and might be done either, upon complaint or upon its own volition for the good of the church. ‘The Presbytery is the essential court of the church in administering its general order.’ ‘And it belongs to the Presbytery, by virtue of the official authority of its members, to hear and issue complaints and appeals from church sessions, and references for advice or adjudication, to install ministers of the Gospel, and to examine and approve or censure the records of church sessions, and to visit particular churches for the purpose of inquiry into their state, and redressing evils which may have arisen in them, and in general, to order whatever is necessary to the spiritual welfare and prosperity of the churches under its care.’ Vide sections three and four, article two, Form of Government Presbyterian Church.
    “It is true the result in such cases often may be, and in this case was, prejudicial to individuals, but it infringed upon no legal rights, and was only the exercise of a supervisory power granted by the constitution of the church. We think the action of the Pittsburgh Presbytery was legal, and for this reason alone would be compelled to hold that Mr. Woodside has now no right to occupy this pulpit as its pastor, and that he and the other defendants are disorderly in withholding it from the control of the Pittsburgh Presbytery.
    ‘ ‘ There are, however, other reasons which plaintiffs allege lead to the same conclusion. It is claimed that the General Synod of the Reformed Presbyterian church, its highest judicatory, has adjudged that Mr. Woodside is not entitled to occupy this pulpit; has sustained the action of the Northern Presbytery, as well as the action of the Pittsburgh Presbytery, which met at Beulah, throughout ; and having finally decreed, upon full hearing, that Mr. Woodside’s name be stricken from the roll of the synod, has thus adjudged that he has no longer any right to act as a minister in the church.
    “Such, it seems to us, is the effect of the proceedings of the Synod, and by all recognized principles of law, the judgment of that tribunal must be taken by us to be conclusive, unless palpable injustice, or a trial without sufficient notice, or a reasonable hearing is shown by the evidence.
    “The minutes of the proceedings before the Northern Presbytery, and the evidence sustaining the fairness of the trial, are not overborne by the proofs to the contrary. We are bound to make every fair presumption in its favor. The Presbytery had to determine the question of necessity for the” witnesses Mr. Woodside demanded should be summoned, and also as to their number. The evidence fails to impress us with the fact that, under the circumstances, injustice was done by Presbytery in refusing to summon the very large number of witnesses desired by him. Nor do we think that his ‘declinature’ made it” the duty of the Presbytery to stay further proceedings. It had the right thereafter to proceed to final judgment. The Synod, upon prolonged examination, have so decided, and sustained the action of the Northern Presbytery to the fullest extent.
    “We cannot see that its judgment was either unconstitutional or manifestly unjust, and therefore must take it as finally determining the right to the further possession of this church against Rev. Nevin Woodside and his co-defendants under the claims set up by them.
    “An injunction is now ordered to be issued, as prayed for, upon security being entered, according to law, in the sum of $3,000.”
    The defendants then appealed, assigning as error the decree making the injunction perpetual, ana the dismissal of the exceptions to the master’s report.

      John Dalzell, A. M. Brown and Edward J3. Golden for appellants.
    The charter enacts that in all meetings of the congregation after due notice, the acts of a majority of those present shall be binding on the congregation. A large majority at the regular meeting, after due notice, favored Mr. Barckley as president. The other party withdrew, and held an irregular meeting at a private office. The regular meeting at the church was in strict accordance ■with the rules and notice. The election was a civil proceeding, and the church court had neither right nor power to interfere or control.
    To determine the civil rights of the trustees, there is a plain and adequate remedy at law by quo warranto: Hewitt’s Appeal, 88 Penn. St., 55; Koch’s Appeal, 93 Id., 434 ; 39 Leg. Int., 414; 97 Penn., 313 ; 11 W. N. C., 379 ; 32 P. P. Sm., 163 ; 92Penna., 168 ; Id., 171; 93Id., 50.
    The acts and decrees of church judicatories are only binding upon civil courts when it is affirmatively shown that such judicatories have acted within the scope of their authority : 5 Wr., 9 ; 27 P. P. Sm., 397 ; 8 Nor., 97. The only constitutional method by which a congregation can express itself is by congregation meetings regularly called: 27 P. P. Sm., 397; 17 Id., 138 ; 3 Nor., 286 ; 6 Wr., 503 ; 15 Wallace, 131. •
    Trustees have no voice or control in the spiritual government of the congregation: 3 Brewster, 287; 7 Phil., 310; 2 Barb., 397; High on Extraordinary Leg. Remedies, sec. 282.
    Rev. Woodside was de facto and de jure pastor-elect. He was pastor without installation: Presbyterian Dig., 419; Young *. Ransom, 31 Barb., 49; 12 N. J., (7Hal-stead), 206 ; 5 Wr., 9 ; 4 Leg. Graz., 2 ; 9 Nor., 477 ; 22 Md., 156 ; 2 Barb., 397; 3 Lansing, 434 ; 3 Barr, 282 ; 11 Harris, 495.
    A judicial sentence without notice or hearing is contrary to natural justice, and consequently void : 4 Wh., 601; 3 Barr, 124; 7 Watts, 441. If the Presbytery declines to install, the candidate cannot, either by ecclesiastical or civil law, be tried and condemned without an opportunity to defend himself. The Presbytery refused to summon a single witness.
    The defendants denied the whole equity of the bill; therefore, the injunction should not have been granted: Butler v. Farr, 1 W. N. C., 11; Id., 199; Id., 455 ; 1 Phila., 574 ; 27 P. F. Sm., 270; 12 Id., 17; 28 Id., 196 ; 4 Id., 183 ; 2 Id., 62 ; 18 Id., 370 ; 2 Jac. & Walker, 247 ; Lewin on Trusts, *498 ; 31 Barb., 49.

      Thomas M. Marshall and Wm. A. Stone for appellees.
    The election for trustees was held at a private office because defendants had obtained possession of the church, and created a riot when the election was attempted to be held on the church property. The charter provides that the board of trustees shall elect their own president. The legal presumption is in favor of the decision of the church courts on all matters within their discretion. The church courts are the exclusive judges of all matters of church discretion. The call must be sustained by the Presbytery having the congregation in charge.
    If the Presbytery approve of the call, it will install the pastor-elect: Install — See Webster, Worcester, Barclay, Bouvier, Wharton, Abbott. A governor, president, or any other officer-elect, cannot assume to exercise official authority before inauguration.
    The Pittsburgh Presbytery could not try Rev. Wood-side because he was not a member.
    Act 16th June, 1836, section 13, gives the courts of common pleas the jurisdiction and powers of a court of chancery over corporations: Sarer’s Appeal, 32 P. F. Sm., 183.
    When a division occurs in a congregation, the possession of church property must follow those who obey the laws of the church, and obey the injunction of the ecclesiastical court having jurisdiction: 3 Merivale, 400; 1 How. Pail. R., 1; 13 Wall., 679 ; 3 Barr, 282; 9 Id.,. 321; 19 P. F. Sm., 469 ; 17 Id., 138 ; 7 Wr., 244 ; 32 P. F. Sm., 183 ; 7 Hals., 206 ; 7 Monroe, 481; 13 W. N. C., 226

      The trial by the Northern Presbytery was not material to the issue, as the right of the Pittsburgh Presbytery was absolute.
    November 10th, 1884.
   Per Curiam:

The right claimed by the appellant could only be acquired under the government and discipline of the Reformed Presbyterian church. By the rules of that’church the right of installation is delegated to the Presbytery. Until it sees proper to install, a candidate for the pulpit has no right thereto as pastor. The Pittsburgh Presbytery, by due course of proceeding, refused to install the appellant, and ordered him to vacate the pulpit, which he had temporarily been suffered to occupy. He was further ordered to desist from preaching in the First Reformed Presbyterian church in Pittsburgh. Thenceforth his attempt to disregard the action of the Presbytery was in violation of the duly constituted authority of the church to which he owed obedience ; and the learned judge committed no error in making the preliminary injunction perpetual.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Gkeen, J.:

text:
    ARMSTRONG COUNTY.
    October and November Term, 1884,
    No. 69.
    October 14, 1884.
    Guthrie v. Hilty.
    1. Where a plaintiff appeals from an award of arbitrators in her favor, and files a bill of costs for fees of her witnesses, the fact that she has not paid these fees to the prothonotary is no reason for striking off the award.
    2. The act of 16 June, 1836, sec. 29, Purdon, p. 110, providing for a recognizance to be given by the plaintiff on an appeal irom an award, conditioned that if he does not recover a sum greater, or judgment more favorable to him than the award, he shall pay all costs that accrue in consequence of his appeal, was abrogated by the act of March 20, 1845, sec. i. Purd., p. 110.
    3. When a plaintiff obtains an award in his favor, and on an appeal taken by him recovers a verdict for the same amount, he is entitled to full costs.
    4. Wible v. Burford, 7 Pitts. Leg. Jour., 188, followed.
    Before Mercur, C. J. ; Trunkey, Sterrett, Green, Clark, JJ.; Gordon and Paxson, JJ., absent.

      Error to the Court of Common Pleas of Armstrong County.

    Case for breach of promise to marry and for seduction, by Eliza Jane Hilty against W. C. Guthrie.
    From the records of the court below, it appeared that an arbitration of the case was held in which an award of $500 was filed in favor of the plaintiff on March 3, 1882. On March 15, 1882, the plaintiff filed a bill of costs for the attendance of and subpoenaing of witnesses at the arbitration. On March 22, she took an appeal from tho award of the arbitrators. On January 24, 1883, Guthrie presented his petition to the court, praying for a rule to show cause why the award of the arbitrators should not be stricken off. On January 24, 1883, the Court made the following order: “The appellant having paid all costs accrued against her and given bail for all costs accrued, or that may be recovered against her, the Court hold that she is not bound to show that she has paid her own witnesses their fees for attendance, which defendant was, specially ordered to pay on continuance of cause, nor other costs that would be embraced in appellant’s bill, as plaintiff — not being costs accrued under the law. Motion, therefore, refused.” Exceptions sealed.
    The case came on for trial October 18, 1883, and a verdict was rendered for the plaintiff for $500.
    The defendant moved for a rule that judgment should be entered without costs. The Court refused the motion, filing the following opinion’:
    “The defendant moves that judgment be entered on verdict against him without costs, because the verdict is for the same amount, viz: $500, as the award of arbitrators from which plaintiff appealed, and cites Henshaw v. Seiler, 2 Pearson, 113.
    “In Wible v. Burford, 7 Pittsburgh Leg. Journal, 188, error from this county, the Supreme Court decided the question raised here. The abstract of opinion given in the Journal is as follows: ‘ When a plaintiff obtains an award in his favor, and on appeal taken by him recovers a verdict for the same amount, he is entitled to full costs. Our law having no special provision for the exact case, it follows the rule of the statute of Gloucester, 10th Barr, 180; 10th Harris, 298. Judge Pearson’s attention does not seem to have been called to this case, decided at November Term, 1859, and his view of the statutQ of Gloucester. seems to differ from that of the Supreme Court. The motion is refused, and judgment is directed to be entered in favor of plaintiff, with costs of suit, on payment of jury fee.”
    The defendant thereupon took this writ, assigning for error the action of the Court in refusing to strike off the appeal from the award of arbitrators: in entering judgment for the plaintiff with full costs, and in not confining its judgment for costs to such costs as accrued since the entry of the award.

      McCain <& Leason, Buffington & Buffington, for plaintiff in error.
    The plaintiff filed a bill of costs for the attendance of her witnesses before the arbitrators, and the fees of the persons who served the subpoenas upon them. These costs the defendant must undoubtedly have had to pay had he taken the appeal. They were accrued as to him ; if as to him, -why not also as to the plaintiff? The Court say because the plaintiff is liable personally to her own witnesses for their attendance. If this be so, then why pay the costs due the court officers, for the plaintiff is liable as well for them to the officers ? These costs certainly had accrued, the service had been performed, the witnesses had attended, they had been subpoenaed, and the persons who served them were entitled to their fees ; if we can understand what'accrued means, “ to arise, proceed, to be added as increase, profit, or damage,” then these costs should have been paid. If the costs had not been filed, then we could not have hunted them up, and, because they were not paid, have had the appeal dismissed; but here everything had been done, and the plaintiff, by her own act, had made them part of the record; there was no necessity even'to tax them to fix her liability for them, for that was fixed by her own act in swearing as to their correctness and placing them on record. She has not performed the condition that must precede the appeal, and has not paid off all the costs that have arisen in the case, and this she must do before she can gain a foothold in another tribunal: Henshaw v. Seiler, 2 Pearson, 113.
    Ü7. 8. Golden and W. B. Patton for defendant in error.
    October 27, 1884,
   the opinion of the Court was filed by

Gkeen, J.:

All the assignments of error in this case are devoid of merit. It would have been entirely useless to require the appellant to pay her own taxed bill of costs on entering the appeal from the award of arbitrators, since she could immediately have drawn the whole amount from the prothonotary. She alone was responsible to her own witnesses and agents who served her subpoenas. The filing of her bill of costs was not done' to enable her to recover the amount of the bill from herself, but from her adversary in case he appealed. We can see no reason why the final judgment should not have been entered for full costs. Under the act of 16th June, 1836, sec. 29, Bright. Purd., p. 110, pl. 35, when the plaintiff appealed he was obliged to give recognizance, conditioned that if he did not recover a sum greater, or a judgment more favorable to him, than the award of the arbitrators, he should pay all costs that accrued in consequence of his appeal. But all this was changed by the act of 20th March, 1845, sec. 1, Bright Purd., p. 110, pl. 38, by which it was provided that thereafter, in lieu of the bail theretofore required, the bail in cases of appeal from the judgments of aider-men and justices of the peace, and from award of arbitrators,, should be bail absolute in double the probable amount of costs accrued and likely to accrue in such cases, with sureties conditioned for the payment of all costs accrued or that may be legally recovered in such cases against the appellants. The provision in regard to a less favorable judgment was entirely abrogated, and has never been in force from the date of the last-mentioned act. There is no other statute, and no decision of this Court, which holds that in the event of a less favorable judgment being obtained by a plaintiff appellant, he shall not have full costs, and we are aware of no reason or principle upon which a ruling to that effect could be sustained. In the only case to which our attention has been directed in which the question has arisen, Wible •». Burford, 7 Pitts. Leg. Journal, 188, we held that “when a plaintiff obtained an award in his favor, and on an appeal taken by him recovers a verdict for the same amount, he is entitled to full costs.” That is this case precisely, and we have no disposition to establish a contrary rule now.

Judgment affirmed


text:
    Oct. and Nov. Term, 1884,
    Nos. 154 and 155.
    Oct. 16, 1884.
    Kunkle’s Appeals.
    The defendant in a judgment, which he authorized to be entered after due deliberation for purposes of gain, and with full knowledge of the unlawful character of the transaction, cannot be relieved from it by showing that it was without consideration, and given as payment for spurious money, agreed to be delivered, but never received.
    Before Merctjr, C. J. ; Cordon, Paxson, Trünkey. Sterrett, Creen,-and Clark, JJ.
    Appeals of Michael Kunkle from decrees of the Court of Common Pleas of Armstrong County, discharging his rules to show cause why certain judgments entered against him by H. H. Hayden for usé of J. A. Blaney should not be opened and'the defendant let into a defense.
    Judgments had been entered on September 4, 1883, on two judgment notes, one dated November 24, 1882, at one year for $50, and one dated November 15, 1882, at one year for $40.
    The complainant’s petition represented that “on the 13th day of November, A. D. 1882, Harry H. Hayden came to my house and showed me some money which looked to me to be good money, and told me he would give me two hundred dollars of it for fifty dollars. I did not wish to do so, but he talked to me, and finally offered me two hundred dollars of it if I would give him $40. I had no money and told him so; he said he would take my note at one year. I finally gave him my note for $40, payable in one year, and dated November 15, 1882. He promised to bring me the money in a few days. That I have since discovered the whole matter to be a fraud, and have never received the money which he promised, nor any part thereof. That the note is wholly without any consideration whatever.”
    The petition prayed that the judgments might be opened and defendant let into a defense.
    The depositions taken for and against the rule contained evidence that Kunkle’s understanding of the contract with Hayden was that the latter was to furnish him with $400 in spurious money in return for bis two notes, amounting together to $90. There was also evidence that the use Plaintiff Blaney bad purchased the notes for value, and had been informed by Kunkle that they were “.about right.”
    The Court, on argument, discharged the rules, citing Gill v. Henry, 14 N., 893 ; whereupon the petitioner took this appeal, assigning for error the action of the Court in thus discharging the above rules and thereby dismissing the prayer of his petitions.

      McCain & Leason for appellant.
    The entry of a j udgment on a warrant of attorney does not render the contract executed, and does not preclude an inquiry into the character' of the consideration: Ham et al. v. Smith, 87 State, 63. i
    If a contract is enforced against one .party it must be enforced as to the other. We think no court would compel Hayden to perform his promises. Yet the court below enforces upon Kunkle the performance of his part of the contract.
    The court below decided this case on the authority of Gill v. Henry, 14 Norris, 393. In that case the bond was given to hinder delay and defraud creditors, differing in principle from this case. The reason there given for sustaining the bond is a good reason why the judgments in these cases should be opened.
    The inquiry as to what Kunkle might have done with the spurious money (granting it was spurious) if he had received it is too remote to enter into the determination of this case. It is no part of the contract under discussion, and cannot be set up as a defense by Hayden or any person standing in his place.
    In Comly v. Hillegass, 94 State, 132, this Court held that a check given for the purpose of having a horse entered in a race at a fair was void. There the parties were in pari delicto, horse-racing being prohibited by statute.
    In the present case buying or selling counterfeit paper money is prohibited by act of Congress : Sec. 5434 Revised Statute U. S., 2d Ed., p. 1053.
    An immoral or illegal contract may be repudiated and rendered void at any time before entire execution, when in violation of a statute: Holt v. Green, 73 Pa. St., 201.

      W. D. Pattoñ for appellee.
    The authorities are numerous that a party to a fraud cannot seek relief in the courts from the consequences of his unlawful act: Winter «. Freeman, 6 Out., 866; Hershey v. Weiting, 14 Wright, 240 ; Evans v. Uravo, 12 Harris, 62; Gill v. Henry, 14 Nor., 388. Kunkle knew of the fraudulent purpose, and hence he cannot be said to be defrauded. “If one confess a judgment to another, with a full knowledge of its fraudulent purpose, and without being in any manner induced thereto, excepting as confederate, he cannot be said to be defrauded, for he intended what he did:” Blystone v. Blystone, 1 P. F. Smith, 373.
    October 27th, 1884.
   Per Curiam:

The claim made by the appellant shows that he is in no condition to invoke the aid of a court of equity. He affirms his own turpitude in the very contracts from which he seeks to be relieved. He. entered into them after due considera-tion for the purpose of gain, and with full knowledge of the unlawful character of the transactions. He cannot now be relieved from the judgments which he authorized to be entered against him, by showing his own illegal and immoral acts: Holt v. Green, 23 P. F. Smith, 198; Gill v. Henry, 14 Nor., 388; Winton v. Freeman, 6 Out., 366. The Court was clearly right in refusing to open the judgments and in discharging the rules.

Decrees affirmed and appeals dismissed at the costs of the appellant, in each case.