author: Mr. Justice Sterrett

text:
    Wiley’s Executors’ Appeal.
    1. The provisions of the Act of 1834, which give the Orphans’ Court jurisdiction to decree specific performance of the contracts of decedents for the sale and conveyance of real estate, do not confer upon that court the power, expressly or by implication, to take cognizance of partnership dealings and state an account between the surviving partner and the representatives of the deceased, or where a full and final settlement of the partnership affairs and the specific performance of agreements in relation to real estate are necessarily involved in carrying out the contract of a decedent.
    2. The proper forum to enforce performance of such a contract is the Court of Common Pleas, whose equitable powers may be invoked in the settlement of the partnership affairs, and whose decree will vest a good and sufficient title in the real estate to be conveyed under the terms of the contract.
    May 11th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Paxson, Woodward and Sterrett, JJ. Gordon, J., absent.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1877, No. 189. In Equity.
    This was a bill in equity filed by John B. Warfel and Edward Wiley, executors of William M. Wiley, deceased, agaiiist George Calder, Jr., Hannah J. Wiley and The Fidelity Insurance, Trust and Safe Deposit Co. of Philadelphia, guardian of the five minor children of said William M. Wiley, deceased, praying the court to decree specific performance of a contract set forth in said bill.
    To this bill defendants demurred, on the ground that the exclusive jurisdiction for the enforcement of the performance, of the contract was in the Orphans’ Court for the city of Philadelphia, the forum having jurisdiction of the accounts of the executors.
    The court, Patterson, A. J., sustained the demurrer on the ground of want of jurisdiction, and made a decree in favor of defendants, from which this appeal was taken.
    The terms of the contract and the proceedings in the court below are sufficiently set forth in the opinion of this court.

      George W. Biddle and William Aug. Atlee, for appellants.
    The Act of February 24th 1834, Purd. Dig. 276, pl. 10, which confers power upon the Orphans’ Court to decree specific performance of a contract to sell and convey real estate, contemplated only an ordinary bargain and sale, but no power is thereby given to said court, either directly or by implication, to state an account between partners, or take any cognizance of partnership matters. The Orphans’ Court never had jurisdiction of the subject-matter of this controversy and a court of equity is the only forum in which the questions involved can be adjudicated.

      A. Slaymaker, for appellees.
    As to those matters which are subjects of its jurisdiction that of the Orphans’ Court is exclusive: Shollenberger’s Appeal, 9 Harris 337 ; Dundas’s Estate, 23 P. F. Smith 474, 480. By the Act of 1834 said court has power to decree the specific performance of contracts for the sale and conveyance of real estate, &c.
    Wherever a chancellor would direct a conveyance in discharge of a decedent’s undertaking this court is bound to interpose with like effect: McFarson’s Appeal, 1 Jones 503; Chess’s Appeal, 4 Barr 52.
    The remedy being provided by Act of Assembly it must be strictly pursued, and the Orphans’ Court is therefore the only forum in which specific performance can be decreed: Porter v. Dougherty, 1 Casey 405; Ashford v. Ewing, 1 Id. 215; Cobb v. Burns, 11 P. F. Smith 278; Mussleman’s Appeal, 15 Id. 485.
    The jurisdiction of a court of equity is of the largest description and capable of being invoked wherever the exercise of its peculiar powers will ascertain and vindicate right; but the mere fact that a transaction or series of transactions might, at one period, have been cognisable in said court does not fix them there definitively and after the occasion for the exercise of its powers has passed. We submit, therefore, that an account of the affairs of this partnership having been settled voluntarily and to the satisfaction of all parties, there is nothing to warrant an appeal to a court of equity.
    June 26th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The only question raised by the demurrer in the court below as well as here is one of. jurisdiction. The learned judge of the Common Pleas dismissed the plaintiff’s bill on the ground that the facts therein presented, brought the case within the provisions of the Act of February 24th 1884, which gives to the Orphans’ Court jurisdiction to decree specific performance, whenever any person shall, by a bargain or contract in writing, bind himself to sell and convey any real estate in this Commonwealth, and shall die seised or possessed of such real estate without having made any .sufficient provision for the performance of such bargain or contractand, consequently, that the proper Orphans’ Court had exclusive jurisdiction.

The substance of the plaintiffs’ bill is, that the testator, William M. Wiley and George Calder, Jr., one of the defendants below, associated themselves, as partners, in the business of manufacturing cotton goods, for the term of five years from the 1st of October 1870; and, in their articles of partnership, agreed that if either should die during the term the survivor should take the real estate, mill and machinery at a valuation of $60,000, and pay to the heirs or assigns of the deceased partner the amount of his interest therein, in five equal annual instalments, with interest, to be secured by bond and mortgage on the mill property; and take the personal property of the firm at a fair valuation. The real estate was conveyed to them as partners, to be held, as specified in the deed, “ in such parts and proportions as that when the interest hereby conveyed is added to the share or interest already owned by said parties of the second part respectively, they shall be each seised and possessed of and in such parts and proportions of said premises and subject to such conditions, restrictions and limitations as are provided for in the articles of partnership;” and, by subsequent writing, it was declared that they held the same “ as partners in equal interest, shares and parts.” Upon the decease of Mr. Wiley, during the term, the surviving partner went into the sole possession of the real estate, under the articles of partnership, and has so continued ever since.

In pursuance of the authority contained in the will of the deceased partner, his executors united with Mrs. Wiley in executing and tendering a deed to the survivor for the “ real estate, mill and machinery,” and requested him to give a mortgage as provided in the articles of partnership; but, he declined to accept the deed or give the mortgage, and thereupon they filed their bill, praying specific performance of the contract of partnership, including the payment of all moneys due the estate, and the execution and delivery of the mortgage for the amount not then due by the terms of the articles.

Had the Orphans’ Court exclusive jurisdiction of the subject ? We think not. As. was said in Brinker v. Brinker, 7 Barr 55, the draftsman of the Act of 1884 had in his eye the case of an ordinary bargain and sale of real estate; and whenever it appears that the parties entered into a written contract for the purpose of selling and conveying real estate, and either has died without having made provision for its performance, there can be no doubt as to the exclusive jurisdiction of the Orphans’ Court; but it is limited to the class of cases specified in the act. It was never intended by the framers of the Act of 1834 to oust the jurisdiction of equity in the settlement of partnership transactions, in which questions of title and specific performance of agreements in relation to real estate are very frequently involved. In such cases a court of. equity is the proper forum.

The articles of partnership in this case cannot be regarded as a contract for the sale of land within the meaning of the Orphans’ Court Act. The object of the parties ivas to provide an easy and convenient mode of settling the partnership business, in the event of the death of either partner during the term; and, in carrying the agreement into effect, it was essential that there should be a settlement of the partnership accounts and a valuation of the personal property. It was not contemplated that the survivor should purchase and pay for the real estate a specified sum without regard to the state of the partnership accounts. On the contrary, it was provided that he should at once succeed to the sole ownership of the real estate, mill and machinery, and, in settlement of the partnership, be charged with the same at the valuation agreed upon by themselves; and the net interest of the deceased partner therein should be secured by the mortgage. The amount of the mortgage could be determined only by a settlement of the partnership business, and accounts between the partners. The personal property, in like manner, was to be taken and paid for by him at a valuation to be fixed thereon. In short, a full and final settlement of the partnership affairs is necessarily involved in carrying out the agreement.

The decease of Mr. Wiley during the term determined absolutely that which before was uncertain and contingent; and in the absence of an amicable settlement, the intervention of a court of equity was required to state an account between the survivor and the personal representatives of the deceased partner, and decree that the surviving partner shall accept the real estate and give the mortgage for the amount due thereon according to the articles of partnership. The Orphans’ Court has no power expressly or by implication to take cognizance of partnership dealings and state an account between the surviving partner and the personal representatives of the deceased. The fact that the executors and the surviving partner in this case were able to adjust and settle their accounts amicably, so far as to ascertain the interest of each partner, did not oust the jurisdiction of the proper court. It facilitated, to that extent, the settlement which was necessarily required; but owing to a difference of opinion as to the mode of conveying title, they failed to effect a full and final settlement, as contemplated, by the articles of partnership; and hence it became necessary to invoke the equitable powers of the court.

We are of opinion that the Court of Common Pleas is the proper forum, and that its decree will invest the surviving partner with a good and sufiScient title, such as was contemplated by the agreement.

Decree reversed and demurrer overruled, and it is ordered that the defendants plead or answer within such time as may be fixed by the court below, and the record is remitted for further proceedings; the costs of this appeal to be paid by the appellee, George Calder, Jr.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Hauer & McNair versus Patterson.
    1. In an action by the second endorser against the first endorser of a promissory note, the latter cannot show by parol that the second endorser was the surety of the maker and that he had placed his name on the back of the note by mistake.
    2. It differs not as regards the effect of the Statute of Erauds, whether a party stands , in the attitude of plaintiff or defendant.
    May 11th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Paxson, Woodward and Sterrett, JJ. Gordon, J., absent.
    Error to the Court of Common Pleas of York county: Of May Term 1877, No. 155.
    Assumpsit by J. G. Patterson against Hauer & McNair, upon the following promissory note :—
    “ $150.00.
    July 15th 1873.
    “ Sixty days after date I promise to pay to the order of Hauer & McNair, at the Shrewsbury Savings Institution,, one hundred and fifty dollars, for value received, without defalcation.
    John Y. Gemmill.”
    “ Endorsed, Hauer & McNair,
    J. G. Patterson,
    Hauer & McNair.”
    Defendants pleaded non-assumpserunt, payment, payment with leave, &c.
    At the trial before Eisher, P. J., the defendants offered to prove by Gemmill, the' maker, that he was indebted to defendants to the amount mentioned in the note; that when they demanded payment he asked sixty days’ time, which defendants declined to give without security; that thereupon the note was drawn and witness took the same to Patterson and asked him to go his security for the amount; that Pattersqp. replied, “ certainly I will, you have often gone security for me and I for you;” that witness'then produced the note and remarked to Patterson that it was not drawn properly for a surety, to which Patterson answered, “ that makes no difference, I will put my name on the back of it and become security for its payment,” and that he thereupon wrote his name upon the back of the note, upon which there was then no endorsement.
    Defendants further offered to prove that before the note had matured they took it to the First National Bank of York for discount, having endorsed it after the defendant, and being told by an officer of the bank that the note could not be discounted because the payees had not endorsed it'properly,-their name being written above that of Patterson; that at its maturity the note Avas protested, and the bank brought an action against Patterson, who paid the amount of the note before judgment.
    Both of these offers were rejected by the court, who directed the jury to find for the plaintiff, which action of the court was the error assigned.

      John Blackford and W. F. Bay Stewart, for plaintiffs in error.
    court beloAT excluded the first offer, for the reason that the proposed evidence tended to charge Patterson for the debt of another upon his parol promise, or as if the suit was brought by Hauer & McNair against Patterson upon the parol promise of the latter to pay the debt of Gemmill. It is true the presumption of law is, in the absence of legal evidence of a different contract, that he who endorses negotiable paper, before the payee has endorsed it, assumes the position of second endorser: Eilbert v. Finkbeiner, 18 P. F. Smith 243. Was the evidence offered legal evidence of a different contract ? If so we subynit it Avas admissible to shoAV the true position of Patterson on the note, not as second endorser but as one of the makers of the note. The proposed evidence was what was said by Patterson at the time he signed the note, and to explain Avhy he placed his name lipón its back, and was admissible to showr the intention of the parties: Huss et al. v. Morris et al., 13 P. F. Smith 367; Powelton Coal Company v. McShain, 25 Id. 245 ; Foster v. McGraw, 14 Id. 464; Gould v. Lee, 5 Id. 99; Kostenbader v. Peters, 2 Weekly Notes 531; Gump’s Appeal, 15 P. F. Smith 476 ; Martin v. Berens, 17 Id. 461.
    Patterson having paid the note in the absence of any legal liability to do so, the payment was voluntary and cannot be recovered from defendants: Wheatfield Tsp. v. Brush Valley Tsp., 1 Casey 112; Natcher v. Natcher, 11 Wright 496 ; Ege v. Koontz, 3 Barr 109.

      A. T. Patterson and V. K. Keesey, for defendant in error.
    The plaintiffs concede that Hauer & McNair could not have sustained an action to recover from Patterson the amount of the note on the irregular endorsement, but contend that after he paid the note to the bank, and he brings suit against them as prior endorser, they are allowed to prove that Patterson was security for its payment, notAA-ithstanding the provisions of the Act of 26th April 1855, entitled “ A supplement to the act for the prevention of frauds and perjuries,” passed 21st day of March 1772, Purd. Dig. 724, pl. 4. That the endorser did mean to assume a responsibility, and that not of a primary but a secondary character, is to be deduced from the very act of writing his name on the back of a negotiable note. Nothing else can be inferred. This presumption might be rebutted by evidence if it was not for the statute: Schafer v. Bank, 9 P. F. Smith 150 ; Jack v. Morrison, 12 Wright 113 ; Slack v. Kirk, 17 P. F. Smith 384; Eilbert v. Finkbeiner, 18 Id. 247.
    May 28th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

If the bank had brought suit against the plaintiffs in error as the last endorsers and recovered against them, it is clear the latter could not have recovered against Patterson upon his endorsement, nor could they have recovered against him upon the ground that he (Patterson) was bail or security for' Gemmill, the maker of the note. This by reason of the Statute of Erauds and Perjuries. Can it make any difference in principle that Patterson having been compelled to pay the bank now sues the plaintiffs as payees and prior endorsers ? We think not. It makes no difference as regards the effect of the Statute of Erauds and Perjuries, whether he stands in the attitude of plaintiff or defendant. To sustain himself in either position he must show by parol that Patterson was security for Gemmill. It requires no argument to show that this would be a violation of the statute.

Judgment affirmed.


text:
    Kell et al. versus Brillinger.
    The Act of the 18th of March 1874, directs the Courts of Common Pleas, when an array of jurors is quashed for any irregularity in the selection of persons or the depositing, of the names in the jury wheel, to order a now selection of such number of jurors as said court shall designate, and that thereupon the jury commissioners shall meet and take out of the wheel all names therein deposited and make a new selection of persons, and deposit the new names so selected in the wheel. Held, that it is not a compliance with the act to select any portion of those taken from the wheel and deposit them again therein.
    May 11th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Paxson, Woodward and Sterrett, JJ. Gordon, J., absent.
    Error to the Court of Common Pleas of York county: Of May Term 1877, No. 109. .
    Jacob Brillinger brought an action of debt on a bond against James Kell and H. W. McCall. When the ease came on for trial, on the 29th of May 1876, it was discovered that the jury commissioners had disregarded the requirements of the law in the selection of the jurors for 1876, and the court, upon motion, quashed the array, and made an order that the jury commissioners “should convene and forthwith take out of the wheel from which such jurors were drawn all tbe names therein deposited and make a new selection of persons and deposit their names in the wheel for the remainder of the current year, in the manner directed by the several Acts of Assembly in relation to the selection of jurors; that the said persons so selected shall be citizens of the county of York, duly qualified to serve as jurors for said county, and that the number to be placed in the wheel shall be three hundred.”
    On the 12th of December 1876 the case came on for trial the second time, and the defendants again moved to quash the array of jurors,for the following reasons: “ That pursuant to the above order of court, the two jury commissioners of said county, and one of the law judges of the courts of said county, convened at the court-house in the borough of York, on the 6th day of June 1876, and took out of the wheel from which said jurors were drawn all the names therein deposited, the number of names so taken out of the wheel being three hundred and fifty; but the said jury commissioners and said law judge did not make a new selection of persons and deposit their names in the wheel for the remainder of the current year, as ordered by said court, in the same manner as is now directed by law for the selection of such persons, and the depositing of their names in the wheel at the beginning of the year; that the said jury commissioners and the said law judge did not select three hundred persons, as ordered by the said court, alternately, from the whole qualified electors of said York county at large, as they are required to do by law; but, on the contrary thereof, the said jury commissioners and said law judge each took from the names which they had taken out of said wheel, by the said order of the court, one hundred names, and deposited the names thus taken in the wheel for the current year.”
    The court, Wickes, A. L. J., who had acted in his official capacity with the jury commissioners when the three hundred names were deposited in the wheel, and who was therefore cognizant of the facts, overruled the motion to quash and directed a jury to be sworn.
    The verdict was for the plaintiff, and defendants took this writ, assigning the foregoing, action of the court for error.

      William Say and W.' O. Chapman, for plaintiffs in error.

      James W. Latimer, for defendant in error.
    May 28th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

The Act of 18th of March 1874, Pamph. L. 46, makes it the duty of the respective courts of Common Pleas, whenever a challenge to the array of jurors shall be sustained for any of the causes enumerated in said act, or that the’ array of jurors returned at any court shall be quashed by reason of any fault or irregularity in the selection of persons, or on the depositing of their names in the wheel, to order a new selection of persons to be made of'such number as said court shall designate, and that their names be deposited in the wheel for that purpose for the remainder of the current year. The second section of said act then provides “that thereupon it shall be the duty of the jury commissioners, president judge or additional law judge of the respective district, or a majority of them, to meet at the seat of justice of the respective county, at least thirty days before the court at which such jurors shall be summoned to serve, and take out of the wheel all names therein deposited, or if a new wheel, clean out the same and make a new selection of persons, and deposit the names so selected in such wheel, or in the new wheel for the remainder of the current year, in the same manner as is now directed by law for the selection of such persons and the depositing of their names in the wheel at the beginning of the year.” Have the foregoing directions of the Act of Assembly been complied with in this case ? It appears that at the May Term 1876 the array was quashed by reason of neglect of official duty by the sheriff and jury commissioners, and their disregard of the law in relation to the selection of jurors and custody of the wheel for the year 1876. Thereupon the court made an order, as required by the Act of 1874, directing a new selection of three hundred persons to serve as jurors, to be made by the president or additional law judge and jury commissioners on the sixth day of June 1876. On the day designated one of the law judges and the jury commissioners met at the court-house and proceeded to take out of the wheel all the names remaining therein, amounting to three hundred and fifty; after which the law judge and jury commissioners each took one hundred of the names which had been taken out of the wheel in pursuance of the order of the court, and re-deposited them in the wheel. This was not a compliance with the Act of Assembly. There was no alternate selection from the whole qualified electors of the county at large as required by law. It is true, fifty of the names were rejected, but that was doubtless due to the fact that but three hundred names were required. It was a mistake to suppose that this proceeding was a mere form. It was a matter of substance. Why did the law require the original panel to be quashed ? Manifestly for the reason that because of irregularities connected with the selection of the names, the placing of them in the wheel, and the custody of the wheel, certain names might have been placed therein for an improper purpose. The fact that such a thing might have taken place is the reason why the law required a new selection. In making such selection it -was practically impossible for the judge and jury commissioners to distinguish the objectionable names from the others, nor was any such duty devolved upon them. The law makes no attempt to purge a jury wheel that has been tampered with or even exposed to improper practices. It rejects all the names contained therein, and requires a new selection for the current year. Such new selection should have been made by the jury commissioners in this cáse. Nothing less would fulfil the requirements of the Act of Assembly. It was therefore error to deny the motion to quash the array. A jury ought not to have been sworn in the cause. The result was a mistrial.

The judgment is reversed, and a venire facias de novo awarded.


author: Mr. Justice Sharswood

text:
    Hanover Water Co. versus Ashland Iron Co.
    1. The measure of damages for the diversion of a stream whereby a farm with an ore-bank thereon is injured, is the difference in the market value of the property as a farm and ore-bank immediately before the diversion of the stream and immediately afterwards as affected thereby, without reference to the fact that the water of the stream was formerly used or might hereafter be required for use in washing the ore obtained from the ore-bank.
    2. Witness stated generally that he owned land in the neighborhood and
    was acquainted with its market value; that he knew the general value of ore land in the neighborhood; knew the tract in question, and it had on it an ore-bank, but his knowledge of sales was derived from hearsay, and he had no practical knowledge of ore land never mined. Held, that his opinion was competent evidence to aid in determining the value of the land from which the water had been diverted. _
    _ 3. Assessments for taxes are not competent evidence to aid a jury in assessing the value of land.
    4. S. was acting for an iron company in carrying on their work at their ore-bank, and an offer was made to prove a statement he had made to ore miners in reference to the cost of mining the ore per ton. Held, that this declaration was not within the scope of his authority as superintendent, and was incompetent.
    May 11th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Paxson, Woodward and Sterrett, JJ. Gordon, J., absent.
    Error to the Court of Common Pleas of York county: Of May Term 1877, No. 95.
    The parties to this action as they stood on the record of the court below, were The Ashland Iron Company, plaintiff, and The Hanover Water Company, defendant. The action was instituted by the presentation to the Court of Common Pleas of York county, on the 7th of September 1874, of a petition for the appointment of viewers to assess damages alleged to have been sustained by the plaintiff on account of the construction of the works of the defendant. Both parties appealed from the report of the viewers, and on the 30th day of August 1875, the court directed an issue to be framed in the case by treating the petition for the appointment of viewers to assess damages presented by the plaintiff as a declaration, the defendant to plead “Not guilty,”, and the cause to be tried on the issue formed on such pleadings, without regard to the form of action. The petition of the plaintiff set forth that the Ashland Iron Company was a corporation duly incorporated under the laws of Maryland, and authorized by Acts of Assembly of the state of Pennsylvania to take and hold land in Pennsylvania in fee simple or otherwise; that it was and had been for six years the owner of a tract of land in Heidelberg township, York county, containing about twenty-four acres, more or less, further described by named adjoiners; that there was in and upon said tract of land a large and valuable bank of iron ore; that a considerable stream of water had always flowed by its natural channel in, over, upon and across said tract of land, until diverted as in said petition further set forth; that said stream of water afforded the petitioners a water-power of great value to them; that they were enabled by its use to propel their machinery used in mining and preparing and washing their ore' and to wash and prepare said ore for smelting ; that the defendant had erected a dam on said stream at a point above where it had always been accustomed to enter the petitioners’ land, and had wholly diverted the water from its accustomed flow by the natural channel aforesaid and prevented its flow into and over the petitioners’ land, whereby they were entirely deprived of the use of said water for propelling their machinery or washing their ore, or watering the stock on their land, to the great damage of the petitioners; that the said land was chiefly valuable as an ore property for the purpose of mining iron ore, and that the petitioners averred and believed that said iron ore could not be profitably mined without the use of said water in its former accustomed flow; that the defendant by its servants and employees,- had entered upon said tract of land and made extensive excavations therein and laid pipes therein, to the great damage of the petitioners. They alleged that they could not agree with the Hanover Water Company upon the amount of compensation to be paid to them for the said damages, or upon three dis- . interested and competent persons to assess the damages — and prayed the court to appoint three such men, to ascertain and report to the court what damages the petitioners were legally entitled to recover from the said Hanover Water Company, by reason of the acts and matters alleged in the petition, and what compensation should be paid to them therefor by the said Water Company.
    At the trial before Eisher, P. J., to show that the ore-bank was not abandoned, and the reason why it was not worked all the time, the plaintiffs offered to prove (1) that the bank being owned by them in fee simple it was held in reserve, and that they worked their leased banks first, as the leases thereon would expire; (2) that while there was no formal resolution of the hoard of managers to that effect, the matter was frequently talked about at their meetings and was assented to by all the managers present; and that this policy was carried out by the company’s superintendent; and (3) this bank the company so held in reserve as one of their best banks in York county.

      The court admitted the evidence under these three offers, which constituted the first, second and third assignments of error.
    Becker, a witness for defendant, testified that he owned lands and was acquainted with the general market value of lands in the neighborhood.
    The defendant then offered to prove by him “ that the land of the plaintiff, on which this ore-bank is located, was worth as much when and immediately after the defendant’s dam was built, as it was immediately before, for the purpose of enabling the jury to assess the damages.”
    The court rejected this evidence, as stated in offer, because the greater portion of plaintiff's claim was for an alleged deprivation of their ore land of the water used for washing, by the erection of the Hanover Water Company’s dam, and the witness by whom the faets stated in the offer were to be proved had not shown such acquaintance with the value of ore land as would enable him to give an intelligent answer. The court, however, allowed the defendant to prove the general value of lands of this character in the vicinity for farm land, or both together, or any other value which he was acquainted with.
    This was the fourth assignment.
    Becker then testified: “ I know the general value of ore lands in the neighborhood, know the tract in question, I know it has on it an ore-bank.”
    Defendant then proposed to prove by witness on stand that the ore-bank property of the plaintiff was worth as much at and immediately after the building of the defendant’s dam as it was before, for the purpose-of enabling the jury to assess the amount of damages, if any, sustained by the plaintiff.
    Upon objection the court asked the witness what was his knowledge or his means of knowing the value of the ore lands in 1872 to 1873.
    The witness answered: “ I know what they were sold at, but can’t tell the date; I know the price they were sold for when iron was high; Eichelberger sold his land, ten acres, for $4000, if I am not mistaken ; Kauffman bought from Miller, as Miller said, for $4500, if I am not mistaken ; I can’t state; I suppose about five acres is the quantity; I was on those tracts; I know nothing of these sales; was not along when they were sold; only know from hearsay; I have no practical knowledge of ore lands now mined.”
    The court rejected this evidence because the witness had not sufficient knowledge of the value of ore lands to give an opinion, which was the fifth assignment.
    Defendant then offered to prove that the tract of land, owned by plaintiff, through which the stream of water known as “ Gitt’s run,” for the alleged diversion of which by the defendant the plaintiff seeks to recover damages in this suit, flows, was assessed by the assessor for taxes in that township in the fall of 1872, at $1400 for the tract of land and $600 for the ore-bank thereon, and that plaintiff paid taxes on that assessed valuation, for the purpose of enabling the jury to ascertain the value of said tract of land and ore-bank at the time when the alleged damage, if any, was sustained, and to assess the amount of damages, if any, sustained by the alleged diversion of water.
    Also, the assessment books of Heidelberg township for the years 1871, Í872 and 1873, in evidence, for the purpose of showing that the property was assessed at a valuation of $1400, and the ore-bank itself at $600; to be followed by proof by witness on the stand and others that plaintiff paid taxes for said property on the amounts of said assessments; this for a like purpose.
    The court rejected both these offers, which were the sixth and seventh assignments.
    [Witness on the stand having testified that Philip A. Small was carrying on the work for the Ashland company, and. Samuel Small having testified that his brother Philip A. Small, in attending to the bank, was acting for the Ashland company, the defendant offered to prove by the witness that he had a conversation with P. A. Small, at the Porter ore-bank, when it was in operation in 1863, and P. A. Small was carrying it on for the Ashland company, when he told the witness that every ton of ore they got out there cost a little over five dollars a ton to mine it, for the purpose of enabling the jury to assess the damages.
    The court rejected this evidence, on the ground that it did not appear that the alleged declaration of P. A. Small was in the line of his duty as superintendent or agent of the company, if he was superintendent or agent.
    This was the eighth assignment.
    The plaintiff’s first point was:—
    That the supply pipe leading from the reservoir to the borough of Hanover is an appropriation of all the water that can be conveyed through said pipe and used, and amounts to an appropriation of such an amount of water, and the defendant must respond in damages to the plaintiff for the value of all the water that will pass through said pipe, even to the extent of the whole stream, if the pipe will convey it; and particularly is this the case, as the defendant has refused to designate the quantity of water appropriated by it, in answer to rules on it to do so, on file in this case.
    Answer. “ This point is correct.”
    The defendant’s third point was:—
    That the fact, if found by the jury, that the plaintiff has not operated its ore-bank, nor used the water of the stream flowing through its property for the purpose of driving a washer or washing ore during the last eleven years, of which a number preceded the building of its dam by the defendant, should be taken into consideration by the jury in mitigation of damages, if they should find that the plaintiff has sustained any perceptible, actual, direct and immediate damages, which can only be allowed in this case.
    Answer.’ “ We cannot answer this proposition in the affirmative, but we instruct the jury that the measure of damages is the difference in the market value of the property of the plaintiff as a farm and ore-bank immediately before the diversion of the water by the defendant and immediately after, as affected thereby; and that if the plaintiff reserved the Porter ore-bank for future use, because they held it in fee, and worked others, which they had leased and were to pay rent for, whether they mined them or not, the fact that they did not work the Porter mine for some years is explained and ought not to prejudice the plaintiffs.”
    The answers to these points were the ninth and tenth assignments.
    The verdict was for the plaintiff for $3200, and defendant took this writ, the assignments of error being those heretofore noted.

      Cochran Hay and W. C. Chapman, for plaintiff in error.
    There could be no damage done to an unused ore-bank by the diversion of the water. It will not suffice to say that at some indefinite time in the future, when its leased mines were worked out, it was the intention of the company to resume the working of the mine held in fee, and it, therefore, demanded as a right that the water shall continue to flow and run to waste until it was to the advantage of the company to apply it to the washing of ore.
    The right •which an owner of land has to the water, which flows through his land, is not an absolute, unqualified right: 2 Washburn Real Prop. 64, pi. 40; Washburn on Easements 213.
    The witness, Becker, had exhibited the qualifications of long residence in the neighborhood, ownership of land, purchase and sale of lands, actual acquaintance with the property alleged to have been damaged, and that it had an ore-bank and some timber upon it, and information respecting sales of ore land in the vicinity, and was qualified to give an opinion: East Penn. Railroad Co. v. Hiester, 4 Wright 53; Searle v. L. & B. Railroad, 9 Casey 57; White Deer Creek Improvement Co. v. Sassaman, 17 P. F. Smith 415; Dorlan v. E. B. & W. Railroad Co., 10 Wright 526; Penna. and N. Y. Canal & Railroad Co. v. Medill, 1 Weekly Notes 287; East Penn. Railroad Co. v. Hottenstein, 11 Wright 38. The assessments should have been admitted to enable the jury to assess the damages: Greenleaf on Evidence, sect. 1493-4; Overseers of Lewisburg v. Overseers of Augusta, 2 W. & S. 65; Vastbinder v. Wager, 6 Barr 339; Sailor v. Hertzogg, 10 Barr 316.
    The declarations of Small were admissible as part of the res
      gestee: 1 Greenleaf’s Evidence, sect. 113; Jordan v. Stewart, 11 Harris 244; Grim v. Bonnell, 28 P. F. Smith 152.

      J. W. Latimer, David Wills and V. K. Keesey, for defendant in error.
    The evidence offered under the first, second and third assignments should have been admitted : Wilson v. Jamieson, 7 Barr 126 ; Salmon v. Rance, 3 S. & R. 311; Garrigues v. Harris, 5 Harris 344. The rights of a riparian owner on such a stream of water as this are well defined. He has the right to use it for domestic purposes, for irrigating land and for propelling machinery, and is only bound to return it undeteriorated in quality and not materially diminished in quantity: Howell v. McCoy, 3 Rawle 256; Wheatley v. Chrisman, 12 Harris 298. He has a right to retain it for these purposes as long as is necessary for his purpose: Whaler v. Ahl, 5 Casey 98; Hetrich v. Deachler, 6 Barr 32; Hartzall v. Sill, 2 Jones 248.
    Becker’s evidence did not entitle him to be credited as an expert, and was inadmissible: Carr v. The Northern Liberties, 11 Casey 327. The declarations of an agent are only admissible when made in the doing of an act which is within the scope of the agency, and which is itself involved in the issue trying, and only then as forming part of, and explaining, the acts done: Patton v. Minesinger, 1 Casey 393; Hannay v. Stewart, 6 Watts 487; Fawcett v. Bigley, 9 P. F. Smith 411; Dick v. Cooper, 12 Harris 217; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396.
    May 21st 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

The rule for the measure of damages was correctly stated by the learned judge below, that it was the difference in the market value of the property of the Ashland Iron Company as a farm and ore-bank immediately before the water company appropriated the stream and immediately afterwards as affected thereby. It is true that the first point of the plaintiff below was inaccurately worded, and the unqualified affirmance of it might have misled the jury if it had stood alone to think that the measure of damages was the value of all the water that would pass through the pipe even to the extent of the whole stream. But the meaning evidently was that as the iron company might have the whole stream taken from them at any future period and their damages were now to be ascertained and found once for all, the jury had a right to consider that fact in its legitimate bearing upon the market value of the land and ore-bank. If this stream of water added greatly to the value of the property, as the jury might well find, certainly the fact that it might at any future period be exhausted by means of the pipe laid to convey it to the Borough of Hanover, would necessarily operate to depreciate its market value. Upon another trial this apparent error can and ought to be avoided.

It appears to have been apprehended that the water company would insist that the ore-bank had been abandoned and the stream therefore of no use for the purpose of washing the ore, and such ground they did in point of fact take. Now it was entirely competent for the iron company to prove that though it' had not been worked for a number of years it was not exhausted, and the working of it might be resumed with profit whenever they determined to do so. But why they had abandoned it, if it was still unexhausted and workable, was entirely irrelevant; not calculated to enlighten the jury upon the only true issue, but on the contrary to turn aside their attention to side issues. What the intention of the owners in the future might be could have no legitimate bearing upon the question of the value of the land and ore-bank in the market immediately before or after the appropriation of Gift’s run by the water company. We think, therefore, that the first, second and third assignments of error must be sustained.

The rejection of the evidence as complained of in the fourth assignment may be supported. The witness Becker had stated generally that he owned land in the neighborhood and was acquainted with its market value. When asked the value of this land it was objected that the greater portion of the claim of the iron company was for an alleged deprivation of their ore land of the water for washing, and the witness therefore could not speak of the value of this land from the bare knowledge of the value of farm land in the vicinity. But the witness then testified that he knew the general value of ore lands in the neighborhood; that he knew this tract and that it had on it an ore-bank. Why then should he not have been allowed to give his opinion ? It is true he said in answer to questions by the court that his knowledge of sales of ore land was derived only from hearsay, and that he had no practical knowledge of ore lands never mined. The knowledge -that the best experts possess upon this subject is derived from hearsay. It is not necessary that they should be actually present and personally know the sale. Indeed it was held by this court in East Pennsylvania Railroad Co. v. Hiester, 4 Wright 53, that after a witness has given his opinion of the value of land, it was improper for him to give particular instances, because there might thereby be introduced into the cause as many issues as there were instances. We think, therefore, the fifth assignment of error must be sustained.

We find no error in the rejection of the assessments. It is true the assessors and public officers are sworn to do their duty. But the assessment is nothing but their ex parte statement, and their opinion was not subjected to the test of a cross-examination. The sixth and seventh assignments, therefore, are not sustained.

Nor do we think that the declaration of Philip A. Small was admissible. It was testified, indeed, that he was acting for the iron company in carrying on the work at the bank, and the offer was to prove a statement by him to one of the miners, “ that every ton of ore they got out there cost a little over five dollars a ton to mine it.” This was certainly not within the scope of his authority as .superintendent, and it would be very unjust to allow such loose declarations of a mere agent to affect his principal. It was no part of the res gestee upon the broadest construction of the rule which admits the acts and declarations of an agent. Such acts and declarations must be in the course of his duty.

The ninth assignment has been already adverted to and needs no further examination. As to the tenth, the answer to the third point of the defendant below was in part erroneous in introducing the element of the intention of the iron comjnany to remove the ore-bank, the evidence as to which was, as we have seen, irrelevant and ought not to have been admitted; but it would have been correct to say that the fact that the mine was not worked ought not of itself to prejudice the iron company if it was still an unexhausted mine and added to the market value of the property.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Henry et al. versus Deitrich et al.

    1. Where a church congregation divides into parties and by reason of numbers and the character of the rights of the parties damages are unsuitable as a means of redress, and the case admits of no adequate remedy at law, equity alone can apply the required remedy.
    2. Courts of Common Pleas in this state being invested with the powers of a court of chancery in the supervision and control of unincorporated societies, have jurisdiction of disputes between the members of unincorporated religious associations as to their rights and privileges in an estate conveyed for their use.
    3. A majority of a church congregation may direct and control in church matters consistently with the laws of the organization or denomination to which it belongs, and acting within the limits and under the rules of the articles of the association the power of the majority is absolute, and the minority can assert no privilege or immunity to justify resistance to any legitimate action the majority may take.
    4. A minority of the persons in an unincorporated association, in whom a trust of a church property is vested, cannot by procuring a charter of incorporation acquire the right to the management of the property in opposition to the will of the majority of those interested.
    May 12th 1877.
    Before Agnew, C. J., Siiarswood,- Mercur, Paxson, Woodward and Sterrett, JJ. Gordon, J., absent.
    Appeal from the decree of the Court of Common Pleas of Lancaster county: Of May Term, 1877, No. 2. In Equity.
    This was a bill in equity filed by S. S. Henry and others against Jacob Deitrich and others.

      The case is fully stated in the opinion of this court, together with the following facts:
    On the 8th day of May 1744, the proprietaries of Pennsylvania issued a warrant to Henry Haller and Peter Frey, who Were then representatives of the Calvinist Reformed and the Lutheran congregations, in Cocalico township, now East Cocalico township, for a tract of land in said township, upon which the • said congregations built a church for joint use.
    On the 30th day of May 1761, Henry Haller and others, in behalf of the Calvinist Reformed congregation, and Jacob Frey, who was assignee of Peter Frey, and others, in behalf of the Lutheran congregation, entered into a written agreement that the said Calvinist Reformed congregation shall be ministered after the manner and meaning of the Heidelburg Catechism, as the same was ordered to be ministered in that church in the year 1563, and in accordance with the Holy Scriptures, and no other doctrine or minister shall have any right whatsoever ; that the said Lutheran congregation shall be ministered after the Reformation of Dr. Luther and the true meaning of the Augsburg Confession, in accordance with the Holy Scriptures, and no other doctrine or minister shall have any rights; that the said church shall be repaired at the joint charge of both congregations ; and that they shall have ministers every Sunday, each congregation alternating with the other.
    The said congregations, on the 25th of March 1772, received a patent from the proprietaries for said tract, and they subsequently purchased two small tracts adjoining, making in the aggregate about eleven acres, which have always been held and used by said congregations for the purposes and in the manner provided by the said agreement of May 30th 1761, until they were disturbed by the defendants.
    The said Herman Reformed Church being and always having been a member of ths Classis and Synod of the Herman Reformed Church of the United States, which is ministered after the manner and true meaning of the Heidelburg Catechism, and is within the jurisdiction and control of the Lancaster Classis, and the Rev. S. S. Sweitzer and the other plaintiffs of that church being the regularly installed minister and officers; and the said Lutheran Church being and always having been a member of the Synod of Pennsylvania of the Herman Evangelical Ministerium of the United States, ministered after the Reformation of Dr. Luther and the true meaning of the Augsburg Confession, and the Rev. S. S. Henry and the other plaintiffs of that church being the regularly installed minister and officers; and the said plaintiffs, thus being the representatives of the parties to the agreement of May 30th 1761, and being entitled to the exclusive use of the said church building on alternate Sundays, the Rev. S. S. Henry and his officers and congregation were, on the 28th day of June and 12th day of July 1874, their regular Sundays, forcibly kept out of the church by Deitrich, Lausch and other defendants, and were by them prevented from using it, as it was their exclusive right, in accordance with the design of the founders, and the Rev. S. S. Sweitzer and his officers and congregation were notified, by Kessler, Rupp and other defendants, not to enter the church for purposes of worship, and were threatened by them with violence if they did so.
    The defendants, Deitrich, Lausch and others, claiming to be Lutherans, and Kessler, Rupp and others, claiming to be German Reformed, in order to carry out their designs of forming new connections outside of the regular Lutheran and German Reformed churches, of which these congregations have always been part, and to carry the congregations and church property over to such new connections, in November 1872, and prior to the filing of the bill in this case, without the consent of the regular church organizations, or of the congregations, obtained from the Court of Common Pleas of Lancaster county, a charter, in which they provided that they should have “ the right as separate congregations to call, employ and contract with such ministers and other religious persons as they may severally require.” By virtue of this charter they claimed the right to exclude the plaintiffs from the church, and to hold and manage the church property for such uses as to them may seem fit.
    This bill was brought, therefore, to restore the plaintiffs to their rights of worship and property, and to prevent the defendants from interfering with them.
    Defendants demurred to the bill, on the ground that the plaintiffs have an adequate remedy at law.
    The court sustained the demurrer and dismissed the bill, on the ground stated in the demurrer, and that the charter granted to the defendants fixes and determines the rights of the plaintiffs, and the court cannot “ abrogate and annul this charter in this proceeding.”
    From this decree this appeal was taken.
    IF. Ellmaher and D. Gf. JEshleman, for appellants.
    The court below was of opinion that preventive justice, as exercised through the courts under the penal laws, would allay all fears and prevent further injury, and that an action at law would secure to plaintiffs compensation for damages. It is submitted that only through the intervention of a court of equity, by injunction, could constantly recurring grievances, irreparable mischief and a multiplicity of suits be prevented in religious controversies of this kind, and that said court is the only forum in which to proceed to procure an adequate remedy: Commonwealth v. Railroad Co., 12 Harris 159; 2 Story’s Eq. Jur., § 928; McArthur v. Kelly, 5 Ohio 140; Brunnenmeyer v. Buhre, 32 Ill. 83 ; Trustees v. Hoessli, 13 Wis. 348; McGinnis v. Watson, 5 Wright 9; Sutter v. Trustees, 6 Id. 503; Winebrenner v. Colder, 7 Id. 244; Kisor’s Appeal, 12 P. F. Smith 428; Schnorr’s Appeal, 17 Id. 138; Roshi’s Appeal, 19 Id. 462; McAuley’s Appeal, 27 Id. 397; Trexler v. Mennig, 2 Weekly Notes 677.

      A. J. Eberly, for appellees.
    If there be an adequate remedy at law for an injury done or threatened, and the injury is not irreparable, and if compensation can be had therefor, courts of equity have no jurisdiction: Clark’s Appeal, 12 P. F. Smith 450 ; Hagner v. Heyberger, 7 W. & S. 104; Gray v. Ohio & Pennsylvania Railroad Co., 1 Grant 412; Richards’s Appeal, 7 P. F. Smith 105; Hilliard on Injunctions 471; Adams’s Eq. 485; 2 Story’s Eq., § 925. A decision such as prayed for by appellants would abrogate the charter of appellees.
    October 1st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

After a denial of some of the material allegations of the plaintiffs, the defendants concluded their answer by a general demurrer to the whole bill. All embarrassment that might have arisen in the investigation of the cause from controverted facts has thus been averted. The argument throughout has recognised the truth of the averments of the bill, and has proceeded precisely as if no answer had been filed. While the counsel for the defendants have explained that a motive so laudable as their “high regard for truth,” has prompted their denial of the statements of the plaintiffs, they have still expressly acquiesced in and accepted the effect of the demurrer.

A warrant was issued out of the land office of the proprietaries of Pennsylvania on the 8th of May 1744, to Henry Haller and Peter Frey for a tract of land in the township of Oocalico, in the county of Lancaster, to be held in trust for the Calvinist Reformed and Lutheran congregations of that township, Haller being the representative of the first congregation and Frey the representative of the second. By a deed-poll dated the 16th of May 1761, Peter Frey conveyed his interest in the warrant to Jacob Frey, subject to the same trust. On the 5th of February 1762 a survey was made and the quantity of land ascertained to be nine acres and sixty perches. A patent was issued on the 25th of March 1762, to Haller and Jacob Frey and their heirs and assigns, “ in trust, nevertheless, and to and for the use of the said two several congregations of Calvinists and Lutherans, for the time being, and their successors for ever, using and frequenting, and to use and frequent, the respective churches and meeting-houses erected and to be erected, from time to time, on said land, and for burial-yards for them respectively, in such manner as the majority of each of the said congregations respectively shall, from time to time, order, direct and appoint, and to and for no other use or purpose ■whatsoever.” On the 30th of May 1761, in the interval between the execution of the deed-poll and the location of the warrant, Henry Haller and three other persons, as elders and trustees of the Calvinist Reformed congregation, entered into articles of agreement with Jacob Erey and three others, as elders and trustees of the Lutheran congregation, by which, after reciting the warrant from the proprietaries and the joint erection of a common church on the land granted, it was stipulated that Haller and his co-trustees, and their successors for ever, should have the right to use the property for the purposes of the Calvinistic Reformed congregation, which was to be “ministered after the manner and true meaning of the Heidelberg Catechism;” that Erey and his co-trustees, and their successors for ever, should have the right to use the property for the purposes of the Lutheran congregation, to be “ministered after the Reformation of Dr. Luther and the true meaning of the Augsburg Confession;” that the two congregations should be jointly chargeable with the cost of buildings and repairs;. that if both should provide for church services on the same Sunday, the hours for the services of each should be peaceably arranged; that the privileges of each in the occupancy of the property should be equal; and that the patent for the land should be granted on these terms. Erom 1761 to this time, the two churches have maintained their organizations, elected their officers and called their ministers. The plaintiffs are the ministers, trustees, elders and deacons of the two congregations, elected in due and regular succession, in pursuance of the ancient instrument by which the uses of their property were defined. Two small tracts, adjoining that for which the patent issued in 1762, have been since purchased and dedicated to the same purposes. The quantity of land now held is about eleven acres. '

In October 1872, Daniel Kessler and others, claiming to be officers and members of the Reformed congregation, and Joseph Zorber and others, claiming to be officers and members of the Lutheran congregation, obtained a charter of incorporation by a decree of the Court of Common Pleas of Lancaster, under the title of “ The Independent Associate German Reformed and German Lutheran Muddy Creek Church of East Cocalico Township.” The fourth article declared: “ Each congregation, though .the two by this charter form but one congregation, shall continue to have the right to hold whatever property they now have, own and possess, as heretofore, and to take and receive bequests, donations and legacies, as individual congregations; to have the right, as separate congregations, to call and employ such ministers and other persons as they may severally require, and to order and provide, by their by-laws, rules and regulations, how disputes and difficulties are to be arranged, settled and compromised, that may arise between the two separate and, for many purposes, distinct congregations, and how each congregation is to contribute towards the payment of the expenses in keeping the common property in repair.” Under the charter, which was procured without the concurrence of the plaintiffs, the defendants assert the right to control the organization of the two churches, and to take exclusive possession of their land and buildings. It is alleged in the bill that those of them who are Lutherans, by force and threats, prevented the use by the Lutheran plaintiffs of the church for the usual services on Sunday, the 28th of June, and on Sunday, the 12th of July 1874; and that the German Reformed defendants have threatened forcibly and violently to prevent its use by the plaintiffs, who represent the German Reformed congregation. This bill for an injunction was dismissed by the court below, because the decree incorporating the defendants could not be overturned in a collateral proceeding, and because the plaintiffs had adequate remedies at law.

In the consideration of this cause, the first question that presents itself is whether or not the jurisdiction of a court of equity was properly invoked. It is clear upon ample authority that the original articles of agreement created a charitable use, to which the legal title derived from the warrant, survey and patent became subservient. The English statute of 43 Elizabeth never was in force in Pennsylvania, but its principles have constantly been applied here by common usage and under constitutional recognition : Brightly’s Eq., § 398. “We consider,” Chief Justice Gibson said, in Witman v. Lex, 17 S. & R. 91, “ the principles which chancery has adopted in their application to particular cases, as obtaining here, not indeed by force of the statute, but as part of the common law ; and where the object is defined, and we are not restrained by the inadequacy of the instrument which we are compelled to employ, we give relief nearly, if not altogether, to that extent which chancery does in England.” The rules deducible from the English chancery precedents for the construction of the statute of Elizabeth, may be safely trusted, therefore, to illustrate questions which arise in the current practice of our own courts. In The Attorney General v. Heelis, 2 Sim. & Stu. 67, one of those rules was stated by the vice-chancellor to be that “funds supplied from the gift of the crown, or from the legislature, or from private gift for a legal, general and public purpose, are charitable funds to be administered by courts of equity.” And this rule has been adopted in this state to its full extent. Thus, in Unangst v. Shortz, 5 Whart. 506, which was a contest amongst persons claiming as members of the German Lutheran and German Reformed congregations of the Dry Lands, under articles of agreement by which the rights of the congregations, and the privileges, powers and duties of their officers and members, were prescribed, Mr. Justice Sergeant said: “ The articles of agreement form the fundamental rules and regulations, and are in the nature of a constitution, under which the congregations jointly and severally enjoy certain temporal and religious rights. This mode of holding real estate in trust for religious societies and others of a charitable nature, was frequently adopted in Pennsylvania when it was a province, instead of a charter of incorporation. They are not incorporated bodies in the proper sense of the term, but resemble them in this, that their trusts are of a public character, and are specially provided for by the laws and constitution of the Commonwealth.” The Methodist Church Remington, 1 Watts 218, affirmed the decision in Witman v. Lex, supra, that a trust in favor of an unincorporated religious or charitable society is an available one. And the court remarked in the same case that “ equitable powers in support of charitable uses seem to be founded in necessity and the constitution of the court, rather than in the provisions of the statute of Elizabeth.” The courts of common pleas, by statutory enactment, have the jurisdiction and powers of a court of chancery in “ the supervision and control of all corporations, other than those of a municipal character, and unincorporated societies or associations, and partnerships.” This controversy relates to the rights, privileges and property of two unincorporated religious societies, and jurisdiction in the court below, in a proper case for its intervention, would be unquestionable. If it had not jurisdiction, it was necessarily for reasons resting in the nature of the controversy itself.

Large numbers of individuals were connected with each of these congregations. The contest between the parties to the record related to powers and privileges in which all those individuals were entitled to participate. If they_ had desired it, they could have demanded a hearing and have been heard. To them damages which might be recovered by the plaintiffs would afford not only no adequate remedy, but no remedy at all. A resort to the criminal process of surety of the peace would be equally inadequate, and would produce scandalous and unseemly conflicts. Religious societies are entitled to a more appropriate legal protection of their secular and "spiritual interests than would consist in the power to appeal to a criminal court or a justice of the peace. Here, as in Kisor’s Appeal, 12 P. F. Smith 428, “ by reason of numbers, and of the character of the rights of the parties, damages are unsuitable as a means of redress, and the case admits of no adequate relief at law. Equity alone can apply the required remedy, while the malcontents can be restrained only by the powers of a chancellor.” In the same case, the remark of Chief Justice Lowrie, in Kerr v. Trego, 11 Wright 296, was quoted,' that a bill in equity is the very remedy usually adopted when churches divide into parties, and we applied it in three such cases in the last year.” In the words of Mr. Justice Sharswood, in Roshi’s Appeal, 19 P. F. Smith 462, a religious society, incorporated or unincorporated, is but the trustee of a charity, and it has always been peculiarly within the province and duty of a court of equity to prevent the diversion of property held in trust for such purposes from the object and design of the original endowment.” The rights of one of these congregations have been invaded by the exercise of actual force, and those of the other are held subject to the threat that they will be subverted by the future violent action of the defendants. And the acts done and the acts threatened are proposed to be justified by an alleged title to the whole common property derived from the charter of incorporation. The defendants have set up no other ground of claim, and the validity of that the plaintiffs have earnestly and persistently denied. It cannot be possible that any system of jurisprudence would leave a body of Christian people in a peaceable community in terror, every Sunday of outbreak and outrage in a Christian church. An adjustment of the differences between these parties is necessary, no less for the public interest than for the welfare and prosperity of the two congregations. And the adjustment can be effectual only in the form of remedy the plaintiffs have adopted. It can extend to every question at issue, and can define all rights, whether individual or congregate, that are involved. Its adaptation is all the more complete because its determination will prevent a series of disgraceful wrangles before a magistrate and in the Quarter Sessions, and of protracted lawsuits in the Common Pleas, prosecuted with the proverbial bitterness of church disputes.

Confessedly, the jdaintiffs are representatives of the majority of the members of both the churches. By the terms of the patent, the land granted and the buildings to be erected on it were to be used and frequented “in such manner as the majority of each of the said congregations should.from time order, direct and appoint.” It has not been alleged that there has been any departure from the rules and usages of the denominations to which they respectively belong. In simple truth, the one element of disturbance has been the existence of a dissatisfied and restive minority in each church. While the general principle of law is that in private associations the majority cannot bind the minority except By special agreement, yet the principle is equally general that where-the power is of a public nature, the majority shall gbvern, because it is for the public good, and the power is to be more favorably expounded than when it is for private purposes: Attorney-General v. Davy, 2 Atk. 212; Withnell v. Gartham, 6 Term R. 388; Livingston v. Lynch, 4 Johns. Ch. 573. A majority of a church congregation may direct and control in church matters consistently with the particular and general laws of the organism or denomination to which it belongs: Sutter v. Trustees of the First Reformed Dutch Church, 6 Wright 503. Acting within the limits and under the rules of the original articles of association, the power of the majority of the members of each of these congregations is absolute. The officers elected by them can alone exercise the authority conferred on the first trustees, and a minority can assert no privilege or immunity to justify resistance to any legitimate action the majority may take.

But the defendants rely on their charter. If the effect claimed for it were necessarily to be conceded, the most easily contrived and most flexible possible machinery would have been invented for the creation of church organizations and the acquisition of church property. The petitioners for incorporation styled themselves officers and members of the congregations. But they were outside all regular and legal congregational action. As officers they had never been elected in any duly prescribed form or by any qualified constituency. They represented no interests entitled to representation. The act of the court neither created nor transferred title to property or to ecclesiastical authority and jurisdiction. Conceding that the court’s exercise of the legislative power vested in it, was equivalent to the direct exercise of that power by the legislature itself, yet an Act of Assembly could not have shifted the title derived from the articles of 1761 from the jdaintiffs to the defendants. It was settled in the Commonwealth v. Jarrett, 7 S. & R. 460, that a minority of the persons in whom a trust of a schoolhouse and a school was vested, could not by associating and procuring a charter of incorporation under the Act of April 1791, acquire the right to the management of them in opposition to the will of the majority of those interested. It is not proposed to overturn or otherwise interfere with any legitimate powers of the defendants as corporators. No inquiry into the validity of the charter would be possible in this collateral proceeding. But under it the defendants claim the franchise to control the temporal and spiritual concerns of these churches. The Act of the 19th of June 1871, Pamph. L. 1360, makes it the duty of this court to inquire whether the franchise claimed is actually possessed: Edgewood Railroad Co.’s Appeal, 29 P. F. Smith 257. The power to manage the churches and their property has descended to the officers who have been duly chosen. The charter may be useful somewhere, but it has no place here. Whatever its value and in whatever direction the franchises it has conferred may be exercised, it is mere waste-paper, and its place would be more appropriate in a waste-basket than among the files of a court of justice, so far as its provisions relate to the organization, the land, or the church building of these congregations.

The decree of the Court of Common Pleas is reversed, and it is now ordered, adjudged and decreed that a writ of injunction be forthwith issued out of the said court to be directed to Jacob Deitrieh, Henry Lausch, Jacob Lausch, Samuel Erey, Joel Brossman, Michael Smith, John Zerber, Isaac Zerber, Jacob Garner, Daniel Kessler, Sr., Henry Rupp, Martin Lorah, William Rupp and Samuel Pennybecker, to restrain and enjoin them and each of them, their aiders and abettors, from interfering with or in any way preventing the plaintiffs and their successors, regularly elected and installed, from entering the Muddy Creek church at such times as they may see fit, for the purpose of worshipping therein in accordance with the articles of agreement of the 30th of May 1761, and with the rules and regulations of the German Reformed and Lutheran churches; and it is further ordered, adjudged and decreed that all costs in this cause accruing and incurred in the Court of Common Pleas and in this court be paid by the said defendants.


author: Per Curiam.

text:
    The Harrisburg and Potomac Railroad Co. versus Peffer. Same versus Martin.
    Damages for the taking of property hy a railroad company arise by an act of appropriation under the state power of eminent domain, and do not rest in contract, express or ■ implied, and the railroad company is not entitled, therefore, to a stay of execution under the provisions of the Act of 16th of June 1836.
    May 14th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Certiorari to the Court of Common Pleas of Cumberland county: Of May Term 1877, Nos. 7 and 8.
    These were two proceedings in the court below wherein Lafayette Peffer was plaintiff in the one and George Martin in the other, and the Harrisburg and Potomac Railroad Company the defendant in both.
    The cases were thus. Upon the petition of plaintiffs the Court of Common Pleas appointed seven freeholders to assess the damages to plaintiffs’ property, by reason of the location and construction of defendant’s railroad. Viewers were appointed, who awarded damages to both plaintiffs and judgments were entered upon the awards. Immediately thereafter the defendant entered bail for a stay of execution before the prothonotary, who approved the same. The plaintiffs, however, issued writs of fi. fa. on the judgments, and the defendant then asked for a rule to show cause why these writs should not be set aside. Rules were granted, and after argument were discharged by the court, on the ground that there was no law which entitled the defendant to a stay of execution in cases of this kind.
    This action of the court was assigned for error.
    It was alleged by defendant that the awards of the viewers were not confirmed by the court, but no exceptions thereto were of record.

      W. H. Miller, for plaintiff in error.
    Under the provisions of the third section of the Act of 16th of June 1836, Purd. Dig. 634, pi. 4, “in all actions instituted by writ for the recovery of money due by contract, or of damages arising from breach of contract,’’ stay of execution is allowed by giving security. This process is for the recovery of money. The Act of Assembly allows a railroad company to locate its road on the land of the citizen on an implied contract that it will pay him the value of the land, &c., and the duty of viewers is simply to ascertain this value the act recognises as a debt.

      F. F. Beltzhoover and A. B. Sharpe, for defendants in error.
    No such inference as that contended for by plaintiff in error can be drawn from the Act of Assembly. The very section of the act to which his argument refers shows that the company and the owners cannot agree, and that the company by virtue of its right of eminent domain has entered and the process of the court been invoked to fix the damages about which they could not agree.
    May 21st 1877,
   The judgment of the Supreme Court, was entered

Per Curiam.

The question of the regularity of the judgment upon the award of damages was not raised in the court below. It is simply technical, and if made below would have been amended.

The next question brought up here is the right of the railroad company to have a stay of execution under the Act of 16th June 1886, sect. 3. That act applies to the recovery of money due by contract, or of damages arising from a breach of contract. Damages for the taking of property by a railroad company does not rest in contract express or implied. It arises by an act of appropriation under the state power of eminent domain. It is an exercise of power which the individual cannot resist, if prosecuted according to the constitution and law of the state. The owner of the property has no voice in the taking, except to demand that his property shall not be taken without payment or security as required by the constitution. But the entry of the company is a seizure, and an.appropriation to the use of the company which needs no consent to give it efficacy, if the conditions of the constitution and law be complied with. Nor is there any reason why the railroad company should demand a postponement of payment, when it has acquired possession by its own seizure. Payment may have to, does often wait, on the necessary proceeding to liquidate the damages; but this done, postponement of payment is in derogation of the constitutional right of the citizen, and -the law should not be expounded to cover such a case, beyond its literal terms.

Execution affirmed in each ease.


text:
    Mann et al. versus Mullin.
    1. Testator in 1850 made a will, devising certain property “ to be applied to the education of poor young men of Bedford county, that may be deemed by the court worthy, and intend preparing themselves for the ministry, without regard to religious sect, being Christian as a matter of course.” Testator died in 1873, and his heirs contested the validity of the trust. Held, that the testator intended to vest the discretion of the selection in the Court of Common Pleas, and while that court could not exercise such a discretion either by itself or a trustee of its appointment at the date of the will, yet at the time of-the death of testator it had acquired that capacity by virtue of the Act of 26th of April 1855, which empowers said courts to act as testar mentary trustees.
    2. Although the Act of 1855 is prospective only, and the court therefore had no power to act as trustee at the date of the will, the testator here having appointed the court, the act removed this disability and made it competent to administer the trust.
    3. The trust in other respects valid.
    May 14th. 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Bedford county: Of May Term 1877, No. 151.
    Ejectment by James Mann and others against David W. Mullin, trustee, for a farm of three hundred acres of land, situated partly in the borough and partly in the township of Bedford.
    Defendants pleaded not g'uilty, issue, &c.
    The questions involved were submitted to the court in a case stated substantially as follows :—
    “Hon. Job Mann died on the 8th day of October 1873, leaving his last will and testament in writing, dated at Washington City, July 1850 ; leaving surviving him a widow, Ruth E. Mann, and no issue, but collateral heirs, plaintiffs in this case; and seised in his demesne as of fee, inter alia, of the farm in dispute, and for the possession of which this action is brought; that on the 18th of March 1874, on the nomination of said widow, William F. Mann and David F. Mann were appointed administrators of the estate cum testamento annexo, the executor in the will being deceased; that on the same day the said widow filed her election in writing, in the register’s office, not to take under said will, but claimed her dower at common law, and her share of the personal estate; that subsequently, to wit, on the 25th day of October 1875, the court appointed D. W. Mullin, Esq., the defendant in this case, trustee under said will, to take charge of the farm and conduct the business relating to the same and receive and account for the proceeds thereof, as provided for in said will; to give bond, with approved security, in the sum of $5000, and that bond, duly approved, has been filed by said trustee; that in relation to said farm, the said Job Mann, testator, by his will aforesaid, made the following provisions, to wit:—

      “ ‘ To my wife, Ruth E. Mann, I give and bequeath my mansion house and the two lots of ground in Bedford, Pennsylvania, for and during her natural life, also the rents, issues and profits of my farm near town, for the same period; * * * my farm William N. Earquhar is to have a home on during his life; after the death of my wife, the proceeds of the farm to be applied to the education of poor young men of Bedford county that may be deemed by the court worthy, and intend preparing themselves for the ministry, without any regard to the religious sect or denomination, being Christian, as a matter of course; * * * should it at any time happen that there was no acting executor, the Court of Common Pleas of Bed-ford county to appoint one, with the consent of my wife; after the death of my wife the said court to appoint a trustee to conduct the business relating to the farm and truly account for the proceeds thereof, as provided herein ;’ that the farm referred to in the will as ‘ my farm near town,’ is the farm described in the writ of ejectment in this case, and is now in the possession of the defendant.
    “ It is conceded as a part of this case that the persons named as plaintiffs are the pi-oper heirs at law of the Hon. Job Mann, being descendants of his brothers and sisters.

      “ The plaintiffs claim that the devise of ‘ the proceeds of the farm to be applied to the education of poor young men,’ &c., is null and void, by reason of uncertainty, by reason of its being a gift for private charity, by reason of failure to name which court shall make the selection of these ‘ poor young men,’ by reason of attempting to impose on the court functions not prescribed or allowed by law, and in no wise judicial, by reason of the omission to dispose of the farm, the proceeds thereof only having been devised, by reason of the testator’s attempt to create a perpetuity, and for various other reasons ; that it creates a perpetuity and provides an accumulation beyond the legal period, and contravenes the law and public policy. If under the facts as stated, the plaintiffs are entitled in law and equity to recover the land from the defendant, then the court to enter judgment for the plaintiffs, with costs; but if in law and equity the plaintiffs are not entitled to recover the land from defendant, then the court to enter judgment for the defendant; reserving to each party the right to a writ of error.”
    The court entered judgment for the defendant which was the error assigned.

      William P. Schell, William P. Schell, Jr., and Frank R. Schell, for plaintiffs in error.
    The gift is equivalent to a devise of the farm : Coke Litt. 4; Carlyle v. Cannon et al., 3 Rawle 489; McCullough’s Appeal, 2 Jones 197 ; Thompson v. Swoope, 12 Harris 480; Griffitts v. Cope, 5 Id. 99. It is uncertain which court testator intended should select the object of his bounty. In cases of testamentary trusts the Orphans’ Court has concurrent jurisdiction with the Common Pleas: Brown’s Appeal, 2 Jones 333; Baird’s Case, 1 W. & S. 288.
    This charity is a private one: Brown v. Hummell, 6 Barr 87. The cestui que trusts are uncertain; they cannot be identified or come into court and claim the benefit conferred; and there is no power anywhere given, which can be exercised, whereby they can be ascertained. This indefiniteness will defeat the charity, even if it be considered a public one, and therefore with greater force will it avoid it if it be a private charity.
    The Act of 26th April 1855, Pamph. L. 331, is not retroactive, and therefore this will, which was made in 1850, is not within its operation : Taylor v. Mitchell, 7 P. F. Smith 209; Gable’s Ex’rs v. Daub, 4 Wright 217 ; McLean v. Wade, 5 Id. 216; Becker’s Appeal, 3 Casey 52; Neff’s Appeal, 9 Harris 247 ; Fisher v. Farley, 11 Id. 501.
    The Statute 43 Elizabeth, known as the Statute of Charitable Uses, was the culmination of the legislation in England on this subject. The statute is not extended to Pennsylvania, but still the principles of it, as applied by chancery in England, obtain here by force of our common law, and relief will be given so far as the powers of the courts will enable them : Witman v. Lex, 17 S. & R. 88; Zimmerman v. Anders, 6 W. & S. 218; Dom. and For. Miss. Society’s Appeal, 6 Casey 433; Miller v. Porter, 3 P. F. Smith 299 n.; Magill v. Brown, Brightly 347.
    Courts of equity have an original and inherent jurisdiction over charities independent of the statute : Vidal v. Girard, 2 How. 127, and authorities in note on page 638, Perry on Trusts.
    In England the lord chancellor was vested not only with the ordinary equity jurisdiction of the Court of Chancery, but, as the keeper of the king’s conscience, was intrusted with a part of the king’s prerogative in his jurisdiction over charities, and so could exercise the prerogative power of devoting a gift for a charitable use to such other charitable purpose cy pres the original gift as he chose. This prerogative cy pres power does not exist in this country : Witman v. Lex, 17 S. & R. 93; Brendle v. Church, 9 Casey 421; Philadelphia v. Girard, 9 Wright 9; Zeisweiss v. James, 13 P. F. Smith 469; Bispham’s Equity 134 ; Methodist Church v. Remington, 1 Watts 226. The application of the judicial cy pres doctrine, in the exercise of a general equity jurisdiction, stands upon very different grounds, and is f&vored in this country as well as in England: Vidal v. Girard, 2 How. 77; Magill v. Brown, Brightly 347 n.; Philadelphia v. Girard, 9 Wright 27 ; Parsons on Trusts 670. This gift is not to charity generally, but for a particular charity, and there is no room for the application of the cy pres doctrine even as a rule of construction: Attorney-General v. Ironmongers’ Co., 2 Myl. & K. 576.

      The functions imposed by the will on the court are in no wise judicial. They cannot be exercised without resorting to the prerogative power of the lord high chancellor, which it does not possess. Prerogative or ministerial functions can only be granted to the court by appropriate legislation, It can neither assume such functions nor act under them when granted by individual authorization.
    The discretion given to the court by the will is a personal trust, and was given because the testator had confidence in its judgment, its integrity and fitness; and he made no provision for the devolution of the trust upon any one else in any event whatever. Therefore, if it cannot exercise the power, it cannot delegate it to any person or trustee.

      J. P. Reed, G. H. Spang and Hail & Jordan, for appellees,
    to sustain the trust, cited Witman v. Lex, 17 S. & R. 88; McGirr v. Aaron, 1 P. & W. 49 ; Cresson’s Appeal, 6 Casey 437 ; Wright v. Linn, 9 Barr 434; Pickering v. Shotwell, 10 Id. 23; Evangelical Association’s Appeal, 11 Casey 316; Zimmerman v. Anders, 6 W. & S. 218; Porter’s Case, 1 Coke 23; Miller v. Teachout, 24 Ohio 525; Redf. on Wills *685, n. 51.
    The statute of Elizabeth is in force in Pennsylvania and in Kentucky, and we refer to Moore’s Heirs v. Moore’s Devisees, 4 Dana 354, as in principle on all fours with this case.
    May 28th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

The foundation upon which the doctrine of charitable uses rests in this state is firmly settled. While the statute of 43 Elizabeth is not in force, the principles which the English chancery has adopted on the subject obtain here, not by virtue of the statute, but as part of our common law. The fact is that those principles were recognised and applied in England before the statute, which only introduced a new remedy. Hence trusts for charities with us have always been upheld and enforced, no matter how uncertain were the objects, and though the effect evidently was to create a perpetuity. These have never been allowed as objections to their validity. Yet before the year 1855 it was a clear and well-settled rule that when the objects of the charity were uncertain, there must be vested somewhere in a competent trustee or trustees the discretion absolutely necessary to carry them into effect by selecting those objects. By the provision of the tenth section of the Act of Assembly, passed April 25th 1855, entitled “An Act relating to corporations and to estates held for corporate, religious and charitable uses,” Pamph. L. 331, this rule is impliedly recognised and a remedy enacted for future cases, in which the donor or testator has omitted to vest such a discretion in a trustee or trustees, or it has failed to be effectual by the death or other disability of the person or persons whom he may have appointed. That provision is, “that no disposition of property hereafter made for any religious, charitable, literary or scientific use shall fail for want of a trustee, or by reason of the objects being indefinite, uncertain or ceasing, or depending upon the discretion of a last trustee, or given in perpetuity, or in excess of the annual value hereinbefore limited; but it shall be the duty of any Orphans’ Court or court having equity jurisdiction in the proper county to supply a trustee, and by its decrees to carry into effect the intent of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity, for which purpose the proceeding shall be instituted by lea've of the attorney-general of the Commonwealth, on the relation of any institution, association or individual, desirous of carrying such disposition into effect.” It has been decided by this court that this act is prospective and applies only to dispositions of property thereafter to be made : Taylor v. Mitchell, 7 P. F. Smith 209. The will of Job Mann, which created the trust which is now before us for adjudication, was executed before the passage of the act. By that instrument it is perfectly clear, and indeed it has not been and cannot be controverted, that the only person or body in whom he vested the discretion of selecting as the objects of the charity which he meant to establish for the poor young men of Bedford county, such as may be worthy and intend preparing themselves for the ministry, is the Court of Common Pleas of that county. The ingenious young gentleman who argued this cause on behalf of the plaintiffs in error, with great ability and commendable industry and research, contended that it was not within the power of that court to accept and exercise such a discretion, it not being of a judicial nature, and no court in this state possessing that jurisdiction of the lord chancellor which he holds as keeper of the king’s conscience, under the sign-manual, and which springs exclusively ex prerogativa regis.

We are inclined to concede the truth and correctness of this com tention as of the date of Mr. Mann’s will, and that at that time the Court of Common Pleas was not competent either itself or by a trustee to be appointed by it to exercise such a discretion as the testator intended to confide in it. But in 1878, when Mr. Mann died and his will went into effect, the legislature, by a general law, had vested in the Court of Common Pleas, being a “ court having equity jurisdiction in the proper county,” as a judicial function the duty of carrying into effect the intent of a donor or testator, where-ever in a disposition of property for charitable uses thereafter to be made, there was either no trustee or it “ depended upon the discretion of a last trustee.” The will of Mr. Mann was ambulatory until his death. No rights in his estate under it or against it vested until that period. If at that time the Court of Common Pleas could not as a judicial function have exercised the discretion intrusted to it by the will, there would have been no competent trustee and the trusts would have failed. We agree that no subsequent act of the legislature, general or special, could have imparted to it new life. But here at the period when the will went into effect the court was invested with this function as part of its judicial duties. It may be objected that it was only so invested as to dispositions of property made subsequent to the passage of the law. It is undoubtedly true that if Mr. Mann had named no trustee, or to use the words of the act the trust had “ depended on the discretion of a last trustee,” the statute would not have helped the case. But here Mr. Mann did name the court as trustee, incompetent to exercise such a discretion at the date of his will, but made competent by a legislative enactment before his death as to wills made subsequently thereto. It can no longer be said that it is not a part of the judicial functions of a Court of Common Pleas by its decrees as a court of equity to carry into effect the intent of a donor or testator who has meant to establish a charity, but has failed to name a trustee to exercise the necessary discretion. The legislature has declared that the court is not incompetent to exercise such a function. Apart then from the operation of the tenth section of the Act of 1855, which we agree to be prospective only, it is a declaration of the will of the legislature that the Courts of Common.Pleas are tribunals competent to carry into effect discretionary trusts, that such a jurisdiction may be safely intrusted to them, and although where the donor or testator has not named them in a disposition prior to the date of the statute, they cannot assume the function, yet the case is very different where he has appointed them, and the only question is as to their competency. No one can doubt that if Mr. Mann had confided this discretion to a person who at the date of the will was a child, an infant without discretion or a lunatic, or under any other disability to exercise it, and before his death the disability had been removed, the trust would have been unimpeachable for this cause.

Judgment affirmed.