author: by Agnew, J.

text:
    Meason versus Kaine.
    1. Meason, Kaine and Cope agreed to bay land, each to he equal owner and to pay one-third; the conveyance to be made to Kaine and Cope. Meason refused to pay his part; Kaine and Cope paid all and sued Meason for his part, declaring in the common counts. Held, that an amendment setting out the special contract between the parties was proper.
    2. The contract to be proved and its breach were the same whether the suit was to recover the purchase-money or damages for non-payment.
    3. The Statute of Frauds intervening to prevent a recovery of the purchase-money, did not affect the right to amend, for the contract and breach were the same; the statute affecting only the measure of damages.
    4. Actions to enforce a parol trust forbidden by the Act of April 22d 1856, rest on the same grounds as actions to enforce a parol sale of land.
    5. A bargain for a trust is the purchase of an equity, for the payment of the purchase-money would give an equitable title to the land.
    6. A suit which compels the payment of the purchase-money converts the holder of the title into a trustee.
    7. In the absence of fraud, nothing can be recovered for the loss of a parol bargain, beyond compensation for the actual loss sustained.
    8. Where the vendor has not acted in good faith, the vendee can recover also for the loss of his bargain.
    9. The doctrine of estoppel rests on a belief induced by one, whereby another has been led to put himself in a position, where it would be a fraud in the former to shift him from it.
    10. An express promise which encourages another to assume a new position and thereby incur responsibility and loss, is the highest encouragement.
    11. If fraud be found by the jury, the plaintiff would be entitled to recover the difference between the sum advanced for the defendant and the actual value of the land at the time of the breach.
    12. When no time' for payment is fixed the general rule is a reasonable time; when the parties by mutual forbearance put off the time, the period would be the final demand and refusal.
    13. Any loss in the value of the land caused by the negligence and want of care of Kaine and Cope, should be considered in estimating damages.
    14. The action to recover for Meason’s breach of contract must be joint by Kaine and Cope.
    15. The contract being express, the action must follow the.nature of the contract.
    16. The action having been brought by Kaine alone, may be amended under the Act of May 4th 1852 by adding Cope’s name.
    November 19th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Payette county: Of October and November Term 1870, No. 188.
    The form of action in this case was assumpsit, by Daniel Kaine against Alfred E. Meason; the suit was brought May 4th 1867.

      The original declaration was altogether on the common counts. The affidavit of plaintiff’s claim was that the defendant owed him $333.38 with interest from April. 2d 1866, and $778.44 with interest from April 3d 1867. The case was tried January 21st 1869, and a verdict rendered for plaintiff for $1251.90. The judgment on this Verdict was reversed by the Supreme Court (13 P. F. Smith 335). .
    After the record was returned the plaintiff filed an additional count, which averred that in consideration that the plaintiff and one Eli Cope would purchase a farm of James' Shoaf, the defendant agreed, “to and with the plaintiff,” that he would become owner of one-third of it and pay one-third of the purchase-money; that the plaintiff and Cope purchased the farm for $12,838.75, and offered the one-third to the defendant, but he refused to take it and pay the one-third of the purchase-money.
    The case was again tried March 17th 1870, before Gilmore, P. J. The plaintiff gave in evidence an article of agreement dated December 23d 1864, between Shoaf of the one part and Cope and the plaintiff of the other, by which Shoaf agreed to sell to them a tract of 234 acres of land for $12,838.75. The article was witnessed by the defendant.
    Cope testified that the defendant came to him “ to go in and buy” the Shoaf farm; Cope said it was too much for him, unless more would go in; Meason went away 'and returned, saying that the plaintiff would go in; defendant and plaintiff came to witness’s house, and the three agreed to buy the farm. The next day they met Shoaf; they agreed about the farm; the defendant wrote the article; the understanding was that defendant’s name was not to be used in the article; the purchasers were the plaintiff, defendant and witness, as equal owners; it was thought defendant could act best for the parties in selling the farm if his name was left out; the defendant always said he would pay his share; witness had tried in every way to sell the farm, but could not; the highest offer was $35 per acre. ’
    The plaintiff testified substantially to the same facts. He also testified that by an arrangement with the parties they were all to meet April 1st 1867 to pay Shoaf $4700 on account of the purchase-money and interest; the defendant had assured plaintiff he would then be ready to pay his share; the others met at the time appointed; the defendant did not come, and Cope and plaintiff paid all the money; the understanding was that defendant should sell the land, Cope and plaintiff execute the deed, and the money be divided between the three. The plaintiff then gave evidence of the value of the farm and of some expenses in regard to it by himself and Cope.
    The defendant testified, denying that he ever agreed to become a joint purchaser of the farm with the plaintiff and Cope, or to pay any part of the purchase-money. He gave evidence also that the farm had very much deteriorated through bad management since it was bought, of its value, &c.
    The following are points submitted by the defendant, with their answers:—
    1. The claim of plaintiff being joint with Eli Cope, there can be no recovery in this action.
    Answer: “The amended narr. goes for damages'for a noncompliance with an alleged parol contract, by which it is claimed by plaintiff that defendant was co-purchaser with plaintiff and Eli Cope in the purchase of a tract of land from James Shoaf, which parol contract the defendant denies. We are asked to charge you that Cope should have been joined in this action; we are inclined to believe, and so instruct you, that a separate action can be maintained; we therefore refuse to charge you as requested. The Supreme Court in this case refused to indicate their opinion on this point; we are requested to do so; and, without hearing any argument on this point, none having been offered, we decide as above indicated.”
    4. Should the jury be of opinion that if Kaine & Cope had properly cared for and farmed the Shoaf farm since it has been in their possession, it would now bring money enough to clear them of loss, plaintiff cannot recover.
    Answer : “ This has reference to the measure of damages to be assessed in case you should find that Meason did agree by parol to be an equal, or'one-third purchaser in the contract. We charge you that the measure of the damages will be the difference between the price paid or agreed to be paid by plaintiff and Cope, and the market value of the land at this date, and any diminution of value occasioned by the mere wear and tear of the premises under the tenancy, if there is any, could not be taken into account, that is, it should not be charged to the plaintiff, but the market value of the land now, as compared with what has been paid for it, should be the measure of the damages.”
    7. The cause of action as laid in the amended narr., filed March 15th 1870, is barred by the 6th section of the Act of Assembly of April 22d 1856, relating to trusts, &c. This point was reserved.
    8. The measure of damages must be actual outlays by Kaine, or the value of services rendered or labor performed by him in consequence of, or in and about the agreement with Meason, outside of the consideration-money, and that in fixing the damages they must leave out of view the consideration-money as it has no place in this case.
    Answer: “ Our answer as to the measure is given in the answer to defendant’s 4th point, to which we adhere.”
    The verdict was for the plaintiff for $500.20, with right to the court to enter judgment on the reserved question for defendant, non obstante veredicto.

    In delivering his opinion on the reserved question the judge answered the 7th point as follows:—
    “By reserving our answer to 7th point of the defendant we showed our willingness to reconsider our order, allowing the amendment to the narr. This point involves the whole case, and we have now heard it argued with all the authorities bearing upon the case cited. And after consideration wé remain of the same opinion, that we had power to allow the amendment, and upon this amendment the action has now been tried. We hold that the cause of action is substantially the same, the gravamen of the complaint against the defendant is, that he refused to comply with his parol contract with the plaintiff and Eli Cope in the purchase of the tract of land from Shoaf. The narr., as filed in the case when tried, was found to be obnoxious to the provisions of the 4th section of the Act of-22d of April 1856', The action, as then declared upon, was in furtherance and confirmation of the contract, and according to the rulings already made under this act could not be sustained. But the amended narr. and new count upon which the action has now been tried demands damages for the violation of his parol agreement in the making and infraction of this contract. This is a familiar cause of action and' not within the meaning of the Act of 1856. It is true, it is almost always between vendor and vendee, but we see no reason why it would not hold as good between co-vendees. We therefore say that the root or foundation of the plaintiff’s action was the same, to wit, the failure to comply with his parol agreement, he had a. right, under our statutes, to have his narr, amended, and recover upon a count under which his action will not be barred. It may be observed also that the form of action and the parties continue the same, still it is alleged that the allowance of this amendment would make a misjoinder of counts, and this is put on the ground that the damages are not assessed by the same admeasurement. It is true that the damages are not assessed by the same rule, but if the plaintiff’s cause of action is the same, why may he not strike out the obnoxious count or ignore it altogether, as he did in this trial ? This matter can all be regulated on trial. It is also objected that the plea would be contradictory, that on the one count the statute bar is five years, and on the other six. We give the same answer to this objection as we have done to the one immediately preceding; and furthermore, there are other ways in which this difficulty could be and ought to be avoided for the purpose of arriving at the substantial justice of the case. It is no objection to the allowance of an amendment that the party, defendant could to a new action plead in bar the Statute of Limitations. This we think, in a- meritorious action, would be a reason why the amendment should, if possible, be allowed. We therefore decide the reserved point in favor of the plaintiff, and direct'judgment on the verdict in his favor.”
    January 16th 1871,
    The defendant took a writ of error, and assigned for error the answers to his 1st, 4th and 8th points, and entering judgment for the plaintiff on the verdict on the reserved question.

      E. Campbell and A. E. Willson, for plaintiff in error.
    The plaintiff alone cannot recover for breach of a contract made jointly with himself and another: Eccleston v. Clipsham, 1 Saunders 153, note; Cabell v. Vaughan, Id. 291, note 4; Coryton v. Lithebye, 2 Id. 115, note 2; Saunder’s Pl. 169; Boggs v. Curtin, 10 S. & R. 211; Lee v. Gibbons, 14 Id. 105; Archer v. Dunn, 2 W. & S. 327; Addison on Contracts 948, 950; 1 Chitty on Pl. 6. The want of proper care of the farm by the plaintiff and Cope is to be considered in estimating the damages for the breach of the contract: Hertzog v. Hertzog, 10 Casey 418; Dumars v. Miller, Id. 319; Graham v. Graham, Id. 475; McNair v. Compton, 11 Id. 23; Bender’s Ad’mr. v. Bender, 1 Wright 420; Tripp v. Bishop, 6 P. F. Smith 424; Allen’s Est., 1 W. & S. 383. Under the 4th section of the Act of April 22d 1856, the action could not be sustained, being based on a parol contract for the sale of land, although the ground of recovery may be changed : Coxe v. Tilghman, 1 Whart. 282; Beates v. Retallick, 11 Harris 288; Diehl v. McGlue, 2 Rawle 237. If the suit had been brought at the time the amended declaration was filed, it would have been barred by the 6th section of the Act of April 22d 1856; filing the amendment should not take it out of the bar of that statute.

      C. E. Boyle and W. H. Playford, for the defendant in error.
    This action is in the nature of one for contribution where there must be separate actions: Boggs v. Curtin, 10 S. & R. 218; McFadden v. Hunt, 5 W. & S. 472. This contract is not as between vendor and vendee; it is on a promise to join in a purchase and for a loss from the failure to keep it. The new count on a special contract was properly allowed: Cunningham v. Day, 2 S. & R. 1.
   The opinion of the court was delivered,

by Agnew, J.

Eli Cope, Daniel Kaine and Alfred E. Meason met at Mr. Cope’s house on an evening in December 1864, and agreed together verbally to buy a farm owned by James Shoaf. Their mutual agreement was that the purchase should be made in the names of Cope and Kaine, in order that Meason might appear to act as their agent, and make a better sale of the land, ibut (to use Kaine’s words) that the farm should be bought for ithem all, each an equal owner, each to pay one-third, and each.to own one-third. It is for Meason’s breach of this contract in refusing to take the one-third of the land and to pay his share of the purchase-money this suit is brought by Kaine. This statement shows the right of the plaintiff to amend his declaration, which was in the common counts, by setting out the special contract and its breach. It is clear the contract to be proved and its breach are the same, whether the plaintiff sues to recover the purchase-money or damages for non-payment. Hence the fact that the Statute of Frauds and Perjuries intervenes to prevent a recovery of the purchase-money, and throws the plaintiff upon a recovery of compensation merely for the breach, does not affect the right to amend; for the contract and breach are the same, and it is the measure of damages only which is affected by the statute. There is express authority for this: Wilson v. Clarke, 1 W. & S. 554. See also Cunningham v. Day, 2 S. & R. 1; Ebersoll v. Krug and Wife, 5 Binn. 51; Coxe v. Tilghman, 1 Whart. 282; Beates v. Retallick, 11 Harris 288. But what is the true measure of damages in such a case ? This is the chief question. That it is not the purchase-money or the one-half of it advanced by Kaine was decided in the former writ of error in this case, on the ground that it would conflict with the Act of 22d April 1856, the 4th section of which declares that all declarations of trust or confidence in lands, and all grants and assignments thereof shall be in writing signed by the party holding the title thereof. To sustain the recovery of the purchase-money is to enforce the trust itself; for the payment of it draws the title to the cestui que trust, and converts the holder of the title into a trustee for his use, on the ground that equity will not permit him to hold both the title and the money. Nor would the remedy be mutual, for if the holder of the title deny the trust, resting on the statute, the cestui que trust could not by a tender enforce the trust. This question was examined and stated with his usual vigor by C. J. Gibson, in Wilson v. Clarke, supra. See also Ellet v. Paxson, 2 W. & S. 418, and Irvine v. Bull, 4 Watts 287. Actions to enforce a parol trust forbidden by the Act of 1856, rest upon the same grounds as actions to enforce a parol sale of land, the mischief being the same, to wit, the encouragement given to fraud and perjury. A valid trust is as effectual to give title as a valid sale. A bargain for a trust is the purchase of an equity only by a different name; for the payment of the purchase-money would secure an equitable title to the land. A suit, therefore, which compels the payment of the purchase-money would as effectually convert the holder of the title into a. trustee for the cestui que trust as a suit for purchase-money on a sale. We held, therefore, when this case was here before, that the purchase-money advanced by K&ine for Meason could not be recovered. To the authorities before cited may be added Hertzog v. Hertzog, 10 Casey 418, overruling Jack v. McKee, 9 Barr 235; Dumars v. Miller, and Graham v. Graham, 10 Casey 319 and 475; McClowry v. Croghan, 1 Grant 307; McNair v. Compton, 11 Casey 23; Burr v. Todd, 5 Wright 213; Bender v. Bender, 1 Id. 419; Tripp v. Bishop, 6 P. F. Smith 424.

These authorities establish another point, that in the absence of fraud, nothing can be recovered for the loss of a parol bargain, but compensation only for the actual loss sustained, such as the payment of money and expenditures and expenses incurred on the faith of the bargain. The principle, however, is derived from the case of a vendor who sells in good faith and is unable to make a good title. In all such cases the vendee is not permitted to recover for the loss of a good bargain, but is confined to his actual loss in money, labor or service performed on the faith of the contract. But there is another class of cases where the vendor has not acted in good faith, or has been guilty of deception, where the vendee’ is permitted to recover also for the loss of his bargain: King v. Pyle, 8 S. & R. 166; Good v. Good, 9 Watts’ 567; Lee v. Dean, 3 Wharton 330; Bitner v. Brough, 1 Jones 139. Rogers, J., said in the last ease: “ But the rule holds good when the vendor acts with good faith; where he is guilty of collusion, tort, artifice and fraud, to escape from the effects of a bad bargain, it is otherwise. In that case the vendee is entitled not only to compensatory damages, but to damages arising from the loss of the bargain, or the money he might have derived from the completion of the contract.” This exception is also recognised by Justice Woodward in Hertzog v. Hertzog, 10 Casey 428, and in McNair v. Compton, 11 Casey 23; and by Strong, J., in Hoy v. Gronoble, 10 Casey 11.

In the present case there was evidence to go to the jury of bad faith on part of Meason. If the testimony of Cope and Kaine be believed, Meason made the first proposition to buy the land, agreed to go in with them in its purchase, and to pay one-third of the price, and by their mutual agreement his name was left out of the contract to enable him to act seemingly as their agent and make a better sale for their joint benefit. If this be true, it is evident they were led to take an important step on his pledge of faith, and to incur a heavy responsibility for him at his request; whereby they have been seriously injured by his refusal to fulfil his pledge. Now this is the very principle on which the doctrine of estoppel rests; a belief, induced by another, whereby the former has been led to place himself in a position where it would be a fraud in the latter to shift him from it: Commonwealth v. Moltz, 10 Barr 530, “ Where (says Judge Bell) an act is done or a statement made by a party, the truth or efficiency of which it would be a fraud on his part to controvert or impair.” Ibid. Thus in Nass v. Van Swearingen, 10 S. & R. 146, it was declared that a party who stands by at the sale of his property, though under a void authority, and encourages purchasers to bid, is guilty of direct fraud. In like manner, one who encourages another to settle on land and expend money and labor on it, will not be permitted to assert a better title to it: Miller v. Miller, 10 P. F. Smith 16. Now clearly an express promise, which encourages another to assume a new position and thereby incur responsibility and loss, is the highest encouragement. It is more potent than silence, when one should speak out, or acts which mislead. The fact that the Statute of Prauds prevents a specific performance only heightens the breach of faith and intensifies the fraud. The case is therefore not one of a mere refusal to perform a bargain where the opposite party has not changed his position, but Cope and Kaine here took upon themselves a heavy responsibility for Meason at his request, and have suffered heavily for it. He should therefore make good the actual loss. But it is supposed this would be to adopt the doctrine of the value of the land as the measure of damages, which was overthrown in Hertzog v. Hertzog, supra. This is not correct. Praud or bad faith in the bargain is an admitted exception, as maybe seen on pages 420 and 428. And see Dumars v. Miller, 10 Casey 322, 323; McNair v. Compton, 11 Casey 23; Hoy v. Gronoble, 10 Casey 9. There is good reason for the exception, for a statute passed to prevent frauds should not be made itself the means of perpetrating a fraud. The contract not being forbidden by the statute, is not to be treated so as to screen a fraudulent party from the just effect of his conduct. The statute merely forbids the passing of the title by parol, and the true principle in giving it effect, is, never to make the value of the land the measure of damages, when the consequence of such a measure would be to convert tbe owner by parol or the holder of the title into a trustee of it for the vendee or alleged cestui que trust, or where it would compel the holder of the title to pass it over rather than to suffer the consequences. But it is clear, no such effect follows a recovery of the actual loss caused by a refusal to perform the contract against a vendor who by his fraud has brought the loss on himself. In paying the difference between the contract price and the actual market value of the land, he pays only the real loss incurred by reason of his fraud, while his title is not disturbed but remains in. him. It is not correct to say this is a return to the exploded doctrine of Jack and McKee, because the difference being added to the contract price is equal to the whole value of the land. There is a confusion in this proposition. The sum in dollars is numerically equal, but the elements are different. When a vendee having actually paid the price, recovers it back, he does not recover the value of the land, but his own money only. The difference between the contract price and the market value of the land does represent so much of the value of the land, but the vendor retaining the land holds the residue of the market value in his own hands. The vendor holds both land and money in such a case; and of course must return the price paid, for it is the money of the vendee so long as the vendor holds the land, and the vendee therefore gets back only his own money, and recovers the difference representing the loss he has suffered, leaving the land still in the hands of the vendor. The confusion is in substituting the money paid by the vendee for so much of the market value of the land ; while the vendee recovers no part of the value of the land retained by the vendor, except so much of it as represents his loss. The question of fraud is one for the jury, but if found, the plaintiff in this case would be entitled to recover the difference between the sum advanced for the defendant and the actual market value of one-third of the land at the time of the breach of the contract.

But the learned judge charged that the loss was to be measured by the market value of the land at the time of the trial. This was an error. It is said, he took this rule from our former opinion in this case, where it was said, the measure would be the difference between the price Meason had agreed to pay and the present market value of one-third of the land. This was a misconception of the language used by our Brother who wrote the opinion. The subject of discussion there was the right of the plaintiff to recover the purchase-money under a parol contract for a trust in the face of the Act of 1856. The present market value was merely a general expression denoting the later or proximate period as distinguished from the time of the contract, and did not refer to the time of trial.

Farther on in the opinion, and still discussing the effect of the Act of 1856, it is said the measure is “ the difference between the price agreed and the actual market value of his one-third of the landshowing that it was the measure and not the time when it should be applied, which was in the mind of the writer of the opinion. The true period when the measure is to be applied is the time of the final breach of the contract. This always depends on the terms of the contract, in some the time of performance being fixed and in others not fixed. In the present. case it does not seem that any time was specified, and the parties continued making efforts to sell, Meason remaining in service until it was found the land could not be sold, and finally refusing to fulfil his agreement about the 1st of April 1867, according to some of the testimony. Where no time is fixed for payment, the general rule is to allow a reasonable time, but when the parties by mutual forbearance put off the time, the period would be when the final demand was made and the refusal to comply. But the rule laid down by the court below would place the defendant too much in the power of the plaintiff, who might purposely delay his suit in order to augment his damages. This might bring ruin on the defendant. Such a rule is condemned in Ashcom v. Smith, 2 Penna. 211, and in Shreve v. Brenton, 1 P. F. Smith 178, 185. This question may be well summed up in the language of Justice Kennedy, in Ellett v. Paxson, 2 W. & S. 433, where he says, “ But as a recovery of the purchase-money would have been in effect an enforcement of a specific performance of the contract, the learned judge before whom the trial was had, very properly ruled that as the contract declared on was verbal, and therefore within the provisions of the act against frauds and perjuries, the plaintiffs at most were only entitled to recover damages equal to the loss actually sustained by the non-fulfilment of the contract; which, in this case, would appear from the evidence to be the difference between the value of the property at the time the defendants refused to fulfil the contract, and the sum agreed to be paid as the price of it.”

We think it was an. error also to omit to give the instruction asked for, that any loss in the value of the property caused by the want of care and the negligence of Cope and Kaine to keep it in a proper and ordinary state of preservation, should be excluded from the damages. So far as their own negligence or misconduct actually contributed to the depreciation in the price, they certainly ought not to be permitted to recover.

The last question relates to the non-joinder of Cope in this suit. The statement of the contract already given, shows that this was a mutual agreement, by which each party bound himself to both the others. It had a common object and a united purpose, to wit, the purchase and sale of the farm. The breach also is common to both of the other parties, and it is evident .the loss is joint. If an examination of title and encumbrances be made, or a survey to ascertain quantity, or deeds prepared, or other expenses incurred to complete the contract, it is obvious the liability to pay for them is common to all. So the loss by depreciation or loss of profit equally affects both. Indeed, there is no ground of severance in such a contract. If one pays more of a certain expense than the other, or of the purchase-money, it is the subject of adjustment between themselves, but the contract' being single on part of the defendant, his breach of it is single, and the injury comm'on to the other two. There might be a dozen members in such a purchase, and consequently as many suits would follow the single breach of refusing to pay the sum to which the defendant bound himself. This is contrary to justice and the policy which forbids a multiplicity of suits. The -case is one of express contract — not implied — and the remedy therefore follows the nature of the contraband is joint: Boggs v. Curtin, 10 S. & R. 213; Lee v. Gibbons, 14 S. & R. 111; Archer v. Dunn, 2 W. & S. 360. It is not like a contract implied from a payment of money at request when the payment is the meritorious cause of action, and the money itself the subject of the suit. Nor is it like an action by a tenant in common upon his title, or upon a consideration growing out of his separate estate. In short, it arises upon no contract which the law itself raises from the circumstances, by reason of a consideration received or by reason of an independent relation of the party; but arises upon the direct agreement by one to the other two, to take the property and pay for it, which not being done, the,action necessarily follows the form of the contract and the parties with whom it was made. Cope and Kaine ought therefore to have joined in the action. But the non-joinder is amendable under the Act of 4th May 1852, Purdon 47, pl. 3; Rangler v. Hummel, 1 Wright 130; Hite v. Kier, 2 Wright 72. Cope’s name may therefore be added to the record.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Woods versus Gummert.
    1. In a question of fraud, evidence should have a wide range, and if it has any bearing on the question, however remote, it is admissible.
    2. In an action for money advanced, evidence that an execution issued by third person against the plaintiff had been returned “nulla bona,” was inadmissible.
    3. Payments of the debts of a principal by the agent, are presumed to be from the principal’s money.
    4. Stevenson v. Stewart, 1 Jones 307, compared.
    November 19th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and .Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 215, to October and November Term 1870.
    This was an action of assumpsit brought May 22d 1866, by John II. Gummert, to the use, &c., against William Woods and James Cunningham, administrators, &c., of James Woods deceased. The claim was on a book account for work and lábor on decedent’s farm, services as his agent about his general business under a power of attorney and money advanced in payment of debts. The book account extended through the years 1860,1861 and 1862. The plaintiff gave evidence of payments of debts, &c., for the decedent in 1860,1861 and 1862, and of his services as agent and their value.
    The defendants then offered in evidence the record of a judgment against the plaintiff for $1671.60, recovered October 11th 1858, fi. fa. to December Term 1858.
    Returned, “Levied on personal property of defendant and applied, viz.: $690 to debt of the judgment, upon which execution was returned as to the residue nulla bona." Offered for the purpose of showing that plaintiff was indebted and unable to pay his own debts, and as some evidence that he could not have made advancements out of his own resources, for the payment of James Woods’s indebtedness.
    January 16th 1871,
    The offer was objected to by the plaintiff, rejected by the court (Gilmore, P. J.), and a bill of exceptions sealed.
    The verdict was for the plaintiff for $461.70.
    The defendants took out a writ of error, and assigned the rejection of their offer for error.

      D. Kaine, for plaintiffs in error,
    cited Miller v. Stem, 2 Jones 386; Parker v. Donaldson, 6 W. & S. 132.

      W. H. Playford, for defendant in error.
   The opinion of the court was delivered;

by Sharswood, J.

No doubt upon an issue involving a question of fraud, evidence must in the nature of things be allowed a wide range, and testimony having any bearing, however remote, is admissible: Reinhard v. Keenbarte, 6 Watts 93; Kauffman v. Swar, 5 Barr 230. Therefore, it was held in Stevenson v. Stewart, 1 Jones 307, that in an action on a single bill, to which the defence was forgery, evidence was admissible on the part of the plaintiff to show that before or after the date of the bill the maker was trying to borrow money. “ Such investigations,” said Mr. Justice Bell, “founded in imputed fraud, naturally take a wide range. Among the most common topics of inquiry is the pecuniary capacity of the supposed lender, and the necessitous conditions of the alleged borrower. And these inquiries are legitimate.” But surely it is not to be inferred from this that wherever a plaintiff brings an action for goods sold and delivered or money lent and advanced, or paid, laid out, and expended, that it is competent to the defendant to give evidence of the pecuniary inability of the. plaintiff and thus raise an issue entirely collateral. What legitimate inference in such a ease can be drawn from the insolvency of the plaintiff? Men heavily indebted and even keeping their creditors at bay, often have large transactions in borrowing and lending, and are possessed -of considerable sums of money. If the defendant is allowed to show that the plaintiff owes debts which he does not pay, the plaintiff may certainly rebut the evidence by showing that he has a good defence to them. Thus, innumerable collateral issues might be introduced. The case below was not a case so far as appears in which any issue of fraud was raised. The fraud which the defendant alleged was simply that of setting up an unfounded claim. The same fraud could with equal propriety be alleged in every action. . The claim of the plaintiff, besides a book account for work and labor and compensation for services as agent, was for money alleged to have been paid on account of his principal. The presumption was that the money so paid was that of his principal unless he gave evidence to show that it was his own. What light was thrown upon this question by proving that there was a judgment against him upon an execution on which $690 had been made and nulla bona returned as to the residue ? Now had the plaintiff been suing upon a paper alleged to be forged or procured by fraud, such evidence might have been admissible as having some weight in a case of doubt, especially if it was cotemporaneous with the transaction in controversy. Here the judgment execution and return were in 1858, the payments or advances alleged in 1860, 1861, but principally in 1862. To what period of time is such evidence to be confined ? In Stevenson v. Stewart the evidence of defendant’s applications to others to borrow money was in the year when the note which he alleged to be forged was dated both before and after the date of the bill. The inference asked to be drawn in support of the innocence of the plaintiff’s case was that he had also applied to and borrowed money of him. That was a very different case from that which is presented upon this record.

Judgment affirmed.


author:
by
      Sharswood, J. Williams, J.

text:
    Schnorr’s Appeal.
    1. Property vested in a religious society, incorporated or not, is a charitable use, whether the donors be one or many.
    2. The society are trustees and cannot divert the property from the use to which it was dedicated more than other trustees.
    3. If they undertake to divert the fund, equity will raise another trustee to administer it according to the intention of the donor or subscribers.
    4. When the founders have expressed their intention that particular doe-' trines shall be taught or a particular form of worship and government maintained, those having the management of the institution cannot alter the purpose for which it was founded.
    5. A church organized and endowed as belonging to any particular sect, or in subordination to any particular form of church government, cannot break from that connection or government.
    6. If the church be not described in the original donation or subscription as under any particular ecclesiastical jurisdiction it may change its relation, provided there be no radical departure from the original faith or doctrine.
    7. In churches, those who adhere and submit to the regular order of the church, though a minority, are the true congregation.
    8. The title to the property of a divided congregation is in that part which is acting in harmony with its own law, and the ecclesiastical laws, usages, &c., which were accepted before the dispute are the standard to determine which is right.
    9. The guaranty of religious freedom has nothing to do with the property.
    10. The majority of a congregation organized under a particular ecclesiastical jurisdiction, resolved that they would not continue under that jurisdiction, elected church officers as an independent body and took possession of the church property. They afterwards rescinded their resolutions and resolved to return ; this did not restore them to their former church relations or to any rights in the property.
    11. McGinnis v. Watson, 5 Wright 9, Sutter v. Reformed Dutch Church, 6 Id. 503, remarked on.
    November 19th 1870.
    Before Thompson, C. J., Read, Agnew» Sharswood and Williams, JJ.
    Appeal from the decree of the Court of'Common Pleas of Butler'county: In equity, No. 208, to October and November Term 1870.
    To June Term (March 12th) 1870 of the Court of Common Pleas of Butler county, William H. Miller and William F. Miller, elders, and Henry Kalb, deacon of “ The German Evangelical Reformed St. Paul’s Church, of Butler, Pennsylvania,” filed a bill against F. H. Schnorr, William Vogeley, George Vogeley, jr., Peter Biehl, Gottlieb Langhein and others. The bill set out:—
    ' 1. That the above-named church was incorporated on the 4th of December 1865, “ to worship Almighty God according to the faith and discipline of the German Evangelical Reformed Church in the United States,” and subject to the control of the Synod of the German Reformed Church in the United States.
    2 and 3. That on the 22d of March ,1866, William Vogeley conveyed to the corporation a lot of land in the borough of Butler, expressly “for the use of a congregation of the German Evangelical Reformed Church, and with the condition that no change shall be made in said congregation for any other denomination.” On this .lot a brick church edifice had been erected.
    4. That the congregation organized by the election of a pastor, three elders and three deacons, as provided in their charter, united with St. Paul’s Classis of the German Reformed Church, and thereby with the Synod of the German Reformed Church in the United States, and was constituted a pastoral charge in connection with the congregation of Brady’s Bend, and continued to worship in said church according to the faith and discipline of the German Reformed Church of the United States.
    5. In June 1869, the consistory of the congregation was composed of the following officers: Pastor, Rev. C. A. Limherg; elders, William H. Miller, William F. Miller and George Vogeley, jr.; deacons, Henry Kalb, Peter Beihl and G. Langhein. That the said Vogeley, Beihl and Langhein, now defendants in the hill, and their co-defendants (except F. H. Schnorr) were then members of said congregation and worshippers - in said church.
    6. In June, Limherg resigned his charge, and the pastorate became vacant, although he proposed to preach occasionally till a new pastor should be installed; but some of the defendants locked the doors of the church, and refused to allow them to be opened when he came to preach, and had since refused to allow him to preach.
    7. The other defendants and their associates, being a majority of the congregation, in violation of the charter, chose and inducted into office a pastor, the.defendant P. H. Sehnorr, he not being a minister in connection with the Synod of the German Reformed Church, and he continued to act as pastor.
    8. The defendants, in November 1869, had adopted a constitution, giving themselves a different name; providing that the German language only shall be used in their services ; that the office of pastor should be filled by such minister as the congregation may select, and shall take no part in their temporal affairs ; that they would no longer draw any distinction between Lutheran and Reformed; that it declared itself independent of all synods; that all former laws governing the congregation were revoked and made null and void; — all these acts being contrary to the constitution of the German Reformed Church of the United States.
    9. The defendants refused to allow St. Paul’s Classis of the German Reformed Church to meet in the church.
    10. By reason of these acts of the defendants the property of the corporation had been diverted from its lawful uses; the plaintiffs and other members of the congregation were prevented from worshipping in the church according to the worship, faith and discipline of the German Reformed Church, and prevented from having a regular pastor of the German Reformed Church, and stated preaching in the church.
    The prayers were:—
    To restrain the defendants from further use and possession of the lot and church;
    To restrain Sehnorr from officiating as pastor so long as he is not connected with the Synod of the German Reformed Church, and to prevent the defendants from permitting any one else to officiate as pastor not being in such connection;
    To declare that George Yogeley, jr., elder, and Peter Beihl and Gottlieb Langbein, deacons, had vacated their respective offices, and to restrain them from intermeddling with the affairs of the congregation, &c.;
    To order defendants to restore the possession of the church and lot and all other property of the congregation to the plaintiffs, for the use of the adhering members of the congregation.
    On the 18th of May 1870, the defendants filed their answer.
    They admitted the allegations in the 1st, 2d and 4th paragraphs of the bill; in the 5th, except that Wm. P. Miller was installed elder. They admit the 6th so far as relates to Mr. Limberg; say nothing as to the allegations of locking the church, &c.; and declare that they desire the services of a minister of the German Reformed Church, to be placed according to its rules when a vacancy occurs. 7. They do not desire to continue Mr. Schnorr as pastor unless St. Paul’s Classis, to whom he has applied for admission, receive him as a member. 8 and 9. The grievances referred to in these paragraphs resulted from the improper conduct of Mr. Limberg, whose cause the Classis espoused, and would not send another pastor, and sought to force him on the congregation against its consent. Before filing the bill, notice was given of a meeting of the congregation, which was accordingly held on the 13th of March 1870; it was then resolved that all that had been done at the meeting in November inconsistent with the charter be rescinded a,nd modified so as to conform to it, “ as effectually as if the same had never been adoptedthat the meeting desired to be in full fellowship and communion with the German Reformed Church.
    “ In answer to the 10th paragraph of the bill defendants say that the property of said congregation is not diverted-from its lawful use, and that the plaintiffs are not prevented from worship-ping in-the said church according to the faith and discipline of the German Reformed Church, but are hereby and have been requested to meet and elect or call a pastor in connection with the Synod of the said German Reformed Church to fill the vacancy occasioned by the resignation of Rev. Limberg, and that the defendants desire to conform in good faith to the faith, discipline, rules and regulations of the German Reformed Church of the United States, only claiming equal rights with the plaintiffs in the lawful enjoyment of the church property, under the established rules of the said Reformed Church.”
    The charter of the congregation provided:—
    Article 1. “It shall be subject to the control of the Synod of the German Reformed Church in the United States, and shall in all respects be governed by its rules and regulations.
    Article 2. “sThe officers of this congregation shall be a pastor, three elders and three deacons.
    “ The pastor, elders and deacons shall constitute the consistory ■ of the congregation. A president, secretary and treasurer shall be elected by themselves and from their own number, from time to time, as occasion may require.
    “ Any member of this church or corporation who shall disclaim or refuse conformity to the said authority shall cease to be a member of this corporation, and shall not be elected, or vote in the election of the consistory, or exercise any office or function in, concerning or connected with the said church.
    “ It shall be the duty of the consistory to provide for the faithful enforcement of discipline, according to the constitution of the German Reformed Church, and to transact all other business of the congregation in the name of the congregation.

      Article B. “Every male member in good standing shall be entitled to vote.
    “An election for the elders and the deacons shall be held annually on Easter Monday, and- those thus chosen serve one year, or until successors are chosen.
    “ An election for pastor shall be held whenever his situation becomes vacant, according to the mode and regulations mutually -^adopted and prescribed.
    “ Every minister of the gospel who may become a candidate for the office of pastor must, before he can be chosen to, or at least before he can be inducted into, office, be in good standing in connection with the Synod of the German Reformed Church, &c.
    Article 5. “ The consistory may from time to time enact such by-laws for their government in the transaction of business as they may deem necessary; provided, however, that they do not conflict with this constitution, or the consistory of the German Reformed Church, &c.
    “Reference is made to the constitution of the German Reformed Church for full particulars. This congregation was organized only as a German Evangelical Reformed Congregation in Butler, Butler county, Pennsylvania, and that it be known' hereby that no alteration can be made in this congregation for another denomination.”
    •The 7th article of the constitution of the Classis is: “No call shall be valid unless the congregation or charge from which it proceeds has been constituted a pastoral station by the Classis, within whose bounds it is situated, and in every case it must appear that the people calling the minister really and truly intend to support and provide for him as their pastor.”
    E. Perrero, Esq., was appointed master. Amongst other facts he found, that the Butler congregation was united with a similar association at Brady’s Bend; the joint charge, called -the “ Butler Mission,” was under the charge of St. Paul’s Classis. Mr. Limberg was appointed pastor of the mission in 1865. Mutual dissatisfaction in the pastor and congregation soon appeared, and in 1868 Mri Limberg tendered his resignation to the Classis. The Classis hesitating about the matter, the congregation, December 26th 1868, requested that the resignation should be accepted. There was some correspondence between the congregation or members pf it and the Classis, and about March 1869 the name of a Mr. Vogeline was suggested as pastor. The Brady’s Bend consistory were “willing to give him a trial,” and Miller, one of the plaintiffs, took their, proceedings in the matter, to lay them before the Butler consistory when the church doors were locked against Mr. Limberg. In June 1869, Mr. Limberg’s resignation was accepted by the Classis, and on his own request he obtained permission to supply “Butler Mission,” till a pastor could be obtained. In accordance with this permission and an appointment announced to the Butler congregation from the pulpit two weeks previously, he went to the church and found it locked; he and his adherents were compelled to hold service in the Orphans’ Home. Sinee July 1869 the defendants had retained possession of the church property, excluded Mr. Limberg and the Classis, and “ appropriated it to uses not sanctioned by the constitution of the German Reformed Church.” On the 22d of November 1869, the other defendants, “ by an instrument in writing,” declared themselves independent of all synods, and absolved from the government of the “ German Reformed Church,” and made the defendant Schnorr pastor,; he not being connected with the German Reformed Church nor approved by St. Paul’s Classis. Since Mr. Limberg was excluded from the church, the plaintiffs had,attended on his ministry at the Orphans’ Home, and adhered to the doctrine and discipline of the German Reformed Church. On the 6th of January 1870, the Classis directed that proceedings at law should be commenced on behalf of the Butler congregation for possession of’the church. On Easter Monday 1870, at an election held at the Orphans’ Home, the plaintiffs, together with Henry Grupen, B. K. Fulcason and M. Fiehl, were chosen as consistory. The defendants, on the 13th of March 1870, rescinded their proceedings of November 1869, as set out in their answer.
    On the 20th of March, the defendants gave public notice and also personal notice, that there would be an election for a consistory at the church on Easter Monday.
    The master further reported:— * * *
    “ Although the attaching of this congregation to that of Brady’s Bend, was for financial considerations, yet the union failed to contribute sufficient for the pastor’s support, and it became necessary for the St. Paul’s Classis to make up the deficiency itself, by paying yearly $300. This fact then made the relation between the classis and the congregation, one not only of corporation, but of maintenance. Dependent therefore upon the classis for assistance of this nature, the congregations could not claim the attributes of a pastoral station,’ nor could they possess any other privileges than those of a ‘ missionary charge.’ It is true the proper ecclesiastical judicatory might, in its discretion, grant to a congregation advanced so far as this one, rights not common to a mission, in a more primitive stage. But until such concessions were made, or until a congregation attained the standard of a self-supporting charge, under article 7 of the constitution of the Classis, it could make no legitimate call.” * * *
    “ It is a well-established principle, that, against the will of a minority, a majority cannot alter the fundamental articles of a corporation unless there be express' or implied provisions in the articles themselves that they may do so. The rescinding therefore of the ordinance of secession of 22d November, was so far as it relates to the property but a recognition of this principle and that other principle, that * an unconstitutional law can give no authority.’ But the defendants go still further than this, they voluntarily concede that they desire to be in full fellowship and communion with the German Reformed Church and that they desire a pastor in connection with and under the St. Paul’s Classis. Had the defendants yielded so much two months sooner, it can hardly be doubted that they would have been regarded as members and that there would have been no occasion for filing the plaintiff’s bill. But omitting to abandon their irregularities until after the Classis had directed legal steps to be taken, and failing to accomplish the concession until after the bill was filed, the burthen of the consequences must be borne by them. The fact that the defendants had given notice a week, or even two weeks before, that a meeting would be held to rescind the ordinance of secession, does not relieve them from the responsibility. This meeting was called to deliberate simply, but the fact of returning was not accomplished until the 18th March, one day after this bill was filed.

      “ And now what is the status of the defendants ?

      “ In June 1869 we find them members in good standing and with the plaintiffs constituted a regularly organized congregation, in perfect accord with the letter and spirit of the constitution. Since then no judicatory, ecclesiastical or civil, has pronounced sentence of disqualification against them. Since then the congregation has been without any legitimate government, and disorder and confusion has prevailed. Two-thirds of the congregation, including one-half of its officers, have, in consequence of a supposed grievance, been supporting, since 22d November 1869, an unwarranted organization, and the rest refusing to support this organization, have failed to keep up any organization of their own. It is true, the plaintiffs have always given loyal adherence to the doctrines and principles of the church, have attended divine service from time to time at the residence of, and administered by, the Rev. Limberg; and on the last Easter Monday elected a consistory, notwithstanding the legitimate functions of the congregation were stopped; the election was not held until a month after the defendants had rescinded the objectionable resolutions, and given public and personal notice that the election would be held in the church on the same day. Suspended, then, in all its regular action, the congregation has, since June 1869, been in a condition of anarchy, and to restore it to an orderly government again, the period of confusion must be forgotten, and commencing at the time Mr. Limberg attempted to supply the vacant pulpits, recognise as members those who were then qualified voters, and who now declare themselves members of the congregation, and willing to submit to its congregation and denominational order.
    January 16th 1871,
    “ From a careful consideration of the evidence adduced, the master is satisfied that the facts stated in the plaintiff’s bill were true at the time of filing.”
    He then recommended a decree, declaring that the consistory elected on Easter Monday 187 0 by the plaintiffs was vacant; that the court appoint judges to hold an election for a consistory; that those who were qualified voters on the 16th of July 1869, be entitled to vote at that election; but that none of the persons of the party of the defendants who have acted as elders and deacons since November 22d-1869 be eligible to the consistory; that Schnorr be perpetually enjoined from preaching, &c., in the congregation unless under the authority of the Classis; and that the other defendants be enjoined from permitting him or any other pastor so to officiate unless under the authority of the Classis.”
    Both parties excepted to the decree.
    After argument the court decreed:—
    “We enjoin the said defendants from preventing, or in any manner interfering with the occupation of the church building, &c., and possession of the same, by the complainants and others, who are qualified members of said church, and in submission to the authority and government of the German’ Evangelical Reformed St. Paul’s Church of Butler, Pennsylvania, so that they may hold and have the same without let, &c., from the said defendants, &c.
    “ That the said F. H. Schnorr be restrained and perpetually enjoined from in’anywise officiating as minister in the church edifice of the German Evangelical Reformed St. Paul’s Church of Butler, Pennsylvania, and from intermeddling, &c., until he shall • belong and is in connection with the Synod of the German Reformed Church in the United States.
    “ That the defendants be restrained and enjoined from permitting the said F. H. Schnorr, or any other person not being a minister of the gospel in connection with the Synod of the Ger-. man Reformed Church in the United States to officiate as pastor, &c., in the said church edifice.”
    The defendants appealed to the Supreme Court, and assigned the decree for error.
    (7. McCandless (with whom was J. M. Thompson), for appellants,
    cited Suter v. Reformed Dutch Church, 6 Wright 503; Winebrenner v. Colder, 7 Id. 244.

      J. Bredin, for appellees,
    cited Den v. Bolton, 7 Halsted 214.
   The opinion of the court was delivered,

by Sharswood, J.

When property, real or.personal, is vested in a religious society, whether incorporated or not, as a church or congregation for the worship of Almighty God and the promotion of piety and godly living, it is a charitable use whether the donors be one or many. The corporation or society are trustees, and can no more divert the- property from the use to which it was (Originally dedicated, than any other trustees can. If they should [Undertake to divert the funds, equity will raise some other trustee ito administer them and apply them according to the intention of the original donors or subscribers. When the founders or donors have clearly expressed their intention that a particular set of doctrines shall be taught, or a particular form of worship, and government maintained, it is not in the power of individuals having the management -of the institution at any time to alter the purpose for which it was founded. When a church has been organized, and been endowed, whether by donation or subscription, as belonging to any particular sect or in subordination to any particular form of -church government it cannot break off from that connection and government; The Attorney-General v. Pearson, 3 Merival 352. When, however, it is not described in the original donation or terms of subscription as in connection with or under the ecclesiastical jurisdiction of any particular body of believers, it may change its relation, provided there be in such change no! radical departure from the original faith or doctrine: The Presbyterian Congregation v. Johnston, 1 W. & S. 9; Lutheran Congregation of Pine Hill v. St. Michael’s, &c., of Pine Hill, 12 Wright 20.

In church organizations thqse who adhere and submit to the regular order of the church, local and general, though a minority, are the true congregation and corporation, if incorporated: Winebrenner v. Colder, 7 Wright 244. The title to the church property of a divided congregation is in that part of it which is acting in harmony with its own law, and the ecclesiastical laws, usages, customs and principles which were' accepted among them before the dispute began, are the standards for determining which party is right: McGinnis v. Watson, 5 Wright 9. If the opinion of Chief Justice Lowrie in this last case may seem to controvert any of these positions, and to hold that a congregation may change a material part of its principles or practices without forfeiting its property on the ground that to deny this would be imposing a law- upon all churches that is contrary- to the very nature of all intellectual and spiritual life;” and because the guarantee of freedom to religion forbids us to understand the rule in this way, I ask leave most respectfully to enter against it my dissent and protest. I do so the more freely because it was entirely extrajudicial to any question in the case. Courts which have the supervision and control of all corporations and unincorporated societies or associations, must be guided by surer and clearer principles than those to be derived from the nature of intellectual and spiritual life. The guarantee of religious freedom has nothing to do with the property. It does not guarantee freedom to steal churches. It secures'to-individuals the right of withdrawing, forming a new society, with such creed and government as they please,, raising from their own means another fund and btdlding another house of worship; but it does not confer upon them the right of taking the property consecrated to other uses by those who may now-be sleeping in their graves.' The law of intellectual and spiritual life is not the higher law, but must yield to the law of the land.

The application of the principles settled in the adjudications cited, to which many others might be added, to the case brought before us on this appeal is very easy. The German Evangelical Reformed St. Paul’s Church of Butler, Pennsylvania, was inoorporated by the Court of Common Pleas of Butler county. The charter recites that the subscribers with others had associated for the purpose of worshipping Almighty God according to the faith and discipline of the German Evangelical Reformed Church in the United States of America,” and in the third section of the/ first article it is expressly provided that “ it shall be subject to the control of the Synod of the German Reformed Church of United States, and shall, in all respects, be governed by its rules and regulations;” and the fourth section of the third article declares that every minister of the gospel who may become a candidate for the office of pastor, must, before he can be chosen to, or at least before he can be inducted into office, be in good standing in connection with the Synod of the German Reformed Church.” As though to obviate all possible doubt or question upon the subject, the last paragraph of the charter expressly declares: This congregation was organized only as a German Evangelical Reformed Church in Butler county, Pennsylvania, and that it .be known hereby, that no alteration can be made in this congregation for another denomination.” Under a charter thus carefully guarded, the building, which is the bone of con-V tention here, was erected with funds raised by voluntary contribution from the subscribers upon a lot given for the purpose. It is unnecessary'to refer to the''troubles in the church, or to pass any judgment upon the acts of either party. The defendants, on the 22d of November 1869, by an instrument of writing declared themselves independent o.f all synods, and absolved from the government of the German Reformed Church, and elected a clergyman as pastor not connected with the German Reformed Church. They took and held possession of the building. Those who were dissatisfied with these proceedings withdrew, and on Easter Monday 1870, the day fixed in the charter, held an election at'the Orphans’ Home, at which the plaintiffs were chosen members of the consistory, and they now file this bill to obtain possession of the building. The defendants also held a meeting at the church on the same day, and elected a consistory. There can be no question that the plaintiffs and those whom they represent were on Easter Monday 1870, the true church adhering to the ecclesi/astical oxder and denomination under which the organization originally took place^and'tEearticles of which organization impressed it expressly with a law, which forbade its ever becoming disconnected with that denomination. No provision in the charter required the election of the consistory to be at the church, and the wrongful act of the defendants in holding possession dispensed, so far as they were concerned, with the necessity of any notice in the church, of an election to be held elsewhere. It does not lie in the mouth of the defendants to object in any way in this proceeding to the regularity of the election of .the plaintiffs. The defendants are strangers. They made themselves so by their solemn act, throwing off their connection with the German Reformed Church. That they then seceded and withdrew from the church cannot be doubted. How, then, can their meeting after-wards and rescinding the resolution of secession restore them to membership, much less constitute them the true church, and authorize them to elect a consistory? The plaintiffs, and those whom they represent, were the true church ; with them 'the defendants ought to have reunited, if, as they contend, they had not lost their membership, and voted at their election. It is clear, then, that the plaintiffs had the legal right to the possession and control of the church property, and that the decree below was in all respects proper.

Decree affirmed and appeal dismissed at the cost of the appellants.

Williams, J.

I concur with my brethren in affirming the decree of the court below, and dismissing the appeal, on the ground that this case comes strictly within ’the ruling of the court in Sutter et al. v. Reformed Dutch Church, 6 Wright 508, that a majority of a chureh congregation may direct and control in church matters consistently with the particular and general laws of the organism or denomination to which it belongs, but not in violation of them, and that in church organizations those who adhere and submit to the regular order of the church, local and general, though a minority, are the true congregation and corporation, if incorporated: Winebrenner et al. v. Colder et al., 7 Wright 244.


author: by Thompson, C. J.

text:
    McGinnis versus Vernon.
    1. The judgment of a justice under the Act of December 1863 (Landlord and Tenant), rests on an inquest of facts to be found by him and set forth on his docket or by reference therein to the complaint, in order to sustain a judgment for the landlord.
    2. The demise, the term and'that it is ended, and notice of the landlord’s desire of repossession-must appear by the record.
    3. Although these may be found by reference to the complaint, it is better to set out the facts on the record.
    4. The summons should always contain a brief statement of the grounds of its issuance.
    5. Special jurisdictions must contain on their face everything necessary to show that they are not transcended-.
    6. Art. 5, § 8 of the Constitution does not require the judges of the Common Pleas to allow a certiorari to a justice.,
    7. The Act of April 26th 1855, dispensing with the allowance of a certiorari is constitutional.
    November 19th 1870.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 206 to October and November Term 1870.
    The proceedings in this case commenced before John Holmes, Esq., a justice of the peace, by Johnson McGinnis against Andrew J. Vernon. They were designed to be under the Landlord and Tenant Act of December 14th 1863, to recover possession of leased premises. The justice having given judgment for the plaintiff, the proceedings were removed by certiorari into the Court of Common Pleas, at the instance of the defendant. The writ of certiorari was issued April 16th 1870. The record as returned was as follows:—
    Summons: “ The Commonwealth of Pennsylvania to the constable of Brownsville township, greeting: We command you to summon Andrew J. Vernon to appear before John Holmes, Esq., one of the justices of the peace of said county, on the 12th day of April 1870, between the hours of 1 and 2 o’clock P. M.,'to answer Johnson McGinniss upon a claim for possession of a certain house which said Vernon occupies in Luzerne township, and have you then and there this precept.”
    Justice’s docket entries :-r-
    “ Johnson McGinniss ) versus >- Andrew J. Vernon. )
    Summons upon a claim for possession of a certain house which said Vernon occupies in Luzerne township. Issued April 5th 1870, to appear between 1 and 2 o’clock p. m., April 12th 1870. Summons returned, served the 5th day of April 1870, on oath. And now,, to wit, April 12th 1870, parties appear. The defendant appears by his counsel and objects to the justice trying the case, for the reason that the title to the land and tenement in question is disputed and will be involved in the trial of the case, on oath in due form of law; and he further saith that McGinniss was not quietly and peaceably possessed of said premises or any part thereof. Objection of defendant not sustained, and a hearing proceeded with. Held under consideration until. Saturday next. And now, to wit, April 16th 1870, the justice finds the above complaint in all respects just and true, and enters judgment against the defendant that he shall forthwith deliver up possession of the said .premises to the plaintiff. Same day, writ of possession issued ■ to Constable Lynch of Brownsville. Writ returned executed, possession given to plaintiff, and constable retains his costs and paid justice his costs.”..
    Writ of possession: “ The Commonwealth of Pennsylvania, to the constable of Brownsville borough township, greeting: Whereas, such proceedings were had before the undersigned,, a justice of the .peace in and for said county, that on the 16th day of April, A. D. 1870, it appeared to the said justice that Johnson McGinniss had'demised to á certain John D. Walters, from the'8th day of July 1869 until the 1st day of April 1870, a certain messuage and tract of land, situated, in Luzerne township, in said county, adjoining, &c., of which the said Johnson McGinniss was quietly and peaceably possessed, and that the said John I). Walters had entered into the possession thereof' by virtue of said demise, and that during the continuance of said lease, and by the permission of the said-John D. Walters, a certain A. J. Vernon entered into possession and became a tenant of the said demised premises. That the said term being ended, after demand by the said Johnson McGinniss to the said John D. Walters to remove from the said premises,, three months before the application in this behalf to the said justice, the said John D. Walters- had refused, and the said A. J. Vernon, the tenant holding under said Walters, still refuses to'comply with said request, and the said justice.did enter judgment against the said A. J. Vernon for the sum of . damages for the unjust detention of said premises, together with $4.40 costs, &c. * * * These are to command you forthwith do deliver possession to said Johnson McGinniss,” &c.
    The certiorari to the justice was not allowed by a judge of the Court of Common Pleas.
    In the Court of Common Pleas the defendant filed these exceptions:— '
    The proceedings are irregular and defective in being commenced by summons instead of information or complaint verified by oath or aflSrmation averring the following alleged facts:—
    1. That.the said McGinniss was “quietly and peaceably possessed of the premises in dispute.”
    2. That being thus possessed, he leased the said premises t.o the said Vernon for a fixed and definite term, and that said Vernon entered into possession as his tenant under said léase and held the same during said term, and the period for which the premises had been leased has fully ended, and the lessee refuses to surrender the demised premises to the lessor.
    3. The property is not sufficiently described by the justice’s record.
    4. The justice of the peace had no jurisdiction of the case, as established by the evidence. '
    5. The justice erred in issuing a writ of possession to McGinness after the writ of certiorari had been issued and served upon him. Which -said writ of certiorari, was a supersedeas of all further proceedings by the said justice.
    The court (Gilmore, P. J.) delivered the following opinion
    “ The 1st exception is not sustained. The proceedings were properly commenced by summons as authorized by the act; no oath or affidavit was required as a foundation for the summons. It is true, the summons is defective in not setting forth the subject of the complaint. It is more in th'e nature of a súmmoiis or writ in ejectment than a complaint to obtain possession by a landlord against a'tenant upon an expired lease.
    “ We fully sustain the 2d exception, and this we do without exacting ‘unattainable precision from the magistrate.’ But we must have some substance, and upon this record there is neither form or substance. It is only by reference to other matters, and that subsequent to the making of the record, that we know it is a proceeding by- landlord against tenant under the Act of 14th December 1863. No lease'is stated, when it began or whether it ever ended-. It did not appear that three months’ notice of .intention was given by the landlord to the tenant, or whether any notice whatsoever had been given. The whole record is bare of all substance, so much so as to render it about a nullity.
    “ The 4th and 5th exceptions are not sustained.
    “And now, July 12th 1870, these proceedings are reversed and wholly set as’ide at the costs of the deféndant.”
    On the 27th of September 1870, the plaintiff moved to quash 'the certiorari, because it was not allowed by one of the judges óf the Court of Common Pleas.
    The motion was-overruled.
    The plaintiff removed the case to the Supreme Court, and there 'assigned for error — reversing the-justice’s proceedings, and refusing to quash the certiorari.'

      D. Kaine (with whom was W. H. Playford), for plaintiff in error.
    The Act of 1863, unlike the Act of 1772, does not require justices to make a record of their findings. Strict pre cisión is not required of justices of the peace: Snyder v. Carfrey, 4 P. F. Smith 93; Harris v. Levin, 1 Id. 412. A special allocatur is necessary to a certiorari to a iustice: Benner v. Ducoing, 1 P. A. Brown 217.
    January 3d 1871,

      E. Campbell (with whom were Roddy & Darly), for defendant in error.
    The justice must set out facts sufficient to show his jurisdiction: Rich v. Keyser, 4 P. F. Smith 87; Snyder v. Carfrey, Id. 93. Quashing the writ was in the discretion of the court below, and cannot be reviewed: Renninger v. Thompson, 6 S. & R. 1; Skidmore v. Bradford, 4 Barr 296. The Constitution, Art. 5, § 8, does not require the allowance of a judge to a certiorari. The Act of April 26th 1855 dispenses with it: Commonwealth v. Willow Grove Turnpike, 2 Binn. 263.
   The opinion of the court was delivered,

by Thompson, C. J.

The judgment of a justice of the peace or alderman in proceedings under the Landlord and Tenant Act of 1863 rests upon an inquest of facts to be found by him: Bedford v. Kelly, 11 P. F. Smith 491; and these must be set forth on his docket, or by a reference therein to the complaint, in order to sustain the judgment if given for the landlord. The demise, the term, that it is fully ended, and that the required notice of the landlord’s desire to have and repossess the demised premises, must appear by the record to be found by the magistrate: Givens v. Miller, 12 P. F. Smith 133. As already said, these may be.found by a reference by the magistrate to the complaint, if it be full enough. It would, however, be better to set out all these facts on the record. Here they do not appear as found anywhere, either by the record of the judgment, or by reference to the complaint preceding the summons; indeed, no complaint in writing appears to have been filed as the ground for the summons; and for this reason, or some other, the summons issued was almost in the common form of justice’s process, This was wrong also. The summons should always contain a brief statement of the grounds of its issuance. We might not be disposed to reverse for the defective summons in this' case, as there was. an appearance ; but the record of the justice was entirely defective in not setting out the inquest of facts already noticed as required by the Act of Assembly. Special jurisdictions must contain on their face everything necessary to. show that they are' not transcended. For these reasons, the judgment of the court below which reversed the proceedings before the justice must be affirmed.

There is no constitutional requirement that the judges of the Courts of Common Pleas must allow writs of certiorari to justices of the peace. Sect. 8 of Art. V. of the Constitution gives them the power to do so, but the Act of 26th April 1855 dispenses with the necessity for. doing it, and this act operating as a remedy merely, is beyond doubt constitutional.

Judgment affirmed.