author: Mr. Justice Gordon

text:
    Kerr’s Appeal.
    1. In the Reformed Presbyterian Church, the powers of the General Synod are derived from and contained in the church standards, and the exercise by it of an authority opposed to or subversive of such standard is ultra vires and cannot of right demand the respect and obedience of its subordinates.
    2. A decree of said General Synod, after reciting that certain members of the Second Congregation of Philadelphia, whose names appeared in a paper presented to the Synod, had denied the authority and jurisdiction of the so-called Philadelphia' Presbytery, and desired to maintain relations with, and be in submission to the General Synod, and had asked the counsel and advice of that body, it was therefore resolved that the members of said Second Congregation, whose names appeared on said paper, together with others who might unite with them “ be and are hereby declared to be the Second Congregation of Philadelphia, and as such entitled to all the rights and immunities pertaining thereto.” The petition to the Synod was by a minority of the congregation. There had been no charge of offence or legal investigation and no notice was given to the congregation or trustees. Held, that the resolution of the Synod was ultra vires and ineffectual to dispose of the charter and property of the Second Congregation.
    3. The decree of a church j udicatory is binding only where it is affirmatively shown that it has acted within the scope of its authority, and has observed its own organic forms and rules.
    4. If the Presbytery of Philadelphia was disobedient or refractory the General Synod could have dissolved it, and attached its churches to some other Presbytery; or if any of its members were contumacious it could have tried them in regular form and expelled them; but where there was nothing in the conduct of the Presbytery dr its members, previously to the exscinding resolution of the Synod which put the Second Church beyond the legislation or disciplinary power of that judicatory, it had no authority without notice or trial to forfeit its corporate franchises and the Synodical decree was of no effect.
    February 10th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trúnkey and Sterrett, JJ.
    Appeal of Alexander Kerr and others from the decree of the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 131. In equity.
    This was a bill in equity filed by John Neely, Joseph McKendrick and Alexander Kerr, elders, and James A. McLaughlin, Alexander Colville, James Colville, Alex. McGarry, Henry McNeill, Alexander Kerr and Robert J. Neely, trustees of “ The Second Reformed Presbytei’ian Congregation,” in the county of Philadelphia, district of Spring Garden, plaintiffs, against William Sterrett, John Kemps, Thomas Carrick, Edward Y. Reid, Samuel D. Jordan, William J. McBride, Andrew Fleming, James Caldwell and William Caldwell, defendants.
    The following is an abstract of the proceedings:
    The bill alleges that the plaintiffs sue in their own behalf, as well as in behalf of The Second Reformed Presbyterian Congregation, in the county of Philadelphia, district of Spring Garden, and those members of the congregation who with plaintiffs “ adhere to the charter of said corporation, and who maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America,” and are in subordination to the authority and acknowledge the jurisdiction of the General Synod of said church.
    That said Second Reformed Presbyterian Congregation is a corporation duly organized under the Act of Assembly of Pennsylvania, approved April 6th 1791. A copy of the charter is annexed to the bill, and certain provisions thereof are set forth in the body of the bill, inter alia:
    2. “ That the subscribers and such others being citizens of this Commonwealth as shall hereafter become members of the said congregation, and who adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America shall be a corporation,” &c.
    4. That the “Board of Trustees shall consist of seven members, who shall be recognised by the Session of this congregation as being in full communion with the church.”
    5. That the annual election for trustees shall be “ on the first Monday of every year, of which notice shall be given two weeks previous from the pulpit. The election shall be by ballot, in the church.”
    That said corporation is the owner of valuable property, including a lot of ground with the church building thereon erected, on the west side of Twenty-second street, in the late district of Spring Garden, now Fifteenth Ward in the city of Philadelphia.
    That said Second Reformed Presbyterian Congregation is “ a constituent part of the religious association known as 1 The Reformed Presbyterian Church in North America,’ and that' said association is governed by the body known as ‘ The General Synod of the Reformed Presbyterian Church in North America,’ and by Presbyteries constituted by said Synod, and subordinate thereto, and that said Synod (which is the body mentioned in article 2 of the charter) is the highest authority, and also the supreme judicatory of said association, having appellate jurisdiction in all cases, and original jurisdiction in such cases as it sees fit to assume over the members of said association, and to the authority of which Synod, every person, as a condition of becoming a member of said association, vows subordination.”
    That said Second Reformed Presbyterian Congregation was attached to and formed part of the Reformed Presbytery of Philadelphia, by some called the First Reformed Presbytery of Philadelphia.
    That June 12th 1868, said Presbytery, consisting of sundry ministers and ruling elders named, including Rev. Dr. William Sterrett, one of the defendants, and Ruling Elder Alexander Kerr, one of the plaintiffs, met at the First Reformed Presbyterian Church, Philadelphia, and passed a series of resolutions (Alexander Kerr alone dissenting and objecting thereto), “in violation of all order and discipline of the church, and in violation of the vows taken by the ministers and elders of said Presbytery, ‘which required that they should submit to the authority of the Synod of the Reformed Presbyterian Church in North America, and promise subjection to the superior judicatories of this church,’ ” and “then suspended their relations and seceded from the control of the said Synod of the Reformed Presbyterian Church in North America, to which they were bound to be in subordination, and to which they owed obedience and allegiance as aforesaid.”
    That at said meeting of Presbytery, the Second Reformed Presbyterian Church wras represented by said Rev. Dr. Sterrett, “ as ministerial member,” and by said Alexander Kerr, “as ruling elder;” that said Rev. Dr. Sterrett approved of said resolutions, but Mr. Kerr voted against them, his dissent being entered at his request on the records of Presbytery; that the action of Dr. Sterrett and the resolutions of Presbytery were affirmed and ratified by the defendants and by the congregation of the Second Reformed Presbyterian Church, worshipping in the church building on Twenty-second street, but were disapproved of by the majority of Session (of plaintiffs herein), who sustained Mr. Kerr and approved of his action at Presbytery.
    That since June 12th 1868, said Presbytery has sent no delegate to the General Synod of said Reformed Presbyterian Church in North America, “ has taken no steps towards resuming its connection therewith, nor in any way acknowledged its ‘ subordination’ thereto, but on the contrary, has denied its authority, and acted in every way independently of it.”
    That the annual meeting of said General Synod was held at Cedarville, Ohio, in May 1869, at which meeting a petition (set out verbatim in the bill), and purporting to be from “ members of the Second Reformed Congregation of Philadelphia,” was presented and referred to a special committee; the petitioners representing that they had'“ declined to recognise the authority and jurisdiction of the Reformed Presbytery of Philadelphia, by reason of their action,” at the meeting of June 12th 1868, “in suspending relations to General Synod;” that they desired to maintain their “relations and be in subordination to the Supreme Judicatory in the Lord,” and asking the “counsel and advice” of Synod, and appointing Alexander Colville (one of the plaintiffs), as their commissioner to present the petition to Synod; the petition purports to be signed by all the plaintiffs (except Alexander and James Col-ville) and by fifty-one others; that the special committee presented a report embodying a preamble- and resolutions (set forth in extenso in the bill), which was adopted; the substance of the resolutions being that petitioners with others — officers and members of the congregation — who might unite with them, were declared to be “ The Second Reformed Presbyterian Congregation of Philadelphia,” and directed to place themselves under the care of the Presbytery then represented in Synod by Rev. Drs. Crawford, Steele and others; and that said Presbytery, known as the Second Reformed Presbytery, be thenceforward designated as the Reformed Presbytery of Philadelphia.
    That plaintiffs and the other signers of said petition, with other officers and members of said congregation, December 7th 1869, presented a petition (set forth verbatim-in the bill) to the said Reformed Presbytery of Philadelphia, for admission under their care, as directed by General Synod. This petition purports to be signed by all the plaintiffs and fifty-five others; that Presbytery granted the petition, appointed Dr. Crawford to moderate in the Session, and invited Mr. Kerr to a seat in Presbytery.
    That plaintiffs have since maintained their organization and connection with said Presbytery and General Synod, and are recognised by said Presbytery and Synod as “The Second Reformed Presbyterian Congregation in due subordination to the Synod of the Reformed Presbyterian Church in North America, and as adhering to and maintaining the religious principles declared and exhibited by said Synod.”
    That in accordance with the charter due notice of the annual elections for a board of trustees for said congregation to serve for the years 1870, 1871 and 1872 “ were given from the pulpit of the church in which said congregation worshipped, and the annual elections regularly and legally held” on the first Mondays of 1870, 1871 and 1872; that in consequence of defendants holding posses-ion of the church building on Twenty-second street, and refusing to give plaintiffs possession of the same, said annual elections for trustees were held in Milton Hall, Coates street,, where the congregation has been worshipping; and that at the election on first Monday of 1872 the plaintiffs named as trustees were duly elected trustees of said congregation for 1872, and have been duly recognised by the Session in accordance with the charter, as “being in full communion with the church.”
    That defendants have voluntarily withdrawn from the Reformed Presbyterian Church in North America, and the jurisdiction of its Synod, and do not “adhere to or maintain the religious principles declared and exhibited” by said Synod; as evidence of which the bill alleges that the defendants have broken a fundamental law of the church, “in this that said Synod did, June'5th 1843, declare and exhibit as a part of its religious principles to which every member of the church and of the Board of Trustees must subscribe, certain terms of Ecclesiastical Communion, Article YI. of which terms (Book of Discipline, p. 32), is in the following words: ‘ A practical adorning of the doctrine of God our Saviour by a life and conversation becoming the Gospel, together with due subordination in the Lord to the authority of the Synod of the Reformed Presbyterian Church in North America:’ ” and the defendants “refuse all subordination to said Synod,” and openly declare'their independence of it, and by resolution of their Presbytery of June 12th 1868, ratified and approved by them, “decline to recognise or submit to its action.”
    That by reason of the premises, defendants and those associated with them have ceased to be members of said Second Reformed Presbyterian Congregation.
    That defendants have obtained and hold possession of the church building on Twenty-second street, with the furniture and other property of said Second Reformed Congregation, and refuse to deliver the same “ to the duly elected trustees of said congregation.”
    That defendant Sterrett unlawfully exercises the functions of minister in said church building, and defendants Kemps and.Car-rick unlawfully exercise the functions of elders therein, whereby plaintiffs are prevented from worshipping therein, “ and the said buildings are diverted from their proper uses.”
    That defendants will, unless restrained by the court, appropriate the property of said Second Reformed Presbyterian Congregation in their possession to the use of a religious body which does not “ adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America,” referring for evidence thereoPto the facts set forth in the bill.
    Prayers of the bill. That defendants may answer: That plaintiffs, with the congregation worshipping with them, be declared to be the Second Reformed Presbyterian Congregation in the county of Philadelphia, district of Spring Garden.
    That defendant Sterrett be enjoined from exercising the functions of minister in said church building.
    And defendants Kemps and Carrick from exercising the functions of elders therein.
    And the other defendants (and including also Carrick), be restrained from exercising the functions of trustees of said congregation, and from using the alleged seal of the corporation, or issuing any promissory notes or certificates of indebtedness thereof, or creating any lien, mortgage or encumbrance upon the real estate, or in any wise dealing or interfering with the property of the corporation.
    That defendants deliver the property of said congregation in their possession to the plaintiffs named as trustees, or their successors.
    General relief.
    The answer admits the incorporation alleged in the bill, and that the charter is correctly set forth in the copy annexed thereto ; that the corporation is owner of valuable property, including the real estate described in the bill; that the Second Reformed Congregation always has been and still is a constituent part of the Reformed Presbyterian Church in North America, and was attached to and was part of the Reformed Presbytery of Philadelphia, by some called the First Reformed Presbytery of Philadelphia; that the Reformed Presbytery of Philadelphia met June 12th 1868, as alleged; that Dr. Sterrett approved of the resolutions then adopted, and that Mr. Kerr represented the congregation therein and voted against the resolution, and his dissent was entered on the records of Presbytery; that since June 12th 1868, said Presbytery has sent no delegate to General Synod; that said General Synod met at Oedarville, Ohio, in May 1869, and that the petition was presented and action had thereon as alleged; that the plaintiffs named as trustees were elected by plaintiffs and their adherents, at Milton Hall; that Synod did declare and exhibit as a part of its religious principles, the terms of Ecclesiastical Communion, the 6th article of which is set forth in the bill.
    The answer further admits qualifiedly as follows:—
    That the Reformed Presbyterian Church in North America is' “ under the laws and constitutions set forth in the books and documents referred to in the first paragraph of the answer, governed by the General Synod of said church, by Presbyteries ‘ duly ’ subordinate thereto, and by Sessions of congregations.” That said Synod is the “chief legislative” authority, and also the supreme judicature of the denomination. That persons as a condition of becoming members of said denomination, owe “due subordination in the Lord to the authority of said Synod.” That defendants (except Dr. Sterrett and Kemps) have “as the lawfully elected trustees of the said corporation,” possession of the church building and other corporate property, and that they refuse to deliver the same to such of the plaintiffs “ as wrongfully claim to be trustees ” thereof.
    The answer denies:
    That the General Synod has appellate jurisdiction in all cases, or that it has original jurisdiction in such cases as it sees fit to assume in it over members of said denomination, or that it has any power or jurisdiction other than is expressly conferred upon it by the laws and constitutions above referred to.
    That the Reformed Presbytery of Philadelphia did at the meeting convened June 12th 1868, or at any other time, pass any resolution or resolutions in violation of the order and discipline of the church, or of the vows taken by the ministers and elders of said Presbytery, or which were of the tenor and effect stated in the bill; and that the ministers and elders of said Presbytery have ever taken vows which required that they should submit to the authority of the Synod of the Reformed Presbyterian Church in North America, or have ever promised, or agreed to promise “ subjection to the superior judicatories of this church,” or were ever bound to be in subordination, or owed obedience and allegiance to the Synod in the manner and to the extent alleged in the bill. That' the Session has ever expressed its approval or disapproval of the resolutions adopted by Presbytery, June 12th 1868.
    That defendants have any knowledge of the facts alleged as to the petition by plaintiffs and others to Presbytery, December 9th 1869.
    . That plaintiffs have under the direction of the General Synod been duly received under the care of the Reformed Presbytery of Philadelphia, have thence hitherto maintained their organization and their connection with said Presbytery and General Synod, and are recognised by said Presbytery and Synod as the Second Reformed Presbyterian Congregation, in due subordination to the Synod of the Reformed Presbyterian Church in North America, and as adhering to and maintaining the religious principles declared and exhibited by said Synod.
    That the persons named in the bill are trustees of said congregation, duly elected on the first Monday of 1872, and that plaintiffs and their adherents constitute “ The Second Reformed Presbyterian Congregation in the county of Philadelphia, district of Spring Garden.”
    That the “so-called election,” held at Milton Hall, confers on the'persons thereby chosen, any title to the office of trustees of said corporation, because:
    Notice was not given from the pulpit of the church in Twenty-second street.
    Said alleged election was not held in said church.
    The electors were not then members of the corporation.
    The persons alleged to have been elected thereat, have not been, and are not recognised by the Session as being in full communion with the church; and were not then, and are not members of the corporation.
    That plaintiffs, or their adherents, or any one for them, ever demanded possession of said church building for the purpose of holding an election therein. " ■
    That defendants have withdrawn from the Reformed Presbyterian Church in North America, and from the jurisdiction of said Synod.
    That defendants and those associated with them, have ceased to be members of “ The Second Reformed Presbyterian Congregation.”
    That defendant, Dr. Sterrett, unlawfully exercises the functions of pastor of said congregation; and that defendants, Kemps and Carrick, unlawfully exercise the functions of elders within said church building.
    That plaintiffs, or any of them, save by their own voluntary secession, have ever been prevented from worshipping or attending corporate meetings in said church buildings; or that said buildings are, or have ever been diverted from their proper uses.

      That plaintiffs are officers or members of said corporation, or have any right of property.in said church buildings.
    That defendants intend to, or will appropriate the property of said congregation to the use of a religious body which does not adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod in North America.
    The answer distinctly avers :
    That “ The Second Reformed Presbyterian Congregation in the county of Philadelphia, district of Spring Garden,” was organized about 1836 as a constituent part of the Reformed Presbyterian Church in North America, whose system of religious principles and the respective powers and jurisdiction of whose several judicatories are set forth in sundry books named, and which are referred to and made part of the answer.
    That the only vows or promises taken or made by the ministers or elders of the Reformed Presbytery of Philadelphia were in their subscription to the “ Terms of Communion” adopted in 1807 by the Reformed Presbytery of North America (then the supreme judicatory of the denomination), and in their ordination vows (prescribed at the same time); by the former they bound themselves to u due subordination in the Lord to the authority of the Synod,” and by the latter they promised “subjection * * * to the superior judicatories of this church in the Lord.”
    That the General Synod at Pittsburgh, in May 1868, took certain action, particularly set forth in exhibit A of the answer, in view of which “ the Reformed Presbytery of Philadelphia,” with which the Second Reformed Presbyterian Congregation has from its organization been, and still is connected, on June 12th 1868, adopted the preambles and resolutions, a copy of which is annexed to the answer.
    That May 17th 1869, said Presbytery adopted a memorial and resolutions, a copy of which is also annexed to the answer, and which with accompanying papers, a commissioner appointed by Presbytery, delivered to the General Synod, then in session at Cedarville, Ohio, May 20th 1869, and Synod after the reception of the memorial, &c., made the enactment set forth in the bill.
    That Rev. Dr. Sterrett’s right to membership in Presbytery was dependent solely upon his status as a minister, and that the congregation was “represented” in Presbytery, as are all congregations in the Reformed Presbyterian Church, only by its delegate from its ruling elders.
    That the congregational approval of the resolutions of Presbytery of June 12th 1868, was expressed by the adoption at a special meeting, held April 22d 1869, after due notice of the preamble and resolution set forth verbatim in the bill; and that plaintiffs were present at that meeting, and no one of them voted against the preamble and resolution; and that until some time in October 1869, plaintiffs continued to attend the religious services of the congregation and participated in all its corporate acts.
    That General Synod at Cedarville, Ohio, May 20th 1869, wrongfully declared the officers and members of said Presbytery to be without the jurisdiction of said Synod, and thereby prevented Presbytery from thereafter sending delegates to Synod.
    That said Presbytery has always acknowledged its due subordination to Synod, never denied the rightful authority thereof, and never acted independently thereof, except in so far as the law of the church required it so to act.
    That no one of defendants tvas served with any process requiring him or them to appear before said Synod, or was otherwise notified that Synod would hear or determine any case, suit, appeal or complaint concerning said congregation, or its corporate property, or the rights and interests of defendants as members of said corporation.
    That on or about November 1st 1869, plaintiffs and their adherents voluntarily and causelessly seceded from said corporation, leaving defendants and their adherents in possession of the church building and property; and that from said date plaintiffs and their adherents have maintained an independent congregational organization.
    That General Synod has sought wrongfully to thrust the defendants out from the Reformed Presbyterian Church in North America, and from the jurisdiction of said Synod; and that defendants do adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America.
    That defendants have never refused, and do not refuse “ due subordination in the Lord” to the authority of said Synod, and that they do comply, and always have complied with all the terms of ecclesiastical communion, the sixth article of which is set forth in the bill. »
    That defendants (except Rev. Dr. Sterrett and Kemps) -were at a meeting convened after due notice in the church building, on first Monday of 1872, by the ballots of the members of said corporation, in due form of law elected trustees thereof, and that they have been and are recognised by the Session of said congregation as being in full communion with the church.
    That Dr. Sterrett was ordained and installed pastor of said congregation April 7th 1848, and that since then he has been sole pastor thereof; that his pastoral relation has never been dissolved; that he has never been suspended or deposed from the ministry of the Reformed Presbyterian Church, and that no ecclesiastical judicatory has ever severed the connection existing between him and said congregation.
    That defendants Kemps and Carrick having been duly ordained as ruling elders of the Reformed Presbyterian Church, were duly installed as ruling elders of said congregation, and have never resigned or been deposed from their offices.
    The- answer submits and charges :
    That the promises and vows taken or made by the ministers or elders of said Presbytery bind to subordination and subjection, only to such acts and decrees of the ecclesiastical judicatories of the denomination as may be lawfully enacted by those judicatories, under the powers granted to them by the “ system of religious principles,” as set forth in the books and documents referred to in the answer.
    That the action of General Synod in May 1868, was ultra vires, and illegal.
    That the action of Presbytery as set forth in the preambles, resolutions, memorials, &c., of June 12th 1868 and May 17th 1869, was not a secession of said Presbytery from the Reformed Presbyterian Church in North America, and was not intended and did not Operate to place Presbytery or any of its members, or any congregation under its care, out of the pale of said denomination ; that their action was not contrary to the laws of the denomination, or in violation of the vows taken by the members of said Presbytery.
    That the Synodical decree of May 1869, is void for want of jurisdiction, and for want of notice to the parties sought to be affected thereby.
    That the separate congregational action of plaintiffs and their adherents, has the effect of estopping plaintiffs from asserting any right or interest in, or title to, the property of said congregation.
    That under the law of the denomination, the pastoral relation cannot be dissolved, without the consent of both pastor and congregation, except by the death of the pastor, or his suspension or deposition from the ministry.
    ' The case was referred to an examiner to take testimony, and upon the coming in of his report the case was referred to Samuel C. Perkins, Esq., as master, who, after an able and exhaustive review of the history of the controversy, and the questions of law involved in the same, came to the following conclusions :
    That the government of the Reformed Presbyterian Church is not as alleged in the plaintiffs’ bill; but is, as stated in the answer, composed “under the laws and constitutions set forth in the books and documents referred to in the first paragraph of the answer— of the General Synod — Presbyteries duly subordinate thereto — and •of sessions of congregations :
    That Synod is the chief legislative authority, and the supreme, that is, the highest judicatory of the church; but that it has not original jurisdiction in such cases as it sees fit to assume over members of the denomination; as such jurisdiction is not conferred upon it by the constitution, rules'and regulations of the church :
    That the resolutions of the [First] Reformed Presbytery of Philadelphia, passed at its meeting, June 12th 1868, while perhaps not wholly unexceptionable in language and terms, yet were not in violation of all order and discipline of the church, nor were they in violation of the- vows taken by the ministers and elders who voted for the same:
    That had such action been as alleged in plaintiffs’ bill, Synod did not proceed in respect thereto in accordance with the forms, as prescribed by the standards, nor in a manner consonant with justice and right:
    That the action of Synod, in respect to the Second Reformed Presbyterian Congregation, through the Synodical Commission, was ultra vires and void as without jurisdiction :
    That the trust, or confidence, or purpose, for or upon which the corporate property and franchises of the Second Reformed Presbyterian Congregation are held, do not imply as a condition absolute obedience, subordination and subjection to the Reformed Presbyr terian Synod of North America:
    That the defendants and the majority of the Second Reformed Presbyterian Congregation, in their action in the premises, have exercised a right expressly reserved to them under the constitution of the church; and that they do “adhere to and maintain the system of religious principles declared and exhibited by the Reformed Presbyterian Synod of North America
    That the defendants and a majority of the Second Reformed Presbyterian Congregation have not seceded from the Reformed Presbyterian Church, nor declared themselves independent, nor united with any other sect or denomination:
    That the action of the congregational meeting of April 22d 1869, was in accordance with the rights and privileges conferred by the charter, and that the plaintiffs, and those who united with them, not being satisfied with such action, and having withdrawn from the association on that account, are not entitled to claim the corporate franchises and property, or any part or share therein:
    That the defendant Sterrett has never been suspended or deposed from the ministry of the Reformed Presbyterian Church, nor dismissed from the pastorate of the Second Reformed Presbyterian Congregation; and that defendants Carrick and Kemps have not been suspended or deposed from the office of the eldership, nor ceased to be elders of said congregation:
    That the defendants Carrick, Reid, Jordan, McBride, Flemming and William and James Caldwell, were the lawfully elected trustees of said Second Reformed Presbyterian Congregation :
    That the allegations of the plaintiffs’ bill, on which they ground their application for relief, are not sustained:

      And that the plaintiffs’ bill should be dismissed with costs.
    Exceptions were filed to this report by appellants, which the court below dismissed and confirmed the report, and hence this appeal.

      J. Sergeant Price, and F. Qarrott Brewster, for appellants.—
    Whenever a church or religious society has been originally endowed in connection with or in subordination to, some ecclesiastical organization or form of church government, it can no more become independent than it can renounce its faith or doctrine and adopt others: Roshi’s Appeal, 19 P. F. Smith 462; Schnoor’s Appeal, 17 Id. 138.
    Form of church government, order and discipline, are a part of the religious principles of the Reformed Presbyterian Church of North America. Its Synod has “declared and exhibited” them as applicable to this particular case. The defendants refuse to “adhere to and maintain” them as so declared, and are consequently incapacitated for membership in the corporation by the terms of the charter. Charters are only intended to create legal persons, and to define their powers and duties; the trusts for which such persons hold property donated to them are ascertained and enforced exactly as in the case of natural persons: App v. Lutheran Congregation, 6 Barr 201; Sutter v. Trustees, 6 Wright 503; Winebrenner v. Colder, 7 Id. 244; Shilton v. Webster, Bright. Rep. 239; Den v. Bolton, 7 Halstead (N. J.) 206.
    The title of 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. Roshi’s Appeal and other cases cited above.
    The plaintiffs are, and the defendants were not acting in harmony with the laws, usages and principles which were accepted by the congregation before the dispute began. The title to the church property is therefore in the plaintiffs.
    Where a religious organization is governed by a body which is its chief legislative and supreme judicial authority, the act of that body as to the ecclesiastical status of a subordinate body in the organization is final, and will not be inquired into by civil courts: Commonwealth v. Green, 4 Whart. 531, 603; Henderson v. Hunter, 9 P. F. Smith 335; Watson v. Jones, 13 Wallace 679; Harrison et al. v. Hoyle et ah, Leg. Gaz., Dec. 18th 1874.
    The Synod is the supreme tribunal of the ecclesiastical organization in connection with, and subordination to which, this congregation was originally endowed. It has decided that the body to which the defendants have attached themselves do not, and the body to which the plaintiffs belong do, adhere to and maintain the system of religious principles of that organization. The civil tribunals will accept that decision of the ecclesiastical'status of the parties as conclusive, and will decree their civil-rights accordingly.
    Where adherence to a system of principles' declared and exhibited by a certain body is made by the charter the test of membership in a corporation, and that body has declared and exhibited what principles are applicable in the particular case or a similar one, such declaration' becomes the law of the case.
    The course of practice for over half a century, agreeing with and interpreting the standards, proves most conclusively that the Synod is self-existing; that Presbyteries are created, changed and abolished by it at its pleasure; that it deals directly and of its own motion, and as it sees fit with presbyteries, congregations, individuals and classes of men, and is the sole judge of ecclesiastical status of all inferior bodies or “judicatories” of the church.
    Here, the proof is clear and strong that the defendants, by their congregational acts have ratified and supported the rebellion of the Presbytery, in denial of the authority of the Synod, against the law and order of the church, and contrary to the system of religious principles declared and exhibited by the Synod of the Reformed Presbyterian Church in the Book of Discipline.
    Having thus refused to adhere to and maintain the system of religious principles enjoined upon them as members, by the charter of incorporation, they have no right to carry the church property with them, a property dedicated by the charter to the maintenance of Reformed Presbyterian religious principles as declared and exhibited by the Synod.

      O. Stuart Patterson and William A. Porter, for appellees.—
    The appellants must show that the property in question is held by the appellees upon a trust, whose terms the appellees have violated: Craigdallie v. Aikman, 1 Dow. P. C. 1; Same v. Aikman, 2 Blight 529; Same v. Aikman, 6 Patton’s App. 526; Attorney-General v. Pearson, 3 Meriv. 353; Attorney-General ex. rel. Mander v. Pearson, 7 Sim. 290 ; Attorney-General v. Shore, 7 Id. 310; Shore v. Wilson, 9 01. & Fin. 355; Dill v. Watson, 2 Jones (Irish Ex.) 48; Craigie v. Marshall, 12 Dunlop 523, cited in Innes on Creeds 375; Presbyterian Congregation v. Johnston, 1 W. & S. 9; Means v. The Church, 3 Id. 303; App v. Lutheran Congregation, 6 Barr 201; Trustees v. Sturgeon, 9 Id. 321; McGinnis v, Watson, 5 Wright 9; Sutter v. The Trustees, 6 Id. 503; Winebrenner v. Colder, 7 Id. 244; Trustees v. Lutheran Church, 12 Id. 20; Schnorr’s Appeal, 17 P. F. Smith 138; Roshi’s Appeal, 19 Id. 462.
    The trust requires adherence to and maintenance of the doctrines of the Reformed Presbyterian Church, and forbids passive obedience to the Synod. Where the trust, as here, does not, in express terms, require connection with any judicatory, it is nota breach of trust for the congregation to sever its connection with the judicatory, with which it has been heretofore connected, “ provided there be in such change no radical departure from the original faith or doctrine:” Craigie v. Marshall, 12 Dunlop 523; Presbyterian Congregation v. Johnston, 1 W. & S. 9; Trustees v. Lutheran Church, 12 Wright 20; Schnorr’s Appeal, 17 P. E. Smith 138, 147; Farreira v. Vasconcellos, 27 111. 237.
    The action of Presbytery on 12th June 1868, and the congregational approval of it, expressed by the meeting of the 22d April 1869, do not constitute a breach of trust. If the action of Presbytery and the congregational approval thereof, were contempt for the “established order of the church,” or “an open act of insubordination,” or “a refusal to yield due subordination,” the members of the Presbytery and of the congregation, severally, rendered themselves liable to trial before and by the church tribunal having jurisdiction, and proceeding in the exercise of that jurisdiction according to the law of the church; but they did not render themselves liable to be turned out of the church without hearing or trial. The Presbyterial action must be construed by this court, and the Synodical construction if it is not binding on the court.
    The decree of a church judicatory is only binding upon civil courts when it has been affirmatively shown that the judicatory has “ acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and if not, has proceeded in a manner consonant with the principles of justice :” Doctor and Student, Add., cap. viii.; Reeves’s History (Dublin ed. 1787), vol. 1, p. ,63; vol. 2, pp. 78, 215, 379; vol. 3, p. 257; vol. 4, pp. 3, 45, 205, 398; 1 Bl. Com., Iritrod. 3; Introd. to Brod. & Frem. Eccl. Cas ; Stat. 24 Hen. VIII., c. 19; 25 Id., c. 19; Innes on Creeds 208, 209; 1 Hallam’s Const. Hist. 195; Gorham v. Exeter, 69 E. C. L. 66; Dunbar v. Skinner, 21 Jur. 322; McMillan v. Free Church, 23 Dunlop 1314 (cited in Innes on Creeds 256-7, 285, 287-8-9, 290-1-2); 2 Burn’s Eccl. Law, tit. Deprivation; Rex v. Gaskin, 8 Term 209; In re Bp. of Natal, 3 Moo. P. C. 115; Long v. Bp. of Capetown, 3 Moo. (N. S.) 44; s. c. Brod. & Frem. 293; Natal v. Gladstone, L. R. 3 Eq. 1 ; Murray v. Burgess, L. R. 1 P. C. 362; Forbes v. Eden, L. R. 1 Sc. &Div. 568 ; Murdock v. Phillips Acad., 7 Pick 303 ; Same v. Same, 12 Id. 244; Thompson v. The Society, 7 Id. 160; Farreira v. Vasconcellos, 27 111. 237; Den v. Bolton, 7 Halst. 206; Watson v. Avery, 2 Bush 332; Wilson v. The Ch., 2 Rich. Eq. 192; Hoffman’s Eccl. Law 276-7; Walker v. Wainwright, 16 Barb. (S. C.) 486; Judge Redfield’s note, 9 Am. L. Reg. 220; Id., 10 Id. 308; Mr. Fuller’s note, Id. 313; McMillan v. Birch, 1 Binn. 178; Green v. Society, 1 S. & R. 254; Riddle v. Stevens, 2 Id. 537; St. Mary’s Church case, 7 Id: 517, 562; Commonwealth v. Green, 4 Whart. 531, 601; Presbyterian Cong. v. Johnston, 1 W. & S. 9; Church v. Commonwealth, 3 Barr 282; Batterson v. Thompson, 8 Phila; 25L _ '
    _ The same rule is applied to non-religious voluntary societies: Commonwealth v. Philanthropic Society, 5 Binn. 486; Commonwealth v. Pike Society, 8 W. & S. 250; Society v. Vandyke, 2 Whart. 309; Franklin Association v. Commonwealth, 10 Barr 357 ; Binn’s case, 2 Binn. 441; Evans v. The Club, 14 Wright 107; Potter v. Search & Semple, 7 Phila. 443; Thomas v. Ellmaker, 1 Pars. 98; Leech v. Harris, 2 Brewst. 572; Lowry v. Stotzer, 3 ltd. 452.
    The action of the commission is void for want of jurisdiction, and for want of service of process on the appellees.
   Mr. Justice Gordon

delivered the opinion of the court, May 7th 1879.

Much of the discussion involved in this case was considered and disposed of' in the case of McAuly’s Appeal, 27 P. F. Smith 397, indeed the present controversy presents little or nothing that may not be found in that case, and we therefore refer to it as part of our opinion in order to avoid a tedious repetition of what is therein contained. We may say further, in limine, if we are to take as true the findings of the master, and we know no reason why we may not do so, the decree of the court below must be sustained on the ground that the action of the Synod in the premises was revolutionary, contrary to the fundamental laws of the church, and subversive of the principles upon which the corporate trust in controversy was founded. As we endeavored to show, in the case' above named, not only were the congregations and individuals composing them bound by the ancient rules, regulations and standards of the Reformed Presbyterian Church of North America, but the General Synod also. That its power was derived from and contained in the church standards, and that the exercise of an authority opposed to or subversive of such standards was ultra vires, and could not of right demand the respect or obedience of its subordinates.

We, however, pass this and confine ourselves to the single question of the regularity of the Synodical decree dissolving the Second Congregation and forfeiting the corporate franchises of the trustees and members thereof. That decree or resolution was promulgated by the General Synod on the 25th day of May 1869, and is as follows : After reciting that certain members of the Second Congregation, whose names appeared in a paper presented to the Synod, had declined the authority and jurisdiction of the so-called Philadelphia Presbytery, and desired to. maintain relations with and be in subordination to the General Synod, and had asked counsel and advice of that body in the premises; it was thereupon resolved, “ that the members of the Second Reformed Presbyterian Congregation of Philadelphia, whose names appear in their paper aforesaid, together with others, officers and members of said congregation, who may unite with them, be and are hereby declared to be the Second Reformed Presbyterian Congregation of Philadelphia, and as such entitled to all the rights and immunities pertaining thereto.”

Thus, upon the bare petition of a minority of this congregation, without a pretence of legal examination, without notice to the congregation or its trustees, and without so much as a charge of offence, the rights, franchises and property of the Second Church are transferred to McKendrick and his associates, the petitioners of the Synod. This has more the character of an imperial edict than of a decree of a judicial tribunal, and it cannot be supported by a Pennsylvania court. However absolute the power of the General Synod may be in matters pertaining to the mere ecclesiastical polity of the church, it has not the power thus to dispose of a Pennsylvania corporation or the rights of a Pennsylvania citizen. No longer ago than November last, in the case of Kopp et al. v. The Minister et al. of the St. Marks Evangelical Lutheran Church of Butler, we sustained the action of the court below in granting a mandamus to restore the plaintiffs to their corporate rights as members of that church. This was on the ground that the congregation had not adhered to its own organic laws in the trial and expulsion of these men. No doubt they were guilty of the offence charged; no doubt their conduct towards the church and its officers was disrespectful and contumacious; but no matter, they were not properly tried, and they must be restored, if but for the purpose of trial. This was, indeed, hut a reiteration of that principle, so well known to our jurisprudence, that' the decree of a church judicatory is binding only when it is affirmatively shown that it has acted within the scope of its authority and has observed its own organic forms and rules. But the decree under consideration is not only open to the objection that it is not in accord with the well-known law of the church, that no one shall be condemned without due process, but is also open to the charge that it is opposed to the cardinal principles of natural justice as being a judicial sentence without notice or hearing: Gibson, O. J., in Commonwealth v. Green, 4 Whart. 601.

As a judicial decree, therefore, the synodical resolution was ultra vires and ineffectual to dispose of the charter and property of the Second Reformed Congregation.

But, it is alleged, the defendants had, previously, through the action of the congregational meeting of April 22d 1869, withdrawn from the jurisdiction of the Synod, and had, in this manner, forfeited their rights as beneficiaries under the trust, and hence, the action of the Synod was of force as indicating the status of the parties with reference to the Reformed Church. If the fact be as stated, the conclusion is correct. If the defendants, by their own act, cut themselves off from the church, they cannot now he héard to complain of the ex parte proceedings of the Synod, for, in that case, it did but legislate for those who remained within its jurisdiction.

What, then, was the character of the congregational action of April 22d 1869 ? In the first place, that meeting refused the resolution introduced by Alexander Ken-, declining the authority and jurisdiction of the Reformed Presbytery of Philadelphia, with which the second church was connected; and, in the second place, it adopted the following preamble and resolution, to wit: “ Whereas, the Reformed Presbytery of Philadelphia has declared that it remains in the Reformed Presbyterian Church, maintaining her organization and endeavoring to develop and apply her principles in their proper application to the age and country in which we live: Therefore, Resolved, that, for the present, this congregation adheres to said Presbytery, and that we approve of our pastor’s course in voting against the suspension of George II. Stewart, at the last meeting of General Synod.” Now we confess our inability to see anything in these which indicates a secession from the Synod or church, but rather the contrary. It must be remembered, that this congregational deliverance preceded the session of the General Synod at Cedarville, hence, no action had, as yet, been taken by that body, upon the Presbyterial protest, neither could the congregation know what the action of the Synod would be, and it had no right to determine in advance, between its ecclesiastical superiors. It was, therefore, not only prudent, but strictly in accord with the standards of the church, for this congregation to adhere, “for the present,” to its immediate superior, for, by the law of the Synod itself, to the Presbytery it owed direct allegiance, and from that allegiance it could only be released by the act of the Synod. Not .only so, but the preamble gives as a reason for this adherence to the Presbytery, the declaration of the Presbytery, that it remained in the Reformed Presbyterian Church. It is thus clear, that there is nothing in the congregational proceedings, from which an intent to withdraw from the jurisdiction of the Synod can be inferred, neither do they indicate even a disrespectful disposition towards that body., There was, then, nothing, previously to the exscinding resolution of the Synod, which put the second church beyond the legislative or disciplinary power of that judicatory, and if the Presbytery of Philadelphia was disobedient or refractory, the General Synod could have dissolved it and attached its churches to some other Presbytery. So, if any of the members thereof were contumacious, it could have tried them in regular form, and have expelled them. Had either of these constitutional methods been pursued, the questions now involved in this, and other cases of the same kind, would have been settled before they reached the civil courts, and this wrangle about the church property would not have been heard of.

As matters now stand, it is vain to ui’ge upon us that these defendants did in fact intend to withdraw from the jurisdiction of the General Synod, and that their adherence to the organization of the Reformed Presbyterian Church was but a pretence; for, if even the probability of all this is admitted, there is no proof before us which resolves this probability into a certainty, and we cannot found our decrees upon mere probabilities. This question might have been resolved by the General Synod; it might have unmasked the pretence, if pretence'it was; but we must take the case as it stands upon the facts, and those facts are with the defendants. They are in the same position as were the plaintiffs in Kopp et al. v. The Church; they have been convicted without trial, but, unlike the plaintiffs in that case, they cannot, for the purpose of trial, be restored to their former status. The act of the Synod has excluded them for ever from its jurisdiction. We can only determine that that act shall strip them of no civil right, but we cannot restore the disrupted organization of the Reformed Presbyterian Church of North America. So far as the ecclesiastical polity of that church is concerned, the General Synod is supreme, and if it has refused to recognise or associate with the second or any other congregation, that is the end of the matter; we cannot revise its proceedings. All that we can say concerning the contest now before us, is that there has been nothing shown why the defendants should forfeit their corporate franchises; as to these, the decree of the General Synod is of no effect.

The decree of the court below is affirmed, and it is ordered that the appellants pay the costs.

Sharswood, C. J., and Trunkev, J., dissented.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Audenreid’s Appeal.
    A. was about seventy years old, infirm in health and a great part of the time confined to his house, but of sound mind and good judgment. F. was his physician and confidential friend. W. agreed in writing with A. to-secure for A. an interest in certain stock, which interest W. alleged he controlled, W. to receive a portion of the proceeds to result from the appreciation of the stock. The stock appreciated largely in value, and W. received a share of the proceeds, but the court below rescinded the contract and ordered him to return the share of the proceeds he had received, on the ground that his representations as to his control of the interest transferred to A. were false. The day after the execution of the contract between W. and A., the latter and F. executed a second contract, wherein A. covenanted to transfer to F. a certain share of his interest in said stock, the consideration recited therein being one dollar, and that F. had, through his negotiations with W., secured the interest which A. had obtained under his contract with W. The portion of the proceeds received by F. was about $50,000. After his decease the executors of A. filed a bill in equity, charging a conspiracy between W. and F. to defraud their testator, and praying that the deed between A. and F. be declared void, and that an account should be taken of the profits received by F., and the same returned to plaintiffs. Held (affirming the court below), that F. could show that the transfer of the stock to him was a gift, and not for the consideration recited in the contract, and that the allegations of fraud contained in the bill, having been specifically denied by the answer of defendant, the burden was on the plaintiffs to show that a gift was not intended by the testator.
    2. There is nothing in the confidential relation of a medical adviser to a patient that per se forbids the acceptance of a gift by him from his patient.
    February 11th 1879.
    Before Sharswood, C. J., Mercuk, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 224. In Equity.
    This was a bill in equity filed by William G. Audenreid, Richard R. Robb and Thomas T. Jaeger, executors of Louis Audenreid, deceased, against Jonas M. Walker and William S. Forbes, M. D., charging a conspiracy on the part of the defendants to defraud the plaintiffs’ testator, and praying that certain contracts entered into between Walker, Forbes and the deceased be declared void, that an account might be taken of all profits received by virtue of said contracts, and a transfer of all securities acquired thereunder be made to the plaintiffs, and that each defendant might be required to make good any default of the other in so accounting.
    The alleged facts upon which the relief prayed for was sought were, that the testator was at the time of the perpetration of the fraud an old man over seventy years of age, infirm, wealthy and given to speculation; that these facts were known to the defendants ; that in the autumn of 1872, Walker applied to the promoters of the Texas and Pacific Construction Company, a corporation with a proposed capital of $10,000,000, for permission to obtain a subscriber to $250,000 worth of the capital stock of said corporation ; that it was then ascertained by the said Walker that the testator would be accepted as a subscriber to that amount on the stipulated terms; that the defendants then combined to induce Audenreid to furnish the above capital, under false pretences; that Forbes introduced Walker to Audenreid, and that Walker induced him to believe that he, Walker, had the sole privilege of disposing of $250,000 worth of the capital stock of the said corporation; that Walker actually owned that amount, and that no other such amount could be then purchased on as favorable terms as those offered by Walker; that these representations were untrue, and were intended to and did induce Audenreid to subscribe for the said amount of stock, which was done by him in the joint names of himself and Walker, and in consequence of the foregoing representations Audenreid allowed Walker to own one-fifth of the said amount of stock, it being agreed that Walker should not pay his instalment until the last, while Forbes was paid for his price of the agency in introducing the matter to Audenreid, and enabling him to obtain the bargain on so favorable terms, by a conveyance of one-fifth of the said stock, with the accruing profits thereon, Audenreid paying for the same.
    As evidence of these 'matters, there were appended to the bill two agreements under seal, dated respectively the 25th and 26th October 1872, the first signed by Walker and witnessed by Forbes, and the second signed by Audenreid and Forbes, in the first of which the terms of the joint purchase between Walker and Audenreid were settled, the first deed purporting to convey on Walker’s part to Audenreid capital stock to the amount of $200,000, falsely alleged in the instrument to have been at that time secured by Walker for himself. The second deed conveyed to Forbes one-fourth of the $200,000 worth of capital stock conveyed to Audenreid in the preceding instrument, upon the false consideration, therein recited, that Forbes had secured to Audenreid the said $200,000 worth of capital stock by virtue of the foregoing contract between Audenreid and Walker, which contract is in the last deed alleged to have been negotiated and secured through the agency and intervention of Forbes.
    The bill charged fraud on the ground that Walker had no interest at the time of the conveyances, averred payment of the whole amount by Audenreid and his executors, and asked for a declaration that the foregoing deed should be set aside as fraudulent, and the property transferred to the defendants reconveyed to the plaintiffs.
    The answer of Forbes denied fraudulent combination with Walker, admitted Audenreid’s age and infirmity of health, wealth and disposition to engage in speculations; averred a belief, that such a share as was purchased by Audenreid had been reserved for his co-defendant, and that at the time of the execution of the first of the foregoing deeds, Walker had control over such a share; admitted that he was Audenreid’s medical adviser, and very intimate with him; averred a request by Audenreid for an introduction to Walker, and an introduction in pursuance thereof; averred that he, Forbes, had received Walker’s written proposition, viz., the deed of 25th October, from Walker’s counsel, and had carried it to Audenreid shortly before the date of its signing; denie'd the considerations set out in the conveyance signed by him of the 26th October, and averred that the real consideration of said conveyance was friendship on the grantor’s part, the transfer being intended as a gift, and no other consideration having passed; that the consideration stated in the deed had been introduced at his counsel’s suggestion, who advised him to draw it up in the form of a contract for services rendered, and that this had been explained to Audenreid, and acquiesced in by him. The answer averred important medical services performed by the defendant for Audenreid.

      The answer of Walker denied fraudulent combination; alleged that Walker did have an interest over such a share as was purchased by Audenreid and himself at the time which had been specially reserved for him by one of the promoters of the enterprise; denied that he had consulted the company as to accepting Audenreid as a subscriber; denied that the stock conveyed to' Audenreid was open to the latter, or any other share, upon equally favorable terms, and admitted the payment by Audenreid and his executors of the full amount of $250,000.
    The court heard the case upon the pleadings and proofs, and in an opinion, Allison, P. J., said:
    “ The bill charges a conspiracy on the part of the defendants to defraud Lewis Audenreid.
    “ The conspiracy is alleged to consist of a combination or agreement on the part of Walker and Forbes to induce Audenreid to subscribe for $250,000 of the capital stock of a company, organized with a capital of $10,000,000, for the construction of a railway from the Mississippi to the Pacific Ocean. This conspiracy is charged to have been founded in fraud, and to have been carried into effect by misrepresentation of material statements made to Audenreid, and by concealing from him material facts which in good faith they ought to have disclosed. Forbes was the medical attendant of Audenreid, and Walker was at the time vice president of the Shenandoah Valley Railroad.
    The plaintiffs assert that Walker, prior to the 2d of November 1872, applied to the construction company for permission to obtain a subscriber for a block or parcel of stock of said company, amounting to $250,000, suggested the name of Audenreid, and ascertained that he would be accepted as a subscriber.
    Mr. Audenreid was about seventy years old, quite infirm in health, and during the greater part of the time confined to his house. It is further asserted by plaintiffs, that taking advantage of his condition, defendants, under false pretences, sought to obtain from him large interests in the property thus acquired. That Forbes introduced Walker to Audenreid, and that they induced him to believe that Walker was the owner of one of the shares, and that no other share could be got at all, or at least, not on as favorable terms as were offered by Walker, and that the stock would rise rapidly and greatly in value.
    “ The first two of these assertions, it is charged, were untrue, and that in consequence of the inducements held out to him, Audenreid was led to subscribe for a share in the joint name of himself and Walker, and to allow Walker to become the owner of one-fifth of that share, and of any profit derived from it, upon his undertaking to pay the one-fifth of the most deferred of the instalments ; out of which profits Walker expected to receive a larger sum than would be required to pay for his proportion of the stock ; and as the price of the agency of Eorbes in introducing the scheme to Audenreid, the latter agreed to give Forbes one-fourth in his interest of four-fifths of a share to be purchased and paid for exclusively by Audenreid.
    “Agreements in writing were executed by the said parties tc carry these several schemes into effect, and Audenreid, on the 2d of November 1872, made his subscription for himself and Walker upon the books of the company. The agreement with Walker is dated October 25th 1872, whereby he transferred to Audenried four-fifths of one undivided fortieth of the whole capital of said construction company, which he, Walker, ‘hath heretofore secured for himself, his heirs and assigns.’
    “The agreement between Audenreid and Forbes bears date October 26th 1872, and recites that for the consideration that Forbes had secured to Audenreid an interest in the capital stock of the California and Texas Pacific Railway Company, under the contract between Walker and Audenreid, which was negotiated and secured through the agency and intervention of Forbes, and the further consideration of $1, Audenreid agreed to transfer to Forbes one-fourth of his interest in the stock of the company, and to deliver 'to him one-fourth of all stock, bonds, property and funds which he should receive from said company, and pay for calls for instalments on his entire four-fifths interest.
    “ It is claimed by the plaintiffs that these contracts' are fraudulent, by reason of the misrepresentation of the material facts of Walker’s ownership of an interest in the company, when he had no interest whatever, and that no other interest could be obtained by Audenreid at all, or on as favorable terms as that offered to him by Walker, and in concealing the fact that this and many other shares were open for subscription to any one capable of complying with its terms.
    ■ “ In the 13th paragraph of the bill, it is charged that these agreements were procured from Audenreid by combination and misrepresentation; that Walker’s alleged ownership of interest in said company was false, and that this was known to Forbes, who attested the agreement between Audenreid -and Walker, as a witness, and that in the articles signed by Audenreid and Forbes, Forbes’s agency in this scheme, charged to be fraudulent, is assigned as the consideration for the interest which Forbes obtained from Audenreid in the share and in its profits.
    “ In the 16th paragraph of the bill, plaintiffs claim that Walker was the agent of Audenreid in respect to the negotiations which resulted in the subscription to the stock; that he accepted such agency before making his contract with Audenreid; that prior thereto, he had applied to the promoters of the enterprise, and had been informed that Audenreid would be accepted as a subscriber, and that in either event, whether such application was made before or after their agreements with Audenreid, they became his agents, and were hound to inform him truly on what terms he might subscribe, and undeceive him as to all material facts upon which he had been induced to enter into the agreement with them.
    “ Upon the stock for which Audenreid subscribed, $222,500 have been paid, leaving still due $27,500, for which the estate of Audenreid is liable.
    “ Audenreid received from the construction company one hundred and sixty-two land grant bonds for $1000 each; of these plaintiffs state that Walker demanded and received thirty-two bonds on the 17th of July 1878, and that on the same day Forbes received thirty of said bonds.
    “ The relief which plaintiffs ask is, that the contracts between Walker and Forbes and Audenreid shall be declared to be fraudulent on the part of Walker and Forbes, and that they are not entitled to retain or to receive any profits under the same.
    “ That an account be taken of all profits received by them under the contract, and that the securities which they have received may be transferred by them to plaintiffs.
    “ That each of the defendants may be required to make good any default in the other, in the said accounting for and transfer of the securities or profits they may severally have received.
    u The defendants have made separate answers, in each of which they deny, in the most positive terms, the charges of fraud and of fraudulent combination. These denials are made by each defendant for himself individually, and for his co-defendant, in every particular, -where confederation and agreement is charged against them, and cover alike the assertions of misrepresentation and of concealment of material facts touching the transaction.
    “Forbes says, in the eighth paragraph of his answer : It is false that he had ascertained that Mr. Audenreid would be accepted as a subscriber; it is false that he combined with V1 alker to induce Audenreid to furnish the requisite capital to obtain one of the shares, or that, under false pretences, they intended to obtain any interest from him in the property; nor did they, or either of them, make any representation of Walker’s ownership of a share, or that no other share could he got upon the terms charged in the bill. He asserts that he made no representations of Walker’s ownership, and that he did not, on that occasion, introduce Walker to Audenreid, and that they had been acquainted for months previously.
    “ In the eleventh paragraph he also denies that, in consequence of any false representation by defendants, or either of them, Mr. Audenreid was induced to make the agreement which plaintiffs now seek to have set aside as fraudulent.
    “ With equal emphasis and particularity is set out in his answer the denial of Walker of the charges of fraud which are made against him, with one exception, namely: that which relates to his ownership of stock, and that no other stock could have been procured by Audenreid, at that time, on as favorable terms as those on which he claims to have sold and assigned his interest to him.
    “ This broad and emphatic denial of so much of the case of the plaintiffs as rests upon the allegations of fraudulent conspiracy, must be considered as conclusively answered, unless the evidence taken in the cause sustains the charge; and it can only be established against the defendants by the testimony of two witnesses, or by the testimony of one witness and corroborating circumstances. The plaintiffs must bring their case within the well-established equity rule that where the defendant in express terms negatives the allegations of the bill, and the evidence of one person only affirms what has been so negatived, then the court will neither make a decree nor send it to atrial at law: Danl. Ch. Pr. & PI. 983. Nor would the cause be sent to a trial at law unaccompanied by instructions as to the requisite amount of proof to sustain a verdict, contrary to the positive denial of the answer. And the operation of the defendant’s answer is the same, although the equity of the plaintiffs’ bill is grounded on the allegation of fraud: Dilly v. Barnard, 8 Gill & Johns. 171; McDonald v. McLeod, 1 Ired. 226 ; Lewis v. Owen, Id. 290; Murry v. Blatchford, 1 Wend. 583; Cunningham v. Freeborn, 3 Paige 557 ; Hart v. Ten Eyck, 2 Johns. Ch. 92.
    “ Several of the English authorities, and among them the case of Gibson v. Russell, 2 You. & Col. 104, were cited in support of the claim that in a case like the present one, the burden of proof is thrown upon the defendants. Gibson v. Russell, is, in many respects, like the one now before us. A deed of gift of real estate from an aged and infirm person to his intimate friend and medical attendant, was set aside for fraud, one of the circumstances in proof of fraud being that the deed stated, contrary to the proof, a money consideration. It was admitted, upon the hearing of that case, that although the deed recited a consideration of 10001. that no money was paid by the grantee for the property, but that the grantor had furnished 10001. of his own money to support a colorable payment by the grantee. In that case, however, the fact appeared that Gibson had been under insane delusions; this, in the opinion of the vice-chancellor, shifted the burden of proof, and required the defendant to establish first, that when Gibson executed the deed he was of sound mind; secondly, that he was at that time competent to transact such business; and thirdly, that he well understood the whole business, and needed no other advice respecting it than such as he had.
    “ The vice-chancellor found, as to each of these grounds, that the defendant had not established them by his proofs, and for this reason, and upon other considerations mentioned in his opinion, he set the deed aside.
    This case, though strongly analogous to the present one in several of its most prominent facts, yet differs from it in the one which is most essential, and upon this distinction the decision of the vice-chancellor is mainly founded. Although it was shown that Mr. Audenreid had greatly failed in bodily health, and a number of witnesses testified that his mind was considerably impaired, the value of this testimony is greatly shaken by the fact, that these witnesses did not hesitate to advise and consult him upon business matters, but transacted important business with and for him during all the time covered by their testimony. This is true of his partner, Mr. Potts, who, in October 1872, renewed his agreement of partnership with Mr. Audenreid; and it is equally true of Mr. Matthews and Mr. Geary, who were his business agents. The great preponderance of the testimony on this point establishes the fact that his mental faculties were in no appreciable degree impaired. We think this is clearly made out by the testimony of his sister, Mrs. Miller, who was his constant attendant; by that of Mr. Krumbhaar, the secretary of the construction company; by Mr. Purves, who transacted important legal business with him in May 1878; by Mr. Gest, who was his legal adviser, whose testimony covers the time extending from April 1872 to June 1875; by Dr. Ludlow, his consulting physician; and by his spiritual adviser, the Rev. Mr. Romich. The testimony also shows that Mr. Audenreid was possessed of a great business capacity; he was shrewd and keen at a bargain, and had a clearness of mental vision in all matters relating to business much above the average.
    “The burden of proof in this case is not shifted upon the defendants ; for here the denial is most positive; and it is, as a general rule, only where the answer of the defendant is not responsive to the bill, but sets up affirmations in opposition to, or in avoidance of the plaintiff’s demand, and is replied to by the plaintiff, that the answer is of no avail in respect to such allegations. In such a case the defendant is as much bound to support his affirmative averments by independent testimony, as the plaintiff is to sustain his bill: Daniel’s Ch. 984 note.
    “ Every allegation of fraud in equity as well as at law, unless it is admitted, or not denied when denial is required; or unless where, from the character of the answer, or from some other cause, such as temporary insanity, the burden of proof is shifted, must be established by proofs. The party who alleges fraud, must, as a general rule, establish the fraud upon which his equity or legal right rests.
    “ Recognising this necessity, the plaintiffs have resorted to their proofs, and it is due to the defendants to say that it entirely fails to support in any degree the charges of fraudulent combination between Forbes and Walker. Nor is there a tittle of reliable testimony which shows that Dr. Forbes, by any word or deed, departed from the strictest rule of right in his connection with the subscription to the stock of the construction company by Audenreid, or that he influenced him or sought to influence him to make the subscription.
    “ The testimony of Mrs. Miller, to some extent relied on by plaintiffs, we do not think is of any weight. She says Mr. Audenried first saw an account of the Southern Pacific Railroad in a newspaper, and spoke to Dr. Forbes about it, and when Mr. Audenried decided to take an interest in it, Dr. Forbes urged him to take his nephew or his partner in with him. Speaking of the doctor’s connection with the stock, she says, ‘My impression is he had it under his control. I dare say he got it from Walker. 1 don’t know anything about it.’

    “When this conclusion is reached after a careful examination of the plaintiff’s testimony, and is weighed along with the most full and emphatic denial of all the charges of wrongdoing which are made against Forbes by the plaintiffs in their bill, accompanied by a statement which Dr. Forbes gives of his part in the transaction, we would be ready to dismiss the bill as to him but for the necessity which remains to consider the legal effect of the agreement between Forbes and Audenreid.
    “It is contended on behalf of the plaintiffs that the consideration r-ecited in the deed to Forbes is binding on him; that he cannot now deny it and claim that the stock was bestowed on him as a gift. In support of this proposition a number of authorities were cited, but these cases cannot be regarded as of authority in Pennsylvania since the decision of Jack v. Dougherty, 3 Watts 157, where it is ruled that parol evidence may be admitted to prove a consideration other or greater than that which is expressed in the deed, to rebut the presumption of fraud, if it be not flatly contradictory to that mentioned in the instrument. And where a deed states a consideration when none in fact was paid, it was held that the question of fraudulent intent was properly not decided by the court, but left as a question of fact for the jury. Judge Kennedy, delivering the opinion of the court, reviews the English authorities, and cites a number of New York cases, in which the doctrine now contended for was recognised. lie holds and attempts to show that the rule prior to the case of Clarkson v. Ilanneay, 2 P. Wms. 203, was not only held to be different, but has, in some instances, been considered so since the date of most of the' cases referred to. In Virginia it is held that in equity either party may prove the true consideration of a deed, though different from that expressed in it: Duval v. Bibb. 4 Hen. & Munf. 113. In Harvey v. Alexander, 1 Rand. 219, it was decided that where the deed was made in consideration of natural love and affection, and the further consideration of $1, parol proof was admissible of other valuable considerations. The same doctrine was recognised by the Supreme Court of Massachusetts, in Bullard v. Briggs, 7 Pick. 533. White v. Weeks, 1 P. & W. 486, supports this principle. Judge Kennedy remarks, it frequently happened that but little regard was paid by the parties to the consideration set forth in the deed, leaving it to the scrivener to put in such of it as in law he might deem sufficient to make the deed operative. The consideration being thus inserted rather to meet the exigency of the law than the whole truth of the case, parol evidence ought to be admitted to show the true consideration of the deed.
    “ The rule established by Jack v. Dougherty is, that it being only a ground for presumption, and not for construction, it is capable of being removed by parol evidence.
    “ Lewis v. Brewster, 7 P. F. Smith 410, adopts the doctrine established in Jack v. Dougherty, and quoting from the opinion of Judge Kennedy with approval, it decides that if a deed appears to be a voluntary conveyance, a valuable consideration may be proved by parol, and that which appears to be a valuable consideration may be proved in the same manner to be a gift for good consideration. The deed in that case recited a consideration of $300. The testimony was that nothing was paid; the scrivener said: If I understood the grantor, it was a gift to his daughter-in-law. Another witness said there was no money consideration for the deed— none paid or expected ; it was wholly a gift.
    “ This doctrine is also supported by Buckley’s Appeal, 12 Wright 491, and in Greenl. Ey., §§ 285 and 304.

      “ Dr. Forbes, in his answer, says the offer or proposition to give him an interest in the stock was made by Mr. Audenreid; that in reply to a question as to how much of the stock, he, Audenreid, would carry for him on his notes, he replied that he would not carry any, but that he had intended to give him one-fourth of his part, and that he would get his clerk, Mr. Robb, to draw up a paper to that effect; that after further conversation the doctor suggested that in a matter of so much importance he had better get a lawyer to draw up a legal and proper paper, and that he saw Mr. George Bull, who was of counsel for Mr. Walker, who prepared the agreement which was afterwards signed by Mr. Audenreid.
    “ Mr. Bull testifies that the consideration he inserted in the agreement was not inserted in consequence of any instruction he received from Dr. Forbes, or any one else; that the paper was intended to secure to the doctor an interest of $50,000, which he obtained as a gift, and as he knew that no present interest was to pass to the doctor, and that unless the contract had some consideration to support it, it was subject to revocation for greater caution he inserted the consideration recited in the agreement; that it was wholly upon his advice and at his suggestion that this was done. All this the answer asserts was explained to Mr. Audenreid, and that it was after explanation that he approved of and signed the contract. This, we think, ought not to be questioned, in view of the fact that in July following, eight months after the date of the agreement, he delivered to Dr. Forbes, by the hands of his confidential clerk, Mr. Robb, one of the plaintiffs, thirty $1000 bonds, having also, in May preceding, transferred in trust $100,000 of the construction bonds, the interest and principal being made subject to the direction of Dr. Eorbes, for hospital purposes in Philadelphia. The reasonable explanation of the generosity of Mr. Audenreid, and his desire to benefit Dr. Eorbes, is, that he felt himself under great obligation to him for important professional services which the doctor had rendered to him, and who also stood in the relation to him of a personal friend. This is to be considered in connection with the fact, that Mr. Audenreid was a gentleman of very large wealth, to whom a gift large in amount as this is would bring no sensible diminution of fortune, and it is also to be borne in mind that he expected to pay it out of the profits which he anticipated he would realize upon his investment in the stock of the construction company. The expectation of the promoters of the enterprise, and of the subscribers, was that it would rise to double its original value in a short time.
    “ Upon the allegations of undue influence we think the-plaintiffs have wholly failed upon their proofs. There is no such charge established against any one under the law as it is settled in Pennsylvania; a jury would be instructed to find against the plaintiffs upon their testimony upon this point, in a trial of an issue of devisavit vel non. It bears only, and that in a very slight degree, against Mrs. Miller, the sister of the deceased, who is no party to these proceedings.
    “ Dor can we agree with the plaintiffs that there is anything in the confidential relation of a medical adviser to a patient that per se forbids the acceptance of a gift by him from his patient. Greenfield’s Estate, 12 Harris 232, decides that there is no rule of law or of morals which prevents a minister of the gospel from receiving gifts, large or small, from his parishioners or from strangers. In that case, Mrs. Greenfield, who was old and infirm, gave to the Rev. William Suddards a sealed note for $6000 for “ value received and for his services;” the services wrere of a spiritual character, visits made at the request of Mrs. Greenfield to persons who were objects of her care and solicitude. This case rules the law upon this point against the plaintiffs; the relation of a spiritual adviser being closer, more confidential, and more influential in controlling the action of an aged and infirm person than that of a medical attendant. Greenfield's Estate also supports the doctrine that inquiry may be made as to the consideration recited in a deed or sealed instrument; the court hold, notwithstanding the valuable consideration mentioned, and that the note was under seal, which imports consideration, that it was to be regarded as a gift.
    “ Upon the whole case, therefore, as it stands upon the law applicable to and governing it, and upon the pleadings and the proofs, we are required to dismiss the bill as to William S. Eorbes; the costs as to him to be paid by the plaintiffs, and we so order.”

      The prayer of the bill as to Walker was granteci, the court, inter alia, saying:
    “ The agreement upon which Walker depends in defending against the claim of the plaintiffs, we are required to hold is void, because it claims to transfer to Audenreid that which Walker did not at the time possess. He was not possessed of a share, or of four-fifths of one undivided interest or original share of the capital stock of the construction company; nor had he, as is stated in the contract, secured such stock for himself or his assigns. This being the whole consideration for the undertaking of Audenreid, it is, as to him, without any consideration to support it, and therefore not binding upon him. This, in connection with the reasons already stated, leads us to the conclusion that the relief prayed for in the second, third and sixth prayer for relief should be granted as against Walker, and it is so ordered.”
    From the decree dismissing the bill as to Forbes, this appeal was taken

      A. Sydney Biddle and B. O. McMwrtrie, for appellants. — The
    contract which Walker got from Audenreid was a fraud upon the latter. This contract was negotiated through the agency of Forbes. Walker pretended to control certain property, and Audenreid contracted on the faith of that belief. This fact was stated in writing, and Forbes carried it to his principal, knowing its contents and their falsity.
    Unless Forbes’s answer is alone sufficient to overcome this proof, we submit the proof of combination is made out. Supposing it is not proved, then the defendant holds, under a contract, property which belonged to a man now dead, which sets forth as the consideration that which is utterly untrue and never existed.
    The defendant holds this property under a sealed contract. It is an executory contract to convey. It recites a consideration. A consideration is essential to.such a contract, it being executory. No one pretends to know or state any fact as to the other party to that contract but the defendant. He is incompetent as a witness. We therefore respectfully submit: No one claiming under a deceased person by contract as for value can be permitted to avoid the effect of proof that this was untrue by setting up that such contract was really a gift. If he can he must prove it and his answer is no evidence for him.
    It is evidently most inconsistent to permit a man to clothe himself with the strongest muniments of title and upon it being shown that all this is a fraud and untrue to claim the property as a gift. It seems very difficult for men to devise a form of evidence that will preserve them from fraud and imposition if this be the rule. This becomes still more apparent if we apply it to cases such as this where one party is aged, incapable of acting with the energy of men in active life, confined to his house, and compelled to act through agents. And it culminates when death has closed all means of obtaining explanations. The authorities are: Bridgman -v. Green, 2 Vesey 628; Huguenin v, Baseley 14 Id. 278; Dent v. Bennett, 4 Myl. & Or. 269; Uppinglin v. Bullen, 2 Dr. & War. 184 (Sugden Ch.); Gibson v. Russell, 2 You. & Col. 1-20 ; Dent v. Bennett, 7 Sim. 589.
    As between parties iwhere written instruments are appointed by the law or by the compact of the parties to be the repositories or memorials of the truth they are the only evidence of what was agreed to; Starkie Evidence (Sharswood ed.) 648, 651, 655; and see Hendrick v. Croly, 31 Cal. 471.
    Can a party prove title by gift from one deceased, when he takes under a deed purporting to be for value ? Defendant has not done so. He asserts it, but gives no proof. There is none pretended but his answer, and that only asserts an intention to give, changed after negotiation. That answer is not responsive; it is in confession and avoidance. But the rule as to responsive allegations has no place in such matters. They are never admitted to vary a right or fact proved by a document, or to vary its effect.
    As to the irresponsiveness of the defendant’s assertions in his answer of a different consideration from that averred in the bill, see Jones v. Belt, 2 Gill. 106-120 ; Randall v. Phillips, 3 Mason 387 ; Cocke v. Trotter, 10 Yerg. 215; Ives v. Harris, 4 R. I. 413; Elagg v. Mann, 2 Sum. 486; Dease v. Moody, 31 Miss. 617; Clarke v. White, 12 Peters 178 ; Wynans v. Wynans, 19 N. J. 220; McDpnald v. McDonald, 16 Vt. 631; Eaton’s Appeal, 16 P. E. Smith 485; Eisler v. Porch, 2 Stockton Ch. 243. The cases cited by the court below are distinguishable from the one at bar.
    The donee, where he stands in any confidential relation to the donor, must satisfy the court on a bill brought to set aside the gift, that the donor has had competent and independent advice in conferring the benefit, and that no undue influence has been practised. The confidential relation then shifts the burden of proof. The rule is independent of age, sex, mental infirmity or other incapacity: Rhodes v. Bate, Law Rep. 1 Oh. App. 252; Huguenin v. Baseley, swpra,; Popham v. Brooke, 5 Russ. 8; Lyon v. Home, Law Rep. 6 Eq. 655 ; Greenfield’s Estate, 2 Harris 489; Wright v. Vanderplank, 8 DeGex, M. & G. 137; Taylor v. Taylor, 8 How.’ 183; Todd v. Grove, 33 Md. 188 ; Boney v. Hollingsworth, 23 Ala. 698; Cadwalader v. West, 48 Mo. 483; Orispell v. Dubois, 4 Barb. 393; Brice v. Brice, 5 Id. 533; Wheeler v. Wheeler, 43 Conn. 803 ; Highberger v. Stiffler, 21 Md. 338; Meek v. Thornton, Executors, v. Perry et ux., 36 Miss. 244; Lake v. Ranney, 33 Barb. 68; Bergen v. Udall, 31 Id. 9; Garvin v. Williams, 44 Mo. 465.
    Independent of fraud no title passed, as the conveyance was void. This bill is also to obtain restitution of property conveyed by a deed which was void for want of consideration. The proceeding is by the grantor himself or those immediately representing him. In all the cases .cited by apoellee the conveyance was attacked' by strangers or third parties.

      P. McCall, for appellee.
    No rule that a deed cannot be set up as a gift when it purports to be for value obtains in this state: Jack v. Dougherty, 3 Watts 157; Lewis v. Brewster, 7 P. F. Smith 410; Duvall v. Bibb, 4 Hen. & Munf. 113; Greenl. on Ev., §304, citing 2 Coll. Ch. 76. The answer is responsive: Eberly v. Groff, 9 Harris 251. The bill charges that Forbes secured this contract by fraud and false pretences. Everything that shows fairness in the transaction is responsive to the bill. The plaintiffs state a transaction as the foundation of their equity. The defendant has a right to state the whole of such transaction as it really W’as. Gifts to a medical adviser do not stand on the same footing as gifts from a client to an attorney, which are set aside on grounds of public policy, or transactions between ward and guardian, cestui que trust and trustee: Greenfield’s Estate 12 Harris 232 ; Jackson v. Ashton, 11 Pet. 229; Dóggett v. Lane, 12 Mo. 215. The bill did not allege that Mr. Audenried was of weak intellect; on the contrary the testimony showed that he was of sound mind and strong will, and not of a facile disposition.
   The judgment of the Supreme Court was entered March 17th 1879,

Per Curiam.

A careful examination of the proofs and consideration of the able arguments, oral and printed, of the learned and zealous counsel for the appellants have failed to convince us that there was any error in the decree appealed from. The opinion of the, learned president of the court below so clearly expresses the views we entertain of the case that we deem it unnecessary to add anything.

Decree affirmed, and appeal dismissed at the costs of the appellants.


author: Mr. Justice Merour

text:
    Fegley et al. versus McDonald.
    1. Where a creditor has in his hands the means of paying his debt out of the funds of the principal debtor, and he might have paid the same by the exercise of reasonable diligence, and does not use the means thus within his control, the surety is discharged.
    2. Where the principal debtor gave his cheek and the money remained in bank for seven days before presentation of the check, and it was dishonored, because the bank had on that day appropriated the money intended to meet it to the payment of an indebtedness of the principal due the bank on that day, the surety is discharged by the delay in presentation.
    3. It seems, that a check is generally designed for immediate presentation and not for circulation, and it is the duty of the holder to present it for payment as soon as he reasonably may, and if he does not he keeps it at his own risk.
    February 12th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Woodward, Trunket and Sterkett, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1876, No. 253.
    Joseph McDonald became surety for one Rose, as treasurer of Stephen Girard Lodge, No. 450, A. Y. M., giving to the lodge, with Rose, a joint and several bond with warrant of attorney in $1000, for the faithful performance by Rose of the duties of his office. Judgment was entered thereon June 25th 1874, which judgment was subsequently opened as to McDonald, who was let into a defence.
    At the trial, before Finletter, J., it appeared that Rose was ordered by the lodge, on January 28th 1874, to pay the Grand Lodge, F. & A. M., the sum of $920, the amount of -rent and dues owing for the year 1873. Rose made no attempt to obey the or.der of the lodge until May 27th 1874. On that day, after 3 o’clock, he sent his personal check for $920 to the secretary of the Grand Lodge, drawn on the Union Banking Company of Philadelphia. This check was not presented until June 4th 1874, when it was dishonored. On the day the check was given, Rose had no funds in bank' to meet it, but the next day, May 28th 1874, he deposited the amount of the check to his individual account in the Union Banking Company. The funds so deposited, however, had been appropriated by said barde, June 4th 1874, before the check was presented, to pay a note then due, endorsed by Rose, which the bank had discounted for his benefit. The lodge was subsequently compelled to pay the said $920 to the Grand Lodge with accumulated interest. Rose never accounted to Stephen Girard Lodge for said amount or paid any part of the same.
    The court directed the jury to find for the plaintiffs, reserving the question of law as to whether McDonald, the surety, was discharged from liability on his bond to Stephen Girard Lodge by the delay of the Grand Lodge in presenting the check.
    The verdict was for the plaintiffs.

      Subsequently judgment was entered, by the court in banc, for the defendant on the point reserved.
    The case was first argued in the Supreme Court on February 27th 1878, and the court being equally divided (Woodward, J., being absent), the judgment was affirmed. A re-argument was subsequently ordered.

      W. D. Wetherill, for plaintiffs in error.
    McDonald was not an endorser on a note but a co-obligor on a bond, and the delay of the Grand Lodge could not, therefore, discharge him : Hutchinson v. Commonwealth, 6 Barr 124; Wayne v. Commercial Bank, 2 Smith 348.

      Thomas J. Diehl, for defendant in error.
    The delay worked a discharge: Richards v. Commonwealth, 4 Wright 146; Hopkins v. Ware, Law Rep. 4 Ex. 268. The subordinate lodge should have insisted that the check was payment, and the fact that they paid the second time cannot affect McDonald.
   Mr. Justice Merour

delivered the opinion of the court, May 5th, 1879

The plaintiffs represent the Stephen Girard, a subordinate lodge of A. Y. M. The defendant was surety for one Rose, as treasurer of the lodge. The claim is against the surety for the alleged default of the treasurer. It appears that the Girard Lodge was indebted to the Grand Lodge for 'rent and dues in the sum of f920. Rose-was, by resolution of his lodge, ordered to pay that sum to the Grand Lodge. After banking hours, on the 27th May 1874, he drew his private check for that amount on the Union Banking Company, sent it to the secretary of the Grand Lodge, and received from him a receipted bill for the amount. It would appear that this sum of the plaintiff’s money was either actually or constructively in the hands of the treasurer when he drew the check. The Grand Lodge omitted to present the check for payment until the 4th of June 1874, although the bank and all the parties were located in the city of Philadelphia. When presented payment thereof was refused by the bank, Rose having no funds there to-meet it. The Grand Lodge retained the check for more than a. year thereafter,- when the Girard Lodge, without suit, voluntarily paid it. The latter now seeks to1'recover the amount thus paid out of the defendant as surety. There is no dispute about the facts. It appears that when Rose drew the check he had no funds in bank to meet it; but the next day he deposited the amount of the check to his individual account in the bank. The money so deposited remained there, subject to his check, until the 4th of June. On this day, but before the check was presented, the money was appropriated by the bank to pay another obligation of Rose which matured on that day.

The court directed the jury to find for the plaintiffs, reserving the question of law as to whether the defendant, surety, was discharged from liability on his bond to Stephen Girard Lodge by the delay of the Grand Lodge in presenting the check. Afterwards the court entered judgment in favor of the defendant on the point reserved. This is assigned for error.

The rule is well settled, that when a creditor has in his hands the means of paying his debt out of the property of his principal debtor, and does not use it but gives it up, the surety is discharged. It need not be actually in the hands of the creditor, if it be within his control, so that by the exercise of reasonable diligence he may have realized his pay out of it, yet voluntarily and by supine negligence relinquished it, the surety is discharged: Commonwealth v. Vanderslice, 8 S. & R. 452; Ramsey v. Westmoreland Bank, 2 P. & W. 203; Everly v. Rice, 8 Harris 297 ; Boschert v. Brown, 22 P. E. Smith 372.

The question now before us is not in regard to the liability of Rose on the check, nor the validity of the claim against him. It is the right of the surety only with which we are now dealing. In contemplation of law the check was received by the Girard Lodge and paid to the Grand Lodge. On the first day after its receipt the money was in bank to meet it, and so remained there for one full week. If the check had been presented on any business day of the seven, it would have been paid, and the surety would have been discharged from all liability. It was given by Rose to discharge his liability to the Girard Lodge. If presented at bank in due time it would have paid the demand against him. Then the responsibility of the surety would unquestionably have been discharged. If not discharged it is solely through delay in the presentation of the check. Whether that delay was the immediate act of the Girard Lodge which received it, or the act of the Grand Lodge to which it was transferred, makes no substantial difference to the surety. The creditor had the means of payment in its own hands.

A check is generally designed for immediate payment and not for circulation. It is the duty of the holder to present it for payment as soon as he reasonably may, and if he does not, he keeps it at his own risk. The Girard Lodge accepted it as a payment from Rose. In like manner the Grand Lodge accepted it from the subordinate lodge. In order to charge the latter by reason of the nonpayment, it should have been presented for payment within a reasonable time. Had it been so presented it would have been paid. A delay of seven days was an unreasonable time. While so holding the cheek unpresented, the Grand Lodge had no legal claim against the Girard, nor the latter against the surety of Rose. When it was presented and dishonored, it was too late for the Grand Lodge to cast the loss which it had sustained through its own default on the Girard, and for the latter by voluntarily paying the check, to impose a legal liability therefor on the defendant. The learned judge was right in entering judgment in favor of the defendant on the question reserved.

Judgment affirmed.