author: Mr. Justice Trunkex

text:
    Waltman et al. versus Herdic et al.

    1. If the grantor of the title to land in dispute is dead, and he never had any transaction or communication of any kind with the adverse party to a suit brought to try the title to the land, he was not an “ assignor of the thing or contract in action,” within the meaning of the Act of 1869, and the adverse party is competent as a witness.
    2. T., one of the defendants in an action of ejectment for a tract of land, was offered as a witness in his own behalf to prove such actual possession as had vested title in himself. It was objected that he was incompetent, “ because B., whose estate still holds the legal title, as shown by the plaintiffs in suit, is dead.” There was no privity between B. and T.; no contract relation, nor were their respective titles links of the same chain, and aside from these, T. set up title under the Statute of Limitations. It was not proposed to show by T. anything that B. had ever done or said, and plaintiffs did not show anything tending to prove that there was any communication between them respecting the land. Reid, that the court erred in rejecting the offer.
    June 4tb 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 174.
    Ejectment by Peter Herdic and others against John Waltman, Henry Waltman and Samuel Titus, for a tract or strip of land between two surveys respectively entitled the “ Jean Brady and Jennet Hepburn” surveys.
    On June 8th 1792, Jennet Hepburn was granted a warrant to appropriate two hundred acres of land'on William Hammond’s run, including said run, and adjoining land of William Winter, about two miles from the river, in Loyalsock township, (then) Northumberland county. A survey was made May 17th 1793, as containing two hundred and sixteen acres and allowance, calling for an ash as the south-east corner, twenty-one perches east of Hammond’s run, by the plot; thence north eighteen east to white oak one hundred and five (by the figure or draft the course is plotted about north eighteen west)-; thence north forty-five east one hundred and eighteen perches to white oak at intersection of top line crossing Main run and branch, plotted as thirty perches in length, but by measurement on the ground and scale of draft forty-four perches long. The survey, as made on the ground, and as called for in the patent granted April 17th 1794, to Jennet Hepburn, intermarried with Matthew Wilson, is for a course north eighteen east from an ash corner. Jennet Wilson and Matthew Wilson died intestate, leaving five heirs, one of whom, Mary, intermarried with Manning Stevenson. By articles of agreement and deed, the one undivided fifth part of the Jennet Hepburn survey was sold to Samuel Titus, one of the defendants, who took possession of the same, May first 1827, cutting timber up to the line as claimed by defendants, the same year.

      Plaintiffs claimed under a warrant to Jean Brady, dated November 13th 1792, for two hundred acres, described as adjoining lands of S. Wallis, including Hagerman’s run, in Washington township, one mile south of the Susquehanna river; surveyed May 8th 1794, containing two hundred and four acres. On January 24th 1828, the warrant was sold for taxes by the treasurer of Lycoming •county, to John Yanderbelt, William Harris, Peter Vanderbelt, and Charles Low, -who, with William Wilson, a surveyor and congressman (not related to the William Wilson who was one of the heirs of Jennet Hepburn Wilson), petitioned the board of property for a resurvey of the Jean Brady, alleging it interfered with the Jennet Hepburn survey and others. December 30th 1828, a resurvey was ordered, providing it does not interfere with others, &c. August 27th 1830, a resurvey was made, returned and patented to William Harris, John Yanderbelt', Peter Yanderbelt and Charles Low. This resurvey crosses the south-east corner of the Jennet Hepburn, by giving it its official courses and distances, by twenty-one and three-tenths perches at the south line of the Jennet Hepburn, including Hammond’s run as part of the Jean Brady survey, which ran from the white oak witness at the north-east corner of the Jennet Hepburn tract, and does not close at the ash corner and pine witness at the south-east corner of the Jennet Hepburn survey. The survey as claimed by these plaintiffs in the writ docs not cross Hammond’s run by dropping eight perches on each of the two lines — the south forty-eight west one hundred and ten line (a reverse of north forty-five east one hundred and eighteen) from the upper white oak, thence south twenty-one west ninety-seven and two-tenths'(a reverse of north eighteen east one hundred and five), coming within five or seven feet of the run to a post. The ash corner is shown by the scale on the plot and measurement to be from seventeen to twenty perches eastward from the run. In the year 1832, the owners of the Jennet Hepburn survey amicably divided the Jennet Hepburn survey, leaving the strip of land interfered with by the Jean Brady resurvey undivided, with an agreement among themselves, that whoever of them contended for the same should have the other heirs’ interests therein, as the same belonged to their survey..
    Titus alleged he used this land for its wood and timber, in connection with his larger purpart or farm, as a wood lot appurtenant, for more than twenty-one years, without any one to gainsay his right thereto. In 1849 he sold a part of it to Joshua Hall, who built a house thereon and cultivated a garden therewith. Henry Johnson purchased his house the next year and occupied the same, and maintained the possession of the whole strip in dispute up to the bringing of this suit, in December 1876, for Mr. Titus, except a quarry, which was worked by Mr. Waltman under agreement with Mr. Titus. In 1852 a suit was commenced in ejectment by Daniel Billman against Titus and his tenants — Hall, Johnson and Hoffman — claiming part of this strip, four acres, more or less, as belonging to the Jean Brady; but this suit was abandoned. The whole of the Jennet Hepburn has been seated for more than sixty years.
    At the trial, before Cummin, P. J., the plaintiffs put in their paper title, by which.it appeared that they were entitled to that portion of the land surveyed in the Jean Brady warrant which adjoined the lands surveyed in the Jennet Hepburn warrant. The claim of the plaintiffs was confined to the lands surveyed on the warrant of Jean Brady, and they made no claim or title to any part of the lands surveyed on the warrant Jennet Hepburn.
    The paper title of the defendants related entirely to the lands surveyed on the Jennet Hepburn warrant, and under their paper title they were to be confined in this case to the lands Surveyed on the warrant Jennet Hepburn, and by virtue of their paper title they had no claim upon any lands surveyed on the warrant Jean Brady.
    In addition, however, to what the defendants claimed on their paper title, they also claimed that Titus, one of the defendants, and under whom the other defendants claimed, had acquired title to the land in dispute by having occupied it for a period of twenty-one years.
    Plaintiffs proved that Daniel Billman, the former owner of the Jean Brady tract, was dead, and that the legal title to one-half of the land in dispute was still in his heirs, and alleged that they were bound to make title under contract, and bound by a covenant of general warranty in a conveyance of the legal title to three of the plaintiffs of the other half. Defendants offered to prove by Titus, one of the defendants, that he purchased an interest in the Jennet Hepburn survey in the year 1827. That he took possession of the same, and that his possession taken and maintained from that time, under a claim of title of the warrant and survey Jennet Hepburn, included the land described in plaintiffs’ writ up to this line as run by Mr. McHenry from the stone along the brush fence spoken of, &c. That in 1849 he sold a part of this land in dispute to Joshua Hall, and put him in possession of the same. That Mr. Hall and others erected a house and made a garden and other improvements up to this line, as indicated by the stone and the brush fence, and as his agents maintained possession of the entire strip now in dispute for more than twenty-one years, to be followed by evidence of the location up to this brush fence line, recognition by the owners of the part of the Jean Brady adjoining it on the east; this for the purpose of showing his title and possession to the land in dispute.
    The plaintiffs objected, inter alia, because Daniel Billman, whose estate still holds the legal title as shown by the plaintiffs in this suit, is dead, having in his lifetime conveyed only an equitable interest to the parties, and that the witness, Samuel Titus, being defendant in the issue, is incompetent to testify in this case as to any matters that occurred during the lifetime of Billman. The court sustained the objection, and excluded the witness on the ground of incompetency.
    The verdict was for the plaintiffs for the land described in the writ. Defendants took this writ, their eleventh assignment of error being the rejection of Titus as a witness on the grounds above stated.

      G-. W. Youngman and 8. L. Youngman, for plaintiffs in error.
    —Since the Act of April 16th 1869, all witnesses are prima facie competent: McClelland v. West, 20 P. F. Smith 183. No executor or administrator was a party, and that a decedent’s estate might be affected by an adverse decision is too .remote. For the same reason all parties to ejectment suits founded on conveyances of date beyond the present generation would be incompetent, and the Act of 1869 become a mere nullity. The principle of the decision in Karns v. Tanner, 16 P. F. Smith 297, does not apply. Defendant, Titus, did not claim as assignee, nor by conveyance' in which decedent, Billman, had ever been interested as a party with him. In Craig v. Brendel, 19 P. F. Smith 153, the decision of Karns v. Tanner, 16 Id. 297, is distinguished, and Brendel was admitted as a competent witness for his wife, against Craig’s representatives, Craig having brought ejectment for the land in controversy as sheriff’s vendee of Brendel, the husband. In Insurance Co. v. Shultz, 1 Norris 46, it is held that after the death of an agent with whom a contract was made, defendant may testify against principal. In 24 P. F. Smith 476, and 26 Id. 180, it is held that the death of an intermediate vendee does not render either party to the original contract incompetent.

      It. P. Allen and J. A. Beeber, for defendants in error.
    The plaintiffs offered to prove by the evidence of Samuel Titus, one of the defendants, that he took possession of the land in dispute, exercised rights of ownership over it, and that his possession was recognised by the owners of the Jean Brady tract.
    The offer was in effect to prove, by one of the parties to the suit, admissions made by Daniel Billman during his lifetime, he being the assignor or grantor of the land in dispute, part of whose title passed by his own act to the plaintiffs, and the title to the remaining portion still being in his heirs. The witness was clearly incompetent for such purpose before the Act of April 15th 1869, allowing parties to be witnesses, and comes within the terms of the proviso of the first section of said act, Daniel Billman being dead and the assignor of the thing in dispute: Karns v. Tanner, supra; Hanna v. Wray, 27 P. F. Smith 27; Standbridge v. Cantenach, 2 Norris 368; Arthurs v. King, 3 Id. 528.

      June 23d 1879.
   Mr. Justice Trunkex

delivered the opinion of the court,

The Act of 15th April 1869 does not apply to actions where the assignor of the thing or contract in action may be dead. If Bill-man were an assignor within the sense of the statute, as to matters which occurred in his lifetime, the competency of Titus to testify would be determined by rules that existed before its enactment. Where the subject of the action is a contract, it is obvious that a deceased party thereto, whose rights have passed to one of the parties in the action, is an assignor in the intendment of the proviso,, as clearly so as if the suit were by or against an executor. Then it is easily seen that the case is within the true spirit of the proviso which has been said “ to be that where a party to a thing or contract in action is dead, and his rights have passed, either by his. own act or that of the law, to another, who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now closed:” Karns v. Tanner, 16 P. F. Smith 297. But when the subject of litigation is real estate, it often seems difficult to decide if the act applies; yet the spirit and reason of the law will as surely guide as if the subject were a contract. A grantor of the title on one side may be dead; if he had no transaction or communication of any kind with the adverse party, or one under whom he claims, he is not an assignor in the meaning of the statute. Where there was no privity between the deceased assignor and the opposing party, as a general rule the act •applies. The converse is equally true, if nothing occurred in the lifetime of the deceased between him and the survivor, the case is unlike one where the subject is a contract. The decisions accord with the rule stated. In Karns v. Tanner, supra, the pivotal question was the validity of a lease, which Parker, one of the defendants, had given to James P. Tanner, whose title after his decease had become vested in the plaintiff. So in Arthurs v. King, 3 Norris 525, each parity claimed the land under Zimmerman; Arthurs by deed from Zimmerman’s executor; King under a deed executed by Zimmerman in his lifetime to Baseom, in pursuance of a parol contract with Boyer, as alleged. Held that Boyer and Baseom were incompetent to prove the contract and delivery of the deed. The privity between the decedent and adverse survivor, in each of these cases, is manifest. In the latter, Sterrett, J., said: “ In construing the act, it has been held that where one of two parties to a transaction is dead, the survivor and the party representing the deceased stand on an unequal footing as to the knowledge of the transaction occurring in the lifetime of the deceased. The proviso was intended to exclude parties to the transaction from being witnesses in regard to it when the opposite party is dead and his rights have become vested in others, by his own act or by operation of law.” Craig v. Brendel, 19 P. F. Smith 153, decided in less than a year after Karns v. Tanner, illustrates the principle where privity was not an element. Craig purchased the land at sheriff’s sale as the property of Brendel, brought ejectment, died, and his devisees were substituted. Brendel never claimed title; it was in his wife; and he was held a competent witness. After referring to Karns v. Tanner, Agnew, J., said: “It will be observed that there Parker and Tanner stood in the relation of opposing parties to the same, matter or contract of lease, and also in relation to the thing itself which was the subject of their contract or lease.” “But the present case is essentially different. While it may be considered as true that John Craig, the devisor of the plaintiffs, is their assignor in law, according to Karns n. Tanner, yet Frederick L. Brendel, the defendant here, who was offered as the witness, does'not stand p.s the party opposite to them in the thing or transaction which is the subject of the controversy in this suit.” We need not note the remarks in effect that Brendel was competent and his wife not; the gist of the reason for Brendel’s competency was absence of privity of any transaction between him and John Craig relative to the land in controversy. He was not called to testify to anything that had occurred between him and Craig, and could not have been, for nothing had passed between them.

Samuel Titus, one of the defendants, ivas offered as a witness, in his own behalf, to prove such actual possession as had vested title in himself, and was excluded for incompetency, “ because Daniel Billman, whose estate still holds the legal title, as shown, by the plaintiffs in this suit, is dead, having in his lifetime conveyed only an equitable interest to the parties.” The first thing that arrests attention is the absence of privity between Billman and Titus. There is no semblance of contract relation. Nor are their respective titles links of the same chain. Before Billman had an interest in the Brady tract, while he lived, and since his death, Titus claimed the land in suit as part of the Hepburn warrant. The plaintiffs, holding under Billman and others, demand nothing beyond the Brady survey. Aside from location of the original tract line, Titus sets up title under the Statute of Limitations, the very nature of which excludes its derivation from Billman. There was no proposal to prove by Titus anything that Billman ever said or did, and plaintiffs point to nothing tending to show that there ever was any communication between them respecting the land. If the survivor is incompetent, where will competency begin when some grantor in the chain of title of the opposing party is dead ? Can it be that if one party derives title through or under a deceased grantor, however remote, neither can be a witness ? Proximity or remoteness of the deceased grantor is of no consequence, for the true inquiry is, has death sealed the lips of one party to a ..transaction of which both had knowledge ? The proviso was not intended to exclude a party in such a case as this, and we are of opinion there was error in rejecting the offer set forth in the eleventh assignment.

•To understand the evidence, and rulings of the court, it must be kept in view that, since May 1st 1832, Wilson and those under him have had .the deeds for that part of the Hepburn tract adjoining the Brady; that Titus owned no land adjoining that in dispute; and that the land in suit was unimproved and unenclosed woodland, except a fraction of an acre at one end enclosed to extent its occupant claimed. The learned judge was clearly right in his instructions to the jury upon the evidence before them, and none of the assignments of error relating to the charge and answers to points can be sustained.

Judgment reversed, and a venire faeias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Sterreti

license: Public Domain

text:
    The People’s Fire Insurance Company versus Hartshorne and Company.
    1. In a suit upon a premium note given in consideration of a policy of insurance, in a mutual insurance company, the defendants, to relieve themselves of liability thereon, alleged that the company was guilty of fraud in the manner of making its assessments, and offered evidence to show that assessments had been made largely in excess of the unpaid loans and losses of the company, and that defendants were assessed for losses which occurred prior to the date of the premium note, when defendants became members of the company. Held, that this evidence was properly admitted.
    2. The plaintiff asked the court to instruct the jury, that their verdict should be for the interest due on the note, the assessments claimed and interest thereon from the .time they were severally payable. The court refused, and instructed the jury that the liability of defendants must be determined, by them from t-he evidence. Held, that this was not erroneous, but it may be rebutted by showing fraud, illegality or gross mistake in making the assessments. The onus of rebutting it is on the defendant and wide latitude should be allowed.
    3. The insured of a mutual insurance company are 'not liable to pay losses or expenses that occurred prior to the date when.they became members of said company.
    June 4th 1879.
    Before Sharswood, C. J., Mercur, Gordon Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, of Lycoming county: Of May Term 1879, No. 127.
    In the court below, The Peoples’ Fire Insurance Company of Pennsylvania, had filed a lien in the nature of a judgment against F. M. Hartshorne & Co., on a premium-note given in consideration of a policy of insurance. This judgment was opened and an issue directed, to try how much was due thereon from the defendants to the plaintiff. The defendants pleaded “ nil debet.”

      The plaintiff is a mutual insurance company, incorporated by Act of Assembly, March 9th 1843, and by a decree of the Court of Common Pleas of Cumberland county, made April 17th 1871, its name was changed to that which it at present bears. On the 4th of May 1869, F. M. Hartshorne and M. L. Clay, doing business as E. M. Hartshorne & Co., obtained an insurance in this company on a steam planing-mill and fixtures situated in the city of Williamsport, and in consideration thereof, signed and delivered to the company plaintiff a premium note for $2000, bearing interest at the rate of 5 per cent, the interest payable annually in advance, and the principal “ at such times and by such instalments as the board of directors shall demand, and order pursuant to the act of incorporation and rules and regulations of the said company.”
    By the provisions of its charter, the company had the right to enter a lien in the nature of a judgment for the amount unpaid on any of its premium-notes and to issue an execution for so much as might be due thereon by reason of assessments or interest, on filing a memorandum of such notes and the amounts due thereon in the prothonotary’s office of the county in which the insured property was situated. In pursuance of this right a lien was entered in the prothonotary’s office of Lycoming county, on the premium-note given by Hartshorne & Co., and an execution issued to enforce the payment of their assessments, and the unpaid interest which had occurred on this note. On the application of the defendants, this execution was stayed and rules granted to show cause why the judgment should not be opened and to show cause why the judgment should not be stricken off. After argument on these rules in the court below both were made absolute. A writ of error was taken to the decree of the court making these rules absolute, and the Supreme Court reversed the decree (see report of case 3 Norris 453) making absolute the rule to strike off the judgment, allowing the decree to open the judgment to stand. The record was remitted to the court below, and an issue ivas then formed to try how much was due from the defendants to the plaintiff upon the judgment.
    When the plaintiff filed its lien, there ivas appended thereto, a certificate, setting forth that certain amounts were due on assessments made on the premium-note of defendants. These assessments were two in number, one of 10 per cent., made on May 13th 1872, and one of 20 per cent, made on January 18th 1873. There was also an item of $270 interest claimed on deposit note and interest on the two assessments from December 18th-1873, forty-five dollars.
    At the trial before Mayer, P. J., the defendants proposed to prove by a witness, that he had been connected with the Peoples’ Fire Insurance Company and the Cumberland Mutual Fire Insurance Company, for some thirty years; that he became the secretary of the company in 1851, and continued to be secretary until the assignment was made for the benefit of the creditors, on the 5th of March 1878; that this company made assessments upon the 13th of May 1872 and January 18th 1873; that these assessments were for loans contracted prior to the 14th of May 1869, the date of premium-note given by F. M. Hartshorne to this company; that said loans amounted in the aggregate to $40,000, all of which were contracted prior to the premium-note given. They also propose to prove .that in the year 1869, this company made an assessment of $18,653.05, and on the 23d of February 1871, an assessment of $46,787.40, and on the 13th of May 1872, an assessment of $48,345, and on the 18th of January 1873, an assessment of $97,540, making a total assessment of $211,326.05. That the total amount of loans and losses due by the company prior to January 18th 1873, including loans made as' far back as 1865, was but $87,345.99, showing that there was an excess of assessments of $123,981.06 over the total unpaid loans and losses.
    . This offer was to show, first, that the defendants in this case were not liable for the loans contracted prior to the 14th of May 1869, the date of their premium-note.
    Second, that the company was guilty of fraud in levying so large an assessment to pay so small an amount of loans and losses.
    Plaintiff objected to that portion of the offer in regard to the assessment made for the year 1869. Also, to any testimony relative to any assessments other than the two in issue, no matter whether prior or subsequent; that any testimony with regard to any other assessments except those in suit in this case, was clearly irrelevant.
    The court overruled the objection and admitted the evidence.
    Defendants .also proposed to show, that statements were issued by the company, sent to the different members thereof, and that they show the amount of the loans and losses that these assessments were levied to pay. This for the purpose -of showing that all the losses, amounting to $41,000, were made prior to the time that Mr. Hartshorne became a member of the company.
    Plaintiff objected, that the testimony in the case, is that this note was not assessed for anything that occurred prior to that date, and that these statements do not prove, that the assessment was made on this note for the purpose of covering anything prior to the date of the note.
    Objection overruled and evidence admitted.
    The plaintiff submitted the following point, to which is appended the answer of the court:
    On the pleading and evidence in the case, the verdict should be for the plaintiff, for the interest due on the note, the assessments claimed and interest thereon from the time they were severally payable.
    Ans. “We decline to affirm this point as stated. The extent of the liability of the defendant must be determined by the jury from the evidence.”
    The following was the third point of the defendant, with the answer of the court thereto:
    That the defendants are not liable for any loans made prior to May 4th 1869, the date of the premium-note, and no assessment can'be made upon the note to pay the same.
    Ans. “We affirm this point. Under the rules of law applicable to mutual insurance companies, the defendants would not be liable for any debts or liabilities of the company created prior to the time when they became members of the company, and as all the loans were made prior to that time, they could not be assessed on their premium-note to pay them.”
    In the general charge the court, inter alia, said:
    “ No member of the company is liable for any losses or expenses incurred prior to the time that he became a member of the company.

      “ [In this case the defendants would not be liable upon any assessments made upon the premium-note to pay 'any losses or expenses that accrued prior to the 4th day of May 1869. They were not members of the company prior to that date, and not bound to pay any such losses and expenses.] * * *
    “ It is alleged by the defendants, that they are not responsible for that portion of the debts of the company which are set forth in an exhibit made by the company in June 1873, and for the payment of which, it is claimed, these assessments of defendants were made. That there is a large number of losses made by the company, as exhibited in their statement, for which the defendants are not liable by the terms of their contract. From this statement an exhibit, dated June 2d 1873, it appears that this company did make a large number of loans from various persons, and the persons to whom these loans are respectively due are set forth in this statement. All of them, I believe, without exception, were made prior to the 4th day of May 1869, the time when the defendants became members of the company.
    “We are of the opinion, and so instruct the jury, that no member of the company would be liable for any loans made .prior to the time that he became a member.
    “ Although the company may have borrowed the money for the purpose of paying losses that they had sustained, yet only those members of the company, who were members at the time the losses occurred, and for the payment of which these loans were made, would be liable *to assessment upon their premium-notes. [In this case if the jury find from the evidence, that the assessments of the 13th of May 1872, and of the 18th of January 1873, were levied for the purpose of paying loans which had been made by the com-' pany, prior to the time that the defendants became members of the company, there can be no recovery in this suit for such assessments.
    “ If you find that any portion of the debts of the company, for which these several assessments were made, including any of the loans set forth in this exhibit of June 2d 1873, they must be thrown out of the computation in making the assessment, for the defendants would not be liable for their payment.]
    “ [In your verdict you must determine what amount of these assessments the plaintiff is entitled to recover, if at all, and having ascertained that amount, there would be interest upon it from the time the assessments were due and payable.] On the $1600 note there would be interest recoverable, deducting the payments which have been made. "The note bears interest on the $1600, at the rate of 5 per cent, per annum, deducting the payments which have been already made.”
    The verdict was for defendants, when plaintiff took this writ and assigned for error the admission of the evidence set forth above, the answers to points and the portions of the charge in brackets.

      J. H. Mitchell, J. J. Metzgar and J. M. Weakley, for plaintiff in error.
    If debts of the company remained after the former assessments had been collected, the defendants were assessable for such indebtedness, and the fact that they had paid other assessments was no defence in the present suit: West Branch Ins. Co. v. Macklin, 16 P. F. Smith 34. The defendants had already proved that their note was not assessed to pay any losses which accrued prior to their membership. The statements themselves could not disprove this nor anything material to the issue. Interest is payable absolutely by the terms of the contract. There was no evidence that any payments were made on account of interest. The plaintiff was entitled to binding instructions for this portion of his( claim. There was no-evidence to show fraud or gross mistake.

      Henry W. Watson and Henry O. Parsons, for defendants in error.
    The insured were not liable for losses which occurred prior to the time when they became members of the company: Wilson v. Trumbull Mutual Ins. Co., 7 Harris 375. What amount was due from defendants to plaintiff was a question of fact from the evidence, and was properly submitted to the jury. The jury found there was nothing due. The defendants alleged fraud, which they had a right to show under the authority in Hummel’s Appeal, 28 P. F. Smith 325, and the jury found that we did prove fraud. The instruction in regard to interest was fair, in view of the fact that the company had by their own showing assessed the defendants for loans contracted before they were members of the company, and had endeavored to make them pay an assessment which was largely • in excess of the loans and losses of the company.
    October 6th 1879.
   Mr. Justice Sterreti

delivered the opinion of the court,

The judgment entered by the plaintiff pursuant to the provisions of its charter was opened and the defendants let into a defence. The question for the jury was how much, if anything, was due by the defendants to the company. It was substantially upon this issue the case was tried and submitted to the jury.

When the defendants became members of the company they submitted themselves to the action of the directors, as their representatives, and were bound by all the assessments made by the board, unless they could show that they were illegally made, that there was either fraud or gross mistake. The presumption is that the directors, representing the members of the company, made the assessments properly. The secretary’s certificate as to the assessments is prima facie evidence of their correctness, but it may be rebutted by showing either fraud, illegality or gross mistake in making the assessments.

The offers of evidence to which the first and second assignments relate were made for that purpose, and we cannot say that the testimony was irrelevant. It might be impossible to show illegality or gross mistake in particular assessments, if testimony as to previous losses, assessments'and revenues of the company was excluded. The company has a right to rely in the first instance on the prima facies of the secretary’s certificate. The onus of rebutting it, by proving illegality or gross mistake is on the defendant, and for this purpose great latitude should be allowed. If the transactions of the. company have been fair and legal, its records will exhibit the fact, and no injury can result from an examination of its affairs. It was claimed moreover by the plaintiff that defendants were liable to assessment for losses and for money borrowed or advanced to pay losses Avhich occurred before they became members of the company. To meet this position they were entitled to introduce testimony as to previous losses and assessments made to meet the same. The defendants alleged and endeavored to prove that the receipts of the company from assessments, premiums, &c., very largely exceeded its aggregate losses and expenses.

The court instructed the jury that defendants were not liable for assessments to pay losses or expenses that accrued prior to May 4th 1869; that they were not members of the company prior to that date, and not bound to pay any such losses and expenses.

The essential principle on which mutual insurance companies are organized, is that each member will pay his proportionate share of expenses incurred, and losses which happen during the period of his membership. The plaintiff has no reason to complain of the instruction given. While it claimed the right to assess for losses and money borrowed to pay losses that occurred before defendants became members, the plaintiff disclaimed having exercised the right; and alleged that they were assessed only for losses which occurred during their membership.

The court was requested to charge that “ on the pleading and evidence in the case, the verdict should be for the plaintiff, for the interest due on the note, the assessments claimed and interest thereon from the time they were severally payable.” The court refused to affirm the point, saying: “ the extent of the liability of the defendants must be determined by the jury from the evidence.” There was no error in this. To have affirmed this point as presented, would have been a binding instruction to the jury to disregard all of defendant’s testimony, and render a verdict for the full amount of plaintiff’s claim. This was asking too much. The plaintiff was not entitled to such sweeping instruction as this, when there was some testimony at least for the consideration of the jury. In the concluding part of his charge, the learned judge instructed the jury to determine from the evidence what portion, if any, of the assessments the plaintiff was entitled to recover. And having ascertained that amount, to allow interest thereon from the time the assessments were due and payable. “ On the $1600, there would be interest recoverable, deducting the payments that have been made. The note bears interest on the $1600, at the rate of five per cent, per annum, deducting the payments that have been already' made.” The attention of the jury was thus specially called to the interest on the note, one of the items embraced in the point which as a whole was refused, and rightly so. We have no means of knowing why the jury failed to find anything either for interest or principal. It must be presumed that they obeyed the instructions of the court, and it.may be that they found the payments referred to as already made, fully covered the interest. If the jury made a mistake or disobeyed instructions, the court had an opportunity of applying the appropriate remedy, when the case was before it on the motion for new trial.

It may be that error intervened to the prejudice of the plaintiff, but if so, it has not been made sufficiently manifest to justify us in reversing the judgment.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    In re rule upon John S. Bastian, Sheriff of Lycoming county.
    1. A sheriff may, in the absence of any notice or rule to pay the money into court, apply the proceeds of a sale of real estate to the liens; but he does so on his own responsibility and is liable on his official bond for any mistake.
    2. Where parties are not satisfied for the sheriff to make distribution, they can always prevent it by a proper application to the court in seasonable time; but it comes too late when made long after the return day of the writ and after the sheriff has in good faith applied the money to the liens.
    June 5th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Woodward, J., absent.
    Certiorari to the Court of Common Pleas of Lycoming county: Of May Term 1879-, No. 129.
    This writ was taken by John S. Bastían, sheriff of Lycoming county, to an order of the court in the matter of a rule on said sheriff to show cause why an attachment should not issue against him for contempt in not answering a rule of said court.
    The following facts, together with those contained in the opinion of this court, will sufficiently state the case:
    William Weightman obtained a judgment in the Court of Common Pleas of said county, against Peter Ilerdic, to No. 209, September Term 1878. Upon this judgment an execution was issued to No. 155, September Term 1878, E. D., and by virtue thereof the sheriff sold certain real estate of the defendant, Peter Herdic, specifically described in his return to said writ, for the sum of $46,425. The said real estate was purchased by William Weightman, a lien-creditor of the defendant in said judgment, through his attorney R. J. C. Walker, Esq. A deed was executed, acknowledged in open court and delivered by the sheriff to the purchaser at said sale. This deed was subsequently placed on record. In his return to said writ, the sheriff stated that he had applied said purchase-money as follows: To first mortgage of William Weightman, the sum of $16,036.31, and the balance of said proceeds of sale, after paying certain specific liens and the costs, to wit, $24,988.49, upon a second mortgage of said William Weightman. By this application a number of liens upon the real estate sold, intervening between the said two mortgages of William Weightman, did not receive any of the proceeds of said sale.
    In an opinion, the court, Mayer, P. J., inter alia, said:
    “ The Act of 20th of April 1846 provides, ‘ that whenever the purchaser or purchasers of real estate* at Orphans’ Court or sheriff’s sale, shall appear from the record to be entitled, as a lien-creditor, to receive the whole or any portion of the proceeds of said sale, it shall be the duty of the sheriff, administrator, executor or other person making such sale, to receive the receipt of such purchaser or purchasers for the amount which he or they would appear, from the record aforesaid, to be entitled to receive, &c.
    “ ‘ It shall be the duty of the said sheriff, in all cases where he shall receive the receipt of the purchaser as aforesaid, to state the fact in the return of the proceedings of said sale, and attach thereto a list of the liens upon the property sold, which said return shall be read in open court on some day during the term, to be fixed by the order of courtand if the right of said purchaser or purchasers shall be questioned or disputed by any person interested, the court shall thereupon appoint an auditor, who, after due notice given to the persons interested, in such manner as the court may direct, shall make a report distributing the proceeds of such sale, with the facts and reasons upon which such distribution is made, or to direct an issue to determine the validity of said lien, and all further proceedings shall be stayed until the said issue shall be decided.’ It is not pretended that the sheriff complied with the requirements of this Act of Assembly. The writ was not read in open court at a time fixed by the court, and the other lien-creditors had no opportunity to contest the right of Mr.' Weightman to receive said deed and have the money applied to his liens, to the exclusion of the intervening lien-creditors. The deed was acknowledged in court, regardless of the duty imposed by this act upon the sheriff, and the other lien-creditors had a right to suppose that the sheriff had in his hands the money arising from said sale, applicable to their judgments. Whether a want of compliance by the sheriff with the requirements of the statute will affect the title of the purchaser, is is not necessary now to consider and determine. That the sheriff has been derelict in his duty cannot be controverted. Had the sheriff read in open court his return, and attached thereto a list of the liens upon the property sold, as was his duty, it would have appeared that there were intervening liens upon the property sold entitled to the fund realized from the sale, which had priority over the second mortgage of Weightman. The Act of April 20th 1846, is imperative: ‘It shall be the duty of the sheriff.’ Having neglected to comply with the positive^ requirements of this Act of Assembly, the sheriff is answerable to the process of this court for his neglect in this particular, and as the lien-creditors of said Peter Herdic, who have judgments intervening between, the first and second mortgage of said Weightman, have had no opportunity to contest the right of said Weightman to have the entire proceedings of said sale applied upon his liens, and as it is not disputed that there are intervening liens upon the property sold, between said two' mortgages, and these lien-creditors claim that they are entitled to be paid from the proceeds of said sale, it is ordered that the sheriff pay into court, within ten days from notice of this order, a sufficient amount of the proceeds of said sale to cover the debt, interest and costs of the judgments that intervene between the two mortgages of the said Weightman, and an auditor is hereby appointed to distribute said fund, when paid into court, together with the fund already paid into court which arose from said sale. The sheriff cannot shield himself behind the return made to said writ No. 155, September Term 1878. He has failed to discharge a duty imposed upon him by the statute, and it is our duty to enforce a compliance. Upon a failure to comply with this order, an attachment is directed to issue against the sheriff.”
    Bastían took this writ, and alleged that the court erred, 1. In granting a rule on the sheriff to return his writ and pay into court the money arising from the sale of the real estate of Herdic. 2. In granting the rule to show cause why an attachment should not issue against said sheriff for contempt in not answering the foregoing rule. 3. In deciding that the return Avas made under the provisions of the Act of April 20th 1846. 4. In making the order to bring so much of the proceeds of said sale into court to cover the intervening judgments under penalty of attachment. 5. In not discharging the rule for an attachment.

      JR. P. Allen and John J. Metzgar. for plaintiff in error.
    The sheriff had the right to make the return. A sheriff may himself distribute the proceeds of a sale on execution, but at his OAvn risk: Wateman v. Conyngham, 1 Pet. C. C. 243; Mather v. McMichael, 1 Harris 303.
    The rule granted on the 3d of March was, in effect, one for an attachment against the sheriff if he refused to alter his return when it was impossible for him to do it. A sheriff is responsible for his return, and the court cannot compel him to alter it: Vastin v. Fury, 2. S. & R. 431; Sawyer v. Curtis, 2 Ash. 127.
    The several parcels of property were all mortgaged to William Weightman, and were respectively sold on judgments entered and recovered on bonds secured by the respective mortgages. The sales thus' made would divest the liens of the respective mortgages, and the judgments would take the proceeds of the sales of the respective properties by virtue of the liens of the mortgages: McCall v. Lennox, 9 S. & R. 303; Donley v. Hays, 17 Id. 400; Cronister v. Weise, 8 Watts 215; Bank v. Chester, 1 Jones 282.
    The rights of Weightman were secured at the time when he recorded his mortgage. He then knew Avhat other property Herdic OAvned upon which the judgments then entered against him were a lien, and if the value of this other real estate was sufficient to secure these judgments then against him, Weightman was safe in loaning his money and taking the mortgages as security, at least so far as related' to the prior general liens, and no subsequent lien-creditor could interfere with this right: Miller v. Jacobs, 3 Watts 477; McDevitt & Hays’s Appeal, 20 P. F. Smith 377. See also Aldrick v.
      Cooper, 2 L. C. in Equity 198, note, page 218. Hence we contend that the return of the sheriff as made was in accordance with the law of the case.
    There is nothing in the return of the sheriff to indicate it was made under the Act of 1846. The return, on the contrary, shows on its face that not one of the purchasers could have demanded of the sheriff to have made a special return under said act.

      W. II- Armstrong, II. O. Parsons, J. O. Parker and II. T. Ames, for lien-creditors.
    It may be admitted, as argued, that the court cannot compel the sheriff to alter his return as to matter of fact. He has made the money and refused to obey the exigency of his writ by producing it to the court. No matter touching the execution of his writ is in question, but only the law of distribution. The sheriff has usurped the function of the court. He is not responsible. It is not pretended that he could personally respond to the amount of this misappropriation, if it should be held to have been erroneous. Nor is he relieved by the amount of his bail,, which is only $10,000. The controversy has relation, not only to the practice, but to the power of the court. If the act of the sheriff is beyond control, and the party must look only, as contended here, to the personal responsibility of the sheriff and his hail, it opens wide avenues of fraud, and restricts the court in the control of its executive officer, and in that function of its power which is of its largest and most frequent exercise, and liable beyond all others, to abuse by subordinate officers.
    It is not deemed necessary to comment upon the Act of April 20th 1846, known as the Lien-Creditor Act. The appellant admits that the proceeding is not within it, and yet it is evident that the application was made to the several mortgage-debts as returned upon the ground, and upon , that only, that they were first liens, and that by reason of it the purchaser was not obliged to pay his bid, and the sheriff was authorized by law to award the money to his liens.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

This cause, though spread over a large surface, presents but a single question, and one not difficult of solution. The proceeding in the court below was a rule upon the sheriff to show cause why he should not be attached, as for a contempt, in not paying into court the proceeds of the sale of certain real estate, sold by him as the property of Peter Herdic, under an execution issued out of the Common Pleas of Lycoming county, No. 155, September Term 1878, for the sum of $46,425. To the rule for an attachment, the sheriff answered substantially, that he had prepared and completed his return to said writ gbout the first day of September 1878, although, by inadvertence, it was not actually filed in the prothonotary’s office until the 29th of November following, when, at the same time, he paid into the hands of the prothonotary the sum of $8690.75, being the balance remaining undistributed; that the rest of the money made upon said execution had been applied to the liens entitled to the same; that the deeds to the purchasers of the respective properties were made and acknowledged at September term of the court, prior to the issuing of any rule upon the sheriff, and without objection on the part of creditors or any other persons. No notice was given to, or rule taken upon, the sheriff to pay the money into court until the 19th day of November 1877, at the term of the court next after the sale. The sheriff having declined to pay in the money for the reason that he had already applied it to the liens entitled, as he avers, to the same, the court below made absolute the rule for an attachment, which order is assigned for error.

The real cause of controversy is, that the sheriff applied the sum of $24,988.44 to the mortgage of William Weightman, of date of 16th May 1876, when there were sufficient prior judgments to have absorbed the whole of it. But these prior judgments, as we gather from the record, were liens upon other real estate amply sufficient to protect them. In fact, the. same had been already sold upon proceedings issued out of the United States Circuit Court, and a fund raised thereby ample to pay said judgments awaiting distribution in that court. We do not propose to discuss here the question of the legality of the distribution made by the sheriff. He has taken the responsibility, and is liable to a suit on the part of the disappointed creditors. It will be a sufficient answer to such suits to show that he has applied the money as the law would apply it. If he has not,- he is liable upon his official bond. That a sheriff may, in the absence of any notice or rule to pay the money into court, apply it to the liens, is well settled. He does so, however, upon his own responsibility, and is responsible on his official bond for any mistakes. The rule is correctly stated in Mather v. McMichael, 1 Harris 302. “ He (the sheriff) may, if he will, pay the money into court according to the command of his writ, and where ignorance or doubt exists, or controversy is threatened, his safety lies in this course. Because of the expense and delay attendant upon it, this ought not to be done where the officer sees his way clear; yet, if he choose to undertake distribution, it is, unquestionably, on his own responsibility.” We need not multiply authorities upon so plain a proposition. When parties are not satisfied for the sheriff to make distribution, they can always prevent it by a proper application to the court in seasonable time. But it comes too late when made long after the return-day of the writ, and after the sheriff has, in good faith, appliéd the money to the liens.

The learned judge of the court below, based his ruling, to some extent, upon the fact that the sheriff has failed to comply with the Lien Creditors’ Act of 20th of April 1846, which provides for a special return in cases where a lien-creditor is the purchaser at a sheriff’s sale. An examination of the return in this case, shows that it was not, and could not properly have been made under this act. William Weightman, the mortgage-creditor, to whose mortgage the fund was applied, bought a number of tracts of unseated land, and paid the money therefor to the sheriff. The remaining properties, and by far the most valuable, were purchased by R. J. C. Walker, J. W. Maynard and others. This position was practically abandoned upon the argument.

The order of the court below, of March 8th 1879, directing the sheriff to pay into court, within ten days, a sufficient amount to cover judgments and costs that intervene between the two mortgages of William Weightman; and further directing an attachment to issue against said sheriff upon his failure to comply with said order, is reversed and set aside, at the costs of the creditors, upon whose behalf said order was made.


author:
Mr. Justice Mercur
      Mr. Justice Trunkey

text:
    O’Hara versus Stack.
    1. In matters of faith and doctrine, churches are left to speak for themselves, but when rights of property are in question, courts will interfere.
    2. The profession of a priest is- his property, and a prohibition of the exercise of that profession by his bishop, without accusation or hearing, is contrary to the law of the land.
    3. The right of a priest to the revenues of his church derived from pew-rents and voluntary offerings, though uncertain in amount and there is no specified salary, is a right of property which the law will recognise.
    4. A Homan Catholic bishop forbade a priest in his diocese to exercise any priestly function, and removed him from the church in which he ministered without assigning him to another, although the bishop denied that such removal was by way of punishment. This was done without an accusation, hearing or trial. The priest had no fixed salary, but derived an income from the rent of the pews in the church. Held, that the act of the bishop was unlawful, and that a court of equity would interfere on behalf of the priest.
    5; In courts of equity, costs are in the sound discretion of the chancellor. They do not necessarily fall on the wrong party as they do at law.
    6. Per Sn akswood, C. J. — It appeared to me, that whether the appellant had or had not the power which he assumed and exercised over the appellee, that in reason and good conscience he was bound to make known to him the ground of his proceeding. * * * In concurring in the decree of affirmance, all that I meant to decide and all that-I think was meant to be decided was, that under the special circumstances of the case, the judge below exercised a sound discretion when he refused to impose all 'the costs on the appellee.
    June 6th 1879.
    Before Sharswood, O. J., Merour, Gordon, Paxson, Trunkey and Sierrett, JJ. Woodward, J., absent.

      Appeal from the decree of the Court of Common Pleas of Lycoming county: Of May Term 1878, No. 70. In equity.
    Bill in equity filed by the Rev. M. P. Stack against the Rt. Rev. William O’Hara.
    The bill averred that plaintiff “ is a regularly ordained priest in the ministry of the Catholic Church, and was appointed by Bishop Wood, in 1866, pastor of the non-German Catholics of Williams-port ; that he was charged with the duty of organizing a parish or congregation, procuring means to erect a church and of ministering the same; that by diligent application he was successful in these objects, and the Church of the Annunciation was built and dedicated in 1868, and from that time he was and remained, and .avers he is entitled to remain the duly constituted pastor of said church without let or hindrance; that as suchpastor he has been in the enjoyment of an annual income derived from renting of pews and other perquisites, and avers he is entitled to a continuance of the same.
    “That the Diocese of Scranton, in which said church is situated, was erected in 1868, out of the Diocese of Philadelphia, and Rt. Rev. William O’Hara became its Bishop.
    “That on the 6th of November 1871, plaintiff received from Bishop O’Hara the following note :
    “ Rev. M. P. Stack.
    “ Rev. Sir: Your administration of the affairs connected with the Church of the Annunciation has been such that I feel myself compelled to remove you, and leave the church vacant. And I now forbid you to exercise any priestly functions in Williamsport, even to say mass. This prohibition binds sub gravi. You may call on me at Scranton, and I will inform you of my further intention in your regard.
    “ November 5.
    “ W. O’Hara,
    “ Bp. Scranton.”
    . “ And avers that he believes the said Bishop adheres to his determination to remove him, the plaintiff, from said church, and to deprive him of his revenues, rights and perquisites, and to close the church against him and the congregation entitled to worship therein; that the congregation are attached to their priest, and their wish is that he be not removed; that the plaintiff is not aware of any act done or left undone by him to justify ecclesiastical censure or punishment, and no such act or thing has been designated; that no formal or regular accusation, investigation or trial has been had, or any opportunity afforded him to disprove or explain any supposed fault or offence; that the intended removal and enforcement thereof upon the grounds alleged is unwarranted by the law of the Catholic Church, and is contrary to the law of the land; that the prohibition binding ‘ sub gravi” is also contrary to the law of the Catholic Church, and is an attempt, by an exercise of arbitrary power, to prevent the plaintiff from asserting and enjoying his rights:
    “ And prays as follows :
    “ 1. That the removal, or attempted removal by the bishop of the Rev. Mr. Stack as pastor of the Church of the Annunciation, was .unlawful and void.
    “ 2. That the prohibition of the defendant, directed .to the plaintiff, forbidding him to exercise any priestly functions in Williams-port, even to say mass, was unlawful and void.
    “ 3. That defendant be restrained by injunction from removing the plaintiff as pastor of said church.

      “4. That the defendant be restrained against prohibiting the plaintiff from saying mass and exercising priestly functions in Williamsport, and that plaintiff be restored to his rights and emoluments as they existed and were enjoyed by him on the 5th of November 1871, and before the note of that date from the bishop was addressed to him.
    “ 5. That the defendant be restrained from interfering with the exercise of his office of pastor of said church, except as provided by the laws of the Catholic Church.”
    The defendant answers:
    “Admitting that plaintiff iyas regularly ordained priest by Right Rev. James F. Wood, Bishop of Philadelphia, and avers that the office was held by him, subject to the laws and rules of discipline of the Catholic Church; denies that he was charged with the duty of collecting a congregation, as that service was performed by the predecessor of the plaintiff, but admits that he procured means for the erection of a church building; that such church was erected, and plaintiff administered in the same, under the direction of his bishop; that the fee-simple title to the church property was in Bishop Wood, and was by him transferred to defendant after the erection of the Diocese of Scranton; denies that the plaintiff is entitled to remain, or still is the pastor of said church, but avers that plaintiff was appointed to said charge, and was, under the rules of discipline in force in the said church, liable to remain as such pastor or to be removed or transferred elsewhere by his bishop, and that as a voluntary member of said church all the rights of plaintiff to be and remain, and to perform the faculties of such pastor, are received from and held in subordination to his bishop, as shown by the declared will of said church.
    “Admits that plaintiff has had an annual income derived from the renting of pews, but that such income was uncertain, both in nature and amount, and denies that he is entitled to a continuance of same.
    “ That the Diocese of Scranton embraces, inter alia, the county of Lycoming, in which is situated the Church of the Annunciation.
    “Admits that he sent the plaintiff the letter of November 5th 1871, and that by that act he removed the plaintiff from his office; that the plaintiff acquiesced in the removal, delivered up possession of the property, and consummated the removal by reporting at Scranton, as directed; that defendant removed the plaintiff by full authority, vested in him and all bishops in the United States by the acts and decrees of said church, defined to be ‘ that power which the bishop has from the acknowledged discipline in these provinces (the United States) of depriving any priest of his charge or of transferring him to anotherthat it is the duty of a bishop to assign priests to charges, and to remove or transfer them as he may judge is proper for the best interests of religion; that the plaintiff swore to serve the missions of this diocese under obedience to the bishop.
    “ Denies that it was his intention, either express or implied, to close the church against the congregation, and avers that neither the contributors, pew-holders or congregation, or any of them, are of parties to the bill or of interest in the cause.
    “Avers that he is not informed, save by the bill, that the congregation are attached to the plaintiff or do not wish him removed; avers that neither the letter of removal nor the removal in fact was of the nature of ecclesiastical punishment or censure; that it was his intention to appoint the plaintiff to another charge, which he afterwards expressed to plaintiff, before service of process in this case, and denies that the law of the church required he should make any formal accusation or institute any trial or allege any fault on the part of plaintiff, and denies the removal was unwarranted by the law of the church or contrary to the law of the land, but avers it was an act of ecclesiastical discipline authorized by the law of the church, and not within the jurisdiction of civil authority.
    “ Avers that obedience was due from the plaintiff, and that ‘sub gram’ was an ecclesiastical expression asserting the gravity of disobedience; denies that this prohibition is contrary to the laws of the church, but was dictated by conviction of episcopal duty.
    “ Avers that plaintiff had the right of appeal from any act of the bishop to the archbishop, from the archbishop to the primate, and from the primate to the patriarch, but the plaintiff has not sought within the church any correction of that wherein he feels himself aggrieved.

      “ That the questions raised are purely of an ecclesiastical character, and there is no jurisdiction in the civil courts over the person of defendant or the subject-matter.
    “ Prays to be dismissed with costs.”
    The other material facts were these: “ There had been in Williams-port for some years quite a large Catholic congregation, composed both of Germans and English, that attended service in one church called the Church of St. Bonifacius.„ The English-speaking Catholies increasing in numbers, Bishop Wood, in the year 1865, appointed the Rev. P. F. Sullivan in charge for the purpose of collecting a congregation of non-German Catholics. He remained in charge about a year. A lot for a church edifice was purchased, and a deed in fee-simple for the same to Bishop Wood, bearing date the 16th day of April 1866, was obtained and placed on record. The Rev. hi. P. Stack was appointed by Bishop Wood to take chai’ge of this congregation of non-German Catholics about September 1866, and remained in charge until the first part of November 1871, and during his ministry a church edifice was erected on the lot formerly purchased.
    “ The church was dedicated to worship in the year 1868. The Rev. Mr. Stack assisted, by obtaining contributions, in the erection of the church.
    “ The city of Williamsport remained in the Diocese of Philadelphia until 1868, when the Diocese of Scranton was established, and Williamsport was included within the limits of the new diocese.
    “The Right Rev. William O’Hara became the bishop of this diocese in July 1868, with his residence at Scranton. Bishop Wood, by deed bearing date the 17th of September 1869, conveyed the title of the lot, on which the Church of the Annunciation was built, to Bishop O’Hara, the defendant in this case.
    “ On the 5th of November 1871, Bishop O’Hara wrote to the Rev. M. P. Stack the note set forth in the foregoing abstract of the bill.
    “ On the same day the bishop wrote a letter to the Rev. J. Koeper, the pastor of the Church of St. Bonifacius, in Williams-port, as follows:
    “ Rev. J. Kceper. .
    “ Rev. Dear Sir: I enclose you $600, which I wish you to pay to Mr. McCrystal, or his attorney, Mr. Norris. There is a sheriff’s writ against the church of the Annunciation ; it can be sold at any moment. Should this sum not be sufficient, pay the balance yourself, and then I will remit it to you. You will also take charge of all things connected with that church, such as vestments, furniture, books, &c., and keep them under your custody. They can remain in the house and church, but you will keep the keys. You may baptize and attend the sick, but nothing else.'
    “I am much pained to adopt this severe course, but the state of things in that congregation is such that I would consider myself wanting in duty to allow it to continue any longer,
    “November 5.
    “Yours in X,
    “W. O’Hara,
    “Bp. of Scranton.”
    Within a day or two after the date of the foregoing letters of the bishop, the Rev. Mr. Koeper called upon the Rev. Mr. Stack, and showed him the letter he (Keeper) had received from the bishop. He received from Rev. Mr. Stack the registers of baptism and. of marriage, and a sacred vessel of the church; he also obtained a set of keys of the Church of the Annunciation, which had been in the custody of the sexton. The Rev. Mr. Stack retained his set of keys. x
    On or about the 8th of November 1871, the plaintiff went to Scranton to see the bishop, and had an interview with him on that or the following day.
    . On the next day the Rev. Mr. Stack wrote from Scranton to the Rev. Mr. Keeper, as follows :
    “ Scranton, Luzerne Co., Pa., Nov. 9th 1871.
    “ Rev. J. Kcbper.
    “Dear Friend: Things have gone very well with me at headquarters. I have been treated kindly and considerately. The bishop says he will give me a mission of good income and free of debt. He thinks, very properly, that I do not relish the idea of paying off debts, or engaging myself with brick and mortar. He further suits my wish by affording a vacation of some ten days, at the expiration of which he will have prepared the mission desired, as above.
    “ He holds to his intention of punishing the Irish congregation of Williamsport; says he will not send a priest there for some time. On reflection, I think this course may prove beneficial. I intend going to Friendsville with Slattery, for Sunday, and preaching for the natives. I will be in Williamsport on Wednesday of next ■week, at furthest, and proceed at once to your residence.
    “ Until then and ever believe me yours truly,
    “M. P. Stack.”
    On the week following his interview with the bishop, the Rev. Mr. Stack returned to Williamsport, and on or about the 26th of November he opened the church with the keys in his possession, and addressed the congregation, and stated his purpose of contesting the legality of the bishop’s action.
    On the 1st of December 1871, he filed the bill in this case. Eight members of the congregation and pew-holders therein joined in the bill, but upon their petition, arid by leave of the court, withT drew as parties complainant, before answer was filed.
    A large amount of testimony was taken before the examiner, upon the question of the law of the Catholic Church.
    The case was referred to a -master, Robert P. Allen, Esq., who, inter alia, reported:
    “ The complaint of the Rev. Mr. Stack is, that he was, contrary to the discipline of the Catholic Church, removed, by his bishop, from the charge of the congregation of the Church of the Annunciation,-and that he was thereby deprived of an annual income derived from the voluntary contributions and the renting of pews by the members. The plaintiff has not shown that he made an effort to obtain redress within the church.
    “ Had the plaintiff such a right of property in his salary as pastor, as to entitle him to claim the protection of a court of. equity, to reinstate him as pastor for the purpose of continuing the-enjoyment by him of such salary ? The plaintiff can claim no-right of property in the church lot and building; the title to that is in the bishop, and the congregation are not alleging any violation of trust in the real estate on the part of the bishop. If the church had been endowed and had afforded a fixed annual income for the benefit of the pastor officiating in it, then the right of property claimed by the plaintiff would be obvious upon his showing his right to the office o.f pastor, but the amount which may be realized annually depends upon.the will of others who may see fit to rent pews or make contributions. The position of pastor of this voluntary religious association is not a civil office created by the law of the land and governed by the law which created it, and the title to which the courts would determine as a right under the law.
    “ ‘ Where an office is held during the pleasure of the appointing power, a removal may be either express, that is, by a notification that the officer is removed, or implied, by the appointment of an-, other person to fill the same office. An office held during pleasure is not distinguishable from other cases of revocable authority.’ * * * But when an officer holds for a specified term of years,- ‘ if he shall so long behave himself well]’ there is no implied conviction of misbehavior, nor any implied removal for that cause, arising from- the appointment of another person to fill the same office:’ Bowman v. Slifer, 1 Casey 29.
    “Where an appointment is during pleasure, or the power of removal is- entirely discretionary, there the will of the appointing or removing power is without control, and no reason can be asked for, nor is it necessary that any cause should be assigned: Full v. Commonwealth, 8 Casey 481; Ex parte Hennen, 13 Pet. 230. Where the power to remove is discretionary, no malice will be presumed in making a removal, and no damages can be recovered unless malice be shown: Burton v. Fulton, 13 Wright 151.
    “ The tenure of ministerial officers, under the laws of this statej is generally at pleasure: Field v. Directors of Girard College, 4 P. F. Smith 233; Reynolds v. Bussier, 5 S. & R. 460.
    “ The above cases show that the courts will not interfere, in cases of removals from civil offices, where the removing power is discretionary or where the tenure of office is at pleasure. In these civil offices the emoluments or salaries are provided either by legal fees or fixed salaries, and the courts must protect them in the enjoyment of the rightful holders, the same as other rights of property.
    “ In the present case the salary which was received by the Rev. Mr. Stack, as pastor, was uncertain, and depended upon the voluntary contributions and voluntary renting of pews by the members of the congregation. The plaintiff cguld not sue the congregation or any of its members for any salary; the bishop placed him in charge of the congregation, and, under the discipline of the Catholic Church, the congregation had no choice in the selection of their pastor.
    “ Where the deed conveying the property and buildings of a church is silent as to the mode of electing a minister and his continuance in office, and makes no provisions for his salary or support, for which he is wholly dependent upon the voluntary contributions of the church members, a court of equity will not interfere to enjoin his removal by a vote of the church: High on Injunctions, sect. 236, quoting Porter v. Clark, 2 Sim. 520.
    “ Even granting that the right of the bishop, under the law of the church, to remove the plaintiff, as pastor of the congregation, in the manner in which the removal was made, was doubtful, but considering the tenure of the ecclesiastical office of priest in the Catholic Church in this country, and the great power, which it is admitted the bishops claim and have heretofore exercised over the priests, without any redress from the pope at Rome, who is the chief law-making power, and considering the fact that the exercise of this power by the bishops has been recognised by the decrees of the Catholic Church in ‘the United States, in Plenary Council, first assembled in 1829, and last, as late as in 1866, and then considering that the right of property involved, in the removal of the plaintiff as pastor, is his right to receive an uncertain support, arising alone from voluntary contributions and renting of pews, the funds from which cannot be taken as equivalent to a benefice, or honorarium, or bona ecolesiastioa, under the laws of the church, the conclusion is forced upon the mind of the master that there are no such rights of property involved in the questions raised by the bill and answer, as to justify a court of equity in granting a mandatory injunction to reinstate the Rev. M. P. Stack as pastor of the Church of the Annunciation, as he held the same on the 5th day of November 1871, and before he received the note of that date from the bishop.
    “ The want of jurisdiction- in a court of equity to grant the prayer of the plaintiff, is also shown by the fact, that the court would be powerless to give to the plaintiff the fruits of a decree in his favor. The gravamen of the bill is the loss of the plaintiff’s salary by reason of his removal, but if the court would reinstate him, he would not get any salary, unless the congregation saw fit to give it voluntarily, and they could not be compelled by decree to make contributions or rent pews for the benefit of the pastor, especially in a church where the doctrine is inculcated that the superior can withdraw the faculties which a priest must receive from him for the proper care of souls.”
    The plaintiff excepted.
    After argument, the evidence, master’s report and the exceptions thereto*were carefully examined and considered by the court below. As appears from the opinion delivered by the learned president judge of the court, the master’s finding of facts and conclusions of law were corrected, and it was decreed:
    1. That the removal by the defendant of the plaintiff as pastor of the Church of the Annunciation, in Williamsport, for an alleged offence, as ordered by the letter of the defendant to the plaintiff, dated the fifth day of November 1871, without regular accusation, hearing or trial, was unlawful.
    2. That the prohibition and disfranchisement of the plaintiff by the defendant, as ordered in his letter to the plaintiff, dated the fifth day of November 1871, forbidding the plaintiff to exercise any priestly function in Williamsport, founded upon, and as punishment for said alleged offence, was unlawful. .
    3. That the exceptions by the plaintiff to the report of the master are sustained, so far as they are consistent with this decree, and so far as they are inconsistent therewith, they are overruled.
    And that the defendant pay costs. From this decree the bishop appealed.

      J. O. Parker, A. Sydney Biddle and George W. Biddle, for appellant.
    The court had no jurisdiction of the case. The subject-matter of the jurisdiction of courts of chancery is civil property, and it is apparent that the act complained of infringed no civil right of property in the plaintiff. Courts of chancery in this state have never assumed jurisdiction over even unincorporated societies formed for social or beneficial purposes merely, unless there be a clear civil right of property in question, and voluntary societies for religious purposes have even a higher immunity. Our constitutional protection to liberty of conscience and freedom of religious worship, establishes a broad distinction between religious and other voluntary societies. To many religious bodies, their forms of church government are nearly, or quite as essential as their principles of religious belief, and .they are protected by the constitution. The income of a priest, being derived from the renting of pews, &c., is too uncertain and fluctuating, and is not a sufficient right of property. In this country the priest is ordained by the title of mission. The mission is synonymous with diocese, and this title of ordination, therefore, establishes a mutual obligation between the priest and the diocese (to serve the missions of which he is ordained), the one to serve and the other to furnish a living. Therefore, the plaintiff looked to the diocese of Scranton for his living, and his bishop was under moral obligation to furnish him such living within that diocese, by assigning him to such special charge therein as might seem fitting to him— the, bishop. Had the plaintiff a right to a fixed salary, the infringement of even such a right could not he corrected in a court of chancery: Chase v. Cheney, 10 Am. Law Reg. (N. S.) 302; Bouldin v. Alexander, 15 Wall. 139.
    The want of jurisdiction is manifest, too, from the fact that this court would be powerless to give the plaintiff the fruits of a decree in his favor. Even if reinstated, no court could compel a single Catholic to attend or contribute to the church where plaintiff officiated. If aggrieved by the act of his bishop, the plaintiff has an adequate remedy at law. Therefore, the only additional remedy for which the plaintiff could ask, would be an order of this court to reclothe the plaintiff with all his priestly faculties, and to' place him in statu quo he stood before he received the letter of removal. It would be idle to claim that this court had any such power. The most they could do would be to place him in position to receive the voluntary perquisites and offerings of such of his former people as chose to contribute, and if wronged-by the loss of those uncertain revenues, an action at law would afford an adequate and ample remedy: Bouldin v. Alexander, 15 Wall. 139; Garten v. Penick, Am. Law Reg., May 1871, p. 305; Clark v. Evangelical Society, 12 Gray (Mass.) 17. The defendant holds title under no express trust, and none of those who contributed to the erection of the ■ church, or who are pew-holders therein, are parties to this bill. See Leslie v. Burne, 2 Russ. 119; Porter v. Clark, 2 Simons 520. If injured, the plaintiff should first exhaust his remedies within the church: German Reformed Church v. Seibert, 3 Barr 282; Henderson v. Hunter, 9 P. F. Smith 343.
    • The bishop had a right, according to tha law of the church, to remove the plaintiff. Removal is not like suspension. Suspension implies punishment. Removal inflicts no punishment, implies no fault. Its only effect is to prohibit the exercise of priestly faculties in the place from which the priest is removed. His faculties remain for full and free exercise in any other place in the Sacred Mission, or diocese, to which his bishop may assign him. Throughout these United States, where the church is on a missionary basis, the bishop of each diocese has supreme control of every separate charge or congregation therein. The congregations themselves have no voice in the selection of priest or pastor. The bishop, and he alone, selects and assigns to each that pastor who is, in his judgment, best fitted for the charge. And this appointment is ad libitum, not for life, or years, or during good behavior. This absolute power of appointment carries with it, as a necessary incident. absolute power of removal of the priest, and this right in the bishop is distinctly recognised again and again in the general legislation of the church and in positive terms conceded to the bishops in this country by decrees of the councils who have legislated for the American branch of the Catholic Church. It is a right reposed in the sound discretion of the bishops, to be exercised as they think fitting in the Lord for the best government and interests of their whole charge: Pastoral of the Prelates of the Baltimore Council of 1866 ; Constitutions of the Second Synod of Philadelphia; R.e-mick Theologia Moralis, p. 34. The removal was not contrary .to the law of the land. On entering the church, the plaintiff voluntarily subjected himself to her discipline and held his rights subject to her law.

      W. S. Price and William H. Armstrong, for- appellee.
    The letter of the bishop to the plaintiff was at once an accusation, sentence and infliction of punishment. A grave crime or offence on the part of Father Stack is officially assumed, and the penalties inflicted are removal, which involves deprivation of his living and a prohibition sub gravi. These are recognised ecclesiastical punishments ; and inevitably attendant upon such a procedure is the irreparable injury to the reputation of the priest and his future usefulness in the church. These proceedings are contrary to the law ■of the Roman Catholic Church. By it a superior can only proceed against his subordinate after inquiry and trial: Corp. Jur. Can., lib. V., tit. 1, de Accusationibus ; Cone. Tridentenum (Leip. ed.) 254; Pontif. Rom., part 1, p. 88; Plenary Council of Baltimore, sects. 76, 77; Smith’s Elements of Eccl. Law 381. Even if the action of the bishop was in accord with the law of the church, .it weuld be contrary to the law of the land. No man shall be condemned without a hearing, is a maxim of fundamental law: In re Brook, 111 E. C. L. R. 416; Field v. Commonwealth, 8 Casey 478; Kerr’s Appeal, 8 Norris 97.
    An individual does not part with his personal rights or rights of property by becoming a priest in the Roman Catholic Church, 'and what is submitted in the argument for the appellant, about Father Stack being a voluntary member of the church, does not go to the point of the controversy. The laws of the church bind the bishop equally with the priest, and they are valid only so far as they are not contrary to the law of the land. If any corporation were to enact a by-law, or any voluntary association were to establish a rule or law, which should, as between officers or members of the body, constitute one a judge in his own complaint, and profess to authorize him summarily to condemn the person complained of, in his absence, without a hearing, and then, by way of sentence or punishment, expel him, can there be any doubt that such by-law, rule or law would be held to be absolutely void ?

      To the appellant’s suggestion, that the right of a bishop to appoint priests to churches necessarily implies that he has the power to remove them at pleasure, we reply that the power of appointment and the power to remove a priest are distinct powers. 'The cardinals choose the pope, but can they remove him ? By the common law, as long ago as Brogy’s Case, 11 Coke 99 a, it was determined that the power of amotion did not pass by a grant to elect, as an incident to it. The courts of Pennsylvania have authority to redress any wrong committed within its limits by any body of men, except only the legislature of the state: Kerr v. Trego, 11 Wright 292. The plaintiff has personal rights pertaining to his office as pastor of this church. The mere uncertainty of .the amount will not leave him without remedy: Fry v. Jones, 2 Rawle 11. He has likewise a property in his profession, which the law will recognise : Burns’s Adm’r v. Steward’s Adm’rs, 3 Dessaus. 478; Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, Id. 278.
    When the charter of a society, or the law or discipline of an unincorporated assoeiation, provides for an offence, directs the mode of proceeding and on conviction of a member authorizes his punishment by expulsion, if the proceedings are not irregular the expulsion is conclusive; but if the proceedings are found by the court to be irregular, the expulsion will be declared void. “ The courts have jurisdiction to keep such tribunals in the line of order and to prevent abuses.” And the regularity of the proceedings must be affirmatively shown by the officials who are called upon to justify what they have done: Commonwealth ex rel. Bryan v. Pike Beneficial Society, 8 W. & S. 247; Washington Beneficial Society v. Bacher, 8 Harris 425; Commonwealth ex rel. Fischer v. German Society, 3 Id. 251; Evans v. Philadelphia Club, 14 Wright 107; Green v. African Methodist Society, 1 S. & R. 254; Kisor’s Appeal, 12 P. F. Smith 428; Kerr’s Appeal, supra. There could be no appeal from the bishop in this case, because there would be no record to review. There was no form of judicature observed. Mere priests have no right of direct recourse to the pope: Bouv. Inst. Theology, vol. 1, pp. 446 — 7. If they have any recourse, it is only ex gratia.

    The acquiescence by the plaintiff in an illegal act of the defendant would not legalize it: Bishop of Natal, 3 Moore’s Privy Council Cases, N. S. 115.
    October 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This bill was filed by the pastor and eight members of the congregation and pewholders of the Church of the Annunciation, in Williamsport. It prayed substantially that the bishop be restrained by injunction from removing or attempting to remove the appellee as pastor of said church, and also against prohibiting him from exercising priestly functions in Williamsport; and further asked, that he be restored to his rights and emoluments as they had previously existed and been enjoyed by him. Upon their own petition, and by leave of the court, all the complainants, except the appellee, withdrew before answer was filed. When the learned judge came to enter a decree he found the relations and attachments of the congregation towards the appellee had so changed, and the wise and prudent conduct of its present pastor had so secured its confidence and regard, that he thought it unwise to disturb the existing relations. He therefore refused restoration. He decreed that the removal of the appellee as pastor of the church, and also the prohibition and disfranchisement, forbidding him to exercise any priestly functions in Williamsport, were unlawful; yet, in a spirit of. conciliation and compromise, he restricted the liability of the bishop to pay costs, so far as to exempt him from the payment of any bill of the appellee. From that decree, thus imposing a part of the costs on him, the bishop has taken this appeal.

The practical question before us is so narrow, that we deem it unnecessary to discuss the numerous matters involved in the bill and answer. The single question we will consider is whether the appellant has just ground to complain of the decree. The rules and discipline of the church, the cause of religion and the good order of society, justly authorize the bishop to remove a priest from his charge for cause, and to transfer him from one parish to another, as he may deem proper. In this case the' appellee was not transferred to another parish. Whether without any specific accusation against a pastor, and without giving him any opportunity for hearing or trial, the bishop can remove him from his charge, without assigning him to any other, and prohibit him from exercising all priestly functions, present grave questions. The appellee is a regularly ordained priest of the Roman Catholic Church. In 1866 he was duly appointed, by the bishop of the diocese, to the charge of this congregation of non-German Catholics. He continued its pastor until the 5th November 1871. By letter of that date, Bishop O’Hara., the appellant, wrote the appellee, saying:

“ Rev. Sir: Your administration of the affairs connected with the Church of the Annunciation has been such that I feel myself compelled to remove you, and leave the church vacant. And I now forbid you to exercise any priestly functions in Williamsport, even to say mass. This prohibition binds sub gravi. ■ You may call on me at Scranton, and I will inform you of my further intention in your regard.”

On the same day, the bishop also wrote to the Rev. J. Keeper, pastor of the Church of St. Bonifacius, in Williamsport, informing him that the sheriff had an execution against the Church of the Annunciation, so that it was liable to be sold, and enclosed him money to pay the execution. He further proceeded to say: “ You will also take charge of all things connected with that church, such as vestments, furniture, hooks, &c., and keep them under your custody. They can remain in the house and church, but you will keep the key. You may baptize and attend the sick, but nothing else. . I am much pained to adopt this severe course, but the state of things in that congregation is such that I would consider myself wanting in duty to allow it to continue any longer.”

In pursuance of this direction, Mr. Keeper took possession of the registers of baptism and of marriage and a sacred vessel of the church, and also of the set of keys that were in the possession of the sexton, but not of the set of keys in the possession of the appellee. Afterwards, the latter opened the church, addressed the congregation and stated his purpose to contest the legality of the bishop’s action. About one week thereafter he filed this bill.

The letter of the 5th November complains in general terms of his administration of affairs connected with the church, but charges no sj>ecific act, either of omission or of commission, showing in what particular it was not satisfactory. He is not informed whether the complaint refers to spiritual or to temporal affairs. It gives no information sufficient to enable him to answer and refute the complaint. It neither gives, nor indicates any intention of giving, him permission to inquire the reasons for his summary removal. At one and the same moment a vague charge is made, the edict issued and the sentence pronounced. The answer of the appellant avers no specific cause for the removal, and the evidence fails to disclose any.

In pursuance of the bishop’s permission to call on him at Scranton, tEe appellee did so. The uncontradicted testimony of the latter in regard to that interview is: “I saw Bishop O’Hara in his residence on or about the 9th November 1871, but he neither ■made definite his charge nor gave any trial, nor revoked his letter, but wished me to resign my parish at Williamsport, making vague promises and stating general conditions of a better one if I would resign.”

It is a maxim of fundamental law that no man shall be condemned without a hearing. A hearing assumes notice of the specific grounds of complaint, and a reasonable opportunity for answering them. In all matters of faith.and of doctrine churches are left to speak for themselves. When rights of property are in question, civil courts, will inquire whether the organic rules and forms of proceeding prescribed by the ecclesiastical body have been followed: Nopp et al. v. St. Mark’s Lutheran Church of Butler, not yet reported; Kerr’s Appeal, 8 Norris ; and if followed whether they are in conflict with the law of the land. Any rule or proceeding whereby a man’s property is swept away from him /without a hearing, trial or judgment, or the opportunity of making known his rights therein, is not according to the law of the land within the meaning of the 9fch sect, of the Declaration of Rights: Brown v. Hummel, 6 Barr 86; McAuley’s Appeal, 27 P. F. Smith 397.

Had the appellee such a right of property in the revenues of his church and in his profession as to authorize a court of equity to inquire into the matter of his removal ? He had no specific salary. His income was derived from rent of the pews, Sunday collections, subscriptions and offerings. The Roman Catholic Church makes the support of its pastors one of the commandments of the church. Its precept requires the members of the congregation to contribute to the support of their pastor. It is declared to be a sin of omission, to omit anything willingly, which is commanded by God or Ms church. While the precise sum the appellee might receive, could not be ascertained in advance; yet the sum of which he was in the actual receipt was so large, that it is not alleged to have been inadequate to his proper support. A man’s profession is his property. The appellee was not only deprived of his right of property as pastor of that particular church; but he was also prohibited from exercising any priestly functions, as a means of support, elsewhere. The literal reading of the order forbade the exercise of such functions in Williamsport. Inasmuch, however, as he had been assigned to no other parish, the effect was, to close the doors of every parish against him. The strong arm of the church was laid upon him. All means of support were denied to him, and a stigma was cast on his reputation. The sub gravi of the prohibition was a reminder that his administration was of so grave a character, that any disobedience to the order of prohibition, would be a grievous sin. The harshness of the bishop’s conduct was well ^designated in his letter to Mr. Koeper, as “this severe course.”

The Act of 16th June 1837, and its supplement of the 14th February 1857, expressly give Courts of Common Pleas of the several counties of the Commonwealth, the supervision and control of unincorporated societies or associations. In granting injunctions, not only acts contrary to law, may be enjoined, but also those contrary to equity: Stockdale v. Ullery, 1 Wright 486.

Then, without reviewing the conflicting opinions as to the ecclesiastical power given to the bishop to deny to a priest the exercise of all priestly functions, without assigning any cause, we cannot assent to the doctrine that the pastor’s right of property may thus be stricken down, and he be prohibited from following his profession, without accusation, and opportunity for a hearing and trial. If it is not contrary to the laws of the church, which we are not prepared to admit, it is contrary to the supreme law of the land. The appellant has no just cause to complain of the decree.

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

Mr. Justice Trunkey

filed a dissenting opinion, in which Mr. Justice Sterrett concurred.

A motion was subsequently made for a re-argument, which was refused, Chief Justice Sharswood, on the 19th of January 1880, delivering the following opinion :

The motion for re-argument is refused. I desire to add for myself that I think that the learned counsel of the appellant have misapprehended the opinion and decision in the case. I did not and do not understand that it settled anything as to the powers and rights of the bishops of the Roman Catholic Church over the priests. The only decree of the court below adverse to the appellant was that upon the subject of costs. In courts of equity costs are in the sound discretion of the chancellor. They do not necessarily fall on the losing party as they do at law. It appeared to me that whether the appellant had or had not the power which he assumed and exercised over the appellee, that in reason and good conscience he was bound to make known to him the ground of his proceeding, that neither he nor the church might be left to conjecture that it was conduct which affected his character as a clergyman. In concurring in the decree of affirmance, all that I meant to decide and all I think that was meant to be decided Was that under the special circumstances of the case, the judge below exercised a sound discretion when he refused to impose all the costs upon the appellee.

Motion refused.


text:
    Bryan versus Trout, Administrator, &c.
    The 49th section of the Act of June 13th 1836 requires the sheriff to attach houses and lands, “ by leaving a copy of the writ with the tenant or other person in actual possession, holding under the defendant in the attachment.” To a writ of foreign attachment, issued under said act against real estate, the sheriff returned that he “ had served the writ on T., garnishee, and as to defendant, nihil." Held, that this return was insufficient to warrant a judgment for plaintiff, as it did not show that T. held under the defendant.
    May 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sterrett, J. absent.
    Error to the Court of Common Pleas of Blair county: Of May Term 1879, No. 25.
    On the 8d of January 1876, Thomas A. Trout, administrator of Richard Bryan, issued a writ of foreign attachment in assumpsit against John M. Bryan, in which the sheriff -was directed to attach certain real estate, and to summon the defendant and said Trout as garnishees. In the praecipe for the writ, Trout was described as the owner of the premises. The sheriff returned that he had attached the said real estate, “ by service of this writ on Thomas A. Trout, garnishee, and as to John M. Bryan, nihil.” There was no publication of this writ. On motion, judgment was entered for the plaintiff on October 9th 1876, for want of an appearance, and the damages assessed by the prothonotary. The real estate attached was subsequently taken in execution under this judgment and sold to plaintiff, and he received the sheriff’s deed therefor, duly acknowledged, on the 15th of October. 1877. Defendant took this writ and alleged that the court erred in entering judgment for plaintiff.

      Samuel S. Blair, for plaintiff in error.
    The sheriff’s return did not show that the garnishees held under the defendant, as required by the Act of June 13th 1836, Pamph. L. 580, Purd. Dig. 718. It was therefore not sufficient: Hayes v. Gillespie, 11 Casey 115; Sterrett v. Howarth, 26 P. F. Smith 440.

      Frederick Jackel and H. M. Baldridge, for defendant in error.
    —The spirit of the Act of Assembly was followed in all. the proceedings. The writ was served on a garnishee, a party in possession.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

9. The mode of serving the writ of foreign attachment is prescribed by the Act of 13th June 1836, Pamph. L. '580, Purd. Dig. 718. Where real estate is attached it is as follows: “ It shall be the duty of the sheriff to leave a copy of the writ with the tenant, or other person in actual possession, holding under the defendant in the attachment, and to summon him as garnishee.” The act further provides, that if there be no person in actual possession, service shall be made by publication. In this case, the sheriff made return that he attached the real estate described in the writ, by serving it “on Thomas A. Trout, garnishee,” and nihil as to the defendant. That this return was insufficient, is settled- by Hayes v. Gillespie, 11 Casey 155. It was there held that the return must conform to the Act of Assembly, and that where the writ is served on a tenant, or other person holding under the defendant, the fact that the tenant does so hold must appear by the return. See also Lambert v. Challis, cited in note to Hayes v. Gillespie, where the same point was decided by the present chief justice when president judge of the District Court of Philadelphia. To the same point is Sterrett v. Howarth, 26 P. F. Smith 438. It follows that neither the person of the defendant, .nor his property. was before the court by the return of the sheriff, and the entry of judgment against him for want of an appearance was-erroneous.

. Judgment reversed. ,