with proper instruc ions, though on request i made. corporation to recover damagas for The Court must give a case to the jury failure to file the annual report will not be revived againse the personal representatives of a deceased trustee. Appeal from an order reviving and. severing this action as to the executors of G. C. Collins, deceased. On the ac ep'ance of an application by for the premium when he has agreed to The return of a policy to the agent of An exception to a non-suit on the whole. This action was commenced by a creditor of the “La Abra Silver Mining Co.," a corporation created under the laws of this State, against trustees who failed to publish an annual report as required by law. During its pendency one of the defendants, George C. Collins, died, and on motion for that purpose, an order was made at Special Term reviving the action, and severing it so that it might proceed This action was brought upon a policy against the executor. The executor apof insurance on plaintiff's house. It appeals. peared upon the trial that plaintiff apHeld, That the action was for a pen-plied to the defendant's agent to change alty. The provisions of the statute by his insurance. No company was named, which it is authorized appear to be se- but the agent was directed to get a verely punitive. Such actions do not policy in a good one, to cancel and resurvive at common law. This action turn to the Andes Insurance Co., for does not survive by the Revised Statutes. which he was also agent, a policy of that 2 Rev. Stat., (Edmonds) p. 467, sec. 1, Company, held by plaintiff, and he was permits the maintenance of actions to credit plaintiff with the return pre-. against the wrongdoer, or his executors mium, the balance of which plaintiff was or administrators, after his death, for to pay. The agent sent to defendant for wrongs done to the property, rights, or the policy, and received it. No rate of insurance had been agreed upon with the plaintiff, and no premium was paid. The latter surrendered his policy in the Andes Company to the agent, who had before that taken the surrender of policies, and had canceled them, and his acts had been approved by his principal. There was no physical defacement of the policy, in this case, but the agent received it, laid it down on his desk, and left it there, where it remained until, after the property insured was destroyed by fire. Plaintiff after the fire took back the Andes policy. At the close of all the evidence the plaintiff was non-suited. Plaintiff excepted, but did not ask the Court to submit the case or any question of fact to the jury. interests of another. But this action is not to redress a wrong either to the property, rights or interests of plaintiff. It is not necessary for its maintenance that the creditors should have sustained any injury or damage by violation of the law out of which it springs. It does not come within the provisions of section one aforesaid. The action cannot be revived against the executor of the defendant Collins; it ceased with his death. Order reversea. Opinion by Brady, J.; Daniels, J. concurring; Davis, P. J., dissenting. INSURANCE-FIRE. NEW YORK COURT OF APPEALS. Held, 1. Error; that the Court should have given the case to the jury with prop er instructions, 2. That plaintiff's direction to the wealth, as shall hereafter become memagent to insure in a good company was bers of the congregation, and who adan authority to apply to the defendant here to and maintain the system of reli(50 N. Y. 402); that the application sent gious principles declared and established by the agent to defendant, was plaintiff's by the Reformed Presbyterian Synod of application, and as soon as it was accepted North America, of which the Rev. Docby defendant the contract became com- tors Wylie and Crawford are now officiplete, and plaintiff was bound for the ating ministers." premium, and defendant to indemnify him in case of loss. The real estate, the subject-matter of this suit, was conveyed to the Corpora3. That the return of the Andes policy tion, March 14, 1850, "To and for the to the agent was in effect a cancellation only proper use and behoof of said conof it, and the taking of it afterwards by gregation, their successors and assigns forplaintiff or his attorney could not revive ever." the contract, or make a new one. tiff, moreover, had a right to take cautionary measures, and it was for the jury to say what was the meaning of his act. Plain- On the 12th of June, 1868, the Reformed Presbytery of Philadelphia, subordinate to the said Reformed Presbyterian Synod of North America, and to which the Fifth Church, incorporated as before stated, was attached, taking exception to certain proceedings of the Synod, by which it was alleged a member and an elder of the First Church was unwarrantably suspended, and the constitutional rights and jurisdiction of the Presbytery unlawfully interfered with, passed inter alia, a resolution declaring 4. Where the Court at Circuit nonsuits the plaintiff on the whole case, and he excepts thereto, he is not required to ask specifically to be allowed to go to the jury, upon the whole case, or upon any question, to enable him to present his exception to a Court of review. Judgment reversed, and new trial ordered. Per curiam Opinion Folger J., dis- the proceedings of the Synod contrary to senting. the standard of the Reformed Presbyterian Church, to its book of discipline, its terms of communion, its formula of JURISDICTION-CONGREGATION- ordination, and to numerous acts upon its AL CHURCH. SUPREME COURT OF PENNSYLVANIA, Steed et al. v. McAuley et al. Decided Oct. 11, 1875. Presbyterian church polity. There is no power in the Synod to exscind a church. The authority of the congregation can be expressed only by a congregational meeting regularly called. Judicial sentence. The Fifth Reformed Presbyterian Congregation of Philadelphia was incorporated by the Court of Common Pleas, under the Act of October 13, 1840. record, &c., &c.; and declaring their relations with said Synod suspended until its action should be revoked or until they obtained further light; claiming, in the mean time to remain in the Reformed Presbyterian Church, maintaining her organization, &c., &c. This resolution, with an accompanying protest, being duly presented to the Synod at its session in May, 1869, the Synod by resolution declared, that the Reformed Presbytery of Philadelphia, mainly by its own act, having declined the authority of the General Synod of the Reformed The Section 2d of the Articles of Incor- Presbyterian Church and withdrawn from poration vested the corporate powers in its jurisdiction, the officers and members those subscribing thereto, "and such thereof are hereby declared to be withothers, being citizens of the Common-out the jurisdiction of the General Synod; that such officers and members of the Thus without notice, without trial, withSecond and Fifth Congregations of Phil-out cause shown, and indeed without ofadelphia, who may not identify them- fense, the Fifth congregation is literally selves with the act of secession of blotted out, and its rights and franchises the Philadelphia Presbytery, but forfeited. avow their adherence to the General It will not be pretended by any one Synod of the Reformed Presbyterian acquainted with Presbyterian polity Church, be declared to be the Second and that the defendant could be unFifth Congregations of Philadelphia, churched by an arbitrary decree of the "with liberty to place themselves under Synod without notice or trial, even supthe care of the Second Presbytery of posing the admitted act to have been Philadelphia; and that Presbytery, upon contumacious and worthy of censure. So application, authorized to receive them." far as it appears from the records of the The plaintiffs, representing a small mi- case, they are members in full and regu nority of the congregation of the Fifth lar standing in the Reformed Church, Church, accepting the decree of the and as such are amenable to the lawful Synod, and seceding from the majority, rules and regulations of the General because of their supporting the action of Synod, whatever may be the status of the the Presbytery, filed their bill claim- body of which they are corporators. As ing that they were de jure the Fifth to the congregation in its general and congregation, and that the defendants, corporate capacity, nothing has been representing the majority and in posses- shown to indicate that it does not adhere sion of the church, wrongfully withheld in spirit and letter to the "system of rethe same from them, and also unlawfully ligious principles declared and exhibited hold and exercise the corporate fran- by the Reformed Presbyterian Synod of chises to and for the use and benefit of North America." the majority, alleging that the detend- As a congregation it has been guilty ants have voluntarily and without just of no insubordination. True it was repcause withdrawn from the Reformed resented in the Presbytery that passed Presbyterian Church of North America, the offensive resolutions, but over its and from the jurisdiction of the General representatives it had neither power nor Synod. control, they being answerable to the Presbytery and Synod alone. The defendants admitted that they supported the action of the Presbytery A Presbyterian congregation does not as taken on the 12th of June, 1868, but select its delegates to a higher court of at the same time they denied that they the Church pro re rata. The pastor is refused proper obedience to the Reformed not strictily the representative of his Synod; on the contrary they alleged charge. He is not a Presbyter by virtue that they always had been and still were of his office as pastor of a particular in due subordination to the authority of church, but in virtue of his ordination. that body. He is as much entitled to a seat in the Held, That by the exscinding resolu- Presbytery without a charge as with tions of the Synod the Presbytery was one. Even the lay representative, who put without the pale of synodical com- must be an elder, is chosen by the sesmunion, and its charter dissolved or at- sion composed of elders elected for life tempted to be dissolved; for no provision or during goed behavior. The Congrewas made for them as churches, but only gation has no voice in the selection of for such officers and members thereof as such representative, and he may or may might not identify themselves with the not, according to circumstances, repre alleged secession of the Presbytery, sent the sentiment of the church. The congregation is therefore powerless in the hands of its church courts, and can not be justly charged with the vote of its delegates in either Presbytery or Synod. A congregation as such has but one constitutional method by which it can express itself. And that is by a congregational meeting regularly called. We may concede that the first, in the case mentioned, might be arbitrarily exercised, because that involves but a matter of church polity which, from its very nature, must rest largely in the discretion of the superior court; but the exercise of the second in such manner, involving as it necessarily must important civil rights, cannot be tolerated. Had the synodical decree which we are asked semblance of legal process, it might have been sustained; but as it is wholly without such foundation it must be regarded as singular and void. The only congregational action shown in the case is that resolutions proposing to enforce been founded upon some a union with another general body were submitted,and having been referred to the session, were indefinitely postponed, showing that the congregation of the Fifth Church was not prepared to sever its connection with the Reformed Presby terian Church. By the organic law of the Presbyterian Church, Dr. McAuley continues to be the pastor, and Messrs. Dittie, McMunn and McKeever continue to be members of the Session of the Fifth Church. It is not denied that they were duly elected and ordained. Where is the warrant for their deposition? Can it be pretended that the decision of the Philadelphia Presbytery could of itself work the deposition of officers who have been previously solemnly called and set apart to the several positions under laws and ordinances more ancient and venerable than the Synod itself? Unless the congregation of the Fifth Church was legally dissolved, its congregation remains intact. The decree of the Synod which sought to accomplish this result was unlawful and revolutionary. The legitimate powers of the Synod are of two kinds, legislative and judicial. Under the first it might have dissolved the Philadelphia Presbytery and assigned its church to some other existing Presbytery, or to such new one as it might choose to erect. Under the second of these powers, it might for proper cause and in due form depose any of its presbyters or dissolve any of its churches, and reorganize them. If, on the other hand, we treat the decree, as a legislative act, it is open to two objections: First, if as is contended, it operates to forfeit the property and purchase of the defendants it partakes of the value of a judicial sentence, and is for that reason inoperative. Second, as the congregation was part of a homogeneous body the act of excission was ultra vires. If such power resides So far as we can discover that body had in the Synod it has not been shown to us. no more power to exscind a church than the Legislature of Pennsylvania had to exscind a county. Giving, then, the decree of the Reformed Synod the most efficient latitude, it amounts to but a dissolution of the original compact of union, which leaves the several churches free to seek their own convictions, or to arrange themselves in such aggregations as to them may seem meet, provided they do not radically depart from the faith or doctrines under which they were organized. The decree of nisi prius is reversed and the bill of plaintiffs dismissed at the cost of plaintiff. Opinion by Gordon, J. Agnew, C. J., and Shraswood, J. dis. senting. MEASURE OF DAMAGES-PRAC- piano during the time of detention by defendant, and no greater sum, which TICE. N. Y. SUPREME COURT-GENERAL TERM, was refused and exception duly taken. FIRST DEPT. Young, Respt., v. Atwood, Applt. Decided August 24, 1875. In replevin the judgment must be for the possession of the property, and for damages for its detention, not for a gross sum in damages. The measure of damages for the detention is the value for the time of the actual detention only. Appeal from judgment recovered on Referee's report in an action of replevin. Answer. General denial. Before trial defendants offered to allow judgment for the possession of the piano, to recover which this action was brought, and $25 damages, which offer plaintiff refused to accept. The Referee, in his report, found the wrongful detention of the property, and that the plaintiff was entitled to the property, and $30 damages. On the 19th day of January, 1874, plaintiff entered judgment for $259.42, and from the judgment so entered defendant appealed. Held, The form of judgment was wrong; it should have been for the possession of the piano, or its value in case it could not have been delivered, with damages for its detention. The Referee having directed judgment entered in proper form, the irregularity should have been cured by motion, and not by appeal. Permission to plaintiff to show that he had been offered $10 a month for three months' use of the piano, was error. The evidence should have been excluded, for a mere offer of another person to pay that sum for the use of the piano for three months, would not entitle plain not detained by defendant during that time. Referee found that the piano had been detained for one month and seven days, and that its monthly rental value was $10, yet assessed damages at $30. According to the time of detention, the damages should not have exceeded $12.50, The damages allowed were more than either the proof or the facts found by the Referee permitted the plaintiff to re About the middle of January, 1870, plaintiff's mother rented, in his behalf, a piano to a Mrs. C. at $10 per month. Mrs. C. was then a boarder with defend- tiff to recover it so lorg as it was ant. Shortly after Mrs. C. gave notice that she had left defendant's house, and had ordered that the piano be returned, immediately. A demand was made for the piano, which was refused. Plaintiff then made a similar demand, and was in like manner refused. A writ of replevin was sued out, on which the piano in question was returned to the plaintiff, and $40 was paid to the Sheriff, and $10 cartage. Plaintiff on the trial was allowed to show that at the time of the first demand an offer had been made by a third party to hire the piano for three months at $10 per month, and to this defendant excepted. Defendant requested the Referee to find, among other things, as conclusions of law, that plaintiff was not entitled to recover the amount offered for the piano for three months, not having pleaded the same as special damages; and further, that plaintiff was entitled to recover as damages the value of the rent of the cover. Judgment reversed, new trial ora bide dered, costs to defendant to event, unless plaintiff stipulates to reduce damages to $12.50, in which case judg ment affirmed with costs to defendant since service of offer of judgment, and costs to plaintiff up to time of offer. Opinion by Daniels, J.; Davis, P. J., concurring. |