PRESBYTERIAN CHURCH CASE. INTRODUCTION. WE propose to give as a preliminary to our report, a short account of the peculiar kind of action instituted by the plaintiffs in this case. Questions are frequently asked in regard to it; and nothing conduces so much to the satisfactory understanding of a subject, as a clear explanation of all prelusive difficulties. In fact, some such introduction as we here offer, is necessary to a clear comprehension of terms to be afterwards employed. The writ of Quo Warranto is by no means a common one in the practice either of Pennsylvania, or the other states of the Union; and, therefore, in respect to it, mere general readers are not usually possessed of even that scanty knowledge, which they frequently have acquired in respect to legal subjects of more ordinary exemplification. This writ, in its original, as a remedy provided by the common-law of England, was the commencement of a criminal proceeding. It was issued on behalf of the king, to determine the right of an individual, or body corporate, to an office, franchise, or liberty, granted, or supposed to have been granted by the crown; in other words, to inquire, quo warranto, by what authority, such privilege was exercised, and to punish its abuse or usurpation. This proceeding, being found on several accounts inconvenient, fell into disuse, and the method of prosecuting by information, in nature of a quo warranto, filed by the attorney-general, took its place, as a speedier and more advantageous process. Originally, no private person could institute, in his own behalf, the proceeding either by quo warranto, or by information; but the statute 9 Ann, c. 20., authorized the court to grant the latter form of action, as a civil remedy, in certain cases, the name of the king, however, being still employed, and the real plaintiffs appearing on the record only as informers, or, in technical language, relators. The Constitution of Pennsylvania provides, that " No person shall, for any indictable offence, be proceeded against criminally by information, except in cases arising in the land or naval forces, &c.," which clause has been construed to take away the remedy of information, or, as it is usually called, the original name being given to the substituted form, of quo warranto, as a criminal proceeding in ordinary cases. The Supreme Court, however, supporting a practice of which there had been several precedents, since the adoption of the constitution of 1799, from which the clause just quoted from that of 1838, was copied, had established its right, to issue a quo warranto, as a civil remedy, before an Act of Assembly, which passed so lately as June, 1836, and is still in force, expressly granted the power to that court, and, in certain cases, to the several Courts of Common Pleas. The act referred to, however, while in its effect, but declaratory as to the right in general, enlarges that right, and prescribes, at some length, the manner of proceeding. The writ of quo warranto, as a private remedy, issues by leave of the court, or of a judge thereof, on information or suggestion verified by affidavit. It is in every respect a mere civil process, though the name of the Commonwealth has, in our practice, taken the formal place of that of the king. The wrongs which it may be employed to redress, are diversified. Some of these are enumerated in the act just referred to; but for our present purpose it suffices to say, that it is a proper and convenient method of proceeding, to determine the right of a body corporate to exercise its franchise, or of any person or persons to hold their seats as members of such a body. As already intimated, though on the record in this species of action, the Commonwealth appears as a nominal party, prosecuting ex relatione—at the suggestion of certain persons, yet the relators are, in every respect, the only true plaintiffs. They apply for the issuing of the writ, they conduct the proceeding, and the judgment is usually for their benefit. Any number of persons, either as relators or defendants, may be joined in a single writ, if it appears to the court or judge granting the same, that their several rights may be thus properly determined. A quo warranto is in the form of a summons, commanding the parties therein named, to appear and show by what authority such party exercises the liberty and franchise described in the writ. The previous suggestion must set forth the facts of the case circumstantially. The defendant thus summoned, appears and pleads or demurs to this suggestion filed, and by the regular course of pleading, an issue either of law or of fact is joined. If the former, the cause is set down for argument before the court; if the latter, it goes to a jury; and in either case, the matter is determined in the usual way. As the Supreme Court sits at Nisi Prius, that is, for the decision of questions of fact by a jury, for the City and County of Philadelphia only, when, in the course of proceedings on a quo warranto in that Court, a fact arises proper to be tried in another county, an issue is directed to the Common Pleas of such county, to be there determined. Where, as in the present case, the issue joined by the parties is an issue of fact, the jury having found a verdict, judgment may be entered for the successful party after four days, unless within that time a motion is made either in arrest of judgment, for some error which vitiates the proceedings, appearing on the face of the record, or for a new trial, where from circumstances not appearing on the record, it seems that justice has not been done. These motions are argued before the court in bank--that is, before all the judges sitting in a body to determine questions of law; and, in the present case, are the only remedies for the unsuccessful party, since the Supreme Court of Pennsylvania is the highest tribunal in the Statethe last resort. Where judgment is given in a Court of Common Pleas, it may be reviewed upon a writ of error, issuing out of the Supreme Court, in the exercise of its appellate jurisdiction. The judgment thus entered, if in favour of the plaintiff, is that the defendant be ousted and excluded; and the successful litigant in every case recovers his costs of suit. It is manifest that such a judgment does not, in form, determine the right of any other party than the defendant, though it may do so in fact. If the due election of certain new members of a body corporate, in the place of as many old members, determine the office of the latter, and, the parties taking issue on the fact of such new election, the verdict is for the plaintiff, the judgment must, in effect, give a right of entry on the one hand, while it pronounces an ouster on the other. Until judgment is finally rendered, the last resort having been tried, the defendant continues in the exercise of the disputed right, unless the court to which a writ of error is brought, sees fit, on sufficient cause shown, to award execution, notwithstanding such writ. In the above concise view, we have confined ourselves chiefly to those aspects of the subject, which have seemed important to a clear understanding of the case here reported, to which, without further introduction, we now proceed, SUPREME COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. DECEMBER TERM-Nisi Prius-SECOND PERIOD. Before Hon. Molton C. Rogers, and a Special Jury. The Commonwealth, at the suggestion of vs. Ashbel Green, William Latta, Thomas Bradford, Solomon Allen, and Cornelius C. Cuyler. Quo Warranto, &c. MONDAY MORNING, MARCH 4, 1839-10 O'CLOCK. Counsel for the Relators, George Wood, Esq., of New York city, and William M. Meredith, and Josiah Randall, Esq'rs. of Philadelphia. Counsel for the Defendants, William C. Preston, Esq. of South Carolina, and John Sergeant, Joseph R. Ingersoll, and F. W. Hubbell, Esq'rs., of Philadelphia. Of the forty-eight jurors summoned, the lists being struck, several individuals excused, and several challenged, but eleven men were impanelled. One more being requisite to complete the jury, after some delay, the sheriff was ordered to summon, and return the next morning twelve additional men, from whom a juror might be selected. Court adjourned. TUESDAY MORNING, MARCH 5-10 o'clock. MR. RANDALL'S OPENING. The sheriff having, as ordered, made return of twelve men, to supply the deficiency in the former panel, one was selected from the number, by the parties alternately striking from the list, until but that one was left. The jury being now complete, each juror was either sworn or affirmed. The following were the names of the jurymen impanelled. Charles Wagner, James Simpson, George Mecke, Isaac Jeanes, John Burk, Mr. Randall, for the relators, then opened the case as follows: May it please your Honour-Gentlemen of the Jury:-Though this action is brought in the name of the Commonwealth of Pennsylvania, it is not to be considered in the light of a criminal proceeding. Nor does it involve any question as to the moral character of the defendants. The suit, though, nominally, a prosecution by the Commonwealth, is only a method which the law has prescribed, for determining the private rights of individuals. The object of the writ of Quo Warranto in this case is, to try whether certain persons, viz. Dr. Ashbel Green, Rev. William Latta, Thomas Bradford, Esq., Solomon Allen, Esq. and Dr. Cornelius C. Cuyler were on the 24th day of May, 1838, trustees, in a body incorporated by the Legislature of Pennsylvania, as "The Trustees of the General Assembly of the Presbyterian Church in the United States of America." In order to understand this case, it will be necessary to recur to a part of the history of the Presbyterian Church. The first Presbytery formed in the United States was the Presbytery of Philadelphia. In the year 1758, there existed two Synods, the Synod of New York and the Synod of Philadelphia. In that year they united, forming an ecclesiastical body, called the Synod of New York and Philadelphia. This organization continued until the year 1788, when, in the place of this general Synod, was instituted what was termed the General Assembly of the Presbyterian Church in the United States of America, the first meeting of which was held in the city of Philadelphia, on the third Thursday of May, 1789. On the 28th day of March, 1799, the Legislature of Pennsylvania passed an act incorporating certain persons therein mentioned, under the name of "The Trustees of the General Assembly of the Presbyterian Church in the United States of America." The sixth section of this act is as follows: "That the said corporation shall not, at any time, consist of more than eighteen members; whereof, the said General Assembly may, at their discretion, as often as they shall hold their sessions in the State of Pennsylvania, change one-third, in such manner as to the General Assembly shall seem proper: And the corporation aforesaid shall have power and authority, to manage and dispose of all moneys, goods, chattels, lands, tenements, and hereditaments, and other estate whatsoever committed to their care and trust, by the said General Assembly; but in cases where special instructions for the management and disposal thereof, shall be given by the said General Assembly in writing, under the hand of their clerk, it shall be the duty of the said corporation, to act according to such instructions: Provided, said instructions shall not be repugnant to the constitution and laws of the United States, or to the constitution and laws of this Commonwealth, or to the provisions, and restrictions in this act contained." The lowest court or judicatory known to the Presbyterian Church is the Session. This primary ecclesiastical body consists of the pastor, or pastors, and the ruling elders of a particular congregation, such elders being chosen from among the male members of the church, and holding their office for life. The next higher court is the Presbytery, which consists of all the ministers, and one ruling elder from each congregation, within a certain district, at least three ministers, however, with as many elders as may be present, being necessary to constitute the body. The next superior judicatory is the Synod, which includes a number of Presbyteries, at least three, and like the latter is composed of all the ministers, and of representative elders, one from each church, within its bounds. The highest tribunal is the General Assembly, which is entirely a representative body, consisting of ministers and elders delegated from the various Presbyteries; the representation of each being in proportion to the number of ministers belonging to it, each being entitled to send at least two delegates, one a minister and the other an elder, and beyond this number, one minister and one elder for every twenty-four constituent |