Kerr v. Trego, 47 Pa. 295. Warren, etc., Ry. Co. v. Clarion Land Co., 54 Id. 39. as granted, ousted no one from possession. The preliminary injunctions were sustained by this purport of the order is that defendant Huber Court. should cease trespassing by persisting in entering the pulpit and officiating, as alleged pastor in the church. As to Mr. Huber, his occupancy of the pulpit is not a continuous possession, but merely occasional and temporary and for a specific purpose only. Every time Mr. Huber entered that pulpit he committed a fresh trespass and clared its purpose to restore by preliminary infor a repetition or series of such acts, under threat junction the status as it existed before the wrongto continue them, he could be enjoined, but he ful acts of the defendants. Applying that princicould not be sued in ejectment, not being, by such ple here the status as it existed before the secesacts an occupant within the meaning of the law sion of these defendants should be restored. relating to ejectment. In several of the cases last cited the Court de As to the defendant trustees (or those claiming April 12, 1897. MITCHELL, J. This injunction to be such) and their adherents, the injunction or- was very improvidently granted. The complainder granted does not oust them from possession. ants were confessedly not in actual possession of It does not purport to oust them from office or the church, and they had admitted themselves out from the custody of the building or to place the of legal possession by bringing an action of ejectplaintiffs, claiming to be trustees, in possession of ment against the respondents. Yet on a preliminthe building. The trustees (whoever may law-ary hearing, not conducted by the examination fully claim to be such), have and can exercise of witnesses under the new equity rules, but withnow precisely the same character of possession as out evidence except a part of the bill sworn to as they had before the order issued. Watson v. Jones, 13 Wall. 718. Fuchs v. Meisel, 60 N W. Rep. 778. Gass' Appeal, 73 Pa. 47. an injunction affidavit, and a single other ex parte affidavit, and in the face of a responsive answer denying the facts set up in the bill, a mandatory injunction was issued which prevented the cleri The plaintiffs, Bohner and Fredericks, could cal respondents from performing their functions not maintain an action in ejectment since they in the church, commanded the lay respondents do not hold the legal title nor do they claim any not to interfere in the management of the propsuch exclusive possessory right as could be re- erty, and practically reversed the whole status of dressed by such form of action. the parties by dispossessing the respondents and putting the complainants in control. This is not the office of a preliminary injunction, which is not to subvert but to maintain the existing status, until the merits of the controversy Thus it will be noticed that the only questions seriously raised below, were ones purely of law. The principles of law involved are well settled. The remedy by injunction is the appropriate one to redress wrongs of the character suffered by can be fully heard and determined. The sole obthese plaintiffs. Krecker v. Shirey, 163 Pa. 534. ject of a preliminary injunction says STRONG, J., in Farmers' R. R. Co. v. Reno, etc., R. W. Co., This being so, the duty of the Court is plain. It 53 Pa. 224, "is to preserve the subject of the conis bound to give to the plaintiffs the protection they ask, even in advance of the final hearing. Hodge v. Giese, 43 N. J. Eq., 343. troversy in the condition in which it is when the order is made. It cannot be used to take property out of the possession of one party and put it into the possession of the other." See also The right to occupy a pulpit as a pastor is of Audenried v. Phila. & Reading R. R. Co., 68 Pa. the nature of an easement. Doe v. Jones, 10 B. & C. 718. 370, where the whole subject is authoritatively discussed by SHARSWOOD, J. It is true that in order to meet the practices so Courts of equity exercise a very liberal juris-emphatically condemned by this Court in Easton diction in the protection of such rights-(ease- R. W. v. Easton, 133 Pa. 505, and Cooke v. Boynments). Mandatory injunctions may, contrary to ton, 135 Pa. 102, equity has been compelled to the general rule, be issued at the very inception advance a step, and if necessary to make even preof a suit for the protection of such rights. liminary injunctions mandatory, as in Whiteman v. Fuel Gas Co., 139 Pa. 492. But such cases Hodge v. Giese, supra. Rogers Loc. Works v. Erie Ry. Co., 5 C. E. Green, are exceptional, and are founded on the fact that 379. there has been what was graphically described See also the following Pennsylvania cases where in Cooke v. Boynton, supra, as “a race against the law." Equity regards the substance rather Baptist church of Tamaqua for use for public than the form of things, and will not allow itself worship according to the usages and ceremonies to be baffled by a wrongful change while its aid of the Baptist church only, and with a condition of is being invoked. The modern cases therefore forfeiture if used for any other purposes; that have established the rule that the status quo which the land and the improvements thereon had been will be preserved by preliminary injunction is the transferred by certain members of the Baptist last actual, peaceable, non contested status, which church to the Salem Church; and that in 1894 the preceded the pending controversy and equity will Little Schuylkill Company, under its right of renot permit a wrong-doer to shelter himself be- entry for condition broken, had granted and conhind a suddenly or secretly changed status, though veyed the land to the respondents. It will thus he succeeded in making the change before the be seen that the case raises two main questions chancellor's hand actually reached him. The or issues: first, whether the complainants are doctrine is not new, only its application in prac- entitled to represent the Salem Church; if not, tice to meet the efforts of those who endeavor to if as the answer avers, the trustees in whom title be swifter than justice and the law. Nearly half is claimed to be, voluntarily withdrew from the a century ago, LoWRIE, J., expressed the princi- church prior to this controversy, then whether ple in Baptist Congregation v. Scannel, 3 Grant, respondents' title be good or bad is immaterial, 48, "the object of this motion (for preliminary in- as complainants have no standing to question it. junction) is to put and keep matters in the posi- The second and more important question is the tion in which they stood before the disorder com- title to the land. It is admitted that title is to menced, and to prevent the defendants from gain- be derived from the Little Schuylkill Company, ing any advantage by their own wrongful acts." under its deed first to the Baptist church and secThere is nothing in the present case to bring ondly to the respondents, and which is the superit within this exceptional class. The respondents ior title must depend on the conveyances and the had been in undisturbed possession for years, and acts of the parties under them. These are questions the only change that was sought was by the com- to be settled at law, and cannot be brought into plainants. equity without some other basis than has been shown here. Color for a preliminary injunction was given by the averment in the bill of acts of waste commit- The learned Judge below was apparently of ted or threatened by the respondents, but the opinion that this case fell within the authority of evidence utterly failed to sustain the charge. It Krecker v. Shirey, 163 Pa. 534, and it is not imwas supported by only a single affidavit which was possible that it may turn out to be so, but it has fully met and denied by the answer. But even not yet been made to appear. That will depend if it had been sustained the terms of the injunc- on the facts as they shall be proved at the trial. tion went far beyond any relief on this basis. The controversy in the Evangelical Association On every ground, therefore, the injunction was is undoubtedly at the bottom of both cases, but improvidently issued and must be dissolved. the issues are entirely different. In Krecker v. But the objections to the bill are deeper seated Shirey, both parties belonged to the Evangelical than to the mere injunction. The case is nothing Association and each claimed to be the rightful but an injunction in disguise. The bill was representative of the Immanuel Church. The brought by parties asserting themselves to be the complainants did not depend on the moral merits pastor, presiding elder and trustees of the Salem or justice of the case, which rather appeared to Church, and claimed title to the property by vir- be with the majority of the congregation who had tue of their adherence to the discipline, law and raised the money, supported the pastor, and kept usages of the Evangelical Association. The answ- the church going, but as our brother WILLIAMS er denied that the complainants were officers or said, "Our concern is with the legal aspects of the even members of the Salem Church, and case . . . leaving the moral side of the conaverred that the self-styled trustees in whom troversy to the consciences of the combatants," the legal title was claimed to be, had vol- and as the law regarded those who adhered to the untarily withdrawn from the church years original doctrine and discipline, whether majorago, and that the Salem Church was not a ity or minority, as the regular organization, the member of the Evangelical Association, but was legal right followed such organization. The and had been for years, an independent organi- plaintiffs succeeded on their strict legal title and zation. In regard to the title to the church prop- the plaintiffs in the present case must win or lose erty the answer averred that the ground had been by the same standard. There is here, however, granted in 1856 by the Little Schuylkill Naviga- no. question of regularity of standing in the tion, Railroad and Coal Company to the First church. The respondents deny that they belong to the Evangelical Association at all, and claim The Court refused to admit this testimony, and that they have, in their independent capacity, ac-awarded payment to the Commercial National quired the title to the property. If they can es- Bank of Pennsylvania, of the amount of the judgtablish that fact they will be entitled to a verdict ments against the accountants, namely, $9104.51, without regard to the regularity of their relig- with interest from October 8, 1894, costs, etc., the ious standing. The issue is an ordinary one of auditing Judge, PENROSE, J., saying: disputed title and should be adjudicated at law. "Mr. Burton alleging that the decedent was The right of the pastor to officiate in the church, surety only and that Nelson Bros. & Company is a secondary question depending on the solu- were the principal debtors in the transaction out tion of the first. If he establishes his right at of which the judgment obtained as above by the law he will then be entitled to ask the assistance Commercial National Bank had its origin, asked of equity to enforce it. to be allowed to make an investigation of the Decree reversed, injunction dissolved and bill accounts of the alleged principal debtor and the ordered to be dismissed with costs. bank. The auditing Judge being of opinion that the validity of the judgment could not be imJanuary 25, 1897. peached collaterally, declined to permit such inquiry except so far as concerned matters occurring since its date; and no evidence as to such matters was offered or alleged to be in existence. Jan. '96, 317. H. B. Supreme Court. "Mr. Joseph deF. Junkin stated that at the request of the accountants, he had in December, A judgment cannot be corrected in a co-ordinate Court. issued an attachment against the Commercial A judgment may be corrected for mistake and im- National Bank as garnishee, under a judgment peached for fraud, but it must be done by the Court in in favor of Edward McClain (the decedent) which it was rendered, and on proper application. It against Nelson Bros. obtained in October, 1886, cannot be done in a collateral proceeding. in Common Pleas No. 1, June term, 1886, No. 580, Appeal of Jennie G. McClain and John Field, for $7754.30, upon two notes by Nelson Bros. to executors of Edward McClain, deceased, from the Edward McClain, for $3000 and $700, dated respecdecree of the Orphans' Court of Philadelphia tively May 2, 1885, and August 26, 1885. County, dismissing exceptions to the adjudica- "The auditing Judge is unable to see the reletion of the account of said executors. vency of this statement (which Mr. Junkin said The facts of this case were as follows: At the was made at the instance of Mr. Burton) to anyaudit of the account, December 6, 1895, the Com- thing involved in the adjudication of the present mercial National Bank presented a claim on a account, but gives it in order that the accountjudgment of Common Pleas No. 1, December ants may have such benefit as may, by any possiterm, 1891, No. 89, upon a verdict rendered against bility, be derived from it." the estate, October 8, 1894, for $9104.51, with in-| Exceptions were filed to the adjudication, and terest from that date. The executors offered to to the rejection of the testimony offered by the give evidence to prove that this judgment against accountants, which were dismissed; whereupon McClain's estate was obtained upon promissory the executors took this appeal, assigning for notes that were given merely as collateral secur- error this action of the Court. ity to the bank for an indebtedness of Nelson Arthur M. Burton, for appellants. Bios. & Co., in liquidation, to secure the payThe bank discounted these notes, not for Mcment of which Nelson Bros. & Co. had assigned Clain's benefit, but for the benefit of Nelson Bros. and transferred to the bank all their stock in trade, & Co. It was therefore the holder of them as promissory notes, and other effects. Included in surety for the payment of Nelson Bros. & Co.'s this transfer were three notes given by Edward Mc-debt; and evidence was admissible to show, that Clain and endorsed by Nelson Bros. & Co.; these the debt to the bank had been paid, out of other notes given by McClain were merely accommoda-assets of the maker of the note, in the hands of tion notes for Nelson Bros. & Co., the endorsers, the bank. who had them discounted by the bank and were credited with the proceeds. When these notes became due, the bank obtained from McClain a new note of $7500, endorsed by Nelson Bros. & Co., as before, and a number of city claims as additional collateral security, and upon this note the bank obtained the above judgment. Com. v. Mi'ler, 8 S. & R. 452. Wyman v. Mitchell, I Cowen, 316. Where a creditor holds other collateral securities of the principal, the debtor is entitled to the benefit of it. Hayes v. Ward, 4 Johns. Ch. 123. Delaplaine v. Hitchcock, 4 Edw. Ch. 321. Shackamaxon Bank to use v. Kinsler, 16 WEEKLY Gunn v. Dickey, 14 WEEKLY NOTES, 274. between the bank and McClain and the bank and Nelson Bros. & Co., was all before the jury on the trial in the Common Pleas, it could not have received the attention it deserved at the hands of the jury or the amount of their verdict would have been less by about two thousand dollars than that which they returned. Even if this was true the remedy of the appellant would be in the Court in which the trial took place. In the Orphans' Court the judgment is not subject to correction, nor can the mistakes of the jury be considered. A judgment may be corrected for mistake and impeached for fraud, but it must be done by the The defence here offered is in the nature of a Court in which it was rendered and on a proper set-off, and in such cases the Courts will afford application. It can not be done in a collateral every facility for the avoidance of a multiplicity proceeding: Hamilton v. Seitz, 25 Pa. 226; Phila The question of accounting was withdrawn in the case in the Common Pleas: Bank v. McClain, 171 Pa. 132. The record, therefore, did not prevent the appellants from investigating the accounts, before the auditing Judge. Foilansbee v. Walker, 74 Pa. 306. Ins. Co. v. Mardorf, 31 WEEKLY NOTES, 189. of suits. Tustin v. Cameron, 5 Wharton, 379. Montz v. Morris, 89 Pa. 392. Hibert v. Lang, 165 Id. 439. delphia v. Girard Heirs, 45 Pa. 9; Casebeer v. Mowry, 55 Pa. 419. The question for determination in the Common Pleas was the amount due the bank, upon the note sued on. That question verdict and the judgment entered thereon. The John G. Johnson, (Henry C. Terry with him), was settled, and the amount ascertained by the for appellee, cited— Myers v. Kingston Coal Company, 24 WEEKLY question which the appellant now seeks to raise NOTES, 223. is exactly the same, the amount really due upon the note sued on in the Common Pleas at the March 1, 1897. WILLIAMS, J. This appeal is time when the jury rendered their verdict. The from a decree of distribution made by the Or- question was settled by the judgment, and it is phans' Court of Philadelphia. The fund was now res adjudicata: Myers v. The Kingston Coal raised by the settlement of an account by the ex- Co., 126 Pa. 582. S. H. T. ecutors, the appellants. Among the claimants It is true as asserted by appellant that the alupon the fund was the Commercial National Bank lowance of a set-off is an effort to avoid a multiof Philadelphia, the appellee. Its claim was upon plicity of suits, but after a claim has been put in a judgment in its favor and against the estate of judgment set-off as against the claim so judicially the decedent, regularly entered in the Court of determined is conclusively presumed to have been Common Pleas No. 1, upon a verdict rendered by made and the strife over it is at an end. Cases like the jury after a trial had in due form. The pay- Hibert v. Lang have, therefore, no application. ment of this judgment was resisted, not by reason The Orphans' Court was right in its holding, of anything happening since the judgment was and the decree appealed from is now affirmed. rendered, but for reasons that were used as a defence to the claim on the trial in the Common. Pleas, which resulted in the judgment. It was an ingenious effort to retry the cause in the Orphans' Court, and thereby to reach a different result from that reached on the trial in the Common Pleas. The learned Judges of the Orphans' Court declined to hear the defence so set up, holding that they were without power to retry the cause or to attack the judgment collaterally. The correctness of this ruling is really the only question raised by this appeal. The general doctrine affirming the conclusiveness of a judgment as an adjudication upon the questions covered by it does not seem to be denied by the appellant. It is too well settled to be successfully attacked. The effort appears rather to have been to persuade the Orphans' Court that although the evidence in relation to the accounts Jan. '96, 506. Supreme Court. February 24, 1897. Berlin Iron Bridge Co. v. Bonta. Affidavit of defence-Must be explicit-Offset to be fully set forth. The allegation in an affidavit of defence to an action brought to recover for the erection of a glass mill, that the defendant held certain shares of stock which were depreciated at the rate of "about five dollars per share" by reason of the failure of plaintiff to complete the mill upon the day named in the contract, is insufficient, in that it does not specify the value of these shares before and after the day when the mill was to be completed, or the time when the depreciation took place, in what manner the extent of this depreciation is ascertained, how long when the action was brought. The affidavit must be exthe depreciation continued, and the value of the stocks plicit, and a full answer to the claim. An allegation that notes were given in settlement of The defendant took this appeal, and assigned plaintiff's claim without alleging that they were accepted the entering of judgment as error. as payment or had been paid at maturity is not sufficient to prevent judgment. W. S. Hulslander, (A. A. Vosburg with him), for appellant. The only question is, does the affidavit show Appeal of J. W. Bonta, defendant, from the how much damage Mr. Bonta has suffered by judgment of the Common Pleas of Lackawanna reason of this breach of contract? County, in an action by the Berlin Iron Bridge Co., to recover for work done. An affidavit is sufficient, if it sets forth in words, or by necessary inference, the indispensable elements of a good defence. Selden v. Neemes, 43 Pa. 421. The plaintiff filed a statement claiming $4848.94 as the balance due upon a contract for the erection of a glass mill. The defendant filed an affidavit of defence, setting up the following defence: "First. Part of the amount claimed by plaintiff, to wit, the sum of $4250, was settled by your deponent with the plaintiff on April 8, 1895, by giving notes for said amount of $4250, by your de- standard not contingent and merely speculative. ponent to the said plaintiff, said notes are still held by said plaintiff company as your deponent verily believes. Damages claimed as a set off must be direct or capable of being ascertained by some known legal Hunt v. Gilmore, 59 Pa. 450. "Second. The item mentioned in plaintiff's | Affidavits of defence are not documents that claim, to wit, $189.70, for extra work was never need a strained construction. Parties generally ordered by your deponent, nor did your deponent swear as hard as truth and conscience will allow ever order any extra work whatever done by them. Their words are not to be taken as implaintiff. plying more than they express. Blackburn v. Ormsby, 41 Pa. 101. A defendant under our affidavit system is bound to set forth every fact material and necessary to his defence; and every fact not distinctly and positively averred is presumed not to exist. The affidavit must show prima facie that the defendant has a good defence to the action, otherwise judgment will be entered against him. Allegheny Savings Bank v. Meyer, 59 Pa. 361. Whatever is not said in an affidavit of defence "Third. Your deponent further avers that by the terms of contract filed by plaintiff in this case, that said building was to be finished and completed by said plaintiff within thirty working days from November 15, 1894; that the plaintiff was not hindered or delayed by your said plaintiff from completing said work, neither was the weather unsuitable for the prosecution of said work, and said building should have been completed under said contract not later than January 1, 1895, there had been more than thirty working days of suitable weather for work between No- is taken not to exist. vember 15 and January 1, 1895. That the work of said building was not completed until about March 1, 1895. Your deponent further avers that March 22, 1897. WILLIAMS, J. The plaintiff's by reason of the non-compliance with the contract claim in this case consists of two items. One is by the plaintiffs, that your deponent was hindered of an alleged balance due upon a contract for the and delayed from putting samples of rolled and erection of a plate glass mill, amounting to four embossed glass upon the market as he had agreed thousand six hundred fifty-nine dollars and twenand contracted to do, and was hindered and de- ty-four cents. The other is for extra work done layed carrying out his contract with the board of upon the mill amounting to one hundred and directors of the Bonta Plate Glass Company; that eighty-nine dollars and seventy cents. The dehis stock in said company depreciated in value to fendant filed an affidavit of defence containing the amount of about $5 per share, of which stock three items for which allowance was sought. The your deponent held 2336 shares. first of these was for the sum of four thousand, Lord v. Ocean Bank, 20 Pa. 384. "By reason of the non-fulfillment by plaintiff of two hundred and fifty dollars, being the amount the contract your deponent has suffered damages of certain notes given by the defendant to the to the amount of $15,000 for the reasons above plaintiff company to apply upon the contract as stated." early as the eighth day of April, 1895. It was not A rule for judgment being taken, it was made alleged that the notes were accepted as payment, absolute and judgment entered for plaintiff for or that they had been paid. They had been given $4659.24. but, at maturity, they had not been met. The |