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Police, of Philadelphia, plan for a new organization
278 281 292 335 357
258 Poor, number of, in Schuylkill county Alms House 15
coal mine on fire at
extract from Lyon's oration at
signing of the constitution celebrated
tive to his reception
queries respecting, proposed by Society
opinion of Ingersoll and Wharton on illegal
Camden and Amboy
dreadful accident on 319
explanation of, by directors ib,
Columbia and Philadelphia 176 259 303
country through which it passes
37 41 55 65
Danville and Pottsville
272 288 303
Delaware and Susquehanna proposed 89
Wyoming and Lehigh report
on the construction of
from Franklin to Susquebanna
44 Randolph, Dr. J., performs lithulrity
fed by a child
names of streets changed
Farmers' Bank stalement
144 166 167
proceedings and address 166 167
on Columbia Rail Road, 137. West's 106
of Philadelphia Saving Institution 126
129 145 161
first annual,of La Fayette College 190 197 320
of the government directors of the Bank
of Franklin Institute
on Delaware Avenue
Reports; of Western Penitentiary, inspectors, war.
value, &c., at La Fayetle College 197
of the number, power, and coal used by
steam engines at Pittsburg
of the criminal statistics of York co. from
1828 to 1833
showing the quantity of each article, pas-
sengers, and tolls on the Pennsylvania
Canal, for 1833
Taxables in Venango county
mines at Blossburg
Tobacco, anti-society formed in Philadelphia,
from Kentucky, passes on Pennsyl.
Tolls on Pennsylvania canal 63 96 141 143 240 256
convention of turnpike companies to
391 Tomato, large
Tornado in Lancaster county
8, statistics of
U & V
126 Union, Agricultural society exhibition
Benevolent society, annual report
canal, produce sent to Middletown in 1831 14
Company, annual report
143 University, Dr. De Lancey resigns as provost 142
address of trustees on the state of
United States Bank-(see B. U. S.)
253 286 365
Washington, General, triumphal entry at
delphia, 1789, addresses, &c. 251 257
first describes site of Pittsburg, 303 453
Co. large products of corn to acre 313
Waynesburg, meeting at, to form a new co. 303
Weight, extraordinary, of Jesse Fell
West, B. F. account of Columbia Rail Road 106
fine cittle at
Wilkesbarre, meeting of mechanics and manufac.
turers on sale of foreign articles 296
Wood, comparative prices of, at Philadelphia and
Wyoming, massacre monument, corner stone laid 33
and Lehigh Rail road report of H. Colt 61
Statistics of crime and pauperism in 1828
REGISTER OF PENNSYLVANIA.
DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.
EDITED BY SAMUEL HAZARD.
VOI.. XII.-NO. 1.
PHILADELPHIA, JULY 6, 1833.
taking issue on the merits ; but as they had waived that A Report of the following trial has been issued in a of the plaintiff, so that a full decision on the merits of
course, I would at present hold the law to be in favour pamphlet form, containing the testimony adduced the cause might be had, while the defendant would which, as the material facts are interwoven with Judge have the benefit of a review of the law hereafter, in Pettit's charge, now inserted, we deem it unnecessary will take the case therefore to be clear of all embarrass
case your verdict should be for the plaintiff. You to publish, referring those who wish to see more of the ment of that kind. Should it become necessary the details of the case to the pamphlet itself. This trial court will hereafter look to this question. excited a good deal of interest, and continued about Before entering into the main case, allow me to twenty-one days.
make some general remarks which I deem applicable
to the subject In the District Court for the city and county of Phil. It is a universal rule, that wherever the legal rights adelphia, before Thomas M. Peliit, Judge, and a spe- of one individual are invaded by another, the law will cial jury, to wit : George Adolph, James H. Cresson, furnish a remedy by suit or action. A plaintiff is not Jeremiah Boone, Sansom Perot, Leopold N. Wykoff
, required to show as essential to a recovery, that the William Kinsey, John Newman, Nathaniel Brannin, An- precise case has occurred before. If he has been dedrew Fenton, Jacob Hummell, James D. Pratt, and prived of a legal right, if he has sustained a civil injury, Paul Jones,
he will find a remedy in the law, although it should Anthony Shermer,
happen that a like case is not to be found in the law
books. Joseph Rusling, George Thumlert, Alexander Ran- The right of the citizen to worship Almighty God kin, Enoch Burnett, William Mager, Benton Costin, according to the dictates of his conscience, is a natural
Thomas Mullin, Frederick Reel, John G. Wolf, John and indefeasible one, and is recognised and unalterably Gable, Abel Matthias, Isaiah Wharton, Jacob Zeigler, established by the constitution of our commonwealth. William Thomas, William Thomas, No. 2, Frederick As no man can of right be compelled to join any reliSteinman, Benjamin Butterfield, John Little, Samuel gious society, or to maintain any ministry against his Rinedollar, and Josiah Eadle,
consent, so no man can be prohibited from leaving any
religious association which he has voluntarily joined, on JUDGE PETTIT'S CHARGE.
his complying with the conditions which he had himself
agreed to by the act of becoming a member. That Judge Pettit, after adverting to the patient attention there might be no possible misapprehension on this of the jury, and the able arguments of the counsel, subject, it is declared to be one of the great and essenproceeded to deliver his charge, substantially as fol- tial principles of free government, that no human au. lows:
thority can in any case whatever control or interfere This, gentlemen of the jury, is an action of trespass with the rights of conscience. on the case brought by Anthony Shermer against Jo- While this is the rule as to individuals, corporations seph Rusling and eighteen other defendants. It is ne. for religious purposes also have their rights; as they are cessary, in order to arrive at a sound decision, that the created by the law, so they are authorised to do every precise case presented by the pleadings should be kept thing needful for their good government, not repugnant distinctly in view.
to the constitution and laws. In this country, religious The plaintiff alleges, in his declaration, first, the ex. societies are not only tolerated by the law, but in the istence of a corporation called "The St. John's Street faithful exercise of their powers, and in the honest enMethodist Episcopal Church in the City and County of joyment of their privileges, they are protected by it. In Philadelphia ;”-secondly, that he was a member of relation then to this plaintiff and these defendants, and that corporation ; and thirdly, that he was a leader of the corporation referred to in the plaintiff's declaration, a class in the congregation, according to the rules and the law of the land is equal and just. discipline established by said corporation.
This suit is certainly a peculiar one. I said early in He complains, first, that the defendants by unlawful the investigation that I could recollect no such case in and malicious conspiracy among them, had, did, unlaw- practice or in the books, and asked the counsel to refully, maliciously, and without any previous notice or fer to a precedent if one could be found. Their researchjust cause, remove him from his said office of class lea es have not enabled them to produce it. Still, howder ;
; secondly, that they did unlawfully, maliciously and ever,if a wrong has been done to the plaintiff,if any of his oppressively, and without any just or reasonable cause, legal rights have been taken away by the uclawful and expel him from the said corporation ; and thirdly, that malicious conduct of the defendants; I lay it down to you they did by Joseph Rusling, openly and publicly in as a rule for your government, under the reservation presence of the congregation, proclaim and declare that already mentiored, that the law will give him redress. he was expelled from the said church.
The action is trespass on the case. The distinction is, For the injury thus alleged he claims damages. that where the act complained of is an immediate wrong, The defendants have pleaded not guilty.
against all forms of law, trespass vi et armis is the Whether this declaration sets forth a legal ground of proper action ; but where the forms of legal process action, is a question of some interest. The defendants' are used, but used oppressively and maliciously, trespass counsel were about to argue it, when I suggested that on the case furnishes the appropriate remedy. In the they could have raised the point on a deinurrer before first case the immediale ud gives the party his action VOL. XII.
for the injury sustained, without relation to the motive that they were occasioned by the malicious conduct of of the act ; in the latter case the motives of the defen- the defendants. The proof of malice may be either posidant must be inquired into as forming part of the very tive,or it may be collected from the circumstances of the essence of the suit.
The jury are to judge of the testimony, and Though the plaintiff alleges that he has suffered thence determine whether or not there has been malice. injury through the conspiracy of the defendants, yet Among the circumstances from which the jury may infer this is only an action on the case in the nature of a con- malice is the want of probable cause. This, however, spiracy : the words in the declaration “by conspiracy may or may not amount to sufficient evidence of malice. among them had,"are but matters of aggravation, and are | The jury are to judge. not necessary to be proved to support the action. The In addition to the proof of malice, there must be proof damage sustained by the party is the substance of the of the want of probable cause. No matter how malicious action, and not the conspiracy. Hence a verdict against the conduct of the defendants may have been; yet if one defendant only,acquitting all the rest, would be good. there was probable cause, this action will not lie.
It is not to be overlooked that in actions of this kind, These are uncontrovertible rules of law ; and when the plaintiff has some advantages in relation to the pro- the grounds of them are investigated, it is found that duction and exclusion of testimony of the persons ac- sound policy and good sense unite in giving a sanction quainted with the facts, he may select such as will suit to them. They cannot be too earnestly pressed upon his purposes for witnesses, and by inserting the names your attention. of the others in the writ and giving some evidence, no Doubts have been sometimes expressed as to the matter how slight, to connect them with the doing of precise duty of the court and jury respectively, in rethe acts complained of, he may exclude their testimo- gard to probable cause. In this case, however, no diffiny from the court and jury: The jury, however, while culty on that head need be felt. After explaining to they will give a plaintiff just protection, will always you the meaning of probable cause, I will leave the aptake care that the defendants are not injured by an a- plication to the facts entirely to your own discretion buse of this privilege.
and judgment. It is also proper to remark, that while proper actions I adopt the views of an eminent Judge, when I say, for malicious torts will be sustained by courts and ju. I understand the term probable cause, to mean, “a rea. ries, still, as a general rule, such actions are not to be sonable ground of suspicion, supported by facts suffi. encouraged. We are not to be astute in looking for ciently strong in themselves to warrant a cautious man improper motives. The plaintiff in every instance must in the belief that the person accused, is guilty of the offully prove his case.
fence of which he is charged.” The cause before you is in many respects different An innocent man may become an object of suspicion from the ordinary action for damages sustained by a and of a prosecution founded in motives of resentment; malicious prosecution in an alleged criminal matter, or but if he has intentionally acted in such a manner as to an action for a malicious arrest under civil process. In furnish to a reasonable mind ground for the suspicion, he those actions we refer to proceedings in the legal tribu- must submit to the consequences of his own conduct. nals of the country ;-in this, the plaintiff shows proceed. He cannot claim the aid of the law to compensate him ings against him by the authorities (claiming to be for the losses to which he has exposed himself. duly constituted) of a corporation, and decisions against The general views having been stated, it becomes him by those authorities:-namely, the minister in proper for us to look to the exact question to be de. charge ;-the committee appointed to try him ; and the cided. quarterly conference. Again, in those actions the The whole case will be found to be comprehended plaintiff'must allege and prove that the proceedings in two points. complained of, had actually terminated in his favour. 1. The removal of the plaintiff from his station as a In the present instance the plaintiff makes no such alle class leader. gation, and it is part of the case that the removal from 2. The expulsion of the plaintiff from the church, his place as class leader, and the expulsion from his and his consequently being deprived of his rights as a membership in the corporation are in full force. In corporator. those actions, the persons constituting the tribunals, The third allegation of the plaintiff, relative to a pubwhether magistrates, judges, or jurors, cannot be assail- lic declaration from the pulpit of his expulsion, is not ed, while here--the plaintiff has included in his writ relied on, and has not been proved. many of the individuals who composed the tribunals Then as to the removal from the station of class leawhich decided against him.
der. I have already stated that the legal effects of this dif. What is a leader? ference need not be considered now ;-it being com- A book has been given in evidence, and referred to prehended in the matters for review hereafter, if you by both parties, as containing “ The doctrines and disfind for the plaintiff on the merits.
cipline of the Methodist Episcopal Church." This action is however so far analagous to those just In the first section of the second chapter of this referred to, that the plaintiff alleges oppression, malice, work, it is stated that : and want of just or reasonable cause. On this subject “Each society is divided into smaller companies, calthe principles of law, which govern those actions, must led classes, according to their respective places of control the present one also. The plaintiff admits this abode. There are about twelve persons in a class ; one by his declaration and the course of the argument. It is of whom is styled the Leader-It is his duty, yielding to him all that can possibly be asked, to regard I. To see each person in his class once a week at him as standing upon the ground of a party brought be- least ; in order, fore the civil tribunals, and regularly acquitted and dis. 1. To inquire how their souls prosper : charged. If his case cannot be made out upon these 2. To advise, reprove, comfort, or exhort, as occaprinciples, it certainly cannot be made out at all. sion may require :
The plaintiff must then prove the malice of the de. 3. To receive what they are willing to give, towards fendants, and the want of probable cause for their pro the relief of the preachers, church, and poor. ceedings in regard to him. No matter what errors in II. To meet the ministers and the stewards of the sopoint of fact the defendants may have committed, yet if ciety once a week ; in order, they were honest errors ;-if there was no malice, and 1. To inform the minister of any that are sick, or of no want of probable cause, this suit cannot be sus- any that walk disorderly, and will not be reproved. tained.
2. To pay the stewards what they have received of Malice is a necessary ingredient. The injury and the their several classes in the week preceding.” damage to the plaintiff must be proved, and further In the second section of the second chapter, there is 1833.)
this question with the answer. “ Ques. 2. Can anything Mr. Shermer complains of injustice the subject is more be done in order to make the class meetings lively kept alive, and a trial before a committee of the conand profitable ?
gregation is ordered. [The judge here read from his Answ. Change improper leaders.”
notes, some of the testimony of the witnesses. ] And in the ninth Section of the first chapter it is de- A question was made in regard to the demand for clared to be one of the duties of a preacher in charge of this trialFrom the record of its proceedings, and a circuit, “to appoint all the leaders, and to change from the statement which Mr. Thatcher made to Mr. them when he sees it necessary."
Shermer without contradiction, it would be fair to preThe plaintiff, in joining this society, made all these sume that Mr. Shermer called for it. However, this provisions the law for himself. They formed, as to this cannot be of much importance. matter, the rule between him and every other member
The trial before the committee is the second feature of the Methodist Episcopal Church. As there is nothing of this transaction, and as it led to the expulsion of the in them inconsistent with the law of the land, he is not plaintiff from the church, it furnishes, what his counsel at liberty to come into a civil court and question either have properly stated it to be, the main ground of this their expediency or their legitimate effects. He accept- suit. 'If ihe trial before the committee had not taken ed his appointment as a class leader by virtue of them, place, it is not probable that an action would have been and when Mr. Rusling became the preacher in charge. brought concerning the place of class leader. This behe, as such preacher, had the power to remove any lea- ing undoubtedly the great question in the cause, the der wben he saw it necessary:
jury will give it the full investigation to which it is Now, if Mr. Rusling honestly removed the plaintiff, it entitled. is not for us to inquire whether his discretion was wise.
The first matter in order is the accusation. Mr. Rusly and prudently exercised or not. If there was no ling charged the plaintiff with, malice in his act, and no want of probable cause for it, 1. Slander, in these words : “Anthony Shermer has the court and jury have nothing to do with it. Indeed, unjustly and falsely slandered my character as a minisas this office of class leader confers no civil rights, the ter, by propagating that I had made a false statement. question was made in the argument, whether, even sup- 2. • For falsehood also, inasmuch as he did, on Thursposing that the plaintiff had stated a sufficient ground day evening last, before a class, declare that he did not of action on the other point, this could be made the sub- know why his class was taken from him. ject of a suit at law; whether, in other words, the loss of such an office, under any circumstances, could pro.
“ Philadelphia, June 19, 1829.” duce such a damage as the law would recognise. What- The next step is the appointment of the committee. ever I might have deemed it my duty to say, had this In the ninth section of the first chapter of the work been the only or the prominent question in the cause, before mentioned, it is laid down to be one of the duties I hold it right, considering the direction which the of the elder, deacon, or preacher who has the special counsel on both sides have given to the case, to regard charge of a circuit, this also as a reserved question of law, and, for the pres- “To receive, try, and expel members according to ent, to assume the position that the action will lie even the forms of discipline.' on this part of the plaintiff's declaration.
In the seventh section of the second chapter, in anBut as the malice and the want of the probable cause swer to the question, “How shall an accused member must be shown, in order to sustain it, it will be neces- be brought to trial ?" it is declared as follows : sary for you to look carefully at the facts.
“ Ansio. 1. Before the society of which he is a memThe two principal witnesses on the part of the plain. ber, or a select number of them, in the presence of a tiff, who give us the account of the meeting at which bishop, elder, deacon, or preacher, in the following this removal took place, are Jacob Zeigler and Jeremiah manner : Let the accused and accuser be brought face Walton,
to face; but if this cannot be done, let the next best [The Judge here referred to the circumstances under evidence be procured. If the accused person be found which these witnesses appeared, and the remarks of the guilty by the decision of a majority of the members becounsel on both sides as to their credibility or accuracy, fore whom he is brought to trial, and the
crime be such and after stating that these were matters exclusively as is expressly forbidden by the word of God, sufficient for the decision of the jury, proceeded to read from his to exclude a person from the kingdom of grace and notes their testimony on this head. He then referred glory, let the minister or preacher who has the charge to the testimony of John H. James, a witness on the part of the circuit, expel him. If the accused person evade a of the defendants, and after leaving the question as to trial, by absenting himself, after sufficient notice given his credibility and accuracy also exclusively to the jury, him, and the circumstances of the accusation be strong read from his notes, Mr. James' testimony also on this and presumptive, let him be esteemed as guilty, and be point.)
accordingly excluded. -Witnesses from without shall The amount of all this testimony seems to be, that not be rejected.”. Mr. Rusling, at a leaders' meeting, requested the plaintiff Mr. Thatcher testifies that, according to bis impressions to give some explanation of a charge which he said he of his duty, where the contest was between a member understood the plaintiff had been circulating, that he, Mr. and a preacher in charge, he, as the presiding elder, Rusling, had made a false statement. To a request so undertook to appoint the committee and preside at the reasonable as this, and urged, as it appears, in a becom- trial. He therefore wrote to the plaintiff the note of ing tone and manner, Mr. Shermer repeatedly declared the 19th of June, 1829, stating his views on this he would give no answer, until he (s.) had a trial with point, furnishing a copy of the charges, and requesting Enioch Burnett. No reason for the trial with Burnett Mr. Shermer to attend before the committee at the time is given, and after consultation with the meeting, Mr. and place mentioned. Mr. Thatcher says, that when Rusling, in what he alleges to be the prudent exercise he delivered the charges to the plaintiff, he (the plainof his legitimate powers, removes the plaintiff from the tiff,) expressed high satisfaction that Mr. Thatcher station of class leader.
should try his case, adding, that he now should have The subject of the false statement, and the claim for justice done him. a trial with Burnett, subsequently present themselves Mr. Thatcher explains the manner in which he made again, and will, hereafter, require some further no- a selection of names for the committee, and Mr. Shertice.
mer, in his affidavit, submitted to the Supreme Court, So far, it would be difficult to point out any evidence which has been read to you, states the fact to be that of malice, or want of probable cause, in relation to this Mr. Thatcher appointed the committee. remoral. If the subsequent circumstances furnish any
I have been thus minute on this topic, because, from such evidence, it will be proper for you to consider it. something which fell from one of the witnesses, an effort