president and council, &c. to Gene.
ral Washington in 1789
premiums from Scott's legacy awarded 264
proceedings on Wills' ordinance 264 335
Cherry street to be opened
new market in Eastern part, proposed ib.
expenditures of City commis'ners 296 272
report on the new organization of
police of
297 278 281 335 357
standing committees
Banks and Insurance companies of
Board of Trade, meeting in relation



to Warren Convention
Exchange, capstone, celebration
Porcelain manufacture, origin
meeting of public institutions re-
specting a fire proof building
new stores on Schuylkill to be rent-
ed to the highest bidder
mayor to borrow $60,000
title to burying ground in Franklin
square to be inquired into
comm ttee on gas appointed
receipts and expenditures, 1832
a depository for lost children pro-

joint committees to be consolidated
iron fence round Franklin square
wood, committee

report of Library of Foreign Liter-

mechanics Union formed

Councils pay their respects to Hen-
ry Clay at Independence Hall
address of J. R. Ingersoll on the oc-


debate on resolution to receive H.

improved mode of burning oil
cost and description of Wills' Hos-







[blocks in formation]




Mrs. Yohe's Hotel described
comparative prices of wood at Ger-
mantown and Philadelphia


Physicians, Philadelphia College of, opinion of
ardent spirits 1787, and memorial
to Congress

of Pittsburg, report of

Pins, singular accident by picking the ear with
Pittsburg, no debtor in prison at









tornado near
meeting on Chesapeake and Ohio Ca-
nal 157, memorial

adoption of the Constitution celebrated






C96 Pump, invented, by commodore Barron

Quit rents, respecting


Radish, large

Rail Roads, Allegheny Portage
Beaver Meadow, extended
Binghamton and Owego
Camden and Amboy

[ocr errors]




143 176 196 303



Police, of Philadelphia, plan for a new organization
278 281 292 335 357
Poor, number of, in Schuylkill county Aims House 15
purchase of wood for, by the city
Porcelain manufacture, origin of, in Philadelphia 293
Potatoe, mercer, how introduced
Pottsville, steam engine at



coal mine on fire at

extract from Lyon's oration at
whirlwind at

mining accident

snow at

first glass manufactory

letter from comptroller on transhipping
goods on Ohio

wagoners described
scite of, first described by Gen. Wash-

list of steam engines, coal consumed by
304 314

business done upon the canal
articles which could be furnished at
Buffalo, from P. cheaper than from
New York



new organ

stages from, to Harrisburg

signing of the constitution celebrated
taxables in


President Jackson; proceedings of councils rela-
tive to his reception

44 Randolph, Dr. J., performs lithotrity
Rattlesnakes in Berks co.

Prison, Arch street, wretched state of
Pittsburg, no prisoners in for debt

bite of, cured
fed by a child
64 Reading, high steeple at


queries respecting, proposed by Society
for alleviating

opinion of Ingersoll and Wharton on illegal
commitments to

Wyoming and Lehigh report
proposed down Market street
on the construction of
from Franklin to Susquehanna
and canals compared



31 319
dreadful accident on
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
Elizabethtown and Sommerville
Mad River and Lake Erie
Mauch Chunk
West Chester

296 271

80 143
36 56




size of balls
names of streets changed
steeple struck by lightning
criminal business of court
early frost at

wild geese at

Farmers' Bank statement

9 28




Real estate, sales of

Reed, Joseph, President, biography
Reform Convention at Harrisburg











proceedings and address
Reports; on Wyoming and Lehigh Rail Road
on argand lamps





30 208
144 166 167
166 167


on Columbia Rail Road, 137. West's
of Philadelphia Saving Institution
on the revised code
129 145 161
first annual,of La Fayette College 190 197 320
of the government directors of the Bank
U. S. to the President

of Franklin Institute
on Delaware Avenue

of the Lunatic Asylum















Reports; of Western Penitentiary, inspectors, war-


den, physician, and a list of prisoners 242 Tables, showing the number of students, work done,
Ohio and Pennsylvania Canal Commis-
sioners to Legislature of Ohio
of Trustees of Allegheny College on ma-
nual labour system


value, &c., at La Fayette College
of the number, power, and coal used by
steam engines at Pittsburg


to councils, on a new system of police for

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


of Union Benevolent Association, 2d annual 316
second annual, of La Fayette College 320
annual, of Library of Foreign Literature 346
of auditor general, on the finances of the


347 374


annual, of Union Canal Company
of premiums awarded by Franklin Institute 353
of committee on Will's Hospital, descrip-
tion of building, cost, &c.


of committee of Warren Convention on
route for junction of Ohio and Pennsyl- -
vania Canal

of state treasurer on finances

[blocks in formation]

Tamaqua described
sketches of coal region
large sale of coal lands in
large bear killed

River, great freshet in

tow boat introduced
Flat Rock bridge destroyed
flour received by

Scott, John M., address before Law Academy

oration on 4th July

47 49


Judge, address at Wyoming monument
Scott's legacy, premiums awarded
Sergeant, John, eulogy on Charles Carroll
Shippen, Judge, opinion on trial for firing cannon
on 4th July

Silk, sewing, made in Erie co.

Mr. D'Hommergue encouraged in France
Snakes fed by a child
Somerset, destructive fire at


from Kentucky, passes on Pennsyl-
vania canal



380 Tolls on Pennsylvania canal 63 96 141 143 240 256
convention of turnpike companies to
385 401
Tomato, large

Tornado in Lancaster county

Turnpike companies meet at Bedford to equal-
ize tolls

s, statistics of

struck with lightning

size of balls
Christ Church, size of balls and vane


[blocks in formation]



Tobacco, anti-society formed in Philadelphia,
constitution, &c.

Susquehanna River, trade of


96 127
83 138
proposals for navigating with
steamboat 198 213 252 260
address and memorial to con.
dam, att. general's opinion respecting 108


U & V
Union, Agricultural society exhibition
Benevolent society, annual report


canal, produce sent to Middletown in 1831
Company, annual report
143 University, Dr. De Lancey resigns as provost
address of trustees on the state of



United States Bank-(see B. U. S.)
Van Campen, Moses, biography
73 Venango county, taxables in







Wagoners, Pittsburg described
Wallace, Andrew, biography
Warren Convention, Ohio,




62 111



253 286 365

Washington, General, triumphal entry at Phila-
delphia, 1789, addresses, &c. 251 257
first describes site of Pittsburg, 303 453
monument plan adopted for


Co. large products of corn to acre
Wayne, Gen. Anthony, Biography


Waynesburg, meeting at, to form a new co.
Weight, extraordinary, of Jesse Fell
Weights and measures, Bill on





West, B. F. account of Columbia Rail Road
West Chester, remarkable health of
early winter at
fine cattle at



early snow


rail road, large draught on
Spirits, ardent, opinion of College of Physicians, 1787 7 Wheat, remarkable in Crawford co.
proceedings of Temperance Convention 51
Wheels, new mode of locking
Steam engines, use coal
Wilkesbarre, meeting of mechanics and manufac-
improved economy of 198 213 252 260 262
turers on sale of foreign articles
number of, at Pittsburg
304 305
Willow tree, remarkable in Berks co.
boat experiment on Ches. and Del. Canal 240
Willsborough, coal discovered
navigation of Susquehanna by
Wilson, Rev. Dr. J.P. latin epitaph
Steeple, highest, at Reading
Wolf, Gov. message


111 Wood, comparative prices of, at Philadelphia and


Wyoming, massacre monument, corner stone laid
address of Chester Butler




York co. Barrens described


Statistics of crime and pauperism in 1828
to 1833
















Judge Scott's address

and Lehigh Rail road report of H. Colt 61





[merged small][merged small][ocr errors]



VOL. XII.-NO. 1.


A Report of the following trial has been issued in a pamphlet form, containing the testimony adduced which, as the material facts are interwoven with Judge Pettit's charge, now inserted, we deem it unnecessary to publish, referring those who wish to see more of the details of the case to the pamphlet itself. This trial excited a good deal of interest, and continued about twenty-one days.


[merged small][ocr errors][merged small][merged small][merged small][merged small]

This, gentlemen of the jury, is an action of trespass on the case brought by Anthony Shermer against Joseph Rusling and eighteen other defendants. It is necessary, in order to arrive at a sound decision, that the precise case presented by the pleadings should be kept distinctly in view.

The plaintiff alleges, in his declaration, first, the existence of a corporation called "The St. John's Street Methodist Episcopal Church in the City and County of Philadelphia ;"-secondly, that he was a member of that corporation; and thirdly, that he was a leader of a class in the congregation, according to the rules and discipline established by said corporation.

NO. 288.

taking issue on the merits; but as they had waived that of the plaintiff, so that a full decision on the merits of course, I would at present hold the law to be in favour the cause might be had, while the defendant would have the benefit of a review of the law hereafter, in will take the case therefore to be clear of all embarrasscase your verdict should be for the plaintiff. You ment of that kind. Should it become necessary the court will hereafter look to this question.

Before entering into the main case, allow me to make some general remarks which I deem applicable to the subject.

For the injury thus alleged he claims damages. The defendants have pleaded not guilty. Whether this declaration sets forth a legal ground of action, is a question of some interest. The defendants' counsel were about to argue it, when I suggested that they could have raised the point on a demurrer before VOL. XII.


It is a universal rule, that wherever the legal rights of one individual are invaded by another, the law will furnish a remedy by suit or action. A plaintiff is not required to show as essential to a recovery, that the precise case has occurred before. If he has been deprived of a legal right, if he has sustained a civil injury, he will find a remedy in the law, although it should happen that a like case is not to be found in the law books.

The right of the citizen to worship Almighty God according to the dictates of his conscience, is a natural and indefeasible one, and is recognised and unalterably established by the constitution of our commonwealth. As no man can of right be compelled to join any religious society, or to maintain any ministry against his consent, so no man can be prohibited from leaving any religious association which he has voluntarily joined, on his complying with the conditions which he had himself agreed to by the act of becoming a member. That there might be no possible misapprehension on this subject, it is declared to be one of the great and essential principles of free government, that no human au thority can in any case whatever control or interfere with the rights of conscience.

While this is the rule as to individuals, corporations for religious purposes also have their rights; as they are created by the law, so they are authorised to do every thing needful for their good government, not repugnant to the constitution and laws. In this country, religious societies are not only tolerated by the law, but in the faithful exercise of their powers, and in the honest enjoyment of their privileges, they are protected by it. In relation then to this plaintiff and these defendants, and the corporation referred to in the plaintiff's declaration, the law of the land is equal and just.

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 unlawful 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 mentioned, that the law will give him redress. he was expelled from the said church.

The action is trespass on the case. The distinction is, that where the act complained of is an immediate wrong, against all forms of law, trespass vi et armis is the proper action; but where the forms of legal process are used, but used oppressively and maliciously, trespass on the case furnishes the appropriate remedy. In the first case the immediate act gives the party his action

for the injury sustained, without relation to the motive of the act; in the latter case the motives of the defendant must be inquired into as forming part of the very essence of the suit.

Though the plaintiff alleges that he has suffered injury through the conspiracy of the defendants, yet this is only an action on the case in the nature of a conspiracy; the words in the declaration "by conspiracy among them had, "are but matters of aggravation, and are not necessary to be proved to support the action. The damage sustained by the party is the substance of the action, and not the conspiracy. Hence a verdict against one defendant only, acquitting all the rest, would be good. It is not to be overlooked that in actions of this kind, the plaintiff has some advantages in relation to the production and exclusion of testimony. Of the persons acquainted with the facts, he may select such as will suit his purposes for witnesses, and by inserting the names of the others in the writ and giving some evidence, no matter how slight, to connect them with the doing of the acts complained of, he may exclude their testimony from the court and jury. The jury, however, while they will give a plaintiff just protection, will always take care that the defendants are not injured by an buse of this privilege.

that they were occasioned by the malicious conduct of the defendants. The proof of malice may be either positive, or it may be collected from the circumstances of the case. The jury are to judge of the testimony, and thence determine whether or not there has been malice. Among the circumstances from which the jury may infer malice is the want of probable cause. This, however, may or may not amount to sufficient evidence of malice. The jury are to judge.

In addition to the proof of malice, there must be proof of the want of probable cause. No matter how malicious the conduct of the defendants may have been; yet if there was probable cause, this action will not lie.

These are uncontrovertible rules of law; and when the grounds of them are investigated, it is found that sound policy and good sense unite in giving a sanction to them. They cannot be too earnestly pressed upon your attention.

Doubts have been sometimes expressed as to the precise duty of the court and jury respectively, in regard to probable cause. In this case, however, no difficulty on that head need be felt. After explaining to you the meaning of probable cause, I will leave the apa-plication to the facts entirely to your own discretion and judgment.

It is also proper to remark, that while proper actions for malicious torts will be sustained by courts and juries, still, as a general rule, such actions are not to be encouraged. We are not to be astute in looking for improper motives. The plaintiff in every instance must fully prove his case.

The cause before you is in many respects different from the ordinary action for damages sustained by a malicious prosecution in an alleged criminal matter, or an action for a malicious arrest under civil process. In those actions we refer to proceedings in the legal tribunals of the country;-in this, the plaintiff shows proceedings against, him by the authorities (claiming to be duly constituted) of a corporation, and decisions against him by those authorities:-namely, the minister in charge; the committee appointed to try him; and the quarterly conference. Again, in those actions the plaintiff must allege and prove that the proceedings complained of, had actually terminated in his favour. In the present instance the plaintiff makes no such allegation, and it is part of the case that the removal from his place as class leader, and the expulsion from his membership in the corporation are in full force. In those actions, the persons constituting the tribunals, whether magistrates, judges, or jurors, cannot be assailed, while here-the plaintiff has included in his writ many of the individuals who composed the tribunals which decided against him.

I have already stated that the legal effects of this difference need not be considered now ;-it being comprehended in the matters for review hereafter, if you find for the plaintiff on the merits.

This action is however so far analagous to those just referred to, that the plaintiff alleges oppression, malice, and want of just or reasonable cause. On this subject the principles of law, which govern those actions, must control the present one also. The plaintiff admits this by his declaration and the course of the argument. It is yielding to him all that can possibly be asked, to regard him as standing upon the ground of a party brought before the civil tribunals, and regularly acquitted and dis charged. If his case cannot be made out upon these principles, it certainly cannot be made out at all.

The plaintiff must then prove the malice of the defendants, and the want of probable cause for their pro. ceedings in regard to him. No matter what errors in point of fact the defendants may have committed, yet if they were honest errors ;-if there was no malice, and no want of probable cause, this suit cannot be sustained.

Malice is a necessary ingredient. The injury and the damage to the plaintiff must be proved, and further

I adopt the views of an eminent Judge, when I say, I understand the term probable cause, to mean, "a reasonable ground of suspicion, supported by facts sufficiently strong in themselves to warrant a cautious man in the belief that the person accused, is guilty of the offence of which he is charged."

An innocent man may become an object of suspicion and of a prosecution founded in motives of resentment; but if he has intentionally acted in such a manner as to furnish to a reasonable mind ground for the suspicion, he must submit to the consequences of his own conduct. He cannot claim the aid of the law to compensate him for the losses to which he has exposed himself.

The general views having been stated, it becomes proper for us to look to the exact question to be decided.

The whole case will be found to be comprehended in two points.

1. The removal of the plaintiff from his station as a class leader.

2. The expulsion of the plaintiff from the church, and his consequently being deprived of his rights as a corporator.

The third allegation of the plaintiff, relative to a public declaration from the pulpit of his expulsion, is not relied on, and has not been proved.

Then as to the removal from the station of class leader.

What is a leader?

A book has been given in evidence, and referred to by both parties, as containing "The doctrines and discipline of the Methodist Episcopal Church."

In the first section of the second chapter of this work, it is stated that:

"Each society is divided into smaller companies, called classes, according to their respective places of abode. There are about twelve persons in a class; one of whom is styled the Leader—It is his duty,

I. To see each person in his class once a week at least; in order,

1. To inquire how their souls prosper :

2. To advise, reprove, comfort, or exhort, as occasion may require :

3. To receive what they are willing to give, towards the relief of the preachers, church, and poor.

II. To meet the ministers and the stewards of the society once a week; in order,

1. To inform the minister of any that are sick, or of any that walk disorderly, and will not be reproved.

2. To pay the stewards what they have received of their several classes in the week preceding."

In the second section of the second chapter, there is

this question with the answer. "Ques. 2. Can anything more be done in order to make the class meetings lively and profitable ?

Answ. Change improper leaders."

And in the ninth Section of the first chapter it is declared to be one of the duties of a preacher in charge of a circuit, "to appoint all the leaders, and to change them when he sees it necessary."

The plaintiff, in joining this society, made all these provisions the law for himself. They formed; as to this matter, the rule between him and every other member of the Methodist Episcopal Church. As there is nothing in them inconsistent with the law of the land, he is not at liberty to come into a civil court and question either their expediency or their legitimate effects. He accepted his appointment as a class leader by virtue of them, and when Mr. Rusling became the preacher in charge. he, as such preacher, had the power to remove any leader when he saw it necessary.

Now, if Mr. Rusling honestly removed the plaintiff, it is not for us to inquire whether his discretion was wise. ly and prudently exercised or not. If there was no malice in his act, and no want of probable cause for it, the court and jury have nothing to do with it. Indeed, as this office of class leader confers no civil rights, the question was made in the argument, whether, even supposing that the plaintiff had stated a sufficient ground of action on the other point, this could be made the subject of a suit at law; whether, in other words, the loss of such an office, under any circumstances, could produce such a damage as the law would recognise. Whatever I might have deemed it my duty to say, had this been the only or the prominent question in the cause, I hold it right, considering the direction which the counsel on both sides have given to the case, to regard this also as a reserved question of law, and, for the present, to assume the position that the action will lie even on this part of the plaintiff's declaration.

"To receive, try, and expel members according to the forms of discipline."

In the seventh section of the second chapter, in answer to the question, "How shall an accused member be brought to trial?" it is declared as follows:

"Ansio. 1. Before the society of which he is a mem

But as the malice and the want of the probable cause must be shown, in order to sustain it, it will be necessary for you to look carefully at the facts. The 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 evidence be procured. If the accused person be found guilty by the decision of a majority of the members before whom he is brought to trial, and the crime be such

[The Judge here referred to the circumstances under which these witnesses appeared, and the remarks of the counsel on both sides as to their credibility or accuracy, 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 not be rejected."

The amount of all this testimony seems to be, that Mr. Rusling, at a leaders' meeting, requested the plaintiff to give some explanation of a charge which he said he understood the plaintiff had been circulating, that he, Mr. Rusling, had made a false statement. To a request so reasonable as this, and urged, as it appears, in a becoming tone and manner, Mr. Shermer repeatedly declared he would give no answer, until he (S.) had a trial with Enoch Burnett. No reason for the trial with Burnett is given, and after consultation with the meeting, Mr. Rusling, in what he alleges to be the prudent exercise of his legitimate powers, removes the plaintiff from the

station of class leader.

The subject of the false statement, and the claim for a trial with Burnett, subsequently present themselves again, and will, hereafter, require some further no


Mr. Shermer complains of injustice-the subject is kept alive, and a trial before a committee of the congregation is ordered. [The judge here read from his notes, some of the testimony of the witnesses.]

A question was made in regard to the demand for this trial. From the record of its proceedings, and from the statement which Mr. Thatcher made to Mr. Shermer without contradiction, it would be fair to presume that Mr. Shermer called for it. However, this cannot be of much importance.

The trial before the committee is the second feature of this transaction, and as it led to the expulsion of the plaintiff from the church, it furnishes, what his counsel have properly stated it to be, the main ground of this suit. If the trial before the committee had not taken place, it is not probable that an action would have been brought concerning the place of class leader. This being undoubtedly the great question in the cause, the jury will give it the full investigation to which it is entitled.

The first matter in order is the accusation. Mr. Rusling charged the plaintiff with,

So far, it would be difficult to point out any evidence of malice, or want of probable cause, in relation to this removal. If the subsequent circumstances furnish any such evidence, it will be proper for you to consider it.

1. Slander, in these words: "Anthony Shermer has unjustly and falsely slandered my character as a minister, by propagating that I had made a false statement.

2. "For falsehood also, inasmuch as he did, on Thursday evening last, before a class, declare that he did not know why his class was taken from him.

"Philadelphia, June 19, 1829."

The next step is the appointment of the committee. In the ninth section of the first chapter of the work before mentioned, it is laid down to be one of the duties of the elder, deacon, or preacher who has the special charge of a circuit,

Mr.Thatcher testifies that, according to his impressions of his duty, where the contest was between a member and a preacher in charge, he, as the presiding elder, undertook to appoint the committee and preside at the trial. He therefore wrote to the plaintiff the note of the 19th of June, 1829, stating his views on this point, furnishing a copy of the charges, and requesting Mr. Shermer to attend before the committee at the time and place mentioned. Mr. Thatcher says, that when he delivered the charges to the plaintiff, he (the plaintiff,) expressed high satisfaction that Mr. Thatcher should try his case, adding, that he now should have justice done him.


Mr. Thatcher explains the manner in which he made selection of names for the committee, and Mr. Shermer, in his affidavit, submitted to the Supreme Court, which has been read to you, states the fact to be that Mr. Thatcher appointed the committee.

I have been thus minute on this topic, because, from something which fell from one of the witnesses, an effort

« VorigeDoorgaan »