46

to the jury. The cases of injuries to persons
while crossing the track at permissive crossings
are not analagous, and have no application.
When the right to cross at a particular place is
established, by permission or otherwise, the
duty of ordinary care is incumbent upon the
company. But in the present case the plaintiff'
was not engaged in the act of crossing the track
or even the platform when he was injured, and
therefore the cases on this subject are not in
point. Upon the whole case we discover no
evidence of any breach of duty owing by the
defendant to the plaintiff, there was no pretense
of wanton injury, and therefore the first and
second points of the defendant should have been
affirmed.
Judgment reversed.

this case, having safely passed the crossing appropriated to travelers, the engineer was under no duty to suppose any one would attempt to cross the track suddenly right in front of the engine. He had a right to suppose a clear track, and was not guilty in failing to use precaution where he had no reason to expect interruption." In Hargreares v. Deacon, 25 Mich., 1, the court said, the plaintiff, being a child of tender years, we have found no support for any rule which would protect those (child or adult) who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant." In Morrisey v. Eastern Railroad Co., 126 Mass., 377, the action was brought by a child four years of age, who was injured while playing upon the track of the defendant, the court said: "The plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. He was neither a passenger, nor on his way to become one, but was there merely for his own amusement, and was using the track for a play-ground. The defendant corporation This was an action of ejectment in which the owed him no duty, except the negative one, not plaintiff's claimed title by virtue of a sheriff's maliciously or with gross and reckless careless-deed, executed in pursuance of a sale on a judgment in favor of Balthaser Jenny, Sr., and against F. Zehnder and others.

J. J. JENNY et al. v. F. ZEHNDER et al.

Where the lien of a judgment is in question, and it appears that it is entered in the name by which the debtor is known, though it be not his Christian name, and he be also known by the latter, and that he signed his name in both modes, it becomes a question for the jury and not for the court.

Error to the Court of Common Pleas, No. 1, of Allegheny county.

The defendants claim title by virtue of a deed from John Jacob Frederick Zehnder and Margaretta, his wife, to Henry Lafferty: the title being made to Zehnder by his three Christian

names.

The testimony showed that Zehnder at times signed his name as J. J. Fred. Zehnder, and at others as Fred. Zehnder; that his Christian name was John Jacob Frederick; that he was known among his intimates as Fred. Zehnder; by others as Mr. Zehnder, and by defendant also

as John.

ness to run over him." In Gillespie v. Me-
Gowan, 30 PITTSBURGH LEGAL JOURNAL, 50,
we held that the owners of unenclosed lots in
Philadelphia owed no duty of protection even
to children against the danger of falling into an
open well on the premises, although the field
in question was crossed by frequented paths and
used as a place of resort by children and adults.
In Moore v. Philadelphia & Reading Railroad
Co., 11 W. N. C., 310, we held there could be no
recovery for the death of a boy ten years of age,
who was struck by an engine while walking on
and along the track, on the ends of the cross-ties.
We said: "The circumstance that the tres-
passer in this instance was a boy ten years of
age cannot affect the application of the rule.
The defendant owed him no greater duty than
if he had been an adult." In the case of Phila-
delphia & Reading Railroad Co. v. Heil, 5 W.
N. C., 91, a child four years of age was struck, as Land Frederick Luty.
it was claimed, by the projecting axle box of á
car, which extended one foot six inches beyond
the outside of the rail, and three inches over the
line of the street curb. He was on the public
street-walk where he had a right to be, but he | 1882.
was so close to the car that he was struck, as
was supposed, by the projecting axle. We held
that there was no sufficient evidence of negli-
gence in these circumstances to submit the case

The judgment in the case was entered upon a note signed Fr. Zehnder.

The court instructed the jury to find for the defendants.

For plaintiffs in error, Messrs. J. H. Mueller

Contra, Messrs. John Barton and Chas. F. McKenna.

Opinion by GORDON, J. Filed November 20,

So far as we can gather from the scanty record before us, the judgment in controversy, the one on which the sheriff's sale was made, and under which the plaintiffs claim was entered

Rt. Rev. JOHN TUIGG, Bishop of the Diocese of
Pittsburgh, v. Rev. PATRICK M. SHEEHAN.

1. An action of assumpsit will not lie against the Bishop
of a Diocese of the Catholic Church by a priest of the
Diocese for the recovery of salary allowed under Dio-
cesan laws to priests serving as pastors or assistant
pastors, or for its equivalent the support of such a
priest for any period of time when he is not in the
actual discharge of the duties of his profession.
2. The relation between the Bishop of a Diocese in the
Catholic Church and that of a priest of the Diocese, is
not that of principal and agent nor hirer and hired.
The obligation of the church to provide a decent sup-
port to its clergy is not such an undertaking that the
law will recognize it as a civil contract capable of be-
ing specifically enforced in the courts, nor will dam-
ages be allowed in compensation for breach of such an
obligation.

against "Fr. Zehnter." It would seem also, that the note on which the judgment was founded was signed "Fr. Zehnder." As there was no material difference in the name as found in the note and judgment, and as it appears on the index, it is clear that the plaintiff was in no default in not seeing that his judgment was properly docketed. The use of the letter "t" for “d” in the surname, was but the substitution of that which would, in English, have the same sound as the German "d," and this, as was held in Myer v. Fegaly, 3 Wr., 429, was not a fatal error. Neither was the omission of the small "r" from "Fr." of any serious moment, since both are contractions for the name "Frederick," and if such contraction is allowable at all, the one, for the purposes of notice, was just 3. Where a priest has an actual contract for his salary as good as the other. But it has been held that the signing of "A" for the Christian name "Abel" is good, or if the name used is that by which the debtor is commonly known it is all that is required by the act prescribing judgment 4. The exercise of the appointing power by Bishops in dockets: Jones' Estate, 3 Ca., 336. It does not follow that a man must adopt the name given to him in his infancy by his parents. He may reject part or, for that matter, the whole of it, and assume some other. The real question is, by what name is he generally known? In the case in hand, as we have said, the plaintiff was in no default; he could do nothing else than what he did; as the note was signed so it was carried on to the judgment docket, and nothing more than this could be done.

with his congregation or his Bishop, it may be enforced as any other contract; but where he relies upon the duty of his church to support him, he must invoke the aid of the church if he seeks redress. The civil courts will not interfere in ecclesiastical controversies except where the rights of property are concerned.

the Catholic Church in assigning a priest to a congre-
gation does not make the Bishop liable to the priest
for salary or support.

5. The test of the right of a priest to support does not
depend simply on his observance of the laws of the
land and of his church; his usefulness and fitness for
his holy calling may be impaired in many ways with-
out a conviction for crime or removal from office. The
discretion to decide such question must reside some-
where, and no authority is so competent to do so as
the Bishop. To submit such a question to a jury in a
common law proceeding is as novel as it is unsafe.
6. A priest of the Catholic Church being enabled by the
civil law to lay down his office at pleasure, without
incurring legal amenability to the Bishop in damages
for violation of his ecclesiastical obligation, the relation
between the priest and Bishop lacks the mutuality in-
cident to a civil contract. A priest can have no higher
rights in the civil courts than the Bishop.

Cheeney v. Protestant Episcopal Bishop of Illinois, 58 Ill., 509, and Rose v. Vertin, 46 Mich., 457, followed. Error to the Court of Common Pleas, No. 2, of Allegheny county.

This was a reference in the court below to

In these particulars the circumstances are essentially different from those in the cases of Wood v. Reynolds, 7 W. & S., 406, and Hutchinson's Appeal, 11 Nor., 186. In the first of these an initial letter, in the name of the defendant, by which he was principally distinguished Stack v. O'Hara, 29 PITTSBURGH LEGAL JOURNAL, 65; from two other persons of the same name, was omitted in the transcription from the continuance docket to the judgment index, and in the second, in a like transcription, the middle letter of the name was changed from "a" to "g," thus altogether destroying the defendant's identity. But if, in the case before us, there was any default at all, it was the default of the defendant in having failed to sign the note with that name by which he was commonly known. Whether this was so or not was a question for the jury. There is testimony showing that he was known among his neighbors by the name of "Fred. Zehnder;" hè so states the fact himself, and the | further proof is that he frequently signed papers This case has been so completely buried under as "Frederick Zehnder." Under these circum- a load of ecclesiastical lore that at first sight it stances the court below ought not to have taken would seem to present several points of apparthe case from the jury. ent difficulty. When, however, it is examined Judgment reversed and a new venire ordered. critically, the supposed difficulties disappear,

Hon. J. W. F. WHITE, under the Act of Assem-
bly, approved the 22d of April, 1874, dispensing
the sum of $800 for support and maintenance,
with a jury. He awarded Rev. P. M. Sheehan
and refused to allow the claim of $2,400 for three
A writ of error and appeal were taken.
years salary as a priest embraced in his suit.

Opinion by PAXSON, J. Filed November 20, 1882.

and the only real question in controversy can be disposed of by the application of a few well understood principles of law.

against the Bishop. He remained in Rome until 1878. While there Bishop Tuigg received three letters from the Prefect of the Propaganda The case below was this: The plaintiff, Rev. in Rome, in which reference was made to the Patrick M. Sheehan, is a priest connected with: plaintiff's irregular habits. The plaintiff left the Catholic Church, and brought an action of Rome in 1878, stopped a few days in London, assumpsit against the defendant, the Rt. Rev. landed in New York, where he remained for John Tuigg, Bishop of the Diocese of Pittsburgh, several weeks, and then went to his mother's to recover the sum of $2,400, being three years in Virginia, where he resided until the following salary as priest, at the rate of $800 per year. spring. He came to Pittsburgh in June, 1879, The suit was not based upon actual services, for and made another demand upon the Bishop for it was conceded that during the period within | work or a support, and was refused. Wherewhich compensation was claimed no services upon he brought this suit against him, claimhad been performed, but upon the duty to sup-ing three years salary. port its priests which it was alleged was a part of the law of the Catholic Church. The statute law of the Diocese, as found by the learned court below, fixes the salary of a priest in charge of a parish at $800 per annum, the amount claimed by the plaintiff. The court held that he could not recover this salary under the statute, but awarded him the sum of $800 for the three years under "the common law of the church which guarantees him a decent support.”

The learned court further found that "The plaintiff was not tried and convicted of any charges or complaints against him; he was not removed from any mission, congregation or post; nor was he formally suspended from the office, functions, rights or privileges of a priest. He was simply denied an appointment to any work, and refused any support by the defendant on the ground that plaintiff was not a priest of the Diocese, or if he was, he was unfit to have charge of a mission or congregation."

That the defendant acted in entire good faith and from conscientious motives is not only shown by the evidence but found by the court below. The learned judge says in the conclusion of his findings of facts: "I take great pleasure in saying, and so find if it be material, that there is no evidence that Bishop Tuigg, in the treatment of the plaintiff, was influenced by any personal, hostile or unkind feeling toward him. He acted from a conscientious sense of duty. He did not regard Father Sheehan as a priest of the Diocese, for whom he was bound to provide, but considered him more properly belonging to the Diocese of Allegheny. From what he knew, or had heard, he doubted his fitness for the charge of a congregation. He required evidence of his fitnesss, either by letters or trial in a religious house, before he would give him work or engage to support him; and the facts of the case justified these doubts and cautions. Father Sheehan had been absent from his Diocese for more than four years, and when he returned he brought no letters or evi

It appears from the facts found by the court that about the close of the year 1870 the plaintiff resigned his congregation at Cameron's Bottom, Indiana county, Pa., on account of ill health. The resignation was accepted by Rev. John Hickey, who was at that time administrator of the Diocese. Subsequently Father Hickey gave the plaintiff leave of absence until his health should be restored. He was absent until 1875, and returned to Pittsburgh in October of that year. Bishop Domenec was at that time Bishop of the Diocese of Pittsburgh. From 1875 up to the consecration of the defendant as Bishop of this Diocese some negotiations appear to have been going on with a view of assigning the plaintiff to some ecclesiastical duty. Nothing came of it, however, and after the date of Bishop Tuigg's consecration the plaintiff applied to him by letter and otherwise for an appointment to a mission or congregation. This request was refused by the Bishop for the reasons (1) that the plaintiff was not a member of the Diocese of Pitsburgh, but properly belonged to Allegheny, and (2) that the Bishop was not satisfied of plaintiff's fitness for the charge of a congrega-dence as to his deportment during his absence. tion and required some evidence on that point, especially of his deportment during his absence from the Diocese. It appears that the Bishop had evidence that during plaintiff's absence "his course of life had not been regular." After this refusal of Bishop Tuigg the plaintiff wrote to Archbishop Wood, of Philadelphia, to intercede in his behalf, but without effect. He then went to Rome and made an informal complaint. Under these circumstances is the Bishop lia

His non-employment and non-exercise of the priestly functions for six months immediately preceding the advent of the defendant as Bishop of the Diocese, were calculated to excite suspicion. His long delay in reporting himself after being sent home from Rome was inexcusable, and no doubt had great influence in defeating his application in 1879."

An appeal to the Supreme Court will not lie in actions evidence that the company defendant had any at law under Act of April 29, 1874.

Appeal from the decree of the Court of Com- been placed on the road side, and because the mon Pleas, No. 2, of Allegheny county. Opinion by PAXSON, J. Filed November 20, 1882, No appeal lies in this case. Its merits have been disposed of upon the writ of error taken to the same judgment. Appeal quashed. For plaintiff in error, Chas. F. McKenna, Esq. Contra, Messrs. Thos. M. Marshall and A. V. D. Watterson.