People ex rel. Gearn agt. Farrington. the synod of New York had by a formal act entered into a coalition with another body, by which it had merged or lost its individual existence, and a portion of its members refusing to consent to or be bound by the act, had remained and organized themselves, the question as it would regard that remnant might be different. A question like this was presented to the chancellor of New Jersey in the case of The Associate Reformed Church agt. The Trustees of the Theological Seminary, (3 Green Ch. R., 79.) The general synod of the Associate Reformed Church in 1822 formed a union with the general assembly of the Presbyterian church, by which it surrendered its separate existence, and became merged in the latter body. This involved the transfer to the latter of the library and funds of the seminary which was under its charge and was not then incorporated. There was a considerable portion of the Associate Reformed Church who, refusing to become connected with the Presbyterian church, remained adhering to their peculiar tenets and their separate organization. They constituted, of necessity, the Associate Reformed Synod, if that body any longer existed, and they proceeded by bill against the Princeton Seminary, to whom their church property had been transferred. The chancellor of New Jersey held that the surrender of the majority of the Associate Reformed Synod, although it might have the effect of merging them in the Presbyterian church, did not put an end to the body which they left, if there remained any constituents to form and re-produce, or rather continue, that body. He held, also, that it was a breach of trust to devote the property which had been contributed for the supply of the ministry of the Associate Reformed Church, to the use of another denomination; and on these grounds he administered the relief sought. But the question between these parties is, as I have said, one of legal right, not of the administration of a trust or a charitable use. It is a question only of the right of certain People ex rel. Gearn agt. Farrington. persons to sit in the Associate Reformed Synod of New York. I have been unable to see how the gentlemen who seceded from their associates at York, in October, 1858, were authorized to determine or to assume, or how the court can delare, that the participation of Mr. Arnold as a commissioner to the general synod in the completion of a union with another body of christians under a common government, had ipso facto destroyed his church membership, and vacated his church office, while the church to which he belongs still survived, and was intended to survive, and he declared his intention of continuing his connection with it. The learned counsel for the defendants insist, that by their action as individuals, Mr. Arnold and those who concurred with him, had joined a different religious body from the Associate Reformed Church to which they had belonged, as if they had become members or office-bearers in the Episcopal or the Methodist church. I am not prepared to admit the analogy of the present case to such a supposed state of facts. The United Presbyterian Church is rather a name for the union or combination of two religious bodies, each of which was to retain its own organization, and might apparently adhere to its own opinions, so far as they differ from each other. The United Church was not an existing body in which synods or individuals might or should have become merged. The union between the two synods, in 1858, was essentially different from the surrender to the general assembly in 1822. I do not, therefore, feel called upon to decide whether the act of becoming connected with another religious body, would of itself dissolve the connection of an individual with this church. If it were necessary to decide such a question as far as mere legal rights and conditions were concerned, I should not think that such an act alone would ipso facto exscind the member, if he had not renounced his church. It may be a part of the discipline of this or of other churches, to forbid such an irregular connection with another body; but until the discipline was 1 People ex rel. Kearney agt. Kelly. applied, by an expulsion of the offender, I do not see that his legal rights or position would be affected. Indeed, if the act of the member of itself terminated his connection with the church; no discipline could be exercised upon him. After a diligent consideration of the case, aided by the very able arguments of the counsel on both sides, I have arrived at the conclusion that I am not required or authorized to go beyond this point. I am of the opinion, that the action of the persons who constituted the body from which the defendants derive their title, was premature and irregular; that it was a secession from the synod, and not the constitution of the true synod; and that it cannot be relied upon to confer any legal rights. I must therefore hold that the plaintiffs are entitled to judgment. SUPREME COURT. THE PEOPLE ex rel. KEARNEY agt. JOHN KELLY, sheriff, &c. It is not necessary that an attachment for commitment, for disobedience of an order made by a judge in supplementary proceedings, should be issued by the same judge who made the order; it may be issued by another judge, or by the court itself. (Following the case of Wicker agt. Dresser, 13 How. Pr. R., 331; and in opposition to Shepherd agt. Dean, id., 173.) The abolishing imprisonment for the non-payment of costs does not apply to a judgment debtor in supplementary proceedings, who is in contempt for not paying a judgment and costs under an order previously granted. New York Special Term, December, 1861. H. D. LAPAUGH and Mr. OTIS, for prisoner. LEONARD, Justice. Kearney applies to be discharged from imprisonment on habeas corpus. He was committed to jail as for contempt, on attachment People ex rel. Kearney agt. Kelly. issued out of the New York common pleas, for disobedience of an order made by Judge HILTON, in proceedings supplementary to execution, directing Kearney to pay the plaintiff in such proceedings the amount of the judgment therein, with interest, and $25 costs and disbursements, within ten days, or in default thereof that an attachment issue. The writ of attachment recites the said proceedings and the said order, also the service of the order on Kearney; the lapse of ten days appears from the dates; and the default of Kearney in not complying with the order is stated. The process then directs the sheriff to attach Kearney, commit him to jail and there detain him in close custody till he complies with the said order and pays the judg ment, $313.37, and interest from August 1, 1861, and $25 costs, or until discharged by due process of law. The order directing the issue of this attachment has been brought into court, and appears to be signed by Judge DALY as an order in a proceeding before him, but is entitled "At chambers of the court of common pleas of the city and county of New York." The clerk of that court has indorsed the writ "By special order of the court." The counsel for the relator insists that no contempt is charged in the process, and that the order for the attachment to issue and to commit the prisoner was made without authority. The law in respect to habeas corpus precludes any inquiry into the justice or legality of the order or judgment directing the imprisonment. Those questions are to be determined on appeal, or in some way other than by habeas corpus. If the court or officer had jurisdiction to pronounce the order or judgment directing the imprisonment, and in cases of commitment for contempt, if the contempt is specifically and plainly charged in the process, the prisoner must be remanded. People ex rel. Kearney agt. Kelly. It is not claimed that Judge HILTON had not authority to direct the payment of money by the defendant Kearney in proceedings supplementary to execution. The point made in this respect, in behalf of the prisoner is, that the proceedings not being before Judge Daly, he had not authority or jurisdiction, under section 302 of the Code, to order the attachment to issue; and that the court of common pleas had not the jurisdiction to direct its issue, but the judge alone before whom the proceeding was pending. That the clerk marked the process" By special order of the court," in an unauthorized manner. The objection is of course strictly technical, and does not involve the real merits of the imprisonment. The prisoner is, however, entitled to a fair consideration of the question raised. The conflicting authority of the two cases reported in 13 How. Pr. R., has perhaps given rise to this application; Shepherd agt. Dean, (p. 173,) holding that the contempt could be adjudged only by the judge before whom the proceedings were pending, while Wicker agt. Dresser, (p. 331,) holds not only that the process may be issued by another judge, but also by the court. The latter decision having been made in the supreme court of this district, should, I think, be now adhered to in this case. I am also satisfied with the reasoning of the learned judge who pronounced the decision. The order directing the attachment to issue must be considered as the order of the court, and that the clerk regularly marked the writ. The writ omits to state that the prisoner was adjudged to be guilty of contempt, but the facts stated clearly amount to a contempt. The attachment, in this respect, plainly charges a contempt. It was also objected by the counsel for the prisoner, that he was incarcerated for the non-payment of $25 costs, as well as the non-payment of the judg ment, and that imprisonment for costs had been abolished. |