When a case is under the provision of C. C. P., submitted to the Judge to decide facts, as well as law, a novel state of things exists. He, as Judjge, is to admit or reject evidence, and is to charge himself upon the questions of law applicable to the case, and is then, as jury, to find the facts and render a special verdict. The same is the mode of procedure before a referee.
The referee, in the case before us, commits a grave error in assuming that what amounts to a voluntary withdrawal of members from a religious association, is a question of fact.
What amounts to a duress, is a question of law. What amounts to undue influence, is a question of law. On the like principle, what amounts to a voluntary withdrawal of members, is a question of law. The referee erred in not instructing himself clearly upon this question of law. Had he done so, he would have seen the relevancy of the evidence which he rejected.
The plaintiffs, and those acting with them, aver that they constitute the Second Baptist church of Baleigh. That by the arbitrary and high-handed conduct of the defendant, (being colored people and unwilling to do any act that might *732lead to open force on tbe part of a white man, who had acted as their “ shepherd,” and acquired much influence over them,) after the meeting, 25th September, 1872, they procured a house, other than the building in which for several years they liad been accustomed to hold meetings for worship and for business, and from which they were expelled by the defendant, and continued to worship and transact business under the organization of the Second Baptist church, Raleigh, consisting of all of the deacons, all of the trustees, save one, and more than two-thirds of the entire association. These al legations, if true, showed that, as a legal inferenee, they had not withdrawn from the association voluntarily, and the evidence excluded by the referee, tended to prove the allegations to be true in point of fact.
We think the referee also erred in the legal inference, that the house in which the meetings of the association was held, made any essential difference. The law of the association requires the members to reside in Raleigh, and the meetings to be had at some place in Raleigh, but there is no provision making it essential that the meetings should be held in any house or at any particular place, like a statute which requires the Legislature to hold its meetings at the State House, in Raleigh, or the Superior Courts to be held at the court houses in the several counties.
The law of this association does not make the place of Holding meetings a condition precedent to the regnlarhy or legality of the action of the association. The legal inference, that withdrawing from the accustomed place of worship, supposing it to be done with sufficient cause, by the deacons, trustees and a large majority of the association, is a withdrawal from the association, is not a sound one. That error and the others set out entitles the plaintiff to another trial.
The referee, after injecting the evidence on the ground that it is inadmissible and irrelevant, goes on to say, that in coming to his conclusions on the questions of fact, he gave to this *733rejected evidence tbe same consideration as if it bad not been rejected. We are unable to comprehend the idea intended to be expressed.
There is error. Report set aside and judgment reversed, and another trial ordered.
Per Curiam. Judgment reversed, and venire de novo.