#### * Thomas Cochran *versus*The Inhabitants of Camden.

When a town has settled a minister, an action will lie for his salary against the town, notwithstanding there may be several unincorporated religious societies or associations within the town, the members of which may be exempted by law from contributing to the support of such minister.

Of ecclesiastical councils, their authority, and the persons by whom they may be convened.

This was an action of *assumpsit,*brought by the plaintiff for the arrears of the salary alleged to be due to him, as minister of the town of *Camden.*A verdict was taken by consent for the plaintiff, at the sittings here after the last October term, before *Jackson,*J., for the sum demanded, *viz.,*for the amount of his salary from the 1st of December, J S14, to the 25th of August, 1816, with interest from the time when it was payable ; subject to the opinion of the Court upon the following case, as reported by the judge.

The plaintiff, on the 8th of September, 1805, was duly settled and ordained as the minister of the town of *Camden.*By the terms or articles of his settlement, the town agreed to pay him “ five hundred dollars, in regular yearly payments, during his being and remaining the minister of said town.” And it was, by the same articles, “ expressly stipulated by the committee, *(viz.,*of the town,) in behalf of the inhabitants of said town, that, should the town and the Rev. Mr. *Cochran,*or either of them, be unfortunately hereafter dissatisfied with the other, they shall each have the right, by giving six months’ notice of the wish. for a dismission, to call a council, whoso duty it shall be, at the request of either party, to dissolve the connection between the town and their minister, unless such dissatisfaction can be mutually accommodated.”

It was admitted that the plaintiff officiated, as the minister of said *271town, until about the 1st of December, 1814; and that his salary had been paid up to that day.

At a legal meeting of the freeholders and other inhabitants of said town, held on the 4th of May, 1814, it was voted, pursuant to an article for that purpose in the warrant, to choose a committee to dissolve the contract between the plaintiff and the said town ; one hundred and nine voting in the affirmative, and twenty-six in the negative. A committee of seven was then chosen, to dissolve the connection between the town and the plaintiff, according to the said * articles of his settlement; and instructed to consult the plaintiff and the church respecting a council, and to give the necessary notice to the plaintiff, agreeably to the said articles of settlement.

The said committee, on the 26th of said May, sent an attested copy of the said votes and proceedings of the town, with a communication in writing, signed by the committee, in which they give him notice that, agreeably to the said articles of settlement, and in conformity with the votes aforesaid, *“*his settlement over the said inhabitants, as their minister, and the annual salary arising out of that settlement, will cease from and after the expiration of six months from the date of that information.” In the same communication they assure him “ that they will be ready, at such time and place as he may think fit to appoint, to meet him and the church, or either of them, should he desire it for his own personal con venience, to agree on a council honorably and amicably to dissolve the connection.” They then add, that they “ are further directed by the town to state to Mr. *Cochran*that the town will pay no further salary after the expiration of six months from this notice ; ” and conclude with mentioning the divisions in religious opinions among the inhabitants which had rendered these measures necessary, and with a tender of their thanks to the plaintiff for his ministerial labors and his friendly conduct among them.

The plaintiff, upon reading this communication, and repeatedly afterwards, observed to the committee that the town had acted agreeably to the articles of his settlement, that it was a hard case for him; that he should want a council, and would confer with his church, and would soon let the committee know when and where he would meet them and agree upon a council.

Afterwards, the plaintiff having refused to join in a mutual coun cil, the same committee, in April, 1815, wrote letters to five of the neighboring ministers, requesting each of them “ to meet with his brethren in the ministry, to wit,” (* naming the other four who were requested to attend,) “ as a council, to dissolve the late connection between the town and their minis*272ter; ” and appointing the 1st day of June then next for the meeting of the council.

Four of those ministers wrote answers to the committee, signify ing their intention to attend, as requested ; and on the said 1st day of June, three of them did attend. Two of those three were duly authorized, by their respective churches, to act as an ecclesiastical council; and one of them had with him a delegate from his church. But the other of those three ministers had no delegate from his church, and was not authorized by them to act, and did not consider himself authorized to act. as a member of an ecclesiastical council. As the above-mentioned letter of the committee had not expressly requested the attendance of the churches of the said respective ministers, the church last mentioned did not appoint any delegate, nor take any measure respecting the said council. For these reasons, with others, the plaintiff formally protested against the proceedings of those who were so assembled, on the said 1st day of June, as a council. Several members of the plaintiff’s church attended on that occasion, and did not make any objection to the proceeding of the ministers then assembled as a council; and they were not asked if they had any objection, as the said ministers, or a part of them, considered that they were not authorized, and did not intend to proceed. The said council then adjourned to the 4th of July following, it being expected that a number of other ministers and churches would be invited to meet with them at that time. The said three ministers who were present w'ere requested, by the committee, to attend at that time with their respective churches, and promised to do so; and the committee sent letters to four other neighboring ministers, requesting them to attend, with their respective churches, on the day last mentioned. But two ministers only, with their churches, did attend on that day; and these did not consider themselves authorized to act as a council, * nor did they take any measures as such. They, however, gave their opinion and advice, as friends, to the said parties; and the plaintiff expressed his willingness to comply with it, but the defendants declined so doing.

The meeting-house in *Camden,*in which the plaintiff had usually officiated, was not the property of the town, but was owned by certain individuals there. These proprietors were incorporated by an act of the General Court passed in February, 1815 ; and the committee of said proprietors did, in the spring of the year 1816, exclude the plaintiff from the said meeting-house, and prevented his ever officiating therein after that time.

On the 25th of August, 1816, an ecclesiastical council convened, at the request of the plaintiff and his church, and declared his con*273nection with them to be dissolved. This they did, as it is expressed in their opinion or result, “ without reflecting on said pastor or the people of his charge — the conditions of his settlement and contract being such as 1o preclude inquiry into the causes that have led to the event; ” and they proceed to recommend the plaintiff to all Christian people, as a regular minister in fair and good standing.

It appeared that there were, in May, 1814, three unincorporated religious societies or associations in said *Camden,*exclusive of the Congregational society; and the members of those unincorporated societies, or many of them, had procured certificates, in the manner prescribed in the statute of 1811, c. 6, to exempt them from taxation by any other religious society. The plaintiff produced evidence to prove that, at the said town meeting held on the 4th of May, 1814, many of the inhabitants of the town who belonged to the said unincorporated societies, and who were not taxed towards the support of the plaintiff, did vote on the question of his dis-mission. The members of the plaintiff’s church, or some of them, continued to consider him as the minister of the town until the said 21st of August, 1816 ; and the plaintiff considered himself as the minister, and was * ready to perform his duties, as there was opportunity or occasion therefor.

If the Court should be of opinion that the plaintiff was entitled to recover the sum found by the jury, the verdict was to stand; otherwise, it was to be set aside, or to be amended or altered, as the Court should order.

*Hoar,*for the defendants,

contended that the cause of action, if any, was against the parish, and not against the town. It is true there has been here no incorporation of a parish *eo nomine ;*but the incorporation of a town is, *ipso facto,*the incorporation of a parish ; and it is in the character of a parish, only, that a town can contract with a minister. If this has not been the subject of a judicial decision, it is plainly to be inferred from the fact that the erecting of a second parish in a town has been held to constitute the remaining part of the town a parish, without any incorporation.

Nor is this an objection of mere form; for, if the present action is supported, all those who have separated from the society to which the plaintiff has ministered, and have formed associations for the maintenance of public worship in a manner agreeable to their convictions, will be held to pay their share of the judgment to be rendered against the town. This is a consequence directly in opposition to the declaration of rights, and a plain infraction of the privileges secured to the citizens by the statute of 1811, c. 6. And indeed this statute has, in effect, changed the nature of the contract originally made between the present parties. It has transferred its *274obligation upon the parish, or those who adhered to the plaintiff, and has relieved those from it who belonged to other sects or denominations of Christians. (1) The intention of the statute referred to may in this way be wholly evaded. A parish, by suffering itself to be sued for the minister’s salary, can always throw the burden upon all the inhabitants, although many of them have a constitutional exemption from the demand.

*But if this objection be overruled, it is insisted that the plaintiff has no ground to demand his salary, after the expiration of six months from the notice given him by the committee. It was not the intention of the parties to the agreement that the plaintiff’s dismission should depend upon an ecclesiastical council. Such a body could have no authority to alter the terms of a civil contract. Theological questions only belong to them. (2) It was the proper duty of such a council, if one had been convened during the six months, to have dismissed the plaintiff, upon evidence of the single fact that the parish had given him the notice of their dissatisfaction provided for in the terms of his settlement. There was nothing for a council to deliberate upon.

But here was a sufficient council, duly convened on the 1st of June, 1815. They might have done all that was necessary to be done, and probably would have proceeded to the business assigned them but for the plaintiff’s interference and protesting against their authority. There is no ecclesiastical rule, nor any usage of the country, which makes any particular number of members necessary to the constitution of a council. Instances have been known of the delegates of a single church acting and being recognized as a legitimate council. Whether, however, there was a competent council in the present case or not, the defendants did all in their power to procure one. They could not compel the members to convene ; nor, when they were convened, would it have been in the power of the defendants to oblige them to act.

*Webster*and *Phinney*for the plaintiff.

(1)

 See 14 *Mass Rep.*340, *Adams*vs. *Howe & Al.*in Error. — 4 *Mass.*Rep. 570*Thaxter*vs. *Jones*& *Al.*

(2)

9 *Mass. Rep.*290, *Burr*vs. *The First Parish in Sandwich.*

Parker, C. J.,

delivered the opinion of the Court. The first question in this case is, whether the action is rightly brought against the town ; it having been contended that a town, as such, cannot contract parochially, but that every contract made with a town is, Mrtual), made with it in its parochial capacity, in which alone it can be bound for any ecclesiastical purposes.

* But the objection is founded upon mistaken principles. By the constitution, and by the statutes of the *275government, towns are authorized to choose and contract with their ministers; and by the latter they are required, as well as parishes and other religious societies, to be provided with a minister. They are also authorized to assess taxes, for the building and repairing of meeting-houses, and for the support of the ministry. Until a parish is created within a town, the town itself has all parish privileges, and is liable to parish duties. It may be doubted whether they can be legally sued as a parish until, by means of the incorporation of a parish within its boundaries, the residue of the town becomes a parish, as is provided by law. But it is at least as proper to sue them by their municipal as their parochial name when the contract is made with them in their former capacity, (a)

In the case before us, the contract was made between the plaintiff and the town of *Camden,*and he was settled as a minister over the town. It does not appear that any part of the town has been incorporated into a distinct parish, or that any poll parish has been created within the town; so that the relation between the parties stands as it did when the contract was made.

As to the inconvenience of making the property of inhabitants w-ho may belong to a different sect or denomination liable upon the execution, this results from their civil and municipal relations, and such persons will have a remedy by action against the town, if they are prejudiced.

On the next point, *viz.,*that the plaintiff was dismissed according to the original contract, so that his ministerial connection was dissolved before the term commenced for which he claims his salary in the present action, — this must depend upon a true construction of the contract under which he W'as settled.

The original agreement was that, if the town and the plaintiff, or either of them, should be dissatisfied, they should each have the right, by giving six months’ notice, to #call a council, whose duty it should be, at the request of either party, to dissolve the connection between the town and their min ister, unless such dissatisfaction could be mutually accommodated. The town, accordingly, on the 4th of May, 1814, chose a committee to dissolve the contract, and that committee notified the plaintiff that the connection would be dissolved, and his salary cease, in six months from that time.

It is now insisted that the ministerial relation of the plaintiff to the town did terminate at the end of six months from the notice so given, notwithstanding there was no decision of a council on the *276subject of his dismission until August, 1816; for it is said that the calling of a council was merely formal, that body having, according to the original terms of settlement, no right to deliberate, but being required to dismiss on the application of either party.

But this construction cannot be reasonably given to the contract. If such were the true construction, the calling of a council would be altogether idle, if not affrontive to the persons of whom it should be composed. Indeed it appears, by the terms of the original agreement, that one of the offices of the council was intended to be a reconciliation of such differences as might be found to exist. It must also be supposed that they would advise as to the terms on which a separation might usefully and honorably take place; for it cannot be thought that the parties intended, if the application for a separation should be found to be wholly unreasonable on the part of the town, that the connection was to be dissolved without some indemnity to the minister for the inconvenience and the loss of prospects he might suffer.

Another subject of deliberation for the council undoubtedly was the conduct of both minister and town in their pastoral relation; for the future comfort and respectability of both might be much affected by the result which might be arrived at, — with respect to the faithful performance of * duty, and good moral character, of the one, and the kindness and honorable demeanor of the other.

For these reasons, we think that the convention of a regular council, to pass upon the question of dismission, was essential to the dissolution of the contract; and that it was so contemplated by the parties when they entered into it.

But it has been urged, because the plaintiff did not join in the calling of a mutual council when requested, and, when an *ex parte*council called by the town was convened, he objected to their proceeding upon the allegation that, so assembled, they were not authorized, according to the usage of the country, to act and decide, that the plaintiff ought not to claim any salary after the wishes of the town had been explicitly stated to him.

But it does not appear that the plaintiff was wrong, or acted inuriously to the town, in this respect. He was not obliged to join in calling a mutual council; indeed, the doing so might have been construed into a desire on his part that the relation should be dissolved ; and thus he might have impaired his claim to a reasonable allowance for the great change of circumstances that awaited him. By this, the defendants were not injured, nor need they have been delayed; for they had a right, by the usage on these subjects, which is the law of the land, to call an *ex parte*council, if there was a *277refusal or an unreasonable delay to join. The various ineffectual attempts which were made to convene a council were the misfortune of the defendants, not imputable to the plaintiff, *(a)*

Holding, then, as we do, that, according to the letter and spirit of the contract, the minisi erial connection of the plaintiff with the town continued until the decision of a council regularly convened was had, and there having been no such decision until the 25th of August, 1816, to which time only the plaintiff claims his salary, we see no objection to the verdict, and judgment must be rendered accordingly.

(a)

*Dillingham*vs. *Snow & Al.*5 *Mass. Rep.*547. - Jewell vs. Burrows, post, 464 — *Humphrey*vs. Whitney, 3 *Pick.**1*58.

(a)

**Vide *Avery*vs. Tyringham, 3 *Mass. Rep.*160.— *Chaddock*vs. Briggs, 13 *Mass. Rep.*248. — *Burr*vs. Sandwich, 9 *Mass. Rep.*277, and note to next case.— *Thomson*vs. Cath, *Cong. Soc.*Rehoboth, 5 *Pick.*469. — 7 *Pick.*170.