#### James Murdock *versus*The Trustees of Phillips Academy.

By the statutes of the Theological Institution at Andover a professor is under the immediate inspection of the trustees, and they may remove him from office for gross neglect of duty, &c. The visitors are empowered to hear appeals from decisions of the trustees, to review and reverse any censure passed by the trustees upon any professor, and to admonish or remove a professor for neglect of the duties of his office, &c. An appeal lies from the visitors to the Supreme Judicial Court, who are authorized to declare null and void any decree of the visitors which is contrary to the statutes of the founders or beyond the just limits of the power prescribed to the visitors. A professor was removed by a vote of the trustees, for neglect of duty, and upon successive appeals, the visitors affirmed the decision of the trustees and the Supreme Judicial Court affirmed the decree of the visitors. In an action by the professor to recover his salary, it was *held,*that he might prove that the vote of the trustees was founded on irregular and illegal proceedings of the trustees and so was not sustainable as a judicial proceeding.

The plaintiff having thus shown the invalidity of the decision of the trustees, and also proved a tender of performance of the duties of his office and a refusal by the trustees, it was *held*that his salary continued to run until the decree was passed by the visitors confirming his removal.

The decree of the visitors having been affirmed upon tne appeal to tne Supreme Ju dicial Court, it was *held,*that the plaintiff was not entitled to recover for his salary for any time after the passing of that decree.

*249So if the vote of the trustees had been ultimately supported as a regular judicial proceeding, the decision of the Supreme Judicial Court would have related back, so that the removal would have taken effect from the time of passing that vote.

A professor at this institution is not liable to be removed by the trustees upon considerations of mere expediency or convenience, nor unless he has forfeited his office for one of the causes mentioned in the statutes of the institution 3 the removal of a professor, therefore, by the trustees, is a judicial proceeding, and in order to render it legal and binding on him there must be substantially, 1. A monition or citation to him to appear 5 *%*A charge given him to which he is to answer 5 3. A competent time assigned for proofs and answers 5 4. Liberty of counsel to defend his cause and to except against the proofs and witnesses 3 and 5. A solemn sentence after hearing the proofs and answers.

Where a committee of the trustees appointed to inquire generally into the condition of the institution, examined the professors and other persons, and made a report concerning the plaintiff one of the professors, founded on statements made by himself and by other persons who were not examined in his presence, and the trustees, without notice to the plaintiff, voted that in view of the report and accompanying documents the interest of the seminary required that the plaintiff's connexion therewith should be dissolved 3 and after an unsuccessful attempt to induce him to resign, a committee of the trustees made a report recommending his removal, and the trustees sent a copy of this report to the plaintiff, and informed him that he might make any communications in regard to it, and that he might have the aid of counsel in preparing any argument or testimony which he might himself choose to present, but that he could not be heard by counsel,— but the trustees did not offer to file specific charges and to take upon themselves the burden of proving them by competent evidence in the presence of the plaintiff, and they refused him access to the documents which had relation to the charges intended to be relied on and from which the report of the committee containing the charges and the grounds of them had been prepared,—and the plaintiff declining to appear before them, they voted, upon the reasons and facts stated in the report, and without other evidence, inquiry, or hearing, that the report be accepted and that the plaintiff be removed from his office, — it was *held,*that independently of the first vote of the trustees, by which they disqualified themselves to act judicially on the question of removal, the plaintiff had not had the substantial benefit of a trial, and that the vote of the trustees was therefore ineffectual to remove him from his office.

Assumpsit to recover the salary of the plaintiff as Brown professor of sacred rhetoric' and ecclesiastical history in the Theological Seminary in Phillips Academy in Andover.

The parties stated a case.

The plaintiff was inaugurated into the office of Brown professor, on the 19th of June, 1819. He was to receive from the day of his inauguration a salary of *$*1500 a year during his continuance in that office, if the fund of *$*25,000 yielded that amount of income, and if not, then as much as it should yield. The plaintiff continued in office until the judgment of this Court affirming the sentence of the board of visitors of the seminary, unless he was sooner removed therefrom by the *250vote of the trustees, passed on the 18th of December, 1827, or *hY*the vote of the visitors, passed on the 14th of October, 1828.

The constitution of the Theological Seminary contains these provisions : —

“ Fourteenth. Every professor in this institution shall be under the immediate inspection of the said trustees ; and by them be removed, agreeably to the will of his founder, for gross neglect of duty, scandalous immorality, mental incapacity, or any other just and sufficient cause.”

“ Fifteenth. Whenever a professor in this seminary shall be removed by death or otherwise, the said trustees shall elect a successor within twelve months.”

By the statutes of the Associate Foundation, the visitors are empowered “to determine, interpret and explain the statutes of this foundation in all cases brought before them in their judicial capacity ; to redress grievances, both with respect to professors and students ; to hear appeals from decisions of the board of trustees, and to remedy upon complaint duly exhibited in behalf of the said professors or students ; to review and reverse any censure, passed by said trustees upon any professor or student on this foundation ; to take care that the duties of every professor on this foundation be intelligibly and faithfully discharged, and to admonish or remove him, either for misbehaviour, heterodoxy, incapacity, or neglect of the duties of his office ; to examine into the proficiency of the students, and to admonish, suspend, or deprive any student for negligence, contumacy, or any heinous crime committed against the laws of God or the' statutes of this foundation ; always administering justice impartially,” &c.

At the annual meeting of tne trustees, on the-21st of August, 1827, it was voted that a committee be appointed, to ascertain whether any violations of the laws of the Theological Seminary had taken place, and what measures, if any, had been taken by the faculty to enforce the laws ; and generally to inquire into the conduct and measures of the students and of the faculty, so as to present a full view of the internal state of the Theological Seminary in all essential particulars ; sug*251gestmg such remedies for any evils which blight be found to exist, as to them might appear expedient.

This committee met at Andover on the 27th of August, 1827, and voted that the professors be called upon individually and inquired of whether any violations of the laws of the seminary have taken place, —if any, what,—and the occasion of such violation ; whether the laws in relation to such violations have been enforced by the faculty ; and if they have not been enforced, what have been the causes of such a state of things.

The plaintiff attended before the committee, at their request, and answered the several inquiries put to him by the committee. Other persons, besides the professors, attended before the committee at their request, and answered various inquiries put to them ; and among other things, inquiries were made as to the manner in which the plaintiff bad discharged the duties of his office, and as to the subjects upon which the charges were afterwards exhibited against him. The plaintiff and the other persons who attended before the committee, were inquired of separately and not in the presence of each other.

At a meeting of the trustees on the 26th of September, 1827, the committee made a report, which the trustees have refused to permit the plaintiff to inspect, except the part consisting of the minutes of his own examination before the committee. The statements made by the plaintiff before the committee were used by them in making their report and in framing the charges afterwards exhibited against him. The report contains statements of other persons in relation to the plaintiff, which statements he did not hear and was not permitted to read, and which were used in making the report and in the charges afterwards exhibited against him.

At this meeting the trustees voted, that in view of the report of the committee of inquiry and accompanying documents, it was the opinion of the board, that the interests of the seminary required that the connexion of Dr. Murdock therewith should be dissolved. The trustees did not give the plaintiff notice of their intention to pass such a vote. A negotiation was then opened by the trustees with the plaintiff, who was requested to resign his office, but the terms prescribed bv him *252upon the performance of which he would resign, not being accepted, the negotiation was broken off.

At a meeting of the trustees on the 2d of November, 1827, a committee was appointed to consider what further measures the trustees should take in relation to Dr. Murdocx, and so much of the report of the committee of inquiry as relates to the jealousies and contentions existing in the faculty of the institution, the evils resulting therefrom and the remedies they propose, was referred to this new committee. This committee made a report, at the same meeting, giving a detail of the jealousies entertained by the plaintiff of the other members of the faculty and of the trustees, and specifying instances of neglect of duty. The committee then say; — “ The preceding just and sufficient grounds for the removal of Dr. Murdock are furnished by Dr. Murdock’s own statement to the committee of inquiry. From other evidence presented to that committee the preceding positions and specifications are abundantly confirmed ; and from this other evidence the board are furnished with the following additional just and sufficient causes for the removal of Dr. Murdock, viz.” &c. And “in view of the causes and considerations contained in the preceding report,” the committee recommend the adoption of a vote that Dr. Murdock “ be and he is hereby removed from his said office.”

The trustees voted that an attested copy of this report should be sent to the plaintiff, that he might have opportunity, if he thought proper, to make any communications in regard to it at an adjourned meeting of the trustees, to be held on the 15th of November ; which copy was furnished to the plaintiff on'the 3d of November.

The plaintiff, on the 15th of November, in a written communication to the trustees, requested an opportunity to be heard by his counsel and to show cause, by legal evidence, why he ought not to be removed on the ground stated in the committee’s report The trustees thereupon voted, that it was inexpedient to comply with the plaintiff’s demand to be heard by counsel, but that he should be allowed a hearing before the board, and that they would attend to any communication he might see fit to make the next morning.

*253The plaintiff afterwards, and before the vote of the trustees of the 18th of December was passed, removing him from office, repeatedly requested in writing to be heard by counsel before the trustees, touching the charges against him, which requests the trustees refused ; but on the evening of the 16th of November 1827, they informed the plaintiff, that while they did not deem it expedient to permit counsel to appear before them in his behalf, they were not unwilling that he should have the aid of counsel in preparing any argument or testimony he might choose himself to present to the board, and that he might have opportunity to introduce any pertinent testimony himself before the board, at such time as might be fixed upon for hearing him in relation to the report recommending his removal from office.

On the 19th of November the plaintiff requested in writing, of the trustees, that for his information and for the sake of taking copies to be used on his trial, he might have access to all records, documents, reports and other papers in possession < of the board, or of any committee of the board, or of any member of such committee, having relation to such specifications of charge as might be intended to be made against him ; to which the trustees replied, that in their opinion it would not be expedient to disclose to him any documents laid before any committee of their board, the grounds having already been stated to him upon which the board would proceed when they should act upon the report recommending his removal from office.

On the 17th of November the trustees voted, that while the question before them, of the plaintiff’s removal from office, should be pending, his official duties in the seminary should be suspended. This vote was not communicated to him until after the board had adjourned to the 18th of December. On the 19th of November the plaintiff protested in writing against this vote passed thus without notice to him, and he then tendered the performance of the usual duties of his office and prayed that the vote might be rescinded. The plaintiff from that day until the final decision of this Court removing him irom office, constantly resided at Andover.

The trustees, on the 18th of December 1827, (the plaintiff *254not being permitted to appear before idem by counsel, nor to examine the records, documents and papers above mentioned, and declining to appear before them himself or to make any answer to the allegations in the report of the committee,) proceeded to take the report into consideration, and the following is the record of their proceedings : — “ The board proceeded to consider the report of the committee recommending the removal of Dr. Murdock from office, and having deliberately examined and maturely considered the same and the important matters therein contained, and being satisfied that there was just and sufficient cause for the removal of Dr. Murdock from office, and that the interests of the seminary required a dissolution of his connexion therewith, voted, that said report be accepted, and in pursuance thereof, voted, that the Rev. James Murdock &c. be and he is hereby removed from his said office.”

The plaintiff thereupon, agreeably to the constitution and statutes of the seminary, appealed from the vote of the trustees to the board of visitors, and this appeal was pending before the visitors from the 18th of December 1827, to the 14th of October 1828, when the visitors, having previously met and fully heard the respective parties, decreed that there was no cause to reverse the vote, decision and act of the trustees, passed, made and done, on the 18th of December 1827, removing Dr. Murdock from his office, but that the same be affirmed and continued in full force, and that Dr. Murdock take nothing by his appeal.

The plaintiff appealed from the sentence of the visitors to this Court, by virtue of Si. 1823, c. 50, § 3,* and this appeal *255was pending from the 14th of October 1828, to some time in 1829, when it was decided by this Court, that the visitors had not exceeded the limits of their jurisdiction or acted contrary to the statutes of the institution, and therefore that the appeal must be dismissed and the sentence of the visitors stand in full force.

The salary has been paid to the plaintiff up to the 18th of December 1827.

Upon the foregoing facts, which the plaintiff offers to prove, he seeks to recover his salary from the 18th of December 1827, to the rendition of judgment by this Court upon his appeal.

The defendants contend that the only evidence admissible in the case, is the report of the committee of the trustees recommending the removal of the plaintiff from his office, the vote of the trustees thereon removing him, the decree of the visitors on the appeal affirming their doings, and the final decree of this Court affirming the decree of the visitors. But if any other evidence can be legally admitted, then it is agreed that the foregoing facts shall be admitted for the purpose of this trial. In either case the defendants deny any liability on their part to pay the plaintiff his salary after the 18th of December 1827.

If in the opinion of the Court the defendants are liable, they are to be defaulted and judgment is to be rendered for the plaintiff for such sum as the Court shall order ; but if the defendants are not liable, a nonsuit is to be entered.

*Saltonstall*and *King*for the plaintiff.

The salary of the plaintiff was to be paid to him during his continuance in office. The performance of his duties as professor was not made a condition precedent to the payment of the salary, either expressly or by implication from the nature of the office , and if it had been, the tender and refusal of his services were equivalent to a performance.

It is agreed that the plaintiff remained in office until the final decree in this Court, unless he was removed by the vote of the trustees, or by the decree of the visitors.

I. We contend that he was not removed from office, and that his office was not vacated by either of these proceedings.

*Nov.*17 *th,*1830.

*256This construction is to be supported from several considerations.

1. From the analogy this case bears to appeals in our common law courts, and in admiralty and probate courts ; but more particularly from the nature of appeals, as used and practised in all the courts of Massachusetts at the time of making these statutes of this corporation, and before and ever since. *Murdock, Appellant, &c., 7*Pick. 323. By an appeal from an inferior to a superior court in this Commonwealth, the sentence of the lower court is absolutely superseded. The sentence in the upper court is a new one, founded upon new proceedings and new evidence, and is wholly unaffected by any previous decision. Had the statutes made the professor removable in the first instance, by the Court of Common Pleas, giving him an appeal to this Court, the office would not have been vacant and a new appointment could not have been made pending an appeal. *Campbell*v. Howard, 5 Mass. R. 376. If an administrator is removed by the decree of a judge of probate, and appeals to this Court, the decree is superseded , the authority of the administrator over the estate of his intestate continues pending the' appeal, and his acts during that period tare valid and not at all affected by the final decree of this Court. So in the admiralty, the sentence below is arrested during the pendency of an appeal. *United States*v. *Preston,*3 Peters’s Sup. Ct. Rep. 57; *Yeaton*v. *United States,*5 Cranch, 281; *United States*v. *Wonson,*1 Gallis. 13; *Harvey*v. *Richards,*2 Gallis. 216; 2 Brown’s Civ. and Adm. Law, 454, 490.

2. From the provision in the statutes of the founder, “ that whenever a professor of this seminary shall be removed by death or otherwise, the said trustees shall elect a successor within twelve months.” If the twelve months begin to run before the decree of the ultimate appellate tribunal, then in case the trustees appoint a successor before such decree, there may be two incumbents in the same office claiming the same salary, at the same time ; and in case they omit to make such appointment, they hazard the forfeiture of the endowment. In the present case more than twelve months intervened be tween the vote of the trustees and the decree of this Court.

*257*3.*From the great inconvenience and injustice which, from the nature and. circumstances of the office, the plaintiff must suffer from being deprived of his salary pending the appeals The tenure of the office being for life, forfeitable for certain causes, and the very nature of the office as well as the statutes of the founder *(art. 20*and 21 of the constitution of the Theological Seminary, and *art. 5*of the statutes of the Associate Foundation) restraining the plaintiff from any other employment by which he might gain a support, it is just and reasonable that the salary should be paid so long as his connexion with the office continues, and until it is finally determined whether he is to hold or not. Otherwise he is in this dilemma, that while the appeal is pending, he must either be without the means of support, or if he engages in any other employment to obtain a living, he must by that very act forfeit his office.

4. The necessary effect of the appeal from the trustees to the visitors was to vacate, set aside and annul the vote of the trustees. In the language of this Court, it was “ entirely vacated.” 7 Pick. 327. And so the appeal to this Court entirely vacated the sentence of the visitors. The vote and sentence previous to the final decree of this Court were in the nature of a *suspension*of the plaintiff from his office, and it is well settled that suspension does not create a vacancy in an office. Until the final decision, the question was not whether the plaintiff should be restored, but whether he should be deprived. *Phillips*v. Bury, 2 T. R. 346 ; 1 Burn’s Eccl. Law, 64, cites Wats. c. 6, Dyer 240 b, and 6 Rep. 18.

II. But if the decree of the visitors, being founded upon a hearing and trial upon the merits and the appeal from it being a restricted appeal, did in fact operate as a deprivation of the plaintiff, no such effect could be wrought by the vote of the ' trustees ; and the plaintiff is entitled to his salary up to the time of the decree of the visitors.

1. It is plain from the acts of the trustees themselves, and their mode of proceeding at the time, and pending the appeal, that their vote was intended rather as the finding of a grand jury, — as the expression of their opinion, as the guardians of the institution, that certain charges against the plaintiff were true, so lar as they were able to determine upon *ex parte*tes*258timony, and that there was a proper case to present to the visitors for a regular trial. A circumstance which seems to show conclusively that the trustees did not consider the office to be vacant, is, that so far as may be inferred from the facts in the case, they did not appoint a successor to the plaintiff within twelve months after their vote.

*2.*We say, as before, that this vote was entirely vacated by the appeal to the visitors. 7 Pick. 327.

III. The vote of the trustees could not remove the plaintiff, because their proceedings upon which this vote is founded, were irregular, illegal and unconstitutional.

And the first question is, can this Court, in this action, in quire into the proceedings of the trustees ?

1. The effect of their vote is, to deprive the plaintiff of his salary, for which he has a right to bring his action at common law, and to have his claim to receive it examined and settled by the rules of the common law. *Martyn*v. *Hind,*Cowp. 437; *The King*v. *Warren,*Cowp. 370; *Rex*v. *Liverpool, 2*Burr. 731; 2 Burn’s Eccl. Law, 143. No intendment will be made in favor of proceedings which are in derogation of the common law, and the Court will require from the trustees, at least a strict observance of the rules which regulate the class of tribunals to which they belong, viz. ecclesiastical tribunals ; the forms of which were here wholly disregarded. 2 Burn’s Eccl. Law, 145.

2. The Court will look into these proceedings, because oth erwise, if the plaintiff’s salary is stopped by the vote of the trustees founded upon irregular and illegal proceedings, the consequence will be, that by such proceedings he will have suffered an injury for which he will have no remedy. But this the law will not permit. *Phillips*v. *Bury,*1 Ld. Raym. 7 ; *Appleford's Case,*1 Mod. 83; *Kill*v. *Hollister,*1 Wils 129 ; Lit. § 212.

3. But the Court have already settled the point m 7 Pic k 327, 328.

We come then to consider the proceedings ; which, we contend, did not effect the plaintiff’s removal from office.

And 1. we object that the manner of obtaining the evidence against the plaintiff was highly irregular. He was called be-*259lore a committee of the trustees and questioned as to the mi nner in which he had discharged the duties of his office. Tlze commission was one of general inquiry, and there was nothing in its nature or circumstances to put • him upon his guard.

From the connexion of the parties as master and servant, he was obliged to answer the questions put to him, otherwise he might have been deprived for contumacy. Thus called upon, he frankly disclosed the whole course of his official duties and difficulties, his acts and omissions ; and the only charge in the report of the committee, which this Court considered a statutable cause of deprivation, that is, neglect of duty, is said in that report to have been furnished by the plaintiff's own statements to the committee. Other persons also appeared before this committee and testified in relation to the plaintiff’s conduct. Now he complains, that upon his own confessions thus obtained, and upon the testimony of witnesses whom he was not permitted to hear and to cross-examine, the trustees voted that the interests of the institution required his removal. His confessions thus obtained are used in making the charges and in proving them.

2. We object that the trustees voted that the interests of the seminary required that the plaintiff’s connexion with it should be dissolved, before they gave him any notice that he was accused.

3. We object that the trustees refused the plaintiff access to their records, files and papers, used in settling the question of his guilt. He could not know that the witnesses whose testimony was used against him, were competent and credible and unbiassed, that they were not his enemies, or' that they were fairly examined ; and he had no opportunity to cross-examine them, and to explain and qualify and modify their testimony m many ways, which it is obvious might have been open to him, if he had been permitted to hear them testify.

4. We object that the trustees refused the plaintiff the right of being heard by counsel. Natural equity and justice require that a man should be heard in his own case, and it is only the reasonable extension of this plain maxim, that he should be heard by an advocate. And so we find that in all causes of a judicial nature, in all courts, under all systems of law, advo*260cates and proctors are allowed. The trustees here may not call themselves a court, but they have mixed powers, which they are to exercise according to the subject matter. Here the matter is strictly of a judicial nature, and the substantial rules of judicial trials ought to have been observed. In ecclesiastical councils in this commonwealth it is usual to hear counsel. Declaration of rights, *art.*12; *Rex*v. Chancellor, *&c of*Cambridge, *2*Ld. Raym. 1334; *Groenvelt*v. *Burwell,*1 Ld. Raym. 454; *Brown*v. Higgs, 8 Ves. 566.

*S. Hubbard*and *Choate*for the defendants.

Even if the plaintiff is right in his position, that the decision of the trustees was annulled by the appeal to the visitors, still he is not entitled to his salary after that decision. The fact of gross neglect of duty was charged against him by the trustees, and it would have been derogatory to them to permit him to perform the duties of his office when thus accused ; and accordingly the performance of his official duties was suspended while the question of his removal was pending. No advantage however was taken of the vote of suspension; the plaintiff has been paid his salary up to the time when he was removed. It is urged that he tendered a performance of the duties of his office, but the final result has shown that he was not qualified to perform them, and he is therefore not entitled to his salary. The consideration for the salary is the performance of services. If he refuses or disables himself to perform any services, he is not entitled to his salary, even if technically he continues in office ; for the .defendants would be entitled to recover of him an equal sum in damages for the non-performance, and the Court will not turn the defendants round to a cross action. The plaintiff’s own conduct disabled him to perform the services required of him, and this was equivalent to a refusal to perform them. The vote of the trustees to remove him may be viewed as a rescinding of the contract by one of the parties, foi a justifiable cause arising out of the conduct of the other party. *St. Albans*v. Shore, 1 H. Bl. 270; *Boone*v. *Eyre,*ibid. 273, note; *Martyn*v. *Hind,*Cowp. 437; *Religious Society v. Stone,*7 Johns. R. 115; *Hieffendorf*v. *Reformed Calvinist Church,*20 Johns. R. 12; *Dutch Church**261*of Albany*v. Bradford, *8*Cowen, 457; *Avery*v. *Tyringham,*3 Mass. R. 160.

But the vote or decree of removal by the trustees, was not annulled by the appeal to the visitors. The opinion expressed by *Parker*C. J. in 7 Pick. 327, that it was “ entirely vacated,” is an *obiter dictum.*The decree vvas voidable only, and not void, and not being reversed upon the appeal, it continued in force, and it operates, by relation, to deprive the plaintiff of his salary from the time when it was passed. *Trecothick*v. *Austin,*4 Mason, 25; 4 Inst. 340; *Butch Church of Albany*v. *Bradford,*8 Cowen, 457; Com. Dig. *Prerogative, D*16; *Packman’s case,*6 Co. 19; Co. Lit. 313 *a.*

Nor was this decree void on account of irregularity in the proceedings of the trustees. By the constitution of the seminary, every professor “ shall be under the immediate inspection of the said trustees, and by them be removed for gross neglect of duty,” &c. Their power to remove is not denied by the plaintiff, and they did remove him for gross neglect of duty. They do not make an application to the visitors, for that purpose, in the nature of a presentment by a grand jury, as suggested by the plaintiff, but they vote that “ he be and he is hereby removed.” As they had jurisdiction, therefore, their decree cannot be impugned except upon appeal, *mandamus, certiorari*or *quo warranto.*7 Pick. 328; Bul. N. P. 244; 2 Kent’s Com. 240; *Phillips*v. *Bury,*2 T. R. 346; *Meadows*v. *D. of Kingston,*Ambl. 756. Further, the plaintiff has pursued his remedy by appeal, and both of the appellate tribunals have affirmed the removal. He has made his election and he cannot now resort to a court of common law to reverse the decision of the trustees. If the original decree was absolutely void for irregularity, the decree of the appellate court undertaking to affirm it must also be void, and the plaintiff is still in office ; but this he disclaims. *Marine Insurance Co.*v. *Hodgson,*6 Cranch, 206, 220.

The plaintiff alleges several irregularities on the part of the trustees. It is urged, that by their vote of September 27 1827, passed without notice to the defendant, they had dia qualified themselves to exercise their visitatorial power. But that vote was merely an expression of their opinion, that the *262interests of the seminary required that the connexion of the plaintiff therewith should be dissolved ; which might well be, without any fault on his part. It is not a vote that he had been guilty of any misconduct; and it merely led the way to a negotiation for an amicable resignation. He complains also, that his confessions were improperly obtained by the trustees. But was it not their duty, as visitors, to examine a professor in regard to the concerns of the institution, and was it not his duty to answer proper questions ? Of whom are they to learn the condition of any particular branch of instruction, if not from the instructer himself ? Nothing was extorted from the plaintiff. Was it suitable for the trustees, at the outset, to suppose a professor to be guilty of offences or neglect of duty, and to caution him not to criminate himself in his answers ? x The examination was not made with the view of finding cause to censure any one, but for the purpose of ascertaining the general condition of the institution. The result of the examination of the plaintiff was an impression on the minds of the trustees unfavorable to his continuing in office, and it was their duty to act upon the information thus obtained from him. The plaintiff objects that he was not permitted to be heard by counsel. But the trustees were not a court; they had no power to administer an oath ; they were acting by inspection merely, as visitors. It does not appear by any authority, that counsel are allowed to be heard in such cases. If the plaintiff could employ counsel, the trustees had the same right; and then the case might have exhibited the anomaly of counsel arguing on each side before one of the parties. Did not the plaintiff, when he accepted the office of professor, agree to submit to the course which was pursued ? The power over a professor, in regard to suspension and removal by the trustees, is the same as in regard to the students, but no one will pretend that a student has a right to employ counsel before the trustees. In point of fact, the aid of counsel for every substantial purpose was tendered by the trustees to the plaintiff. It is further objected, that the plaintiff was not allowed access to certain papers, which he supposed contained evidence against him. We deny that he had a legal right to examine them, any more than the trustees had a right to demand the *263inspection of all the papers which he intendéd to use in his defence. They were matters within the breasts of the trustees. They might furnish the grounds for framing charges against the plaintiff, but they were not evidence and were not attempted to be used as evidence. Neither were the plaintiff’s confessions used as evidence against him on his appeal to the visitors. Before the trustees it was impossible to exclude them, for as the human mind is constituted, what was said to the trustees must in some degree affect their opinion. The confessions however were made voluntarily, and were competent evidence.

But whatever weight there may be in the objections urged against the vote of the trustees removing the plaintiff from of fice, the decree of the visitors has been adjudged by this Court to be valid, and from the lime of passing that decree, at least, the plaintiff’s salary ceased to accrue.

*April term*1832, *at Ipswich.*

*

 This statute enacts, that if the visitors of the Theological Institution “ shall at any time act contrary to the statutes of the founders of said institution, or exceed the limits of their jurisdiction, the party aggrieved may appeal to the Supreme Judicial Court &c., and the said Supreme Judicial Court &c., is hereby authorized to declare null and void any decree or sentence of the visitors, which they may consider contrary to the statutes of the founders, and beyond the just limits of the power prescribed to them thereby: provided, however, that nothing herein contained shall be construed to limit or restrain the Supreme Judicial Court from exercising all such jurisdiction in relation to said corporation, as by law they might exercise, had not this special provision been made.”

Shaw C. J.

delivered the opinion of the Court. This is an action of assumpsit, in which the plaintiff claims to recover his salary as a professor in the theological institution of Phillips Academy at Andover, from the time at which the trustees passed a vote, removing him from office, to the final decision of this Court on his appeal. 7 Pick. 303. The question comes before the Court upon a statement of facts provisionally agreed to by the parties, that is, so far as they are legal and competent evidence.

Many of the points of law, involved in the present inquiry, were incidentally discussed and considered and substantially decided, in the former decision of this Court, in which the decree of the visitors removing the plaintiff from his office, was held to have been rightfully made. In that case it was also decided, that by the true construction of the statute, authorizing an appeal from the decisions of the visitors to this Court, it did not confer a general power to re-hear the cause, upon its merits, in matters of fact and law, but only “to declare null and void any decree or sentence of the visitors, which they might consider contrary to the statutes of the founders, and beyond the just limits of the power prescribed to them thereby.” The Court, upon the case presented to them, decided, that in the decree of the visitors removing the plaintiff from his *264office, they had not acted contrary to the statutes of the foun ders, or gone beyond the just limits of the power thereby pre scribed to them, and therefore that there was no ground upon which this Court was warranted by the statute, in declaring such sentence null and void. The consequence was, that the decree and sentence of deprivation and removal of the plaintiff, thus passed by the visitors, stood valid and affirmed.

The plaintiff contends, that he must be taken and deemed to have continued in office, for the purpose of receiving his salary, until the final adjudication of this Court, because until that time the office was not vacant, and had the decision been the other way, he would still have been the incumbent, under the original institution. It seems very clear, that the office continued full until the actual removal, and the principal question is, which of the several acts done constitutes such removal, the vote of the trustees,, the decision of the visitors, or the adjudication of this Court.

On the part of the plaintiff it is contended, that until the last act, the sentence was not conclusive, that the office was not vacant, so that it could be filled by the appointment ■ of another person, and consequently, that if not vacant, he must be considered the incumbent. On the contrary the defendants contend, that the decision of this Court affirmed the sentence of the visitors, that that sentence related back to the vote of the trustees, and gave validity and effect to it, and so that the removal from office must be deemed to take effect from that time.

The following passage from Burn is in point. “ Thus, if a church be voidable by deprivation, and the ecclesiastical judge hath actually pronounced a sentence of ■ deprivation against the incumbent, yet if the person deprived doth make his appeal, the church is not actually void, so long as the appeal dependeth ; and if the sentence of deprivation upon the appeal be declared void, the clerk is perfect incumbent as before, without any new institution.” 1 Bum’s Ecc. Law, 64, *tit.*Appeal, § 9. This arises from the nature of the case, because during the pendency of the appeal it cannot be known that the decree of deprivation may not be reversed and annulled, and if so, it is in effect the same thing as if no such de< *265cree had been passed. Therefore, if the office were deemed vacant to all purposes, and another person appointed to fill it, it would follow that the new incumbent must be removed, and the former one restored. This would at least be an inconvenient course. But after the decision of the appellate court, confirming the decree of deprivation, its effect ceases to be contingent, and then the material question is, at what time does the deprivation take effect, where the sentence of the court of first instance is confirmed on the appeal.

We think the circumstance, that the plaintiff performed no services during the pendency of these appeals, may be laid out of the case, though somewhat relied upon in the argument. The case, which finds the fact upon which this argument is founded, also finds the answer, namely, that the plaintiff tendered his services and resided at the institution, and offered to perform the duties of his office, but was prevented by the act of the trustees. It is very clear, that if the plaintiff was not in fault, an offer' to perform on his part, and a refusal to permit him so to do on that of the defendants, should be taken, so far as his rights were concerned, as an actual performance ; otherwise they would take advantage of their own wrong, contrary to the settled and familiar maxim of law upon that subject. So that whether such offer could avail him or not, must depend upon the more general questions, whether he was rightfully removed from office, and how, and at what time.

The Court have already decided that the proceedings by which the plaintiff was removed from office, were valid ; but it did not then become necessary to decide, at what time the sentence of deprivation took effect, and the Court declined expressing any opinion upon that point. The question then recurs, upon the effect of the vote of the trustees.

Was the plaintiff lawfully removed or suspended from the exercise of the duties of his office, by the vote of the trustees of the 18th of December 1827, to which day the salary has been paid, and beyond which they have refused paying ?

It appears that at the annual meeting of the trustees in August 1827, a committee was appointed’ to inquire generally into the state and condition of the institution, and into the *266conduct and measures of the students and of the faculty, 80 as t0 present a full view of the state of the seminary. This committee proceeded to make the proposed inquiry, in conducting which, they inquired of each of the professors, severally, including the plaintiff, and also of others. In Sep teinber they made their report, and thereupon the trustees voted, that the interests of the seminary required, that the connexion of the plaintiff therewith should be dissolved ; but no notice was given to the plaintiff of their intention to pass such vote. Thereupon a negotiation was opened with the plaintiff in regard to the terms upon which he would voluntarily resign his office, but no arrangement was made. A committee was then appointed, in November 1827, to consider what further measures it was advisable for the trustees to take in relation to Dr. Murdock; and so much of the report of the committee of inquiry as related to the jealousies and contentions existing in the faculty of the institution, the evils arising from them and the remedies proposed for them, was referred to the committee, who reported at the same meeting, recommending the removal of the plaintiff from his office. A copy of this report was communicated to the plaintiff, that he might have opportunity to make any communication in regard to it which he thought proper. The plaintiff desired to be heard by counsel, and to show cause by legal evidence, against his removal. The trustees declined hearing him by counsel, but expressed their willingness to attend to any communication he might see fit to make. They afterwards informed him that they were not unwilling that he should have the aid of counsel in preparing any argument or testimony which he might choose himself to present to the board, and that he might have opportunity to introduce any pertinent testimony in relation to the report of the committee recommending his removal. Various requests for the inspection of papers and other purposes, were made by the plaintiff, which were refused ; various protests were entered by the plaintiff, who ultimately declined appearing before the trustees ; and on the 18th of December they took the cause into consideration, and being satisfied that there was just and sufficient ground for the removal of the plaintiff from office, and that the interests of the seminary re *267quired a dissolution of his connexion therewith, they voted that the report be accepted, and that the plaintiff be removed from his office of professor.

From the tenure of the plaintiff’s office, it is quite clear, that he was not liable to be removed by the trustees, upon mere considerations of expediency or convenience, nor unless he had forfeited his office for some of the causes mentioned in the statutes. The question then recurs did the trustees, in this proceeding, profess to act judicially, and was it conducted in such a manner as to give it the force and effect of an adjudication of forfeiture and deprivation of office for misconduct ?

To ascertain what is necessary to be done in the ordinary course of proceedings, according to the ecclesiastical law, to cause a legal deprivation of the incumbent, the rules are thus laid down. *2*Burn’s Ecc. Law, 145. “ These things must concur : 1. A monition or citation of the party to appear. *2.*A charge given him, to which he is to answer, called a libel. 3. A competent time assigned for the proofs and answers. 4. A liberty for counsel to defend his cause, and to except against the proofs and witnesses. 5. A solemn sentence, after hearing all the proofs and answers. These are the fundamentals of all judicial proceedings in the ecclesiastical courts, in order to a deprivation ; and if these things be not observed, the party hath *just*cause of appeal, and may have a remedy by a superior court.”

It is not to be insisted on, that in exercising the powers vested in a new jurisdiction, where no forms are prescribed, any precise course as to forms must be followed ; but these rules indicate the course which must in substance be pursued, by every tribunal acting judicially upon the rights of others. If the trustees at the time considered themselves as acting judicially, we think they virtually disregarded these salutary rules.

On the 27th of September, on the facts stated in the report of the examining committee they declared their opinion, that the interests of the seminary required that the connexion of Dr. Murdock therewith should be dissolved, without any notice of their intention to pass such a resolution and without *268any specified charges or accusations made against him, and without hearing the party so seriously to be affected in character and estate by these proceedings. It may perhaps be insisted, that this vote did not look to a deprivation, but merely declared it expedient that the connexion of the plaintiff with the institution should cease, with a view to an amicable arrangement for a voluntary resignation on his part. This was at that time, no doubt, the purpose of that vote. But we think it is manifest that there was no trial and no inquiry into the facts upon which the final vote of removal passed, other than the *ex parte*examination, made by the committee of inquiry. The committee afterwards raised, after the negotiation for a voluntary resignation had broken off, who reported a recommendation of the removal of the plaintiff, and upon whose recommendation the vote of the trustees ultimately passed, was raised expressly for the purpose of taking into consideration the former report of the examining committee, and of recommending what further measures should be had in relation to Dr. Murdock ; and from the fact of their making a report at the same meeting, recommending the removal, it is quite manifest that no new trial or hearing had been had If the plaintiff was liable to removal for incapacity or misconduct, declared to be a ground of removal by the statutes, such case of incapacity or misconduct was a fact to be tried by proper and competent evidence, and in the trial of which the plaintiff had a deep interest. But when the examining committee were conducting their investigations, the plaintiff did not understand, nor did the committee understand, that he was on trial, nor indeed were they commissioned or authorized to try him, but to examine into the state and condition of the institution. Their proceedings thus far were manifestly administrative and not judicial.

But it may be said, that this was merely preliminary, that the trustees subsequently offered to the plaintiff the benefit of a trial. Without insisting on the obvious remark, that after proceeding thus far, and declaring such opinions upon such grounds, embracing the very merits of the alleged offence, and the facts, on which it was to be sustained, the trustees had disqualified themselves from acting judicially, we are of *269opinion, that the plaintiff was not offered the substantial benefit of a trial. He was furnished with a copy of the report, with liberty to make any communication in relation thereto, which he saw fit. That is, in effect, he was allowed to impugn or refute the charges therein contained, and to rebut and disprove the facts, upon which they were founded, if he could. But it is very manifest, that the plaintiff was entitled to the benefit of the legal presumption in favor of innocence, until the contrary was proved. The burden of proof therefore was upon those who made the accusation, and that proof was to be made openly, and in presence of the accused, after due notice and an opportunity for a full hearing.

The trustees indeed did afterwards give the plaintiff notice that they were not unwilling that he should have the aid of counsel in preparing any argument or testimony, which he might himself choose to present, and that he might himself introduce any pertinent testimony, at such time as might be fixed for hearing him, *in relation*to the report. Still there was no offer to file specific charges, to fix a time for hearing them, to take upon themselves the burden of proving them by competent testimony, in presence of the accused. They refused the party accused access to the files, papers and documents, which had relation to . the charges intended to be re lied on, and from which the report of the committee containing the charges and the grounds of them, had been prepared. If the trustees considered themselves, up to this time, as acting merely as the guardians of the institution, or as making complaints against the plaintiff for misconduct, these documents and minutes were to be regarded as their own private *memoranda,*which they would be 'justified in withholding. But they proceeded to pass a vote of removal, avowedly upon the recommendation of the committee, and upon the reasons and facts stated in the report, without other evidence, inquiry, or hearing. How different were the proceedings in the case of the *Dutch Reformed Church in Albany*v. *Bradford,*8 Cowen, 457. There the consistory consisting of the deacons and elders, made a specific charge against their minister to the classis, the court having original jurisdiction in such matters. But the classis required the consistory to give notice of the *270charges; and the names of divers witnesses relied upon to Pr°ve the charges, were also read to the party accused, before he was compelled to answer or defend. So upon the appeal to the particular synod. No act against the accused was done without notice and an opportunity to defend. And so at, the general synod, the same attention to the legal rights of the accused as to notice and an opportunity to defend, were scrupulously observed. But the trustees made up their mind from evidence or reasons which they did not and would not communicate to the plaintiff, that it was for the interest of the institution that his connexion with it should be dissolved ; an 1 having advanced so far in *ex parte*proceedings, it is not strange that the plaintiff should have complained of being afterwards suspended from office without specific charges, hearing or trial. The final decree of the trustees was passed without giving the plaintiff an opportunity of examining the records and documents and papers which had been produced against him by “ other persons besides the professors, in an *ex parte*examination touching the manner in which the plaintiff had performed the duties of his office.”

We should hold such a proceeding in a court of common law to be contrary to the principles of natural justice and the law of the land ; and the proceedings before ecclesiastical tribunals should not be less regardful of those fundamental rules than courts of the common law.

If the visitors had proceeded in the same manner, we do not perceive how their decree could legally have been enforced ; for it is the right of the subjects of this government to have a reasonable notice of the matters and things alleged against them and an opportunity to examine and to answer or defend against any evidence which is produced against them.

From these views it would appear, that the trustees, by the vote in question, did not intend to act judicially, but merely in the administration of the duties assigned them, as managers and guardians of the institution, and meaning to do that which in their judgment the good of the institution required, without intending to adjudicate upon the rights of the plaintiff. But whatever might be their intention, the Court are all of opinion, that for the reasons already given, the measure cannot be sup*271ported as a judicial proceeding, and did not affect the title of the plaintiff to his office, or his actual possession and enjoyment of the office.

The visitors however proceeded upon very different principles. They did allow the plaintiff a full hearing by counsel, upon the articles exhibited against him before them, and thereupon found him guilty, among other things, of gross neglect of duty. If it be admitted that this decree was suspended by the appeal to the Supreme Judicial Court so far as it related to the plaintiff’s continuing in office, yet the affirmation of it, and the adjudication that it was in no respect erroneous, must relate back to the time of passing it by the visitors and give it effect from that time. This Court having only a limited appellate jurisdiction, and being satisfied that the visitors had acted within the authority given them by the statutes of the founders and the laws of the land, could only affirm or reverse the decree, without a reexamination of the evidence, or of the general merits of the case. They were bound as the records and proceedings stood, to suppose that the visitors had suffi cient evidence before them, to support the charge of gross neglect of duty, on the part of the plaintiff, at the time when they made their decree. From that time the plaintiff must be taken and deemed to have forfeited his office, for the misconduct charged against him, and duly established. If the final decree had been in his favor, the tender of his services on his part and refusal on the part of the trustees, would have availed him ; and we think it does avail him, until the legal decree for his removal was passed by the visitors.

It may be argued that the decree of the visitors affirms and ratifies and relates back to the decree of the trustees which pronounced the plaintiff guilty of gross neglect of duty, and therefore that the plaintiff cannot recover afterwards, upon the principles above assumed. We think that result would have followed, if the trustees had proceeded legally and regularly against the plaintiff in their judicial capacity. But we have seen already, that their decree cannot, for the reasons before given, operate to prejudice the rights or interest of the plaintiff, and cannot be made valid by any proceedings of the visitors- It could, at most, be considered as an accusation *272against the party, to be heard and tried by the visitors ; and their decree was the first legal adjudication establishing the gross neglect of the plaintiff. That is the only legal evidence which has been furnished to this Court. Now it is not maintained by the defendants that the plaintiff was precluded from his salary from the time when he was guilty of the neglect of duty, or even from the time when the trustees voted .to suspend him to the time when they voted to remove him. They have paid for the services up to the latter period. They do not therefore practically go back to the time when the plaintiff committed the fault, but to the time when, as the)- supposed, the trustees had legally ascertained and decided upon the guilt of the plaintiff, and declared the legal consequence of it, namely, the loss of his office.

The result is, that the plaintiff is entitled to recover for his salary, from the time of the vote for his removal by the trus tees to the time of the decree of removal made by the visitors, and not for any time afterwards. The defendants are to be defaulted, and judgment is to be entered for the plaintiff for the sum to be computed as above.