Bickford

v.

Boston and Lowell Railroad Corporation.

Oct. 16th, 1838.

trustee, and consequently it may be omitted to be set forth in
the scire facias. If the trustee does not appear and discharge
himself on oath in the original suit, he may be defaulted, but
in that case there is no adjudication that he is chargeable as
trustee; that question is postponed until scire facias shall be
brought, when he may or may not discharge himself. Now
that may be, for aught we know to the contrary, the condition
of the present defendants. The record of the proceedings
are not set out in the declaration, nor was it required, but the
defendants on oyer might have had the whole record set out,
and thus it might have been ascertained whether the defendants
came in and answered to interrogatories, or were defaulted, or
whether there was or was not any adjudication against the
trustee. Whether this would be material or not, it is not
necessary to decide, for such an adjudication, if made, was no
part of the judgment in the original suit. When a party brings
debt or scire facias on a judgment, the judgment only is to
set out, and whether it was rendered on nonsuit, or default, or
on verdict, or demurrer, is never required to be alleged. We
are, therefore, clearly of opinion, that the judgment in the
original suit is sufficiently set out, and that it is valid and regu
lar. The case of Dyer et al. v. Stevens, 6 Mass. R. 389, is
directly in point, and fully sustains this opinion.

As to the objection, that the demand on the president of the defendant corporation was not sufficient, it appears to the Court, that as he was at the head of the corporation, he was the most proper person upon whom the sheriff should have made the demand.

Declaration adjudged good.

On the original trustee process the trustees filed answers tending to charge themselves, but not for any specified sur; and while the scire facias was pending in this Court, the Revised Statutes went into operation. After which the trustees moved, under Revised Stat. c. 109, § 41, for leave to

answer anew.

Hoar, in support of the motion, referred to Valentine v. Boston, 20 Pick. 202.

Farley and A. W. Austin, contrà, insisted that the answers

Bickford

v.

Boston and
Lowell

Railroad

on the examination in the original suit, were an admission of funds in the hands of the respondents to the amount of the plaintiff's demand; that in such case, under St. 1794, c. 65, § 6, the trustees could not be examined anew on scire facias, Corporation. and consequently that their motion could not be granted without affecting rights which had already accrued to the plaintiff before the Revised Statutes took effect. Revised Stat. c. 146, § 5, 7; Cleveland v. Clap, 5 Mass. R. 201; Armstrong & Tr. 4 Mass. R. 206.

Sebor v.

SHAW C. J. delivered the opinion of the Court. On scire facias against the defendants as trustees, they come in and move to amend their answers, made by their president, in the original suit. By the Revised Statutes it is expressly provided, that on scire facias against a trustee, the court may require or permit him to be examined anew, whether he had or had not been examined in the original suit. Revised Stat.

c. 109, § 41.

This motion is opposed, and it is contended that the Revised Statutes do not apply, because this suit was not only pending, but had in fact been entered in this court before the Revised Statutes were passed, and this appears by the record to be the fact, the appeal on this scire facias having been entered in October, 1834. It also appears that the trustees were examined and charged in the original suit. The objection 's placed on the provision in Revised Stat. c. 146, § 5, that the repeal of former acts shall not affect any act done or right accruing or accrued, or any suit or proceeding had or commenced, in any civil case. But the proceedings in every such case shall be conformed, when necessary, to the provisions of the Revised Statutes.

The question then is, whether there is in this case any right accrued to the plaintiff, which will be affected by the granting of the motion, or whether it is merely a step in the cause pending. The obvious purpose of the statute was to confirm existing rights, to give effect to acts done, but to regulate proceedings which were afterwards to be had. The original suit and the scire facias under the trustee process, constitute one connected and continued course of proceedings. The original judgment does nothing more than declare the trustee liable, or

Oct. 19th

Bickford

his answers, without fixing the amount. The Court are of opin. Boston and ion, that the proceedings on scire facias may be conformed to

V.

Lowell Railroad

and regulated by the provisions of the Revised Statutes, withCorporatior, out affecting any vested right, or invalidating any act done, in the original suit, and therefore that it is competent to the Court to grant the motion, under the clause of the Revised Statutes first cited. Valentine v. Boston, 20 Pick. 202.

On the grounds stated, the Court think it equitable that he motion be granted upon proper terms, as to the time of filing a further answer, and as to costs.

Motion granted.

SAMUEL STEARNS versus THE FIRST PARISH IN
Bedford.

If a minister and his parish should agree that the decision to be made by an eccle
siastical council, prescribing the terms on which the connexion between them
should be dissolved, should be binding upon the parties, this Court, it seems, would
have jurisdiction in equity to compel a specific performance of the decision.
Where an ecclesiastical council recommended that the connexion between a minister
and his parish be dissolved upon their paying him a certain sum of money and
cancelling a bond given by him, and the minister gave notice to the parish that he
accepted the result of the council and should perform it on his part, and a com-
mittee of the parish made a report in favor of accepting the result whenever the
pecuniary means and the unanimity of the parish would justify the measure, and
the parish accepted the report and appointed a larger committee with power to
accept the result of the council when they should find adequate means in the parish
treasury, and should deem it for the interest of the parish to do it, but this com-
mittee never did accept the result and the parish never performed either of the
conditions required of them, it was held, that the result had not been accepted by
the parish, and that the parties remained in the same relation to each other as if
no council had been convened.

Where the result of an ecclesiastical council, called by a minister and his parish, is
the recommendation of acts and conditions to be performed by each party, the
performance by one party will not of itself impose legal obligations on the other
but the assent of both is indispensable to give validity to the decision.

If the advice of the council be simply, that the ministerial relation between them be dissolved for any sufficient cause, either party will be justified in acting according to the advice.

But if the advice be, that the ministerial relation be dissolved, upon the terms nat the minister relinquish a part of his salary due, and that the parish give him a sum of money or a specific article, the performance by one party will not give such party a remedy, in law or equity, to compel performance by the other.

It was voted by a parish, that it was expedient that the minister's connexion with

Stearns

V.

the parish should be dissolved, and a committee was chosen to take all necessary measures to have an ecclesiastical council convened to hear all matters of complaint against him, together with the present state and condition of the society, and to First Parish judge, determine and decide the question, Is it expedient, proper and just that his in Bedford. relation to the society as their pastor be dissolved; and the committee, in pursuance of this authority, proposed a mutual council, to which the minister assented. A council was thereupon duly convened, who came to the result, that it was expedient, proper and just, that the connexion should be dissolved on suitable pecuniary considerations, and that in their view it was suitable that a bond given by the minister to the parish should be cancelled, and that a certain proportion of the sum due on account of his salary should be received by him in full discharge of all his demands against the parish. It was held, that the parties did not intend to constitute the members of the council arbitrators to decide authoritatively the matters submitted to them, but that they intended to agree upon an ecclesiastical council with the usual powers and authority of such a body; and that the result or decision of the council was only advisory, and not an authoritative award which might be the foundation of a suit at law, or the subject of a decree for specific performance in chancery.

BILL in equity, dated August 6, 1833, stating, that m January, 1796, the plaintiff was settled for life as a minister of the Gospel in Bedford (there being then but one parish in the town), in consideration of an annual salary of $333 and twenty cords of fire wood; that from that time until the 27th of April, 1833, he faithfully performed the duties of a minister in the parish; that in 1801, upon his application for an increase of his salary, the parish proposed to raise it, and to lend him 1000 dollars without interest during the time he should supply the pulpit, he giving security to repay the principal when he should cease to supply the pulpit; that he acceded to this proposal, and gave his bond accordingly, with sureties, for 1000 dollars, and received the money; that in 1811 his salary was further raised to 500 dollars and 20 cords of wood; that on the 18th of December, 1832, at a meeting of the first parish in Bedford, to take into consideration the expediency of obtaining a dissolution of the ministerial connexion existing between the Rev. Samuel Stearns and the first parish in Bedford, it was voted, that "it is expedient that said connexion be dissolved, and a committee of five persons was chosen to carry the vote into effect," with power to employ counsel, to collect and make out charges against the moral and ministerial conduct of the Rev. Samuel Stearns, pastor, &c., and in due season to furnish him with a copy of such complaint or articles of

Stearns

บ.

First Parish

impeachment, and request him to join and cooperate with said society in choosing, by their committee, and calling a mutual in Bedford. ecclesiastical council to hear all matters of complaint against him, together with the present state and condition of the society, to judge, determine and decide the following question, viz. Is it expedient, proper and just, that the relation of the Rev. Samuel Stearns to the First Congregational Society in Bedford, as their pastor, be dissolved;" that it was also "voted, that the clerk transmit forthwith a copy of the doings of this meeting to the pastor; for we feel ourselves morally absolved from longer contributing to his support, and the contract existing between the said Stearns and society is, and of right ought to be dissolved;" that the plaintiff consented to join with the parish in calling such council, and to submit to them the several matters specified in the vote; that the plaintiff and the parish, by their committee, appointed seven clergymen (naming them) who, with one delegate to be chosen by each of the churches with which six of them were respectively connected, were to constitute the council; that the plaintiff and the parish submitted to the council, "to judge, determine and decide" the question, "whether it were expedient, proper and just, that the relation of the plaintiff to said First Congregational Society, as their pastor, be dissolved;" and in and by the submission the parties submitted to the decision of the council the adjudication and determination of the terms and conditions on which the dissolution of that relation should take place, if it should be determined to be expedient, just and proper, that a dissolution should take place; that the council. assembled at Bedford on the 27th of February, 1833, and heard the parties, and made known their decision, award and result, that "no charge whatever has been sustained against the moral or Christian character of the Rev. Mr. Stearns, and they rejoice that the committee of the parish expressly disowned any intention to fix any criminality on Mr. Stearns; that "it is expedient, just and proper, that the relation of the Rev. Samuel Stearns to the First Congregational Society in Bedford, as their pastor, be dissolved on suitable pecuniary considerations;" "that in the judgment of this council, a suitable pecuniary consideration would be made by adopting