Religious Society v. Stone — 7 Johns. 112

Majority

p. 112

The first Religious Society in Whitestown against Stone.

NEW-YORK

Nov. 1810.

Headnote

seciety,by which they individually engaged to pay to the trustees, or such person as the trustees should appoint, the sums set op- posite their re- spective names, for the purpose of raising a sala- ry for the sup- port of S a mi- nister of the gos- pel, to be paid annually,so long as S. shall administer thegospel in the said socie- ty, and so long as the subscribers shouki i'e- side within four u,ilesofthemeet- ing-house in sa society, &e. It was held, that this was a valid contract, in law, and binding on the subscribers, so long as S. continued to adsninister thegos. ~o1, and the jubsoribera to retide within the distance of tiur mites; anI could not ce wssoLvett but by

mutual consent~ nor cease to be obligatory, until the minister cea~ed to render the ser vice ~tipnIated. THIS was an action of assumpsit, tried at the OneWa circuit, in ~une, 1809, before his honour Mr. Justice

THIS was an action of assumpsit, tried at the Oneida circuit, in June, 1809. before his honour Mr. Justice Yates. The action was brought upon an instrument, not under seal, signed by the defendant, with others, as follows:

" Know all men by these presents, that we whose names are hereunder written, being members of the firstreligious society in Whzte~town, and being desirous of raising a salary for the support of the reverend ~Samuel F. S'nowden, as a minister of the gospel in said so- ciety, do, in order to carry this our desire into effect, and for the consideration of one dollar received of the trustees of the said religious society, to our full satis- faction, before signing this instrument, promise, cove- nant, and engage, each one for himself, individually and severally, to and with the said trustees, that we will each one pay, or cause to be paid, unto the said trustees, or such person or persons as they shall appoint to receive the same, such sums as are respectively annexed to each of our names, to be p~üd annually in each and every year, so long as the said reverend Mr. Snowden shall administer the gospel in said society, and so long as we the subscribers shall reside within four miles of the the gospel in said society and so long as we the subscribers shall reside within four miles of the

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meeting-house in said society, to be by the said trustees applied for the sole and only purpose of paying the salary of the said reverend Mr. Snowden. And it is further agreed by us the subscribers, that the first annual payment shall be made at the expiration of one year after the said reverend Samuel F. Snowden shall be installed or ordained in the said society, and in each and every year thereafter. And now it is the true meaning of us the subscribers to this instrument, that the same shall not be obligatory on us in any manner, until the whole sum subscribed shall amount to the sum of four hundred and fifty dollars. In testimony whereof,” &c,

At the trial, the signature of the defendant, and the amount of his subscription of five dollars per annum% Were admitted. The plaintiff proved, that Mr. Snow^ den had been regularly installed, as a minister of the gospel in the said society, on the 8th of September, 1802, and that he had regularly and statedly administered the gospel in the said society from that time till the present, and was still a minister of the gospel in the society. That the defendant, at the time of his subscription, and ever since, had resided within four miles of the meeting-house in the said society, and that the sum of four hundred and fifty dollars was subscribed to the said instrument, previous to the installation of Mr. Snowdens that the sum of five dollars was due from the defendant on the 9th of September, 1808, which remained unpaid upon the said subscription, and for which the present action was brought.

The defendant’s counsel moved for a nonsuit, on the ground that no legal obligation existed, on the part of a subscriber for the support of a minister; but the same depended wholly oil the will of the subscriber; and that the instrument recited was inoperative as to the defendant ; but the judge overruled the motion.

Several witnesses were then sworn, on the part of the

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defendant, to prove that the trustees of the said society , _ , . , had not, during several years, been regularly elected. The plaintiff then gave in evidence an exemplification of “ an act relative to the fir/st religious society in Whites- town,” passed the 8th ApHl, 1808, as follows :

Be it enacted, &c/that the various provisions contained in the act entitled, an act relative to the first congregational church in the town of Bridgewater, passed the third day of April, one thousand eight hundred and seven, shall be and are hereby extended to the first religious society in Whitestown, any omission to supply vacancies in the trustees of the said society notwithstanding."

The plaintiff also read in evidence the act entitled, ‘ an act relative to the first congregational society in. the town of Bridgewater passed the 3d day of April, 1807:

“ Whereas the trustees of said society, by their petition presented to the legislature, have represented, that the society have, since their incorporation, omitted to fill up the vacancies in the board of trustees, until after the time prescribed by law for filling the same had expired, and have prayed relief in the premises. Therefore,

. “ Be it enacted, &c. that all acts done by the said trustees in relation to the said society for their incorporation, shall, to all intents and purposes, be as valid as if the vacancies in the board of trustees had been settled on the day prescribed by law for that purpose, and that all grants made to, and all contracts made by and with the said trustees, shall, in every respect, be as valid as if they had in all things complied with the law in relation to filling up the vacancies in the board of trustees; and the said religious society is hereby restored to all the rights they may have lost by the omission to fill the vacancies as required by law.”

Upon this evidence, the judge directed the jury to

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find for the plaintiff; and the jury found a verdict accordingly.

On a case' containing the above facts, a motion was made to set aside the verdict, which was submitted to the court, without argument.

The contract was valid in law. It was made with a corporation competent to contract. The consideration was the preaching of the gospel by the reverend Mr. Snowden; and as long as he continued to administer the gospel, and the defendant to reside within the specific distance, so long was the defendant bound by his contract. It could not be dissolved but by mutual consent, nor cease to be obligatory, until the minister ceased to render the service. Thus, in the case of Martyn v. Hind, (Doug. 142. Cowp. 437.) it was held, that if a rector appoint a curate of a parish, and undertakes-to continue him, and allow him a salary till he shall be otherwise provided with some ecclesiastical preferment, or lawfully removed, he cannot be removed without cause ; and as long as the rector continues rector of that parish, he is bound to pay the salary; and if it be in arrear, the curate may recover it, in an action of assumpsit. Lord Mansjield said, that if the curate was not enabled to do the duty, the rector would be excused from paying him the salary; for the service as curate was not only the consideration, but the condition of the salary. The promise in that case was in writing, not under seal, like the subscription in this case. A similar decision was long before made in the case of Taylor V. Gay. (1 Sid. 409.)

The act of the legislature, of the 8th of April, 1808,. removed any objection,, if any valid one before existed^ as to the validity of the title of the trustees for the time being. The motion on the part of the defendant to set aside the verdict is-denied»

Motion denied.