
    * Kendal Boutell and Others versus Thomas Cowdin, Administrator, &c.
    A promissory note made in aid of a fund for the support of a minister of a parish, was holden void for want óf a consideration.
    The deacons of a Congregational church are not a corporation for receiving and managing a fund for the support of a minister.
    This was an action of the case, brought against the defendant, as he was administrator of the goods and estate of Thomas Eaton. upon the following note, viz.: —
    “ Fitchburg,
    February 26, A. D. 1805. I, the subscriber, for value received, promise to pay Kendal Boutell, Daniel Putnam, John Farwell, Ebenezer Thurston, and John Thurston, Jun., deacons of the church of which the Rev. Titus T. Barton is the pastor, in their corporate capacity, (according to an act of the legislature of this commonwealth, passed the 20th of February, 1786, entitled jLn act for the better securing, and rendering more effectual, Grants and Donations to pious and charitable uses,) or their successors irt office, one hundred dollars on demand, for the benefit of the church aforesaid, with six per cent, interest, in quarterly payments, the first quarterly payment of interest to be on the eleventh day of April next, the next quarterly payment to be three months from the first payment, and so to continue on the eleventh day of each third month, until the principal is paid.
    “ Witness my hand,
    “Thomas Eaton.”
    A trial being had upon the general issue, before Sedgwick, J., a verdict was taken for the plaintiffs, subject to the opinion of the Court, whether the plaintiffs, in virtue of the statute of 1785, c. 51, referred to in the note, could by law support this action, upon the facts reported by the judge as proved or agreed at the trial.
    It was agreed that the plaintiffs had been duly elected deacons of a church in Fitchburg, of the Congregational order, of which the Rev. Mr. Worcester was formerly the minister. It appeared that, before the year 1802, some unhappy differences on theological subjects had existed in the town, which was then composed of but one Congregational * church and society. Several ecclesiastical councils were called on the subject of these differences, which finally resulted in the setting off a minority of the church, and the erecting of them into a separate church; to whom a majority of the parish adhered, and these retained possession of the house used for public worship. The majority of the church, with the minority of the parish, still continued united, and elected and settled Mr. Barton as their minister, Mr. Worcester having been previously separated from the church and parish.
    After the ordination of Mr. Barton, it was proposed to procure a permanent fund for his support, by voluntary subscription. For this object more than 6000 dollars were subscribed to a paper, drawn up for the purpose, which was dated May 10, 1804; and with the rest, the defendant’s intestate, Thomas Eaton, subscribed 100 dollars. Afterwards the subscribers generally gave promissory notes,- in the form of the note on which this action was brought, for sums equal to those subscribed by them respectively ; and this note was so given, among the rest, on the 26th of February, 1805. In June, 1805, the church, of which Mr. Barton was the minister, and such of the inhabitants of the town as met with them for the worship of God, with their polls and estates, were incorporated by the legislature  by the name of “ The Calvinistic Congregational Society in Fitchburg; ” and it was agreed that the intestate was an inhabitant of Fitchburg, and united with that society, at the time of the subscription, at the time of making the note declared on, and at the time of his death.
    
      Bigelow and Lincoln,
    
    for the defendant, moved for -a new trial, and contended that, at the time of giving this note, there existed no society or parish, with which the church of which the plaintiffs assumed to be deacons was connected, that parish having been incorporated at a later period. And by the usages of Congregational churches in this country, churches were only known in connection with a parish. Hence it followed that the plaintiffs were not * deacons, capable within the statute of 1785, c. 51, to receive donations to pious and charitable uses.
    But if the plaintiffs were the deacons of a regular church, yet the statute under which they claim to act has never been considered as extending to funds for the support of ministers who, by the constitution and laws of the commonwealth, are to receive their maintenance from the parish, and not from the church.
    If, then, the plaintiffs cannot recover in an official or corporate capacity, they can have no action upon this note in their personal characters. This was a merely voluntary undertaking of the intestate, without consideration. There could no benefit accrue to him from the payment of the money, since the plaintiffs could not be compelled to pay it over, or to appropriate it to the purpose intended, if they received it. Nor, on the other hand, is there any consideration of damage to the plaintiffs, since they advanced nothing; and if they do not receive the money, they can never be called on to pay it over.
    
      Blake for the plaintiffs.
    Here was such a church as is well known in this country. Congregational churches are in every case voluntary associations of Christians, united in discipline and worship. They are ecclesiastical, and not civil bodies. The statute itself, by incorporating the deacons, shows that churches are not corporations. It was not the effect of the result of the councils in this case, or of any of them, by erecting a minority into a separate church, to de stray the state and existence of the majority of the members as a church. If such a measure had been attempted by the council, it could never have been countenanced. It would have been assuming a Papal authority, instead of a power merely advisory, which was all that was intended to be conferred upon them.
    The statute is very general. The preamble speaks of grants and donations generally, made by well-disposed persons; and the enacting clause incorporates the deacons of all Protestant churches not being Episcopal, and enables * them to take, in succession, all grants and donations, real and personal, made to their severa' churches, the poor of their churches, or to the deacons and their successors, and to sue and defend in all actions touching the same. The title also includes all donations to pious and charitable uses Now, here was a grant to the deacons of such a church for a pious use, viz., the maintenance of public worship, and public religious instruction.
    But the addition of deacons may be considered as surplusage, and the plaintiffs are then entitled to recover upon this contract in their individual capacities. Nor, in this view, does the doctrine of nudum pac.am apply to it. Here was a possible damage to the plaintiffs, or ,o the church ; since without the fund proposed they might be deprived of the useful services of their minister. It was also a benefit to tne intestate, inasmuch as the money was to avail to procure him (lie religious instructions, which his subscription proved to be highly valued by him.
    The action stood continued nisi for advisement, and, at the November term in Suffolk,
    
    
      
       Vide Stat. 1805, e 2-
    
   The Court

observed that three objections had been made to the verdict in this case. First, that the promise declared on was not binding, as being made without a valuable consideration, Second, that the deacons of the church were not, by the statute of 1785, made a corporation for the purpose of receiving and managing a fund established for the support of a minister. Third, that in this case the plaintiffs had not shown themselves to be the deacons of a church duly organized.

On this last objection the Court gave no opinion. But they considered the two former ones as well founded, and on both grounds they set aside the verdict, and ordered a new trial. 
      
      
         [In Bowers vs. Hurd, (10 Mass. Rep. 429,) Parker, C. J., in giving the opinion of the Court, said, “ We do not admit that when one voluntarily makes a written promise to another to pay a sum of money, the promise can be avoided merely by proving there was no legal and valuable consideration subsisting at the time, any more than, if he actually paid over the amount of such note, he can recover it back again, because he repents of his generosity. He had, indeed, precluded himself and his representatives from denying a consideration, where he has, under his hand, acknowledged one.” In Thatcher & Al. vs. Dinsmore, (5 Mass. Rep. 299,) however, Parsons, C. J., said that, as between promisor and promisee, want of consideration was a good defence. And see Fowler vs. Shearer, 7 Mass. Rep. 14. And this is undoubtedly the better law. Holliday vs. Atkinson, 8 D. & R. J63. And so it is said lately to have been held, (Hill vs. Buckminster, Admr., 5 Pick. 391, Middlesex,) although Morton, J., at Nisi Prius, ruled the contrary on the authority of Bowers vs. Hurd.— Ed.]
     