
    *The Minister, Elders and Deacons of the Reformed Protestant Dutch Church in the city of Albany, plaintiffs in error, against John Melancton Bradford, defendant in error.
    Where one contracts to perform labor, for which he is to receive a stated compensation ; performance, or an ability and readiness to perform, in the manner stipulated, are a condition precedent to the compensation becoming due.
    A contract to act as minister of the Reformed Dutch Church, for which the particular church is to pay a stated salary, founded upon a call referring to the rules of church government established in the national synod held at Dordrecht, in 1618 and ’19, and the articles explanatory of the governinent and discipline of the Reformed Dutch Church, in the United States of America, is not an exception to the general rule, which makes perform» anee, or ability and readiness to perform a contract of labor, a condition precedent to the price becoming due.
    And where, in such case, a sentence of suspension, and finally of dissolution of the pastoral connection between the minister and his church, fot a fault . of the former, was pronounced by the proper judicatory, and affirmed on appeal, held, that the minister was not entitled to his salary, intermediate the sentence of suspension and dissolution.
    On error from, the supreme court. The action in the court below was covenant, by John M. Bradford, (defend ant here,) against the now plaintiffs m error, for the recov* cry of a portion of his (B’s) salary of $2000 per annum, as a minister of the gospel of the plaintiffs in error, from the 2d of December, 1820, to the 26th of June, 1821.
    The cause was tried at the Albany Circuit on the 2d Tuesday of April, 1822, before Spencer, (then) Oh. J. of the supreme court.
    On the trial, the plaintiff below gave in evidence the call of the defendants below, under their corporate seal, dated June 12th, 1805, directed to the plaintiff in error ': which call was as follows:
    
      “To the reverend John Melancton Bradford, &o. Whereas, the Reformed Protestant Dutch Church in the city of Albany is at present destitute of the stated preaching *of the word, and the regular administration of the ordinances, and is desirous of obtaining the means of grace which God hath appointed for the salvation of sinners, through Jesus Christ his son; and whereas, the said church is well satisfied of the piety, gifts and qualifications of you, John. Melancton Bradford, and hath good hope that your labor in the gospel will be attended with a blessing; therefore, we, the minister, elders and deacons of the said church, have resolved to call, and we hereby solemnly, and in the fear of the Lord, do call you, the said John Melancton Bradford, to be our pastor and teacher, to preach the word in truth and faithfulness; to administer the wholly sacraments agreeably to the institutions of Christ; to maintain Christian discipline; to edify the congregation, and especially the youth, by catechetical instructions, and as a faithful servant of Jesus Christ, to, fulfill the whole work of the gospel ministrv, agreeably to the word of God. and the excellent rules f , J. , . ....... and constitution of our Reiormed Dutch Church,, established in the last national synod, held at Dordrecht,, and ratified and explained by the ecclesiastical judicatory,, under which we stand, and,to. which you,, upon accepting this call, must, with us, remain subordinate.
    In fulfilling the. ordinary duties of your ministry, it. is expressly stipulated, that besides preaching upon such texts of scripture as you may judge proper to. select for our instruction,, you. also explain a portion of the Heidi ebergh catechism on the Lord’s days, agreeably to the established order of the said church; and that you farther conform in rendering all that, public service, which is usual and has been in constant practice in our congregation;
    To encourage, you, in the discharge of the duties, in your important office,, we promise, in the name of this church, all proper attention,, love, and obedience in the Lord ; and to free you from worldly cares and avocations,, whilst you are- dispensing spiritual1 blessings to us, we, the minister, elders1 and deacons of the said church, do promise and oblige ourselves, and our successors, to pay to you the sum of one thousand five hundred dollars, of the money of account, of the. United States,, yearly, and every year; in ^quarterly payments, as long as yon continue our minister in the said church, and remain unmarried1; and, from and after the; time- of your marriage, we further promise and oblige ourselves, and our successors, to- pay you the additional' sunn of two hundred and fifty dollars, of like money as aforesaid; yearly,, and, every year,, in quarterly payments, during the-continuance ofyour ministry in the. said church.”
    The defendant in error also gave in evidence a resolution, dated “ In Gonsistory, 7th Dec. 1813,” under the corporate. seal of the plaintiffs in error, fixing his permanent salary at $2000, per annum,-, payable, quarterly.
    It was then admitted by the1 parties,, that this salary had been paid up to the 2d of December, 1820but not after.
    It was thereupon admitted, that: the elders and deacons of the Reformed Protestant-Dutch Church, in the city of -^^an7> to w^t: Stephen Van Bensselaer, Conradt Ganso voort, John E. Bleecker and Jacob Ten Eyck, elders: and Turns Shngerland, John A. Goeway, Charles D. Townsend, an(^ Eíartin Van Alsyne; deacons, at a consistorial meeting, held on the 5th day of September,- 1820, unanimously agreed upon a representation in writing, to be made to the elassis of Albany, as follows, to wit:
    “To the reverend elassis of Albany, the elders and deacons of the consistory of the Beformed Protestant Dutch Church in the city of Albany, respectfully represent: That reports have existed for a considerable time past, which impute to their minister, the Eev. Doctor John M. Bradford, repeated instances of inebriety; that, feeling unwilling to credit such reports, and desirous to preserve the character and usefulness of their minister, whose talents they hold in the highest estimation, the elders have both formally and informally communicated the prevalence of said reports to him, and admonished him, in a friendly manner, of their ruinous tendency, and the necessity of greater circumspection on his part, to silence them. That, hoping that such communications and admonitions would produce a circumspect and exemplary course of conduct on the part of their minister, and aware oí the injurious consequences which might result from a public investigation, the elders and deacons have hitherto forborne to request such investigation. That the continuation, and extensive prevalence of the said reports, with references to recent instances of the inebriety of their minister, as well as a deep sense of their Christian obligations, the rules of the church now constrain the elders and deacons to the painful duty of soliciting the investigation as early as may be practicable. That the standing and usefulness of their minister in the congregation is already materially impaired, and the elders and deacons entertain strong apprehensions, that unless the said reports shall be speedily silenced by the judicial determination of the reverend elassis, and the reproach cast upon the character of their said minister completely removed, it will be wholly impracticable to re-establish his usefulness amongst his pre* sent flock. Wherefore, the elders and deacons earnestly entreat the reverend classis, to take such measures . , . , . , „ mg the premises, as the excellent constitution and rules or the Reformed Protestant Dutch Church prescribe, and the nature of the case imperiously requires.
    S. V. Rensselaer, President P. 71”
    That the said representation was, by the direction of the said elders and deacons, in the said consistorial meeting, signed by the said Stephen Van Rensselaer, as their president pro tempore, and, on the 7th day of September in the year last mentioned, delivered to the president of the said classis of Albany, and that a copy thereof was, previous to such delivery to the said president, duly served on the plaintiff below. That a meeting of the said classis was regularly convened and held, in pursuance of a call for that purpose by the president thereof, to investigate the truth of, and decide upon the matters set forth in the said representation, at the city of Albany, on the 13th and 14th days of September, in the year lastenentioned. That the plaintiff below appeared before the said classis of Albany, at the said meeting thereof and the said representation was openly and distinctly read in the said classis, to the plaintiff below, who then and there alleged and objected, * that the said classis was not constitutionally convened, which objection and allegation, and the reasons then and there urged on the part of the said plaintiff below, in support thereof, having been duly considered by the said classis, were then and there overruled. That the classis then proceeded to investigate, whether the reports set forth in the aforesaid representation, to be in circulation against the said plaintiff below, of repeated instances of inebriety, were of such continuance and extent as to constitute what is called common fame; and that the said plaintiff below attended such in vestigation, and had leave to cross-examine the witnesses. That after several witnesses had been duly sworn and examined before the said classis, relative to the continuance and extent of said reports, and the evidences of the said witnesses had been duly considered, the said classis then and there adiudged and determined, that the continuance and eX< , ° . ’ of the said reports against the plaintiff below, ch’argT. - V .' „ Í , ’ ° mg him with inebriety, were of such- á nature' as to con* statute what, in the constitution of the aforesaid church,, is termed “ common fame.” That the said elassis thereupon required the said consistory of the Reformed Protestant Dutch Church, in the city of Albany, by their special delegates appointed to attend the said elassis at the time last mentioned, to furnish the said elassis- with specific instances- or charges of inebriety against the satidplamtiff below, and the names- of witnesses to prove- the same. That such specific instance's or charges, and the names of divers witnesses to prove the- same; were thereupon furnished to the said' elassis, at the last" mentioned! meeting, by the said special delegates, in behalf of the said consistory, which were then and there- openly read1 in= -the said elassis to the plaintiff below. , That the plaintiff below, on being called upon by the said! el'assis- to- answer to- the said charges, then and there denied, the truth- of the', said charges, and thereupon requested' time of the saidclassis to prepare- for his defence, which- was granted! to' him By the said elassis until the 23d day of October then next3 ensuing; and that *the said elassis- then and there also gave leave to the said consistory, by their special delegates, to add a designation of other instances of the inebriety of the plaintiff below, with the names of witnesses to prove the same, upon condition that & copy ©f such additional designations and names' of witnesses, should' be served upon the plaintiff below 14 days previous to the next meeting of the said elassis-; and that the said- elassis thereupon adjourned, to meet again on-the. said'2'3'd' day’ of 'October; in the year-last mentioned, in the said city of Albany, to enter upon the- aforesaid" investigation-. That the sai'd elassis met, pursuant, to adjournment, on- the day" and:year; and at the place1 last mentioned,-and the said' consistory, by their said special delegates, then and there-exhibited- to the said elassis, divers' additional specifications of' instances- of" the inebriety of the plaintiff belo-w,- with' the names of witnesses to prove the'same,- of which" a copy had been duly served on the plaintiff below. 14 days previous to the last, mentioned meeting of the said classis, at which last meeting, the said additional specifications were also read to the plaintiff below, in the said classis, who, on being required by the said classis to answer thereto, then and there denied the truth thereof. That the said classis then and there proceeded, from day to day, to investigate the truth of the said instances of inebriety of the plaintiff below, specified and furnished to them as aforesaid by the said consistory, by the said special delegates, and to hear the proofs and allegations in support thereof, until the 3d day of November, in the last mentioned year. That on the day and year last mentioned, the said classis, at the special instance of the plaintiff below, adjourned, to meet again in the said city of Albany, on the 27th day of November, in the same year. That on the day and year last mentioned, the said classis met, pursuant to their said adjournment, in the said city of Albany, and then and there proceeded to hear, as well the proofs and allegations of the said plaintiff below, in his defence, as the further proofs and allegations of the said consistory, by their said special delegates, touching the said instances of the inebriety of the plaintiff below, '“and continued such hearing from day to day, until the 2d of December, in the year last mentioned, when, after duly considering all the said proofs and allegations, the said classis pronounced the following decisions and sentence thereon, to wit:
    “ Besohed, That the Reverend Doctor John M. Bradford be, and he hereby is pronounced guilty of repeated instances of inebriety and intoxication.
    Whereas, sobriety in ministers is essentially connected with the honor of religion and success of the gospel: And whereas, the Reverend Doctor John M. Bradford has been found guilty of repeated instances of inebriety or intoxication": therefore,
    Besohed, That the said Doctor John M. Bradford be, and hereby is, suspended from the office of the ministry, until he shall give the classis evidence of repentance and reformation.”
    
      That after the decision and sentence of the said classis were made and pronounced as aforesaid, in and by the said classis, on the day and year last mentioned, the plaintiff below, in his own proper person, then and there gave notice to the said classis, that he appealed from their said decision to the particular synod of Albany, which notice of appeal was then and there duly entered by the said classis on the minutes of its proceedings. That afterwards, to wit, at a regular meeting of the said particular synod of Albany, held in the city of Albany, on the 16th day of May, 1821, the said appeal of the plaintiff below was brought to a hearing by the plaintiff below, before the said particular synod of Albany, and after hearing, as well the allegations of the said plaintiff below, in support of his said appeal, as the reasons assigned by the said classis in favor of their said decisions and sentence against the said plaintiff below, and after duly examining and considering the whole evidence before the said classis, relative to the subject of the said appeal, the said particular synod of Albany then and there made the following decision on the said appeal, to wit:
    *“ Besolved, That the appeal of Doctor Bradford, from the decision of the classis of Albany, declaring him guilty of repeated acts of inebriety, and suspending him from the gospel ministry until he give satisfactory evidence of repentance and reformation, be not sustained.”
    That the plaintiff below, at the time and place last mentioned, appealed from the said decision of the particular synod of Albany against him upon his said appeal, to the general synod, which appeal was then and there duly entered on the minutes of the said particular synod of Albany.
    That afterwards, to wit, at a regular meeting of the said general synod, held in the city of Albany, on Wednesday, the 6th day of June, 1821, and continued by adjournment from day to day, until the 14th of June, in the year last mentioned, the plaintiff below brought his said last mentioned appeal to a hearing before the said general synod, and that after hearing, as well the allegations and reasons of the plaintiff below, in support of his said last mentioned appeal from the decision of the particular synod of Albany, affirming the aforesaid decision and sentence of the said classis of Albany, against the plaintiff, as the reasons of the said particular synod in support of their said decision of affirmance; and, after duly examining and considering all the. evidence before the said particular synod, to the matters of the last mentioned appeal, the said general synod, on a motion to sustain the said appeal, decided the said motion in the negative, and thereby affirmed the said decision of the said particular synod of Albany, so as aforesaid appealed from by the plaintiff.
    That the said general synod, at its said meeting and immediately after making its aforesaid decision, agreed to and passed the following resolution, to wit:
    “ Resolved, That the classis of Albany be, and they are hereby advised, to proceed to dissolve the pastoral connection between the congregation of the the Reformed Protestant Dutch Church in the city of Albany, and the Reverend Doctor Bradford.”
    *That at a meeting of the said classis of Albany, regularly convened and held at the said city of Albany, on the 26th day of June, 1821, to take into consideration the last mentioned resolution, the plaintiff appeared, and was requested by the said classis to show cause, if any he had, why the said resolution should not be carried into effect by the said classis, and that the said classis of Albany then and there made the following decision thereon, to wit:
    “ Resolved, That the pastoral connection which has subsisted between the said Reverend John M. Bradford and the congregation of the Reformed Protestant Dutch Church in the city of Albany, be, and the same is hereby dissolved.”
    The counsel for the plaintiff below thereupon offered in evidence, and the counsel for the defendants below admitted, that the classis of Albany, on the 22d day of February, 1821, passed the following resolutions, to wit:
    “ Whereas, the elders and deacons of the church of Albanv have, in a certain memorial presented to this classis, r A , ’ ■ . . . ' Praye<a a dissolution of the pastora] connection existing between Doctor John M. Bradford and the said church of 4-lbany: And whereas, the said John If. Bradford has been regularly tried by the classis, and found guilty of repeated instances of inebriety: Therefore,
    
      Besolved, That the petition of said elders and deacons be granted,, and that the pastoral connection existing between the said. John M. Bradford and the church of Albany, be, and the same is hereby dissolved.”
    That the plaintiff below afterwards duly appealed from the foregoing resolution of the classis, dissolving the said pastoral connection, to the particular synod of Albany, which appeal was not sustained, and the same resolution was confirmed according to the resolution of the 21st of May, 1821, before set forth. That the plaintiff below duly appealed therefrom to the general synod, which, on the 14th of June, 1821, sustained the said appeal, as to the dissolution of the pastoral connection, and adopted the following resolution:
    
      Besolved, That the second appeal of the Rev. Doctor Bradford, from the decision of the particular synod of Albany, confirming the decision of the classis of Albany, dissolving the pastoral connection between him and the church of Albany, be, and the same is hereby sustained.” That the. said synod,, on the same day last aforesaid, passed the following resolution;
    “ Besolved, That the classis of Albany be, and, they hereby are advised to proceed to dissolve the pastoral connection between th.e congregation of the Protestant Dutch Church, in the city of Albany, and the Reverend John M. Bradford.”
    That in pursuance of the said recommendatory resolution, the said classis afterwards, on the 26th day of June, 1821, after reciting the same, passed the following resolution :
    “ Besolved, That the pastoral connection, which has subsisted between the said Reverend John M. Bradford, and the congregation of the Reformed Protestant Dutch Church in the city of Albany, be, and the same is hereby dissolved.”
    The rules of church government, established in the national synod, held at Dordrecht, in 1618 and ’19, and the articles explanatory of the government and discipline of the Reformed Dutch Church iti the United States of America, were then given in evidence by consent. These consisted of 159 articles, in the whole, (among other things,) creating and fixing the jurisdiction of the various judicatories, who acted concerning the plaintiff below. If is necessary to give only such parts at length, as were referred to in the arguments of counsel, or the opinions of the judges:
    ARTICLES OF THE NATIONAL SYNOD OF DORDRECHT.
    ART. X.
    A minister, being lawfully called, may not forsake the church or congregation where he is regularly settled, in order to accept a call elsewhere, without obtaining the previous ^consent of the Consistory and deacons, and of those who have formerly borne those offices, together with the approbation of the classis. And in like manner, shall no church be permitted to receive him, before he has produced sufficient credentials of his regular dismission from the church and classis where he last officiated.
    ART. XL
    In like manner, the consistory, as representing the congregation, shall bé bound to provide their ministers with a decent support, and shall not forsake them, without the knowledge and decision of the classis; who shall determine, on complaint made of a deficiency of support, whether such minister shall be removed or not.
    ART. XII.
    A minister of the word, being once lawfully called, in manner before mentioned, is bound to the service of the sanctuary as long as he liveth. Therefore, he shall not be at liberty to devote himself to a secular vocation, except for great and important reasons, concerning which the classis shall inquire and determine.
    ART. XIII.
    If a minister become incapable of performing the duties of his office, either through age, sickness, or otherwise, such minister shall, notwithstanding, retain the honor and style of his office, and be provided with an honorable support by the churches to which he hath' ministered. Provision is, in like manner, to be made for the widows and orphans of ministers in general.
    ART. XIV.
    Whenever it shall become necessary that ministers, for the reasons before mentioned, or for any other cause, should desist for a time from the exercise of their office, (of which the consistory is to judge,) they shall, notwithstanding, continually be subject to the call of their congregations.
    *ART. XLI.
    The classical assemblies shall be composed of neighboring churches ; each of which shall send one minister and one elder, with proper credentials, to the place, and at the time agreed upon at the rising of the preceding classis; provided always, that the intervals between the classical meetings shall not exceed three months. In those assemblies, the ministers shall preside in rotation, or otherwise a praeses shall be appointed by the members, so that the same person, however, be not chosen twice successively. The praeses shall, moreover, inquire of the members respectively, whether they observe their consistorial meetings; whether church discipline be.exercised; whetherthe poor, and the schools are properly taken care of; and whether they stand in need of the advice and assistance of the classis, in any thing respecting the regulation of their churches. The minister, who was appointed by the last preceding classis, shall, at the opening of the session, deliver a sermon, of which the other members are to judge, and to point out its defects, if any there be. Lastly, the classis shall, at their meeting next preceding that of the particular synod, appoint delegates to attend the said synod.
    ART. LXIX.
    If ministers of the word, elders or deacons, have committed any public gross sin, which is scandalous to the church, or punishable by civil magistrates, the elders or deacons shall immediately be removed from their office, by the previous determination of the consistory of their own, and next adjacent church'. But the minister shall be suspended; and it shall be left to the decision of the classis, whether they shall be wholly deposed or not.
    ART. LXXX.
    The following are to be considered as the principal offenses that deserve the punishment of suspension, or removal from office, viz. false doctrine or heresy, public schisms, open blasphemy, simony, faithless desertion of ^office, or intruding upon that of another, perjury, adultery, fornication, theft, acts of violence, brawlings, habitual drunkenness, and scandalous traffic; in short all such sins and gross offenses, which render the perpetrators infamous before the world, and which, in a private member of the church, would be considered as deserving excommunication.
    ARTICLES EXPLANATORY, &o., IN THE U. S. OE AMERICA.
    ART. XVI.
    Every minister must consider himself as wholly devoted to the Lord Jesus Ohrist, in the service of the church; and shall faithfully fulfill the obligations of his call, in preach* ing, catechising, and "visiting his flock; and be instant in season and out of season; and by word and example always Promote the spiritual welfare of his people.
    ART. XVI.
    Ministers who, by reason of old age, or habitual sickness and infirmities, either of mind or body, are not capable of fulfilling the duties of the ministry, may, upon application, and sufficient proof-of such incapacity being made to the classis, be declared emeriti, and be excused from all further service in the church during such infirmity; reserving, however, to them, the title, rank and character which, before such declaration, they enjoyed. In al! süch cases, the classis, shall make it a condition, previous to any minister’s becoming emeritus, that the congregation enter- into stipulations, obliging them to a reasonable and annual support to their pastor, who has grown old, or become sick and infirm in their service.
    art. xxxv.
    A neighboring minister, (if there is none belonging to the consistory,) must be invited to superintend the proceedings, whenever a consistory is desirous of making a call. The instrument is to be signed by all the members of the consistory, or by the president, in the name of the -consistory ; and if the church is incorporated, it is proper to affix the seal of the corporation. When the call is completed, it must he laid by the consistory before the classis, and he approved by the same, before it can be presented to the person called. And if the call be accepted, the approbation of the people must be formally obtained by the consistory, (agreeably to Art. iv. of the Church Orders,) before the minister may be ordained.
    ART. xxxvi.
    The forms of calls have hitherto varied. In many, it has been customary to enumerate all the particular duties to be performed by the minister: but as those duties are _ .■r. , : % ,ii sufficiently ascertained, it is judged unnecessary to burthen the instrument with a repetition ot what the very office ol a minister implies. For the sake of propriety, therefore, as well as uniformity, it is recommended to the churches, for the future, to adopt the following form of a call, viz.
    
      {Then follows a form, with which the call in this case substantially ayrees.)
    
    Glassis are invested with the power of approving or disapproving calls, and of ordaining or deposing ministers, or dismissing them when called elsewhere. They have cognizance of whatever respects the welfare of their particular churches, for the management of which the consistories may be incompetent. To. the classis also appertain the receiving and determining all appeals from consistorial adjudications, as well as all cases respecting either ministers or people which may arise within their jurisdiction, and are regularly brought before them; the forming new congregations, and determining the boundaries, when contested between congregations already formed; the continuing combinations, or the dissolution or change of the same, as may be requested by the people or be judged necessary among the respective congregations.
    ART. LXI.
    Great attention shall always be paid, by all ministers of the gospel, to the instruction of youth and others in "their respective congregations, in order to prepare them to make a confession of their faith, and from proper principles and right views, as members in full communion, to approach the Lord’s table. If any minister shall habitually neglect to catechise the children and youth of his congregation, it shall be the duty of the elders to urge him to it; and if he shall, without a sufficient reason, notwithstanding the remonstrance of his elders, continue to neglect the same for one whole year, he shall be reported by his elders to the classis> that measures may be taken to oblige him to fulfill w^at *'*ie ®ef°rmed Dutch Church has always considered a very important and necessary part of the ministerial duty,
    ART. LXIH.
    In article 23 of the church orders, it is mentioned as a duty incumbent upon ministers and elders, to visit the members in full communion of their respective congregations, previous to the administration of the Lord’s supper. These visitations, when performed with prudence and proper solemnity, have been found to be productive of many rood and happy consequences. It is therefore expected that every minister, accompanied with an elder, will, (unless it be judged impracticable by the consistory,) at least once in every year, visit all the members of his church, and endeavor to remove all animosities that may have arisen, and excite them to peace and proper exercises of faith and holiness. Ministers and elders who shall habitually neglect this duty, shall be called to account in their respective classis, and be prompted to attend to the same. And all classis are enjoined to make particular inquiry, whether this duty is punctually fulfilled in the respective congregations within their district.
    ART. LXXI.
    Ministers of the gospel must be an example to believers, and much of their success will usually depend upon their good character, and their holy walk and conversation. Their conduct must, therefore, be watched over with great attention, and their crimes punished with impartiality and ^severity. In admitting accusations against a minister, the rule prescribed by the apostle, (1 Tim. v. 19,) shall always be observed; and accusers must come forward openly to support the charge, unless where common fame has rendered a scandal so notorious, that the honor of religion shall require an investigation.
    
      ART. LXXII.
    When it is said (Art. 79 of Church Orders) that minis- . . , . ' , . ters. guilty of atrocious crimes, shall be suspended from the exercise of their office by the consistory, until they are tried by the classis, it is only intended, that in certain public and notorious offences, which would render the appearance of a minister in the pulpit, in such a situation, highly offensive, it shall be the duty of the consistory, in order to prevent scandal, to shut the door against such criminal, and refer him to be tried by the classis as soon as possible. The proceedings of the consistory in such cases, is at their peril, and is not to be considered as a trial, but only a prudent interference, and binding over the person accused, to the judgment of his peers.
    The defendants below insisted on these matters as a bar to the plaintiff’s action. The judge decided they were not so; and the. defendants below excepted. The cause was afterwards heard at bar, and judgment rendered by the supreme court for the plaintiff below; and it came here on error founded upon the bill of exceptions.
    The reasons for the judgment of the court below were now assigned by
    Sutherland, J., substantially as they were rendered on giving judgment there; on which occasion he remarked as follows:
    Sutherland, J. “This is an action of covenant, brought by the-plaintiff, to recover from the defendants a portion of the salary which he alleges remains due to him, at the "rate of two thousand dollars per annum, from the 2d of December, 1820, to the 26th of June, 1821.
    It is admitted by the defendants, that the plaintiff’s salary during that period has not been paid; and they contend *that having been suspended from his office of the ministry on the 2d day of December, 1820, and having performed none of his pastoral duties subsequent to that period, his right to his salary ceased from that day, although the pastoral connection existing between him and the church, was not formally dissolved until the 26th of T rnnt 1 U 1 June, 1821; and the ease resolves itself into the inquiry, whether, according to the contract between the parties, the performance of his clerical duties was a condition precedent to the plaintiff’s right to his salary; or whether, as he contends, he is entitled to it as long as he remained the minister of this church, although, in consequence of his suspension, he may not have performed the duties of their pastor.
    The agreement of the defendants, upon which this suit is founded, is contained in the call which they gave the plaintiff to become their minister, on the 12th June, 1805; and the material part of it is as follows:
    
      “ To free yon from wordly cares and avocations, whilst “ you are dispensing spiritual blessings to us, we, the min- “ ister, elders and deacons of the said church, do promise “ and oblige ourselves and our successors, to pay you the “sum of-— dollars, yearly and every year, in quarterly “payments, as long as you continue our minister in the “ said church.
    Both parties admit, that they are hound by tire constitution and rules of the Reformed Dutch Church; and that the different church tribunals who have passed upon this case had competent authority, under the constitution and rules of the church, to institute the proceedings, and pronounce the decisions disclosed in the case. It is very clear, that the suspension of the plaintiff by the classis of Albany, in December, 1820, was considered by that tribunal, as well as the parties, as disciplinary merely, and not as dissolving the connection between the pastor and his congregation* He was suspended until he should give, the classis evidence of repentance, and reformation. It was intended to admonish him of the impropriety of his ^conduct; and it was hoped' that it would produce such an effect upon his habits abd manners, as to render any further proceedings unnécessary. Having failed to produce this effect, the classis,' in February, 1821, dissolved the connection. Upon appeal to the general synod, this order was reversed, probably for some informality, as they at the same time recoup? mended to the.cjassis to take the necessary measures to dissolve the connection, which was accordingly done on the 26th of June, 1821. All the authorities of the church, therefore, considered the relation of pastor and congregation as subsisting between the parties until that time; and in the view of the constitution and laws of the church, the plaintiff was undoubtedly their minister up to that period. The church was not vacant. They could not have called another minister.
    Upon a consideration of the nature of the connection, as well as the terms of the contract between the parties, I think it is apparent, that it was not their intention to make the performance of all his duties as pastor, a condition precedent to the plaintiff’s right to his salary. The general duties of a minister of the gospel are enumerated in the call; and the expectation of the defendants, that the plaintiff will perform those duties, agreeably to the constitution and rules of the church, is expressed. But the covenant of the defendants is to pay him- his salary, not as long as he, shall perform his duties, but as long as he shall remain their minister. It was not the intention of the parties that the plaintiff should be put to the proof of the unremitted performance of all the various duties belonging to his station before he could compel the payment of his salary. If the performance of those duties was a. condition precedent, it would be incumbent on the plaintiff to aver and prove it; and a failure in any would be fatal to his right to recover.
    Both parties, by the terms of the call, acknowledged themselves to be subject to the ecclesiastical judicatories of the Dutch Church; and the defendants well knew that they had an ample and prompt remedy for the neglect or misconduct of the plaintiff, in -the power of those judicatories, to dissolve the connection between them.
    If the cause of complaint was of a nature which required pnly the disciplinary interference of the authorities of the church, such as admonition or suspension, it was proper in itself, and evidently so considered by the church, that the pastor should not be deprived of the means of subsistence during the period of his probation. Ministers, like other men’ are Su^jec* to temptation and to error; and the spirit of Christianity and the laws of every well regulated church . , J • . . , , _ " • „ ,6 , , require, that opportunities should be afforded them for repentance and reformation, without their enduring the pains and penalties of starvation.
    The call in question was conceived in this spirit: it binds the defendants to pay the plaintiff his salary as long as he shall continue their minister in the said church. In the event of any difficulties between the parties, which shall require the interposition of the authorities of the church, and occasion- a suspension of the clerical duties of the pastor, the church assumes the burthen of his support while these difficulties are in the progress of trial and adjustment.
    This appears to me to be the fair construction of the contract between the parties.
    I am accordingly of opinion that the plaintiff is entitled to judgment for the damage assessed.”
    Savage, Oh. J.¡■(dissenting.) “ The plaintiff’s right to recover, depends on the construction to be given to the call by the defendants, which contains the contract between the parties. Although the call is signed by the defendants only, yet it contains stipulations on the part of the plaintiff, which constitutes the consideration for the agreement by the defendants for the payment of the plaintiff’s salary. The plaintiff, by accepting the call, became (if he was not previously) subordinate to the constitution of the Reformed Dutch Church, besides undertaking generally to fulfill the whole work of the gospel ministry. He expressly stipulates, that besides preaching5 on the Lord’s *day, and explaining part of the catechism, he will conform in rendering all that public service which is usual, and has been in constant practice in the congregation. By explanatory article 14, every minister must consider himself as wholly devoted to the Lord Jesus Christ in the service of the church; and shall faithfully fulfill the obligations of his call, in preaching, catechising and visiting his flock; and be instant in season and out of season; and, by word and example ; always promote the spiritual welfare of his people.
    
      The defendants "engage to pay the plaintiff fifteen hunw w . , dred dollars yearly, and every year, in quarterly payments, as long as you continue our minister in the said church, while unmarried, and after his marriage two hundred and fifty dollars in addition, during the continuance of your ministry in the said church. The salary was afterwards raised to two thousand dollars.
    Here are mutual covenants. Though the instrument is not signed by the plaintiff, yet, by accepting the call, he obligated himself to perform the stipulations on his part; and though, in terms, it is not said that the defendants agree to pay, in consideration of the services to be rendered by the plaintiff, yet that is understood by the good sense of the instrument. The plaintiff was not to receive the salary for becoming the minister of that church, but for performing the duties of that office ; and could it ever have been the intention of either of the parties that the salary should be paid, though no services were ever rendered ? The plaintiff continued to be the minister of the church till June, 1821, though he rendered no service after the 2d December, 1820, and was in fact incapacitated, by his own acts, from rendering any services. The case of Martyn v. Bind, (Oowp. 437,) was an actioa by a curate against a rector, for a salary. The agreement was contained in a certificate to the bishop, in which the defendant said, “ I, Eichard Hind, rector of St. Anns, do hereby nominate and appoint the Eev. Thomas Martyn to perform the office of curate in my church of St. Anns aforesaid; and do promise to allow him a yearly sum of fifty guineas for his ■^maintenance in the same, and to continue him to officiate in my said church, until he shall be otherwise provided of some ecclesiastical preferment, unless, by any fault of him committed, he shall be lawfully removed from the same.” One objection to the plaintiff’s recovery was, that he had not been licensed by the bishop, which Lord Mansfield thought the defendant had waived: but in commenting upon it, remarks, “ If, after reasonable notice, he does "not procure every qualification necessary to enable him to do the duty, the defendant would be excused from paying him the salary; for the plaintiff’s service, a? curate is not on^ consideration, hut the condition of the salary.” This ease was cited as good law hy this court, in The firsi Religious Society of Whitestown v. Stone, (7 John. 115.) In that case, the contract of the defendant was to pay annually five dollars, so. long as the Rev,. Mr.; Snowden administered the gospel in said society, and. the defendant resided within four miles of the meeting-house. This court said, the consideration was the preaching of the gospel by the Rev. Mr. Snowdenand 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,
    Every contract must be construed according to the true intent and meaning of the parties. Unless, therefore, we can suppose that the defendants intended to pay the salary, in consideration of the plaintiff’s being nominally the minister*, whether any services were performed, or not, the plaintiff ought not to recover. It is said, that the suspension of the plaintiff was disciplinary merely, and did not dissolve the connection; that is undoubtedly true, but does not, in my .opinion, affect the question. Suppose the ecclesiastical judieatori.es had thought proper to suspend the plaintiff for one year or five years, and refused to dissolve the connection between him and the defendants, they must in that ease he destitute of the ministry *and gospel ordinances, or they must employ some other person, and of course must pay such person for his services. The defendants in that ease would be punished for the misconduct of the plaintiff. Could such a relation between the. plaintiff and defendants he construed a continuance in the. ministry of the church, within the plain meaning and intent of the contract ? I think not,
    ' In. the case, of Dieffendorf v. The Reformed Calvinistic Church, (20 John. 12,) the proceedings-of the classis were held; irregular- and. void; and, the court take notice of the fact, that Mr. -Wack uniformly continued to exercise his ministerial office and character. Hot so in this case; no services have been rendered by the plaintiff since the 2d of December, 1820. Having been suspended for conduct unbecoming the ministerial character, he stands in no better situation than if he had, without cause, refused to render the services stipulated by this contract. Considering those services not only as the consideration, but the condition on which his right to the salary depends, and he having failed in performance of that condition, he has no right to the salary. The defendants are entitled to judgment.”
    Judgment for the plaintiff.
    
      A. Van Vechten, for the plaintiffs in error,
    stated that he should insist on the judgment below being "reversed upon the following grounds:
    1. Because, according to the sound construction of the covenant declared upon, the performance by the plaintiff in the court below, of the pastoral duties specified and referred to in the covenant, is a condition precedent, in consideration whereof, the defendants in the court below bound themselves and their successors, to pay him the stipulated salary.
    2. Because, agreeably to the terms and true intent of the covenant, the plaintiff in the court below, by accepting the call which it contains, assumed to perform faithfully all the duties therein specified and referred to, and, inter alia, to maintain a holy walk and conversation, so as to be an example to believers.
    *3. Because, by a regular sentence of the ecclesiastical judicatories of the Reformed Dutch Church, to whose jurisdiction the plaintiff in the court "below became subject on accepting the call, he was suspended from the office of the ministry during the whole time for which he demands salary, -for the sin of repeated inebriety.
    4. Because, in consequence of such suspension, the plaintiff in the court below, by reason of his own wilful misconduct, was disqualified, during the whole time, to perform any of the duties of a gospel minister, expressed in and con^emP^a*:ed- by the call contained in the covenant; in consideration of the performance whereof, the defendants . , , , . ,. , - . , , m the court below obligated themselves by the covenant to Pa7 him the specified salary.
    > 5. Because, the covenant being executed only by the defendants in the court below, and the duties to be performed by the plaintiff in the court below being altogether of a spiritual nature, no action at law can be sustained for their non-performance by the defendants, against the plaintiff; nor can the defendants defend themselves in an action at law upon the covenant for salary, although the plaintiff has, by reason of his own wilful misconduct, been regularly disqualified to render any of the stipulated services, as a gospel minister, which would have entitled him to the salary, unless performance on his part is a condition precedent.
    6. Because the suspension of the plaintiff in the court below, from the office of the ministry, suspended his legal right to salary by virtue of the covenant, during his suspension from office; for the salary was a compensation covenanted to be paid to the plaintiff for pastoral services, and not for his support as a suspended minister, in the event of his suspension by reason of his own misconduct.
    7. Because, though the object of every ecclesiastical sentence against a minister of the gospel, or any other member of a church, is disciplinary; yet, in case of a gross offence, and especially by a minister, the honor of religion requires that he should be suspended from his sacred office, until, by sincere repentance and reformation, he shall *merit restoration.- In such a case, suspension from office necessarily suspends the claim which, in virtue of his office, he had acquired by a pastoral call from a congregation, to salary for pastoral services. This results from an obvious principle of justice, that no man shall recover a compensation for services, which he has, by reason of his own wilful misconduct, been incapacitated to perform.
    8. Because it subjects the plaintiff below to no peculiar inconvenience, if performance on his part is considered a condition precedent; inasmuch as a court of law will intend he has performed regularly, while he continues actually to officiate in his pastoral office, until the competent ecclesiastical tribunals have decided otherwise; but when he has been ecclesiastically suspended, as in this case, and the fact of non-performance by reason thereof, is rendered indisputable, it would seem repugnant to common sense, as well as to justice, that he should be allowed to recover salary for pastoral services, which he, by his own misconduct, was incapacitated to perform.
    The counsel then stated the facts, adverting particularly to the various proceedings of the ecclesiastical judicatories, to which he said the defendant in error was amenable by the express terms of his call, and the articles of the national synod of Dordrecht, (art. 79, 80,) and then spoke as follows in relation to the first point:
    In discussing this point, the nature and intent of the call is to be considered.
    It is an instrument executed by the plaintiffs in error, under their common seal, setting forth, that their church was destitute of the stated preaching of the word, and the regular administration of the ordinances; that they were desirous to obtain both; and that being satisfied of Mr.
    Bradford’s piety and gifts, and cherishing a good hope that his pastoral labors would be attended with a blessing, they invited and called him to become their pastors and teacher, to preach the word in truth and, faithfulness, to administer the holy sacraments, and, a sa faithful servant of the Lord Jesus Christ, to fulfill the whole work of the gospel ministry, agreeably to the word of God and the rules and ^constitution of the Dutch Church, under which the plaintiffs in error were placed, and to which he, upon accepting the call, should become subordinate. (See Bxpl. Art. 14.)
    It then details some particular official duties which are prescribed by the Dutch Church, and concludes thus:
    “To encourage you in the discharge of the duties of your important office, &c.” (The concluding paragraph of the call, ante, 458, 459.)
    Hence it appears manifest, that the faithful performance of Mr. Bradford’s pastoral -duties,- which are comprehended ^ ca^ wag the declared inducement to make it, and the consideration and condition of the salary. The rule is we-H settled, that in construing contracts, the intent of the contracting parties must govern, so far as it is consistent with law; and the application of this rule to the present, case, supports decisively our -construction of the instrument in question. Nor are indisputable authorities wanting to maintain' it. In Martyn v. Hind, (Cowp. 437,) which was the case of a curate employed by the rector of St. Ann’s, to assist him in the performance of official duties, the court said, that the plaintiff’s service as curate, was not only the consideration, but the condition of the salary, which the defendant had contracted to pay. In The first Religious Society of Whitestown v. Stone, (7 Johns. Rep. 115,) which was a suit against a subscriber to the salary of the Bev. Mr. Snowden, the court referred, in terms of unequivocal approbation, to the doctrine laid down in Martyn v. Sind, and said, that the defendant’s obligation to pay continued so long as Mr. Snowden’s service continued, and would cease when his service ceased. And in Dieffendorf v. The Reformed Calvinistio Church of Canajoharie, (20 John. Rep. 12,) which came up by certiorari from a justice’s court, who had rendered judgment against Dieffendorf, as a subscriber to the salary of the Bev. Mr. Wack, the court reiterated the same doctrine; and placed the continued liability of Dieffendorf to pay the subscription, upon the ground of Mr. Wack’s continued '-^pastoral service, agreeably to the decision of an ecclesiastical judicatory of competent jurisdiction.
    These authorities clearly establish the point, that the performance of Mr. Bradford’s pastoral duties, was not only the consideration, but the condition of the salary; and therefore a condition precedent.
    I will now proceed to show, by direct authorities, what constitutes a condition precedent. In Thorp v. Thorp, (12 Mod. 455,) Lord -Holt said, where one promise is made in consideration of another, that which forms the consideration must be first performed, and is a condition precedent. In Jones v. Barkley, (Doug. 684,) Lord Mansfield said, that the dependence or independence of covenants, is to be , , . . -. L, . lected from the sense and meaning ot the parties; and their precedence must depend upon the order of time in which the transaction requires their performance. And in Barruso v. Madan, (2 Johns. Rep. 148,) Mr. Justice Spencer said, “ Ño technical words are necessary to render a stipulation a condition precedent; but it rests in the good sense and understanding of the parties, and. the acts to be performed by them respectively.”
    If this be sound law, and that it is, will, I apprehend, not be disputed, the conclusion would seem to follow irresistible, that Mr. Bradford’s faithful performance of the pastoral service prescribed by the call, was a condition precedent, inasmuch as it was not only the declared inducement to the call, but the consideration of the salary ; and in order of time, according to the express terms of the instrument, the service was to precede the quarterly payments ; and this conclusion is fortified by the very language of the plaintiff’s stipulation. What is it ? “ To free you from worldly cares and avocations, whilst you are dispensing spirit* ual blessings to us, we promise and oblige ourselves and our successors to pay you the sum of $- yearly, in quarterly payments.” How were those spiritual blessings tobe dispensed ? By Mr. Bradford’s faithful performance of his assumed pastoral duties. For the stipulation to pay, refers to the actual performance of those duties, as the means of dispensing them; and if it does, -such performance must be a condition precedent to his right to demand the stipulated salary.
    As to the other points. By reason of Mr. Bradford’s suspension from the office of the ministry, he not only did not perform, but was wholly incapacitated, in consequence of misbehavior, to perform any pastoral duties during the whole time for which he seeks to recover the salary. Can such a recovery be allowed by a court of law, without outraging justice, and the good sense and honest meaning of the contract in question ?
    But the doctrine for which I contend, seems to be partioularly adapted to the present case. For it will be seen, by inspecting the call, that the plamtms m error alone have executed it. Hence there can be no other ground of legal resistance to a suit for salary, after Mr. Bradford’s capacity to render the stipulated service ceased, in consequence of his suspension from office. Is the court prepared to say to the plaintiffs in error, “ Your defence is unjust ?” or is it prepared to say the defence is not warranted by the good sense of the contract, or supported by established law ? I trust not.
    Again; it is obvious, from the nature of this contract, that the plaintiffs in error cannot recover damages of Mr. Bradford for the breach on his part. Why? Because the law furnishes no rule of damages for the spiritual injury which the congregation may have sustained by means of his default. Hence the court will perceive, that if the defence set up by the plaintiffs in error is overruled, they must only pay to Mr. Bradford the reward of faithful service in the sacred office of a minister of the gospel, after he was suspended from it for misbehavior; but they are without any legal remedy for the wilful violation of his part of the contract. And if the law is so, it is high time that every religious society should fully understand it, in order that it may provide against the application of its appropriated means for the support of the gospel, to the support of a man who has forfeited the. right to preach, and been suspended from the sacred office of a gospel minister.
    *e7i V. Henry, contra.
    The whole controversy between these parties, depends on the construction of the covenant in question; that is to say, whether the services of the defendant in error were a strict condition precedent to the payment of the salary. We contend that when this covenant is viewed in connection with the constitution and rules of the Reformed Dutch Church, those services will appear not to have been a condition precedent; that the covenant, according to its true construction, was, to pay the salary so long as the defendant in error continued the minister or pastor of the plaintiffs in érror. Such is the true con* struction in the reason and nature of things. If not so, we aver that no minister of the Reformed Dutch Church could ever enforce the payment of his salary, if his church should think proper to contest the payment. A perfection and an extent of duty is required, which it is beyond human nature to perform. A strict and entire fulfillment is required by the argument for the plaintiffs in error, in all parts of the minister’s duty. This may be prevented in many ways; some by his own fault, and many over which he has no control.
    It cannot be deniéd that both these parties are expressly bound by the rules and constitution of the Reformed Dutch Church. But we contend that the sentence of the classis of Albany, of the 2nd of December, 1820, suspending the defendant in error from the office of the ministry, until he should give the classis evidence of repentance and reformation, was disciplinary merely, and did not dissolve the pastoral connection between the defendant in error and the Reformed Protestant Dutch Church in the city of Albany; and, therefore, did not affect the right of the defendant in error to his salary.
    By the constitution of the Reformed Dutch Church, every thing in relation to the conduct and continuance of the minister in service, is exclusively of ecclesiastical cognizance. The language of the call itself, which was adopted according to, and agrees in form with the 35th and 36th explanatory articles, is: “We, the minister, elders, &c., of the said church, do promise and oblige ourselves and *our successors, to pay you the sum, &c., as long as you con~ iinue our minister in the said church, and remain unmarried; and from and after the time of your marriage, we further promise and oblige ourselves and our successors, to pay you the additional sum of, &c., during the continuance of your ministry in the said charch. All persons concerned, placed the same construction upon the proceedings of suspension; that they were merely disciplinary, or probationary, f this was not so, why the subsequent application to dissolve the pastoral connection ?
    The resolution of the classis of Albany, of February, 1821, dissolving the pastoral connection, having been fes versed by the general synbd on the 14th of June, in the . „ i , v , ’ same year, the defendant Continued to be the minister of ^*6 Church, till the dissolution of the connection by the classis of Albany, on the 26th of Juné; 1821, These proceedings wefe conclusive bn both parties; on all concerned. They directly repognised the subsisting relation of minister and people up to the period of final dissolution. If not SO, Such a céremóñy would have been utterly idle and tin meaning. Nothing is better settled, than that the decree, ex direcio., of aü édclesiatieal, as well as á civil court, possessing competent jurisdiction, is conclusive evidence upon the Matters in question, whenever they are drawn into controversy collaterally before another court. (2 Esp. N. P. (Gould’s Ed.) 457. Bull. N. P. 244. 1 Day, 170. Swift’s Ev. 9. Meadows and others v. The Dutchess of Kingston, Ambl. 756.)
    Wé return, then, CbnfideUtly to the ground, that the performance of the pastoral duties Specified in the call, is not a condition precedent to entitle the defendant in error to his salary. We have already adverted to the express terms of the covenant. By this, We repeat, the salary Was, in so many Words, to be paid, as long as the defendant fti error continued minister in the Church. We say, again, that an Opposite construction would defeat the spirit and intention of the covenant, by requiring from á minister a purity of life above human nature; and subjecting him to a loss of Salary for any and every áot Of omission, *and for any and every departure from doctrine, morals or duty. lit the exercise bf CbmMon Sense, what is the inevitable literal meaning of this Covenant ? It is, that the salary is limited to, and Coextensive with the continuance of the pastoral relation. Sad this salary been expressed to be in consideration of the faithful performance of the duties of that relation, thed. We cbncede that performance Would have been a condition precedent, and the argument on the Other side Wbuld apply.' But here such a Construction is nbt only at war with the terms of the covenant, but With the Spirit Of the constitution, of the Reformed Dutch Church, to Which both parties have referred themselves. It is the . . „ „ , , „ , — . right of all churches, of whatever denomination, to pass such rules as they please for .their own government, if they be not inconsistent with the law of the land. If the church has done so in this instance, the common law rules of construction do not apply to the contract directly; but only through the regulations of the church. There cannot be a doubt that it was the intention of the national synod to rettain the whole power over this subject. They never meant that the right of salary should be drawn into question in a court of civil law, except so far as it depended upon the decisions of their own ecclesiastical judicatories. Follow out, for a moment, the doctrine of precedent performance on the other side, and look at its consequences. Suppose Mr. Bradford had doubted the doctrine of the Trinity; my friend on the other side would have deemed it a higher offence than getting tipsey now and then. Suppose he had denied the doctrine of the saint’s perseverance, or of infant baptism; would either have been a fit subject of temporal discussion, in an action for the salary ? Yet these are important fallings off in regard to faith. So in practice. Suppose he had withheld the baptism of infants; and suppose that he had been suspended for that omission the sentence of the proper church judicatory; in an action for the salary, we might be met with the objection now raised. You cannot thus refine away your minister’s salary by objecting, now want of faith, and now want of practice; nor any temporary suspension *for such cause. The whole duty and power to act must be first cut off. The connection must be entirely dissolved. Here is but a partial suspension. If it is to operate as a bar, shall it be a total one ? or, if partial, how is a jury to discriminate and proportion the compensation ? Is there any standard for this ? Would not the same difficulty arise in all matters of faith and practice ? If services be the consideration, then we ask, how is the minister to recover in case of sickness, voluntary or providential? If a servant be disabled to work for you, even by the act of God, you are not liable, at common law, to pay him for his time, during which, for that reason, he could not serve > s J i
    The rights and powers of churches to regulate their own concerns, has been recognized by an express decision of the supreme court. Jarvis v. Hatheway, (3 John. Rep. 180,) was an action of slander, for words uttered in the course of church discipline ; and held not to lie, for that reason. Spencer, J, in delivering the opinion of the court, said, “ Every sect of Christians are at liberty to adopt such proceedings for their regulations as they see fit, not inconsistent with law, or injurious to the rights of others.” We cite these remarks to show that the national synod had a right to withdraw and exempt all questions, properly ecclesiastical, from temporal cognizance. Take the case mentioned in the 16th explanatory article, of ministers permanently disabled, by mental or bodily infirmity, from performing their functions. The article provides, that they may, on application, &e., to the classis, be declared emeriti, the classis obliging the congregation first to stipulate for a reasonable annual support to their minister. This article evidently supposes that without such proceeding, the regular salary must continue. Is there a doubt that it would do so, unless the classis should interpose and dissolve the pastoral connection on the condition mentioned ? The 61st explanatory article provides fora case of neglect, as to the duty of catechetical exercises by the minister. If, after being urged by the elders, he ^neglects this branch of his ministerial functions for one whole year, he is to be reported to the classis. Is his salary to be suspended during this year of neglect ? So as to annual visitation. A neglect in this particular is made criminal by the 63d explanatory article. The 12th article of the synod of Dordrecht shows how strictly he is bound, and must be devoted to the service of his congregation. He is bound during life; and cannot devote himself to any secular calling, without the approbation of the classis on important reasons. The church thus restrains him from work. Do they also mean that he shall be without bread?
    I agree that we are bound by the meaning and good sense of covenants. In ordinary cases, the service is to be actually rendered before the price can be asked; but it will not be pretended but that the parties may make their contracts in other terms. This is what we contend for. We do this upon the authority of Cunningham v. Morrell, (10 John. 203,) and Thorp v. Thorp, (12 Mod. 455,) the latter, the very case relied on by the other side. We say the sense and spirit of the contract are opposed to condition precedent. In Thorp v. Thorp, lord Holt observed, that if, in that case, there had been “ a positive promise that one should release his equity of redemption, and on the other side, that the other should pay seven pounds, then the one might bring his action without any averment of performance.” Indeed, this case is in point for the defendant in error. Here is no promise in consideration of services; it is in consideration of Mr. Bradford’s continuing in the office of minister.
    But we are told that the minister does not covenant on his part; that there is a want of reciprocity between the parties ; and hence it is said, that without the construction contended for by the plaintiffs in error, they are without remedy in any shape. Admitting this view to be correct, that alone is strong evidence that the church intend to proceed in these cases, on the ecclesiastical side exclusively; that they do not mean to submit the conduct of their ministers to the temporal tribunals. The plaintiffs *in error had a prompt and summary remedy before the ecclesiastical judicatory.
    The fallacy of the argument, that there can be no inconvenience, in this instance, from considering the actual services a condition precedent, inasmuch as the want of performance arose from the fault of the minister, which resulted in his actual suspension, is, that it selects a particular instance of misconduct and suspension. It shuts out the broad ground of misconduct generally as a bar. Misconduct and suspension either bar the salary for the time, or they do not. You cannot distinguish one species of omission or commission, as doing so, more than another. The argument, therefore, is directly within the objections 
      ^ i*ave urged. A jury is as well qualified to assess damages for a breach of contract by the minister, as any , , . . , , “ ’ , f body; but it was never intended that they or any body e^se sh°nld do SO in a Court of common law.
    If the construction contended for by the plaintiffs in error, be the correct one, performance must not only be proved, but it must, be averred by the pleadings. In Martin y. Hind, (Gowp. 437,) cited on the other side, one question at the trial was, whether the curate had a license; and a distinction was taken by Lord -Mansfield, that if the plaintiff had no license, he was removable at the pleasure of the defendant; otherwise, if he had a license. In the latter case, he was only removable' sub modo, as by the consent of the bishop, of where the rector does the duty himself. On the trial, he held that the defendant could not show irregularity of conduct; but that he ought, in that case, to have complained to the bishop, and obtained his sentence or judgment, or direction, in a formal, or at least in a summary way. In other words, the connection between the parties should have been dissolved by the proper ecclesias* tical tribunal, according to what we contend here. The First Religious Society of Whitestown v. Stone, (7 John. Rep, 112,) does not apply to the present case. The engagement there, was to pay so long as the said Rev. Mr. Snowden shall' administer the' gospel in said society, &c. This language, standing alone, and *not having reference to the rules or constitution of the church, giving a construction different from its natural import, was very properly treated by the court, as the ordinary common law contract for services, which are a condition precedent.' Neither the language itseli, nor the rules of the church, bring it up to the case before the .court,' In Dieffendorf v. The Trustees of the Reformed Calvinistio Church of Canajoharie, (20 John. 12,) there was ah offer in the court below to prove drunkenness, profanity, and other vices degrading to the character of a minister, as a defence to an action for the salary. This was overruled; and, oh error, the decision was sustained on the express ground, that the salary continued to accrue until the pasto -al connection should be formally dissolved by the ecclesiastical judicatories. This was a question which arose under the rules and constitution of the Be- „ . _ . . _ . . .. , . formed Butch Uhurch. in that case, the minister had once been deposed by the classis,. and various proceedings had taken place in the church judicatories. The sentence of deposition was finally reversed; and the court sustained an action for the salary, in terms ; on the broad ground, that the relation of minister and congregation was not dissolved.
    If we are correct in saying that suspension is not dissolution, that case is in point for the defendant in error.
    
      Van Vechten, in reply.
    In concluding the discussion of this cause, I propose to examine as well the reasons of the supreme court, as the argument of my learned friend, who is opposed to me.
    The supreme court say, that according to the nature and terms of the contract in question, the plaintiffs in error were bound to pay the stipulated salary, until the connection between the parties was dissolved by ecclesiastical authority; which was neither done or intended to be done by the sentence of suspension pronounced against Mr. Bradford ; and the -same position has been reiterated by the learned counsel.
    But the correctness of this position rests upon a gratuitous assumption of facts, which the plaintiffs in error wholly *Jeny. -For they contend, that the faithful service of Mr. Bradford as pastor, was the consideration and condition ■of their-stipulation to pay him, and .that when the consideration failed by means of his own gross behavior, the condition was broken; and Ms right to payment ceased agreeably to the letter, spirit, and true intent of the contract. He was called as an efficient minister, capable of performing all the various duties appertaining to the important office of a gospel minister; and by accepting the call, he assumed to perform them. What was his situation when suspended from the ministry ? He was rendered incapable of performing any of those duties. Thus circumstanced, in what condition were the plaintiffs in error, during his suspension ? They were again destitute of the state<^ Pining of the word, and the regular administra* tion of the ordinances, their call of Mr. Bradford, and his • . , ’ . _ , . . ’ acceptance, notwithstanding. Was this occasioned by any default on their part ? Ho; it was produced by his wilful violation of his double obligations as a minister of the gospel, and their pastor. What is the just and legal consequence ? That, by wilfully breaking the condition of the call, he forfeited all right to the salary which it stipulated should be paid to him.
    Admit, for argument’s sake, that the sentence of suspension was not a formal dissolution of the contracted relation of pastorand people between the parties; I ask, did it not suspend the exercise of all pastoral functions by Mr. Bradford ? And if it did, could he, during their suspension, lawfully demand the stipulated compensation for pastoral service ? Surely not. For how could he demand it as a continuing gospel minister, after being suspended from the ministry ? It would be strange indeed, if suspension from an office did not suspend the right to demand the salary, which was promised for performing the duties of the office. I therefore contend, that Mr. Bradford’s Suspension from the ministry produced, by operation of law, a simultaneous suspension of his right to salary. This is conformable to the dictates of justice, and the manifest intent of his call; and if so, the judgment of the supreme *court must be reversed on that ground. But I go one step farther, and insist, in judgment of law, his suspension from office, and consequent disability to perform the stipulated service, was a virtual dissolution of the contract between him and the plaintiffs in error, at their election; because the contract, on his part, though personal, was at the same time wholly official, and ceased, of course, the moment he was divested of his official standing. He then ceased to be what he was when called. Instead of confiding in his piety and usefulness, the plaintiffs in error were constrained to regard him as a man who had brought reproach upon religion, by dishonoring the sacred office of a gospel minister. After such a change in his situation and standing, he general interests of religion, as well as the welfare of the conereeration with which he had been connected, ie- . , 7 , , , , ’ . quired that they should have an election as to the continnance of that connection: for the constitution and rules of their church declare that a pastor and teacher must be an example to believers; inasmuch as his usefulness depends much upon his holy walk and conversation. (Expl. Art. 71.)
    Again; when a minister of the Dutch Church is suspended from office for misconduct, by the classis, he may appeal to the particular synod, and thence to the general synod; and if he prevails on appeal, he is exonerated from guilt, and considered in good standing. What follows ? He is entitled to salary during his suspension. Why? Because he is acquitted of the offence for which he was suspended. But when his suspension is confirmed, on appeal, what is his condition ? His guilt is finally established, and his suspension justified. What follows? Unless established, guilt and confirmed suspension from office produce the same result in relation to his salary as an honorable acquittal; it would seem that his suspension from office necessarily suspended his right to salary during its continuance.
    It is true, that the ecclesiastical judicatory, who pronounced the sentence of suspension against Mr. Bradford, *did nothing more in the first instance; but it does not follow thence, that the sentence was not conclusive in law upon his right to salary, at least during his suspension. That question the ecclesiastical judicatory left open to be decided by a court of law, where it properly belongs, and is now presented to this court upon the pecuniary part of the contract between the parties, the enforcement of which did not fall within the range of ecclesiastical jurisdiction. This Mr. Bradford has conceded by resorting for redress to a court of law, where contracts are to be expounded agreeably to established legal rules; so as to give them a rational effect, according to their true intent.
    But it has been said that the plaintiffs in error, subsequent to the suspension of Mr. Bradford, applied to the classis for a dissolution of their pastoral connection with him, and that it was, thereupon, dissolved; but the disso lution was afterwards reversed by the general synod; and hence it is inferred that the plaintiffs in error, as well as the ecclesiastical judicatories, have recognized the connection .as subsisting after his suspension. In the first place, I deny that the application was made subsequent to his suspension; but admitting, for argument’s sake, all the facts to be as stated, yet I dispute the conclusion drawn from them. And first I ask, how could the relation of pastor and people subsist, when the pastor was suspended from office ? It surely was not such a relation as was contemplated and formed by the call to Mr. Bradford, and his acceptance of it; for what spiritual blessings could he dispense to the congregation as pastor and teacher, after ■ he was suspended from his pastoral office ? Hone. Then is it not preposterous to talk of a subsisting pastoral relation for the purposes of the call, when the pastor was suspended from his pastoral office ? And if it did not subsist for those purposes, to what purpose could it subsist in judgment of law ? To entitle a faithless minister to an unmerited salary ? The only object of the application alluded to, was to remove every pretence of difficulty in the way of the plaintiffs in error, of calling another minister; *and with the same view, the ecclesiastical judicatories considered it expedient to give the application their reiterated sanction. ¡
    But what was the basis of the application ? and why was it complied with.? Expressly because Mr. Bradford stood convicted of repeated intoxication; and was suspended from the office of the ministry. Is it asked, why ¡then did the general synod reverse the first dissolution by the ciaseis? Because they judged the power of the .classis over the subject, was suspended pending Mr. Bradford’s appeal from his conviction, and the sentence of suspension which had been pronounced against him. This -is manifest frpm the fact, that the synod accompanied their sentence of affirmance of both, by a resolution recommending to. the classís the immediate -renewal -of the dissolution. Hence it -also -appears, that the general synod considered it a' matter of right in the plaintiffs in error, to be formally absolved from the connection which had subsisted between them and Mr, Bradford, by reason of his conviction and suspension.
    _ _ Again; it has been urged that the doctrine and practice of a minister are subjects of ecclesiastical cognizance; but, if the performance of pastoral duties is a condition precedent, to entitle Mm to recover his salary, such performance must be proved ; and then all matters of doctrine and practice would be examinable at law, before a court and jury.
    The answer to this argument is at once simple and decisive. While a minister continues to perform the duties of his call, courts of law will not scrutinize his official conduct in a suit for salary; but consider him to be in good standing, until an ecclesiastical judicatory of competent authority determines otherwise: and in this way all manner of jurisdictional collision with the ecclesiastical government, is avoided by the courts of law, without yielding their own legitimate jurisdiction. But when, as in this case, the ecclesiastical power has been duly exercised, to the conviction of a minister of a gross sin, and pronouncing a sentence of suspension from office against him, and he then sues for salary, what question of doctrine or ^practice can arise to be examined at law ? The ecclesiastical sentence of suspension is conclusive upon the point of non-performance, and nothing remains to be done at law, but to pronounce the judgment of law upon the suitor’s case. And this accords fully with the doctrine contained in the case of Dieffendorf v. The Reformed Calvinistic Church of Canajoharie. But, for the purpose of testing the soundness of my learned friend’s argument, by an analogous case, let me suppose a counsellor of the supreme court to have contracted with a client to do all bis law business for five years at a stipulated' yearly salary, and that within six months after the contract, the counsellor was suspended for mal-practice, and continued suspended for a year; would a court of law entertain a suit brought by him to recover the stipulated salary during his suspension ? I apprehend not; and if go I ask what sound distinction can be made between such a case and the present r
    , . , . . . . , Again; let me suppose a minister of violent temper, convicted of an aggravated breach of the peace, and sentenced to imprisonment for it, to commence a suit for salary during his imprisonment: would a court of law find any difficulty in such a .case, of sustaining a defence set up against him, founded upon such conviction and imprisonment, when verified by the record ? Surely not. Why ? Because the record would be conclusive upon the fact of non-performance, without any ecclesiastical adjudication.
    But it has been insisted, that the sentence of suspension against Mr. Bradford was disciplinary merely; and it would therefore be unreasonable, as well as unchristian, that he should be exposed to starvation while under the operation of church discipline. Admit the sentence was disciplinary; I ask, did it not operate also as an ecclesiastical punishment for guilt ? And are not all punishments, not capital, strictly disciplinary ? By what law are the plaintiffs in error punishable for the guilt of their minister, or compellable to support him, when duly interdicted to exercise the office of a minister, by reason of his own misbehavior ? Do the terms of their call impose such an obligation *upon them? Surely not. Suppose a hired servant, with a numerous family, should be convicted of felony, and sent to the state prison ; would it be pretended that his employer was bound to pay the wages promised for his service, to save his family from starvation, while he was undergoing the discipline of the law? Would a compulsory provision for that purpose conduce to quicken the reformation of offenders, which is the great object of such discipline ; I apprehend not; for if the word of Gtod, the duty of self-respect and the obligations of husband and father, are insufficient to restrain a man from yielding to evil propensities, there is great reason to fear that a provision of that kind would not strengthen their influence over him; At all events, the result of such an experiment is too problematical, to have it introduced by a court of justice, and at the expense of an already deeply injured congregation, against their will, and against the letter, spirit, and true intent of their contract. »
    _ , , , , . It has also been suggested, that the provision in the constitution and rules of the Dutch Church, in favor of ministers who, by reason of old age, ill health, or any kind of bodily infirmities, are rendered incapable of performing pastoral duties, (Expl. Art. 16,) shows that the performance of those duties is not indispensable, in the view of the church, to entitle a minister to his promised salary. What is the provision alluded to ? That when a minister becomes unable, from any of the above mentioned causes, to fulfill the active duties of his office, the proper judicatory of the church may declare him emeritus, and exonerate him from those duties. What more ? That he shall, notwithstanding, retain his rank and standing, and be suitably provided for by the congregation in whose service he became disabled. Is such a case analogous to the present? Is there no distinction between a minister who is worn out, or become disabled in the faithful service of his master, and one who, by reason of gross and sinful habits, is suspended from the sacred office of the ministry ? Does not the above provision distinguish plainly and correctly between the two caaes? May, more, does not the limitation *in the provision prove conclusively, that the church did not mean to dishonor religion, by providing for a man who, by violating the obligations, forfeits the rights and privileges of a gospel minister?
    Again ; we have been told that ministers may not engage in secular employments for support, and that they are subject to the infirmities of corrupt human nature in common with other men, and therefore ought not to lose their support, when they fall into temptation. Let me consider, for a moment, the cogency of this reasoning. The constitution and rules of the church require, that ministers shall be examples to believers; and declare that their usefulness depends much upon their holy walk and conversation, (Expl. Art. 71,) and therefore their crimes must be punished with impartiality and severity. But the supreme court and my learned friend say, inasmuch as ministers are but fra¡i men, they must not be left to suffer the pen alty of ecclesiastical discipline for their guilt, without the comfort of a liberal support from their abused congregations, This seems to me to savor more of exuberant char ity than of sound legal deduction. The former may challenge our admiration of the sympathetic feeling which it displays; but the latter only will insure confidence in judicial decisions; because it guides to the impartial administration of justice. Besides ; genuine charity flows- spontaneously from a benevolent heart, and the enforcement of it by legal coercion, for that reason, is an anomaly in the law. When I have the honor to address this honorable court, as the highest legal tribunal in this state, I am bound to regard it as the highest legal dispenser of justice. The question which my clients present for its decision is not a question of charity, but a pure question of law; and they therefore feel the utmost confidence, that here justice will soar above the deceptive influence of an effervescent charity.
    The only remaining argument of my learned friend, which demands my notice, is, that the plaintiffs in error might have had adequate relief in the ecclesiastical judicatories. *1 ask how? It is said the classis might have formally dissolved their connection with Mr. Bradford. But I answer, they did not do it in the first instance. How, then, could the plaintiffs in error be relieved from paying the salary promised to Mr. Bradford for the stated preaching of the word, and the regular administration of the ordinances, after he was suspended from office, if his suspension is no bar ta its recovery at law ? Did it afford them any relief, that the classis did not do all they might have done? Were they not deprived of the stipulated consideration for the promised salary, by reason of Mr. Bradford's own default ? And they shall be told by a court of justice, that although the consideration of their promise has failed, they remain bound by it, until an ecclesiastical judicatory absolves them ? Is that necessary to maintain the jurisdiction of the ecclesiastical judicatories, over the doctrine and practice of ministers ? And is not the question of their continued liability purely of legal cognizance, when payment is attempted to be enforced in a cóurt Of Mw, by a Suspended minister?
    It is true, that the classis might have accompanied their sentence of suspension with a formal sentence of dissolution, though, for reasons not disclosed, they delayed the latter until after an appeal to á higher judicatory; and this, the general synod considered, superseded the power of the classis during its pendency, and for that reason aloné reversed the sentence of dissolution ; but simultaneously recognized its justice and propriety, by recommending to the classis its prompt renewal. Pending these proceedings several months elapsed; Mr. Bradford continued suspended from the gospel ministry, and consequently incapable of performing any pastoral duties. Does not this plain statement of facts exemplify, in a notable manner, the adequacy of the ecclesiastical remedy to the plaintiffs, in error? How was the loss of spiritual blessings, which Mr. Bradford has assumed to dispense to their congregation as a gospel minister, supplied ? And if not supplied, I beg leave to repeat the interrogatory, is it reasonable, or is it hohest, that he should recover in this ^action ? Or does the omission of the classis to sever formally his pastoral connection with the church, when he was suspended from the pastoral office, divest this court of its power to protect the just rights of my clients, and to give effect tó the pecuniary part of their contract, according to its true sense and meaning, and the established principles of law?
   Jones, Chancellor.

The question is, whether the salary of the defendant in error ceased on his suspension by the Classis of Albany, or Continued during his suspension, and until his pastoral connection with his congregation was dissolved. It is conceded that this question depends, for its Solution, upon the contract between the minister and his congregation or church. The contract is contained in the call, taken in connection With the rules and constitution of the Reformed Dutch Church, to which both the pastor and the congregation, by the call, stipulated and agreed to remain subordinate.

The question,

It appears by tbe record, that the defendant in error was called by the plaintiffs in error to be their pastor. The call gives a summary of the duties which appertain to the office of pastor, and which the defendant undertook to perform; and to free him from wordly cares and avoca lions whilst he was dispensing spiritual blessings to them, the plaintiffs in error promised and obliged themselves and their successors, to pay to him the sum of $1500 of money of account of the U. S., yearly and every year, in quarterly payments, as long as he continued their minister in the said church, and remained unmarried; and from and after the time of his marriage, they promised and obliged themselves and their successors, to pay him the additional sum of $250 of like money, during the continuance of his ministry in their church.

The call.

The defendant in error contends, that by this contract, his salary was to continue as long as he should remain in office; and the plaintiffs in error insist, that his continuance depended upon his performance of the services, and his discharge of the duties of-his office.

Points.

*By the terms of the contract, the salary of the defendant was to be paid him yearly, during the continuance of his ministry in the church to which he wassailed; and he continued the minister of that church until the 26 th of ^une’ 1821," when his pastoral connection with the plaintiffs in error was regularly dissolved.

Defendant in ed raids ter til mi 2Stb'

But the performance of the duties of the office, is said to be the consideration and condition of the promise to pay the salary; and it is contended that these services must first be rendered by the minister to his congregation, before he is entitled to demand the stipulated compensation from them; or, in other words, that the performance of the duties was a condition precedent to the right to the salary.

ordinary employments of servants, and contracts for service, where no special agreement regulates the rights obligations of the parties, the rule is, that the servant to earn ^is wages by the service he is to render: he consequently can claim no wages until he has earned them by his services; and in an action against hi.*- (wsplaypr for eom pensalion, to entitle him to recover, he must show that he has performed the services required by the contract or employment, or has been ready, able and willing to perform them. But this is a special agreement, by which the parties have made their own provisions for the performance of the duties of the pastor, and the payment of his salary; and have referred to the constitution and ordinances of the Be-formed Dutch Church, to which they were subordinate, for the rules which are to govern them in their spiritual obligations, and in their relation to each other of congregation and pastor. By the contract, as I understand it. the minister was to be entitled to his yearly stipend as long as he remained in the office of the ministry, and continued to be attached to that congregation. The obligations imposed by the call on the pastor, taken in reference to the rules and constitution of the church, were the condition of his right to continue in the pastoral office; and the failure to observe and fulfill them, exposed him to removal by the ecclesiastical judicatory, ^having cognizance of the offense. But the call does not make the observance of those obligations the condition of the payment of the salary; the continuance of the defendant in error as minister in the Beformed testant Dutch Church in the city of Albany, is expressly made the condition on which his yearly stipend is to be paid to him. The salary, in is true, is given to free him from' worldly cares and avocations, whilst he was dispen-33 . . smg spiritual blessings to the congregation; but it was to continue to be paid, not as long as he fully and faithfully discharged his duties, but as long as he continued the minister in the church of Albany. It was during his continuance in the ministry in the church to which he was called, and not during his faithful discharge of his duties as minister, that the salary was, by the call, to be paid. In a suit on this contract for his salary, it was sufficient for him to show that he was the minister of the congregation during the period of time for which he claimed his stipend, and it was not competent for the plaintiffs in error to repel the claim by the plea or proof on their part, that he had failed in the performance of the services required of him. How* ever delinquent he may have been, so long as the forbear* congregation, or the superintending powers of the assemblies of the church, suffered him to remain in his °®ce> he continued to be entitled to his compensation. Extreme cases might indeed occur, (such as a conviction for a crime,) which would be regarded as a virtual dissolution of the contract, and destroy the right of the pastor to his salary; but it must be an event or occurrence which, on general principles of law, would terminate his relation of pastor, to his people, to produce that effect. In other cases of non-performance of duty, he must, notwithstanding his delinquency, be entitled, until he is removed from his office, to the annual stipend provided by the covenant for his support. If the contract makes the faithful performance of the services of the minister, a condition precedent to his right to his salary, and the plaintiffs in error were entitled to set up his delinquency in a court of law as a defence against his claim, *must it not follow that the failure of performance, from whatever cause it might proceed, would be a conclusive objection to a recovery ? Upon that construction, a clergyman, disabled by sickness or other casualty, from performing his pastoral services, might be deprived of the means of subsistence during the term of his disability.

In ordinary contracts of formance cedent°n ^

ment.

precedent, Performance not a condi-

continuance minister is the condition,

But it was conceded, that such disabilities must excuse the pastor, and that his salary would not be suspended during his occasional interruption in the discharge of his parochial duties, from causes which he could not control. In the present case, the suspension of the services of the pastor was the consequence of his own misconduct; and it is truly said, that the same indulgence is not due to such intentional delinquency, as would be accorded to an involuntary failure in the discharge of the duties of the office. But does it follow, that every wilful delinquency is a cause of forfeiture of salary ? Was it the intention of the parties to this contract to make the full and faithful performance of all the obligations and duties, while the pastor is not actually disabled by some casualty from performing, a condition precedent to his right to compensation for his services ? If so, the observance and fulfillment of all the obligations imposed on him by the call, and which he the power to fulfill, must be shown, to entitle him to any compensation for any service he may have rendered. The official functions of the pastor may all be performed with the best diligence, zeal and ability in his power, and yet he may fail in the observance of some important moral obligation; he may be led into error of judgment in matters of faith, or he may, at some unguarded moment, yield to temptation and fall into sin. Is he to be punished for these errors and transgressions by the loss of his stipulated compensation, for the time and talents he may have devoted to his flock? The plaintiffs in error, themselves, disclaim a construction of the covenant so narrow and illiberal. They admit that deviations from the holy walk and conversation enjoined upon him, which are not habit-' ual, and which are followed, when they occur, by repentance, and the best atonement in the power of the offender to make, are no obstacles to his claim to compensation for *his services. But they insist, that gross offences and wilful defaults, which expose the delinquent to suspension or removal from office, are conclusive objections against his claim; because he is, in such cases, disqualified by his own misconduct from fulfilling the obligations of his call. I observe no such distinction in the contract. If the faithful performance of the services is a condition precedent, and the consideration of the engagement to pay, then a failure in performance from any cause, other than the physical disability of the incumbent, or the act or default of his employers, may be fatal to the right to demand it; and if the continuance in office is the condition and consideration of the promise, then the defendant in error was entitled to his salary as long as he remained in office.

In this case, the plaintiffs in error, by their call, stipulated to pay the defendant in error his salary as long as he continued the minister of the congregation. I see no sufficient reason for annexing to that engagement the implied condition of the faithful performance by the minister of the services required of him by the contract, as the eonsideration and condition of the promise to pay. He was-, bound to the service of the sanctuary, and attached by his calling to his congregation for life, and-during the continuanee of those relations, which the church authorities alone could dissever; and’he was not at liberty to pursue any secular employment for his support. It was just, therefore, that the provision for his maintenance should continue as long as those relations subsisted which restrained him from other pursuits. That appears to me to be the principle fairly deducible from the terms of the contract; and it is, in my judgment, the rule which ought to govern. It is simple, and free from difficulty in its application; and in principle, conforms to the spirit and policy of the system of church government under which the contracting parties formed their connection, Tb e obj ection of the plaintiffs in error to pay for services which the defendant in error by bis own misconduct was disabled from performing, is plausible ; but a view of the principal operation of the principle will show its fallacy as applicable to this contract, and *demonstrate the .wisdom and policy of the rule which makes the continuance in office the sole test of the right to salary, and thereby secures to the minister of the gospel a provision for himself and family, and protects him from all inquiry into his delinquencies and failings in an action for his stipend.

If the failure of the clergyman, in the performance of the services required of him, by reason of his own.misconduct, were to be a defence to an action at law for his salary, to sustain the defen'ce, the misconduct which was the causé of the failure must be shown; and how are the charges against him to be substantiated? Accusations implicating the moral character of the accused, and which are preferred against him to deprive him of the benefit of his contract, must surely be open to refutation on his part, and must be fully established by his adversaries, before they1 can be admitted to bar his recovery. Is not the character of such litigation, and the probable complexion, of the evidence to sustain and repel the defence on which it is. to turn, sufficient ground for excluding it from the civil tribunals? Can the charge of infidelity or immorality against a minister of the gospel, be a fit subject in a court of law? Or does not the investigation of such charges more properly uppertain to the spiritual assemblies of the church to which the parties belong? Those who officiate in the ministry of the word, are amenable to the ecclesiastical judicatories for their offences and misbehavior; and admonitions and censures of the spiritual authorities, to which the minister is subordinate, suspension from the exercise of the functions of his office, or a dissolution of his pastoral connection with his congregation, according to the nature and decree of his aberration from the path of rectitude, may be fit visitations upon him for his offences; but they are chastisements for an ecclesiastical tribunal, and not for a court of law to inflict.

The founders of the ecclesiastical system of government for the church' to which this congregation belongs, felt the full force of these impressive considerations; and to guard against the mischiefs inseparable from public investigations *in the civil courts, of charges against a minister of the gospel, involving his.moral conduct or official duties, made them subjects of ecclesiastical cognizance exclusively, and vested the entire jurisdiction of all such offences in the assemblies provided for the government of the church.

This arrangement was wisely adapted to the relation that was to subsist between the minister and his congregation, and the duties required of the pastor in his interesting and responsible situation. The obligations imposed on the minister by the call, are not confined to the actual services he was to render to the congregation immediately under his charge. They extend also to his own private life, and his moral and religious conduct. He is faithfully to officiate, in his character of pastor for his congregation, in all the services of the church and to fulfill the whole work of the gospel ministry; and he is to observe, in all the relations of private life and his own demeanor, a line of conduct with his moral obligations and religious duties, and calculated and tending to maintain the honor of religion and promote the success of the gospel. ' These obligations and duties partake so largely of a religious and morai char- and are so intimately connected with the relations of , domestic lire and the moral conduct of the pastor, that an into charges of misconduct in those respects, ought to be of ecclesiastical Cognizance. To expose the 'infidelity and immorality of a minister of the gospel, on a public trial before a court and jury, in an action for his salary, or to conduct an inquiry into the soundness of his faith, and religious opinions before a court of justice, would tend to produce unfavorable impressions of religion on the public mind, and, in aggravated cases, the disclosures would too often scandalize the public ministry of the gospel, so important to the well being of society, and might materially impede its success in the great and interesting work to which it is devoted.

It was foreseen, by the ecclesiastical assembly which ordained the rules and constitution of the Eeformed Dutch *Ohurch, that the'frailties of human nature would sometimes lead to aberrations from the religious and moral ob-. ligations of those who might be in the office of the ministry ; and they so organized the ecclesiastical system, and so framed the contract which was prescribed for the relation of congregation and pastor, as to refer all matter relating to those obligations and duties, and the punishment of transgressions against them, to the ecclesiastical judicatories, in exclusion of the cognizance of the civil tribunals. They have the right, under the free institutions of our country, to the full benefit of this arrangement; and the wisdom of its provisions are exemplified in its practical operation.

The parties to this controversy themselves, refer to these rules and constitution as the laws to which they are to conform, and profess to rest:the construction of the contract on those ordinances, and the subsequent articles explanatory of them. Let us turn to those instruments, and see what the rules are which they apply to this subject. First, it is declared that a minister of the word, being once lawfully called in the manner prescribed by the articles, is bound to the sanctuary as long as he liveth, and is not at liberty to devote himself to any secular vocation, except for great and important reasons, and with the consent of the classis; that a minister being lawfully called, may not forsake the the church or congregation where he is regularly settled, in order to accept a call elsewhere, without the consent of the consistory and deacons, and the approbation of the classis; that the consistory, as representing the congregation, shall be bound to provide the ministers with a decent support, and shall not forsake them without the approbation and decision of the classis: and that if they commit any gross public sin, which is scandalous to the church, or punishable by the city magistrates, they shall be suspended by the consistory of their own and the next adjacent church; and it shall be left to the decision of the classis, whether they shall be wholly deposed or not. Secondly, classes are invested with the general power of ordaining or deposing ministers, and may suspend or remove from office, as the circumstances of the case, or the welfare of the *church may require; and thirdly, the offenses that deserve the punishment of suspension or removal from office, are declared to be all such sins and gross offenses which render the perpetrators infamous before the world. A specification is given of some of the offenses thus punishable; and amongst others, false doctrine or heresy, faithless desertion of office, and habitual drunkenness, (the offense for which the defendant in error was removed,) are specially enumerated. Besides these punishments of suspension and removal from office for public offenses, admonition and censure are prescribed for private offenses and secret sins; and the obstinate rejection of the admonition may be followed by severer penalties.

These provisions show, that the faithful observance by the minister of his moral and religious obligations to his church or congregation is to be enforced, and his transgressions punished by the ecclesiastical assemblies, and not to be made the subjects of judicial inquiry in courts of justice. To these ecclesiastical ordinances the congregation and the minister both acknowledge themselves to be subordinate; and accordingly, in this case, the minister was at first admonished to abstain from the repetition, of °^enseí an<3> admonition failing to produce arnendment, suspension followed, and finally removal from office.

T , . It is conceded that the defendant in error, by accepting ca^> assumed to perform faithfully all the duties required of him as the pastor of the congregation ; and the wilful neglect of those duties, or a gross offense against the obligations imposed upon him by the call, or the ordinances and articles to which he engaged to be subordinate, subjected him to censures, admonitions, and punishment by the ecclesiastical judicatories. But the faithful performance of those duties, and the observance of those obligations, were not made a condition precedent to the payment of his salary, either by the terms of the covenant, or by the spirit and intention of the call, and the rules and constitutions to which it refers. The pastor'was bound faithfully to fulfill the obligations of his call, to oppose a steady and efficient resistance to temptation, and, by word *and example, always to promote the spiritual welfare of his people. He unhappily failed in his solemn engagement. A besetting sin prevailed over his enlightened understanding, and obscured his lustre. "With a Christian spirit, the consistory of his congregation, and the classis of Albany, to whom the case was referred, sought to reclaim him from the influence of his pernicious habits, and to restore him to the church. He was unable to conquer the propensity to which he had yielded; and the permanent interest of religion demanded his removal from his office. His pastoral connection with his congregation was ^dissolved, and his claim to his yearly stipend was at an

The two events which the constitution of the church contemplates as terminating the ministry of the pastor, are his death and his removal by the classis from office; and so permanent is his connection with his congregation considered, that provision is made for him during the remnant of his life. After he should .be disabled by age or infirmities, from performing his pastoral services, he is allowed to retain the honor and style of his office, and is to be provided with an honorable support by the churches to which he hath administered. The congregation can never forsake or discard him: nor can their obligation to support him , , , ’ . , , , ,. , . „ i . be dissolved, otherwise than by the dissolution or his pastoral connection with them. So careful were the provident framers of those constitutional ordinances, to secure those who devoted themselves to the work of the gospel ministry from want during their lives, or till their deposition by the regular authority of the church, that they denied to the congregation to which they ministered, the power to dissolve the pastoral connection, or the right to withhold the stipulated compensation from the minister; but referred those matters to the higher assemblies, the classis in the first instance, and the particular and general synod by way of appeal.

The defendant in error was the regular pastor of the plaintiffs in error, and that connection could not be severed by the plaintiffs. If he was guilty of a public and notorious *offense, which rendered his appearance in the pul pit highly offensive, his consistory might interfere, and shut the door against him by suspension, and refer him to the classis for trial. In that assembly, the accusation against him was to be investigated, and the final sentence to be pronounced. The matter could not be drawn into the courts of law, or made the subject of judicial cognizance. If the accused was guilty of the charge, his sentence was to be pronounced by the classis, and could only be reviewed by a higher judicatory. The offender may, to prevent scandal, be prevented from the exercise of his office until he is tried by the classis; but he is to be referred to that assembly for trial; and if found guilty, that assembly is to declare and inflict the punishment. Courts of law do not interfere with the discipline of the church, or the punishment of ministers, by the sentences of the ecclesiastical authorities; and if the right of the defendant in error to the salary for which he sues, has been lost to him, it must be the sentence of the classis which has produced that effect; and the plaintiffs in error must rest upon that sentence alone for the support of their defense to the action at law. The plaintiffs in error, in effect, admit this to be the rule 5 and contend that they have brought them* selves within it. They admit the offense of which the de* fendant in error was accused, to be of ecclesiastical eognizance j but they insist that the charge has been established in the ecclesiastical judicatories, and rely on the sentence as a conclusive bar to the action at law. Is that the defense of the plaintiffs in error? By that rule the inquiry will be, what sentence has been pronounced in this case, and what the legal effect of that sentence is upon the civil rights of the defendant in error.

It appears that the defendant in error was, by a regular sentence of the classis of Albany, suspended from the office of the ministry, and was under the sentence of suspension during the whole of the period for which he now claims the payment of his salary; and it is contended that the right to salary was suspended by that sentence, and *was never afterwards removed; but was wholly extinguished by the subsequent sentence of removal.

The classis of Albany had the right to dissolve the pastoral connection between the defendant in error and his congregation, or to suspend him from the office of the ministry, at their election. If they had dissolved the pastora¡ connection, they would have extinguished his right to ' J , 0 0 his salary; and when they did finally pronounce the sen-of removal, the contract was dissolved. But they chose the milder course of suspension. How could that sentence deprive the pastor of his right to the salary covenanted to be paid to him during his continuance in the ministry, under this call ? A sentence of suspension does not remove the incumbent from his office: but inhibits him from the exercise of his official powers and functions. The defendant in error continued the pastor of his congregation during his suspension, and until the severance of his official connection with them. The office of minister in that church was full, and no successor could be called. If, then, the legal effect of the covenant was an engagement of the plaintiffs in error to pay the salary as long as the defendant in error continued the minister in their church, as I have endeavored to show the true construction of the call to be, the sentence of suspension did not destroy or suspend his right to his stipend, nor interpose any obstacle to his recovery. Then, did the constitutional ordinances give- that effect to the sentence ? I ana Unable to discover any provision in those articles which, either in express terms, or by any necessary implication, suspends the salary of a suspended ministerand the spirit of the system, according to my views, is wholly averse to giving the sentence that operation. The penalties which the ecclesiastical judicatories are authorized by the constitution to impose, are, admonition, censure, suspension, and removal from office. The power to punish, by the forfeiture or loss of salary, is not delegated to them; Unless, therefore, such forfeiture results from the sentence of suspension, as the necessary consequence of it-, no- such forfeiture could accrue by that procedure. The silence of the ordinances on the subject, and the general spirit of benevolence "-they breathe, conclusively repel the presumption that so severe a punishment of the delinquent, while he was under the discipline of the church, was intended.

Dissolution only, not suspension, deprives a minis-Church of his salary.

He continues fagM^suspension.

But the plaintiffs in error insist that the sentence of suspension, being for a public and notorious offense of the defendant in error, wUs decisive - evidence of his failure, by his own wilful default, in performance of the services required of him by the contract; and on that ground they put their defense in the court below. If my construction of the call is correct, the continuance of the salary of the pastor depended on his - continuance in office; and in that view of the case, it is manifest that the sentence of suspension would be- no defense against the claim.

But assuming that a dereliction of duty, or the disability of the incumbent, from his own misconduct, to fulfill the obligations of his call, would justify the ecclesiastical assemblies of the church in forfeiting the salary of the offending pastor, can a sentence, temporarily suspending him from the exercise of his functions, have that effect, or be sufficient evidence to a court of law of such a wilful default as to work a-forfeiture ? Considered as evidence of delinquency, it must refer to the time which precedes the sentence itself, and canhot apply to the period of its con-for the offenses which are the cause of the sen* tence, must necessarily precede it; and the operation of them upon the official functions of the accused must necessarily cease upon his suspension from office. Yet, it is not contended that the delinquency would be a defense against a recovery of the salary anterior to the sentence1 of suspension ■; or that such sentence would be sufficient evidence of such' anterior delinquency, to sustain a defense against the claim for salary during the period of the 'im' puted delinquency, but before his suspension. If, then, the sentence of suspension is evidence to sustain the defense on the ground of failure of performance, it must be because that sentence itself prevented the defendant in error from rendering the services' required of him by the call, and consequently showed a failure of consideration for the portion of his salary for which he sued. It is true that he did not and could not perform the duties of his office during *the period of his suspension; and it is not the offense which led to that sentence that was the immediate cause of the failure in engagements.' He desisted from his parochial employments in obedience to the peremptory order of" a superior power, which his'call bound him'to obey. Could the suspension of his official duties, imposed upon him in the exercise of the discipline of the church, and to which he is compelled, in obedience to a paramount duty, to submit, be justly imputed to him as a default, 'and made the" cause of refusal to continue the payment of his salary during the time of his probation? Such a defense, on general principles," could not prevail; and neither the terms of the call, nor the rules of the constitutional ordinances to which.it refers, requiring that the provision for the support of "the pastor should cease during the period of his suspension from office, it would, in my judgment, be against the good sense and sound construction of the covenant, so to extend it by implication as to give it that operation.

It was said that the suspension of the defendant in error from office, for the offense, was the initiatory step to his tria!, and is to be taken in connection with the final sentence of removal; and that the legal effect of the final sentence was to convict him of the offense for which he was suspended; and to show that the suspension and the failure of the consideration for his salary, were the immediate and necessary results of his own delinquency and misconduct.

By the 79th article of the rules of church government of the Reformed Dutch Church, and the 72nd explanatory article, ministers guilty of public and notorious misconduct, which would render their appearance in the pulpit unbecoming and highly offensive, are to be suspended from the exercise of their office by the consistory, until they are tried by the classis; and the proceedings of the consistory, in such cases, is declared to be a prudent interference, and a binding over of the person accused to the judgment of his peers. The' offense of which the defendant in error was accused, was such as to expose him to that proceeding ; and if he had been suspended by the consistory and referred to the classis for trial, it might have been contended *that the suspension, trial and final sentence, were parts of the same proceeding, having for their object the conviction and deposition of the offender for the offense with which he stood charged. I am not prepared to say that such a suspension would deprive the accused minister of his provision for his support during his trial, and while his connection with his congregation still continued; or that it would be evidence to a court of law of such defaults on his part as to defeat a recovery of the stipulated compensation for services, which he was, by that suspension of his functions, hindered from performing. But whatever the effect of such a proceeding might be, this is not such a case. This sentence of suspension is widely different from that of the consistory: and differs from it in its object and purpose. The consistory suspends the minister who is charged with an offense for which he is to be tried, and bind him over to the judgment of his peers. This is a function of the classis; it contemplates no trial, nor any ulterior sentence of deposition. It was essentially disciplinary, and intended to reclaim the offender from his habits, and avert the necessity of severer punishment.

The two sentences given in evidence by the plaintiffs in error, on the trial at law, were the resolution of the classis of Albany of 2d December, 1820, suspending the defendant in error from office, and the resolution of the same classis of the 26th June, 1821, dissolving his pastoral connection with his congregation. These two resolutions are distinct and separate acts. They have no connection with each other. The last sentence was not founded on the first, nor the consequence of it; but was a new exercise of. the powers of the classis, recommended by a resolution of the general synod, advising a dissolution of the pastoral con: nection between the defendant in error and his congregation; and it was adopted in pursuance of that, recommendation, and avowedly for. the purpose of carrying it into effect.

Nature of the suspension.

The first resolution or sentence of suspension was made after an investigation by the classis of the truth of the charge of inebriety, preferred by the plaintiffs in error against the defendant in error, by a representation in .writing *from them, to the classis, whereby they earnestly entreat that assembly, to take such measures touching the premises, as the constitution and rules of the Deformed Protestant Dutch Church prescribe, and the nature of the case required. This was a complete and perfect decision and sentence upon the whole case. It established the guilt of the accused, and settled the measure of his punishment. A continuance of. the offender in guilt might be sufficient cause for his deposition by the classis; and an obdurate adherence to his denial of the charge after his conviction, and the neglect and failure to give the classis evidence of repentance and reformation, might, after reasonable time allowed him for the purpose, justify that judicatory in proceeding to dissolve this connection with his congregation; but, until an effectual sentence of dissolution was pronounced, the offender continued under the disciplinary sentence of suspension, and the chastisement it inflicted was the only punishment for his offense, That sentence did not dissolve the connection between the defendant in error and his congregation* but, on the contrary, it acted upon him as the pastor of that congregation. The object and avowed design of it was to produce reformation. It emanated from Christian love, and administered to the offender the salutary correction of a child who had strayed from his filial duties, to preserve him from perishing, and to bring him back to the paternal roof ; and he surely should not be left without the means of subsistence during the period of his probation. The suspended minister, it is true, is prohibited from performing his pastoral services, and his disability is the consequence of his own misconduct; but he continues in his official connection with his congregation. The sentence which interdicts him from performing his duties is the sentence of a power to which he is bound to submit, and which is equally obligatory upon the congregation. That power might have dissevered his pastoral connection; and if the offense had been so aggravated as to require it, the presumption is, that his connection with his congregation would have been dissolved.

*The classis to whom it belonged to decide, in the hope óf reclaiming the offender, suspended him from the exercise of Ms official duties until he should reform; but they did not absolve the congregation from their obligations to him, nor free him from his engagements to them. He was still bound to the service of the sanctuary, and attached to the congregation of the Reformed Dutch Church in the city of Albany. He was not at liberty to devote himself to any secular vocation; and if his salary was suspended, he was left without support from his congregation, and under engagements which prohibit a resort to worldly employments for the supply of his wants. The ordinances of the church have not declared the forfeiture or suspension of salary to be a consequence of á sentence of suspénsion from thé office óf the ministry; nor are the ecclesiastical judicatories authorized to make it so; and the spirit of liberality, forbearance and Christian charity which the whole system breathes, forbids us to believe that they intended so severe a penalty as the entire deprivation of support, tó be inflicted on any minister of the gospel, whose dependence is often upon his salary, as long as he is permitted to continue in his pastoral connection with the. congregation which has called him.

If the sentence of suspension, in this case, suspended the right of the defendant in error to his salary, it must be because the minister is disabled thereby from performing his pastoral services for the congregation; and if this sentence produced that effect, every suspension of the pastor, whatever the cause of it may be, must have the same operation. Mow, the pastor may be suspended by the classis for any departure from doctrine, morals or duty: the parties may appeal from the sentence; and until that appeal is determined by the higher assembly, it cannot be known whether the sentence of suspension was right or wrong. Suppose differences to arise between a minister and his congregation, on some point of doctrine or official duty, and he is accused of heresy or faithless desertion of office, and on the complaint of the consistory, *he is suspended by the classis, and appeals from the sentence; is his salary to cease until the controversy between him and his congrega tion is finally settled? Suppose the decision to be against him; is the forfeiture and loss of salary during his suspension, to be the penalty for asserting opinions which were erroneous; but which he may have conscientiously believed to be correct ? and if he prevails in his appeal, would it not be unjust to deprive him of his salary during the period of his suspension ?

But the sentence of suspension in this case was for wilful misconduct, and has been confirmed on appeal; and the defendant in errpr, it is said, cannot complain of a suspension of salary produced by his own misconduct; and which the regular authorities, by whose decisions he is bound, have pronounced to be just.

It has been shown, that if the sentence of suspension is a defence to the action for the salary, it is the failure produced by the sentence, in the performance of the services required of the pastor, which bars the recovery; and it will not be contended that a sentence of suspension for misconduct, operates differently from a sentence for faith-leas desertion of office, or for heresy or public schism, unon the rights of the offender, under the covenant for ^ ° . . T , compensation for his services, in each case, it equally disqualifies him from performing the duties of his office, and is the consequence of his own irregular conduct. Gan it depend, then, upon the final determination on the appeal, whether the salary is to be suspended or not; and is the suspended pastor to lose or gain his salary, as he succeeds or fails in his appeal ? Then if the pastor erred in judgment upon a doctrinal point, and believing his own opinion to be orthodox, appealed from the decree of the classis against it, he must be punished for his error by the loss of his means1 of support; and if he retracts his error, he must still be precluded by the sentence from claiming his salary during' his suspension; because the original sentence was occasioned by his own fault. But suppose the pastor, who is suspended for an offence against morals, does not appeal, but gives such evidence of reformation *and repentance, as to induce the classis to revoke the sentence; this could not be done immediately. Suppose the classis to be satisfied with a probation of three months, or suppose them to require six months or a year to assure them of his sincerity and his self command ; the pastor, during all this time, would, by his suspension, be' disabled from performing his pastoral services ; and his own misconduct would be the cause of his disability. Shall he bé denied the' support which his congregation covenanted to allow him¡ and be thrown upon public charity for subsistence, during the period of his suspension and trial ? The spirit of Christianity forbids it; and I am satisfied that the spirit and.policy of the provident system of government to which these parties, in their contract, refer as their guide, and the supreme law of the church, is wholly opposed to it. The framers and the expositors of this excellent system of rules, impressed with the importance of this principle, and forseeing that aggravated cases might occur, and the irritated feelings of a congregation propel them to deny to their pastor the support they had stipulated to allow him, on, the ground of his failure to fulfill his obligations to them, introduced a covenant in the call of the minister, whereby, as I interpret it, all inquiry into matters of such peculiar delicacy was precluded • and the right to the salary Pu* exclusively upon the continuance of the minister in his pastoral office ; referring it to the classis to terminate his right to his compensation in case of a failure in the performance of his duties, or such an offence against morals, or departure from sound doctrine, as to make his longer continuance in office, in the opinion of that assembly, improper ; but taking care that the pastor should be .supported by the congregation by whom he was called, as long as he was permitted by the classis to continue in connection with them. I cannot, therefore, consider the sentence of suspension, as suspending the right of the pastor to his salary during the time he was suspended.

It is objected that the congregation, if compelled to wait for a sentence of removal before they can disengage themselves from their pastoral connection with an unfaithful %nd immoral pastor, may be subjected for a long time to an onerous charge, without any consideration for it. I eon-fess I do not see the force of the objection. The pastoral connection ought not to be dissolved on light grounds; nor ought the congregation or its consistory to be the judges of the sufficiency pf the causes to dissolve it; but the consistory may pefer a complaint or accusation to the classis, and the classis have the power of deposing the minister; and whenever his misconduct shall satisfactorily appear to that assembly to require his deposition, a sentence of removal may be pronounced, which will sever his pastoral connection with his congregation, and thereby terminate his right to. the stipulated salary. This assembly must meet at least once in every three months, and may, in cases of emergency, be sooner called; and, if the welfare of the congregation, and the interest of religion require, it may apply the decisive remedy of deposition, as promptly as a regard to the just rights of the accused to an impartial trial and full defence will admit. A more effectual or speedy remedy cannot reasonably be required.

It is true that the deposed minister may appeal from the sentence of removal: and an obstinate offender, by . pursuing his appeal to the highest judicatory, may create some considerable delay; but, if his original sentence dissolved his connection with the congregation, he will gain nothing "by his appeals, unless he is successful, for his salary. must cease with the dissolution of his pastoral relation; and, unless that relation be restored, by a reversal of the sentence which dissolved it, the right to the salary cannot be revived.

If, therefore, the classis of Albany had, on the first application, dissolved the pastoral connection of the defendant in error with the plaintiffs in error, instead of suspending it, his right to the salary, and their obligation to pay, would have ceased at that time; but having chosen the palliative course of suspension, and no valid or effectual dissolution having taken place until the month of June following, the connection of the defendant in error with the ^congregation as their pastor, continued to that time; and though he was under sentence of suspension, his right to his salary was, in my j'udgment, unaffected by that sentence, and he was entitled' to recover it.

The ecclesiastical j'udicatories are the tribunals to which both the contracting parties agreed to submit themselves, on their spiritual relations: their decrees, in the last resort, are conclusive, and cannot be impeached by either party; and if they refuse to dissolve the pastoral connection, but yet suspend the pastor, it must be intended that they had just grounds for the decision; and the congregation, however inconvenient or disadvantageous it may be to them, must conform to the sentence.

It remains to notice the cases and authorities to which the court has been referred.

Authorities considered.

The first in order was, an expression which fell from 1 1 Lord Mansfield, in the case of Martin v. Hinde, (Cowper, 437,) and which was relied oh as importing an opinion, that jn contracts between a pastor and his people, the services of the pastor are the condition, as well as the consideration of the salary. But a reference to the leading facts of that case, and the scope of the reasoning in which the expression occurs, will show that it,is not applicable: . r , , , , ’ , . , , , intended by the learned iudge to be applied to such a , . .J , ° . contract as this case presents to us.

Martin, v. Hinde, Cowp. 437.

In the case cited, the defendant, who was the rector of St. Ann’s, Westminister,' had appointed the plaintiff to perform the office of curate in his church of St. Ann’s; and promised to allow him a yearly sum for his maintenance in the curacy, and to continue him to officiate in the church until he should be otherwise provided of some .ecclesiastical preferment, unless,, by any fault by him committed, he should be lawfully removed from the same. The curate had been appointed to the readership of the parish ; and two notices had been given by the rector to the curate, to quit the curacy by a given day ; and a successor had been appointed to the office, who had displaced the plaintiff", and officiated as curate during the period of time.for which a salary was claimed by the plaintiff. The material *question was, .whether the appointment of reader was an ecclesiastical preferment, within the sense of the, contract; and the court decided that it was not. ' It was further objected, that the plaintiff had no license from the bishop to.officiate as curate of the parish, and .was therefore, removable" at pleasure by the rector, and had been legally reproved from the office. The court inclined to the opinion" that there was sufficient evidence in the case, of an authority from the bishop to the plaintiff, to officiate as rector in the defendant’s church. It is in his discussion of this point, that Lord Mansfield uses the expression relied on. He observes, that the defendant, in his notices to quit, did not object the want of a license; and that if he had, the defendant might have immediately procured one; and then adds, “ If, after reasonable notice, he does not procure every qualification necessary *to enable him to . do , the duty, the defendant would be excused -from paying him the salary; for the plaintiff’s service as curate is not only the; consideration,. but the condition of -the salary.” It is manifest that the decision of the court on the point, turned on the fact of license by implication, and the waiver of the objection to the want of it; and did not rest in any degree on the position, that the plaintiffs service as curate was the consideration and condition of the salary. But giving it the full •' , . force of an adjudication, it would not govern this case, The. principle it involves, applied to the particular contract then under consideration, and had particular reference to the license as a qualification for the office. The' contract was substantially a general undertaking to pay for services. The only point in which it differed from the ordinary case of contracts for service, was the obligation of the employer to continue the plaintiff in his employment until he should be preferred.. But the plaintiff was at liberty to quit the curacy at pleasure; and, under such a contract, the performance of the services becomes necessarily the condition, as well as the consideration of the right of salary for it. It rested with the curate to perform the service, and thereby entitle himself to the stipend, or to quit the curacy, and' thereby relinquish his *right to salary at his election. His actual resignation, or his voluntary, though silent desertion of the office, would consequently terminate his right to the allowance for his maintenance in it; and, for the same reason, a culpable and continued refusal, or other neglect to perform the services the appointment required of him, would be a virtual dereliction and abandonment of the office, and discharge the employer from the obligation to pay the allowance, or continue the maintenance. The rector could not be bound to pay the salary when the service was no longer rendered.

The rule applied by Ld. Mansfield, to that case, was, consequently, correct; but that rule is not applicable to this contract, for the call in the case before the court, bound the pastor to the congregation for life, and the pastoral connection between them could not be dissolved by themselves; and the covenant of the plaintiffs in error was, to pay the defendant in error his stipulated salary as long as that connection should continue. But again, to understand the true import and bearing of the expressions of Ld. Mansfield, it must be borne in mind that they were applied by him to that part of the defense, which objected,„ to the plaintiff’s right to the sum allowed him for his main*enancei on the ground of his disqualification for the office, alleged removal therefrom. The question on that point, turned on the efficacy of the notices to quit. ITthat notice amounted to a removal, and the rector had a right to remove at pleasure and without cause, then the title of the curate to the -salary he sued for, was defeated. The rector insisted that the curate was not licensed by the bishop to officiate as curate 'of the defendant’s parish; and, for that reason, was not duly qualified for the office, but removable at pleasure. The cou-rt inclined to the opinion, that the bishop had substantially and in effect, though not in form, licensed the plaintiff to officiate as curate of the parish; but held that the defendant had waived the objection, since, in Ms -notice to quit, he did not object the want of a license. But the learned judge justly observes, that if the plaintiff did not, on reasonable notice, procure every qualification necessary to enable -him *to do his duty, and of course a license, if -necessary, the defendant would not be bound to pay the salary: and the reason-he gives for the position is, because the services of the plaintiff were the consideration and condition of his salary. His obvious meaning was -that the plaintiff must be qualified to officiate as curate, and entitled to continue in the office notwithstanding the notice to quit the curacy, Or he cduld have no title to Ms salary, as he could not perform the service for which it was contracted to be paid. The plaintiff was employed by the defendant, to perform the functions of curate in his church of St. Ann’s; and for his services as curate, the allowance was agreed to be made him for his maintenance in that situation. But he had been displaced by the rector; and unless he possessed all the qualifies1 tions necessary to enable him to act as curate, and to entitle him to insist upon the contract of the rector to continue Mm in the curacy until preferred, he could not lawfully officiate in that capacity, and consequently could not entitle himself to the stipend for which he sued-. In that sense, therefore, the condition or the right to salary waa the service he contracted to perform. But that condition only required of the curate to possess the necessary qualifications for the office, and to be ready and willing to, perform the duties of it. The actual performance of the service was not, even under that promise, held an indispensable pre-requisite to the recovery of his allowance; for it appears by the case, that: the plaintiff in that suit had not, in fact, rendered the service for the salary he demanded and recovered. The rector, acting upon the supposition of the right to remove him at pleasure,, and assuming the notice to quit to be an effectual removal,, had employed another curate who had performed the service; but, it was admitted that the plaintiff, was, ready to perform the duties of the office, but was hindered by. the intrusion of the substituted curate; and that was held a sufficient compliance with, the condition to entitle him to his stipend. The right to salary was tested by the efficacy of the notices to quit; and the intended removal of the curate from his office being inoperative, his title to his stipend, was *held complete, though the service had not been rendered. But that, case is itself an authority to show, that when the officer is duly qualified and ready to act, there must be an effectual removal from office by competent authority, to defeat the right, to salary; and, upon that principle, the right to salary in this case would continue, unless the classis chose to exercise the power to remove; and. the sentence of suspension, having for its object- the reformation,.and not the expulsion of the pastor, would be no defence against the claim.

The case of The First Religious Society in Whitestown v. Stone, was a contract of-the defendant to pay a subscription for the support of the Bey. S..F. Snowden, as a minister of. the gospel of said society, so long as said Bev. Mr. Snowden should administer the gospel in said society, and the subscribers reside within four miles of the meeting hous.e; and the question was, whether it was an obligatory contract, or depended wholly on the will of the subscriber. The court decided that the contract was valid in law; that the consideration was the preaching of the gospel by the Bev. Mr. Snowden; and as long as he continued to administer the gospel, and the defendant to reside within four m^es’ was bound by the contract. It could not be dig* so^ve^ but by mutual consent, or cease to be obligatory until the minister' ceased to render the service. There the contract was, to pay so long as Mr. Snowden continued to administer the gospel in that society; and when.Mr. S. ceased to administer the gospel, then, and not till then, the subscriber would be absolved from his obligation to pay. Here the plaintiffs in error covenanted to pay so long as the defendant in error continued the minister in the church of Albany; and when the defendant in error ceased to be the minister in that church, as he did on the dissolution of his pastoral connection with them, and not till then, were they discharged from their covenant to pay him his salary.

First Rel. Soc. Whitestown v Stone, 7 John. 114.

The case of Dieffendorf v. The Reformed Calvinistic Ohurch Canajoharie, is more material to the present case. It was a case in error on certiorari from a justice’s *court. Dieffendorf was sued before the justice, for his subscription for the support of the ministry of the church, “ as long as the Rev. John I. Wack is and remains our regular preacher.” Wack had been tried and deposed by the classis of Montgomery for immoral conduct. He appealed from the sentence, which appeal was sustained. There were subsequent proceedings in the case which had been held irregular. The defendant" in the court below offered to prove by witnesses, that Wack was a man of immoral conduct, and guilty of drunkenness, profanity and other vices degrading to his character as a minister; but the testimony was rejected. The supreme court held that the justice was right in rejecting the testimony offered to criminate Wack; and the judge who delivered the opinion of the court said, that the only difficult question in the case was, whether Wack, in the sense of the contract between the parties, had remained the regular minister of the Reformed Galvinistic Church of Canajoharie; and he says that his conclusion is, that the relation of minister and congregation was not dissolved; and that the defendant below was bound to pay his subscription. The proceedings of the classis in that case, whereby Wack was deposed, were held irregular and void; and the court observed that Mr. Wack uniformly continued to exercise his ministerial office and character; but they put the decision upon the ground that the relation . / r ' . r tit - of minister and congregation was not dissolved.

Dieffendorf v. Ref. Calv. Ch. of Canajoharie, 20 John. 12.

So here the decision is, in my judgment, to be put upon the ground that the relation of minister and congregation between the plaintiffs and the defendant in error was not dissolved; and that the defendant in error was entitled to receive his salary during its continuance. For these reasons, my opinion is, that the judgment of the supreme court ought to be affirmed.

Coldeh, Senator.

The questions which this case presents, it seems to me, are, first, whether, under the agreement between the parties, which has been denominated the call of the defendant in error, there is a condition precedent which he was to perform before he could be entitled *to demand his salary ; and secondly, if there be such a condition, what is it ?

The questions,

The terms of the call, so far as it relates, in my opinion, to these questions, are as follows: “ To encourage you in discharge of the duties in your important office, we promise, in the name of this church, all proper attention, love and obedience in the Lord; and to free you from worldly cares and avocations whilst you are dispensing spiritual blessings to us, we, the ministers, &c., of the said church, do promise and oblige ourselves and our successors, to pay. to you the sum of 1500 dollars yearly and every year, in quarterly payments, as long as you continue our minister in the said church, and remain unmarried.” There is then a provision for an increase of salary in case of marriage.

Tho call

I cannot doubt but that these terms form a condition precedent; that is to say, the defendant in error was bound to fulfill the agreement on his part, or was bound to fulfill it so far as he might be permitted to do so by the other party, before he could demand a performance of the agreement on the part of the plaintiffs in error.

contained a cedent.011 PI8

But this presents the second and most important question ; what is this condition precedent? In my opinion, it is that the defendant inerror should continue to be minister in the church.

I cannot construe the agreement between the parties to mean, that before he could claim his salary in a civil tribunal, it would be incumbent on him to show, and to prove that he had fulfilled- all the hopes and expectations of those who gave the call, and which are expressed in the instrument set forth in the pleadings. No doubt a confidence tiiat the defendant’s labors in -the gospel would be attended with a blessing, that he would preach the word in truth and faithfulness, that he would administer the holy sacraments agreeably to the institutions of Christ, and fulfill the whole work of the gospel ministry agreeably to the-word ofG-od and to the rules and constitution of the Dutch Church, induced the plaintifis in error to select *the defendant as their minister; but I cannot think that these expectations formed -any part of a condition precedent The terms of the instrument do not, in my judgment,,admit such a construction. All these Tropes and expectations are -introduced -in the instrument as reciting the inducement to the agreement between the parties; 'but form-no part of the legal obligation of the defendant. I mean by legal obligation, such an obligation as he must prove performed before he can be entitled to recover his salary in a court of law. If he were before an ecclesiastical tribunal, and the question were as to the fitness of the defendant m error to continue the minister or the church, then unquestionably every word of these recitals would be entitled to consideration.

I not only think that if this agreement be construed in reference to its terms only, no other interpretation can be given to it; but it seems to me that a regard to the situation and objects of the parties, and a due respect to those principles of our institutions which require us forever'to keep separate ecclesiastical and civil jurisdictions, require that such an interpretation should be given to the instrument under consideration, as will preclude from our courts of law the polemic discussions which mnst necessarily arise in our civil courts, if they were to take upon themselves to decide whether the word had been preached in truth and faithfulness, whether the sacraments had been admin istered according to the institutions of Christ, and whether the work of the gospel ministry had been fulfilled agreeably to the word of God. These are questions not fit for a lay tribunal, and it seems to me the call reserves them for proper ecclesiastical judicatories.

The call purports that the defendant in error is to accept it in subordination to the rules and constitution of the Reformed Dutch Church as established in the synod of Dordrecht, as ratified and explained by the ecclesiastical judicatory of the Reformed Dutch Church of the city of Albany. The rules and constitution here referred to, are Presente^ by the case; and by these it appears that in the Dutch Church there are four ecclesiastical assemblies or *judicatories; that is to say, consistories, classes, particular synods, and general synods; that these rank in the order in which they are named, and that an appeal lies from an inferior to a higher assembly. By the 79th and 80th articles of the ordinances of Dordrecht, if a minister is guilty of the offence of habitual drunkenness, he is to be suspended by the consistory, and it shall be left to the decisión of the classis, whether he shall be wholly deposed or not. By the 89th explanatory article, the classes are J r _ . t> 1 invested with the power of deposing ministers. By the 72d explanatory article, the consistories are allowed to suspend ministers guilty of atrocious crimes from the exercise of their office: but the proceedings of a consistory in such cases, is not to be considered as a trial, but only as a prudent interference and binding over the person accused to the judgment of his peers, who are the members of the classis.

Rules and fte8churehn °f

These citations from the rules and constitutions of the church, show very manifestly, in my opinion, that the ecclesiastical judicatories had a right to suspend the defendant, or to depose him; and that so, whenever they thought he was unworthy of being a minister, they might annul all his claims to compensation; or, in other words, they might determine that he should cease to be the minister of the church. The question then is, have they done this, and when did they do it ?

On the 5th day of September, 1820, the consistory, without, as it appears, suspending their minister, as they have done by the 79th article of the synod of Dordrecht, made a representation to the classis of Albany of his evil habits, and intreated that the classis would proceed according to the rules of the church. On the 2d of December, 1820, the classis declared the defendant in error guilty, and pronounced a sentence, that he should be suspended from the office of the ministry, until he should give the classis evidence of repentance and reformation.” From this sentence the minister appealed to the particular synod of Albany, which, on the 16th May, 1821, decided that the appeal should not be sustained. From this decision the *plaintiff appealed to the general synod, which, on the 14th of June, 1821, affirmed the decision of the particular synod, and passed a resolution advising the classis of Albany to proceed to dissolve the pastoral connection between the plaintiff in error and the congregation of the Dutch Church in Albany. On the 26th of June, 1821, the classis of Albany, pursuant to the advice of the general synod, decided that the connection should be dissolved, and did thereby, -as they resolved, 'dissolve the saíne. It would- appear that _ . ', , ^ . . . . L l . , n the question-as to the connection of the minister with the church, was finally decided by these proceedings. -But it would seém from the case, that ‘contemporary with the proceedings .on the first representation of the consistory ’of the 5th of •September, 1-820, which 'did -not require that Mr. Bradford-should be removed, bu’t.only that the classis Would take such measures as the rules Of the church and the nature of the case required, there were other proceedings against him, on a petition of the elders and-deacons, which is -recited in the resolution of the -classis "-Of Albany Of the -22d of February, 1821, which petition, it is stated, ■p’rayed for a-dissolution of the pastoral connection. ■ The ■last mentioned resolution recites, that Mr. Bradford -had -been regularly .tried .by the classis, and found (guilty of -inebriety ; and therefore the classis, On that day, '(that is, •22d of February, 1821,) resolved that the petition of the elders and deacons should be granted, and that the pastoral connection should be, and the same was thereby ‘de-Olared to be dissolved.

Proceedings them’

■From this resolution of the Classis Mr. Bradford appealed to the particular synod, Which appeal was not sustained, and the same fesolutidn was confirmed according-to ’the resolution of the 21st -of May, 182-1, Which -is'referred-to -as before set forth; -but -there -is -no such resolution appearing in the case.; probably -the-resolution-of the 16th of May, ■1821, is intended.

From -this -resolution of the particular -synod, - Mr.' Bradford appealed to the general - synod. On the- saíne day that it is stated they decided not tb sustain the former appeal and to affirm -the decision ■ of the particular synod, *that is, on the -14th of June, 1821, the .general syriod is represented to have determined to ‘sustain the second appeal of Mr. Bradford, -as to the dissolution of the pastoral connection, and'-on the same day to have resolved that the classis should be advised to dissolve the connection between Mr. Bradford and his church. It is-stated in the case,"that in .pursuance of this -recommendatory resolution, -the clas* gig, on the 26th of June, 1821, (the same day on which a resolution in the same words is stated to have been passed,) again resolved that the pastoral connection between Mr. Bradford and the church was thereby dissolved.

There appears to me to be inconsistencies and incongruities in these resolutions and dates, which I have in vain endeavored to reconcile. It is> very questionable, in my mind, whether the proceedings have been according to the rules and constitution of the church; but be that as it may, I feel well satisfied that the connection between Mr. Bradford and the church existed until it was dissolved, if it ever was duly dissolved, by the particular synod, on the 27th of June, 1821. This seems to be admitted; and if it was, then till that time Mr. Bradford was the minister of the church, and was entitled to his salary for as long as he continued to be so.

I do not find any difficulty in reconciling this opinion with any case which has been cited, or which I have met with. In Martin v. Hinde, all which relates to the present case, went on the ground that the curate was never qualified to take upon himself the office; and so, if Mr. Bradford had been disqualified, and could never have been minister of the church, the precedent condition would have failed, and he could never have claimed any salary. In the case of The Religious Society of Whitestown, the agreement of the defendant was to pay so long as the pastor should administer the gospel in the society, and was not, as in this case, to pay so long as the clergyman should continue minister of the church. The judgment in the case of The Church of Canajoharie, appears to me to support the opinion I entertain, that the connection ^between a minister and his church can only be dissolved by the proper ecclesiastical tribunals; for, in that case, it was decided that testimony to show that the clergyman was not entitled to his pay because he was a man of immoral conduct, and guilty of drunkenness and profanity, was properly excluded by the inferior court before which the cause was tried. I should very unwillingly assent to a decision of this court, which should establish that our temporal tribunals were *° exa™ne aQd decide whether a pastor had preached the wor<^ ™ trudi and faithfulness, and whether he had fulfilled the whole work of the gospel ministry. Should our ^a7 courts assume jurisdiction of these questions, I think they would be going beyond their province; and that the ministers of the gospel, and the members of those holy offices might say to us, “ Promt, 0 procul, este projfam”

Martin v. Hinde, Cowp. 437.

7 John. Rep. 115.

20 John. R. 12.

In my opinion, the judgment of the supreme court must be affirmed.

Spencer, Senator.-

This cause depends on the construction of the covenant of the plaintiffs in error, by which they engaged to pay the defendant in error a certain salary as long as he “ continued their minister in the said church,7' and “ during the continuance of his ministry in the said church." By a resolution of the classis of Albany on the 2d of December, 1820, the defendant was “ suspended from the-office of the ministry, until he shall give the classis evidence of repentance and reformation.” The question is, did this sentence remove him from the ministry in the church ? To determine it, let us suppose that he had given the classis evidence of repentance and reformation, within two or three months after the sentence, and the suspension had been withdrawn; would any one have ever entertained a doubt, that during that period he had continued a minister in the church ? The very fact that the same classis, afterwards, on the 26th of June, 1821, did “ dissolve the pastoral connection” between the defendant and the church, is in itself an admission and conclusive proof, that up to that time the pastoral connection was not dissolved. This appears to me a *very plain view of the case, and excludes the considerations which have been urged respecting the defendant’s having disqualified himself. The plaintiffs m error have' not provided in their covenant for any such event. They have made the only condition of his receiving his salary, the fact of his continuing a minister in the church: and where the parties have themselves thus prescribed the terms on which the salary was to be paid, it seems to me that it would be making a new contract for them to insist on any other conditions. Besides, if it were . . , . . . admitted that it was a condition precedent, that the de- „ , . , ,. , 1 . • • n , fendant in error should be, and continue m all respects qualified to officiate as a minister, it seems to me that the evidence proves he was1 qualified, until he was actually removed. Both parties submitted to the decision of the classis, and that body became arbitrators between them. When those arbitrators, by way of punishment, directed the suspension of the defendant, did they mean to say he was totally disqualified from serving as a minister ? If they had so intended, if they themselves thought so, the plain and obvious dictate of duty required them at once to dissolve the pastoral connection. Their omission to do so is in itself evidence that he was not disqualified, at least in the absence of any other proof; and there is no proof whatever in the case, of any disqualification, but the proceedings of the classis. It seems to me wholly immaterial what the reasons and causes of that suspension were. It is enough that the competent authority did not deem them sufficient to amount to a total disqualification.

Even in the most broad and extended view which could be taken, suspension from 'office cannot deprive the incumbent of the stipulated compensation during such suspension. By the constitution of this state, whenever an impeachment is prosecuted against the chancellor or any justice of the supreme court, the person so impeached is suspended from exercising his office until his acquittal. In the event of an acquittal, no one would doubt that the person impeached would b.e entitled to receive his salary for the time while suspended. The result cannot affect the *question of right. It must be the same, whether the party be acquitted or convicted; and such is believed to be the uniform practice in cases arising in the military and naval service of the United States. An arrest suspends the officer, but I cannot learn that his right to receive his pay up to the time óf sentence, was ever questioned.

In enumerating the causes which make a church in England void, and deprive a rector of the right to his tithes, baron Comyn does not allude to the suspension of the minister in the course of ecclesiastical dicipline as such a cause* Bui it is sufficient ground for affirming the decision of the supreme court, that by the contract itself, the salary was to be paid .so long as the defendant in error continued a minister in the church, and that by the acts of the plaintiffs in error, of the classis, and of the other church authorities, he was recognised and admitted tó be a minister in the church until his connection was dissolved; and I ám, therefore, for affirming the judgment.

Ceary, Senator..

The ecclesiastical tribunals have disj solved the connection between the plaintiffs and defendant in error as pastor and people ; but, after the defendant in error was suspended from the office of the ministry, and pending the proceedings which resulted in dissolving the pastoral Connection between him and the Reformed Protestant Dutch Church in the city of Albany, salary accruan<I is claimed, and the question is upon the right to recover it.

Connection dissolved.

Salary claimed euspension*8 tSn

By the call, which is the covenant between the parties, the plaintiffs in error promised to pay the salary to the defendant in error during the continuance of his ministry in their church; and although the right to salary must depend upon the covenant between the parties; yet as that limits the salary to the continuance of the defendant in error as the minister of the plaintiffs in error, it is material to consider who has been the causé of suspending and finally terminating that connections The only evidence upon that subject is to be found in the proceedings of the different edclesiastiéal tribunals in which the plaintiffs and defendant in error have appeared, as parties. Hence the ^nature and character of thosé tribunals, and the effect of their'proceedings, deserve consideration.

Call.

It is part of the original compact among men, that they w¡¡¡ submit to the rulés and regulations of the society to which they belong. According to the constitution and laws of this state, we have no established religion; but by that constitution and those laws, every religious denomination is tolerated. This toleration must imply not only the liberty of the- citizen to join any denomination, but the protection of that denomination in the of its chureh. Hence it folows,- that questions arising between- pastor and, people .must principally depend upon the regulations adopted for the- government of each particular church and denomination. These tribunals may be: considered as the choice of those- subjected to-their jurisdiction ; and when the parties appear and litigate before them, common law courts áre bound to respect their pro-9 1 1 eeedingsi

Our social compact pro-church in its Smut S°V6rn"

courts t0 re. sPect their proceedings.

From these- proceedings, it appears that at a consistorial meeting held on the 5th day of September, 1820; plaintiffs in error made a representation, in, writing to the-reverend classis of Albany, stating, “ That reports had existed for a considerable time past imputing to the defendant in error, their minister, repeated instances of inebriety ; that feeling unwilling to credit such reports, and desirous of preserving the character and usefulness of their minister, whose talents they held in the highest estimation, the elders had both 'formally and informally communicated the prevalence of said reports to- him, and admonished him in a. friendly manner of their ruinous tendency, and the necessity of greater circumspection on his part, to silence them; that hoping such communications and admonitions would produce a circumspect and exemplary course of conduct on the part of their minister, and aware of the injurious consequences which might result from a public investigation, the elders and deacons had hitherto forborne to request such investigation ; that the continuation and extensive prevalence of the said reports, with ■^references to recent "instances of the inebriety of their minister, as well as a deep sense of their Christian obligations, the rules of the church then constrained the elders and deacons to the painful duty of soliciting- the investigation as early as might be practicable; that the standing and usefulness of their minister in the congregation, was already materially impaired, and the elders and deacons entertained strong .apprehensions that .unless the said reporto should be speedily silenced by the judicial determination of the reverend classis, and the reproach cast upon the character of their minister completely removed, it would be wholly impracticable to re-establish his usefulness amongst his present flock. Wherefore the elders and deacons earnestly entreated the reverend ' classis to take such measures touching the premises as the excellent constitution and rules of the Reformed Protestant Dutch Church prescribed, and the nature of the case imperiously requiredthat the said representation was, by the direction of the said consistorial meeting, signed, and on the 7th day of September, 1820, delivered to the president of the classis, and a copy served on the defendant in error; that a meeting of the classis was regularly convened and held, to investigate the truth of, and decide upon the matters set forth in the said representation ; that the defendant in error appeared, and the said' representation was openly and distinctly read to him in the said classis; that he alleged and objected that the said classis was not constitutionally convened, which objection was overruled; that the classis then proceeded to investigate whether the reports set forth in the said representation against him, of repeated instances of inebriety, Were of such continuance, and extent as to constitute what'is called “ common fame" and he attended such investigation, and had leave to cross-examine the witnesses; that after several witnesses Bad been duly sworn and examined before the said classis relative to the continuance and extent of said reports, and the evidences of the said witnesses had been duly considered, the said classis then and there adjudged and determined that the continuance and extent of the said reports against *the defendant in error, charging him with inebriety, were of such a nature as constituted what, in the constitution of the aforesaid church, is termed “ common famethat the said classis thereupon required the said consistory, by their special delegates appointed to attend the said classis, to furnish the said classis with specific instances or charges of inebriety against the defendant in error, and the names of witnesses to prove the same: that such specific instances or charges, and the names of divers witnesses to prove the same, were thereupon furnished to the said classis. 1 x e' which were then and there openly read in the said classis , . r J . to the defendant m error; that the defendant m error, on being called upon by the classis to answer to the said charges, then and there denied the truth of the same, and thereupon requested time of the said classis to prepare for his defense, which was granted to him by the said classis until the 23d day of October then next, and the said classis adjourned to meet again on that day; that the said classis met, pursuant to adjournment, and then and there proceeded from day to day to investigate the truth of the said instances of inebriety of the defendant in error, and to hear the proofs and allegations in support thereof, until the 3d day of November, and on that day, at the special instance and request of the defendant in error, adjourned to meet on the 27th day of that month, and on the last mentioned day proceeded to hear as well the proofs and allegations of the defendant in error in his defense, as the further proofs and allegations of the said consistory touching the said instances of his inebriety, and continued such hearing from day to day, until the 2d day of December, when, after duly considering all the said proofs and allegations, the said classis pronounced the following decision thereon, that is to say: “Resolved, that the Rev. Dr. John M. Bradford be, and he is hereby pronounced guilty of repeated instances of inebriety and intoxication. Whereas sobriety in ministers is essentially connected with the honor of religion and success of the gospel; and whereas the Rev. Dr. John M: Bradford has been found guilty of repeated instances of inebriety or intoxication; therefore, resolved, that the said Dr. John M. Bradford be, and hereby is, suspended from the office of the ministry, until h„e shall give the classes evidence of repentance and reformation.” The defendant in error appealed from this decision and sentence of the classis to another ecclesiastical tribunal, the particular synod, where the decision and sentence of the classis was affirmed; when the defendant in error again appealed to the general synod, the highest ecclesiastical tribunal, where the decision and sentence of the. classis, was also- affirmed ;• and the general synod- at th . , ' , . . . . , , time passed,- a' resolution advising the classis to, pro- , , .. . . ' * ' ceed. to dissolve the pastoral connection between the con,gregation of the Reformed Protestant, Dutch. Church, in, the city of Albany and the defendant, in error,, which yeasi, afterwards done,'

what they are thia caae-

The argument for the defendant in error ís¡ founded upon a supposition that the. defense, involves the decision, 0f a moral question, depending upon the different habits. and opinions of men.;: and if the conduct of the defendant, in error is censurable,, yet cognizance cannot be taken of it on any principle, known to. the. common law. "With a view to meet this.'1 argument, the. proceedings of the different, ecclesiastical tribunals, have been detailed;, exhibiting a standard of morality by which he has, agreed to he governed, and by which he ought, to be bound; and if it is not practicable to- afford complete, redress to the, plaintiffs in error* no difficulty is perceived in doing it,, so far as defeating the defendant in error in the present - suit will have that effect. Anything that is lawful may b,e. the subject of a contract, and any persons,, body politic or corporate,, may be parties to it, if capable of contracting. In the present case, the lawfulness of the subject and competency of the parties are not questioned. The only difficulty arises on the meaning of the contract. The call is according to the prescribed- form; and if the defendant, in error can re- . • T . cover m the present case, i can see, nothing to. prevent a recovery after accepting the call, in any case, and without eyer performing a single pastoral duty. By accepting the call, he-becomes the minister, and, according to the decisfon of‘ *the supreme, court, so long as that appellation can be applied to him, he is entitled to. his salary, • The consequence is, the plaintiffs, in error are deprived of all- the benefits they intended, to secure by the call, and the ‘defendant in error excused from all the duties he expected to perform. Thus, the incumbent is pensioned upon the congregation; and although he. does not perform pastoral duties, prevents the call and settlement of another, who might otherwise be, employed to perform them. The coyénant in this case is uncommonly clear and perspicuous in its terms, and unquestionable in its object. If the subject matter had not thrown over it a kind of sacredness, if it had been a business of ordinary concern, and placed upon the footing of other contracts, it is believed that neither •counsel nor court would have entertained any doubt respecting its meaning. If parties will bring before courts of 'common law jurisdiction, questions out of the ordinary -‘course, such as it might seem should be preserved from -the-rude touch "of profanity, the principles which govern in other cases must be applied.

Argumentthat question, answered.

Construction of the contract.

To the jurist and civilian, one of 'the most obvious and familiar rules in the" construction of contracts is, that it ' shall be according to the intention of the parties. In the present case, the call which is the covenant, "commences by reciting that “ Whereas the Reformed Protestant Dutch Church in the city of Albany is at present, destitute of the stated preaching of the word, -and the regular administration of the ordinances, and is desirous of obtaining .the means of grace, which God hath appointed for the salvation of sinners, through Jesus Christ -his "son ; and whereas the said church is well-satisfied of’the piety, gifts and qualifications of you, John Melancthon Bradford, -and hath good hope that your labor in the gospel will be attended with a blessing: - therefore, we, the 'minister, elders and deacons of the said church have resolved to call, and we -hereby Solemnly, and in the fear'of the Lord, do call you, the said John Melancthon Bradford, to be our pastor and teacher, to preach the word in truth and faithfulness, and to administer the holy sacraments agreeably to *the institutions of Christ, to maintain Christian discipline, to edify the congregation, and ¿especially the youth, by catechetical instructions, and as a faithful servant of Jesus Christ, to fulfill the whole Work of the gospel ministry agreeably to the word of God, and the excellent rules and constitution of our Reformed Dutch Church, established in the last national synod, held at Dordrecht, and ratified and explained by the ecclesiastical judicatory under which we-stand, and to which you, upon accepting this call, must, with us, remain subordinate.”

It must be according to the intention of the parties.

Ordinary covenants contain only the stipulations of the parties. By the recital in the one under consideration, the object is distinctly declared. The destitute condition of the church is stated, the' desire of the church to remain no longer in that condition, and the confidence of the church in the qualifications of the defendant in error to satisfy that desire. The call then proceeds: “ To encourage you in the discharge of the duties in your important office, we promise, in the name of this church, all proper attention, love and obedience in the Lord; and to free you from worldly avocations, whilst you are dispensing spiritual blessing to us, we, the minister, elders and deacons of the said church, do-promise and oblige ourselves and our successors to pay to you the sum of $1500 yearly and every year, in quarterly payments, as long as you continue our minister in the said churchevidently showing the paramount object to be, the important duties of the ministry, and the salary as a subordinate consideration with the defendant, as well as the plaintiffs in error. The salary is not promised for the preaching only, but as an encouragement. The call provides for the preaching, but at the same time supposes an exalted devotion, that would be degraded by the promise of salary, as the only inducement. On what principle, then, either of law or reason, can the plaintiffs in error be required to pay, when the defendant has disqualified himself from the performance of every pastoral duty, and deprived them of. every benefit contemplated by the call?

Another view of the subject is naturally suggested. The call enumerates the various obligations which the defendant fin error came under by accepting it; and, among others, is that of remaining subordinate to the rules and constitution of the Beformed Dutch Church. By virtue of those rules and that constitution, the defendant in error was suspended from the office of the ministry, until he should give “evidence of repentance and reformation;” which, not being done, the pastoral connection subisting between him and the congregation of the Reformed Protestant Dutch Church in the city of Albany, was dissolved, and this suit is for salary which accrued between the suspension and dissolution. It is not pretended that any salary has accrued since the dissolution, and I cannot perceive any principle on which salary would have accrued after the suspension; for the sentence of dissolution must have" related back to the suspension; consequently, the defendant never was the minister of the plaintiffs in error after that time.

The sentence of dissolution related back to the suspension.

Yiele, Senator.

The question in this case is, whether Mr. Bradford shall be allowed his salary from the time of suspension to that of dissolution by the ecclesiastical judicatory.

I agree with the gentleman from the first district, (Mr. ... ' Colden,) that the performance was a condition precedent to the payment of the salary; and, to my mind, there is very little difficulty in saying how far the defendant in error must show that he has performed. He has submitted himself to the ecclesiastical judicatories. The parties have chosen the arbitrators to decide between them; and must ' both be bound by the decision, as to all matters of faith and practice. These judicatories are the only tribunals which can act in those matters; and we are bound to presume that all on the part of the minister has been performed, till they have passed upon his conduct; and whether their decision be for or against him, it is conclusive. The condition is the performance of the ministerial duties. A court of law is shut out from all inquiry as to the morals or of the minister. This belongs to the other judicatories; and the inquiry has been there instituted, and Mr. Bradford’s failure in an essential condition of the contract has been pronounced and confirmed. If my view of this subject be correct, we are presented with an adjudicated failure of performance, by judges of the parties!, own choosing; and the compensation, of course, fails with it.

Performance was a condition precedent.

bound’by the decision °f tlie Gcclesiastipal judicatories,

The condition ance^miaisduties,

It is said, however, that performance of pastoral duty is not the question, but. that it is Mr. Bradford’s continuance as minister ; and that the salary must be paid during such continuance and during his suspension. 'I do not undei* stand the contract so. The language is, '“ during the continuance of your ministry in the said church.” How "is it PGssi^e ^e could continue such minister, while he -stood suspended "from the office of the ministry, -and‘that,-too, in Consequence of his own wilful misconduct"?

Gout [anQt (

But "the argument is, "that "he Still continued a minister, "that "is to say, he continued- so during'his suspension, with the Dutch "Church generally. It was the "same thing after the connection with the plaintiffs in error was dissolved. It is also true, "that the suspension did not dissolve the pastoral connection,- but the contract does-not refer-‘to this, any more than to the minister’s continuance in the "Dutch Church generally. His continuance in the ministry of the "particular church, by which "he had been called, was the object. Though his general -relation to 'the Dutch Church might continue, and his pastoral relation with the particular church, yet his ministry’to the latter could not be said "to continue, without his performing, or -at least being able and qualified to perform," the ordinary'duties-of a clergyman, "The pastoral relation had a 'technical con"tinuance, but nothing more. Had this not been finally dissolved, he would have returned to the particular church without any call; but during his suspension, he had no more connection with that church 'than with .any other. The ministry was his performing, or béing able to perform all the ministerial duties. It. is ntit material "to "inquire whether any provision is made by the rules and conStitu.tión of the church, 'for maintenance to the minister during •a state of temporary "disability. "This would doubtless be a matter of discretion, during a temporary .^suspension or disability, without the minister’s fault. But in no case, -"it appears to me, While suspended "from'his office, can he be said to continue in his office.

My opinion is, that the judgment of the couri."below should be reversed.

Stebbesfs, Senator.

The defendant‘in-eryor on the’2d 0f December, 1820, "was'“ suspended from'the office of the the ministry/' by the clássis of Albany, for misconduct, and formally deposed on the 26th of June, 1821. His salary between those dates is the subject of controversy in this

¡■Subject óf controversy.

By accepting the call set forth in the case, the defendant in error became bound to perform the services therein required of him, and became subject to the rules andconstitution of the Reformed Dutch Church, also mentioned in the nail, But admitting the defendant in error tb have been bound to perform the services designated in the call, it is ■contended that those services are not a condition precedent to the payment of the salary, inasmuch as the plaintiffs in error covenanted to pay as long as the defendant in error continued their minister.

t^fefendant in error,

The good sense of the contract appears to me to be a covenant on the part of the plaintiffs in error to pay the salary as long as the defendant in error continued . . .. .. . , minister, dispensing the spiritual blessings mentioned m the call; for the inducement of the contract to pay salary is stated in the call to be, “ to free him from worldly cares and avocations” whilst dispensing those blessings. If such is the sound construction of the contract, it amounts to a condition precedent, without the performance of which the defendant was not entitled to his salary. The case of Martyn v. Hinde, (Cowp 437,) has been properly relied on as fortifying this construction.

Covenant ¡a 33 Pth&Tefend^ in. error was minister in fact.

Marlyn v. Hinde, Cowp. 437.

In Thorp v. Thorp, (12 Mod. 460,) lord Holt says, “ Where one promise is the consideration of the other, and where the performance and not the promise is it, is to be gathered from the words and nature of the argument, and depends entirely thereuponand for the purpose of *reconciling a variance in the books, he puts the following case: “ If A covenant with B to serve him for a year, and B covenant with A to pay him ten pounds, there A shall maintain an action before any service; but if B had covenanted to pay ten pounds for the said service, there A could not maintain an action for the money before the service performed.

Thorp v. Thorp, 12 Mod. 460.

In looking at the call in this case, it is quite, apparent to me that the plaintiffs in error considered the defendant’s performance oi the ministerial duties as the consideration of their covenant, and not his promise of performance. Indeed, they do not even require him to execute the covenant containing such promise. The language of the instrument is, “ We call you to perform the ministerial duties in our church; and to free you from worldly cares whilst dispensing spiritual blessings, we engage to pay you.” What else can it mean than a payment for those services as distinguished from an unconditional promise, according to the distinction taken by lord Holt ?

But if the instrument is to be regarded as containing mutual covenants, the cases of Boone v. Eyre, (1 H. Bl. 273 note a,) and The Duke of St. Albans v. Shore, (1 H. Bl. 270,) are authorities to show that a covenant which goes to the wk0ie consideration, is to be construed as a condition precedent.

Boone v. Eyre, and Duke of St. Albans v. Shore, 1 H. Bl. 273, 270.

How the contract of the defendant in error was, to dispense spiritual blessings in the manner mentioned in the call; and the sentence of the classis of Albany of the 2d of December, 1820, suspended him “ from the office of the ministry,” and hereby incapacitated him from exercising the ministerial functions.

This sentence, as is remarked by the chief justice, is equivalent to a refusal on his part to act, so far as he was . j . „ . incapacitated to act by the sentence; and a refusal to exercise the office of the ministry is a breach of the contract going to the whole consideration.

Sentence of suspensionwas equivalent to refusal to act.

I think the judgment of the supreme court ought to be reversed.

*Allen, Burt, Earll, Ellsworth, Hart, Jordan, Keyes, Livingston, McCall, McIntyre, Helson, Smith, Wooster and Wright, Senators, concurred.

For affirmance—Gardiner, Haight, Lake, Mallory, Ogden and Wilkeson, Senators.

Judgment reversed. 
      
       Mutual covenants are divided into those which are dependent, and those which are independent. Wherever the money is to be paid, and the act done at the same time, the covenants are dependent, and neither party can sue without averring performance, or offer of- performance, on his part; an<J'soi if John.covenants with James to split 6000 rails, and James covenants that, on the said work being completed, he will pay John. 60 dollars, **ames’ covenant' is dependent, and the performance of the work by John is called a condition precedent, which, in an action for the fifty dollars, he must aver and prove performed, or at least an offer to perform, and that he was prevented a performance by some act or neglect of James. But if James had agreed to pay John the fifty dollars on the 10th of September, and John had agreed to have the 5000 rails split.on the 20th of September, the covenants are independent, and John can recover the fifty dollars, although he had not touched the work, and James must bring his cross action for a breach of John’s covenant: and it was once holden by the supreme court, that an agreement by James to pay any part of the purchase money before the work was done, as if, in the last case, he had agreed to pay twenty-five dollars on the 19th of September, and the residue when the work was completed, which was to be on a certain day expressed in the contract, rendered the covenants independent throughout, and gave John the same right to recover both instalments without touching the work, as he would have, if the whole was to be paid before the work done; but this doctrine is now exploded, and the covenant of James is holden to be independent as to the first instalment, but dependent as to the second—and the extent of the rule, as now- holden, is, “that ifj by the terms of the contract, the money is to be paid-by a day certain, and which is to happen before the performance of the service, or by a day certain, and there is no day certain for the performance, the performance is not a condition precedent.” The rule is, to construe covenants according to the meaning of the parties, and the good sense of the case. To ascertain the intention of the parties, the following general rules are deduced from adjudged cases by Savage, Oh. J., in delivering the opinion of the court in Tompkins v. Elliot, 6 Wen. 497. 1. If a day be appointed for the performance of any act, and such day is to happen or may happen before the performance of the act which is' the consideration for the first mentioned act; then the covenants are considered mutual and independent, and-an. action may be brought without averring performance of the- consideration; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent; and so it is when no time is fixed for the performance of the consideration. 2. But when the day appointed for the payment of money or performance of any act is to happen- after the thing which is the consideration is to be performed, no action can be maintained before the performance of the condition. 3. When a covenant goes only to part of the consideration on both sides; and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be brought for a breach of the covenant by the defendant without averring performance; and where a person has received part of the consideration for which he entered into the agreement, it would be unjust that, because he has not had the whole, he should therefore he permitted to enjoy that part without either paying or doing anything for it; and, therefore, the law obliges him to perform the agreement, on his part, and leaves him to his remedy to recover damages for not receiving the whole consideration. 4. But when the mutunl covenants go to the whole, consideration op both sides, they are-mutual conditions and dependent. 5. Where two acts are to be don©at the same time, neither party can maintain an action without showing perform-ance or an offer to perform on his ¡part.
      Where-a-party agreed, on the,payment by another of-certain, sums of money to a third person, to assign certain certificates of sale of land, it was held, that the covenants were independent, on the ground! that the performance Of the covenant to assign was naturally to be subsequent to the payment of the money. Where there are mutual covenants, and the defendant has received-the principal part of the-consideration for dhe engagement on his part, the covenants of the parties will b© eonstmied to be independent, and the plaintiff will be allowed to maintain an action for the breach of the defendant’s covenants, although he hasfaQed'in part- in performance on "liis side—it -was so-held, where a plaintiff transferred to the-d'efendantfiiis right to put in a crop of 90 acres of land to- be cleared-, by him,, although he failed in finishing the clearing and fencing the land- as fast-as the defendant regtiired-it for sowing, as he had engaged to. do by the articles of agreement» 1 Cowen’s Treatise, 2d ed., po. 44, 45.
      
        What it is.
      Thatheshould continue minchurch111 *k0
     