
    James Murdock, Appellant from a Decree of the Visitors of the Theological Institution in Phillips Academy, in Andover.
    The common law of England in regard to the visitation of eleemosynary corpora tions is the law of this State, except so far as the same has been altered by statute
    Under the provision of St. 1823, c. 50, allowing a party aggrieved by a decree of the visitors of the Theological Institution at Andover to appeal to this Court, and authorizing this Court, sitting in bank, to declare null and void any decree or sentence of the visitors which is contrary to the statutes of the founders and beyond the limits of the power prescribed to them thereby, this Court is restricted to the determination of the questions, whether the visitors have acted contrary to those statutes and whether they have exceeded their jurisdiction.
    The above questions are to be determined upon the record of the visitors ; and this Court has no authority to go into a re-hearing of the evidence.
    If a party would impeach the judgment of such visitors on the ground of partiality or corruption, illegal admission or rejection of evidence, or any other decision which would not appear upon the record, it seems that he should make a seasonable demand that the evidence be reduced to writing, in order that it may come up with the record ; or perhaps he should tender a bill of exceptions.
    Where an officer of such institution, being removed by the trustees, appealed to the visitors, whose duty it was to hear the whole case anew, and they affirmed the sentence of removal, it was held, on appeal to this Court, that any irregularity or injustice in the proceedings before the trustees was immaterial, their sentence being entirely vacated by the appeal to the visitors.
    The visitors of such institution are not by law required to conduct a trial before them with open doors, nor to admit more than one witness to be present at a time. A professor in such institution cannot lie tried and removed from office by the visitors, for misconduct, without having the offence with which he is charged “ fully and plainly, substantially and formally described to him.”
    Under the statute of the founders of such institution, authorizing the trustees to remove a professor from office for te gross neglect of duty, scandalous immorality, mental incapacity, or any other just and sufficient cause,” it seems9 that a charge against him of jealousies of the other members of the faculty and want of confidence in his colleagues and in the trustees, unaccompanied with an allegation of actual existing mischief occasioned thereby, is not a sufficient cause for removal.
    So a charge that there is a settled difference of opinion between a professor and the trustees m regard to the arrangement in relation to his department, is not of itself a sufficient cause of removal.
    So, it seems, of a charge that a professor has made representations to another professor unfavorable to the character of a third ; that he has conversed freely with the licentiates and students as to the character and conduct of the other professors ; that he has expressed to them his opinion, that certain laws of the institution were unreasonable and unjust ; that he has discussed with the students subjects belonging to the departments of his colleagues, impugning arguments advanced by them ; and that he has disclosed the proceedings and differences of the faculty in their official meetings.
    On the trial of a charge of misconduct against a professor, the visitors are not obliged to admit his declaration, substantiated by his oath, in explanation of his conduct, though they may do so if they think proper.
    This was an appeal from a decree of the visitors of the Theological Institution in Phillips Academy in Andover, removing the appellant from the office of Brown professor of ecclesiastical history in that institution. The appellant was a professor on the Associate Foundation.
    
      At the annual meeting of the Trustees of Phillips Academy on the 21st of August, 1827, a committee was appointed to ascertain, among other things, whether any violations of the laws of the Theological Seminary had taken place, and to inquire into the measures and conduct of the students and of the faculty, so as to present a full view of the internal state of the Theological Seminary in all essential particulars, suggesting such remedies for any evils which might be found to exist, as to them might seem expedient.
    At a meeting in September, 1827, the committee made a report, and the trustees voted, that in view of the report and accompanying documents, it was the opinion of the board, that the interests of the seminary required that the connexion of Dr. Murdock therewith should be dissolved; and it was therefore voted that he should be requested to resign his office. Unsuccessful negotiations were afterward carried on between Dr. Murdock and committees of the trustees, in regard to the terms upon which he would be willing to resign.
    At a meeting on the 1st of November, 1827, a committee was appointed to consider what further measures the trustees should take in relation to Dr. Murdock, and the committee made a report, recommending the removal of Dr. Murdock for the following reasons : -—
    1. There are in Dr. Murdock’s mind jealousies of the other members of the faculty and of the trustees, and a want of confidence in his colleagues and in the trustees ; out of which evils necessarily grow, tending to the material injury, if not the prostration, of the government of the institution.
    The report then specifies the jealousies alluded to, and for proof of their existence refers to Dr. Murdock’s own statements before the committee of inquiry first mentioned, and it alleges that there is no reasonable prospect that these jealousies could be removed.
    2. There is a wide and settled difference of views between Dr. Murdock and the trustees in regard to the arrangement in relation to his department.
    The report proceeds to state in what this difference consists, and Dr. Murdock is quoted as saying‘that a change in the arrangement is essential to his respectability and usefulness as a professor in the institution. 3. “ Dr. Murdock entertains views respecting the course 0f con3uct proper for an officer in the institution, and has in of these views pursued a course of conduct, in several particulars, wholly inconsistent with the real interests of the seminary. He stated to the committee of inquiry, that in a certain instance he had made representations to one of his colleagues, respecting another, of an unfavorable character, with the design of prejudicing that one against the other, that the former might unite with him in opposition to the other. He has stated that he thinks it proper to discuss with the students subjects belonging to the departments of his colleagues, and in such discussions ■ to impugn the arguments which his colleagues have advanced, and that he has done this. He also stated that he thinks it proper for a professor to converse often and freely with the resident licentiates (who have constant intercourse with the students) and occasionally with the students, respecting the character and conduct of his colleagues, and he has done this. He has expressed to resident licentiates and to students the opinion, that certain laws of the Institution were unreasonable and unjust in their influence. He has disclosed the proceedings and differences of the faculty in their official meetings, in such communications impugning the opinions and acts of his colleagues.”
    4. “ There has been gross neglect of duty in Dr. Murdock, especially during the past year. By the regulations of the trustees adopted in September, 1826, he was required to deliver a public lecture at least every third Wednesday afternoon in the winter term, or nine lectures in as many succes sive weeks ; to deliver private lectures, two in each day, to the senior class, commencing with the summer term, and continuing till a regular and competent course be completed ; and to privately criticize compositions of the junior students, one in each day, during the winter term, and examine and criticize one half of the sermons and skeletons of sermons of the middle and senior classes ; but according to his statement to the committee of inquiry, he did not, during the whole year, criticize any compositions of the junior students, and he examined fewer sermons than were required. He wrote no lectures in ecclesiastical history during the year. He delivered no public lectures during the winter term, and did not commence delivering private lectures in the summer term, till five or six weeks after the beginning of the term, and then but two Iectures in a week, except in one instance, when there were three.’
    The report states, that “the preceding just and sufficient grounds for the removal of Dr. Murdock are furnished by Dr. Murdock’s own statements to the committee of inquiry.” It then sets forth additional charges, which it is unnecessary to state.
    An attested copy of the foregoing report having been trans mitted to Dr. Murdock, that he might have opportunity to make any communications in regard to it, he requested and demanded ; — 1. To be represented and fully heard by his counsel, on his trial before the board of trustees:—2. To have definite, plain and distinct specifications of charges de livered to him : — 3. To have access to the documents, records and other papers of the board and of their commit tees : — 4. To have none but fair and legal evidence received in proof of any of the charges to be brought against him, and that he might not be betrayed or compelled to furnish evidence against himself.
    The trustees voted, that it was inexpedient to permit coun sel to appear personally before them, but that they were not unwilling that Dr. Murdock should have the aid of counsel in preparing any argument or testimony which he might choose himself to present to the board : — That it would not be expedient to disclose to him any documents laid before any committee of the board of trustees, the grounds having already been stated to him on which the board would proceed, when they should act upon the report recommending his removal ; and that they did not intend to resolve themselves into a court, nor to adopt any technical rules or forms.
    Dr. Murdock, in consequence of these proceedings, declined appearing before the trustees to make his defence ; and at a meeting on the 18th of December, 1827, the trustees accepted the report of the committee recommending that Dr. Murdock should be removed from office, and in pursuance thereo passed a vote of removal. From this determination Dr Murdock appealed to the board of visitors.
    A meeting of the visitors, viz. William Bartlett esquire, Rev. Calvin Chapin, D. D. and Hon. William Reed (the Rev. Jeremiah Day, D. D LL. D. being absent), was held at Andover on the 5th of August, 1828. Dr. Murdock appeared, and on his motion Levcrett Saltonstall and John G. King were admitted as his counsel. Samuel Hubbard esquire, Rev. Benjamin B. Wisner, and Samuel Farrar esquire, a committee of the trustees, appeared on their behalf.
    The board having voted, that when they should adjourn, they would adjourn to the 25th of September, Saltonstall moved that in the interim certain minutes and-documents of a committee of inquiry appointed by the trustees, should be submitted to the inspection of Dr. Murdock and of his counsel, and be delivered to them. This being objected to, it was voted, as the opinion of the board, that their authority did not extend to the case contemplated, and that if they had the power supposed by the motion, the exercise of it would not be essential to a just and thorough investigation of the cause before them.
    At the meeting in September all the visitors were present, but Mr. Bartlett was excused from sitting in the case.
    
      Samuel D. Parker was admitted as counsel in behalf of the trustees.
    Dr. Murdock’s counsel moved that the trial should be open to the public. Whereupon it was resolved, “ that the adoption of said motion cannot, in the view of the visitors, contribute to the discovery of truth, and that therefore it is not adopted, — there being no conveniences nor reasons for a public hearing.”
    The counsel of Dr. Murdock produced a certified copy ol the report above recited of a committee of the trustees, and of the votes and decision thereon from which he had appealed ; and they put in an answer of Dr. Murdock, in which he pleads that he is not guilty of the matters charged in the report, and answers specially the several charges and specifications against him
    The trustees put in a replication, in which they allege that Dr. Murdock is guilty of the several charges and specifications, and pray that their decision may be affirmed ; and they annex a transcript of the records of their proceedings relating to their decision.
    The trial then proceeded, and evidence was produced on both sides.
    A motion was made on the part of Dr. Murdock, that all the charges and specifications founded on his own statements before the committee of inquiry, should be dismissed ; for that it was his duty fully, freely and confidentially to disclose to that committee such facts and opinions as he believed the interest of the seminary required, and it was unjust and illegal to make his communications and statements to the committee the ground of charges against him. This motion was overruled.
    A motion was then made on the part of Dr. Murdock, that the four first charges, and the specifications under them, should be dismissed, because the evidence produced by the trustees had no tendency to prove them. This motion was overruled.
    The counsel of Dr. Murdock moved for an adjournment for several weeks, alleging that they were surprised by the evidence and the course of proceeding before the visitors. This motion was overruled, as being very inconvenient and unjustifiable.
    Another motion was made on the part of Dr. Murdock, m which, after reciting that the four first charges and specifications purport to be founded on his own statements, he alleges that the trustees have not offered evidence of those statements, but have given evidence relating to his conduct and conversations during the last nine years ; that this course is a surprise on him; and that evidence has been given of many transactions which can be explained only by himself; and he moves that he may be permitted to make his own statement under oath, and to answer interrogatories. This was objected to by the trustees, on the ground that Dr. Murdock had a direct pecuniary interest in the event of the cause, but they were willing that his own voluntary statement before the committee of inquiry, as well as the whole examination before that comnittee, should be made part of the evidence in the case. This proposition was not agreed to hy Dr. Murdock’s counsel The visitors were of opinion that Dr. Murdock had no right himself to give evidence under oath, and the motion was overruled.
    
      Jan. 2d, 1829, in Suffolk.
    
    On the 14th of October, the visitors determined that the facts set forth in the charges and specifications were proved, except the following :—1. That Dr. Murdock “ has stated that he thinks it proper to discuss with the students, subjects belonging to the departments of his colleagues, and in such discussions to impugn the arguments which his colleagues have advanced, and that he has done this : ” — 2. That he “ has made to resident licentiates and students representations respecting one of his colleagues having intrigued with the students in 1820, to produce among them dissatisfaction with Dr. Murdock : ” — And they affirmed the decision of the trustees removing him from office.
    From this decree Dr. Murdock appealed to this Court, by virtue of St. 1823, c. 50, § 3.
    This statute enacts, that if the visitors of the. Theological Institution “ shall at any time act contrary to the statutes of the founders of said institution, or exceed the limits of their jurisdiction, the party aggrieved may appeal to the Supreme Judicial Court, to be holden within and for the county of Essex, and the said Supreme Judicial Court, which may be authorized to decide questions of law in civil actions, is hereby authorized to declare null and void any decree or sentence of the visitors, which they may consider contrary to the statutes of the founders, and beyond the just limits of the power prescribed to them thereby : provided, however, that nothing herein contained shall be construed to limit or restrain the Supreme Judicial Court from exercising all such jurisdiction in '■elation to said corporation, as by law they might exercise, had not this special provision been made.”
    King, for the appellant.
    The words of the statute of 1823, properly construed, authorize a new trial on the merits of the case, upon an appeal to this Court. Such has been the general use of the word appeal in our statutes, and such is the judicial meaning of the word. Anc. Charters &c. 47, 94, 219, 273, 300; Owen v. Shelhamer, 3 Binney, 45 ; Wel
      
      lington v. Stratton, 11 Mass. R. 396 ; Wiscart v. Dauchy, 3 Dallas, 327 ; Smith v. Harmon, 6 Mod. 143. As to the construction of statutes, see Heydon’s Case, 3 Co. R. 7 ; Magdalen College Case, 11 Co. R. 73; Rex v. Berchet, 1 Show. 108 ; Colehan v. Cooke, Willes, 397 ; Co. Lit. 381 ; Wimbish v. Tailbois, Plow. 57. The general powers of this Court would be sufficient to restrain the visitors from exceeding their juridiction, or acting contrary to the statutes of the founders ; so that this provision is nugatory, unless there can be a rehearing on the merits. It was the intent of the founders that there should be such a remedy for the professors, as will be manifest by comparing the 25th article of the statutes of the Associate Foundation with the statute of the Commonwealth.
    This construction is highly expedient, in order to insure an impartial trial; for the visitors being required to make an annual investigation of the affairs of the institution, their frequent intercourse with the trustees and officers has a tendency to create a bias on their minds. Unless this Court shall hear the parties on the merits, and go into an examination of the facts, it cannot know whether the visitors have acted contrary to the statutes of the founders or not.
    The tenure of the appellant’s office is for life, determinable, not at the pleasure of the trustees or visitors, but on certain misbehaviour specified in the 14th article of the constitution of the Theological Institution; which enumerates as grounds for removal, “gross neglect of duty, scandalous immorality, mental incapacity, or any other just and sufficient cause.” 2 Bl. Com. 36 ; 5 Bac. Abr. 200, Offices &c. H, cites Co. Lit. 42, and Show. Pari. Cas. 161 ; Rex v. Warden of All Souls College, T. Jon. 175 ; Philips v. Bury, 1 Ld. Raym. 5 ; S. C. 2 T. R. 346. The trustees and the visitors have a strictly judicial power, in regard to removal from office, and it is to be exercised according to the statute of the founder. The punishment by removal must be by a judicial sentence; the right of appeal supposes a judicial hearing. 4 Inst. 171 ; Groenvelt v. Burnell, 1 Ld. Raym. 454 ; The King v. The University of Cambridge, 1 Str. 566. “ Other sufficient cause ” means a cause of the like nature and aggravation with those previously specified ; noscitur a sociis. If the visitors then should remove for slight neglect, or other insufficient cause, they would act contrary to the statutes of the founders ; but bow can this Court ascertain the fact of such an illegal removal, except by hearing the whole evidence ?
    But if the Court will not allow the appellant a new trial, they will examine a little into the regularity of the prcteedings before the trustees and the visitors.
    The proceedings before the trustees were irregular and void for several reasons, and should have been so declared by the visitors.
    1. The trustees had prejudged the case, having voted that it xvas expedient that the appellant’s connexion with the institution should be dissolved, before they gave him a copy of any charges against him or an opportunity to be heard. He should have been summoned to appear before them, and have been allowed to malte a defence on the law and the facts. Rex v Chancellor &c. of Cambridge, 2 Ld. Raym, 1334.
    
      2. The charges ought to have set forth statutable offences, and those clearly and fully, with place and time, and per sons ; not with technical precision, but plainly and substantially. No such offence has been charged in the manner requisite.
    3 The trustees refused to let the appellant be heard by his counsel. The 12th article of the Declaration of Rights, providing that every subject called to answer for any offence, shall be heard in his defence by himself or his counsel, at his election, should seem to embrace all cases where a man is to be deprived of his civil rights ; at any rate, the reason of the provision applies in the present case. It is no answer to say that the trustees are not a court; they have mixed powers, executive and judicial, and they exercise one or the other, according to the subject-matter before them. 12 Howell’s State Trials, 28.
    4. The appellant was refused access to certain papers, which were said to contain evidence of his guilt, and which he was entitled to examine in order to prepare for his defence.
    5. The manner in which the trustees procured the confessions of the appellant was improper and illegal, and all the charges and specifications founded upon them ought to have been rejected. The appellant was obliged to make his confidential statements to the committee of inquiry into the general state of the institution; otherwise he would have been punishable for contumacy ; and the use made of those statements was unfair and such as the appellant had no reason to anticipate.
    The charges of the trustees were founded wholly on these statements and on evidence to which the appellant had not access.
    The proceedings before the visitors were illegal and void.
    1. They refused to have the trial in open court; which is contrary to the practice of all other judicial tribunals.
    2. The charges were not sufficient. The three first are objectionable : — 1. Because they show no statutable cause of removal from office; —2. Because they (as well as the fourth) are founded on the appellant’s confessions to the committee of inquiry ; — 3. The offences are not laid with sufficient definiteness, nor with certainty of persons, time and place.
    3. Evidence was admitted which had no tendency to prove the charges as laid. Evidence was admitted of acts not set forth in any of the specifications of charge.
    4. The appellant should have been permitted to make his own statements under oath. The principal witnesses against him were three other professors, and their testimony related to altercations between them and the appellant, and the only way in which the appellant could explain and meet their statements was by making his own under oath.
    5. Hubbard and S. D. Parker, for the trustees.
    As a matter of practice, it seems to be proper that the appellant should have drawn up his reasons of appeal and served them upon the trustees, as in the case of probate appeals. We do not however make the omission to do this a ground of objection to the present appeal.
    The statute of 1823 allows an appeal to this Court in two cases only ; one, where the visitors act contrary to the statutes of the founder, the other, where they exceed their jurisdiction. In determining whether either case has happened, the Court must be confined to the record which is before them. No pro vision is made for a trial of facts before this tribunal. The appeal is made to it as a court of law. No provision is made by the statute, for the preservation of the evidence, and unless the same evidence precisely is laid before this Court, which was produced before the visitors, this Court cannot de'ermin whether the inferences drawn from it by the visitors were just, or otherwise. The power of the visitors is great, and so fat as it is not restricted by the statutes, is final. The Court of King’s Bench will not inquire whether visitors have come to a wrong conclusion from the evidence, and this Court will not consider their power in this respect to be greater than that of the King’s Bench. Philips v. Bury, 2 T. R. 347. The question must be, whether, assuming the record to be true, the visitors have exceeded their jurisdiction, or acted contrary to the statutes of the founder. Whether the appellant has been removed for gross neglect of duty or for other sufficient cause, appears by the record itself, which sets forth the causes of his removal. The Court do not need the evidence produced at the trial, to enable them to determine this point. The record is like a special verdict, in which the jury do not detail the evidence, but the facts as proved. If the visitors have acted contrary to the statutes of the founder, it must be because the facts stated in the record will not sustain their sentence. The suggestion that there ought to be a hearing of the evidence upon the appeal, because from the duties to be performed by the visitors they must be liable to partiality, seems entitled to but little weight. It is a wise provision that they should examine into the condition of the institution once a year, and no good reason can be given why this should make them favor one party rather than another. The only motive for their conduct must be the general welfare of the institution. It has not been intimated that there was actual partiality in the present instance.
    To show the powers of the visitors, they referred to the statutes of the Associate Foundation, article 20 ; and in regard to the powers of the trustees, to the Constitution of the Theological Institution, articles 13, 14, 16, 31, and to the statutes of the Associate Foundation, article 3. See ante, D. 304, note.
    From the provisions referred to it appears, that the pro fessors and students are under the inspection of the trustees ; and the trustees may remove them at discretion, without a judicial trial, or even notice of any charges being made against them, stating however the reason of the removal. The remedy in such case for a party aggrieved, is by appeal to the visitors. If the professor can insist upon notice, the student may likewise. They stand on the same ground, and the statute of 1823 applies to one as much as to the other.
    It is objected that the trustees had prejudged the case. That does not appear by the record. They vote that it is expedient that the appellant’s connexion with the institution should cease, but they do not found the vote on any charges against him, and they offer him terms of compromise, which he rejects. This they certainly had a right to do.
    The objection that the trustees and the visitors refused the appellant’s request, to have access to the files of the trustees, is of no validity. A man indicted may as well insist upon seeing all the evidence which was laid before the grand jury.
    The trustees might well refuse to organize themselves as a court of law, and to allow a hearing by counsel. They were the accusers. They had no right to administer an oath.
    They may remove on inspection, as guardians of the institution. The appellant might as well have demanded that they should summon a jury, as that they should admit counsel.
    But suppose the trial before the trustees to have been entire ly wrong, the fact is immaterial, The objections of the appellant should be confined to the doings of the visitors.
    These proceedings are said to have been irregular, because they were not had with open doors. To have admitted spectators would have been inconvenient and embarrassing, as well to the parties and their counsel, as to the visitors. The visitors have no officers and could not commit for contempt any individual who should make a disturbance. Nor was it the intention of the founders or of the legislature, that the internal concerns of this private eleemosynary corporation should be public, any further than they become so upon the appeal to this Court. The founders reposed confidence in the integrity of the visitors.
    
      The charges are set forth in plain intelligible language. At any rate, the objection of vagueness does not apply to the charge and specification of gross neglect of duty ; so that there is enough on the face of the record to justify the removal. The tenure of the appellant’s office was not fot life or during good behaviour. Mental incapacity is enumerated in the constitution of the seminary among the causes of removal, and we contend that “ any other just and sufficient cause,” embraces whatever, in the judgment of the visitors, renders a man unsuitable for a professor. The words should have an enlarged construction for the benefit of the institution The intent of the founders may be gathered from other statutes drawn up by the associate founders, in which “ misbehaviour, heterodoxy and neglect of the duties of his office,” (not gross neglect,) are specified as causes for removal.
    The trustees made use of no improper mode of getting evidence against the appellant. There is no case in which a man’s confessions may not he used as evidence against him, unless where they are extorted. The trustees were bound to make a general inquiry into the condition of the institution, and if a professor, when called before them, refuses to answer proper questions, he will be guilty of contumacy. Or if a question is put implicating his own character or conduct, he should stand upon his privilege. The appellant’s statements before the committee of inquiry were voluntary. It was the duty of the trustees to make use of such information as he disclosed, and if he stated things against himself, it is his misfortune. Though the charges however were founded on the appellant’s confessions, those confes sions were not used in evidence against him on the trial be fore the visitors.
    Saltonstall, in reply,
    said that the word appeal is taker.from the civil law ; in which system of jurisprudence an appeal admits the parties to a ful. hearing upon the merits of the case. That the evidence may be different on the rehearing, furnishes no ground of objection to going into the evidence. Hall’s A dm. Pract. 101. The proviso in the statute of 1823, shows that something is meant by appeal, more than the visitatorial power which this Court would have <n virtue of its general jurisdiction. Dartmouth College Case, (by Farrar,) 138, 352.
    In a trial of this sort, the trustees and visitors exercise judicial power. 2 T. R. 336, 348 ; Dartmouth College Case, 369. Because the trustees are accusers, it does not follow that there may not be a trial before them. They may, on such an investigation, be satisfied that the charges are groundless.
    The trustees must remove only on the 14th article before referred to. They are not to look to the provisions relating to the visitors. If the visitors should think an officer ought to be dismissed for a less offence than gross neglect, &c. it is sufficient to say that their jurisdiction is more ample than that of the trustees. None of the charges, except the fourth, are of such a nature as to justify a removal by the trustees.
    
      
       In 1807, Phebe Phillips, John Phillips junior and Samuel Abbot made donations to the trustees of Phillips Academy, to be applied for the use and endowment of a public theological institution in the academy, and they established a constitution of the Theological Seminary, of which some of the provisions are as follows : —
      The 13th article requires that a prescribed declaration of faith shall be repeated by every professor in the seminary, in the presence of the trustees, at the time of his inauguration and at the expiration of every successive period of five years ; and that no man shall be continued a professor, who shall not continue to approve himself, to the satisfaction of the trustees, a man of sound and orthodox principles of divinity, agreeably to the system of evangelical doctrines contained in the Westminster Assembly's shorter catechism; and that if at any meeting regularly appointed, it should he proved to the satisfaction of a majority of the whole number of the trustees, that any professor has taught or embraced any of the heresies or errors alluded to in the declaration, or should he refuse to repeat the declaration, as above required, he shall be forthwith removed from office.
      Article 14th. “ Every professor in this institution shall be under the im mediate inspection of the said trustees; and by them be removed, agreeably to the will of his founder, for gross neglect of duty, scandalous immorality, mental incapacity, or any other just and sufficient cause.”
      The 16th article empowers the trustees to assign to the professors their respective departments of instruction, the times for reading their lectures, and their several public and private duties.
      Article 31st. “ All professors, officers and students in this seminary, and all other persons employed in its service, together with the lands, buildings, library, funds, and other property, thereto belonging, shall be under the immediate inspection and government of the trustees aforesaid; and be regulated and managed by them in strict conformity to this constitution, and to the statutes and will of every founder of a professorship, or benefactor of this institution. And the said trustees are hereby authorized and empowered to make such additional regulations (not inconsistent with the regulations established in this constitution, nor with the statutes or will of any founder or donor, nor with the object of this institution, nor in any degree avoiding them or either of them) as they in their wisdom shall deem necessary to give the fullest efficacy to these provisions, or to the consistent provisions of future benefactors ; whether such regulations may relate to the conduct of the professors, the government of the students, their various duties and exercises, their lodging and diet, the prevention and punishment of offences, the preservation of health, the promotion of order, peace and harmony, to the safety of the buildings, or to the security of the funds, which last are to be effectually guarded against all loss and diminution; in a word, to do every thing, under the foregoing limitations, which, upon serious and mature deliberation, may appear to them necessary to secure and promote the true object of this institution.”
      The 32d article declares, that every founder of a professorship, scholarship, or any other living whatever, in this institution, will have the exclusive right of prescribing the regulations and statutes, to be observed by the trustees in conducting the concerns of the same, said regulations and statutes being always consistent with the principles and object of this institution.
      Afterward, Moses Brown, William Bartlett and John Norris made dona tions to the trustees of Phillips Academy, to be applied in part to the maintenance of two professors in the Theological Institution; and these donors established 1 The Statutes of the Associate Foundation in the Theological Institution,’ dated March 21, 1808.
      In the preamble to these statutes it is declared, that the professional duties of the two professors shall be assigned according to the Constitution of the Seminary, in such manner as shall most directly and effectually promote the great object of the institution.
      The 2d article prescribes a declaration of faith, to Be made by every professor on this foundation, on the day of his inauguration; and by the 3d article it is provided, that this declaration shall be made by him at the expiration of every successive period of five years; and that no man shall be continued a professor on this foundation, who shall not continue to approve himself a man of sound and orthodox principles in divinity agreeably to this creed.
      In the 12th article, Caleb Strong Esquire, the Rev. Timothy Dwight, D. D. and the Rev. Samuel Spring, D. D., with their successors, are constituted a perpetual board of visitors of this foundation ; which board is to consist of two clergymen and one layman, all of whom are to be men of distinguished talents and piety; and the right of visiting in connexion with this board, is reserved to the three associate founders, and conferred upon Samuel Abbot, during their lives. By the 13th and 19th articles the visitors are authorized and required to supply vacancies in the board.
      Article 20th. “ The power and duties of the board of visitors thus constituted and organized, shall be as follows; namely, to visit the foundation once in every year, and at other times, when regularly called thereto ; to inquire into the state of this our fund, and the management of this foundation, with respect both to professors and students to determine, interpret, and explain the statutes of this foundation, in all cases brought before them in their judicial capacity; to redress grievances, both with respect to proféssors and students; to hear appeals from decisions of the board of trustees, and to remedy, upon complaint duly exhibited in behalf of the professors or students; to review and reverse any censure, passed by said trustees upon any professor or student on this foundation; to declare void all rules and regulations, made by the said trustees, relative to this foundation, which may be inconsistent with the original statutes thereof; to take care, that the duties of every professor on this foundation be intelligibly and faithfully discharged, and to admonish or remove him, either for misbehavior, heterodoxy, incapacity, or neglect of the duties of his office; to examine into the proficiency of the students, and to admonish, suspend, or deprive any student for negligence, contumacy, or any heinous crime, committed against the laws of God or the statutes of this foundation; and in general, to see that our true intentions, as expressed in these our statutes, be faithfully executed; always administering justice impartially, and exercising the functions of their office in the fear of God, according to the said statutes, the constitution of this seminary, and the laws of the land.”
      The 25th article provides, that if the visitors shall “ act contrary to these statutes, or exceed the limits of their jurisdiction and constitutional power, the party aggrieved may have recourse by appeal to the justices of the Supreme Judicial Court, for the time being, for remedy; ” who are authorized “ to declare null and void any decree or sentence of thd said visitors, which upon mature consideration they may deem contrary to the said statutes, or beyond the just limits of their power, herein prescribed; and by the said justices of the Supreme Judicial Court, for the time being, shall the said board of visitors at all times be subject to be restrained and corrected in the undue exercise of their office.”
      By ‘ Additional Statutes ’ of the original founders of the Theological Institution, bearing date May 3, 1808, similar provisions are made in regard to a board of visitors of their foundation, and the same persons are appointed visitors; and by these Additional Statutes, taken in connexion with the Statutes of the Associate Foundation, provision is made for a perpetual coalition in the visitatorial system of the two foundations Reporter.
      
    
   The opinion of the Court was afterward drawn up by

Parker C. J.

This case comes before the Court by appeal from the board of visitors of the Theological Institution at Andover, who, on the 14th of October, 1828, confirmed the sentence of the trustees of the institution, removing the appellant from his office of professor of ecclesiastical history.

The authority of this Court to sustain this appeal is given by St. 1823, c. 50, and must be limited to the cases therein specified; for its general jurisdiction, as established by the legislature by St. 1782, c. 9, would not extend to this case in the form now presented, though by the terms of that statute and the preceding one of 1780, c. 17, whatever power was exercised, by the highest tribmial of common law jurisdiction in England, or in the province of Massachusetts Bay, before the adoption of the constitution of the State, was vested in the Supreme Judicial Court of the Commonwealth ; which might, according to the principles of the common law, and the provisions of our statutes, correct all errors of law happening in the proceedings of all inferior tribunals, but in the exercise of this power would, in regard to process, necessarily conform to the express provisions of the statute, or to the practice of the courts of common law in England, under the general authority given in the statute Writs of error, prohibition, certiorari and mandamus, are the processes known at the common law and recognised in the statute. An appeal, in the sense of the term as gen erally used in our statutes, which is a re-hearing, of the whole cause, matter of fact as well as law, after it has been decided by a court of competent jurisdiction, is an anomaly arising from analogy to civil law and admiralty proceedings, and therefore does not exist in a court of common law jurisdiction, unless expressly given by statute. Still the word is so naturalized in our State jurisprudence, and in the common proceedings under the appellate power is so familiar in practice, that a legislative act giving an appeal generally from any special or inferior tribunal to the Supreme Judicial Court, would undoubtedly be construed to give an authority to re-hear the whole cause upon its merits in regard to the facts as well as the law; but when the statute which grants the appellate power, limits the operation of it to specific subjects, this Court has no power to transgress the limits assigned by the statute.

Upon the first question therefore presented by the counsel for the appellant, we are all of opinion that we are restricted by the statute under which we act, to the consideration of two particular subjects arising out of the proceedings of the board of visitors.

1. Whether they have acted contrary to the statutes of the founders of the institution.

2. Whether they have exceeded the limits of their jurisdiction.

By a proviso to the 3d section of St. 1823, c. 50, all the power which the Court has by virtue of the common law, or the general statutes of the Commonwealth, is continued and preserved in full force; so that considering the authority before existing to correct and reverse the decrees and proceedings of all inferior tribunals and jurisdictions, by the various judicial writs which have been mentioned, or by action in favor of any party who may be injured by their doings, perhaps the form in which relief is to be administered under this statute constitutes the chief difference between the authority of this Court as it now exists, and as it existed before the enacting of the statute. Under either of the antecedent forms, we think it would not be competent to the Court to correct any supposed error of judgment of the board of visitors, on evidence touching any case decided by them on which it was clearly within their jurisdiction to act, and in acting upon which they had not violated any of the statutes of the founders ; for by the common law, the visitors of a corporation. appointed by the founders, are supposed to have committed to them the sole and exclusive right of judging upon such matters without any review or appeal, and it would be violating the rights of the founder, as expressed in the instrument by which he creates the trust, to substitute any other tribunal in their stead.

The doctrine upon this subject is most clearly and satisfactorily explained by Lord C. J. Holt, in the celebrated case of Philips v. Bury, reported in 1 Ld. Raym. 5, but more at large from the manuscript of Lord Holt, published in 2 T. R. 346.

Thé doctrine thus laid down was sanctioned by the House of Lords, and from that time has been received and acted upon as undisputed law in England, and without doubt is the common law of this land so far as it has not been altered by the statute before cited. Chancellor Kent, in his valuable Commentaries, vol. 2, p. 240, [3d ed. 300, et seq.J, “ Of the Visitation of Corporations,” considers the common law of England in regard to this subject, as the law of this country, and it undoubtedly is, with the exception before mentioned; and such appears to have been the opinion of the Supreme Court of the United States in the Dartmouth College Case, 4 Wheat. 518.

By that law the visitor of all eleemosynary corporations is the founder or his heirs, unless he has given the power of visitation to some other person or body, which is generally the case ; and to the visitor thus constituted belongs the right and power of inspecting the affairs of the corporation and superintending all officers who have the management of them, according to such regulations and restrictions as are prescribed by the founder in the statutes which he ordains, without any control or revision of any other person or body, except the judicial tribunals by whose authority and jurisdiction they may be restrained and kept within the limits of their granted powers, and made to regard the constitution and ■ general laws of the land.

It was with a view to this power of the Supreme Judicial Court, probably, that the founders of the two institutions which are now united, provided in their constitutions for an appeal to this Court from the decisions of the visitors, and that the legislature sanctioned these provisions by the statute under which we are acting. By appeal, the final question of the validity of the doings of the board of visitors can be sooner determined, and at less expense, than on mandamus or other process of the common law. Besides which, it was probably thought more fit and proper that a decree for removal from office should be held in suspense until the ultimate decision should be had, than that a vacancy should instantly take place upon the decision of the initiatory forum, the trustees, or even of the board of visitors, so that a restoration should become necessary perhaps after the place had been filled by another person. But it cannot be inferred from the use of the term appeal, accompanied as it is by the restrictive words, by the founders in their constitution and by the legislature in the statute, that this Court is to try the whole merits of a case, and overrule the judgment of the visitors in a matter clearly within their cognizance, for this would be to make this Court the general visitors of the corporation, instead of the visitors themselves appointed by the founder, against all the principles which relate to and regulate these eleemosynary establishments.

The founders themselves appear to have well understood, probably having acted under sound legal advice, the difference in effect between a general and a limited appeal; that under the former, as given to the visitors from the decisions of the trustees, there was to be a full revision and investigation of the whole matter of evidence as well as law ; that under the latter, as given to the Court, the inquiry was to be confined to the legal questions of jurisdiction and conformity to statutes. This distinction is well established in the 10th article of the additional statutes for the theological seminary compared with the 12th, and with the 20th of the Associate Theological Institution.

By these different provisions the trustees are invested with authority, in the first instance, to supervise the concerns of the institutions, and the conduct of the professors and students, and to this body is given the power to remove such of the former as may be exposed to the penalties established by the statutes of the founders. So that this body has visitatorial powers to the extent given to them by these statutes. A general appellate power is given to the body denominated the board of visitors, who have also original authority concurrent with that of the trustees as to most of the subjects committed to their charge. When sitting under their appellate jurisdiction, they are required to revise the doings of the first board, and may affirm or annul them at their pleasure, inquiring into all the facts and hearing all the evidence which may appertain to any question so brought before them.

From that body lies the appeal to this Court, but in a specific and limited degree, as expressed in the act of the legislature ; for should the appellate power granted in the constitution or statutes of the founders admit of a construction more extensive than the duty which is imposed by the legislature, the Court would be restricted by the latter, as it cannot take jurisdiction from any other authority than the law of the land.

It is thus manifest that we cannot go into a hearing de novo of the allegations and defence, or of the evidence adduced in support of either, but are only to inquire, in the words of the statute, whether the visitors have exceeded the limits of their jurisdiction, or have acted contrary to the statutes of the founder ; which perhaps is the same thing in another form of expression, because if they violate the statutes, they act beyond the limits of their jurisdiction.

And the subject-matter of the complaint entertained and decided by the visitors, was clearly within the limits of their jurisdiction, if the charges made against the professor were such as by the statutes are made the cause of removal from office, because the adjudication on such complaint belongs to the visitors upon the appeal from the trustees, by the express terms of the statute. Now the causes which justify, and even require a removal, are scandalous immorality, mental incapaci- ^ gross negligence, or any other just and sufficient cause. Whether under this latter designation, in such general terms, it was intended to give authority to deprive a professor on account of any defect of character or manners, which, though not amounting to immorality or negligence of duty, might nevertheless impair the usefulness and success of the institution, such as proneness to jealousy, discontent or querulousness of temper, need not be determined by us ; for one of the ostensible grounds of removal, by the visitors at least, was gross negligence of duty; and they profess themselves, in their adjudication, to have been fully satisfied by the evidence, of the truth of this charge ; and whether that evidence was sufficient to produce such a result, was for them, and not for us, to determine. There is nothing in the case before them, if rightly brought there, which shows that they exceeded the limits of their jurisdiction, or acted contrary to the statutes ; the statutes themselves requiring them to remove for the cause which they have found to exist.

But it is urged with considerable force, that these judges may have been prepossessed, prejudiced, or partial, owing to their connexion with the institution, and their natural leaning towards the trustees on any question between them and an accused officer, and therefore that this Court ought to re-hear the whole case, to prevent injustice from taking place.

The same objection may be made to the members of every tribunal; they'may be prejudiced and partial. The only security against this is the honor and dignity of the station, the solemnity of the trust, the selection of those who are to fill these high places. Confidence must be reposed somewhere. The laws place it in the tribunals of justice, and the founder of charitable institutions in those whom he appoints to superintend and visit them. It is possible that jurors may be partial or corrupt, but no one will say that, because of this possibility, tne facts of a cause should be tried by the court. If partiality or corruption be proved, the court has authority to annul their verdict; and so in this case, if it had been proved that the visitors had been partial or corrupt, they would have violated the spirit of the statutes by which they are required to a drainjster justice impartially and exercise the functions of their office in the fear of God, according to the said statutes, the constitution of the seminary, and the laws of the land. See 20th article of the statutes of the Theological Institution.

But in order for this Court to judge whether there has been any such violation of the statutes, they should have before them the evidence on which the visitors acted, and not that which may be produced on a re-hearing, for this may be more or less than was given before the visitors ; and even the same witnesses, at another examination, may so vary their information as to make it impossible to ascertain whether the judgment of the visitors was sound or unsound, partial or upright, on the evidence before them. Therefore it follows, that if parties arraigned before the visitors shall intend to impeach their judgment on the ground of partiality or corruption, they must seasonably demand that the evidence be reduced to writing, that it may come up with the record, or perhaps by analogy to the proceedings in civil actions where it is intended to apply by writ of error to reverse a judgment, they should tender a bill of exceptions to any opinion or order of the board, and require that it be authenticated by the presiding member of the board, so that in case of rejection or admission of evidence contrary to law, or any other decision by which the accused may be aggrieved, this Court should have the means of detecting and reversing any erroneous opinion. And in this respect perhaps the authority of the Court under the statute, is broader than it would be at common law ; for without doubt, any such erroneous opinion would be contrary to the spirit of the statutes, which require that the visitors shall in their proceedings be governed by the laws of the land. In such cases so presented, if it should appear that there was an entire want of evidence to support the accusation, or a gross misapplication of it, partiality would be inferred, for it would be presumed that it was not owing to want of capacity in those who are intrusted with so high a duty. A palpable error in matter of law would be a ground of reversal, because contrary to the statutes, and a perversion of the evidence would require the same result, because it would show partiality in the trial; but merely on the ground, that in the opinion of this Court, the visitors formed an incorrect judgment, we could not inter* fere- A due regard to the rights and Interests of those who are placed under the superintendence and control of judges constituted as are the visitors of charitable institutions, requires this degree of protection by courts of justice ; hut further than this the laws do not interfere with such bodies. Those who accept places of trust and profit in such institutions are presumed to know the tenure of their office, which, though during good behaviour, is nevertheless to be forfeited upon the honest judgment of the constituted tribunal, that they have ceased to behave well in the sense attributed to the term by the founders of the charity. And, therefore, though hard cases may arise, they are without redress, if those who pronounce the decree of deprivation, have a proper case to act upon, and act upon it with due regard to the statutes of their institution.

Confined therefore as we are to the record which is before us, we are to see whether in that there is any such material error as will warrant us in reversing the final decree.

Various errors have been pointed out and commented on elaborately, and with great learning and ingenuity, by the counsel for the appellant.

In regard to what occurred before the board of trustees generally, as to the form and manner of their proceedings, — their supposed prejudgment of the cause, having voted that it was expedient to remove, before a hearing or notice of the accusation was given,— refusing access to files and papers, —refusing to allow counsel, — the manner of procuring the confessions of the accused, which were used in evidence against him,— whatever irregularity there may have been in any or all of these particulars, we think it unnecessary to inquire, because the appeal entirely vacated the sentence of the trustees and brought the case before the visitors, whose duty it was to hear the whole case anew, without prejudice from the previous proceedings. Had the law allowed an appeal direct from the board of trustees, without the intermediate cognizance of the visitors, or without such appeal, could there have been an application for a mandamus, or an action at common law for the salary, which we think, on account of the right of appeal, there could not, the objections made to the proceedings before the trustees would have required very serious consideration, and if sustained, would have been fatal to the result to which they came.

But the constitution of the founders is grounded upon the supposition, that irregularities may take place before, and even injustice be done by the trustees, who from their immediate connexion with the institution may not in every instance be the most impartial judges between themselves and any professor with whom a controvery may arise, they being necessarily, in pursuance of their duty as inspectors, accusers as well as judges ; and for this reason an appeal was given to a board more removed from local and other interests, and presumed to be under no influence but that of a strict regard to justice and the permanent interests of the institution. The opinion and sentence of the trustees ought not to have, and therefore must be presumed not to have had, any undue influence upon the minds of the appellate tribunal.

The analogy which this trial bears to the course of proceeding in our ordinary courts of justice on appeals, as established by statutes, is obvious and strong. Nearly all causes between party and party which are cognizable by the Supreme Judicial Court, come here by appeal from the Court of Common Pleas. They are tried without any reference to any antecedent trial. Whatever irregularities there may have been in the original forum, they do not impede the course of proceedings in this Court. If there were erroneous opinions and decis‘ons, or even if it could be made to appear that there was partiality or prejudice in the court or jury, or if a party should not be allowed a fair and full hearing, the remedy for all these defects is the appeal ; and the aggrieved party has the same standing in court and the same privileges as he would have had, if there had been no previous trial. It is so with the hoard of visitors. They are bound, on appeal, to hear the cause de novo and without any regard to antecedent steps, except that the cause shall be regularly brought before them.

If from the peculiar nature of these tribunals, there should be a weight attached to the known opinions of the original tribunal, that is a defect which cannot be cured, unless it be so palpable as to show partiality or pre-judication in the board, or the members of it, to which the final jurisdiction "s given.

Was there any thing erroneous then in the proceedings of the visitors themselves ? For this is the point we are necessarily brought to, in the consideration of this subject.

First, it is alleged as a sufficient ground of reversal, that the board of visitors refused to conduct the trial with open doors, or to admit any persons within the room in which their sittings were held, but those who were engaged in the trial, and not even the witnesses, except one by one as they were examined. Whether this was discreet or not, we are not called upon to say, but only whether it was erroneous in point of law. No authority has been cited, nor have we found any which shows that these peculiar tribunals are obliged, under all circumstances, to administer their functions in the face of the public. We should be at a loss for authority in books, upon which to require even that courts of law should at all times and under all circumstances be under the necessity of admitting all the world. Our constitution and declaration of rights do not require it, though we think the usage of the country, and the vast importance of publicity of trials, would impress upon the mind of any judge the extreme impropriety, if not hazard, of shutting out spectators upon any occasion. Privacy in transactions of a public nature, and especially where the important interests, or the reputation of any citizen is involved, is with many, proof, with all, ground of suspicion, that the proceedings would not bear the fight. The visitors took upon themselves great responsibility in adopting this course, but, we are bound to suppose, had satisfactory reasons for it. At any rate, considering the presence and full hearing of able counsel, we cannot suppose any inju rious effect has happened to the appellant from this cause. We cannot for this reason annul the proceedings.

Secondly, it is alleged that the articles of charge are not sufficiently definite and particular ; and this would be a material objection, if sustained by the record ; for we hold that by analogy to trials on criminal accusations in courts of justice, and the principles of the constitution, no man can be deprived of his office, which is a valuable property, without having the offence with which he is charged, “ fully and plainly, substantially and formally described to him.” This enters so essentially into the justice of the case, and into the character of a fair trial, that it ought never to be dispensed with. Without it, the party charged does not know what to defend against; nor can another body, to which there may be an appeal, ascertain the applicability or the effect of the evidence

We do not however find the defect in the proceedings, on which this objection is supposed to rest. In the report of the committee of the board of trustees, which may be considered in the light of a complaint or indictment upon which the appellant was to be tried, there are four original charges which seem to be sufficiently specific, if in their nature they amount to a sufficient cause of removal. With respect to the three first, they are of so indistinct a character, that they hardly wear the appearance of offences, being the effect, if true, rather of constitutional infirmities of temper and disposition, than of perversity of mind or criminal intention.

1. Jealousies of the other members of the faculty, and want of confidence in his colleagues and in the trustees, may be consistent with upright views and with a faithful discharge of duty. Without doubt evils may grow out of such a state of mind tending to the material injury of the institution and the prostration of its government,” as the committee state in their report. But the possibility of such evils might not be a sufficient cause for removal, for advice and admonition might appease the feelings and remove the jealousies from which evils are only expected to flow. We should doubt whether this charge, unaccompanied by án allegation of actual existing mischief, would be a sufficient ground of removal, even within the authority supposed to be- given under the general terms of other just and sufficient cause.”

2. The second charge is, that there is a settled difference of opinion between Dr. Murdock and the trustees, in regard to the arrangement made in relation to his department.

If this matter rests only in opinion, it surely is not an of-fence for which he could be deprived of his living. If in consequence of such difference, the duties of his department should have been neglected, or he had refused to execute of the trustees in relation to it, the opinions might be evidence of the motives and objects of the omission, but of themselves could not sustain a decree of removal. Nor would the declarations of Dr. Murdock, that his professorship would be of no use while the arrangement of the trustees remained, be a specific ground of accusation, if he continued his functions and endeavoured to be as useful as circumstances would admit.

3. The third charge is of a similar character, and if it had been wholly made out to the satisfaction of the visitors, standing alone or in company with only the preceding charges, we apprehend the board would have thought that friendly and paternal advice, or at most, severe admonition, would have been preferable to the exercise of that final act of power which separates the accused from his associates and deprives him of his living.

4. The fourth original charge, however, is direct and unequivocal, and in the very words of the founders, as a cause for removal from office. It is gross neglect of duty ; and the facts and circumstances are stated which go to justify the charge. •

These facts and circumstances, if proved to the satisfaction of the visitors, and not excused or explained, amount to the offence charged and warrant their final decree. From the explanation given by Dr. Murdock in his written answer to this charge, others might be of opinion, were they sitting as judges of the facts, that if not an excuse, much extenuation appeared. But the evidence is not before us. We have not the authority, or ‘the inclination, to form an opinion. The subject-matter was before the proper tribunal ; they are presumed to have decided “ in the fear of God, and according to the statutes of the founder, the constitution of the seminary and the laws of the land.” No legal exception is taken to their proceedings in this particular. The consequences of their opinion on the vital interests of a respectable officer of the institution, were before them. We should usurp an authority not given to us by the law, were we to interfere with or obstruct their decision.

It is wholly unnecessary to consider the additional charges «gainst which objections have been made, the one last considered being sufficient and conclusive in its nature.

It was objected that illegal and improper evidence was admitted to prove the charge of negligence, but the record does not show what the evidence was which is complained of, and it Is denied that any such was admitted.

It is also objected, that the visitors refused to admit the statement of Dr. Murdock in explanation of his conduct, which he was willing to substantiate by his oath; but in this they acted according to the strict rules of law, which rejects the declarations of a party ; though it was within their discretion to have admitted it, had they seen fit.

Having taken a view of the whole ground, and considered all the points submitted to us by counsel, we are satisfied that nothing has been made to appear wherein the visitors have exceeded the limits of their jurisdiction, or acted contrary to the statutes of the institution, and therefore that this appeal must be dismissed and the sentence of the visitors stand in full force.

Decree affirmed. 
      
       See Revised Stat. c. 81.
     
      
       See Garnett v. Ferrand, 6 Barn. & Cressw. 611.
     
      
       See Murdock v. Phillips Academy, 12 Pick. 244; Dutch Ref. Church in Albany v. Bradford, 8 Cowen, 457; Allen v. M’Keen, 1 Sumner, 276.
     