
    Aaron Greene versus The First Parish in Malden.
    Repairs made by the minister of a parish upon the parsonage-house during his occupation of the same are not, merely by virtue uf his parochial relation, a legal charge upon his parish ; and where, after the dissolution of his ministerial relation, the parish voted to reimburse him the expense of repairs made by him without their request, it was held that the vote was not binding as a promise, the consideration, if there was any, having been executed before the vote was passed, and the parish having no authority to incur debts not founded on a beneficial equivalent.
    Assumpsit. The parties stated a case.
    The plaintiff was duly ordained and settled as minister of the First Parish in Malden, on September 30th, 1795. On June 1st, 1795, the parish voted that he should receive for his salaiT 100Z. annually, so long as he should continue in the ministry in that place ; that he should have the use of the parsonage during that time ; that he should have 60Z. settlement, to be paid in three months after his ordination ; and that he should have twenty cords of wood, if needful, annually.
    The plaintiff continued minister until the following proceedings were had.
    On June 18th, 1827, the plaintiff requested, in writing, a dissolution of his ministerial connexion with the parish. On July 9th, 1827, the parish voted to grant his request. They also chose a committee to supply the pulpit, until the next annual meeting in March 1828.
    At a meeting on August 1st, 1827, a communication was received from the plaintiff, stating the doings of the church on July 17th, 1827, granting his request for a dissolution of his pastoral connexion, and it was voted to concur with the church in their doings on this subject. It was also voted that the parish committee should be a committee to make arrangements for the dismission of the plaintiff, and that they should have authority to settle with him, and to sign any letter which they might think proper, as a testimonial of the respect of the parish for the plaintiff.
    At a meeting on December 26th, 1827, the committee reported, that if the parish would agree to pay the plaintiff his salary for the year ending September 1827, provide him with necessary fire-wood until April 1st, 1828, and allow him to occupy the parsonage until that day, he would on that day leave the parsonage to the future disposal of the parish ; that they had examined the plaintiff’s account for repairs of the parsonage-house, and that they were necessary, and the charges reasonable, and that they were paid by the plaintiff.
    At a meeting on March 20th, 1828, a committee was chosen to supply the pulpit. It was voted to pay the plaintiff the amount of the salary due him up to September 1827 ; to charge him no rent for the parsonage up to April 28th ; to charge him nothing for four cords of wood received by him during the past winter ; and to pay the whole of his demands in his accounts rendered, being $ 503. The plaintiff attended, and read his account to the meeting, and explained it before the vote was passed.
    The plaintiff left the parsonage and removed from the town of Malden on April 3d, 1828. He did not preach or supply the pulpit after July 16th, 1827. On August 8th, 1827, an ecclesiastical council, called by the plaintiff and his churchy voted that the proceedings of the plaintiff, his church and the parish, relative to his dismission, were regular and necessary, and that his pastoral relation to the church and parish be dis solved
    In 1815 the parish passed certain votes in regard to repairing the parsonage-house, and appointed a committee to cause repairs to be made. The house was repaired under the direction of the committee, according to a contract made by them in behalf of'the parish, at an expense of $ 1000. The plaintiff expressed to the committee a wish to have some further expenditures made, which the committee declined doing, assigning as a reason, that they had expended all the money raised by the parish for that purpose. The plaintiff then made additional repairs, and a voluntary subscription of $ 50 was made, to pay for painting the outside of the house. When the plaintiff left the house, he did not take away the blinds, stove and other articles mentioned in his account, but they remained annexed to the house. The plaintiff* made no demand upon the parish for the payment of the account, until July 1827, and at the meeting on March 20th, 1828, he observed that perhaps he should not have called upon them for the payment of it, if he had continued to be their minister.
    The defendants brought into court a certain sum of money ; and if the Court should be of opinion that the plaintiff was entitled to recover a further sum, the defendants were to be defaulted and judgment was to be entered accordingly ; and if he ought not to recover a further sum, then such judgment was to be entered as the Court should think advisable.
    
      Nov. 5th, 1829.
    
      Saltonstall and S. Merrill, for the plaintiff.
    The repairs were a permanent, continuing benefit to the defendants, and a previous request on their part will be presumed. The blinds and some other articles which the plaintiff might have taken awaj, remain on the house, and that is a sufficient eonsideration for the defendants’ promise. There can be no doubt but the parish had power to raise money for the purpose in question. They must have power to do what is just and honest.
    The facts show an insimul computassent; and the stating of an account is a sufficient consideration for the promise. Trueman v. Hurst, 1 T. R. 40 ; Bull. N. P. 129 ; 3 Stark. Ev. 123 ; Knowles v. Michel, 13 East, 249.
    
      Choate, contrà.
    
    Independently of the vote, the action cannot be sustained ; for the defendants were not bound to make the repairs, and they expressly refused to incur the expense. Exall v. Partridge, 8 T. R. 310; Whiting v. Sullivan, 7 Mass. R. 107 ; Jewett v. Somerset, 1 Greenleaf, 125. The plaintiff was seised (in right of the parish) of an estate in fee in the parsonage, and it was incumbent on him to keep it in repair. Brown v. Porter, 10 Mass. R. 97 ; Butler and Goodale’s case, 6 Co. 21 ; S. C. Cro. Eliz. 590 ; Wilkinson v. Allott, Cowp. 429 ; Co. Lit. 53 ; Ferguson v. -, 2 Esp. R. 590.
    Nor does the vote give a right of action, for as a promise it is founded on a past consideration, if any, without any previous request, express or implied. Livingston v. Rogers, 1 Caines’s R. 585 ; 1 Wms’s Saund. 264, note 1 ; 1 Chit. Pl. 297.
    After the dismissal of the plaintiff, the parish could only discharge their debts then due to him ; they could not incur a new liability. They had no authority to make a present to a dismissed minister. Milford v. Godfrey, 1 Pick. 97 ; Stetson v. Kempton, 13 Mass. R. 272 ; Bangs v. Snow, 1 Mass. R. 189.
   Parker C. J.

afterward drew up the opinion of the Court. We cannot find any safe ground to support this action upon, for the repairs of the parish-house. The sum appropriated for that purpose in 1815, was exhausted, and the committee employed to expend the money, expressly declined making further repairs without new authority.

The plaintiff therefore proceeded in the repairs and expenditures taking upon himself the risk of being indemnified by the parish, if they should think fit to reimburse him.

There was no legal obligation on the parish, to put the house in repair, or to keep it so during the continuance of the estate of the plaintiff. *He was seised in fee, jure parochice, and his estate continued as long as his ministry. All repairs accruing during this period, were legally at his charge. His right to recover, therefore, must depend on the validity and effect of the vote of the parish, passed after the dissolution of the pastoral relation. The objections to this are, that it was not within the lawful authority of the parish to grant, and that it was a nudum, pactum,, there being no sufficient consideration ; or if there was any consideration, it was executed and past before the vote of the parish, and the repairs not being made at the request of the parish, such past consideration will not support a promise. Under the circumstances of the case as proved, a request might have been inferred by a jury, ***were it not for the fact as agreed, that the parish committee did actually refuse to agree to further repairs, after they had expended the sum appropriated by the parish. The plaintiff did not make the repairs on the credit of the parish ; he paid the bills himself; accepted of a small sum from private subscription ; and lay by twelve years without making any application to the parish for reimbursement. He did not consider the parish his debtor on this account. Nor did he make this claim when the terms of the dissolution of his parochial connexion were proposed and agreed on. The terms were specific. He was to be paid his salary to a certain day in September 1827. He was to have wood and the use of the house, the ensuing winter, and he agreed to quit the parish property in April 1828.

This agreement was made conclusively by a vote of the parish in March 1828, an ecclesiastical council mutually called having before recommended a separation.

The pulpit had been vacated by the plaintiff in July 1827, and from October of that year, had been supplied by a com mittee of the parish ; so that the pastoral relation was de facto, by mutual consent, dissolved long before the vote was passed to pay the account of repairs. At the time then of the vote of the parish, to pay the account, there was no indebtedness ; there had been no request to make the repairs, and they were made on an estate of which the plaintiff was seised in fee, and of which he was in the enjoyment, and which he continued to enjoy for twelve years, and finally which he voluntarily surrendered, without any stipulation or request for payment for the repairs. The vote then, if considered as a promise to pay, was nugatory and unauthorized, the parish having no right to incur debts founded on no beneficial equivalent. It was an act of generosity, or rather an effort to be generous which failed before it was executed ; and the law cannot aid the plaintiff to enforce it.

We perceive among the items of the account, charges for certain conveniences, which are not necessarily part of the freehold, and which the plaintiff therefore has a right to remove. We recommend a reasonable allowance for these, in order to avoid another suit. We refer particularly to the window-blinds and stove. 
      
       See Revised Stat. c. 20, § 18."
     
      
       See Bulkley v. London, 2 Connect. R. 404 ; Chaffee v. Thomas, 7 Cowen, 858; Lonsdale v. Brown, 4 Wash. Circ. C. R. 148; Parker v. Crane, 6 Wendell, 647; Leland v. Douglass, 1 Wendell, 492; Goldsby v. Robertson, 1 Blackford, 247.
      An entire promise founded partly on a past and executed consideration, and partly on an executory consideration, is supported by the executory consideration. Loomis v. Newhall, 15 Pick. 159; Andrews v. Ives, 3 Connect. R. 368.
     
      
       See Doty v. Wilson, 14 Johns. R. 378; Oatfield v. Waring, 14 Johns. R. 188; Hicks v. Burnham, 10 Johns. R. 243; Stoever v. Stoever, 9 Serg. & Rawle, 434.
     
      
       See 4 Burn’s Eccl. Law. (7th ed.) 301; Chitty on Contr. (4th Am. ed.) 286,287; Gray v. Holdship, 17 Serg. &Rawle, 415, per Smith J.; Gaffield v. Hapgood, 17 Pick. 192.
     