The opinion of the Court was drawn up by
Parker C. J.The first objection on the part of the defendants cannot be sustained. It appears by the evidence, that services were performed to as many of the society as chose to attend. Besides, the services of a minister are not limited to public performances in the pulpit. He was a minister de facto as well as de jure, until lawfully dismissed, and might lawfully claim his salary on the ground of services, notwithstanding the meetinghouse was shut against him.
2. As to the second question, it is necessary to consider the nature and effect of the devise. The parish or society were the object of the testator’s bounty. The estate is devised and devoted towards the support of public worship, for the benefit of the inhabitants of the second precinct in Rehoboth, who shall attend meeting in the church at Palmer’s river ; the estate to be leased, and the yearly income and rents to be paid to the minister of Palmer’s river aforesaid. It was for the benefit of the inhabitants, to relieve them, in whole or in part, from the charge of supporting a minister. Probably it was considered by the testator an insufficient fund for the support of a minister, and that it would be necessary for the inhabitants to contribute ; for it was given towards the support *4760f a minister, intimating that other funds would be necessary And this will was made in 1774, when probably the income 0f the property was trifling compared with its present value.
It was then a fund established for the use and benefit cf the society, to be appropriated towards the support of a minister. The society were to elect a minister in the usual form, and to contract with him. If there were no stipulation for a salary, it would be presumed that both minister and parish understood and intended that his services were to be compensated by the income of the devise. But if a salary was stipulated for, equal to what is usual in other parishes for similar services, no notice being taken of the devise, it would seem to be the understanding of the parties, that the minister looked to the society and not to the fund, and that the society were responsible to the minister, meaning to indemnify themselves out of the fund.
Such undoubtedly was the case between these parties, ana we think it so obvious that the minister did not expect or intend to claim the income over and above his salary, that we cannot but be surprised that he should sue for it. Why increase his salary from time to time to meet probably the expense of living, if he had this fund to resort to, which it is stated yielded an income much greater than his salary ? Why suffer this income to be received for twenty-seven years by the society, without asking for it until the disagreement took place which ended in a dissolution of their connexion ? We think it clear that he settled for the salary, and not for the income of the devise; that he has no title to it as minister, because it was given to the inhabitants ; and because in fact he has received as much of it as he was content with, in the shape of salary.
Whether the parol evidence were or were not admissible, - we think would make no difference in this part of the case. We are inclined to think however, parol evidence that he agreed to relinquish the income of the devise, was rightly admitted, as it was proving the terms on which he settled, and was in conformity with the acts of the parties.
3 Was the ptaintiff lawfully dismissed on the 30th ol November, 1825 ? This will depend on the previous pro *477ceeding — the validity of the result of the ex parte council; and that will depend upon the question, whether a mutual council had been offered by the parish and refused by the plaintiff. We must consider here the parish, in their corporate capacity, as one party, and the minister as the other. The offer of a mutual council, to be effectual, must have been n-ade by virtue of authority from the parish.
The proceedings relative to the first council are immaterial, as they came to no result affecting the question ; except that the advice given by them to the plaintiff to consent to a mutual council, may be worthy of consideration in relation to the subsequent proceedings.
In regard to the second council, held on the 1st and 2d of November, which resulted in advice to dissolve the connexion, this was ex parte, and there was no call upon the plaintiff to agree to a mutual council, except what took place previous to the former council. But it is said that the plaintiff had repeatedly refused, in one shape or another, to call a mutual council, and had declared, previous to the first council, that he never would agree to a mutual council. It appears to us that it is not proper to connect the circumstances of the two councils together so as to support the latter upon facts which related only to the former. The whole proceedings under the first attempt to procure a council terminated with the result. The parties were to begin de novo, and in order to lay a foundation for an ex parte council there should have neen a new offer of a mutual council. But there was none. We do not think the declarations of the plaintiff made to a committee of the former council a sufficient reason for not renewing the offer. They were not authorized to make the offer, and their advice to the plaintiff might have vexed him into sudden expressions which he might have revoked if regularly called upon by persons duly authorized. This result therefore of an ex parte council does not justify the dismission of the plaintiff.1
4. Was it competent to prove irregular conduct or im*478morality, in answer to a claim for salary, without making it the ground ol charge against the plaintiff on the vote to dismiss ? We think it was not, as it would be taking the minister by . . , ’ . . . ° J and perhaps giving occasion to fabricate charges surprise against him which did not exist at the time of his dismission. This opinion is conformable to the intimations of the Court in the case of Avery v. Tyringham, 3 Mass. R. 160, and Burr v. Sandwich, 9 Mass. R. 277.
5. In regard to the last point, that the defendants were not allowed to prove certain acts, declarations and conduct of the plaintiff, tending to show that he was unfit for the pastoral relation, we think the judge did right in rejecting the evidence. The question was, whether the connexion was dissolved on the 30th of November, 1825. The evidence offered was the vote of the parish. This was nugatory, unless founded upon a lawful and valid advice of a council, oi unless grounded upon such gross immorality as would destroy the usefulness of the plaintiff as a minister. If this lattei were the true cause for which the vote of dismission was passed, it ought to have been stated and alleged ; and then the plaintiff would have had opportunity to judge whether to bring his suit or not, and this he would not do unless he could prepare himself with satisfactory evidence to disprove the allegations. But he is now taken by surprise, and ought not in this manner to be subjected to a scrutiny of his character.
I must here express my doubts, whether the facts offered to be proved under this head would constitute immorality, in the sense in which the term has been used by the Court in relation to this subject. Imprudence, folly, censoriousness, spirit of persécution, &c., were very proper subjects of dis cussion and animadversion by an ecclesiastical council, but not for a court of justice. They are immoralities, but not such as per se would defeat a contract of this nature ; though exceedingly proper to be considered by a council, if habitual, as sufficient to found advice of dissolution upon. The immoralities adverted to by the Court heretofore, as sufficient to justify a parish in dismissing their minister without the intervention of a council, are of the grosser sort; such as *479habitual intemperance, lying, unchaste or immodest behaviour, &C.1 The lesser offences, which may or may not be gooo cause of dismission, ought to be inquired into by a fair anu impartial council, lest occasional inadvertencies, perhaps repented of as soon as committed, should be magnified by enemies into gross defects of character.
Judgment according to verdict.
See Thompsons v. Catholic Congr. Soc. in Rehoboth, 7 Pick. 160; Cochran v. Camden, 15 Mass. R. 303 to 305.
See Chaddock v. Briggs, 13 Mass. R. 253, 254.