Three questions are raised, in this case, for determination. First, was the contract between Doctor Whitney and the parish at Brooklyn such, that he held his office at the will of the latter ; or was it an office for life, determinable on sufficient cause, exhibited and proved before a proper tribunal ? Secondly, has Doct. Whitney, by any act or omission of his, forfeited his office, and lost the capacity of performing ministerial services ? And lastly, has he actually omitted the performance of his official duties ; and thus failed in entitling himself to the salary demanded ?
If a construction of the contract is to be made from a part of the words of it only, there seems to be some ground for the supposition, that Doct. Whitney held his office at the will of the parish. No fixed period of service was agreed on ; and in some cases, this indefiniteness would render a contract determinable at the will of either party. If the contract was terminable at the will of one party, it necessarily was equally terminable at the will of the other ; as this is the law of estates at will. An agreement is not always construed by the expressions of it, abstractly considered ; but the subject matter, the law and usage, in such cases, and the consequences of the construction, are all taken into view, to ascertain the intention of the parties. Once fix the intention, and you have an infallible criterion of the agreement, or, more properly, you have the agreement itself.— When the contract was made, there was in existence, an act for the settlement and support and encouragement of ministers, prescribing, that the person called and settled, should be the minister of the society ; that the agreement made with him should be observed, according to its true intent and purposes ; and that the society should take care, annually, to grant and levy a tax for his support. Under this law Doct. Whitney was called and settled, in the usual manner ; a salary of sixty-five pounds yearly, was agreed to be given him ; and a settlement of three hundred pounds, to be paid one third in one year, one third in two years, and one third in three years ; and by ordination, he was placed over the parish, and their spiritual interests were thus solemnly committed to his charge. When it is considered, that the society agreed to settle, and, by proper author*413ity, procured Doct. Whitney to be settled, no person can believe, that he held his office at will. The word settled, has, from the frequency of its application, and universal understanding, the precision of a technical term, and undoubtedly means, to place a person in a permanent seat, or to fix him in a stable course of life. But an office held at will is no settlement ; it has neither permanency nor stability.
That a yearly salary should be given to an officer, whose brief existence might be a month only, and who had no legal certainty of holding his office for any determinate period ; that there should be conferred on him a settlement of three hundred pounds, immediately after the reception of which, he might terminate his relation to the parish, and pocket the money ; that this settlement should be made payable by three annual instalments, when his official existence, the society or the minister might annul in a day ; are a complication of absurdities, that no reasonable mind can admit. As little reconcilable is the supposition of a contract at will, made by the society, with the law of the state, and the solemn transactions of the ordination. By law, every parish was authorised to call and settle a minister ; and Brooklyn, in view of this law, did call and settle Doct. Whitney. That the legislature intended to encourage and provide for the support of an able, faithful and permanent ministry, by the provisions of the act alluded to, is as certain as that they had at heart the religious, moral and even political interests of the community ; and that the contract was made by the parish of Brooklyn, with the same wise and honest intention, there is no reason to doubt. I cannot ascribe to a respectable society the unparallelled absurdity of first agreeing to support a minister for no determinate duration, and then as a sanction to an agreement terminable by caprice, at pleasure and without a single reason, save inclination, assembling a convocation of divines, by a religious solemnity, to give importance to a transaction of no assured permanency.
The subject matter of the contract leaves no doubt as to the intention of the parties. A minister ought to be acquainted with the people of his charge, that from a knowledge of their circumstances, habits and characters, he may adapt his instructions to their profit. His duty it is to reprove vice, to discountenance folly, and to stem the torrent of corruption, wherever it appears ; and when, by a life of exemplary piety and diligence, he is borne down by sickness, or the infirmities of age, it is fit and desirable, that he should have his way smoothed by *414kind offices, and a competent support, and not be dismissed to poverty and neglect. All this, regard being had to the words of the contract, the law of the state, the practice of the community, and the object of the settlement, was unquestionably within the intention of the parties To accomplish these purposes, it was indispensible, that there should be a legal certainty of permanency in the minister’s office. But give him an estate at will only, and what becomes of his respectability or his influence? Who will be reproved, by a man, whose official breath is in his nostrils ; and who may, and probably will, be dismissed, as an officious intruder into the concerns of others, if he act faithfully and independently? And as to the condition of a tenant at will in the priest’s office, there is much reason to believe, that the love of property will surmount the love of duty, and that sickness and infirmity will be the signal, at which such a contract will be annulled. Admitting, that Doct. Whitney and the parish of Brooklyn had honest intentions, and acted with ordinary wisdom, the subject matter of their contract demonstrates, that it was intended to be for life, unless determined on reasonable cause shown. A conclusive argument is derived from uniform and universal usage. The settlement of a minister has ever been understood to be for life, unless determined sooner, by sufficient cause, and established before a proper tribunal. The legislature, in the law existing at the date of the above contract, speak of a call and settlement of a minister, in terms the most, general and indefinite ; and yet they speak most intelligibly. Every person in the community knows the meaning of these terms ; and that they indicate an estate for life in the minister’s office.
Whether by any act or omission, Doct. Whitney forfeited his office, and thereby lost the capacity of performing ministerial services, is next to be considered. Were it proper for me to express an opinion, I should not hesitate to say, that the above office was not forfeited, by any thing appearing in the case. But on this subject I consider the question as not within my jurisdiction. The right conferred of performing the duties of a minister, as well as his ordination over a parish, are the acts of an ecclesiastical assembly; and an ecclesiastical tribunal, vested with powers, in such cases, is the proper forum to enquire and determine whether his office is forfeited. If there were no judiciary of this nature, or they should refuse to act, perhaps from the necessity of the case, the enquiry must be made in a court of law. That there is an ecclesiastical judicia*415ry, competent to exercise this branch of its jurisdiction ; and that it will, on application, exercise its jurisdiction soundly ; I have no hesitation in believing. There are, however, two considerations, that render the question, whether Doct. Whitney, by act or omission, has forfeited his office, of no importance. It is not, generally speaking, the effect of an act authorising a forfeiture of office, to forfeit it ipso facto. More strictly, the forfeiture lays the foundation of a suit to annul ; and a competent tribunal must declare the office forfeited, before this fact may be assumed. Com. Dig. tit. Officer. K 11. 12. 13. If this is true, as undoubtedly it is, in relation to an office at common law, on the same reason it is eminently correct, in respect of the authorization of a clergyman to preach and perform ministerial duties. This is rather an employment than an office ; and receives the latter denomination on a principle of supposed analogy. It is a monstrous supposition, that every omission or abuse of authority, by a minister, disrobes him of all sacerdotal power, so that every court, and magistrate, and individual in the community, may consider him as destitute of official capacity. If this were so, one omission to administer the communion ; one unadvised word or action ; any impropriety of omission or commission, might be made a reason, of which every court might judge, to degrade him from his office. If Doct. Whitney erred, through mis-judgment or pravity of will, it was competent for the parish to exhibit a complaint against him, before the proper ecclesiastical tribunal, and obtain a legal sentence. In the mean time, his official power would remain ; and so far as relates to the society, they may waive the effect of any error committed, and continue their minister in favour. This is the second consideration alluded to.
That the parish of Brooklyn did waive their right to review the errors of Doct. Whitney, if any such there were, is unquestionably manifest. After the supposed causes of forfeiture, they requested him to relinquish preaching, on condition that they would secure to him his salary for life; and desired him to ask of the society a dismission from his pastoral office. Superadded to this, they paid him his salary regularly, from year to year, down to the fourth of February, 1821. Until the 23d of April, 1321, more than two months after the salary for which the suit is brought had commenced running, Doct. Whitney was, in the most explicit manner, recognised, by the public votes of the parish, as being their minister.
The only remaining enquiry is, whether, on the part of the *416plaintiff, from February, 1821, to February, 1822, there was an actual and culpable omission to perform his ministerial duties. He is not required to accomplish impossibilities ; nor to preach to those who will not hear him, and who expelled him from his pulpit. On the 2nd day of November, 1820, the parish of Brooklyn passed a vote, which never has been rescinded, prohibiting their minister from entering the meeting-house of the society to preach or pray, or attend any meeting whatever except freeman’s society, church and singing meetings. To render the vote effective, a committee was appointed, who, conformably with their trust, actually shut him out of the meeting-house when attempting to enter it, on the Lord’s day, for the administration of the sacrament. If he who is to be benefitted, by another’s fulfilling his contract, is the occasion why it is not carried into execution, the party is discharged from his obligation, and the person preventing the performance is subjected to his, precisely as if the corresponding service was done. 1 Pow. on Cont 418. Miller v. Ward & al. 2 Conn. Rep. 494.
From the facts admitted, by the parties, at the trial, it clearly results, that Doct. Whitney is the minister of the parish of Brooklyn ; that he has not forfeited his office, nor lost the capacity of performing ministerial services ; and that he has actually performed them, except so far as they were prevented by the society. It follows from these positions, that the jury should have been directed, as matter of law, to find their verdict for the plaintiff.
Peters, Brainard and Bristol, Js. were of the same opinion.New trial to be granted.