Bisbee v. Evans , 4 Me. 374 ( 1826 )

Weston J.

The plaintiff claims the lot, which includes the locus in quo, as the person, for whose use it was reserved in the original grant ; he being, as he contends, the first settled minister iu the town of H,i -motuj. Tbilesshe has shewn himself legally invested with this character, he is not entitled to judgment. The plaintiff, it appears, has been ordained, according to the usage of the sect to which he belongs. Being thus ordained, but not. as it would seem over any particular church or society, he removed in 1812, into the town of Harmony ; aud there, by a vote, of a church, consisting principally of inhabitants of that town, but including individuals of other towns, was received as their pastor ; in which capacity he has since officiated. If this church is to be regarded as connected with the religious society constituted by the town in its parochial capacity, which does not appear, if has no authority to contract with or settle ministers; for this belongs wholly to the town or parish, of which such of the members of the church, as are inhabitants, are part. Without the express concurrence or assent of the town or parish in their corporate capacity, no one can become their minister, or be legally recognized as such. According to the ecclesiastical usages of the country, the church is generally permitted to nominate a minister, who may be approved or rejected by the parish. If the parish approve, a contract of settlement is then made between them and the minister. Burr v. The first parish in Sandwich 9 Mass. 727.

The only act on the part of the town, relied upon, is the appointment of a committee to agree with the plaintiff what part of the lot, reserved for the first settled minister, he should have; who reported a certain part, which was refused by the town. This vote was predicated upon the assumption, that he was then their minister, as that relation had not been legally created between them; or it was adopted as a measure preliminary to their concurrence with the church, in the result of which they were dissatisfied.

From the facts agreed, it does not appear to us that the plaintiff can be regarded as the first settled minister in the town of Harmony,; he is therefore to become nonsuit, and the defendant, to be allowed his costs.