
    Uriah Eager and Others versus The Inhabitants of Marlborough.
    A debt incurred by a town, comprising one parish, for building a meeting-house, was holden still to be due from the whole town, after a part had been incorporated as a second parish, the meeting-house being within the limits of the first parish.
    This was an action of assumpsit brought by the plaintiffs, as a committee and agents of the town of Marlborough, to recover a reimbursement of the expenses incurred by them in building a public meeting-house for the town, pursuant to the votes of the inhabitants.
    On the trial, which was had upon the general issue, before the late chief justice, at the sittings here after October term, 1811, a verdict was taken for the plaintiffs, subject to the opinion of the Court upon the following question: —
    * After the meeting-house was built, and the expenses thereof incurred, a number of the inhabitants were incorporated and made “ the second parish in Marlborough,” by the statute of 1807, c. 57, the meeting-house not being included in that parish, but remaining the property of the first parish in Marlborough. The defendants objected that, by virtue of the statute of 1786, c. 10, § 4, the action lay only against the inhabitants of the first parish, and not against the defendants. If, in the opinion of the Court, this objection ought to prevail, the verdict was to be set aside ; otherwise it was to stand, and judgment be rendered upon it.
    A the last October term, the verdict being set aside by consent, tne parties entered into a rule of Court referring the action to three persons named in the rule, and agreeing that the referees should have power to go into a consideration of the whole subject matter of the action, as fully as if the same had been referred to them at the first term in which it was entered, and that final judg inent should be entered on their report.
    
      At the last April term, the referees made a report in the plaintiffs’ lavor, and a motion was made, on the part of the plaintiffs, for its acceptance, which being opposed by the defendants, the action was continued to this term, for the consideration of the said motion.
    And now Ward, of counsel for the defendants,
    contended that the referees had mistaken the law, for that, by the provisions of the fourth section of the statute of 1786, c. 10, the action was maintainable only against the first parish. That section enacts that, “ where any town, consisting of but one parish only, has been or shall be divided or made into two or more parishes, any contracts entered into by such town, before such division, if of a parochial nature only, shall not be considered as extinguished by such division ; but shall remain in force against the inhabitants and estates lying within the first parish, who shall be deemed the successors of the town, so far as relates to parochial agreements and contracts, to every intent and purpose whatever.”
    * Draper, for the plaintiffs,
    relied on the proviso at- [ * 432 ] tached to the same section of the statute, by which it is enacted that debts of a parochial nature, that are or shall be in fact due and owing from any town, before a division thereof into parishes, for services actually performed, for the general benefit of the persons who shall after be included in each of the parishes, shall in no respect be altered, or devolved on the first parish, as the successors of the town in its parochial capacity.
   Per Curiam,.

The objection to the report of the referees, in this case, rests upon a mistaken construction of the statute in question. The fourth section of that statute is very obscure in its terms, and very difficult of explanation. The first part of the section provides that, upon a division of a town into several parishes, all engagements or contracts made before the division, of a parochial nature only, shall remain in force against the first parish only, meaning the parish which is left after the new parish is set off. And the second part, in the form of a proviso, enacts that all debts of a parochial nature, in fact due and owing before a division, for services or other matters actually done and performed for the general benefit, &c., shall not be altered or devolved upon the first parish; intending, as we suppose, that such contracts shall remain chargeable upon the town.

It is supposed by the defendants that, because the meeting-house, for some part of the expense of building which this action is brought, is within the limits of the first parish, the building of it was not for the general benefit of persons living in each of the pansnes; and therefore, not coming within this last branch of the section, is included within the first, which makes the first parish liable.

But the defendants are mistaken. The meeting-house, being built in pursuance of a vote of the town, before any division was made, must be considered as being for the benefit of all the inhabitants of the town at that time. And it would be a very • [ * 433 ] inequitable provision, that, after a town had * built a meeting-house, of a size equal to the accommodation of the whole town, and at a proportionate expense, a disaffected part should be permitted to be set off, and rid themselves of their proportion of the burden.

We think the services for which this action was brought were for the benefit of all the inhabitants of the town, within the intent of the section of the statute we have been considering, and so were not chargeable to the first parish only, but to the town, agreeably to the proviso of said section. The referees proceeded upon this principle; and therefore we see no legal objection to their report; which is accepted, and judgment is to be entered accordingly,

ADDITIONAL. NOTE.

[See Ludlow vs. Sikes, 19 Pick. 317.—Parsonsfield vs. Dalton, 5 Greenl. 217.-Richardson vs. Brown, 6 Greenl. 355. — First Parish, &c., vs. Smith, 14 Pick. 297. — Ashby vs. Wellington, 8 Pick. 524. — Milton vs. First Congregational, &c. 10 Pick 447.—F. H.] 
      
      
         [Vide First Parish of Medford vs. Pratt, 4 Pick. 222. — Ed.]
     