
    Nathaniel Whittemore, Jun., versus Moses Smith and Others.
    An inhabitant of a parish, joining himself to another religious society pursuant to the provisions of the statute of 1811, c. 6, is not liable to be assessed in a tax granted by the parish, for the payment of a debt incurred under a vote of the parish before such inhabitant availed himself of the privilege of the statute
    The plaintiff, an inhabitant of Lancaster, which town constitutes a congregational parish, in January, 1816, became a member of the Universalist Society in Shirley, pursuant to the provisions of the second section of the “ Act respecting public worship and religious freedom” . *In the year 1815, the [ * 348 ] town of Lancaster voted to erect a meeting-house for public worship, appointed a committee to superintend the building thereof, and authorized them to borrow money sufficient for the object. The house was accordingly built in the following year. In 1819, the town voted to raise a sum of money, to pay for the land on which the house was built, for the purchase of some fixtures, and for other incidental expenses relating to the building of the house. The defendants, being the assessors of the town for the year last mentioned, assessed the plaintiff for his just proportion of the sum so voted to be raised, and issued their warrant in due form of law for the collection of the assessment; upon which the plaintiff was arrested and compelled to pay the sum so assessed upon him.
    For this supposed injury the plaintiff brought this action of tres pass against the defendants, before a justice of the peace; which was carried to the Court of Common Pleas, and upon trial in that court, the plaintiff obtained a verdict, under the direction and opinion of the court, that all the votes and doings of the town, relating to the building of the meeting-house, and assessment of the tax, subsequent to the plaintiff’s becoming a member of another religious society, were inadmissible evidence in justification of the defendants. The action was brought to this Court, upon exceptions filed by the defendants io the said opinion, pursuant to the provisions of the statute of 1817, c. 185, § 5.
    
      Smith, for the defendants,
    argued that the town being obliged to build and maintain a house for public worship, every inhabitant, not at the time exempted by law, was bound to pay their just share of the expense. The vote in December, 1815, to build the meetinghouse in this case, and the authorizing of agents to erect it, and to borrow the money necessary for the purpose, bound all the inhabitants then liable to contribute to parochial charges, and may well be considered as a grant, or, at the least, the incurring of a debt. The plaintiff was then liable to parish taxes, * and [ * 349 ] legally as well as equitably obliged to pay his share of the debt so incurred. If this is not the case, the most intolerable mischief may follow. Suppose that, after building a meetinghouse, sufficient for the accommodation of the whole parish, and before the money was raised to reimburse the expense of it, half the parishioners should secede under the provisions of this statute ; shall they be discharged, and the whole burden thrown upon the remainder ? If not, why has one the privilege ? 
    
    
      
      Lincoln, for the plaintiff.
    
      
      
        Stat. 1811, c. 6, § 2.
    
    
      
       15 Mass. Rep. 464, Jewett vs. Burroughs.—10 Mass. Rep. 430, Eager & Al. vs. Marlborough.
      
    
   Curia.

By the statute of 1811, c. 6, if any person obtains such a certificate as is therein prescribed, and files it with the clerk of the town where he dwells, he is forever after exempted from taxation for the support of public worship in any other religious corporation, than that of which he has become a member. The plaintiff obtained such a certificate from the society of Universalists in Shirley, and duly filed the same, long before the tax, he was compelled to pay, was granted by the town of Lancaster. The tax could not, therefore, legally be exacted of him.

We do not think that the vote of the town, to erect a meetinghouse, could bind those of the inhabitants who might choose to avail themselves of the privileges of the statute. Had the money been granted by the town before the plaintiff filed his certificate, the case might be different. But if they chose to borrow the money, their right of taxation can be exercised upon those only who are inhabitants when the money is raised, and who have no special exemption at that time.

The judgment of the Court of Common Pleas is affirmed  