
    William H. Sumner versus First Parish in Dorchester.
    Where a member of a religious society having, pursuant to St. 1811, c. 6, filed a certificate of his membership with the clerk of the town in which he lived, removed before the passing of St. 1823, c. 106, to another town, it was held that he was not obliged to file a certificate, under the last statute, with the clerk of the oldest religious society in such town, in order to exempt himself from taxation by that society; and it was further held, that a tax levied on his property by that society, might be recovered back by an action of money had and received brought against the society.
    Assumpsit for money bad and received.
    On a case stated it appeared, that the First Parish is the oldest parish in Dorchester, and a territorial parish embracing the whole territory of Dorchester. In April 1824 the parish voted to raise the sum of 1530 dollars, and in the summer following 49 dollars and 53 cents were assessed upon the poll and estates of the plaintiff, who was supposed to be a member of the parish, as his proportion of the tax. Some of his effects were distrained by the collector for the parish, by virtue of a warrant delivered to him by the assessors of the tax, and were sold, and the proceeds applied to the payment of the assessment upon the plaintiff, and received into the treasury of the parish. To recover back this assessment, with the expense of collecting it, this action was instituted.
    The plaintiff was the owner of an estate in the parish, for which he was assessed in the parish taxes, as a non-resident proprietor, from 1810 to 1823 inclusive, but his taxes for 1822 and 1823 were abated. In the summer of 1823 he went to reside on his estate in Dorchester, where he has continued to reside ever since. He previously lived in Boston, and at the time of his removal he was a member of the Brattle Street Society, which is of the same denomination as the First Parish in Dorchester, owned a pew in the Brattle street church, and paid the assessment there towards the support of public worship in that society, and he has done the same since his removal. On the 22d of April, 1822, he obtained a certificate from a committee of the same society, that he was a member of the society, which certificate he filed with the city clerk of Boston. He never filed any certificate of such membership with the clerk of the First Parish or with the clerk of the town of Dorchester, before or after his removal into that town.
    
      Nov. 3d.
    
    If on the foregoing facts the Court should adjudge the plaintiff liable to be assessed as above mentioned, he was to become nonsuit; if not so liable, and the amount in question could be recovered back in this form of action, the defendants were to be defaulted.
    Metcalf, for the plaintiff,
    cited St. 1823, c. 138, § 5; St. 1811, c. 6, § 2; Holbrook v. Holbrook, 1 Pick. 250; Whitemore v. Smith, 17 Mass. R. 349.
    Loud, for the defendants,
    did not rely much upon the objection to the form of the action, though he said it was at first thought, that an action on the case was the more proper form. In regard to the merits, he said the case depended principally on St. 1811, c. 6 ; but he contended that the St. 1823, c. 106, § 2, was likewise applicable. That section provides, that any person who may come to dwell within any town, shall be deemed and taken to be a member of the oldest religious society in the town, unless he shall, previous to the first day of May following, file with the clerk of such religious society, a certificate that he has joined himself to, and is a member of, some other religious society within the common- - wealth, under the hand of the clerk thereof. In assessing a parish tax, the assessors have regard to all who are residents within the parish on the 1st day of May, without inquiring at what time any person came there to reside. The plaintiff therefore, though he removed to Dorchester before the passing of the statute just cited, and even supposing that when he first came, he filed a certificate with the town clerk, pursuant to St. 1811, should yet have filed a certificate pursuant to St. ■ 1823, c. 106. This last statute supersedes that of 1811, in regard to the mode of notice. Turner v. Burlington, 16 Mass R. 208. The intent of the legislature always has been, that the notice should be given to the society by which the person would be taxed, in case he should not inform them that he belonged to another society. St. 1799, c. 87, <§, 4, and St. 1823, c. 106. The proper application of St. 1811, c. 6, as it respects notice, is where a person becomes a member of a religious society, but continues to reside in the same town in which he lived before ; as in the case of Holbrook v Holbrook.
    
    
      March term 1827, an Suffolk.
    
   Parker C. J.

delivered the opinion of the Court. The 1 1811, c. 6, § 2, establishes the mode by which member ship in any particular religious society is to be proved, requiring nothing more than the obtaining of a certificate from the committee of such society, and filing it with the clerk of the town of which he is an inhabitant; and any person having obtained such a certificate and filed it according to the provisions of that statute, is for ever afterwards exempted from taxation for the support of public worship and public teachers of religion in every other religious corporation, so long as. he shall continue such membership. The mode of dissolving such membership is not prescribed, hut removal without the bounds of the town within which the society exists, will not ipso facto produce this effect; for it may be convenient, and certainly is not uncommon, for persons to attend public worship with, and be members of a religious society situated in another town than that in which they dwell. It would perhaps have been better, had the legislature provided for an annual renewal of the certificate, or some other mode by which a continuance of membership should be proved, after the person has removed beyond the bounds of the parish or town within which he chooses to attend public worship.

The plaintiff was legally a member of the religious society in Brattle street at the date of his certificate, and we do not see any fact stated in the case, from which we can infer that he had dissolved his connexions there. He continued to own a pew, and to be assessed for the support of public worship there, and paid his taxes down to the time of the commencement of fcis suit. The assessors of the First Parish in DorChester, finding him a fixed. resident in that parish, presumed that he was liable to taxation, for it is probable that they had * *■ * no knowledge of the continuance of his connexion with a society in Boston. But the statute does not require any notice to the officers of the parish to which a person having obtained a certificate may remove. This, no doubt, is inconvenient, and may expose parishes and religious societies to expense and vexation. Now the plaintiff being exempt from taxation, the assessment upon him was void, and all the proceedings under it nugatory ; so that the money obtained from his property and placed in the treasury of the parish, was wrongfully taken from him and cannot be rightfully withheld.

But it is objected that the action is misconceived, because the parish, as a corporate body, are not liable, although the assessors or the collector might be. If however this action does not lie, there seems to be no remedy ; * the legislature having protected assessors from liability, unless they act corruptly, and the collector perhaps having a right to defend himself under his warrant. It would have been useless to attempt to secure to the citizens such entire freedom in regard to their contributions to the support of public worship, if their property could be taken and sold under a warrant of distress, for a tax from which they are exempt by law, and no action would lie to recover back the money. Indeed, upon common principles, the corporation, having received the money of the plaintiffs, to which they have no right, and placed it in their treasury, must be liable to refund it in this action. 
      
       See Whittemore v. Smith, 17 Mass. R. 349; Turner v. Burlington, 16 Mass R. 212; Coburn v. Richardson, 16 Mass. R. 213; Gage v. Currier, post, 399 Leavitt v. Truair, 13 Pick. 111. See the regulations in regard to membershro of religious societies, in the Revised Statutes, c. 20, § 4
     
      
       But see Gage v. Currier, post, 399; [Inglee v. Bosworth, 5 Pick. 498; Withington v. Eveleth, 7 Pick. 106.]
     
      
       See Ingraham v. Daggett, 5 Pick. 453; Amesbury Woollen and Cotton Man. Co. v. Amesbury, 17 Mass. R. 461; Inglee v. Bosworth, 5 Pick. 503; Preston v. Boston, 12 Pick. 7; Nelson v. Milford, 7 Pick. 18. But where an inhabitant of a town is merely overrated, by reason of an over-valuation of his taxable property, his only remedy is by an application for an abatement pursuant to the statute. Osborn v. Danvers, 6 Pick 98; Preston v. Boston, 12 Pick. 7.
     