
    * Edward Turner versus The Inhabitants of the Second Precinct in Brookfield.
    One claiming ministerial taxes, must be the public teacher of one society, and that society must be an incorporated one.
    This action, which was assumpsit for money had and received for the use of the plaintiff, was tried upon the general issue before Sewall, J., at the sittings after the last October term.
    
      The sums demanded were stated at the trial to be the amount of certain assessments, paid by individuals, inhabitants of the said precinct, and there liable for parochial taxes, voted, and assessed, in the years 1805 and 1806, but who, in those years, had usually attended public worship with the plaintiff; and had employed him as their religious teacher.
    The evidence, in support of this claim, was a compact in writing, dated March 1.5th-, 1805, signed, among many others, by Forbes, Hunter, and Pellett, the persons whose assessments the plaintiff claimed; in which compact the subscribers mutually engage to have stated annual meetings for choosing a select committee and officers, for the support of public worship, and to maintain each other against oppression, &c.; also another written document, dated September 22d, 1803, purporting to contain, among other things, a certificate of the ordination of the plaintiff, as an evangelist, or religious teacher, according to the Abrahamic covenant, &c., which was admitted in evidence, by the consent of the defendants, to have all the effect which the like testimony of the subscribers thereto would have, if sworn as witnesses in the trial.
    From oral testimony it appeared that, in the years 1805 and 1806, the plaintiff’s usual residence and home was at Sturbridge, which is contiguous to Brookfield; that in those years he had the care, as a religious teacher, of five distinct societies, understood to be similar associations with that in Brookfield, to whom he had engaged to preach one Sunday in each calendar month in a regular course, that is to say, at Brookfield, Sturbridge, Charlton, and Oxford, and as often *as a fifth Sunday happened in a [ * 61 ] month, at South Brimfield, places not more than seventeen miles distant from the said second precinct in Brookfield.
    
    From the same testimony it appeared, that the plaintiff and his adherents call themselves Universalists, and profess to teach and believe a final redemption of the whole family of mankind, a continuance after death of the means of probation, and a restoration, sooner or later, of all moral beings to a capacity of happiness, and a state of salvation, through the mediation of Jesus Christ, though not without a suitable reformation and conformity of the creature, &c.; that the persons whose assessments are demanded usually attended public worship with the plaintiff, and that he preached to them, in the course of the years mentioned, as often as twelve Sabbaths in each year, at a meeting-house, in the said precinct, originally erected by a voluntary society of the persuasion called Baptists, among whom were some now associating as Universalists; that the said meeting-house and the pews therein are, and were, in the years 1805 and 1806, occupied, and understood to be owned, by individu ais, a large majority of whom continue of the persuasion called Baptists, and who, in the year 1805, became an incorporated Baptist society; but being without any constant or regular teacher, the plaintiff preached in their house, when there happened to be no teacher of the Baptist persuasion employed.
    Upon this evidence the judge directed a nonsuit, subject to the opinion of the Court upon the foregoing report, the plaintiff moving to have the nonsuit set aside, and for a new trial.
    
      F. Blake for the plaintiff.
    
      Upham and Bigelow for the defendants.
   By the Court.

The plaintiff’s claim must rest on the third article of the declaration of rights. The construction of that article has been several times before us. In the case of Kendall vs. The Inhabitants of Kingston, the plaintiff was a Baptist teacher, having been ordained as an evangelist; and he had the care of two voluntary unincorporated societies of Baptists, one in Middle- [ * 62 ] borough, and the other *in Kingston, to which he preached alternately. And it was decided that he was not the public teacher of either within that article; that every public teacher therein contemplated, is a public Protestant teacher of piety, religion, and morality, connected with some one religious society, which is entitled to his ministerial labors, exclusive of the claims of any other society upon him. On this principle the nonsuit must stand, for the plaintiff is ordained, not over any particular society, but as an evangelist, and is, in fact, as much the public teacher of three or four other re igious societies, as of the society in Brookfield.

in tne case of Barnes vs. The First Parish in Falmouth, the plaintiff claimed to be a Universalist, and teacher of a voluntary unincorporated society of his own persuasion in that parish; and it was holden, by four judges, being all the court present, that the public teacher, contemplated in the third article of the declaration of rights, must be a public Protestant teacher of some religious incorporated society, authorized and compellable by law to support a public religious teacher, and not of a voluntary association, which was under no legal obligation to elect or support any teacher. On this ground, also, the nonsuit must stand, for the plaintiff claims to be a teacher of a voluntary association only, and not of any incorporated society.

Costs for the defendants. 
      
       5 Mass. Rep. 524.
     
      
       6 Mass. Rep. 401.
     