#### Edward Cobb, Plaintiff in Error, *versus*Abel Kingman and Others.

*\*Hiere a part of a town had been annexed to, and made part of a parish in another town, without notice to such town, or the inhabitants of the part so annexed, and the same had been acquiesced in for nearly eighty years, it was holden to be too late for this Court to inquire into the constitutional authority of the legislature to make such annexation.

The original action, to reverse the judgment in which this writ of error was brought, was trespass against the said *Kingman*and others, assessors of the north parish of *Bridgewater,*for assessing a parish tax on the plaintiff *Cobh,*who was an inhabitant of *Abington.*The assessors having succeeded in their defence in the Court of Common Pleas, the plaintiff brings this writ of error to reverse the judgment of the court below.

There was in evidence a petition of sundry inhabitants ol *Bridgewater,*presented, in the year 1738, to the legislature of the then province of *Massachusetts Bay,*praying * that they might be incorporated into a town, by certain bounds in the petition described, being principally within the town of *Bridgewater,*and also including a small part of *185
      *Stoughton.*Upon this petition notice was ordered to the town of *Stoughton,*and to the west parish of *Bridgeivater,*of which the petitioners were members and inhabitants; and afterwards an act was passed, incorporating a certain territory therein described, with the inhabitants thereof, into a separate and distinct parish, with the powers and privileges to other parishes belonging.

Two points were principally relied on by the plaintiff in error. The first arose on the construction of the act of incorporation respecting the limits of the parish; *viz.,*whether any part of the town of *Abington*was included therein. The second was, if a part of *Abington*was considered as included, —as had, in fact, for a greater part of the time since the incorporation, been the practical construction of the act, —whether the legislature had the power to transfer a portion of a parish in one town, with its inhabitants, to a parish in another town, without notice to such parish and inhabitants, and giving them an opportunity to be heard on the question.

*Wirnlow,*

for the plaintiff in error, argued that although, by a literal construction of the act of incorporation, that part of *Abington*in which the domicile of the plaintiff was situated would be included within the limits, yet, taking into view the petition and the proceedings thereon, which were all to be considered as parts of one and the same transaction, another construction should be given.

On the second point, *Winslow*relied on the principles of *Magna Charta,*and of the declaration of rights attached to the constitution of the commonwealth ; and he contended that no act or judgment of the legislative, executive, or judiciary branches of our government, affecting the rights of individual citizens, could be binding, without giving them an opportunity to be heard in their defence. As it respect? judgments recovered in our courts of judicature tVy are * erroneous if obtained without actual i>o*>e: and the same reasons apply to the doings *',f*the other branches of the government. If it be said that this transaction was prior to the existence of our constitution, it is answered that the declaration of rights is merely in affirmance of the rights and privileges enjoyed by the inhabitants of the country from its first settlement.

In conformity to these views, it has ever been the practice of the legislature, both before and since the revolution, to notify all persons supposed to be interested, before they passed any private or local acts affecting the rights of citizens ; and the only reason why the inhabitants of *Abington*were not notified of the application in this case was, that tnere was nothing in the petition by which the legislature could be led to suppose that any part of that town was to be included in the new town or parish.

*186In the case of *Ellis*vs. *Marshall,*
      (1) this Court decided that an individual cannot be made a member of a corporation without his assent, express or implied. The present case is stronger than that, for there public notice was given, but in this case the inhabitants of *Abington*had no notice whatever.

*W. Baylie.s*and *Eddy*for the defendants in error.

*2 Mass. Rep.*277.

*Curia.*

We are all satisfied that, by a just construction of the act in question, the land on which the plaintiff in error dwells was included in the new parish created by that act. How a part of *Abington*came to be included within a parish of *Bridgewater,*cannot, at this late day, be explained. It might have been by mistake, or it might have been by design. It is enough, however, to justify the defendants, that it has been acquiesced in for so long a period as nearly eighty years ; and that the north parish of *Bridgewater*has claimed and exercised parochial jurisdiction over the same, with little interruption, for nearly sixty years. Now, giving all due weight to the ingenious and able argument of the counsel for the plaintiff in error, on the constitutional points, the want of notice to *Abington,*and the want *of power in the legislature to transfer the parochial jurisdiction without their consent, it is right to presume that all this was originally right; or, if not, that it was afterwards ratified by the acquiescence of Abington, or of the individuals who may have been especially interested.

If there is any inconvenience in the present relation, it is too late Sor any but the legislature to remedy the mischief.

*Judgment affirmed.*