3. Under the colonial ordinance of 1641, the ebb of the tide, when from natural causes it ebbs the lowest, not the average or common ebb, is to be considered as low-water mark. — Ibid.

Search Warrant.

1. By the Revised Statutes, c. 142, magistrates are authorized to issue warrants, to search for and seize lottery tickets, or materials for a lottery unlawfully made, provided or procured for the purpose of drawing a lottery. Held, not to be unconstitutional, under the fourteenth article of the Declaration of Rights. Commonwealth v. Dana, 2 Met. 329.

2. A search warrant, issued under this act, described the house or place where tickets, &c., were believed to be concealed, as "the office of D.," stating its number and street correctly. The office was in fact occupied by D. & A. Held, sufficient. — Ibid.

3. If a search warrant is contained on the same paper with the complaint, and directs a search for the articles " mentioned in the above complaint; "this is sufficient, without any further description of them. Ibid.

4. The statute above named applies to, and authorizes the seizure of, books connected with a lottery, as "materials for a lottery."— Ibid.

A. Seisin.

B. Disseisin.

Seisin and Disseisin.

A. Seisin.

1. Writ of entry, on the seisin of the demandants' father, for an undivided moiety of a shingle-mill and dam, of the land under them, and of the stream. Plea, that the father did not die seised. It appeared, that, in 1775, the great grandfather of the demandants, owning the land including the mill-stream, by simultaneous deeds conveyed the land on the south side of the stream, with an undivided moiety of the old mill, to his son A., the other moiety of the old mill to his son B., the demandants' grandfather, and

the land north of the stream to his daughters. In 1786, the old mill was abandoned, and A. & B. built a new dam, lower down, and a grist-mill, at their joint expense, A. building the southern, and B. the northern half of the dam; and they occupied the mill in common till B.'s death in 1807. B. devised one half of his right in the grist-mill to his widow, so long as she remained unmarried, and made his son, the father of the demandant, residuary devisee. There was no evidence that the widow ever entered under the devise, and the demandants' father occupied the mill in common with A., from the death of B., till 1816, when the dam gave way, and the grist-mill was not afterwards used. B., being told by A. that he had no title to the land on which the dam stood, answered, that his father said, he might go on and build. The demandants' father died in 1818. Afterwards, B.'s widow died, not having again married. In 1827, A. conveyed all his land to the tenant, who rebuilt the dam, removed the grist-mill, and erected the shingle-mill on the same site. Held, the evidence proved a seisin in the demandants' father of the moiety demanded. Miller v. Miller, xv. 57.

2. The writ contained a count for a moiety of the site of the old mill, above mentioned. Held, as no land was granted, as such, to the demandants' ancestor, if the mill-site passed to him, it was as incident to the mill, and, by abandonment of the latter, the title to the former failed. Ibid.

3. The owner of land conveyed an unimproved parcel of it, not fenced from the rest; the grantee, without taking possession, mortgaged it back; and the grantor continued to pasture his cattle thereon as before. Held, the grantee was still seised. - Comings v. Little, xxiv. 266.

4. A devisee of vacant land may maintain a writ of entry therefor, without an actual entry. - Green v. Chelsea, xxiv. 71.

5. Land devised, of which the testator died seised, consisted of flats which were never enclosed, not exclusively occupied or claimed by any one, but used by all, coming by land or water, who had occasion to pass over them, or make some brief use of them by landing wood and other articles. Held, an entry was not necessary to give the devisee seisin. - Ibid.

6. A deed, duly acknowledged and recorded, is primâ facie evidence of seisin in the grantor and in the grantee. — Ward v. Fuller, xv. 185.

7. A mixed possession of land, under a deed from one without title, does not convey a seisin, as against one claiming by virtue of a like possession.-Magoun v. Lapham, xxi. 135.

8. The levy of an execution upon land of the debtor gives the

creditor actual seisin. v. Wood, Ibid. 534.

B. Disseisin.

Munroe v. Luke, 1 Met. 462.. Blood

1. If one of two disseisors, in possession of land as tenants in common, abandon it, the rightful owner does not receive the benefit of such abandonment, but, as against him, the other disseisor holds the whole. Allen v. Holton, xx. 458.

2. Where land is enclosed by a river, fence or road, and a disseisor occupies it as near this boundary as is convenient, considering the nature and situation of the land, and intends to occupy the whole lot; this may be an occupation of the whole, though there is a narrow strip by such boundary, not actually cultivated. Ibid.

3. The tenant fenced in a part of the demandant's land, in order to protect a crop on his own, and cut a tree and some brushwood on this part, but without intending to claim or occupy, or exclude the demandant from it. Held, the demandant might elect Ibid.

to consider himself disseised.

4. In 1796, A., owning one fourth of a corn-mill and the appurtenances, conveyed one eighth thereof to B., and nearly at the same time agreed to sell the other eighth to C. C. never took a deed, but paid the price, took possession of the land, received a share of the tolls, and afterwards conveyed the eighth to D., who, with his assigns, retained quiet possession till 1837. In 1820 or 1821, the mill having been burned, A. went upon the site, and forbade the persons claiming it, who were there, from rebuilding; and about seven years afterwards, the mill having been rebuilt, he went into it, and declared to the person in charge of it, that he owned one eighth of the privilege. No other acts were proved, subsequent to 1797, tending to show possession on the part of A. In 1837, his heirs bring a writ of right, declaring upon his seisin within forty years. Held, the possession of C. and his assigns was adverse to A., and the action would not lie. Barker v. Salmon, 2 Met. 32.

5. Persons joining in a disseisin are joint tenants. Hence, if one of them die seised, after peaceable possession for five years, no descent is cast, and the disseisee still retains his right of entry. Putney v. Dresser, 2 Met. 583.

6. Where an execution against A. is levied upon land of B., B. is not thereby so far disseised that he cannot bring trespass, without reëntry, against the judgment creditor or those acting under him. Blood v. Wood, 1 Met. 528.

7. An execution against A., in favor of C., was levied on land of B., being part of a large unenclosed meadow. C. entered two or three times to show the grass for sale, but took no actual possession. He afterwards advertised a sale of the grass, as on his land; it was accordingly sold at a distance from the land, and cut and carried off by the purchaser; B. having no actual notice of the proceedings. Held, B. might bring trespass against the purchaser. - Ibid.

8. An adverse possession for twenty years or more warrants the presumption of a deed, and of the doing of all acts necessary to give it effect. - Proprietors, &c. v. Bullard, 2 Met. 363.

9. The erection of a fence on wild land, by felling trees and lapping them together, will not warrant a jury in presuming that the owner of the land had notice thereof; nor does it constitute a disseisin. Coburn v. Hollis, 3 Met. 125.

10. If one tenant in common conveys the whole estate, and the grantee procures the deed to be recorded, takes possession, claiming title to the whole, and openly exercises acts of ownership; the others are disseised, and cannot validly convey to a third person. -Parker v. Proprietors, &c. 3 Met. 91.

11. Where there are several tenants in common, some of whom convey their shares to A., who afterwards conveys the whole estate to B., and B. enters, claiming the whole, disseises the co-tenants, and then conveys the whole to C., who also enters, claiming the whole, and the co-tenants then convey their shares to D., who impleads C. in a writ of entry; C. is not estopped by the deeds to A. to claim by disseisin. Ibid.

Sentence.

a

1. The offence of breaking and entering in the night-time " house not occupied as a dwelling-house," and stealing therein goods of the value of less than $ 100, was only a simple larceny, and not punishable by solitary imprisonment, and confinement to hard labor for two years, either by St. 1804, c. 143, or St. 1805, c. 101. Wilde v. Commonwealth, 2 Met. 408.

2. One convicted in 1833, under St. 1815, c. 136, of cheating by false pretences, might legally be sentenced to pay a fine and costs within a certain time, and in default thereof to be imprisoned, according to St. 1788, c. 53. - Ibid.

3. A sentence of imprisonment, upon non-payment of a fine and costs within a certain time, is for the offence committed, not for such non-payment. And, upon the failure to pay the fine, &c., at the time, this part of the sentence becomes null, and only that for the imprisonment remains in force. — Ibid.

4. Neither St. 1812, c. 134, nor St. 1815, c. 136, authorized a sentence to solitary imprisonment, for cheating_by false pretences, in addition to confinement to hard labor. Ibid.

5. Section 19, c. 143, of the Revised Statutes, does not authorize the sentencing of a convict to the house of correction, for a longer term than that for which he was sent to the county jail for the same cause, by § 17, c. 126. Sheperd v. Commonwealth, 2 Met. 419.

6. By the "act to amend the Revised Statutes," as well as previous acts, if an indictment recites, and the verdict finds, two previous convictions and sentences to the state prison; the additional punishment prescribed by such act ought to be included in the sentence upon this verdict, and a subsequent information does not lie, for the purpose of awarding it. - Plumbly v. Commonwealth, 2 Met. 413.

7. One who has been sentenced to additional punishment for a second, is still liable to it for a third, offence. Ibid.

8. By Revised Statutes, c. 126, stealing in a dwelling-house, in the night-time, property of less value than $100, is punishable as simple larceny only, by imprisonment not over one year. But such stealing in the day-time is punishable as an aggravated larceny, by imprisonment in the state prison not more than five years, or in the county jail not more than two years. Hopkins v. Commonwealth, 3 Met. 460.

9. If an indictment, for stealing in a dwelling-house property of less value than $100, does not allege that the act was done in the day-time, the defendant can be sentenced for simple larceny only; and a sentence to more than one year's imprisonment will be reversed on writ of error. — Ibid.

10. Where a defendant was convicted, in 1825, on an indictment charging him with breaking and entering a shop in the nighttime, with intent to steal, and stealing therefrom, and alleging that he had, in 1818, been convicted of two similar offences, thereupon sentenced to the state prison, and discharged therefrom; held, a sentence to three days' solitary imprisonment, and five years' confinement to hard labor, in the state prison, was not erroneous, though by the law then in force he should have been sentenced for life. Phillips v. Commonwealth, 3 Met. 588.