assigned to him in severalty, Held, the levy was valid against all conveyances and attachments subsequent to the first attachment. - Brown v. Bailey, 1 Met. 254. 8. One tenant in common cannot convey his estate in a part only of the common property. Peabody v. Minot, xxiv. 329. Blossom v. Brightman, xxi. 285. 9. Where one tenant in common conveys his share in severalty, the transfer can be avoided only by all or some one of the other tenants. -Nichols v. Smith, xxii. 316, 10. An action, under St. 1785, c. 62, by one tenant in common against another, for an injury to the land owned in common, to recover treble damages, one moiety for his own use, and the other for the use of the other co-tenants; is not within St. 1788, c. 12, limiting the bringing of civil actions. - Goodridge v. Rogers, xxii. 495. 11. Trespass qu. claus. The plaintiff claimed the land under a conveyance from one A., a proprietor of certain common lands, to whom it had been set off on partition. The defendant, claiming only by virtue of acts of possession, offered to prove, that before partition A. had received his full share of the lands, and that the locus had been assigned to another proprietor in severalty. Held, such evidence was inadmissible. Lawrence v. Russell, xvii. 388. 12. Upon petition for partition by one of two tenants in common, the whole property was by mistake assigned to him, the other not appearing to answer. Held, the latter was not concluded by the judgment, but, by virtue of Revised Statutes, c. 103, § 43, might maintain an action against the petitioner for his share of the land. Nichols v. Smith, xxii. 316. 13. Certain land, owned in common, having been divided by commissioners, one of the tenants entered on the part assigned to the other, and cut and carried away a tree. This act was justified, on the ground of a parol license from the latter, previously granted upon a parol partition, and renewed when the commissioners were dividing the land. Held, such evidence was admissible, to show his consent, though not to control the last partition. Kent v. Kent, xviii. 569. 14. After one tenant in common has obtained partition by legal process, he may maintain assumpsit against the other, for his share of the rent received by the latter, upon a demise of the whole estate, before and during the process for partition; although the respondent in that process pleaded that the petitioner was not seised as tenant in common. Munroe v. Luke, 1 Met. 459. 15. After an attachment, by one A., of an undivided moiety of certain land, the owners mortgaged it, and the mortgage was assigned to B. A. levied his execution on a fractional part of such moiety, and B. afterwards entered and took possession of the full moiety, demised it, and received the whole rent till A. recovered judgment for partition. B. gave no notice to A., that he intended to hold the estate adversely to him, nor did he forbid A. to receive the rent. A. claimed no part of the rent, until after the validity of his levy was determined on his process for partition. Held, there was not such an actual disseisin of A., as to prevent his recovering his share of the rents, in assumpsit against B. Ibid. 16. A. & B., tenants in common, sold the wood on the land, with a proviso that it be taken within two years. B. then conveyed to A. The purchaser of the wood transferred his right therein to C., who had no notice of the above proviso. C. cut the wood, but did not remove it according to the condition. Held, the title to the wood revested in A., who was not liable to C. either for its value, or the expenses of cutting it. Kemble v. Dresser, 1 Met. 271. 17. Where several persons own in common the right to dig and remove ore from another's land, and one of them enters and digs and removes ore, the owner of the land cannot bring trespass, on the ground that he did not first notify the others of his intention to enter, &c., according to the Revised Statutes, c. 105, § 7. Arnold v. Stevens, 1 Met. 266. 18. One tenant in common of personal property may maintain trover against another, who sells it as exclusively his own. So also against the purchaser, if he sell it as his own. - Weld v. Oliver, xxi. 559. 19. In the latter case, the measure of damages is the value of the property when sold by the defendant. -- Ibid. 20. A. & B., being tenants in common of merchandise, A. sold it to C., who sold it to D. B. made out a bill of his share of the price against C., and called on him, as he had taken the property after notice of its belonging to B., to pay for the same, and save himself farther trouble and expense. B. afterwards brings trover against C. Held, the above demand was not a ratification of the sale, or a waiver of the right to bring this suit. — Ibid. Tender. 1. If, after tender and refusal, the debtor, with notice to the creditor, deposits the money with a third person, to be paid to the creditor when called for; the creditor is not bound to call for it, and a subsequent demand upon the debtor and refusal to pay will avoid the effect of the tender. Town v. Trow, xxiv. 168. 2. Where an action has been commenced against the maker of a note, a surety, who signed jointly and severally with him, cannot avail himself of a tender of the amount due upon the note, unless he also offered to indemnify the holder from the costs of such suit. Hampshire, &c. v. Billings, xvii. 87. 3. St. 1830, c. 85, § 2, providing for a tender to "the creditor" after suit commenced, upon "any debt or demand payable in money;" does not apply to trespass qu. claus. Lawrence v. Gifford, xvii. 366. Town. A. Boundaries of a town. B. Rights, powers, duties, and liabilities of a town. A. Boundaries of a town. The recent perambulation of a line between two adjoining towns, by the selectmen, duly recorded, is strong, but not conclusive evidence that this is the true line. Freeman v. Kenney, xv. 44. B. Rights, powers, duties, and liabilities of a town. 1. The use of land on the sea-shore by the individual inhabitants of a town, as a landing-place, does not tend to prove, but to disprove, possession by the town, as such. Green v. Chelsea, xxiv. 71. 2. In 1768, a town, then managing, as such, both its municipal and parochial concerns, voted to buy a lot of land to place a meeting-house upon, and took a conveyance thereof in fee simple. Soon afterwards, the town built a meeting-house, and, in 1795, a school-house, upon the land. In 1822, they leased small parcels of it for twenty years, to erect horse-sheds upon. In 1824, a part of the inhabitants were incorporated as a religious society, and the rest thereby became the First Parish. In 1836, the town purchased the right of the lessee of one of the small parcels, and built upon it an addition to the school-house. Held, the town, while acting both as town and parish, might apply the land either to town or parish purposes, and, at intervals, change the use of it; that, upon the incorporation above mentioned, the part of the land then used for a school continued to belong to the town, and the rest passed to the First Parish; and that the appropriation for the school embraced not merely the land covered by the school-house, but so much of the adjoining land as was reasonably necessary and convenient for its use, including a convenient access, light and air on all sides, and any rights of way to it enjoyed by the town. First Parish, &c. v. Medford, xxi. 199. 3. A town may vote money for the repair of engines, used to extinguish fires therein, whether owned by the town, or by individuals. Allen v. Taunton, xix. 485. 4. So, for the construction of reservoirs for water to supply fire engines. Hardy v. Waltham, 3 Met. 163. - 5. A city or town, as such, under its general powers, has authority to erect a market-house, appropriate money therefor, and assess it upon the inhabitants. Spaulding v. Lowell, xxiii. 71. 6. A town erected a market-house two stories high, with the leading object of providing a market, for which the lower story was appropriated, and the upper story to other subordinate purposes. Held, this use of the upper part was not such an excess of authority, as avoided a tax assessed to pay for the building. Ibid. 7. It seems, a town has no authority to erect an embankment or other separate work, wholly detached from a road, to facilitate the construction, support or future repair of the road; nor have county commissioners authority to require of a town the execution of such a work. -- Anthony v. Adams, 1 Met. 286. 8. Where a town appropriates money in the hands of its treasurer to the payment of a particular claim against it, and the selectmen order such payment, which is not made accordingly; the remedy of the creditor is an action against the town, not assumpsit for money had and received, against the treasurer. Weston v. Gibbs, xxiii. 205. 9. A town may indemnify its officers against any liability incurred by them in the bonâ fide discharge of their duties, though it turn out that they have exceeded their legal rights and authority. Bancroft v. Lynnfield, xviii. 566. 10. A surveyor of highways having dug a drain in order to raise a legal question as to the bounds of a road, and an action being commenced against him therefor, the town appointed a committee to defend it, and voted to defray their expenses. Held, such vote was binding upon the town, though under no prior obligation to indemnify the surveyor, and that the committee might recover of the town for their services and expenses. Ibid. 11. St. 1830, c. 4, incorporating the Boston and Lowell railroad, provided, that, if the railroad should cross any highway, it should be so built as not to obstruct the safe and convenient use thereof. In making the railroad, a highway, crossed by it in the town of Lowell, was excavated, and the plaintiff, travelling upon the highway in the evening, was thrown into the excavation. The town had notified the superintendent of the work on the railroad, that a barrier must be erected, for the security of passengers upon the road, and he had engaged that it should be done. Held, the town was still liable to an action, under St. 1786, c. 81, for the injury done to the plaintiff. Currier v. Lowell, xvi. 170. (See Way.) 12. A municipal corporation is liable to an action sounding in Thayer v. Boston, xix. 511. tort. 13. If an act, which, when done by an individual, would subject him to an action on the case, is done by authority of such corporation, or of a branch of its government having jurisdiction of the subject to which such act relates, or if, when done, it is ratified in the manner above stated, the corporation may be sued in the same form of action. Ibid. 14. In general, to render such corporation liable for unauthorized and unlawful acts of its officers, it is not enough that they were done colore officii, but it must further appear, that the officers were expressly empowered to do the acts, by the corporation, that they were done bonâ fide in pursuance of a general authority to act for the corporation, on the subject to which they relate, or that, in either case, they were adopted and ratified by the corporation. Ibid. 15. County commissioners, having laid out a highway through a town, and across two channels of a stream, ordered the town to make an embankment, several rods from the road, which should turn all the waters of the stream into one of its channels, and prevent the necessity of making more than one bridge in the highway. The town passed no vote, and did no act, on the matter, but the selectmen caused the embankment to be made, and paid for making it, by an order on the town treasurer. Held, the town was not liable to an action, by the owner of land which was flooded and injured by reason of the making of the embankment. Anthony v. Adams, 1 Met. 284. |