C. Meetings, officers and votes of a town.

1. A town treasurer having been elected at a meeting called to choose town officers, a second meeting was called, to "fill any vacancies in town offices which may exist," and at this meeting it was voted to appoint the treasurer, collector of taxes. Held, as

no collector was chosen at the first meeting, the office was vacant, and might be filled in the mode above stated, or by electing a separate officer. Sprague v. Bailey, xix. 436.

2. A town clerk stated in his records, that A. was elected and sworn as treasurer. Afterwards, upon leave to amend his records, he erased the word treasurer, and inserted "collector of taxes, according to my best knowledge and belief," and testified to the grounds of his belief. In a suit against A., held, such alteration was not a record, but was evidence for the jury, in connexion with the parol proof, upon the question whether A. had been sworn as collector. Ibid.

3. A constable's return, on a warrant for calling an annual townmeeting, that he has warned the inhabitants, is sufficient evidence of a legal warning, though it does not state how the warning was given. Houghton v. Davenport, xxiii. 235.

4. An annual town-meeting for the choice of town officers was held in March, and adjourned to April, when a field-driver was chosen. Between these two periods, an act was passed, repealing previous statutes relating to field-drivers, and providing that at the annual town-meeting for choice of town officers, two or more persons should be chosen for field-drivers. Held, the above election was a valid one. Commonwealth v. Hubbard, xxiv. 98.

5. A contract having been made with one A., conformably to a vote of a town, before performance of such contract, the vote was rescinded, but A. was not notified thereof. Held, he was not affected by such rescinding. — Allen v. Taunton, xix. 485.

6. Whether he would have been, even had notice been given him, qu. Ibid.

7. By St. 1837, c. 85, towns receiving their portion of the United States surplus revenue were required to apply it, or the interest of it, only to those public objects, for which they might lawfully raise and appropriate money. The town of H., having received its portion, voted, that the money should be lent equally to each and every inhabitant, that the notes of the individuals receiving the money should be taken therefor, payable when the State should call for the money, and that no sureties should be required. Held, this vote was repugnant to the above statute. Simmons v. Hanover, xxiii. 188.

8. By St. 1783, c. 38, § 7, where a person, by excessive drinking, &c., shall expose the town to which he belongs to expense for his support, the selectmen thereof shall complain to the judge of probate of the county to which he belongs, who may appoint a guardian over him. Held, such appointment might be made, upon complaint of the selectmen of the town where such person was domiciled, though his legal settlement was in another county. Stacey v. Benson, xviii. 497.

9. A town authorized its selectmen to lease certain land "as heretofore," which they accordingly leased verbally, for one year. A stranger having committed an injury upon the freehold, the town brings trespass qu. claus. Held, the vote of the town was not, in law, a lease; that the letting by the selectmen was only at will; and that the action would lie. Hingham v. Sprague, xv. 102.

Tort.

Ils

No action lies upon a note payable on time, before its maturity, though the promisor unfairly obtain, and refuse to return it. ley v. Jewett, 2 Met. 168.

Treaty.

The awards of the commissioners, under the convention of July 4, 1831, between the United States and France, were conclusive as to the validity and amount of claims upon France for damages and injuries, but not as to the conflicting claims of different parties to the fund awarded. And where the commissioners awarded to A. a certain sum for a vessel, &c., sequestrated by France, which A. received; held, B. might recover from him one third of that sum, on proving that he owned one third of the vessel. Lee v. Thorndike, 2 Met. 313.

Trespass.

A. Trespass quare clausum fregit.
B. Trespass de bonis asportatis.
C. Trespass for injury to the person.
D. Pleading in trespass.

A. Trespass quare clausum fregit.

1. If one disseised enter and exercise acts of ownership upon the land, he may maintain trespass against the disseisor for a subsequent entry. Putney v. Dresser, 2 Met. 583.

2. By § 8, c. 119 of the Revised Statutes, "no person shall be deemed to have been in possession of lands merely by reason of having made an entry thereon, unless he shall have continued in open and peaceable possession thereof for one year next after such entry, or unless an action shall be commenced upon such entry and seisin, within one year after he shall be ousted or dispossessed." Whether this applies to the action of trespass, qu. it does, held, it did not take effect till Dec. 31, 1839. Ibid. 3. A mortgagor in possession may maintain trespass qu. claus. freg. Earle v. Hall, 2 Met. 356.

If

4. The defendant, a surveyor of highways, ordered his servant to fell trees within the limits of the road, and place them elsewhere than on the land of the plaintiff, the adjoining owner. The servant placed them on this land, the defendant being then in view of the land, knowing that they were so placed, assenting thereto, and not ordering their removal. Held, he was liable to an action of trespass. Elder v. Bemis, 2 Met. 599.

5. The plaintiff entered on an unappropriated lot of land in P., not susceptible of cultivation, drove down stakes, some of which were marked with his initials, around the exterior lines, and built saltworks upon a part of the land. The defendant afterwards entered upon a part of the lot, and the plaintiff brings trespass qu. claus. against him. Held, if the plaintiff entered, intending to take possession, and claiming the land, if the defendant knew, or might with ordinary care have known it, and if the inhabitants of P. had acquiesced in this mode of enclosing similar land, as giving a valid possession, the action might be maintained. Cook v. Rider, xvi. 186.

6. Held, the plaintiff might show that this was the usual mode of entering upon unappropriated lands in P., situated like this lot, and that such inclosure was acquiesced in by the inhabitants as a valid possession. Ibid.

7. A., the owner of a tract of land and two mill privileges, conveyed to B. a part of the land, with a privilege, described in the deed by metes and bounds, " together with the privilege of dam below A.'s factory, and flowing the water as high as will answer, and not injure or obstruct the water-wheels of A., above." Held, a grant to B. of the right to build a dam for a mill, and that he might extend such dam beyond the bounds mentioned, if necessary to raise the water to the height agreed upon; that acts of the parties, done under a mutual agreement, immediately after the grant, towards fixing the site and height of the dam to be built by B., might be offered in evidence, as showing the extent of the grant; and that B. might maintain trespass qu. claus. against A., for cutting through that part of the dam not included by the metes and bounds, B.'s interest therein being a right of possession for the purpose of the dam while his mill should continue, and not a ·Dryden v. Jefferson, xviii. 385.

mere easement.

8. In trespass qu. claus., if the plaintiff shows no title, he cannot object that a deed, under which the defendant claims and occupies, is invalid. - Brown v. Pinkham, xviii. 172.

9. A grantee of wild land cannot maintain trespass against a third person, merely by such proof of possession as arises from having an unrecorded deed. Estes v. Cook, xxii. 295.

10. One in actual possession of land may maintain trespass, against any other person than the real owner, or him who has the right of possession. - Barnstable v. Thacher, 3 Met. 239.

11. Where two parties have a concurrent or mixed possession of land, neither having any other title, or any exclusive priority of possession, one cannot maintain trespass against the other.-- Ibid.

12. A town took possession of a tract of unenclosed land to which it had no title, and forbade all persons to take cranberries therefrom, except on terms prescribed by the town, and with which most persons for several years complied. Before the town took possession, A. had claimed a right in the land, though he could not show any title, and had taken cranberries growing thereon, and continued to take them afterwards, under a claim of right. Held, the possession of A. and of the town was mixed or concurrent, and that the town could not maintain trespass against persons who took cranberries from the land under a license from A.- Ibid.

B. Trespass de bonis asportatis.

1. The defendant having conveyed land to the plaintiffs, a corporation, the deed, which was left with A., the plaintiff's agent, for safe keeping, was by him given up to the defendant, at the request of the latter, and on the ground that he had objected to it when it was signed. The plaintiffs bring trespass against the defendant for taking the deed. Held, the action would lie; but, it seems, inasmuch as the plaintiffs' title was not divested by the above transaction, they should recover only nominal damages, unless they would release all claim to the land. Second Congregational, &c. v. Howard, xvi. 206.

2. The unlawful exercise of authority over chattels, against the will and to the exclusion of the owner, is sufficient to sustain an action of trespass de bonis asportatis, without any manual taking or removal. Miller v. Baker, 1 Met. 27.

3. Where an officer attaches mortgaged chattels, whether the mortgagee can maintain trespass against him, before giving notice of his mortgage and stating his account, and before the creditor or officer has neglected or refused to pay the latter, qu. — Ibid. xx. 285. (See Attachment, Mortgage.)

C. Trespass for injury to the person.

Trespass against A. and B., as owners of a dog, alleged to have done injury to the plaintiff. A. having died, held, the action might be sustained against B., without proof that A. was a partowner, and therefore that A.'s declaration of that fact, which was received for the purpose of proving it, was immaterial, B.'s ownership being otherwise established. - Buddington v. Shearer,

xxii. 427.

D. Pleading in trespass.

1. In an action of trespass, the declaration contained two counts for the same cause of action. Pleas, the general issue to both counts, and a special bar to one of them. Verdict for the defendant upon the latter plea. Held, he was also entitled to a verdict upon the general issue. Curl v. Lowell, xix. 25.

2. In trespass qu. claus. before a justice, upon a plea of not guilty, the plaintiff need not prove exclusive possession of the land. Stone v. Hubbard, xvii. 217.