meeting. These original claims for bounties were not in terms men-
tioned by the commissioner in his report but the amount of the orders
was placed by him in the list of claims, "the amount of which could
not then be determined." Held, that the report of the commissioner
did show the original valid liability for the bounties, on the ground
that the orders were the form and the claim the substance, or that the
valid debt might be substituted for the void security, and that the
assessment of the tax to pay the claims was a sufficient determination
of the amount. Vose v. Frankfort, 64 — 229.
63. When a part of a town is set off and annexed to another town
with a provision that the part set off shall pay a fixed proportion of
the liabilities of the town at the time of the separation, the amount
to be assessed and collected by the officers of the old town, the
expense of collection and the necessary abatements are to be included
in the assessments. Ih.
V. TOWN LINES.
64. The territorial limits of a town can be changed only by the
authority of the legislature. Bethel v. Albany, 65 — 200.
65. When the precise locality of the common limit between adjoin-
ing towns is a subject of controversy the decision of commissioners,
appointed under R. S., 1871, c. 3, § 43, to determine the line, is con-
clusive, and there seems to be no power in the court to reject their
report simply because they may possibly have erred in judgment in
ascertaining the true line. Jb.
66. Although, where two termini of a line between towns are estab-
lished, the intermediate line will be deemed a straight one, yet any
538 TOWN — TRESPASS.
intermediate monument outside of the straiglit line being more cer-
tain than the course will govern it. lb.
67. If the commissioners to determine a disputed line between
towns can not find upon the face of the earth sufficient evidence to
enable them to ascertain and determine the line as formerly laid out,
resort must be had to rules of construction and the line run accord-
ingly as if it were projected for the first time. Bremen v. Bristol,
66—355.
68. When the act establishing the boundaries of a town, after
defining several boundaries, proceeded, "thence easterly so as to
include Long Island and Hog Island, crossing the bar between Hog
Island and Loud's Island, thence to the first mentioned bound." In
fact the course "easterly" did not include the islands named. Held,
that the inaccuracy of the course must give way to the certainty of
the island monuments ; that to include the islands meant the whole of
them, to low water ; that crossing the bar meant passing clear across
the entire width of the bar on the line of low water ; and that when
the western limit of the bar was reached the line should run by a
straight line from that point "to the first mentioned bound." lb.
69. This construction must prevail although a small part of a head-
land is attached to the town from which it is separated by water,
instead of the town joining it by land. lb.
70. Whatever may have been the real intention of the legislature,
the expressed intention must govern. lb.
71. When the act of incorporation makes a stream one of the
boundary lines of a town, the centre of the stream is the boundary
line. Perkins v. Oxford, 66 — 545.
See Fees, p. 265.
TRESPASS.
I. WHEN THE ACTIOJ^ WILL LIE.
(a) Fob injubies to kbal estate.
(b) Fob injubies to personal estate.
(c) Foe injubies undbb pbocess of law.
(d) Fob injubies to the peeson.
11. PLEADING AND PRACTICE.
in. EVIDENCE.
I. WHEN THE ACTION WILL LIE.
(a) For injuries to real estate.
1. Where, by the terms of the lease, the lessor retained a right of
occupation of the barn, for the storage of hay and other chattels, he
may maintain trespass quare clausum against a stranger for entering
and carrying away the hay. Jordan v. Staples, 57 — 352.
2. A TENANT may maintain trespass quare clausum against his
landlord, for an unlawful entry upon him before the tenancy is termi-
nated. Bryant v. Sparrow, 62 — 546. Marden v. Jordan, 65 — 9.
TRESPASS. 539
3. Trespass quare clausum may be maintained by the owner of real
estate for an injury done to the free-hold, notwithstanding it was in
the possession of a tenant at will, at the time of the injury. Seavey
V. Prehle, 64—120.
4. An action of trespass can not be maintained against a surveyor of
highways for removing fences standing within the limits of the loca-
tion of a highway in his district, when their continuance has been less
than forty years next after the location of the highway. Whittier v.
Mclntire, 59—143.
5. Section 7, c. 74, of the Special Laws of 1821, did not take away
from the plaintiffs the common-law remedy of trespass quare clausum.
Cumberland & Oxford Canal Corporation v. Ilitchings, 59 — 206.
6. A railroad corporation is not liable under R. S. of 1857, c. 51, §
25 (R. S. § 22) for trespasses and injuries to lands and buildings
adjoining, or in the vicinity of its road committed by contractors or
the servants of contractors. Eaton v. E. & JV. A. _R. Co., 59 — 520.
7. When a wife has been divorced from her husband for his fault,
and has left her furniture and other property upon his premises, he
can not maintain trespass quare clausum against her servants, after
divorce, for peaceably entering at her command and removing her
goods and chattels so left. jETallook v. Perry, 61 — 273.
8. CoBTTiNTTiNG Trespass. Trespass quare clausum is the proper
remedy against one for wrongfully continuing a building upon the
plaintiff's land and for the erection of which he has already recovered
compensation. Russell v. £rown, 63 — 203.
9. The unlawful filling up of the plaintiff's land is an injury for
which successive actions may be maintained until the wrong-doer is
compelled to remove the obstruction. Cumberland & Oxford Canal
Co. V. Hitchings, 65 — 140.
10. Possession alone, though for a less time than twenty years
gives the possessor a title sufficient to enable him to maintain trespass
against every one who can show no better title. Maxwell v. Mitchell,
61—106.
11. One who, without being in constant occupation of the premises,
has out the grass and standing growth from year to year, and paid the
taxes, claiming title under a conveyance, has such possession as will
enable him to maintain trespass against a stranger. Mitchell v. £laok,
64—48.
12. He must be deemed a stranger who can show no better or older
title or possession. lb.
13. One who has a eight of way over land has not such posses-
sion, or right of possession, as will support an action of trespass quare
clausum against one who uses the way by permission of the owner of
the land. Morgan v. Boyes, 65 — 124.
14. The gist of the action of trespass quare clausum is an unlawful
entry. Wills v. Oilman, 66—273.
15. A MOETGAGEB is not liable in trespass to the mortgager for an
entry upon the mortgaged premises, in the absence of any stipulation
in the mortgage restraining the mortgagee from taking possession,
although at the time of the entry the mortgagee does not claim to
enter under the mortgage, but under a claim of title to the crops by
virtue of an invalid parol agreement. lb.
540 TEESPASS.
16. Trespass quare clausum may be maintained by the husband
for an injury to the real estate of the wife, he being in possession of
the same irrespective of any right acquired by virtue of the marriage
relation. Wass v. Plummer, 68 — 267. See Bradford v. Hanscom,
68—103.
17. The farm in question belonged to the defendant's wife. A
portion of the stock and farming tools upon it belonged to her, and a
portion to him. He carried on the farm for several years for his and
her support, without any agreement whatever between them, in the
same manner as if his own. Disagreements growing up between
them, she conveyed the farm to the plaintiff by an absolute deed.
During the summer after the conveyance, the plaintiff exercised
acts of possession over the property, and so did the defendant. On
the 7th of September, the defendant removed and carried away,
against the protestation of the plaintiff, the principal part of the
manure on the place, for which act he is sued in this action of quare
clausum. Held, that the action could be maintained. Norton v.
Craig, 68—275.
18. If a person having lawful authority to enter the land of another
for one purpose, forcibly enters, for a different purpose, or to enter
one part of it, enters another part of it, he thereby becomes a tres-
passer, lb.
See Executor and Administeatob, 16, p. 257.
Landlord and Tenant, 30, p. 336.
Mills, 4, p. 364.
(b) For injuries to personal estate.
19. The lien given by R. S., c. 23, § 4, in the action of trespass is
not one that gives the right of possession to the party injured; but it
can only be enforced by attachment. Mosher v. Jewett, 59^453.
20. An action of trespass de bonis to recover for timber and trees
cut from land mortgaged is properly brought by the executor of the
deceased mortgagee for the benefit of the person beneficially inter-
ested under the will, if the severance was before the death of the
mortgagee. Brooks v. Goss, 61 — 307.
21. The assignee of a permit to cut timber can maintain trespass
against an officer who attaches the lumber after it is cut as the prop-
erty of the assignor. Sawyer v. Wilson, 61 — 529.
22. Exclusive possession of property, even if wrongful, will, enable
the possessor to maintain trespass against a mere wrong doer. Adams
V. McGlinchy, 66—474.
(c) For injuries under process of law.
23. If an officer sell on execution the personal property of the
execution debtor, at an adjourned sale, without having posted up pub-
lic notice of the time and place of such sale, forty-eight hours prior
thereto, in two or more public places in the town or place of sale, as
required by R. S., c. 84, §§ 4 and 5, the sale will be void, and the
officer a trespasser db initio. Hayes v. £uzzell, 60 — 205.
24. An action of trespass lies against an officer who attaches the
goods of a stranger, notwithstanding they are so intermingled with
those of the debtor that the officer cannot distinguish them, if the
TRESPASS. 541
owner is present and offers to select his, and is prevented from so
doing by the officer. Yates v. Wormell, 60 — 495.
25. If an officer, after selling goods sufficient to satisfy his precept,
sells other goods seized, he will become a trespasser ab initio as to so
much of the property as is sold in excess of his authority, but not as
to all taken and sold. Seekins v. Goodale, 61 — 400.
26. A ministerial officer is protected in the execution of process,
whether the same issue from a court of general or limited jurisdiction,
although such court has not in fact jurisdiction in the jjarticular case,
provided it appears on the face of the process that the court has
jurisdiction of the subject matter, and nothing appears in the same to
apprise the officer but that the court had also jurisdiction of the person
of the party affected by the process. N'owell v. Tripp, 61 — 426.
27. An officer who sells attached property upon mesne process, with-
out giving the notice required by law, becomes a trespasser ab initio,
and will not be permitted to show in defense of a suit against him
that the conveyance of the attached property by the debtor named in
such process to the party suing the officer was fraudulent and void as
to creditors. Sawyer v. Wilson, 61 — 529.
28. A notice of a sale of attached goods, defective for want of suffi-
cient time, is not cured by a postponement of the sale, on the day
appointed therefor, to one remote enough to answer the statute
requirement; and the officer selling the property on the day of
adjournment is liable in trespass. lb.
29. An officer can not defend himself against a suit for taking liquors
upon a void warrant by showing that they were subsequently libelled,
and the forfeiture of them declared, if these proceedings were initiated
by such warrant. Ghiptil v. Richardson, 62 — 257.
30. If an officer seizes liquors on a valid warrant but neglects to
libel them and file the libel with the court or magistrate to which the
warrant is returnable, and who has authority to receive it, the officer
becomes a trespasser ab initio. lb.
31. After an officer has filed a libel against liquors seized by him, it
is the duty of the magistrate to cause notices thereof to be posted
according to law, and the officer does not become a trespasser ab initio
if the notices are not posted. lb.
82. If an officer, takes property by virtue of a replevin writ, with-
out first taking the statute bond, but does not complete the service by
summoning the defendant, and the writ is not entered, he can not
justify under his precept and is a mere trespasser. Adams v.
McGlinchy, 62—533.
33. The plaintiff, a deputy sheriff, seized certain liquors, belonging
to the defendant M., by virtue of a warrant intended to conform to
the requirements of the law relating to search and seizure process.
While the liquors were in his possession, the defendant M. procured
a replevin writ, by virtue of which the defendant H., a coroner, took
them and delivered them to M., who assisted in the service of the
writ. Held, that whether or not the warrant under which the plain-
tiff seized the liquors was sufficient, the act of the coroner was unjusti-
fiable, and that the defendant M., having taken the liquors as the
servant of the coroner, must justify in that capacity or not at all, and
could not claim that as general owner he had the legal right to take
the liquors without any writ. Same v. Same, 66 — 474.
542 TRESPASS.
34. Infeeiob couets of limited jurisdiction are responsible in tres-
pass to those whom their acts affect, when they act without, or in
excess of, their jurisdiction, and not otherwise. Wciterville v. £arton,
64—321.
85. County commissioners were held responsible because they issued
a warrant of distress against a town to collect the expense of building
a way the day after the time fixed for the completion of the way,
built under the direction of an agent, when, by statute, no warrant
could lawfully issue until after the expiration of thirty days there-
after, and because the warrant was made returnable in ninety days
instead of three months, as required by law, and because the warrant
recited a judgment "we" had recovered for money expended by the
county, when the county was never liable, nor had paid the expense
of building the way, and the judgment should have been in favor of the
agent, and because there were other errors on the face of the warrant
by which the town was compelled to pay in interest and costs more
than it was legally liable to pay. Jb.
36. But not, because they erroneously and unjustly, placed upon
the town certain expenses which should have been divided between
that and another town. Jb.
37. If a collector of taxes keeps property which he has distrained
beyond the time within which it could be legally sold, he becomes a
trespasser ab initio. Farnsworth Co. v. Hand, 65 — 19.
38. A JUSTICE OP THE PEACE, who is related within the sixth
degree of consanguinity to one of the parties to a suit, and is there-
fore disqualified to take a deposition therein, is liable in trespass for
committing a witness for refusing to give his deposition before him
in such case. Call v. Pike, 66 — 350.
39. D. had a contract with the city, made while he was a member
of the city government, for renewing a bridge, which necessitated the
removal of the old structure, and had collected his materials at the
point where they were to be used. A controversy arose between D.
and the city authorities as to the suitableness of the materials, and
the defendant, who was city marshal, by direction of the city author-
ities, for this reason, notified D. and his men not to proceed with the
work. The defendant knew that the plaintiff was in the employ of
D., but on his refusal to desist from the work, arrested him without
a warrant, committed him to jail until a warrant could be procured,
and took him before the municipal court on a charge of obstructing
the highway by removing the planking from the bridge. Held, that,
inasmuch as the city authorities at the time of the arrest had not
claimed that the contract was void because D. was a member of the
city government, but were insisting on its performance, the contract
could not be regarded as an absolute nullity, and that the arrest and
imprisonment of the plaintiff without legal process was not justifiable.
Moore v. Durgin, 68 — 148.
See Oppicbb, p. 402.
(d) Injuries to the person.
40. When a prima facie case of assault and batteiy is sought to be
justified, it is incumbent upon the one who justifies to show that no
more force was used by him than the exigencies of the case called
TRESPASS. 543
for ; that the force was suitable in kind and reasonable in degree.
Manson v. European & N. A. R. R. Co., 62 — 84.
41. By the law of this State, tbe civil remedy of a person injured
by a felonious assault and battery is not suspended till the offender
has been prosecuted criminally. Nowlan v. Qriffin, 68 — 235.
II. PLEADING AND PRACTICE.
42. Trespass quare clausum fregit is to be regarded as a personal
action, and it may be commenced by trustee process. lAnscott v.
FulUr, 57—406.
43. Survival. An action of trespass for double damages to the per-
son by a dog (R. S., 1871, c. 80, § 1), survives the death of the plain-
tiff during its pendency. Prescott v. Knowles, 62 — 277.
44. An action of trespass on the case against a married man for
deceit in leading the plaintiff, a single woman, into a void marriage,
survives against the personal representatives of the defendant.
Withee v. Brooks, 65 — 14.
45. The term "trespass on the case," used in § 8, c. 87, R. S., 1871,
providing that such actions shall survive, may be fairly construed to
mean all actions of tort which are properly designated by the term,
whether of injury to the person or property. lb.
46. Where Maintainable. Trespass quare clausum may be main-
tained in the county where the land is situated, although neither of
the parties to the suit live in that county. Qordon v. Merry, 65 —
168.
47. In an action of trespass under R. S., 1871, c. 95, § 11, to recov-
er treble damages for an entry upon grass land, and taking of grass
therefrom, if the plaintiff alleges in his declaration, substantially in
the language of the statute, the doing of the acts for which he is en-
titled to treble damages, it is not necessary that he should specifically
claim such damages. Black v. Mace, 66—49.
48. Nor is it necessary to conclude the declaration with the words,
"against the form," etc. Ih.
49. Nor to allege a scienter on the part of the defendant, or that
the trespass was wilful and malicious. Ih.
50. Description of the Land. The plaintiff declared for a tres-
pass upon his lot, described as part of lot No. 38, being one-half of all the
land on the east side of the road formerly owned by T. W., etc. The
defendant owned the corresponding lot in the adjoining range, and
contended that his acts were done, not upon lot 38, but upon a gore
of surplus land, where his lot and the plaintiff's should have come
together, but did not. The plaintiff claimed that the line between
them had been so long established by agreement as to become bind-
ing upon them. The exceptions stated that the only question at issue
was the title to the premises, where the trespass was alleged to have
been committed. It did not appear that the presiding judge had his
attention called to the sufficiency or correctness of the description in
the writ. Held, that there was not enough in the case presented to
show that the locus was not well described in the plaintiff's writ.
Woodward v. Robinson, 67 — 565.
51. Held, also, that if the plaintiff or his predecessors, by a valid
644 TRESPASS — TRIAL JUSTICES.
agreement â– with the defendant or Ms predecessors, had included in
his close more or less of the surplus land which the defendant sup-
posed the former liberal system of admeasurements had left between
the lots, and had held possession long enough to give him a good
title, it became to all legal and practical intents a part of lot 38, and
the defendant could not complain that it was so described. 1 b.
III. EVIDENCE. *
52. In trespass for breaking and entering plaintiff's close and car-
rying away therefrom certain personal property, the unlawful break-
ing and entering constitute the gist of the action, and must be proved
in order to maintain it. Dingley v. Buffum, 57 — 379.
53. To sustain an action of trespass quare clausum against one hav-
ing no right to be upon the premises, the plaintiff put in evidence a
deed of quitclaim to himself from one who never had either title or
possession. The deed was never recorded until after the trespass
complained of, and it did not appear that the plaintiff ever had pos-
session under it. Held, insufficient. Savage v. Holyoke, 59 — 345.
54. A certified copy of a certificate of the entry by the mortgagee
of a mortgage given by a married woman in 1845 to secure the pur-
chase-money of land conveyed to her, on June 4, 1847, for the pur-
pose of foreclosing it, in the absence of any evidence that such posses-
sion was continued, would not be sufficient evidence of possession to
enable him to maintain trespass for acts happening twenty years
thereafter. lb.
55. In trespass quare clausum, the possession is presumed to be in
the owner of the legal title, in the absence of all other evidence.
Griffin v. Creppin, 60 — 270.
56. In trespass quare clausum, if the plaintiff was not in possession
at the time of the trespass, but produces a deed dated and recorded
prior to that time, the defendant may show that the deed was not
actually delivered until after the commencement of the action. Maxr
well V. Mitchell, 61 — 106.
57. If county commissioners had jurisdiction to commence proceed-
ings for the location of a way the question of the validity of their
subsequent proceedings can not be raised in an action of trespass
quare clausum, against those employed in building it. - Cyr v. Du-
four, 62—20.
58. In trespass quare clausum, if the declaration is supported by
the evidence as to the number of the lot, of the acres it contained and
the town in which it was situated, the plaintiff may have a verdict,
notwithstanding there is a failure to prove other elements of the
description of the land. QoockoiriY. Jack,^ — 4I4i!
TRIAL JUSTICES.
See Bastaedt, 4, p. 58. Justice of the Peace, p. 332.
TEOVEE. 645
TROVER.
I. WHEN IT LIES.
II. CONVERSIOK.
III. PEACTICE.
I. WHEN IT LIES.
1. Trover does not lie acjainst a bailee for goods lost by or stolen
from him. Dearborn v. Union Nat. J3ank, 58 — 273.
2. Trover can not be maintained against a bank for bonds deposited
therein but which have either been lost or stolen. lb.
3. Trover will not lie against a bailee who, without notice of a
revocation of his authority, sells property intrusted to him for sale.
Jones V. Hodgkins, 61 — 480.
4. A. bought lumber of B. to be surveyed by a person agreed upon,
and paid for according to the survey. B. procured the survey to be
made. A. paid for the lumber according to the contract, and on the
same day, without seeing it, re-sold it, at the same survey, to C.
Afterwards B., claiming that a car load of the lumber was omitted
from the survey, brought trover against A., but it was held, that it
could not be maintained. Eaines v. TricJcey, 62 — 126.
5. Foe Note. Trover may be maintained by the maker against the
payee for the conversion or wrongful withholding of his paid promis-
sory note. Neal v. Hanson, 60 — 84. Otisfield v. Mayberry, 63 — 197.
6. If a selectman, having a paid note of his town in his hands for
cancellation, should fraudulently transfer it for value to a bona fide
holder, to whom it is paid by the treasurer in ignorance of the facts,
the town may maintain trover against the selectman for the note.
QUsfield V. Mayberry, 63 — 197.
7. Trover will not lie for a note given for an illegal consideration.
Morrill v. Ooodenow, 65 — 178.
8. Demand. If the owner of an article of personal property
delivers it to another to sell, the latter has no right to deliver it to his
creditor in payment of his own pre-existing debt ; and if he does so,
the owner may maintain trover against the creditor without a previ-
ous demand. Rodick v. Coburn, 68 — 170.