SOCIETY FOR PROPAGATION OF GOSPEL V. TOWN OF PAWLET, 29 U. S. 480 (1830)Subscribe to Cases that cite 29 U. S. 480
U.S. Supreme Court
Society for Propagation of Gospel v. Town of Pawlet, 29 U.S. 4 Pet. 480 480 (1830)
Society for the Propagation of the Gospel v. Town of Pawlet
29 U.S. (4 Pet.) 480
ON DIVISION OF OPINION AMONG THE JUDGES OF THE CIRCUIT
COURT OF THE UNITED STATES FOR THE DISTRICT OF VERMONT
Ejectment to recover a lot of land, being the first division lot laid out to the right of the society in the Town of Pawlet. The plaintiffs are described in the writ as
"The Society for the Propagation of the Gospel in Foreign Parts, a corporation duly established in England within the dominions of the King of the United Kingdom of Great Britain and Ireland, the members of which society, are aliens, and subjects of the said King."
The defendants pleaded the general issue of not guilty. The general issue admits the competency of the plaintiffs to sue in the corporate capacity in which they have sued.
If the defendants meant to insist on the want of a corporate capacity in the plaintiff's to sue, it should have been insisted upon by a special plea in abatement or bar. Pleading to the merits has been held by this Court to be an admission of the capacity of the plaintiffs to sue. The general issue admits not only the competency of the plaintiffs to sue, but to sue in the particular action which they bring.
In the record there is abundant evidence to establish the right of the corporation to hold the land in controversy. It is given to them by the royal charter of 1761 which created the Town of Pawlet. The society is named among the grantees, as "The Society for Propagating the Gospel in Foreign Parts, to whom one share is given." This is a plain recognition by the Crown of the existence of the corporation and of its capacity to take. It would confer the power to take the land even if it had not previously existed.
The statutes of limitation of Vermont interpose no bar to the institution by the Society for the Propagation of the Gospel, &c., of an action for the recovery of the land in controversy.
The plaintiffs are a foreign corporation, the members of which are averred to be aliens and British subjects, and the natural presumption is that they are residents abroad.
The act of the Legislature of Vermont, which prohibits the recovery of mesne profits in certain cases, applies to the claims to such profits by the plaintiffs in this suit, and the provisions of the treaty of peace of 1783, and those of the treaty with Great Britain in 1794, do not interfere with the provisions o€ that act. The law has prescribed the restrictions under which mesne profits shall be recovered, and these restrictions are obligatory on the citizens of the state. The plaintiffs take the benefit of the statute remedy to recover their right to the land, and they must take the remedy with all the statute restrictions.
The action was an ejectment, brought to recover "the chanroblesvirtualawlibrary
first division lot laid out to the right of said society in Pawlet, containing fifty acres."
The cause was tried at October term, 1828, and after the testimony on both sides was closed, the jury was discharged upon the disagreement of the judges of the court on the several points herein stated arising upon the facts agreed in the case and stated by the counsel for the parties. The facts agreed were,
On 26 August, 1761, George III, then King of Great Britain, by Benning Wentworth, Esq., Governor of the then Province of New Hampshire, made the grant or charter to the Town of Pawlet aforesaid, particularly describing the boundaries thereof to the grantees, whose names are entered on said grant, their heirs and assigns forever, to be divided to and among them into sixty-eight shares. Among the grantees whose names are entered in the said charter is "one whole share for the Society for the Propagation of the Gospel in Foreign Parts." A copy of the charter was filed among the proceedings.
And afterwards, on 16 April, 1795, Ozias Clarke executed the counterpart of a lease to the selectmen of the Town of Pawlet, for the time being, for and on behalf of said town, his heirs, executors, administrators and assigns, of the tract of land mentioned in the plaintiffs' declaration, described as follows, to-wit, all that tract of land, situate, lying and being in Pawlet aforesaid, known and distinguished by being the first division fifty-acre lot, laid out to the right known by the name of the Society, or Propagation Right, to have and to hold the demised premises, with the privileges and appurtenances thereto belonging, &c., from 16 April, 1795, and onwards as long as trees grow and water runs -- his yielding and paying yearly, and at the end of every year, the sum of seven pounds lawful money, &c. A copy of the lease was annexed and made part of this case. And thereupon Ozias Clarke entered into the immediate possession and occupancy of the said lot of land, and has been ever since in the possession and occupancy of the same, and has paid the rent aforesaid to the Town of Pawlet, yearly and every year since, at the rate of seven chanroblesvirtualawlibrary
pounds, equal to twenty-three dollars and thirty-four cents, for each year, and the Town of Pawlet has received the said sum as rent yearly from Ozias Clarke, and has applied the same for the benefit of schools in the Town of Pawlet. And Edward Clarke, the father of Ozias Clarke, went into the possession of the lot in the spring of the year 1780, it not appearing that he had purchased any title thereto, and so continued in the possession thereof till the defendant entered.
The case agreed contains extracts from the minutes of the society stating the proceedings thereof at their meetings in London relative to the land in Vermont granted by Governor Wentworth to the society. The first meeting was held on 16 July, 1762, and these minutes show the measures adopted by the society relative to the lands from that period down to 1810.
The proceedings on 16 July, 1762, and 16 March, 1764, show an acceptance of the donation and a resolution that agents be appointed to take charge of the patents and warrants for the land, and for such other purposes as the interests of the society may require.
At a meeting of the society held December 17, 1773, the society agreed that it be recommended to the society to empower Mr. Cossitt to see that justice be done to the society in the allotment of glebes, &c., in New Hampshire.
The society resolved to agree that a letter of attorney be sent to the Governor of New Hampshire empowering Mr. Cossitt to act in behalf of the society with regard to these lands, and leaving blanks for other persons whom the governor may think proper to insert.
On 20 May, 1785, a report was made to the society relative to its lands, and the meeting resolved that the secretary do write to some one or more members of the church of England in each of the states of America in which the society has any property to take all proper care in securing said property, and further to inform such persons that it is the intention of the society to make over all such property to the use of the episcopal church in that country, in whatever manner and form, after communication with the chanroblesvirtualawlibrary
several governments, shall appear to be most effectual for that purpose.
On 16 May, 1794, an application was made to the society through the Bishop of New York by the episcopal convention of Vermont requesting the society to convey, for the support of the episcopal church of that diocese, the land held by the society in Vermont, under grants from New Hampshire. The committee of the society made a report as follows:
The committee agreed in opinion that the Bishop of New York be assured of the society's readiness to concur in any measures which can forward the establishment of an episcopal church. But having considered that former applications have been made from the State of Vermont, differing in their intentions from the present, which were rejected by the society in May, 1790, and at the same time Mr. Parker of Boston, when he obtained a deed from the society for the conveyance of their lands in New Hampshire, had signified that he should not trouble them respecting Vermont till he should know the operation of that deed, and having never since heard from Mr. Parker on that subject, are of the opinion that there is not sufficient ground for the society to execute the present deed.
At a meeting of the society on 16 November, 1810, the secretary of the society was directed to obtain the fullest and most particular information respecting the nature and value of the rights of the society to the lands in Vermont, with the best means of recovering and rendering the same available.
In consequence of certain votes of the society expressive of its intention to appropriate the avails of their lands in the State of Vermont for the use of the protestant episcopal church in that state, the convention of the church in that state made application to the society for the power of attorney, and the said society executed to the Right Rev. Alexander V. Griswold, bishop of the eastern diocese, and the other agents therein named, the power of attorney, dated December 5, 1816, a copy of which was annexed to the case. chanroblesvirtualawlibrary
The act of the Legislature of Vermont passed October 27, 1785, entitled an act for settling disputes respecting landed property; an act entitled an act for the purpose of regulating suits respecting landed property, and directing the mode of proceeding therein, passed November 5, 1800; also, the several acts to keep the acts last aforesaid in force for later periods than those contained in said act; an act passed November 15, 1820, entitled an act for the purpose of regulating suits respecting landed property, and directing the mode of proceeding therein; and all the statutes ever passed in Vermont for the limitation of actions, and all the additions thereto, as found in the several statute books, including the act passed November 16, 1819, entitled an act repealing parts of certain acts therein mentioned; an act passed October 26, 1787, authorizing the selectmen of the several towns to improve the glebe and society's lands, and an act in addition thereto, passed October 26, 1789; an act passed October 30, 1794, entitled an act directing the appropriation of the lands in the state, heretofore granted by the British government to the Society for the Propagation of the Gospel in Foreign Parts, and all other statutes of said state, that either party considers applicable to this case, are to be considered as a part of this case.
Upon the foregoing case, the opinions of the judges of the circuit court were opposed upon the following points:
1. Whether the plaintiffs have shown that they have any right to hold lands?
2. Whether the plaintiffs are barred by the three years' limitation in the act of 27 October, 1785, or any other of the statutes of limitation?
3. Whether, under the laws of Vermont, the plaintiffs are entitled to recover mesne profits, and if so for what length of time? chanroblesvirtualawlibrary
MR. JUSTICE STORY delivered the opinion of the Court, MR. JUSTICE BALDWIN dissenting on the first point.
The original action was an ejectment, in the nature of a real action, according to the local practice, in which no fictitious persons intervene, and it was brought in May, 1824, to recover a certain lot of land, being the first division lot chanroblesvirtualawlibrary
laid out to the right of a society in the Town of Pawlet. The plaintiffs are described in the writ as
"The Society for the Propagation of the Gospel in Foreign Parts, a corporation duly established in England within the dominions of the King of the United Kingdom of Great Britain and Ireland, the members of which society are aliens and subjects of the said King."
The defendants pleaded the general issue, not guilty, which was joined, and the cause was submitted to a jury for trial. By agreement of the parties at the trial, the jury was discharged from giving any verdict upon the disagreement of the judges upon the points growing out of the facts stated in the record. Those points have been argued before us, and it remains for me to pronounce the decision of the Court.
The first point is whether the plaintiffs have shown that they have any right to hold lands.
In considering this point, it is material to observe that no plea in abatement has been filed denying the capacity of the plaintiffs to sue, and no special plea in abatement or bar that there is no such corporation as stated in the writ. [Footnote 1] The general issue is pleaded, which admits the competency of the plaintiffs to sue in the corporate capacity in which they have sued. If the defendants meant to have insisted upon the want of a corporate capacity in the plaintiffs to sue, it should have been insisted upon by a special plea in abatement or bar. Pleading to the merits has been held by this Court to be an admission of the capacity of the plaintiffs to sue. @ 26 U. S. 450. [Footnote 2]
But the point here raised is not so much whether the plaintiffs are entitled to sue generally as a corporation as whether they have shown a right to hold lands. The general issue admits not only the competency of the plaintiffs to sue, chanroblesvirtualawlibrary
but to sue in the particular action which they bring. But in the present case, we think there is abundant evidence in the record to establish the right of the corporation to hold the lands in controversy. In the first place, it is given to them by the royal charter of 1761, which created the Town of Pawlet. Among the grantees therein named is "The Society for the Propagation of the Gospel in Foreign Parts," to whom one share in the township is given. This is a plain recognition by the Crown of the existence of the corporation, and of its capacity to take. It would confer the power to take the lands, even if it had not previously existed. And the other proceedings stated on the record establish the fact that the society had received various other donations from the Crown of the same nature and had accepted them. Besides, the act of 1794, under which the Town of Pawlet claims the lands, distinctly admits the existence of the corporation and its capacity to take the very land in controversy.
"Whereas," says the act,
"the Society for the Propagation of the Gospel in Foreign Parts is a corporation created by and existing within a foreign jurisdiction, to which they alone are amenable, by reason whereof, at the time of the late Revolution of this and of the United States from the jurisdiction of Great Britain, all lands in this state, granted to the Society for the Propagation of the Gospel in Foreign Parts, became vested in this state,"
And the act then proceeds to grant the right of the state so vested in them to the various towns in which they are situated. So that the title set up by the state is under the society, as a corporation originally capable to take the lands and actually taking them, and their title being divested, and vesting in the state by the Revolution. In the latter particular the legislature was mistaken in point of law. This Court had occasion to decide that question in 21 U. S. 450, the Court held evidence far less direct and satisfactory prima [email protected] evidence of the corporate character of the plaintiffs. A certificate ought accordingly to be sent to the circuit court in answer to the first question that the plaintiffs have shown that they have a right to hold the lands in controversy.
The second point is whether the plaintiffs are barred by the three years' limitation in the Act of 27 October, 1783, or any other statute of limitations of Vermont.
The act of 1785 recites in the preamble that many persons have purchased supposed titles to lands within the state and have taken possession and made large improvements, &c. It then proceeds to provide in the first eight sections for the allowance of improvements, &c., to the tenants, in cases of eviction under superior titles. There is a proviso which prevents these sections from extending to anything future. The ninth section is as follows:
"Provided always, and it is hereby further enacted by the authority aforesaid, that this act shall not extend to any person or persons settled on lands granted or sequestered for public, pious, or charitable uses, nor to any person who has got possession of lands by virtue of any contract made between him and the legal owner or owners thereof."
The tenth section provides that nothing in the act shall be construed to deprive any person of his remedy at law against his voucher. The eleventh and last section is as follows:
"That no writ of right or other real action, no action of ejectment or other possessory action of any name or nature soever, shall be sued, prosecuted or maintained for the recovery of any lands, tenements, or hereditaments where the cause of action has accrued before the passing of this act unless such action be commenced within three years next after the 1st of July in the present year of our Lord, 1788. "
Now in order to avail themselves of the statute bar under this last section, it is necessary for the defendants to show that the cause of action of the plaintiffs accrued before the passing of that act. To establish that, it is necessary to show that there had been an actual ouster of the plaintiffs by some person entering into possession adversely to the plaintiffs. No such ouster is shown upon the facts. It is indeed stated
"that Edward Clarke, the father of the said Ozias Clarke, went into possession of the said lot in the spring of the year 1780, it not appearing that he had purchased any title thereto, and so continued in possession thereof until the said defendant entered as aforesaid,"
that is, under the lease of the town. Edward Clarke is therefore to be treated as a mere intruder without title, and no ouster can be presumed in favor of such a naked possession. And it is not unworthy of notice that the fourth section of the act of 1785 provided
"That no person who hath ousted the rightful owner or got possession of any improved estate by ouster otherwise than by legal process shall take any advantage or benefit by this act."
So that a plain intention appears on the part of the legislature not to give its protection to mere intruders who designedly ousted the rightful owners.
It is also to be considered that the defendants do not assert any claim of title under him or in connection with him, and the other circumstances of the case lead to the presumption that he never set up any possession adverse to the society's rights, for the possession was yielded without objection to the town when the act of 1794 enabled the town to assert a title to it.
The act of 1785, being then in terms applicable only to cases where the cause of action accrued before the passing of that act, cannot govern this case where no such cause existed. There is, moreover, another difficulty in setting it up as a bar if the proviso of the ninth section extends, as we think it does, to every section of the act. It has been argued by the counsel for the defendants that the ninth section ought to be restricted in its operation to the eight preceding sections. But we see no sufficient reason for this. The words are "that this act shall not extend," &c., not that chanroblesvirtualawlibrary
the prior sections of this act shall not extend, &c. It would be strange indeed if the legislature should interfere to prevent any improvements being paid for, in cases of lands granted or sequestered for public, pious, or charitable uses, and yet should allow so short a period as three years to bar forever the right of the grantees for charity. There are good grounds why statutes of limitation should not be applied against grants for public, pious, and charitable uses when they may well be applied against mere private rights. The public has a deep and permanent interest in such charities, and that interest far outweighs all considerations of mere private convenience. The Legislature of Vermont has thought so, for we shall find in its subsequent legislation that it has by a similar provision excepted from the operation of all the subsequent statutes of limitation grants to such uses. There is then no reason why the court should construe the words of the ninth section as less extensive than their literal import. The case ought to be very strong which would justify any court to depart from the terms of an act, and especially to adopt a restrictive construction which is subversive of public rights and justified by no known policy of the legislature. We feel compelled, therefore, to construe the words that "this act shall not extend, &c.," as embracing the whole act, and carving an exception out of the operation of the eleventh section of it.
Let us then see how far any subsequent statute of limitations of the state applies to the case. The next statute in the order of time is the act of 10 March, 1787, which provided as follows:
"That no writ of right or other real action, no action of ejectment, &c., shall hereafter be sued, &c., for the recovery of any lands, &c., where the cause of action shall accrue after the passing of this act, but within fifteen years next after the cause of action shall accrue to the plaintiff or demandant, and those under whom he or they may claim. And that no person having a right of entry into any lands, &c., shall hereafter thereinto enter but within fifteen years after such right of entry shall accrue."
This act contained no provision excepting grants for public, pious, or charitable uses from its operation. But it contained chanroblesvirtualawlibrary
a proviso that the act should not extend to bar any infant, person imprisoned or beyond seas without any of the United States. The act was prospective, and applied only where the cause of action accrued after the passing of it. This act was superseded and repealed by another act of 10 November, 1797, which constitutes the present governing statute of limitations of the state. It contains, however, a proviso (sec. 13) that the act shall not be construed to extend to or affect any right or rights, action or actions, remedies, fines, forfeitures, privileges, or advantages accruing under any former act of acts, clause, or clauses of acts falling within the construction of that act in any manner whatsoever, but that all proceedings may be had and advantages taken thereon in the same manner as though that act had not been passed, and that the former act or acts of limitation, clause or clauses of acts, which are or were in force at the time of passing the act shall for all such purposes be and remain in full force. This proviso preserved the operation and force of the act of 1787, as to causes of action accruing in the intermediate period between the act of 1787 and the act of 1797.
In this view of the matter, it is important to consider the entry of the defendant under the lease of the town on 16 April, 1795. If that entry was adverse to the title of the plaintiffs, then the act of 1787 began to run upon it from that period, for the cause of action of the plaintiffs then accrued to them by the ouster.
It has been contended by the plaintiffs' counsel that the entry of Clarke under the lease in 1795 was an entry for the plaintiffs and in virtue of their title, and not adverse to it. We do not think so. The Town of Pawlet claimed the right to the property not as tenants to or subordinate to the right of the plaintiffs, but as grantees under the state. Their title, though derivative from and consistent with the original title of the plaintiffs, was a present claim in exclusion of and adverse to the plaintiffs. They claimed the possession as their own, in fee simple, and not as the possession of the plaintiffs. A vendee in fee derives his title from the vendor, but his title, though derivative, is adverse to chanroblesvirtualawlibrary
that of the vendor. He enters and holds possession for himself, and not for the vendor. Such was the doctrine of this Court in [email protected] 20 U. S. 547-548. The lessee in the present case did not enter to maintain the right of the plaintiffs, but of the town. He was not the lessee of the plaintiffs, and acquired no possession by their consent or with their privity. This entry then was adverse to any subsisting title in them, and with an intention to exclude it. It was therefore, in every just sense, an entry adverse to, and not under, the plaintiffs.
The case then falls within the act of 1787, and unless the plaintiffs are "beyond seas" within the proviso of that act, they would, upon the mere terms of that act, be barred. The facts stated upon the record do not enable us to say whether there is absolute proof to that effect. The plaintiffs are a foreign corporation the members of which are averred to be aliens and British subjects, and the natural presumption is that they are resident abroad. If so, there cannot be a doubt that they are within the exception. If any of the corporators were resident in the United States, then a nicer question might arise as to the effect of the proviso, whether it applied to the corporation itself or to the corporators as representing the corporation. But this it is unnecessary to devise, and on this we give no opinion.
There is the less reason for it because, by a subsequent act passed on 11 November, 1802 (long before the fifteen years under the act of 1787 had run), it was provided
"That nothing contained in any statute of limitations heretofore passed shall be construed to extend to any lands granted, given, sequestered, or appropriated to any public, pious, or charitable uses, or to any lands belonging to this state. And any proper action of ejectment or other possessory action may be commenced, prosecuted, or defended for the recovery of any such land or lands, anything in any act or statute of limitations heretofore passed to the contrary notwithstanding."
This act of course suspended the act of 1787 as to all cases within its purview. That the grants to the Society for the Propagation of the Gospel were deemed to be grants for pious and charitable used within it is chanroblesvirtualawlibrary
apparent from the subsequent legislation of the state, as well as from the objects of the institution. In November, 1819, the legislature passed an act repealing this exception so far as related to the rights "of lands in the state, granted to the Society for the Propagation of the Gospel in Foreign Parts," thus plainly declaring that they were previously protected by it. This repeal cannot have any retrospective operation as to let in the general operation of the statute of limitations in the intermediate period between 1802 and 1819, but must upon principle be held to revive the statute only in future. The present suit was brought in 1824, and the statute period of fifteen years had not then run against the plaintiffs.
It is unnecessary to enter upon the consideration of the statute of limitations of 1797, which contains similar provisions as to this subject with that of 1787, and the exception of persons "beyond seas." Charitable and pious grants were not excepted from its operation, but that defect was cured by an act passed on 26 October, 1801, in terms similar in substance to those of the act of 1802 already referred to. The act of 1797 applies in terms only to future causes of action, to causes of action accruing after the passing of the act, and limits the action to the period of fifteen years. If it had applied to the present case, it would have been open to the same reasoning upon the exceptions which have been already suggested in reference to the act of 1787.
Upon this second question, our opinion is that a certificate ought to be sent to the circuit court that the plaintiffs are not barred by the three years' limitation in the Act of 27 October, 1785, or by any other of the statutes of limitations of Vermont.
The next point is whether, under the laws of Vermont, the plaintiffs are entitled to recover mesne profits, and if so for what length of time.
Previous to the year 1797, the English action of ejectment was in use in Vermont, and the common law applicable to it, as well as the action for mesne profits consequential upon recovery in ejectment. By an act passed on 2 March, 1797, the mode of proceeding was altered. chanroblesvirtualawlibrary
The suit was required to be brought directly between the real parties and against both landlords and tenants, and by that and a subsequent act the judgment was made conclusive between the parties. It was further provided that in every such action, if judgment should be rendered for the plaintiff, he should recover as well his damages as the seizin and possession of the premises. This provision has ever since remained in full force, and has superseded in such cases the action for mesne profits. In November, 1800, an act was passed declaring
"That in all actions of ejectment which now are or hereafter may be brought, the plaintiff shall recover nothing for the mesne profits except upon such part of said improvements as were made by the plaintiff or plaintiffs or such person or persons under whom he, she, or they hold."
The act contained a proviso that it should not extend to any person or persons in possession of any lands granted for public or pious uses. This act continued in force until November, 1820, when an act passed containing the same general provision as to the mesne profits, but the proviso in favor of lands granted to pious and charitable uses was silently dropped, and must be deemed to be repealed by implication.
The question, then, is whether the act of 1820 does not take away the right to mesne profits in this case, for the state of facts does not show that any improvements have ever been made by the plaintiffs. The treaty of peace of 1783, the British treaty of 1794, do not apply to the case. The right of action, if any, of the plaintiffs, did not accrue until the year 1795. The entry then made by the defendants was the first ouster, and at that time, in the action of ejectment, the plaintiffs could not have recovered any damages, but would have been driven to an action of trespass for mesne profits. The legislature was competent to regulate the remedy by ejectment, and to limit its operation. It has so limited it. It has taken away by implication the right to recover mesne profits, as consequential upon the recovery in ejectment, and given the party his damages in the latter action. It has prescribed the restrictions upon which mesne profits shall be recovered, and these restrictions are chanroblesvirtualawlibrary
obligatory upon the citizens of the state. The plaintiffs have not, in this particular, any privileges by treaty beyond those of citizens. They take the benefit of the statute remedy to recover their right to the lands, and they must take the remedy with all the statute restrictions.
Upon this last question our opinion is that it ought to be certified to the circuit court that under the laws of Vermont the plaintiffs are not entitled to recover any mesne profits, unless so far as they can bring their case within the provisions of the third section of the Act of 15 November, 1820.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Vermont, and on the points or questions on which the judges of the said circuit court were opposed in opinion, and which points or questions were certified to this Court for its opinion, in pursuance of the act of Congress for that purpose made and provided, and was argued by counsel, on consideration whereof, it is ordered by this Court, that it be certified to the said circuit court, on the points aforesaid, that this Court is of opinion, 1. that the plaintiffs have shown that they have a right to hold lands, and especially the lands in controversy; 2. that the plaintiffs are not barred by the three years limitation in the act of 27 October, 1785, or by any other of the statutes of limitations of Vermont, and 3. that under the laws of Vermont, the plaintiffs are not entitled to recover any mesne profits unless so far as they can bring their case within the provisions of the third section of the Act of Vermont of 15 November, 1820. All of which is accordingly hereby certified to the said Circuit Court of the United States for the District of Vermont.
Comyn's Dig. Abatement, E. 16; Mayor of Stafford v. Bolton, 1 Bos. & Pull. 40; 1 Saunders 340; Williams' Notes; 6 Taunt. 467; 7 Taunt. 546.
See the case of Sutton Hospital, 10 Co. 30b; Comyn's Dig. Franchise, F. 6, 10, 11, 15; Capacity, A. 2. See also Proprietors of Kenebeck Purchase v. Call, 1 Mass. 482, 484; Mayor of Stafford v. Bolton, 1 Bos. & Pull. 40; 1 Saunders 340, note by Williams.