
    Commonwealth versus The Pejepscut Proprietors.
    Where the legislature, by a public resolve, had declared that a certain monument was, and was considered, as the monument mentioned and intended in an ancient Indian deed, under which a title was .derived to certain propiietors, the commonwealth was estopped from afterwards showing that such mi nument was not the one intended in such deed
    
      This was the same information for an intrusion by the defendants on certain lands, therein alleged to belong to the commonwealth, the substance of which is recited in the report of a former judgment rendered thereon. (Ante, vol. vii. p. 399, &c.)
    It was tried on the general issue, at the last October term, in this county, before Thatcher, J., and a verdict returned for the respondents.
    In the course of the trial, after the Attorney-General had exhibited to the jury the evidence of the title of the commonwealth to the lands demanded in the information, and after the defendants had exhibited, on their part, the evidence of their title to the same lands; and, among other things, a conveyance by deed from Warrumbee, and others, Indian sagamores, to Richard Wharton, dated July 7, 1684, under which the respondents claim, and a certain resolve of the General Court of the late Province of Massachusetts Bay, dated June 10, 1715, and also the following resolve, viz.:— “Province of Massachusetts Bay — In Senate, March 8,1787. —Resolved, that the Twenty-Mile Falls, so called, in Andros- [ * 156 ] coggin River, being about twenty miles from * Brunswick Great Falls, so called, be and they are hereby considered the uppermost falls, called the uppermost great falls in Androscoggin River, referred to in the deed from Warrumbee and six other Indian sagamores, confirming the right of Richard Wharton and Thomas Purchase, executed July 7, in the year of our Lord 1684, in the thirty-fifth year of the reign of King Charles the Second. And it is further resolved, as the boundaries of the Pejepscut Company, so called, have not been ascertained, that the committee on the subject of the unappropriated lands in the counties of Lincoln and Cumberland be, and they are hereby directed not to locate or dispose of any lands lying upon Androscoggin River, and between said river and lands claimed by the Plymouth Company, to the southward of the south line of Bakerstown, bounded at the said great fall in Androscoggin River aforesaid, on the west of the south line of Port Royal on the east of said Androscoggin River. In the House of Representatives, read and concurred. Approved by the governor.” The attorney-general offered to show, by the depositions and testimony of aged witnesses, and by other evidence, that the true boundary line of the tract of land granted to the said Pejepscut proprietors, according to the said deed of the said Warrumbee and others, and the falls therein mentioned as the boundaries of the land conveyed to them, were the same, and not different from the falls now called Brunswick Falls in the town of Brunswick; and that the place then called Pejepscut, in said deed of Warrumbee and others, lay and was situate below the said Brunswick Falls; and to show that said Brunswick Falls were the falls referred to in the said deed; that Thomas Purchase, named in said deed, lived at a place in said Pejepscut called Stephens’s Carrying Place; and that certain agents of the said Pejepscut proprietors, before 1787, by their declarations and documents, acknowledged that the said Brunswick Falls were the falls mentioned in the deed aforesaid as the uppermost boundary of their title.
    *But the counsel for the defendants objected to the [ * 157 ] admission of any such evidence; and contended that the said resolve of March 8, 1787, was sufficient in law to estop the commonwealth from showing any evidence of the facts which the attorney-general offered to prove as aforesaid. And after hearing the said attorney-general in reply, the judge who sat in the trial gave his opinion, that the said resolve was sufficient, &c., and the evidence was accordingly rejected.
    The attorney-general, in behalf of the commonwealth, filed exceptions to the said opinion, and moved for a new trial.
    The same question arose in the counties of Lincoln and Ken- . nebeck, upon a demurrer to the rejoinder of the defendants, setting forth the foregoing resolve, and relying upon it as an estoppel to the commonwealth.
    The cause was called up for argument at the last March term, in Suffolk, and was then argued upon the demurrers, as well as upon the motion for a new trial, by Morton, attorney-general for the commonwealth, and by Dexter and Jackson for the defendants.
    
      Morton. Estoppels are not to be favored.  A party may take every legal advantage to evade an estoppel; and on this ground I say that the resolve in evidence on the trial, and spread upon the record in the pleadings, is not the act of the legislature of this commonwealth. It is entitled of the- “ Province of Massachusetts Bay,” not of the commonwealth of Massachusetts.
    
    The mere act of one party, which is not binding on the other party, as is the case here, will not estop.  Estoppels should be certain to every intent.  But the resolve in question purports no more than to express an opinion as to the bounds of the tract of land to which it refers. The direct and principal object is to prohibit the committee from locating grants within a disputed territory. As an estoppel, it is merely argumentative. Where the truth appears, an estoppel shall not operate.  Here the resolve, *in the latter part of it, acknowledges the [*158 1 boundary to be in dispute, and in this is inconsistent with itself. Had the commonwealth been permitted, on the trial, we should have produced documents of equal validity with this resolve; and one estoppel against another sets the matter at large.
    
      For the defendants.
    
    This resolve bears date in 1787, when there was a commonwealth, and no province, of Massachusetts. It is certified to be part of the records of the commonwealth. It originated in the Senate; but the province had no such body. It is approved by the governor of the commonwealth. Its title is merely a mistake, but cannot lessen is validity or force.
    But the construction of the resolve is of much more importance than the clerical mistake in its title. Its principal object was not to give directions to the committee on unappropriated lands; but first to settle and put at rest forever a question, supposed before to be involved in some doubt and uncertainty. Accordingly the language of the first clause is peremptory. The second clause, after premising that the boundaries had not been ascertained, or run out, directs the committee to locate no grants within certain conjectural lines, with a view to prevent a conflict between different patentees.
    It is to be presumed that the Pejejpscut proprietors were a party to this resolve, by consenting to its passage, and thus it became a final compromise; but, if they did not consent at the time, their after acceptance amounts to the same thing, and is binding on the commonwealth.
    Estoppels are odious only when one is entrapped or defrauded by them. The prerogative of the sovereign extends only to avoid estoppels of that character, and never to avoid grants fairly obtained. By these the sovereign is bound equally with the subject. If the commonwealth would have avoided the estoppel in this case, on the ground of fraud or imposition, it should have been replied, that the respondents might have had opportunity to traverse it. The same law applies to the trial by the jury.
    *But the the to estoppels belonged to the king, by the common law, as the supreme executive. It was never applied to the legislature ; and it is a legislative act, on which the respondents rely in the ease at bar.
    The opinion of the Court was delivered at this term by
    
      
       4 D. & E. 254.
    
    
      
      
        Co. Lit. 352, a. — Cro. Eliz. 700. — 1 D. & L. 86
    
    
      
      
        Co. Lit. 352, b.
    
    
      
      
        Co. Lit 352, b — 1 D. & E. 86.
    
   Sew all, J.

The decision, now to be pronounced in this cause, is upon the motion for a new trial. The question which has neon considered in this view of the case, is the same which arises upon the demurrer to the rejoinder of the defendants; and the arguments at the bar were applied, with the same purpose, to the issue in law, and to the state of the evidence upon the issue in fact. The resolve, or legislative act, pleaded as an estoppel in the rejoinder, was regarded as conclusive evidence, or as having the effect of an estoppel or grant in the decision to which the attorney-general excepts. And we have no doubt that the resolve in question must have the same effect, in whichever form it is exhibited. If conclusive in its legal operation, the verdict taken for the defendants must be confirmed ; and the issue in law will be also decided against the commonwealth.

The resolve of March 8, 1787, has all the sanctions which, by any usage, or by the Constitution, are requisite to an act of the legislature of the commonwealth. The misnomer at the head of it is hardly to be regarded as warranting a serious objection, although properly mentioned, as a mark of haste and inconsiderateness in the enactment. The legislature thereby resolve, “ that the Twenty-Mile Falls in Androscoggin River, being about twenty miles from Brunswick Great Falls, &c., be and they hereby are considered the uppermost falls, called the uppermost great falls in Androscoggin River, referred to in the deed from Warrumbee and six other Indian saga-mores, and executed July 7,1684.” The defendants, in their plea in bar, rely on that deed, and a supposed confirmation thereof, by the legislature of the Province of Massachusetts Bay, made to * Thomas Hutchinson and others in the year 1715, from [* 160 J whom the defendants claim and deduce their title. The same deed and confirmation are stated to have been exhibited in evidence at the trial, where the verdict was rendered for the defendants.

The resolve of 1787 is to be examined in this connection: the reference is essential to its meaning and purport, and is equivalent to a recital of the deed itself. ' From this it is manifest that the uppermost falls in Androscoggin River is a station, by which the extent of the grant and title, claimed under the said Indian deed, is to be ascertained, at least in one part of it. For, after the recital of a contract with Thomas Purchase and Nicholas Shapleigh, in which certain lands and islands, particularly named or described, were engaged to them, and mentioning that their relicts and heirs, having reserved accommodations for their several families, sold the remainder of the aforesaid lands and islands to Bichard Wharton, in confirmation of his title and propriety, Warrumbee and the other Indians grant and confirm to him “ all the aforesaid lands from the uppermost part of Androscoggin Falls, four miles westward, and so down to Maquoit.” In the recital of the bargain to Purchase the same boundary is mentioned in these words: all the lands lying four miles westward from the uppermost falls in said Androscoggin River to Maquoit in. Casco Bay; ” and, in a subsequent part of the same deed, where another tract is likewise confirmed to Wharton, this is described with a reference to the same station, which is there mentioned in these words: “ all the lands lying five miles above the uppermost of the said Androscoggin Falls.” The legislature, with an especial reference to this deed, have declared what is, and what shall be considered, this station, — so important in ascertaining the boundaries of the tracts of land, which the defendants claim under that deed.

In the further resolution, which is part of the same legislative act, it is indeed recited, that the boundaries of the Pejep[*161 ] scut Company have not been ascertained. This is * prefatory to the direction therein given to the committee on the subject of the unappropriated lands in the counties of Lincoln and Cumberland, to restrain them from locating or disposing of any lands lying upon Androscoggin River, &c., to the southward of the south line of Bakerstoion, bounded at the said great falls in Androscoggin River; that is, to ihe southward of a line determined by the station which the preceding resolve ascertains. This may be considered as an immediate application of the former resolve to the title and claim of the Pejepscut proprietors. And as to what is said of their boundaries, the two resolves, forming one act, are to receive a consistent construction, if that is practicable; and it certainly is, if we understand by boundaries the lines and limits which are to be settled by admeasurements from this station, assumed and fixed by the legislature ; or if we understand by ascertained a location by monuments, or by other stations, to be determined by actual surveys. The station is conceded and fixed, according to which their boundaries are to be ascertained by admeasurements and monuments.

Either, then, as expressing an opinion, as confirming a grant, or as providing a rule to be observed in subsequent inquiries,-the resolve in question locates the uppermost falls in Androscoggin River at the falls called the Twenty-Mile Falls, about twenty miles above Brunsivick Falls; and this with an especial reference to the title and claim of the defendants summoned on this information.

The present process is contradictory to this legislative act, in whatever light it may be regarded: in this information, the territory extending westwardly from the Androscoggin River, between the Twenty-Mile Falls and the Brunswick Falls, is demanded as the fee and right of the commonwealth ; and the entry of the defendants thereon is alleged to be unlawful. They rely, in answering this information, on their title derived to them under the Indian deed.

The title is not questioned, but only the extent of the [*162] territory * claimed under it; and the attorney-genera avers, and offers to prove, that the place of the uppermost falls is not at the TwentyrMile Falls, but at the Brunswick Falls. Against that averment and evidence, the defendants show the legislative act or resolve of March, 1787. In that the Tiventy-Mile Falls, and the Uppermost Falls in Androscoggin River, are declared to be. two names for the same place; and the legislature implicitly recog nize the claim, if not the title, of the Pejepscut proprietors, to an extent of territory determined in some respect by that station, which is explicitly stated to be about twenty miles above the Brunswick Falls.

We think (Justice Thatcher and Justice Parker concurring in the decision) that the legislative act, brought in question on this information as a matter of evidence, and on the other informations in the pleadings submitted by the demurrers in law, is conclusive against the demand in the name of the commonwealth.

Of the obvious construction and import of these resolves, there can be no question. The legislature did not restrict themselves to intimate an opinion or apprehension, by which the committee for the disposal of eastern lands were to be directed, as the attorney-general contended. This interpretation, and limited application of the resolves, the first particularly, is prevented by the style and manner in which the whole is expressed. The legislature resolve, not only what is, but what shall be, considered by virtue of their act; thus employing their authority to remove doubts which might exist upon the subject thereby determined.

An act of this kind, directly applicable to the rights and claims of individuals, and explicitly referring to them, has the effect of a confirmation or grant, or of a private statute for their direction and relief. A legislative decision, in such case, may not be conclusive upon the individuals concerned ; supposing it rejected by them for good cause, or that an adverse claim should be afterwards maintained, upon further evidence than the legislature may have had to influence * their decision. And it might be [ * 163 ] competent for the legislature, when their decision had not been accepted, or discovering any mistake or deception, to avoid their grant, or to annul their decision, by repealing the legal provision which they had enacted.

In the case at bar, however, there is no averment, or evidence offered, of any rejection by the defendants of the provision made for them by the legislature. Their acceptance of it, their concurrence as virtually parties to it, may be presumed, until an express dissent is proved ; and their pleading, and relying upon it in these proceedings, render the act conclusive upon them. And we may add, that the act has not been repealed; and in directing and authorizing in-formations against these defendants, to bring into question their title in the lands demanded, other motives are avowed than a disposition, on the part of the legislature, to avoid their act of March, 1787 Evidence of the kind thereby established must be regarded as of too high a nature to be contradicted by other proof, particularly when offered in the name of the party, high and respectable as it is, by and for whom the former declaration and act, still remaining in force, had been made. Of a common person we should say, Allegans contraria non est audiendus.

Upon the whole, judgment for the defendants, according to the verdict found for them, is to be rendered on this information, and a new trial is not granted.

Note. — In the counties of Kennebeck and Lincoln, where similar informations were filed, and the same question arose upon the demurrers by the attorney-general to the rejoinders of the defendants, the rejoinders were'adjudged good.

ADDITIONAL NOTE

[Enfield vs. Permit, 5 N. H. 280, acc — F. H.] 
      
       2 Lord Rayrn 1051
     
      
       4 Inst. 273 — 1 Inst. 652. — Hargrave's note, 307
     