
    Josiah Little versus Phinehas Frost.
    The resolve of the General Court, dated March 5, 1801, relating to the Pejepseot proprietors, and to settlers on their lands, being upon a condition to be performed by the said proprietors, and the condition not having been fulfilled, the resolve has no effect.
    This was a real action pending in Cumberland, originally commenced in the year 1794. It was tried upon the review, May term, 1806, at Portland, before Bewail, J., and a verdict for the demandant taken by consent of parties, subject to the opinion of the Court; upon the report of the judge who sat in the trial. And if the Court should be of opinion that the said Frost is justly entitled to the tract of one hundred acres (parcel of the demanded premises) described in the report of Nathaniel Bummer and others, commissioners, and by them set to the said Frost, upon his payment of the sum of 226 dollars, the verdict was to be amended by the Court; and as to the said tract of one hundred acres, the said Frost shall be found not guilty, and judgment shall be rendered for the said Little, to recover the residue only of the demanded premises.
    At the trial the demandant gave in evidence a deed to him from his father, Moses Little, conveying all his right, title, and interest, in the Pejepseot claim, comprising the demanded premises ; also an assignment by the proprietary, of lot number eight, being the tract of land demanded, or comprising the same, to the right originally of Moses Little and Jonathan Bagley; and a conveyance of the estate of Bagley by his executors to the demandant, under the license of Court. It also appeared from the testimony of a witness that, in the year 1769, a survey was made of certain lots, parcel of the land claimed by the Pejepseot proprietors, that the said lots were run out and marked, and that one of them, * lot number eight, was then claimed by the said Moses [ * 107 ] Little and Jonathan Bagley. And finally, on the part of Frost, it was admitted that his defence was not adverse to, and that he claimed under the title of the said Josiah Little, the demandant.
    
      The tenant gave in evidence, 1st. A resolve of the General Court of the commonwealth, dated June 29,1798, authorizing the attorney-general to submit, by a rule of the Supreme Judicial Court, in the county of Lincoln, where it appears an inquest of office had been before filed by the attorney-general, against the proprietors, all, or any of the controversies subsisting between the commonwealth and the Pejepscot proprietors, so called, to the award of any three or five disinterested persons, to be agreed on by the attorney-general, and the agent of the said proprietors. The resolve then recites that disputes and controversies subsisted between the said proprietors, and the persons who have settled and made improvements on the land claimed by said proprietors, and that it was for the interest of all concerned, that some equitable mode should be provided for terminating said disputes, and directs that the attorney- general should be authorized to make the submission aforesaid, provided the said proprietors would stipulate to sell to every settler then on the land, that might be awarded to said proprietors, And remain undivided, one hundred acres of land, to bo so laid out as should best include the improvements of the respective settlers, for so much money, and on such terms as three commissioners, to be appointed by the governor and council, should judge reasonable; and if any dispute should arise in locating the lots to settlers, the same was to be decided by the said commissioners ; and if any of the settlers should neglect or refuse to pay the money determined by the commissioners within the time by them directed, the proprietors should not be holden to sell to the person so neglecting or refusing.
    2d. A rule entered into at the June term of this court in the county of Lincoln, pursuant to the said resolve, by the attorney-general in behalf of the commonwealth, and the present demandant in behalf of the Pejepscot proprietors, submitting the controlé * 108 ] versies mentioned in the said resolve to certain * referees named in the rule, and by which rule the said proprietors, by their agent, made the stipulations required by the said resolve; and a report of the said referees awarding all the lands mentioned and described in the said rule of reference, to the said proprietors, upon condition that they should, within six months, release to the commonwealth all their claim to land lying northwardly of the land awarded to them, by a deed sufficient, in the opinion of the Supreme Judicial Court, or of the attorney-general; which report was accepted by the Court, and judgment entered accordingly.
    3d. A resolve of the General Court, dated March 5,1801, upon the petition of Isaac Collier and others, and of the present demandant, which resolve, after reciting the former resolve of Tune, 1798, and the proceedings under the same, and that the said Josiah Little did, within the time limited, lodge an instrument purporting to be the release awarded by the said referees, but which the attorney-general rejected as insufficient; and that he, the said Josiah, had prayed the General Court to admit, as a satisfaction of the said condition, a deed of release then offered by him; and because the rights of a certain description of the petitioners were overlooked in the former resolve, the present resolve provides that the Supreme Judicial Court be authorized to receive a deed of release from the said proprietors, pursuant to the condition of the report aforesaid ; on condition that the said proprietors, or any person or persons holding lands under them, within certain limits therein mentioned, shall agree to consider the same, so far as it respects the settlers thereon, as undivided lands; and the commissioners, to be appointed by the governor and council in pursuance of the resolve of June 29, 1798, shall value all the said settlers’ lots in the same manner as lots on the undivided lands; and said settlers on all the land aforesaid, whether divided or undivided, shall be quieted in the same way as settlers on the undivided lands are to be quieted by the resolve aforesaid.
    Also a commission dated June 10th, 1803, to Nathaniel Dummei, Esq., and others, and the report and doings of the said commissioners, especially their assignment to the said Frost of one hundred acres of land, parcel of the demanded * premises, [ * 109 ] to be laid out therein in such manner as should best include his improvements, he paying therefor the sum of two hundred and twenty-six dollars, the estimated value thereof, on or before the 25th of December, then next following.
    4th. Also a deed, or writing, under seal, dated October 19th, 1793, but not acknowledged or recorded, purporting to be a conveyance or release by one David Hildreth, of all his right and title in a certain tract of land upon Androscoggin river, to the said Frost; and a similar writing under the hand and seal of one Joseph Welch, dated June 1st, 1795, and acknowledged by him, but not registered, purporting to be a conveyance or release of all his labor, right and title, in a tract of land near the ferry-ways upon Androscoggin river, to said Frost.
    
    It also appeared from the testimony of sundry witnesses, that the said David Hildreth, previously to the year 1793, had lived upon and occupied a part of the demanded premises, then claiming fifty acres parcel thereof, for the purchase of which he applied to the demandant, who refused to sell him any land in that place; that in September, 1793, the said Frost entered upon the land which had been occupied by the said Hildreth, and there, and in other land adjoining, also parcel of the demanded premises, the said Frost was seen employed in cutting down the trees, and in hewing timber, and then expressed his design of building a mill there, and his expectation that a dispute, which he had understood had arisen between the commonwealth and the Pejepscot proprietors, would continue long enough for him to wear out one mill; that he had a house on the demanded premises near the river ; that he was, at the time last mentioned, by the son and agent of the demandant, forbidden to proceed, and required to remove from the said lot, but he nevertheless remained thereon until the commencement of the original action; and that, on the 25th of December, 1803, in consequence of a public advertisement by the said Little, in pursuance of the report of the commissioners, appointing Chadwick’s tavern, in Portland, for the place of payment of all moneys due the Pejepscot proprietors, upon lands awarded by the said commission-[*110 ] ers to any settler or settlers on the undivided * lands of the said proprietors, and undertaking to attend there on that day to receive the same, the said Frost did there attend the whole of that day, and did there tender and offer the said sum of two hundred and twenty-six dollars ; but the said Little was not there attending, and did not receive the same.
    The action was continued nisi for judgment, from term to term, in Cumberland, and came on now to be argued before the Chief Justice, and Sedgwick and Sewall, justices (the two other justices upon the bench having been of counsel in the cause), by the Solicitor-General and Dexter, for the demandant, and by the Attorney-General, for the tenant.
    
      The Attorney-General contended that, by virtue of the several documents, an abstract of which has been given, Frost became entitled to this tract of one hundred acres of land, upon payment of the sum awarded; that, by attending at the time and place appointed by the demandant, and there tendering that sum, he had done all in his power towards perfecting his title.
    
      The Solicitor-General observed that, it appearing by the report of the judge, that Frost’s whole title was, by his own confession, derived from the demandant, the only point remaining was for him to show how the acts of the legislature, and the other documents referred to, had transferred, from the demandant, or from the Pejepscot proprietors, to Frost, their title to the demanded premises.
    
      The Attorney-General said, if that confession on the part of Frost was to receive such a construction, his client had been surprised into what might operate as an abandonment of the only defence he ever considered himself to have. The only way in which he claims ander the Pejepscot proprietors, is by force cf the several resolves of the legislature, and the proceedings which have been had under them. He acknowledges, no title to the land in question in the demandant. He believes the title to be in the commonwealth. As each of these parties claimed the land, the commonwealth made, by the two resolves in the case, a grant of the principal part of it to Little and his associates, the Pejepscot proprietors, on condition that they would relinquish to the settlers on certain terms, to be thereafter ascertained, their * claim to certain portions [*111 ] of it. This grant constitutes all the title which the proprietors have exhibited in the cause. It is, therefore, as to this trial, to be considered their whole title. But the grant was candi tional, as it respected the proprietors, and they have not complied with the condition. The title then remained in the commonwealth. The same resolves, in their spirit and effect, contain a grant to the settlers, of certain portions of the land, also on condition. That condition Frost has complied with, to every legal intent, and the consequence must be, that he may claim all the benefit of the grant to the settlers, as far as it has relation to the lot which he occupied.
    
      The Solicitor-General, who had been of counsel at the trial, said that the report was not made hastily by the judge, but after great consultation with the counsel on both sides; it was not therefore lightly to be construed away. Indeed, the papers produced by Frost, on the trial, plainly show, that he set up no other title than as a settler on the land of the Pejepscot proprietors, claiming to be quieted in that title by virtue of the doings of the legislature, and the various proceedings consequent to those doings.
    The only question in this cause is the effect and operation of the resolve of March 5th, 1801. If by that act the land of the demandant was constitutionally and legally taken from Little and vested in Frost, the Court will unquestionably quiet Frost in his possession of it.
    The judgment of this Court in the case of the commonwealth and the Pejepscot proprietors, is still in full force; the commonwealth, since that judgment, therefore, could not make a grant to Frost, or to any one else.
    It is very plain that the resolve of June, 1798, has no bearing on this question ; its provisions being confined to the lands then remaining undivided, and the demanded premises having been set off in severalty to the original share now holden by the demandant.
    As to the last resolve of March, 1801, the Solicitor-General contended, that it could not affect the private rights of the demandant, or any other individual citizen. It appeared to im to be unconstitutional and void. Indeed, the conditiop. [*112] * annexed to it, that the divided land should be considered as undivided, was absurd and impossible. But in its whole purport there is an option left with the proprietors. They had a right to refuse the favor offered them, if they disliked the conditions annexed to the grant, and they have refused it. The resolve, then, has no effect at all. • The penalty on the proprietors is, that- the commonwealth will not accept their release. The effects of this, be they what they may, the proprietors must suffer. But this does not, in any degree, aid Frost’s title to the land in question.
    
      Dexter, on the same side,
    contended that the whole title exhibited by Frost, was a possession of one year only, before the original action was commenced. It has been already shown that the resolve of 1798 extended only to the lands remaining undivided. If it had gone further, and directed the proprietors to release to settlers, lands which they had before assigned to individuals, it would have commanded what this Court would have told them, notwithstanding the resolve, was unlawful for them to do. That resolve, then, does not bear on this action. The referees awarded to the proprietors and their assigns all the land, the title of which was submitted by the rule. It is true, a condition is annexed to the report, which it does not appear has been complied with. It may be that the report is void on that account, and that the rights of the commonwealth and the proprietors remain as before the submission.
    The whole of the resolve of 1801 is conditional. It requires the Pejepscot proprietors to quiet persons who had settled on the land of other persons, land to which those proprietors, as a body, had no claim of title, and over which they had no control. Much of it was the property of minors, who could not execute a release. The condition was then wholly impossible. The resolve, then, and 911 the proceedings under it, were of no validity.
    But it may be said that the latter clause of this resolve .is imperative and unconditional. “ And said settlers shall be quieted,” &c. The natural and only reasonable construction of that clause, we contend, is, that if the proprietors will agree to consider the divided lands as undivided, then the settlers shall be quieted. [*113] Upon any other construction, * the legislature will be considered as taking the land of A. and giving it to B., in direct violation of the constitution.
    The commission issued properly, because the condition of the first resolve had been fulfilled, and it could not be known that the condition of the second could not be complied with ; but as it never has been conformed to, the proceedings under it, so far as they relate to the divided lands, are merely void, and can have no force or effect. The second resolve was a new offer by the government, to which the present demandant’s consent was necessary, in order to give it any bearing on the land now in question. ~ That consent has never been given.
    It was argued by the attorney-general, that this resolve might be considered as a grant by the commonwealth to the settlers. But there is nothing in the resolve which intimates, in the slightest degree, a claim in the commonwealth as against the demandant. The whole apparent intent of the legislature was to protect the interest of the settlers, by erecting an equitable tribunal, by which the controversies between them, and the proprietors and their assigns, might be adjusted. If this had been considered as a grant by the government, the consideration money would have been made payable into the public treasury. The very provision that the money was to be paid to others, effectually excludes all idea of a grant by the commonwealth. But suppose the title to the whole tract to have been in the commonwealth at the time of the resolve, what is there in the resolve, that amounts to a grant of a hundred acres, or any other portion of the land, to Frost ?
    
      The Attorney-General, in reply, contended that, as between the commonwealth and the parties in this action, nothing has been shown except these resolves, and the proceedings under them, which gives either the demandant or tenant a title against the common wealth. They appear both to be intruders. The demandant was fortunate in intruding first, and thus his title is better than that of the tenant. If the tenant has no title but what he derives from his possession alone, he certainly has no defence in this action.
    This resolve was not to take land from A. and give it to B. It is more properly to be considered as a legislative interference *to adjust disputes between two classes of [*114] settlers, both of them being without right as against the commonwealth.
    The judgment rendered upon the report of the referees was not of the nature of a common judgment of the Court; its purport was no more than an expression of the concurrence of the Court in the report, and a confirmation of the land to the proprietors, upon the conditions and stipulations contained in it. If it was a common judgment in its nature and effect, the legislature have power to set it aside; and indeed the resolve of 1801 might, in that case, be considered as having that effect.
    The preamble of the resolve of 1798 includes settlers on the divided as well as the undivided lands, though the enacting part does not. This accounts for the expression in the second resolve that the rights of certain of the petitioners had been overlooked 
      The intent of the second resolve was to supply the accidenta, omission in the first. Frost has done every thing in his power byway of compliance, and he has all the rights which he would have had, if Little had also fulfilled his part. The latter ought not to take advantage of his own wrong.
    The conditional part of the resolve, we contend, applies only to the acceptance of the release by the Court. The rest of it is positive, mandatory, and unconditional.
    Both these claimants being without title, it was equitable and wise in the legislature to furnish a mode of adjusting their conflicting claims. They liberally waived the rights of the public, considering it a very desirable object that the controversy should be quieted. They gave the whole benefit between the parties—to one the land, to the other the value of the land in money. It is greatly to be lamented that the same spirit of conciliation had not influenced all the parties. It may be lamented when the present claimants are no more.
    By the constitution, the legislature have a right to make all manner of wholesome and reasonable laws and ordinances, not repugnant to the constitution. Now, no law or ordinance can be more wholesome or reasonable than one which provides for the settlement of a controversy, great in extent, and violent [ *115 ] in its spirit and temper. It is not denied that * this Court is not bound by an unconstitutional act of the legislature; yet where a construction is doubtful, the judicial courts will lean in support of the doings of a coordinate department of the government .
    
      
      
        Calder & Ux. vs. Bull & Ux., 3 Dal. 386.
    
   The Court took several days for advisement, and afterwards delivered their opinion as follows:—

Sewall, J.

The verdict taken in this case is objected to on the part of Phinehas Frost, the plaintiff in review, originally tenant of the land and defendant in the action, upon the ground that he justly claims, and is entitled to a certain lot, parcel of the demanded premises, containing one hundred acres, designated and awarded to him by Nathaniel Dummer, Esq., and others, commissioners appointed, and acting under certain resolves of the legislature of this commonwealth.

The parties having at the trial agreed that the verdict shall be subject to the opinion of the Court, upon the general and unembarrassed question, whether Phinehas Frost is thus entitled or not, the result may depend upon facts which have happened since the commencement of the action, and every possible injury, if he w»>-e iable to any, from the admission at the trial, that he claimed under the title of the demandant, is prevented. If he has the right he claims, however it may have been acquired, whether under the demandant, or in any manner resulting in the award of the commissioners, and whether before or since the commencement of the action, the verdict is to be amended in his favor; thus placing him upon the most liberal footing, which can be devised in a court of law, for the investigation and adjustment of his claim.

Phinehas Frost, tenant of the land demanded, entered thereon in 1793, declaring his intentions to cut timber-trees there for the employment of a mill he had erected or purchased in the neighborhood. He was at the time notified of his trespass, and warned to desist, and, finally, within about a year, after his entry was served with a writ in the action which is now in trial.

By the commissioners to whom he has since carried his claim, he has been considered as a settler, and the tract of one hundred acres, for which he contends, was awarded to him.

* That Frost may avail himself of this award, it must [*116] appear that the authority of this special commission extended to his case, both in fact and in law; for as to the facts essential to their authority, the ex parte decision of the commissioners is not conclusive. It might, for instance, be inquired, upon the facts stated, whether Frost was a settler within the intentions of the legislature, in the resolves under which he claims; but this I pass over, to examine whether the land awarded to him was within the authority of the commission.

The premises demanded in this action are a certain lot, said to have been, by persons called the Pejepscot proprietors, assigned to a right in the proprietary, and a regular title thereto deduced to the demandant; and he appears to have had, so long ago as the year 1769, the actual and several seisin of the lot described in his writ, claiming it under that allotment.

The resolve of 1798 provides, in certain events mentioned, for the quieting of all settlers Upon the undivided lands of the Pejepscot proprietors, and for releases to be given by them for that purpose. It is admitted that this resolve did not, in terms, and cannot by any reasonable construction, extend to the case of Phinehas Fiost. Recourse is then had, in his behalf, to a subsequent resolve passeu in 1801, extending the provisions respecting settlers in the former resolve to any divided lands held under the Pejepscot proprietors, and providing that settlers upon these lands also shall be quieted. The land claimed by Frost is within the terms of this resolve, and, waiving the question whether he is a settler or not, we are broughl to consider the construction, and the legal effect and operation, of the resolve in the case before us.

The resolve is predicated upon a supposed omission in the former resolve, and upon intention of favor and a particular concession to the Pejepscot proprietors, in case that omission may be supplied, and the consequences of it avoided, by their consent. A grant by the legislature to an individual is not authoritative upon him, and avails only upon his acceptance and consent. This rule, observed even respecting unconditional and apparently beneficial grants, is particularly requisite respecting grants that are conditional, depending upon some act to be performed or assented to, on [ * 117 ] the *part of the grantee. Has this offer of favor, this concession on the part of the legislature, been accepted or taken advantage of, by the Pejepscot proprietors or others, to whom it may be construed to have been made ? There is no evidence of any fact of this nature; and it is agreed that the condition annexed to the grant or concession has never been complied with. What, then, is the effect of this last resolve; what legal operation has it had upon the claim of Phinehas Frost; or what authority had the commissioners, under that resolve, to make an award of divided lands, before the Pejepscot proprietors had consented to consider them as undivided lands, for the purpose of quieting settlers; or before the proprietors had taken advantage of the concession therein, which might have implied their consent to the alternative required of them ?

But it is said, the last resolve, besides the concession of land to the Pejepscot proprietors, contains a distinct and independent grant to the settlers described therein, which operates independently of the consent of the Pejepscot proprietors. This resolve provides that settlers upon the divided lands of the Pejepscot proprietors shall be entitled and quieted, in the same manner as the settlers upon the undivided lands of those proprietors according to the former resolve.

If this is to be construed a disposal by the legislature of lands owned by that proprietary, or by any individual claiming by their grantor allotment, it militates directly with a well-known provision of Magna Charta, revived and enforced in the bill of rights prefixed to the constitution of government for this commonwealth, “ that no subject shall be deprived of his property, but by the judgment of his peers, or the law of the land; ” not any private special statute for the purpose, but that law, which affects alike, under the same circumstances, the whole territory and community. This construction, not being the necessary, or even the natural import of the words employed, is entirely inadmissible, and was not contended for by the attorney-genera).

The last resort for the defendant has been to a supposition that the legislature, in their resolves upon this subject, acted without regard to any claim of right in the Pejepscot proprietors, or those claiming under them; and assuming the property *in question to be in the commonwealth, and viewing as [*118] well those called the Pejepscot proprietors as the settlers to be mere occupants, directed this release as a compromise between them.

To this it may be observed, that the difficulty first suggested is not obviated; because a title by seisin and occupation is a property, as much as any other title; though not equally indefeasible, equally beyond the control of the legislature, in any private or special statute.

Neither of the resolves, however, expresses any assumption by the legislature, of a property or right of the commonwealth in the lands in question, or any intention to dispose of them on the part of the commonwealth. The two resolves, when construed together, as they must be, provide for the settlers, whether on the undivided or divided lands, claimed by or under the Pejepscot proprietors, in the event only of an award to them, as their right and property, of such territories and boundaries as shall comprise the improvements and occupations of the settlers, to whom the legislature thought fit to extend their compassionate interference. There is no fact in evidence, from which a title in the commonwealth is to be inferred or presumed.

If the demandant, in the character of a citizen, has maintained against another citizen a real action, in which, upon comparison of title, between the parties, the lawful seisin, and presumptively the right appears to be with the demandant, no act of the legislature, with or without the interposition of commissioners, can abridge that right, or divest the title of the demandant, or oblige him to relinquish it to the other party.

The supposed demandant may be incapable of proving a title against the commonwealth; but the decision between them upon the question of title, if it should arise, must be by the peers, or jury of the country, and according to the law of the land.

Upon full consideration, my opinion is, that the verdict in this case must be confirmed, and judgment entered accordingly.

Sedgwick, J.

It appears from the report of the judge, who sat in the trial of this cause, that, as long since as the *year 1769, certain persons claiming a large tract of [*119] land comprehending the demanded premises, in pursuance of that claim, entered and made a division of a part of it, and, amongst the rest, allotted the land in controversy to Moses Little¡ the demandant’s father, and one Jonathan Bagley; and it appears, and is not controverted, that, by regular conveyances, the right and title of the said Moses and Jonathan are in the demandant.

The tenant at the trial admitted that he had no title adverse to that of the demandant, but that he claimed under it. He showed no conveyance from the demandant, nor proved any contract with him relative to the demanded premises. There is then no pretence of any title derived from Little. The whole claim of the tenant rests on certain resolves of the legislature, of which he says he can avail himself, according to the agreement entered into at the trial; if, upon principles of law, a title to the demanded premises or any párt of them is vested in him. This agreement is in the following words.

[Here the judge recited the agreement, as before stated, and proceeded.] It is most manifest that the tenant cannot, upon any principle whatever, avail himself of the resolve of the 28 th of June, 1798, or of any act done under it, because that resolve did not extend to any land which had been previously divided, but was expressly confined to that which then remained undivided. This resolve, therefore, and every thing done under it, must be laid out of the case.

I cannot perceive that it is necessary to determine what is the effect of the judgment in the case of The Commonwealth vs. Little; whether it has any validity; whether it be absolute or conditional; or, if conditional, what are the nature and effect of that condition.

As I lay the judgment entirely out of my consideration of the case, it only remains to inquire whether Frost is entitled to the one hundred acres allotted to him by the report of Nathaniel Dummer and others, the commissioners appointed the 10th of June, Anno Domini 1803.

As the case presents no evidence, whatever in fact the truth may be, that the Pejepscot proprietors have ever acquired the title of the commonwealth to the land which they [*120] * claim, as they have expressly consented that the present tenant should be.permitted to establish, if he could, a title in him derived from the government, and as he rests it on the report of the commissioners appointed to carry into effect the resolve of the 5th of March, 1801, it is only necessary to ascertain the true meaning of that resolve.

There is nothing in the preamble necessary to be considered in order to understand the resolve itself, which is in these words:— “ Resolved, That the Supreme Judicial Court be, and they hereby are authorized and empowered, at any future time thereof, to receive a deed of release to the commonwealth from the said proprietors, or their agent lawfully empowered thereto, of all the lands northerly of the northerly bounds of the tracts awarded to the said Pejepscot proprietors aforesaid, which in their opinion shall be sufficient to bar the said proprietors from any future claim to such lands; provided, and on condition, the said proprietors, or any person or persons holding lands under them,” &c., “ shall agree to consider the same, so far as it respects the settlers thereon, as undivided lands; and the commissioners to be appointed by the governor and council in pursuance of the resolve of June 29, 1798, shall value all the said settlers’ lots in the same manner as lots on the undivided lands;—and said settlers on all the lands aforesaid, whether divided or undivided, shall be quieted in the same way as settlers on the undivided lands are to be quieted by the resolve aforesaid.”

A principal object of the resolve was to authorize this Court to receive a deed of release from the proprietors; but this was upon condition, that they or any person or persons holding lands under them, as particularly described, should agree to consider the same, so far as respects the settlers on the same, as undivided lands. It then proceeds to direct what, in consequence thereof, the commissioners should do, that the settlers on all the land aforesaid, whether divided or undivided, should be quieted.

But it is most manifest that this should be done only on condition of the previous agreement of the proprietors; and as this agreement has never been made, the merits of the parties *are not at all affected by the resolve, but remain as [ * 121 ] they were antecedent to it. That is, the title exhibited by the demandant which is sufficient to maintain his action, remains unopposed by any title on the part of the defendant. I am therefore in favor of rendering judgment agreeably to the verdict.

Parsons, C. J.,

observed that he had not, when at the bar, been retained as counsel in this cause by either " party; but that he was counsel for the demandant, and for the Pejepscot proprietors, in defending them against an information of intrusion sued by the commonwealth, in which the boundaries of the company’s claim had been reported by commissioners under a rule of court. That for this reason he should not have sat as a judge in this cause, if without him a court could have been composed competent to give judgment. As that could not be done, he had sat as a judge, with a determination to give no opinion, if his brethren, who sat with him, had disagreed. As they agreed in their opinion, it was not necessary to say that he concurred, and that judgment must be rendered according to the verdict.

Thatcher, and Parker, justices, having been of counsel in the cause before coming on the Bench, gave no opinion.

Judgment according to verdict.  