
    The Inhabitants of Watertown versus Jonas White.
    Three adjoining towns on a river are authorized by statute to sell the right, and regulate the times, &c., of taking fish within those towns. Two of the towns, for a valuable consideration, release to the third the right to the fishery in that town; and it was holden, that the said town might lawfully dispose of the fishery within its limits, and maintain an action, separately from the other two towns, against the hirer, for the price agreed on.
    This was assumpsit, to recover the rent of a certain fishery in Watertown, said to have been leased by the plaintiffs to the defendant in March, 1811, for one year.
    Trial was had upon the general issue, before Jackson, J., at the sittings here after the last October term, when a verdict was rendered for the plaintiffs ; and, if, upon the report of the judge who sat at the trial, the Court should be of opinion that the inhabitants of Watertown could maintain the action, without joining the inhabitants of Waltham and of Weston, as plaintiffs, with them, the verdict was to stand ; otherwise it was to be set aside, and a verdict entered for the defendant.
    By the statute of 1797, c. 75, the inhabitants of the three towns above mentioned are authorized to sell the right, and regulate the times, places, and manner, of taking the said fish within the limits of those three towns, not exceeding in point of time three days in each week ; and to appoint agents to carry that act into execution ; which agents are to be chosen at the annual meeting in March. The act further provides, that the agents of said towns shall meet annually in March, and may then make regulations as to the times, places, and manner, of taking the *fish, and sell the right of taking the same ; and that the proceeds of such sale shall be divided between the said three towns, in proportion to the sums which they shall -espectively pay towards the maintenance of the bridge in said Watertown over Charles river. It is also provided, that, if the agents of either of the towns neglect to attend any such meeting, the votes and acts of those who do attend shall be as binding on the said towns, and as valid and effectual in all respects, as if all the agents were present.
    On the first of June, 1801, an indenture of three parts was made between the inhabitants of the three towns aforesaid, a copy of which came up in the case, by which the inhabitants of Watertown release and discharge the other two towns from all further liability or obligation to contribute towards the maintenance of the said bridge ; and also release and quitclaim to them respectively all right to the said fishery within the limits of those two towns. And the inhabitants of Waltham and Weston severally release and quitclaim all their right to the said fishery within the limits of Watertown, to the inhabitants of that town. The inhabitants of Waltham and Weston also severally covenant with the inhabitants of Watertown, that they will respectively appoint an agent annually thereafter, to join with the agents of Watertown in the regulation and sale of said fishery within the limits of Watertown, if such appointment should be judged necessary.
    After the making of that indenture, the inhabitants of Watertown bad leased- the fishery within their town from year to year ; and it did not appear that the other two towns had ever afterwards chosen such agents.
    In March, 1811, when the lease or sale was made, on which this action was founded, the agents of Watertown, in the record of their proceedings, recite, that they met at the time and place prescribed in the said statute, and that no agents from the said other towns attended; whereupon * they proceeded to regulate and make sale of said fishery, for the year then ensuing.
    
      Ward and Bigelow, for the defendant,
    objected, that the action would not lie in the name of the present plaintiffs, but should have been brought in the name of the three towns jointly. All the authority, and all the interest, are derived from the statute ; and the remedy must follow the statute. If the lease to the defendant was made in the name and on the behalf of the inhabitants of Watertown, it was void ; the statute giving the whole right to the three towns. Nor does the convention between tbé towns alter the remedy. If two or three joint obligees assign all their interest in the bond to the third, still, the remedy must be pursued in the name of the three.
    It may well be questioned, whether the towns had any power, in their corporate capacity, to make the contract set up in this case. Its effect was, by a corporate act, to deprive the individual inhabitants of the towns of Weston and Waltham of a personal right or property. It was not an affair within the general objects for which towns are incorporated. -If this power was wanting, the towns have yet al. their rights by law, as if the contract had never been made.
    
      Baldwin for the plaintiffs.
   Wilde, J.,

delivered the opinion of the Court. Several objec tions have been made to the verdict in this case ; the principal of which is founded on the supposition, that the action is not well brought; it being assumpsit on an express promise, in which, it is said, all the contracting parties have not been joined.

It is not denied, that, in point of fact, the defendant did contract with a committee of the town of Watertown. Prima, facie, therefore, the evidence is sufficient to sustain the declaration. But, as this committee were, by the statute of 1797, c. 75, authorized to act, as well in behalf of the inhabitants of Weston and Waltham, as of the plaintiffs, and as those towns by the statute have a joint interest in *the fishery, the subject-matter of the contract; it has been contended, that the committee must be supposed to have acted as agents of the three towns, there being no express evidence in the case, contradicting such a supposition.

There would be much weight in this argument, taking into consideration only the statute, and the facts immediately connected with the contract. But it must be recollected, that, in 1801, the three towns came to an agreement, whereby the plaintiffs were to have an exclusive fishery within the limits of Watertown ; they taking upon themselves the burden of maintaining the bridge over Charles river, the expense of which had before been chargeable to the three towns. To carry this agreement into effect, indentures of release were duly executed, whereby, among other things, “ the inhabitants of Waltham, and Weston severally released and quitclaimed all their right to the said fishery, within the limits of Watertown, to the inhabitants of that town.”

The validity of this release does not appear to have been questioned by the parties interested. The inhabitants of Watertown have continued to lease the fishery within the limits of their town, from year to year, until 1811, when the contract was made which is the foundation of the present action. Now who were the contracting parties ? The committee were chosen by the inhabitants of Waterr town to lease the fishery for them. No claim of Weston or Waltham was interposed ; for they were satisfied with the arrangements of 1801. Can it then be doubted, that the committee intended to execute their commission, as faithful agents of the town by whom they were appointed ? And must not the defendant, an inhabitant of the town, and who, as was suggested at the argument, has held several important offices in it, have so understood it ? Or can any one suppose it was their intention to admit the inhabitants of Weston and Waltham to a share in a beneficial contract to which they made no claim ? It has been said, that such an intention is to be collected from the * record of the proceedings of the committee. It is true, the towns of Weston and Waltham are mentioned in the recital, and their right to choose agents to join them seems to be admitted. But this part of the record, if so it may be called, will not support the inference made by the defendant’s counsel ; as it may well be supposed to relate to the regulation of the times and places for taking the fish, in which, it must be admitted, the three towns have still a joint interest and authority.

As to the facts, therefore, we think there can be no doubt ; for, were it true, as has been argued, that the release of 1801 was inoperative, yet there is no evidence that the parties so considered it. Nor is there any ground to believe that the committee of Watertown undertook, gratuitously,.and against their interests,, to act as the agents of Weston and Waltham. On this point, the evidence is entirely satisfactory to us, and well supports the verdict.

Another objection has been made, involving a question of law, namely, that the contract is not valid, supposing the parties to the suit to be rightly named.

It has been said, that the contract was illegal, being in contravention of the statute of 1797, c. 75. This objection was not much pressed, and is certainly without foundation. The statute contains no prohibitory provisions ; and there is no pretence for saying, that the contract, whoever may have been the parties, is illegal.

But it is urged, that the contract is not valid, and ought not to be enforced ; because, as it is said, the plaintiffs had not the right, or the exclusive right, to the fishery, which was supposed by the parlies when the contract was made.

The answer which has been made to this argument is, we think, conclusive. The defendant, having enjoyed the fishery by the permission of the plaintiffs, cannot be permitted, on this ground, to excuse himself from the payment of the stipulated rent. Such an evasion of a fair contract would be gross injustice, and a reproach to the law, * if it were allowed. But the law is not liable to such a reproach. It is a well settled rule, that the tenant shall never be suffered to impeach his landlord’s title. Thus, in an action for use and occupation, which is analogous to the case under consideration, the plea of nil habuit tenementis is not admissible. This rule is founded in good sense, wise policy, and the plainest principles of fair dealing. The plaintiffs’ right to the fishery cannot, then, be properly brought in question in this action. It is immaterial whether they have an exclusive right, a right in common, or no right at all.

But, as this may be the subject of future doubt and controversy, we have taken it into consideration ; and are of opinion, that the claim of the plaintiffs may be well supported on legal principles.

The statute of 1797, c. 75, has a double aspect. It disposes of a free fishery; and provides also for the regulation of the time, place, and manner, of taking the fish. No principle of law s violated by considering the first clause of the act as a grant of a franchise to the three towns, which may clearly be the subject of an assignment or release ; provided the object or condition of the grant be not thereby infringed. The clause regulating the taking of the fish we consider as partaking of the character of a public act, in which others, besides the three towns, may have an interest. The terms of the statute, therefore, furnish the only rule for this regulation ; nor is it competent for those towns to substitute a new rule in its place.

From this view of the subject, we can perceive no reason for disturbing the verdict; and judgment must, therefore, be entered upon it for the plaintiffs.  