This action was commenced by virtue of the statute of 1850, c. 196, § 7. While it remained in Court, not disposed of, by statute of 1852, c. 284, § 1, this section was repealed, without any reservation, touching suits, which had been commenced, and which were then pending, the lands reserved for public uses, &c., being transferred to the care and custody of the Land Agent. By the statute of 1853, c. 29, it was provided, that the statute of 1852, referred to, should not operate to defeat any suit or action which was pending at the time of the passage thereof.
The repeal of the 7th section of c. 196, was not intended to take from those, to be benefited thereby, any rights, which had been secured to them; or to relieve trespassers upon public lots in any degree from liability; but only to change the party, in whose name suits could be brought for the recovery of damages, arising from trespasses upon such lots. After the statute of 1852, and before that of 1853, actions commenced prior to the former, if brought to trial, could not have been sustained, because they stood in the name of a party, as plaintiff, not authorized by any existing statute to prosecute such suits. The failure would have been in the remedy, and not in the right. It was competent for the Legislature to make any provision, by which this right could be effectual. This could be done by providing for the maintenance of the actions then pending in the name of the plaintiffs, who instituted the suits, or by substituting therefor the person, who had the charge of the public lots, in trust.
The language of the statute of 1853, will authorize the prosecution of this suit in the name of the plaintiffs as it now stands.
According to the agreement of the parties the action is to remain for trial.