The grant of the government to B. Prescott in *1271771, and his surveying, fixing the bounds, and entering upon the land, gave him a seisin, although he included more land within his location than his grant conveyed to him. His title descended, with the possession, to his son, and the deed of this latter conveyed t.he seisin to the plaintiffs in 1809.
It is wholly immaterial to the defendants whether the location covered more land than the terms of the grant would warrant. The plaintiffs were seised as well as possessed, in regard to every one but the commonwealth — who might, or might not, reclaim part of the land located, as not conveyed.
The action, therefore, is rightly brought, and the value of the trees is the proper measure of the damages. For the commonwealth has a right to call the plaintiffs to account, by a suit for the mesne profits, or in some other way; and as the defendants were wrong-doers to the plaintiffs, these latter ought to be in possession of the value of the trees, as a fund to meet the claim of the commonwealth. If not called upon, they have a right to keep the money for their own use, being accountable to none but the commonwealth. (a)
Judgment on the verdict.
Vide Harper vs Charlesworth, 4 B. & Cr. 574. — Dyson vs. Cottick, 5 B. & A. 602.