The case does not present the facts very clearly and the plaintiffs were not represented in this Court by counsel, and it may be that we have misapprehended the points intended to be presented. His Honor simply charged the jury that the plaintiff could not recover upon his own showing.
It seems that the land in controversy prior to 1758 belonged to Jonathan Phelps, and that he “ signified to the Governor and Council, and Assembly his free consent by a certificate under his hand and seal to have one hundred acres of said land laid off for a town and fifty acres for a town common.” And thereupon the Governor and Council and Assembly passed an act appointing “ directors and trustees ” to lay off the land into lots, streets, &c., reserving a portion for the court house and other public buildings, and to establish the town of Hertford, all of which seems to have been done. The effect of this act in concurrence with Phelps, who received from the “ directors and trustees ” the price agreed on, was to vest the estate in said directors and trustees, for the use of the town of Hert-ford, which, by virtue of said act, was made a corporation. Commissioners of Bath v. Boyd, 1 Ired. 196.
There have been subsequent acts recognizing the corporation and regulating it, the last of which was in 1842-43, authorizing the Commissioners of said town to lay off and sell lots, &.C., which was done.
These acts, with the concurrence of Phelps, had the effect to vest the beneficial interest, at the least, in said land in the town of Hertford. And if there has been at any time a break in the office of directors or trustees, or if the same have died, or if the officers of the town have been called by some other name, still it can make no difference, .as the Court will not allow the beneficial interest of the town to suffer thereby, but will either recognize the present officers or appoint new trustees,
It appears in the case that the plaintiff offered evidence to *154show that the defendant had for a long time occupied and claimed a portion of the said lands under a deed from some person. The object of proving this bj the plaintiff is not stated. We at first supposed that it might have been misstated, the plaintiff for the defendant who was claiming by adverse possession under color; but the case states that the defendant offered no evidence. At any rate, if the defendant has title he can show it upon another trial.
There is error. This will be certified to the end that there may be a venire de novo.
Per Curiam. Venire de novo.