11 N.H. 102 | Superior Court of New Hampshire | 1840
There is no evidence in this case, except what appears from the testimony of the witnesses Chamberlain and Davis, and the copy of the charter granted to the plaintiffs by the legislature.
Exceptions are taken, both as to the competency of this testimony to sustain the issues raised by the pleadings, and to the admissibility of the witnesses, on the ground of interest.
It is contended that when suit is brought by a corporation against a person claiming a right, it is necessary, under a plea that there is no such corporation, to show an act of incorporation, and an organization under it, by record; and some authorities are cited to this point. But such is not the general rule upon this subject. It is not essential to the talcing effect of an act of incorporation, that the records of the corporation should show a formal acceptance of the act by the per
In the case before us it was in evidence that a bridge was built within the time specified in the sixth section, by persons claiming to act under the charter, and that this bridge was kept up and maintained by persons under the corporate name, until it went to decay, when it was rebuilt by them, in 1828, and toll taken till March, 1838, and that the defendant acted as one of the directors of the bridge as late as January, 1836. This evidence was abundantly sufficient and competent to show an acceptance of the charter, and an organization under it. There is no good foundation for any rale of law requiring a formal acceptance of a charter. The acts and proceedings of the corporators under it are as conclusive evidence of such fact, as any record evidence which can be produced.
It is contended farther, that the license to erect a bridge on the defendant’s land cannot be shown by parol testimony, on the ground that it is a permanent easement in land, with a right at all times to enter and enjoy it, and that such an easement is within the statute of frauds, and can be sustained only by evidence in writing. The distinction between a privilege, or easement, carrying an interest in land, and requiring a writing within the statute of frauds to support it, and a license which may be by parol, is said by Chancellor Kent to be cpiite subtle, and that it is difficult in some of the cases to discern a substantial difference between them. 3 Kent’s Com. 452. A license to an individual to do an act beneficial to him, but requiring an expenditure upon another’s land, is held not to be revocable after it has once been acted upon. Such a license is a direct encouragement to expend money; and it is said it would be against conscience to revoke it as soon as the expenditure begins to be beneficial.
Such a license may undoubtedly terminate by the decay of any erection under it; and it would have terminated in this case, or might have been terminated by the defendant, when the first bridge had become useless, had he so elected, or had the license been so limited. But the issue tendered and joined is, that the plaintiffs had license to erect and continue a toll bridge on the premises; which issue has been found for the plaintiffs. The license then extends as clearly to the erection of the new bridge as of the old, and no exception can be taken on this ground.
We are of opinion, therefore, that the evidence submitted was competent to sustain the points in issue, and that the ruling of the court in this respect was correct; but the exception as to the admissibility of the witnesses is, we think, well taken.
It appears from the case, that at the November term of the common pleas it was ordered by the court that a new and sufficient indorser of the writ should be furnished within ninety days : and within that time the plaintiffs procured the indorsement of Davis, the witness, upon the back of the copy of the writ which came up from the justice. This we hold to be a sufficient indorsement to subject him to all the liabilities as indorser from the commencement of the suit.
Though the indorsement is not upon the original writ, it is upon the copy under which the suit is proceeding in court, and constitutes a contract voluntarily entered into to incur a conditional liability as to costs; and the indorsement is pro
The deposition of Davis was taken prior to his incurring this liability as indorser ; but the deposition is a mere substitute for the personal attendance and testimony of the witness ; and we know of no case where the deposition may be received as evidence on a trial; and yet at the same time the testimony of the witness who gave it, and who is present at the trial, can be rejected as incompetent, on the ground of interest. 2 Stark.Ev. 754; 4 Yeates 512, Irwin vs. Reed & a.
There was no occasion to insist on the admission of the deposition, under the circumstances of this case, for on motion to the court permission would have been granted for leave to obtain a new indorser, and the objection taken to his testimony might have been readily obviated. We think the testimony of Davis should not have been received while standing in the relation of indorser.
We are also of opinion that Chamberlain was not admissible as a witness, for the reason that he was one of the original grantees of the charter to the plaintiffs, and a stockholder in the corporation ; and there is no sufficient evidence that his interest in the corporation has ceased. The facts in the case do not by any means show that he may not yet have a legal and valid interest in the bridge now constructed. His situation in this respect must be clearly shown, and not be left, as it now is, a matter of doubtful inference. The verdict must, therefore, be set aside, and a
New trial granted.
