Bogue v. Bigelow

29 Vt. 179 | Vt. | 1857

The opinion of the court was delivered by

Redfield, Ch. J.

The only question in the present case is whether the testimony in regard to the plaintiffs’ ancestor was properly put to the jury.

The charter contains the name of Aaron I. Boge. The plaintiffs’ ancestor’s name was Aaron Jordan Bogue. The testimony showed a change of the name in its orthography from Boge to Bogue. The name, then, Would stand identical with the mere difference of a middle letter between I and J, which until a very recent period were altogether identical. Many books, especially classical editions of more recent date than this charter, (1781,) use the I for the J almost universally. And it is not at all Improbable this variation may have occurred in this mode.

It has been often decided by this court that the middle letter was not an indispensable part of the name; so that the omission of it altogether does not create a misnomer. ' And probably the substitution of a different letter, if it is regarded as no part of the name, could have no greater effect. But the omission of the letter altogether does create more question in the mind of all than the mere substitution of I for J.

So that it would rather seem that upon the face of the charter the names might be fairly regarded as identical. But if this were to be regarded as doubtful, even, the proprietors’ records, recognizing one Aaron Jordan Bogue as of their number, is the fullest explanation of all possible doubt upon this subject. And that the proprietors did recognize the right to pitch lots in the name of Aaron Jordan Bogue, as an original proprietor, is apparent from their records. For allowing any other person to do this in his name is'surely the same thing as allowing him to do it, so far as recognition of the identity is concerned.

And there being no other name in any sense approaching this, it seems almost incomprehensible how any doubt should arise in regard to the identity of the names being fully shown. This, to be sure, will not establish the identity of the persons. But in tracing titles in the mode here attempted, it is always regarded as prima facie evidence of identity, while in cases involving a charge of crime, when presumptions of innocence are allowed to prevail over presumptions of identity from mere identity of names, some further proof is often required, as in cases of indictment for bigamy.

The identity of names establishing, prima facie, the identity of the persons, the jury should have been so instructed.

IL Upon the other evidence which came out incidentally in the case, the court seem to have placed improper stress. The mere fact that the plaintiffs’ ancestor did not live, or as the proof would seem more properly to show, that he did not die in the same place as the majority of the other proprietors, or in either place where they chiefly resided, was certainly no legal proof in the case. And still the jury were told it was important, and that the testimony would have been more satisfactory were it not for the fact that the other proprietors generally resided in Worcester county, Massachusetts, and Hartford county, Connecticut.

It is well known that it was the more common practice in such cases to find more or less of the grantees residing singly, in towns remote from the others.

And it is certainly every day’s practice in many parts of the state to bring suits in the names of the heirs of original proprietors of towns after a lapse of time as great as in the present case, and certainly it was never before regarded as fair to presume against the claimant’s title unless there was an adverse possession, and not then unless it was sufficient to bar the entry.

Judgment reversed and case remanded.