Commonwealth v. Hall

25 Mass. 440

• Court: Massachusetts Supreme Judicial Court
• Decided: October 5, 1829
• Status: Published

Opinion

Per Curiam.

The only ground relied on for quashing the writ is, that while the petition for it was pending, the corporation voluntarily paid the damages assessed by the jury ; and this payment is considered by the respondents as an acquiescence in the justice of their claim. If there had been a voluntary payment and acquiescence, with a full knowledge of all the circumstances, the corporation ought to be concluded. But they contend that this was in the nature of a compulsory payment; that they were obliged to make the tender before they could enter upon the land ; and that they would otherwise have lost their franchise, as the time allowed them by their charter for making the road had nearly expired. And undoubtedly, if a person, in order to enable himself to enjoy his legal rights, pays a demand, the validity of which he contests, this cannot be binding on him as a voluntary payment. The payment having been made by the corporation without any intent to acquiesce, it ought not to affect their rights.

As to the suggestion respecting the responsibility of the cor poration, it is sufficient to say, that the respondents will have a right to retain the money they have received, except so much as shall be adjudged to be repaid.

But the question is, whether, by sustaining this writ, that injustice would be done which would show that it ought not to be sustained. ' Unless we can ascertain that the verdict is more correct than the estimate of the committee, we cannot say that injustice will be done by quashing the proceedings.

It depends on that fact. The jury might have partial views, or the committee might.

It is said the court will not quash proceedings, unless they can restore the parties to their former situation. But this cannot be a general rule. As, suppose a verdict to have been fraudulent; it would be the duty of the Court to quash the proceedings, although the fraudulent party might thereby be injured.

It is objected that the defect here is matter of form. But do not consider it to be so. The ground of complaint is want of notice ; which is important.

Motion to quash the writ overruled.