New-Boston v. Dunbarton

15 N.H. 201

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Gilchrist, J.

The evidence in this case which is relied on to prove that Allenstown was incorporated before the year 1796, is circumstantial only, and the question before us is, whether the evidence is to be laid before the jury, with instructions that they should find whether a charter did or did not exist; or whether it is the duty of the court to make the inference from the facts proved, as a matter of law, as to the act of incorporation.

The jury may find, from the facts in a case, that a certain deed once existed, although there be no direct evidence of its execution. Where parties have occupied land, and have conducted precisely as they would have done if a deed had been made, it may be left to the jury to say whether a deed under which one of the parties claims, ever had an existence. This was settled after much deliberation in the case of Downing vs. Pickering, reported infra. We are not aware that it has ever been doubted, that the question as to the existence of a deed was to be settled by the jury from a consideration of the facts proved. In Leyfield's Case, 10 Co. 92, Lord Coke says, that “ in great and notorious extremities, as by casualty of fire, íhát all his evidences were burnt in his house, there, if that should appear to the judges, they may, in favor of him who has so groat a loss by fire, suffer him upon the general issue to prove the deed in evidence to the jury, by witnesses, that affliction be not added to affliction; and if the jury find it, though it be not showed forth in evidence, it shall be good enough.” In Read vs. Brookman, 3 T. R. 151, Ashhurst, J. says, that “ if the deed be destroyed by any other accident, it falls within the same reason. And that brings it to a matter of fact before the jury, whether there be or be not sufficient evidence that the deed did exist.” The jury may be directed to presume a deed “ where it is necessary to clothe a rightful possession with a legal title, but the court must first see that there is nothing but the form of a conveyance wanting.” Keene vs. Deardon, 8 East 248, LeBlanc, J. This pointed language shows that the circumstances proved in the case must be consistent with the existence of the deed.

We are not aware that a different doctrine has ever obtained, where the instrument whose existence is sought to be established is the charter of a public corporation. Where a town has acted as if a charter had been granted, the court cannot settle as a matter of law that a charter actually existed, any more than they can find as a matter of law the existence of a deed among private persons, from circumstances proved in the case. There is no distinction in the reason of the thing between the case of a deed and that of a charter. Both deeds and grants may be presumed from usage, where they are necessary to the. completion of the party’s title. Ashhurst, J., Read vs. Brookman, 3 T. R. 151. Under certain circumstances the jury may presume a grant from the crown. Lord Ellenborough, Goodtitle vs. Baldwin, 11 East 488. This is the same principle that governed Lord Mansfield, in Lade vs. Holford, Bull. N. P. 110, where he said that in all cases where trustees ought to convey to the beneficial owner, he would leave it to the jury to presume, where such a presumption might reasonably be made, that they had conveyed accordingly, in order to prevent a just title from being defeated by a matter of form. Doe vs. Sybourn, 7 T. R. 2. Whether a fact which is unknown, is to be presumed from its usual connection with other facts which are known, would seem to be properly in all cases a question for the jury; for the probability of the existence of the unknown fact depends upon the nature and strength of the facts and circumstances known, and the strength of the presumption is measured by the weight and credit given to the facts shown. A jury is the appropriate tribunal to weigh and appreciate such facts, and deduce inferences from them. 2 Wend. 59, Schauber vs. Jackson.

There are several cases to be found in the books where the question was similar to that now before us. In Dillingham vs. Snow, 5 Mass. 547, the defendants, who were assessors of the north parish in Harwich, proved, by a resolve of the general court for that purpose, and by a certificate of the secretary of the commonwealth, that no act of incorporation could be found. They then showed the establishment of a separate parish in Harwich in 1746, and, by the records since kept of their meetings and proceedings, that the parish had taken successively and at different periods the names of “ the first precinct in Harwich,” “ the precinct,” “ the parish,” “ the north parish,” and “ the north parish lying in Harwich and Brewsterand also that a certain line had existed for over forty years between the north and south parishes, and had boon observed as such. The court submitted the evidence to the jury, and said that the tax concerning which the suit arose, was legal, “ if they were satisfied of the original establishment, and of the continuance of such a parish.” The supreme court held that as no act of incorporation could be found, the judge very properly permitted the defendants to prove a parish by reputation. No question was made, and it was not suggested that upon proof of such facts the existence of such a charter was an inference of law to be made by the court.

In Stockbridge vs. West Stockbridge, 12 Mass. 400, the defendants had exercised all the privileges of a town for over thirty years; had sent representatives, were assessed in all taxes, and in many acts and proceedings their existence as a town had been recognized by the legislature. No charter of incorporation was to be found. The question was submitted to the court whether this evidence were competent to prove that the town of West Stoelcbridge was ever incorporated; and it was held that such secondary evidence was admissible. But it was not suggested that the court could infer from the facts that a charter ever existed.

In the case of the Mayor of Kingston vs. Horner, Cowp. 102, the question was whether, between the 5 Rich. 2, and the year 1441, the town of Kingston upon Hull had a charter from the king, creating and giving certain port duties to the corporation. Eor three hundred and fifty years subsequent to the year 1441 the duties had been exacted and submitted to without litigation. Lord Mansfield, said he had taken it to be established in point of law, that though the record be not produced, nor any proof adduced of its being lost, yet under circumstances it may be left to the consideration of a jury, whether there is not sufficient ground to presume a charter. The evidence in this case was submitted to the jury. None of the eminent counsel in the case, among whom were Wallace and Dunning, suggested that the question was for the pourt.

In the present case, the evidence was submitted to the jury. Our opinion is, that it was properly submitted to them, and that there should be

Judgment on the verdict.