Odiorne v. Wade

25 Mass. 518

• Court: Massachusetts Supreme Judicial Court
• Decided: October 17, 1829
• Status: Published

Opinion

Parker C. J.

delivered the opinion of the Court. The question as to the competency of the witnesses whose testimony was rejected at the trial, was decided in the case of Lufkin v. Haskell. The distinction was there taken, between cases in which the town, in its corporate capacity, has an interest, and those in which the inhabitants of a town have a right of common, or way, or other easement; which is not a corporate right, but a privilege to the individual inhabitants, depending generally upon prescription arising from their locality. The statute of 1792 w'as only intended to remove the incompetency of witnesses in the first class of cases ;¹ and as it is a departure from the common law rule of evidence, it ought not to be extended by construction beyond the expressed intention of the legislature.

Judgment according to verdict.

1 See Revised Slat. c. 94, § 54.