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Boardman v. Reed, 6 Pet. 327, 8 L. Ed. 415, was an action of ejectment. Defendant's counsel offered to prove that on the trial of a former action of ejectment, brought by the present lessor of the plaintiffs against some of the defendants in the present action, to recover the land now in controversy, a witness on that trial, who had since died, swore to a certain corner tree. "As the testimony of the witness," says the court, "was not given between the same parties, his statement, if admissible, could only be received as hearsay."

Testimony of a deceased witness was received in Yale v. Comstock, 112 Mass. 267, because "the parties in the later suit derived their titles, respectively, from Allen S. Yale and Marshall Brace [the parties to the earlier suit], and as to them are privies in estate."

In Jackson v. Lawson, 15 Johns. 539, A. devised a farm to his wife during widowhood, remainder to his children. B., claiming under a deed from A., brought ejectment against the widow and another, and recovered on oral proof of the contents of the deed, which was lost. The widow died, and C., a grantee of some of the devisees, brought ejectment against B. The testimony of a deceased witness on the former trial to the contents of the deed was admitted. The court, by Van Ness, J., says:

"Both the widow of Lawson and the lessor of the plaintiff thus claim under the same will; and I am inclined to think that there is such a privity of estate between them, and the verdict in that case was, for certain purposes, evidence, though not conclusive, in this. * The estate devised to the widow during her widowhood, and the remainder over, constitute but one estate carved out of the same inheritance, created and subsisting together,the one in possession, the other in expectancy. * * If the verdict in the

former ejectment was admissible on the trial of this suit, by reason that the tenants for life and the remainder-men are privies in estate, it follows that the evidence given in the first suit by a deceased witness is also admissible. The rule is that such evidence is proper, not only when the point in issue is the same in a subsequent suit between the same parties, but also for or against persons standing in the relation of privies in blood, privies in estate, or privies in law."

In Jackson v. Crissey, 3 Wend. 253, the testimony was held incompetent. The court says, per Savage, C. J.:

"What a deceased witness has sworn at a former trial between the same parties in relation to the same issue is proper evidence. Under the term 'parties' are comprehended all persons standing in relation of privies in blood, privies in estate, or privies in law. Same v. Lawson, 15 Johns. 544. But Barrett, in the suit against whom the testimony was given, was neither. He held, indeed, under the same title (that is, he derived title from Amos Miles through the deeds from his heirs to Zachariah Miles, and the conveyance from the latter to Zeno Carpenter), but his lot and the premises of the defendants are separate parcels of what was once the same farm. Barrett and the defendant do not hold different estates in the same premises. Neither holds as remainder-man or reversioner to the other. There is therefore no privity of estate between them, and there is nothing in the case to show either privity in blood or privity in law."

A convenient definition of this privity which is thus made the essential element in the cases above cited is found in 19 Am. & Eng. Enc. Law, 156, as follows:

"The term 'privity' denotes mutual or successive relationships to the same rights of property, and privies are distributed into several classes, according to the manner of this relationship. Thus, there are privies in estate, as donor and donee, lessor and lessee, and joint tenants; privies in blood, as heir and ancestor, and co-parceners; privies in representation, as executor and testator, administrator and intestate; privies in law, where the law, without privity of blood or estate, casts the land upon another, as by escheat."

Manifestly, no such mutual or successive relationship exists between the infant, claiming damages for his pain and suffering, and his mother, claiming damages for the loss of his services. The causes of action are distinct, and neither claimant could under any circumstances succeed to the other's cause of action. There is a case in 53 Ind. 143 (Railroad Co. v. Stout), where this distinction seems to be overlooked. Peter Stout sued in his lifetime for damages to himself from some accident, which action abated by his death. Thereafter Stout, administrator, sued, under the statute, for injury causing death, and offered the testimony of a deceased witness who testified on the trial of Peter's case. Although the court seems to appreciate the circumstance that one action was based upon the common-law liability, and the other upon the statute, it nevertheless holds the evidence competent, since "our statute makes the administrator the representative of the deceased"; citing only Greenl. Ev. § 164, which extends the word "parties" only to comprehend privies in blood, in law, or in estate. The case is not well reasoned, and seems to be unsupported by authority. The general term, in the Fourth department, held the precise converse in Murphy v. Railroad Co., 31 Hun, 358, which was an administrator's action for injuries causing death, in these words:

"The deposition of the deceased taken in the action prosecuted by him in his lifetime was not competent evidence in the action. That action terminated with the death of the plaintiff therein, and all interlocutory proceedings went down with it, and are not saved by section 881 of the Code of Civil Procedure. While the plaintiff is the personal representative of the deceased, the action is prosecuted for the benefit of those who do not claim under him, but is an original cause of action, that did not exist in the lifetime of the deceased."

It should further be noted that testimony of a witness on a former trial cannot be admitted against one of the parties to a subsequent trial unless it could be admitted against the other. In Atkins v. Humphreys, 1 Moody & R. 523, plaintiff sued to set aside a conveyance as fraudulent and collusive. In a former suit one Stewart had sued the same defendants to set aside the same conveyance on the same grounds. Tindal, C. J., loquitur:

"I cannot receive the evidence. There is no reciprocity. If the present defendants had offered depositions taken in the earlier suit, the plaintiff's would have been entitled to object."

Morgan v. Nicholl, L. R. 2 C. P. 117, was an action of ejectment. Morgan offered the testimony of a deceased witness on the trial of a former action in ejectment against Nicholl's father brought by Morgan's son, claiming as his heir at law, under the supposition that he was dead, to recover the same premises. It was held that there was no privity of estate between Morgan and his son, and

that the evidence, not being admissible against Morgan, was not admissible for him. Willes, J., says:

"The contention of the plaintiff amounts to this: that the rule that evidence given in a former trial upon the same matter and between the same parties, or persons privy to them, is admissible, extends to all cases in which the parties to the two trials are related in blood. The only relation between the plaintiffs in this and the former action is one of blood,-a close one, it is true. But I apprehend the law must be the same as if the plaintiffs had been cousins deriving their title from the same person,-a reductio ad absurdum. By 'persons privy to the former parties' is really meant persons claiming under them. Could it be said that this evidence would have been admissible if the former action had turned on whether the then plaintiff was the oldest son, or whether he was legitimate? It is contended that it is not necessary that the parties should be exactly the same, but here the two plaintiffs, for purposes of title, are entire strangers. The cases are collected in Wright v. Tatham, supra, and that case shows that it is sufficient if the parties to the second cause were parties to the first, though there were other parties joined with them. I agree, also, with the lord chief justice, that the same rule applies as in cases of res judicata and estoppel, viz. that the evidence cannot be admissible against one party and not against the other; and it is clear that, if this evidence had been tendered by the defendant, the plaintiff would have said that he was not present at the former trial, and did not claim under the former plaintiff.”

This case is on all fours with the one at bar. Anne Gumby could have successfully objected to the reading in evidence against her of the testimony of the witness who testified in the suit of Clayton, guardian ad litem of George Gumby against defendant, and therefore she cannot read the same testimony in evidence against defendant. The judgment of the circuit court is reversed, and a new trial ordered.

(99 Fed. 202.)

RONDOT v. ROGERS TP.

(Circuit Court of Appeals, Sixth Circuit. January 2, 1900.)

No. 699.

1. MUNICIPAL BONDS-OMISSION OF SEAL-EFFECT UNDER MICHIGAN STATUTE. Under How. Ann. St. Mich. § 7778, which provides that "no bond, deed of conveyance or other contract in writing signed by any party, his agent or attorney, shall be deemed invalid for want of a seal or scroll affixed thereto by such party," negotiable obligations issued by a township under a statute authorizing the issuance of bonds, and which are denominated "bonds" on their face, may be treated in law as specialties, and an action of covenant maintained thereon, aithough they are not in fact sealed. 2. EVIDENCE-MUNICIPAL RECORDS.

Where the journal of a township board, which should contain the record of all township meetings and the meetings of the board, is shown to have been incomplete, records of such meetings contained in a highway commissioner's record kept by the same clerk, and certified by him to have been made from records and papers on file in his office, are admissible as prima facie evidence of the proceedings of such meetings, where no record thereof appears in the journal.

3. MUNICIPAL BONDS-DEFENSES-DEFECTIVE RECORDS.

The failure of the clerk of a municipal corporation to make a record of proceedings relating to the issuance of bonds cannot avail the corporation, to defeat the enforcement of such bonds, but parol evidence is admissible to supply the place of the missing parts of the record.

4. SAME-VOTE OF TOWNSHIP-MICHIGAN STATUTE.

Under Laws Mich. 1867, No. 98, which authorizes townships to raise money by tax for the purpose of building and repairing bridges, and also to borrow money on bonds issued for the same purpose, and provides that the question of exercising such authority shall be determined by vote at a township meeting, where a proposition to levy a tax and also one to issue bonds are submitted and voted on at the same meeting they are not necessarily alternative propositions; and, when it appears that such was the intention, both may legally be adopted at the same time.

5. FEDERAL COURTS-FOLLOWING STATE DECISIONS-ACTION ON MUNICIPAL BONDS.

A decision of the supreme court of a state holding invalid a township election authorizing the issuance of bonds, which was not made until after the bonds had been issued and sold, is not conclusive on a federal court in an action to recover on such bonds.1

6. MUNICIPAL BONDS-ESTOPPEL BY RECITALS-IRREGULARITY IN ELECTION. A township which issued negotiable bonds containing recitals that they were issued in conformity with an act of the legislature authorizing their issuance, and were authorized by the legal vote of the qualified electors of the township at a special meeting held upon a certain date, and which received and retained the proceeds of such bonds, and for a time paid the interest thereon, is estopped from asserting irregularities in the election or defects in the preliminary proceedings to defeat such bonds in the hands of a bona fide purchaser.

7. SAME-MANNER OF EXECUTION-RECITALS.

Where an act authorizing the issuance of township bonds vests the power to issue them, when the conditions precedent have been complied with, in the township board, but without specifying the manner of its exercise, they may direct the bonds to be executed and signed by appropriate officers of the township; and in such case recitals contained in the bonds are to be given as full effect as though made by the board itself.

8. SAME-BONA FIDE HOLDER-TRANSFER AFTER MATURITY.

The assignee of a bona fide purchaser of negotiable bonds before maturity takes the same rights his assignor had, whether the assignment was made before or after maturity, and it is immaterial whether he paid a consideration therefor.

9. SAME EVIDENCE OF OWNERSHIP-PRESUMPTION FROM POSSESSION.

The production of negotiable bonds in suit by plaintiff's counsel on the trial raises a presumption that plaintiff is their owner.

In Error to the Circuit Court of the United States for the Eastern District of Michigan.

This is a writ of error to review the judgment of the circuit court for the defendant, the township of Rogers, Presque Isle county, Mich., in a suit by Augustus E. Rondot upon 21 bonds purporting to be obligations of the township. The original declaration, filed April 18, 1891, termed by the pleader a "plea of the breach of covenant," counted on 10 bonds, of $100 each, dated June 20, 1871, and maturing July 1, 1881, with annual interest coupons unpaid since July 1, 1873; upon 5 more bonds for the same amount, each running for 10 years (until December 1, 1881), with annual interest coupons unpaid since December 1, 1873; and upon 6 more bonds for the same amount, each due January 1, 1882, with unpaid interest coupons since January 1, 1873. A trial was had upon issues duly made upon this declaration, resulting in a verdict and judgment for the defendant. The judgment was brought here for review. This court found that the averments upon which jurisdiction was based were defective, reversed the judgment, and remanded the cause, with leave to the

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1 As to state laws as rules of decision in federal courts, see note to Wilson v. Perrin, 11 C. C. A. 71, and, supplementary thereto, note to Hill v. Hite, 29. C. C. A. 553.

plaintiff for amendment and further proceedings. 25 C. C. A. 145, 79 Fed. 676. In the circuit court the plaintiff did amend his declaration so as to show jurisdiction, and also by terming his action "a plea of covenant," instead of “a plea of breach of covenant." In other respects the declaration is the same as the original. All the bonds sued on are in the form. following: "No. 21.

"Township Bond for One Hundred Dollars.

$100.

"Township of Rogers. County of Presque Isle. "Authorized by Act of the Legislature of Michigan Approved March 25th, 1867. "Know all men by these presents, that the township of Rogers, county of Presque Isle, and state of Michigan, acknowledges itself justly indebted, and promises to pay, to or bearer, one hundred dollars, on the first day of December, A. D. 1881, at the First National Bank of Detroit, with interest at the rate of ten per cent., payable annually, upon the presentation of the coupons hereto annexed, on the first day of December of each and every year, until the principal is paid.

"[Note. Written across the face in red ink] $100. State of (issue of $3,000) Michigan.

"This bond is issued in conformity with an act of the legislature of the state of Michigan approved March 25th, 1867, and authorized by a legal vote of the qualified voters of the township at a special meeting held August 23, A. D. 1871. "In testimony whereof, the supervisor and treasurer have signed and countersigned this bond this twenty-first day of November, A. D. 1871.

"Frederick Denny Larke, Supervisor.

"Christian Bahre, Treasurer.

"Ten-Dollar Coupon, Due 1881.

"Township of Rogers, county of Presque Isle, state of Michigan, will pay the bearer, at the First National Bank, Detroit, on the first day of December, 1881, being interest on bond No. 21. Christian Bahre, Treasurer.

"Frederick Denny Larke, Supervisor."

The bonds are not sealed. The bonds dated November 21, 1871, and January 1, 1872, bear the names of Christian Bahre, treasurer, and Frederick Denny Larke, supervisor, as above, and recite a township meeting of August 23, 1871. The 10 bonds issued June 30, 1871, bear the names of Christian Bahre, treasurer, and Albert Molitor, supervisor, and are denominated, by words written across the face, "$1,000 issue." Their recitals refer to a township meeting held June 28, 1871, instead of August 23, 1871, but in all other respects the two series are alike.

The law under which the bonds purport to have been issued (being No. 98 of the Michigan Session Laws of 1867) is as follows:

"An act to authorize the several townships of this state to raise money by tax, or to borrow money, to rebuild or repair bridges.

"Section 1. The people of the state of Michigan enact, that it shall be lawful for any township in this state to vote for and raise by tax a sum not exceeding one per cent. of the assessed value of the real and personal estate for the preceding year, for the purpose of building and repairing bridges; and it shall be lawful for such townships to borrow money for such purposes upon the terms and conditions hereinafter mentioned: provided, the aggregate of such loans shall not exceed three per cent. of the amount of the assessed valuation of the real and personal property. And further provided, that no larger sum than one per cent. on the valuation shall be raised in any one year to pay the interest or principal of such loans.

"Sec. 2. It shall be the duty of the township clerk, upon the written application of ten legal voters who are freeholders within such township, to give notice, by a written or printed notice, to be by him posted up in five of the most public places in said township at least two weeks previous to the annual township meeting, or of a special meeting, of the intention to vote, by ballot, on the tax or loan, in pursuance of the provisions of this act; and at such meeting the question shall be submitted to the voters, and the majority of the

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