the northerly end of said lot, south of said termini, placed there for con-
venience in building, and not designed or understood as being on the
true north line of said lot. Other house lots adjoined the lot in ques-
tion on the east and west; but it did not appear that the northerly cor-
ners thereof ever had, or were intended to have, any reference to the
corners of the lot in question; nor did it appear whence title thereto
was derived. The court refused to charge, that by intendment of law,
the adjoining corners of said lots were to be taken as the northern cor-
ners of the lot in question; but charged that unless there was some ob-
ject or mark in the course of said eleven-rod lines, intended by the par-
ties to said deed to mark the northern termini thereof, that said deed
required said lines to be eleven rods long from the center of the high-
way; and properly explained the law as to monuments controlling
courses and distances.
Held, no error. Day v. Wilder, 583.

See EVIDENCE, 22.

DEPOSITION.

A party who takes and files a deposition which he does not use on
trial, is not bound to permit his adversary to use it.

Wing, admr. v.

Hall et al. 182.

DIVORCE.

1. Parties married in New York in 1831, and lived together till 1863,
when the husband left the wife, at which time, and for at least six
months prior thereto, they had resided in S., in this state. The wife
subsequently preferred her complaint for divorce to the supreme court
of New York, where she was then domiciled, alleging for cause the
adultery of the husband in this state while they were living here and
subsequently, and setting the husband up as having had his last known
residence in S., but as then being of parts unknown. Notice of said
suit was given by publication in New York, and by mailing a copy of
the summons and complaint to the husband at S., whence he had
removed to another town in this state. The husband did not appear in
said suit. Held, that said court acquired no jurisdiction of the person of
the husband, and that the decree for alimony rendered by it upon
granting a divorce, was not binding upon him in this state. Prosser &
wife v. Warner, 667.

2. Semble, that the decree of divorce was not. Ib.

DURESS.

See SALE, 2,13.

EJECTMENT.

1. An entry upon land in the possession of another, in order to work
a legal interruption of such possession, must be made under such cir-
cumstances as to enable the party in possession, by the use of reasona-
ble diligence, to ascertain the right and claim of the party making the
entry. Wing, admr. v. Hall et al. 182.

2. Acts done upon land by the license of another, are to be consid-
ered the same as though done by the licensor; and they enure to the
benefit of the party holding the title under which the licensor took
possession. Ib.

3. M. held a tax deed of the demanded premises that was not shown
to be valid, and which was never recorded. He conveyed whatever
title he obtained by it to P., and acquired no possessory title. Page,
under parol agreement of purchase with P., did acts of possession on the
land. P. willed his property to C., and died. Subsequently, R., under
an arrangement with Page, entered upon the land, claiming to own it,
and cut timber and did other acts thereon, and afterwards bergained for
C's interest therein. The defendants relied upon R's entry and acts,
to interrupt the possession of the intestate. Held, that if done, claim-
ing under the title of M., they could not have that effect. Ib.

4. P's will was never probated in this state; and rather than have it
probated, and the estate settled here, so that C. could deed said premises
to the defendants, C. procured M. to deed to them, and received the
consideration therefor. Held, assuming that whatever title M. acquired
by his deed, could be assigned in the manner attempted, that the
possessory title which the defendants' testimony tended to show had
been acquired by P. and those claiming under him, did not pass to the
defendants by M's deed to them; and that the defendants could not jus-
tify thereunder, as against a party having a prior possession. Ib.

ESTOPPEL.

Title of a portion of the demanded premises was decreed to the plain-
tiff in a suit in his favor against the defendants and others. The defend-
ants obtained a deed of the premises, pendente lite, but the title under
that deed was not in issue nor litigated in that suit, although the defend-
ants might have been permitted to set it up, on application made at any
time before final decree. Held, in ejectment subsequently brought by
the plaintiff, that the defendants were not estopped by the decree from
setting up title under said deed. Wing, admr. v. Hall et al. 182.

See ARBITRATION, 3; HOMESTEAD, 2; CHANCERY, 13.

EVIDENCE.

1. In case by husband and wife for injury to the wife occasioned by
the defendant's dog biting her, the defendant was not allowed to show,
as a reason why the suit was brought, and as bearing upon the question
of exemplary damages, that shortly before the injury complained of, the
plaintiff set his dog and the defendant's to fighting, and that the defend-
ant reproved him therefor. Bates & wife v. Cilley, 1.

2. When witnessess differ as to facts, the jury should consider which
had the best means of knowledge-which were most likely to be mis-
taken. As a general rule, it is safer and better for the jury to reconcile
conflicting testimony upon the theory that the witnesses on both sides
intended to testify truly, rather than upon a theory that would involve
the finding that on one side or the other they had committed perjury.
And as a general rule, other things being equal, affirmative testimony is
entitled to more weight than negative testimony. Ib.

3. Parol evidence cannot be received to enlarge or vary a written
contract, especially one by deed. Abbott et. als. v. Choat et als. 53.

4. The fact that two years prior to the making of an order of removal,
the pauper was likely to become chargeable, is not evidence tending to
show that he was in that condition at the time the order was made.
Danville v. Wheelock, 57.

5. A witness's testifying that he told another a certain thing, is not
attesting that the fact was so, and that the witness had personal knowl-
edge thereof. Ib.

6. In case for injury upon a highway, the plaintiff submitted to one
personal examination by the defendant's medical witnesses during trial,
but refused to submit to another, for the alleged reason that she was too
feeble and exhausted. Held, that, to rebut any unfavorable inference
that might be drawn against her for the refusal, it was competent for her
to show that some time before the trial, when the agent of a railroad
company that had been vouched in to defend, and which the town claimed
was liable over to it, visited her in company with one of the selectmen
of the town, she requested that the company send physicians to examine
her, to ascertain how badly she was injured. Durgin & wife v. Dan-
ville, 95.

7. A witness who had knowledge of the mechanism and working of
knitting machines, and was familiar with the operation of a needle called
the latch-needle, but who had no experience in the use of the spring-
needle, nor knowledge of its operation, was permitted to show the facility
and perfection of operation of the latch-needle to the jury, and testify

to its merits, and to give his opinion why he thought its use could not be
superceded by the spring-needle, with his reasons therefor. Held, no
error. James v. Hodsden, 127.

8. The plaintiff was permitted to testify as to his examinations at the
Patent Office for evidence of the granting of a patent, or of an applica-
tion therefor, and that nothing pertaining thereto could be found, except
a certain paper which he produced. Held, no error. Ib.

9. A witness having testified that he could not describe the defend-
ant's bridge at the time of the accident in question, was asked to com-
pare its condition then with its condition three years afterwards, but was
not permitted to answer the question. Held, no error. Stanton & wife
v. Proprietors of Haverhill Bridge, 172.

10. In the absence of proof to explain what appears of record as to
the time when an instrument was in fact recorded, the legal presump-
tion is, that it was recorded when received for record. Wing, admr. v.
Hall et al. 182.

11. To show that the plaintiff's possession of the demanded premises
had been interrupted, the defendants introduced a witness who testified
to acts done thereon and claims made thereto by him in 1865, under a
certain title. Held, that the plaintiff might show, as bearing upon the
question of what claim the witness made to the lot at the time of his
entry, that in 1866, while he was still claiming the lot, but had acquired
no right thereto, and before the defendants had any interest therein, the
witness being upon the lot, and in full view of the part where he had
done the acts testified to, was asked by what title he claimed, and replied
that he claimed under a title other than the one he testified that he
claimed under. Ib.

12. Collateral matter drawn out on cross-examination cannot be con-
tradicted by the cross-examining party. Ib.

13. Witnesses produced as experts, testified as to their peculiar skill
in judging of the genuineness of handwriting by comparison. The
county court found their testimony to be true, but refused the evidence
of their opinion, on the ground that their testimony did not show them
such experts as to make their opinion, based solely upon examination
and comparison, admissible. Held, that if the facts testified to by them
were to be regarded as matter of evidence from which the court were to
find whether experts or not, such finding was not revisable by the
supreme court; but otherwise, if said facts were to be regarded as ulti-
mate, and the perfected ground of a definitive judgment at law. Wright
v. Williams's Estate, 222.

14. Action on note for money claimed to have been loaned the
intestate. Defence claimed the note a forgery, and gave the plaintiff's
testimony before the commissioners in evidence, wherein he testified
on cross-examination, that he formerly loaned money, but that from a
certain time named, to the date of the note, he saved what money he
had come in, and with it made the loan in question. To contradict this,
the defence offered to show that the plaintiff made loans during the time
named, and that certain notes produced were given for money loaned
by him during that time. The plaintiff was not a witness in the county
court, and no point was made that he did not make the loan in question
because he had no money to loan. Held, that the testimony offered was
not admissible.

Ib.

15. Defendant read in evidence certain portions of plaintiff's testi-
mony on a former trial. Held, that plaintiff had a right to have all he
said at the time, in connection with what had been read, and upon the
same subject, read to the jury. Ib.

16. Said note, with an indorsement thereon in plaintiff's hand, was
properly in evidence. Plaintiff's evidence tended to show that the pay-
ment was made by the intestate, and indorsed at his request; but plain-
tiff did not claim that the indorsement, of itself, was evidence of the
execution of the note. Defendant requested the court to charge, that
the indorsement was no evidence of payment, and was not to be consid-
ered by the jury in determining whether the note was signed by the
intestate or not. The court refused, and charged, that if the indorse-
ment was made in good faith, and the money actually paid by the intes-
tate, understandingly, to be indorsed upon the note, it was a strong
circumstance tending to show that he executed the note. Held, no

17. Evidence had been given on both sides upon the question of the
handwriting of the signature to said note, and witnesses on the part of
the defence had testified their opinion that it was not the intestate's,
and had pointed out several particulars wherein they thought it differed
from his. Defendant then produced several notes written by and paya-
ble to plaintiff, purporting to be signed by persons since deceased, and
offered to prove that plaintiff had presented them against the estates of
the makers, and that they had been paid, and claimed that the signa-
tures thereto were forgeries, and offered the notes in evidence, that the
jury might compare their signatures with that to the note in suit, and
claimed that in certain particulars, not pointed out, they were alike.
This the court refused. Defendant then made the same offer, and
claimed that there were certain peculiarities in the plaintiff's writing in
the body of the notes, not pointed out, that also appeared in the signature
to the note in suit. This the court also refused. Held, no error. Ib.