B. Presumptive and cumulative evidence. 1. It was the usage of a hotel, to deposit all letters, left at the bar, in an urn kept for the purpose, whence they were sent, almost every fifteen minutes through the day, to the rooms of the respective lodgers for whom they were designed. Held, it would be presumed that a letter left at the bar reached the guest to whom it was directed. Dana v. Kemble, xix. 112. 2. In a suit by the holder of a note indorsed in blank by the payee, the law presumes that the holder purchased it immediately from the payee. Peaslee v. Robbins, 3 Met. 164. 3. One who, after leaving his usual home and place of abode for temporary purposes, has not been heard of for seven years, is legally presumed to be dead. - Loring v. Steineman, 1 Met. 204. 4. A jury may presume a lost deed of real estate, from long and uninterrupted possession and other facts, though it be not recorded; upon the ground that the rule, forbidding the introduction of an unrecorded deed in evidence, does not apply to such a case, or that it may be further presumed that the lost deed was registered, and that the record has been lost or destroyed. - Valentine v. Piper, xxii. 85.- White v. Loring, xxiv. 319. 5. Conveyance in 1778, of "part of the lot of swamp which D. S. bought of P. A." Evidence was offered of the running of lines, by agreement, between this part and the rest of the lot, and a corresponding occupancy to 1830. Held, the jury might presume a deed from D. S. to the grantor. - Ryder v. Hathaway, xxi. 298. 6. In 1771, a testator devised to his two daughters equally, in common, and they, with his widow, remained in possession till 1773, when one daughter married K., after which the widow and the other daughter remained in possession till 1777, when this daughter married M.; whereupon M. took possession, had issue in 1777, and in 1782 conveyed the whole land to C. in fee, by warranty deed, signed by his wife, but not referring to any right or title in her, or containing any words of grant or release on her part. The wife died in 1826, and the husband in 1830, and in 1832, their son, the demandant, made an entry as heir to his mother. The tenants, claiming under C., relied upon the presumption of a lost deed of the fee to M. prior or subsequent to his conveyance to C.; to support which, they offered evidence, that C. mortgaged in fee with warranty in 1785, sold a small part of the land in 1792, which the demandant's brother purchased in 1807, and the demandant in 1820; that C. erected valuable buildings on the remainder, and was in possession and occupation of it the last 1 thirty years of his life; that in 1814 it was sold under a license of court by the guardian of his children, and had ever since been in possession of those claiming under C.; that K. and wife had acquiesced in the possession of C. and those claiming under him for nearly fifty years, and that the demandant, and, until their death, his father and mother, had lived in the vicinity of the land, which neither of them had claimed till 1832. Upon this evidence, the jury found a verdict for the tenants, founded on a presumption of a lost deed in fee to the demandant's father. Held, the evidence was admissible, and the verdict sustained by it.Melvin v. Locks, &c. xvii. 255. 7. When the owners of adjoining lots agree upon a dividing line, this is presumed to be the true line, according to the original location of the lots. Sparhawk v. Bullard, 1 Met. 95. 8. Cumulative evidence is additional evidence of the same kind to the same point. Parker v. Hardy, xxiv. 246. -- 9. Trover for a horse. The defendant offered various evidence, that the horse had been sold to the defendant by one acting under authority from the plaintiff; but not any confession of the plaintiff. Upon a motion for a new trial, held, newly discovered evidence of the plaintiff's admission that he had authorized the sale was not cumulative, being of a new kind. Ibid. C. Admissions and confessions. The 1. Action against the defendant as surety upon a note. plaintiff offered to prove, that, just before the note was signed, a conversation took place between him and the principal, concerning the agreement to which the note related, at only a part of which the defendant was present; that the defendant hesitated or refused to sign the note, until the plaintiff stated what the agreement was; and that he then executed it. Held, that part of the conversation which occurred in the absence of the defendant was not admissible. Dexter v. Clemans, xvii. 175. 2. The plaintiff, before commencement of this suit, procured the deposition of the defendant, an administrator, to be taken in perpetuam, in relation to facts which became known to him previously to his administratorship; but did not notify him, according to the Revised Statutes, c. 94, § 35, as a party interested. Held, the deposition was not admissible, as such, 1. for want of notice; 2. because the witness was a party to the record; but might be used as a confession, though taken expressly for that purpose. Faunce v. Gray, xxi. 243. 3. Action upon a note, given by the defendant to the plaintiff in place of three others. Held, for the purpose of showing that the note was given, by mistake of the plaintiff, for too large a sum, the defendant might offer a memorandum in the plaintiff's handwriting, purporting to be a calculation of the amount due upon three notes, corresponding, in date and amount, with those abovereferred to, which amount was the same as that of the note in suit. Richardson v. Newcomb, xxi. 315. 4. In an action upon an account stated by the plaintiff, but not signed by the defendant, the account may be proved by the acknowledgment of the defendant. - Vinal v. Burrill, xvi. 401. 5. Where the declaration of a party is offered in evidence, and a part of it operates against him and another part in his favor, the latter shall be fairly and liberally considered and weighed, but there is no rule requiring that it be literally and absolutely believed. -Field v. Hitchcock, xvii. 182. 6. In a joint action upon a cashier's bond against him and his sureties, his admissions and declarations respecting his own defaults are evidence against them.Amherst, &c. v. Root, 2 Met. 522. 7. Admissions of an accomplice, made in presence of, and assented to by, the defendant, are evidence against him. - Commonwealth v. Call, xxi. 515. 8. A. and B. having made successive attachments of the same property, and the officer having applied the property in satisfaction of A.'s execution, upon taking a bond of indemnity from A.; held, in an action by B. against the officer for making such application, the declarations of A. were competent evidence to prove his attachment void, he being the real party defendant. — Bayley v. Bryant, xxiv. 198. D. Parol evidence. 1. Parol evidence of the conversation of partners, at the time when a note is given in part-payment, is admissible to show for what debt it was given. - Ilsley v. Jewett, 2 Met. 168. 2. Parol evidence is admissible to explain a receipt, and show to what demands it is applicable. - Brooks v. White, 2 Met. 283. 3. A receipt, given to one of two partners, being lost, and parol evidence of its contents offered, held, it was a question for the jury, whether the receipt was intended to discharge him alone, or his partner also. Ibid. 4. The sureties in the bond of a cashier may be charged, without proving its acceptance and approval by written evidence. It may be shown by parol proof, that the bond was laid before the board of directors, who expressed themselves satisfied with it. Amherst, &c. v. Root, 2 Met. 522. 5. Parol evidence is admissible of the contents of a paper which a party has been notified to produce, if the notice is such as to admit no doubt what paper was meant. Bemis v. Charles, 1 Met. 440. 6. When the language of a deed, especially of the descriptive part, is doubtful, parol evidence is admissible of the practical construction given to it by the parties. Stone v. Clark, 1 Met. 378. 7. A. and B. having become sureties in a note for C., A. brings an action against C., declaring upon a special contract and also for money paid. The action was referred by rule of court, and an award made in favor of A., the amount of which was paid by C. B. then brings an action against A. for one half of this Held, parol evidence was admissible, that upon the reference A. abandoned the special count, and proved, without objection from C., a payment of C.'s debt by both A. and B.-Doolittle v. Dwight, 2 Met. 561. sum. 8. Action by the administrator of the payee of a note, payable upon the death of a widow. The defendant offered to show by parol evidence, that the note was given upon a previous agreement between the maker and the intestate, that, if the estimated value of one third of the land, of which the widow was dowable, should be expended by the maker in her support, the note should be void; that, in a conversation relating to this note after its execution, in the absence of the defendant, the intestate had declared, that the interest was to be so expended and the principal also, if required, and that the note was dead; and that, upon the death of the widow, the defendant had expended more than the value of one third of the land in her support. Held, this evidence was admissible. Crosman v. Fuller, xvii. 171. 9. Action against assessors, for causing the arrest of the plaintiff for a tax. The town records not showing that they were duly sworn as such, held, parol evidence of the fact was admissible. Pease v. Smith, xxiv. 122. 10. In an action for repairs upon real estate, conveyed by A. to B., the defendant, by an absolute deed, duly recorded; B. may show by parol evidence, that he took the estate in trust for C., who received the profits, and that the plaintiff knew this fact; for the purpose of proving that the credit was given to C., and not to B.. Tripp v. Hathaway, xv. 47. 11. Parol evidence is admissible, to prove the time of executing a specialty. - Battles v. Fobes, xxi. 239. 12. The crew of a whaling ship signed the usual shipping paper, which provided as follows," If the crew or either of them is prevented by sickness or death from performing said voyage in said ship, he or they so falling short shall receive of his lay or share, in proportion as the time served on board is to the whole time said ship is performing her voyage." Eight months after commencement of the voyage, a seaman joined the vessel and signed the paper, and five months before its termination was discharged. At the time of discharge, the master gave him an order on the owners, for "the net amount of his share of oil, &c., according to his services on board said ship, agreeably to his contract specified on the shipping paper of said ship." In an action by the seaman for his share of the oil, &c. obtained by the ship, claiming the full amount, as if he had performed the whole voyage; held, the defendants might prove by parol evidence, that the plaintiff, when discharged, understood that he was to receive and agreed to receive such part of his lay or share, as his time of service bore to the whole voyage; this being a new contract, not contradictory to the terms of the shipping paper. Shaw v. Mitchell, 2 Met. 65. 13. In an action by a ship's husband, for supplies furnished to the vessel, brought against several defendants; it may be proved by parol evidence that they are all owners, though the ship is registered in the name of one only. Final v. Burrill, xvi. 401. 14. Parol evidence is inadmissible, that an assignment of a mortgage was meant to be a discharge, except for the purpose of proving fraud. Howard v. Howard, 3 Met. 548. 15. Devise of a house occupied by the testator. Held, parol evidence was inadmissible, of an intent to devise houses in the same yard, occupied by his tenants. Brown v. Saltonstall, 3 Met. 423. 16. A paper containing an agreement having become worthless to the parties, in consequence of a new agreement concerning the same subject, and given up to the promisor; held, upon making affidavit that he had diligently searched for, but could not find it, and supposed it had been destroyed, he might offer parol evidence of its contents; and that the rule, if such an one exist, that a party cannot give evidence of the contents of a paper sworn by him to be lost or destroyed, without so accounting for the loss or destruction, as to repel all inference of fraud in its destruction, did not apply to this case. Oriental, &c. v. Haskins, 3 Met. 332. 24 |