should join in suit against the principal, and though, if one sue alone, the other is interested in the suit, yet, if he is called to testify by the plaintiff, and not objected to by the defendant, he is bound to testify, and does not thereby estop himself to claim of the plaintiff the benefit of the recovery from the principal. — Doolittle v. Dwight, 2 Met. 561.

9. A witness being sworn to tell the whole truth, he ought to do what is reasonable to enable him to perform that duty faithfully and sincerely, according to the spirit of his oath; and he may be required to refer to memoranda or papers within his power, to aid his recollection. Chapin v. Lapham, xx. 467.

10. Thus, where counsel was called on by the adverse party to state what occurred on a former trial, which he did not particularly recollect, and was then required to refresh his memory by consulting his minutes, which lay before him; held, the requisition presented a question of discretion for the presiding judge. — Ibid.

D. When and how a witness may be objected to, discredited, or restored to competency, and herein of accomplices. (Ante, B, a. 17.)

1. An incompetent witness should be objected to before an examination in chief. But the objection may be taken at any stage of the trial, if the fact is then first discovered. Shurtleff v. Willard, xix. 202.

2. The religious faith of a witness is not a subject for argument. or proof, for the purpose of showing that he is entitled to more or less credit than those of a different religious sect.-Commonwealth v. Buzzell, xvi. 154.

3. A. and B. being jointly indicted for kidnapping a colored boy at W. on September 12th, evidence was held admissible against B., that, on September 11th, at S., where he went with A., B. endeavored to obtain a colored boy, for the purpose, as he said, of living in his father's family. B. then called his parents, who testified that the mother directed him, before going to S. with A., to endeavor to procure there a boy or girl to live with her; and the daughter of the man, at whose house A. and B. stopped at S., who testified, that while there, B. conversed with her father about procuring a boy for his mother. Held, the government attorney might inquire of this witness, if she did not know that her father stood indicted for kidnapping another boy, on account of his participating in the transaction testified Commonwealth v. Turner, 3 Met. 19.

to.

4. The party calling a subscribing witness cannot impeach bis character for truth, qu. - Whitaker v. Salisbury, xv. 534.

5. The defendant in a criminal prosecution may ask a witness against him, whether he has been offered a reward on behalf of the government, for testifying in a certain class of cases, which includes the case on trial. Commonwealth v. Sacket, xxii. 394.

6. A witness cannot be contradicted in relation to an immaterial fact, whether disclosed upon the examination in chief or the crossexamination. Commonwealth v. Buzzell, xvi. 154.

7. By St. 1785, c. 66, § 2, upon a complaint by the mother of a bastard child, she is not a competent witness, if previously convicted of any crime which would disqualify her to testify in any other cause. Held, a full pardon restored the competency of one who had been thus convicted. - Howard v. Packard, xvii. 380.

8. One convicted of, and sentenced for, an infamous offence, is restored to competency as a witness, by a pardon; but not by a mere remission of punishment. - Perkins v. Stevens, xxiv. 277.

9. A jury may legally convict upon the testimony of an accomplice alone; but, unless it is corroborated, the court will advise an acquittal. Commonwealth v. Bosworth, xxii. 397.

10. The corroboration must apply to some part of his testimony, which is material to the issue. - Ibid.

11. An accomplice, on cross-examination, stated that the examining magistrate assured him he should not be prosecuted, if he would disclose all that he knew. Held, this statement was material, and, for the purpose of corroborating it, the testimony of the magistrate to the same fact was admissible. — Ibid.

12. For the purpose of discrediting the accomplice, the defendant offered a letter from him, admitting that his testimony, relating to the transaction, upon a former occasion, was false. To show that the letter had been unfairly obtained, the prosecuting officer then asked the accomplice certain questions, to which he replied, that the letter was part of a correspondence carried on in jail, and stated by what means it was done, the relative position of the rooms, and the arrangement of the prisoners therein. Held, evidence on these last points was not admissible, for the purpose of corroborating his testimony. - Ibid.

Writ.

(See Action, Officer.)

1. Under Revised Statutes, c. 90, § 10, the Court of Common Pleas has authority in all cases, to require the plaintiff to procure a sufficient indorser of his writ, and, upon his failing to do so, to dismiss the action. Feneley v. Mahoney, xxi. 212. Will

iams v. Hadley, xix. 379.

2. Where a suit is brought by a person not an inhabitant of the State, and the writ not duly indorsed, the defendant cannot raise this objection after the first term. — Carpenter v. Aldrich, 3 Met.

58.

3. Under St. 1833, c. 50, § 2, a petition for a new trial, presented by a citizen of another State, after that statute took effect, must be indorsed, though the action was tried before the act took effect, and, by § 6, it "shall not affect any rights and liabilities " existing under the provisions of law. And this court cannot authorize the petitioner to furnish an indorser after the petition is entered, under the provision in the Revised Statutes c. 90, § 10, that this court may in all cases require an indorser, because, the statute being peremptory that the petition shall be indorsed, such provision does not apply. Haywood v. Main, xviii. 226.

4. Under St. 1790, c. 50, § 1, if the property of one, having his domicil or usual place of abode in Massachusetts, is attached, the summons must either be left there, (not at any other place,) or delivered to him. - Ames v. Winsor, xix. 247.

5. A defendant may appear in court for the express purpose of objecting to the service of the writ, without thereby waiving such exception. Ibid. (xxi. 263.)

6. Nor does he waive such exception, after moving, without success, upon the entry of the action, that it be dismissed for this cause, by joining in a common demurrer, whereby the case is brought to the Supreme Court. - Ibid.

7. In a trustee writ, the defendant was described as an inhabitant of another State. The officer returned that he had summoned the trustee, but no service was made upon the defendant, except by way of a personal notice of the suit, given him by order of court. The trustee disclosed that he was indebted to the defendant, but was not an inhabitant of Massachusetts. Held, the courts of this state had no jurisdiction; and, as the facts appeared by the record, including the return and the trustee's answer, the action should be dismissed on motion. Nye v. Liscombe, xxi. 263.

8. The defendant appeared, by an attorney of the court, solely to move that the action be dismissed for want of service. Held, this did not give the court jurisdiction, and the motion, not being technically a plea to the jurisdiction, might properly be made by attorney. Ibid.

--

9. Where a writ is filled provisionally, and delivered to an officer, with instructions not to serve it till after a certain time or a certain event; the service of the writ will be the commencement of suit. Seaver v. Lincoln, xxi. 267.

10. A writ against the indorser of a note was given to an officer, with instructions not to serve it, until the plaintiff had given the defendant legal notice; and was not served until after such notice. Held, the service of the writ was the commencement of suit. Ibid.

11. By St. 1783, c. 43, § 1, all writs, to which the sheriff or his deputy is a party, shall be served by the coroner. Held, in an action against a school-district, of which one deputy was an inhabitant, the writ could not be served by another. Thayer v. Ray, xvii. 166.

12. A general direction of a writ to a coroner will not authorize him to serve it. This duty not being a part of his general office, but depending upon a special authority; every thing necessary to give such authority must appear on the face of the writ. Carlisle v. Weston, xxi. 535.

13. But, if the writ does not show such authority, yet, unless it shows the want of it, the objection will be waived by an appearance and plea, and cannot be taken advantage of, after the first term at which the defendant appears. Ibid. Kittridge v. Bancroft, 1 Met. 508.

14. A defendant, after appearing and answering to the writ, cannot object that it mentioned no time and place for his appearSturtevant v. Robinson, xviii. 175.

ance.

15. The Supreme Court not having prescribed any device or inscription to authenticate its seal, any seal is to be regarded as that of the court, if affixed as such. Stevens v. Ewer, 2 Met.

74.

16. It is immaterial, whether a blank writ be signed by the clerk, or his signature annexed, by his order; and, when annexed, it is presumed to be done by his order. - Ibid.

17. The teste of a writ is primâ facie evidence only of the time when it was sued out. Parol evidence is admissible, of the time when it was issued and handed to the officer. Thus, where a writ was dated March 21, 1831, but made returnable at the July

WRIT OF HABEAS CORPUS.- OF RIGHT. 495

term of the Court of Common Pleas, 1832; held, it might be shown by parol proof, that the date was a mistake, and the writ really returnable at the proper term; that, if the defendant had taken exception seasonably, the court would have allowed an amendment, and, as he did not, but suffered a judgment without objection, the error was cured by St. 1784, c. 28, § 14; and that one who purchased from the defendant, land attached in such suit, and afterwards entered on by the plaintiff, could not recover the land, upon the ground that the judgment was void, nor reverse the judgment by writ of error, without proving fraud and collusion between the parties. Parkman v. Crosby, xvi. 297.

18. To prove an attachment on a lost writ, it is not necessary to call the officer who served it, though within the process of the court. The fact may be proved by one who saw the officer write. his return. Nelson v. Boynton, 3 Met. 396.

Writ of Habeas Corpus.

Where a writ of habeas corpus issues from any other magistrate than a justice of this court, either the writ, or the petition annexed to it, and to which it refers, should show, although perhaps not strictly necessary, the existence of a case which justifies such interposition. Commonwealth v. Commonwealth v. Moore, xix. 339.

Writ of Right.

(See Real Action.)

1. A title by disseisin is sufficient for the demandant in a writ of right, unless the tenant can show a better one.

3 Met. 175.

Hunt v. Hunt,

2. To this writ, darrein seisin is a good plea and defence.Ibid.

3. Where a father was insane, and one of his sons, who had left his house, returned and took charge of his farm, with the acquiescence of the mother and the rest of the family, for several years, and until the father's death; held, the father continued seised while he lived, and the taking of the profits of the farm by the son must be considered as for the father's use and benefit. Ibid.