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3. (Same.) But the covenantee may submit to pay the claim even without suit, and in that case will recover of the warrantor by showing it to have been a claim which he could not have resisted. Ib. WATER. (Diversion of) Where a spring is supplied by a hidden stream passing through the earth, the owner of the land above where the water of the spring issues from the earth has no right to divert such water, by an excavation or artificial works upon his own land, to the injury of the land owners below, who are supplied by the waters of such spring in their matural course, or by prescriptive use. Smith v. Adams, 6 Paige, 435. 2. (Grant presumed.) Where a land owner and those under whom he claims have diverted a part of the water of a spring from its natural course, for the use of their land, by means of an artificial conduit, and have continued to enjoy the water in that way for twenty years without interruption, a grant of the right to divert the water to that extent for the use of the premises will be presumed. Ib. WATERCOURSE. In June, 1832, and before, B owned two pieces of land, with a stream of water running through them, on each of which he had a mill, propelled by the water of the stream. On the upper piece he had a dam, mill-pond, flume and conductor. The water for the use of both mills passed from the dam through the flume. That for the use of the upper mill was taken from the flume, by means of two orifices in it; and that for the use of the lower mill, by means of a conductor inserted in the flume, and extending from it to the mill. On the 8th of June, 1832, B conveyed to S the upper mill site and one half of the pond flowed by the dam, by a deed containing the following clause: “always provided, and this deed is given on condition, that the grantor is to have and retain the privilege of conveying water from said dam through a conductor similar to the one now in use, till the same shall arrive at the east end of the new shop, [the upper mill] and thence, either by a conductor, race or otherwise, to the shop [lower mill] lying east of the new shop.” The rights of B in the lower mills afterwards became vested in K and S ; K owning two thirds, and S one third. In November, 1835, S made a new orifice in the flume, lower than any former one, and thereby drew off so much of the water as not to leave sufficient to keep the lower mill in operation. On a bill in chancery brought by K against S, to enjoin him against such diversion, it was held: 1, that B, at the time of the conveyance from him to S, had a right and was bound to take the water for the use of the lower mill, in the accustomed manner, and that, by such conveyance, B retained to that mill all the privileges which it then enjoyed; 2, that the term “dam ” in the reservation was to be construed as including the flume, or as being of equivalent import; 3, that though the reservation was without words of inheritance and without mention of assigns, yet B, after the conveyance to S, had an assignable interest in the use of the water reserved; 4, that notwithstanding K and S were tenants in common of the lower mill and the water privilege connected with it, yet as the acts complained of tended to a destruction of the joint property, K was entitled to the relief sought. Kennedy et al. v. Scovil et al., 12 Conn. 317. WAY. (Erection of a pound.) The erection of a pound by a town on a public highway is an encroachment on the public easement, but does not destroy it. Sprague v. Waite, 17 Pick. 309. 2. (Owner of soil—trespass.) The owner of the soil, over which a town way passes, cannot maintain trespass against a person placing obstructions thereon. Mayhew v. Norton, 17 Pick. 357. WILL. (Competency of devisee as witness.) A devisee under a will, which may possibly be allowed and take effect, in case a will subsequently made by the testator shall be set aside, is not a competent witness to prevent the probate of the subsequent will. Hall v. Hall, 17 Pick. 373. 2. (Evidence.) On the trial of the issue whether a will should be approved and allowed, a previous will, which was read to the testatrix at the time when she executed the subsequent will, and explained to her, and its agreements and differences with the subsequent will pointed out to her, but which had never been offered for probate, was held to be admissible in evidence as part of the res gesta. Ib. 3. (Heir at law.) The heir at law can only be disinherited by express words or by necessary implication. He is, therefore, entitled to the real estate which is not legally and effectually disposed of by will, although the testator has attempted to devise the same to others. Van Kleeck v. Reformed Dutch Church, 6 Paige, 600. 4. (Will made in foreign country.) A Scotch deed of disposition and settlement, if duly executed as a testamentary disposition of the testator's property according to the laws of Scotland, and in the presence of two witnesses as required by our laws, is a valid will of the testator's real and personal property in New York. Matter of Easton's will, 6 Paige, 183. WITNESS. (Interested.) The grantee of land, which had been previously attached in an action against the grantor, conveyed it with covenants of warranty. It was held, that he was an incompetent witness for the grantor in such action, notwithstanding the grantee testified on his voir dire, that he considered himself fully indemnified against his covenants, and felt no interest in the action. Pond v. Hartwell, 17 Pick. 269. 2. (Cross-examination.) Upon the cross-examination of a witness, the court may, in its discretion, permit leading questions to be put, although relating to matters not inquired of upon the direct examination. Moody v. Rowell, 17 Pick. 490. 3. (Interested.) Where a person called as a witness stated that he was indebted to the defendant, and that he had been summoned in the action as his trustee, it was held, that he was not interested in the event of the suit, and so not incompetent to testify. Dana v. Kemble and Tr., 17 Pick. 545. 4. (Complainant, how made.) Where one of the complainants, who is a necessary party, but who has no personal interest in the subject matter of the litigation, is a material witness to prove the facts necessary to sustain the suit, the proper course, where
the nature of the case will admit of such a change of parties, is to move to strike out the name of such nominal complainant and to make him a party defendant; so that he may be examined as such witness. Eckford v. DeKay, 6 Paige, 565. 5. (Competency.) If the liability of the witness will remain the same whichever way the suit is determined, he is not incompetent; but if a decision in favor of one of the parties would have the effect to discharge the witness from further liability, while a contrary decision would leave him exposed to a suit, he is not a competent witness for the party who is seeking a decision, which will discharge the witness from further liability. Woods v. Skinner, 6 Paige, 76. 6. (Same.) To render a witness incompetent on the ground of interest, it is not necessary to show that the record of a judgment against the party calling him would be evidence against the witness in a subsequent suit. It is sufficient to exclude him, if a decision of the cause in favor of the party calling him will absolutely discharge the witness from his liability to a future suit and recovery against himself. Ib. 7. (Joint-contractor.) A joint contractor, not a party to the suit, is interested to defeat the suit, and not a competent witness for defendant. Pike v. Blake, 8 Vermont, 400. 8. (Interest.) Where the defendant, in an action by the holder of a note not negotiable against the payee, alleging that the defendant had assigned it to the plaintiff, and had afterwards withdrawn a suit brought by the plaintiff, in the name of the payee, against the maker, and had thereby defeated the collection of the note, offered the maker as a witness to prove, that he had paid the note to the payee, previous to the alleged assignment, and that it had never been in fact assigned to the plaintiff; it was held, that such witness had no interest in the event of the suit, and was, therefore, competent. Fitch v. Boardman, 12 Conn. 345.
In the Supreme Judicial Court of the State of Maine, for the County of Cumberland, April Term, 1837.
WILLIAM Polleys v. Ocean INsurANce CoMPANY.
An old vessel built upon and enlarged and enrolled by a new name, without delivering up the old register, and thereby rendered liable to forfeiture by the laws of the United States, is the lawful subject of insurance against the usual perils of the seas; and the insurers cannot avoid the payment of a loss covered by the policy by reason of such liability. If there be no stipulation in the policy, that the vessel insured is a vessel of the United States, such enrolment by the new name is competent evidence to prove the property to be in the assured. Where the national character of the vessel is not made a part of the contract of insurance, the want of the proper documents to show such character is not material, unless it appear, that the loss happened, or that the risk was increased, in consequence of the want of such documents. The declarations of a stockholder or of a director of a corporation are not admissible in evidence against such corporation, made at a time when he was not acting as the agent thereof. Where one agreed to employ a vessel for a certain time, paying for her use a share of her earnings, and during the time and while under his control and while he was acting as master, a loss of the vessel happened; his declarations, made after the loss, are not admissible in evidence against the owner. Answers to questions, put by way of explanation of the testimony called out by the other party, are not admissible in evidence, when the testimony, which they were intended to explain, is excluded. Objections to the form of the questions and to the manner of the examination should be made before the commission issues, when testimony is taken by commission, and when on notice, before the magistrate at the time of the taking; but testimony in itself illegal cannot be admitted, because objections are not thus made. Where a party takes a deposition, he may withdraw it at any time during the first term, and in such case it is not evidence for either party; but if it be left on file after the first term, under rules 31 and 43 of this court, the opposing party has the right to read it in evidence in his favor. Those rules of court do not contravene the provisions of the statutes in relation to the taking of depositions.
And if the party by whom the deposition was taken shall take the same