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rents, he will be refused the former, retaining the latter. Dias v. Glover, 1 Hoff. 72. 6. (Revivor.) A purchaser of the rights of a party to a suit who died after its commencement, may proceed by revivor and supplement, or institute a new suit. But in the latter case he cannot bind the defendant by an offer in his former answer nor prevent his setting up a new defence. Botts v. Cozine, 1 Hoff. 79. 7. (Ertension of time.) Where the time for performing a contract has been extended by parol, and it is then fulfilled, it cannot be alleged that the agreement to extend being void, the conveyance is alone to be regarded in ascertaining the rights of parties. Even supposing that such a parol agreement is in this court itself void, yet the contract may be referred to in settling rights as if it had been performed at the day. Ib. 8. (Same.) It seems that the time for performing a contract may be extended by parol. But if the party resumes negotiations for a fulfilment after the time has elapsed, and treats it as in existence and force, he will be held to have waived his strict right. Wiswall v. McGowan, 1 Hoff. 125. 9. (Same.) Where a contract was to have been performd in May, and was expressly extended to November, and the vendor was never in a state to perform until the 5th of December, and negotiations and various arrangements connected with it took place on the 9th of December; held, that the agreement was thus preserved in force, and that the vendor was bound in order to rescind the contract, to fix a day by which it must be performed, and to give notice of it. This should be a reasonable time. Ib. 10. (Damages.) It is settled law, that if the inability to fulfil an agreement is caused by an act of a party after a suit is commenced in this court, relief by an assessment of damages may be given. And held, that if the act is unknown to the complainant, when his bill is filed, he may have the same relief. If the act extends to a part of the property only, performance may be decreed for the residue, and damages be assessed for that part. And where the remedy at law is lost, or is very precarious, such relief may be had in chancery. Ib.
VENDOR AND VENDEE. (False assertion.) Where, upon a sale of property, both the buyer and seller have the property before them and subject to their inspection and examination, an assertion by the vendor as to the value of the property, though false, affords no substantive ground of relief in behalf of the purchaser. It is merely an opinion, as to which the purchaser is as capable of forming a judgment as the seller. Hutchinson v. Brown, 1 Clarke, 408. 2. (False representations.) False representations by the vendor, as to the actual income or receipts from the property which is the subject matter of sale, may be taken as evidence of fraud. Ib. VOID INSTRUMENTS. (Annulling of) A void instrument ought not to remain, where the pleadings allow the court to annul it. But equity will first see that no person, not a party, can sustain a claim on it; for, in that case, the course will be a perpetual injunction against those who are parties. McEvers v. Lawrence, 1 Hoff. 172. WATERCOURSE. (Riparian owners, their rights as to backwater.) To cause the waters of a stream, by the erection of a dam or the like below a party's line, to overflow his grounds and springs; or, thereby to create, near his residence, ponds of stagnant and offensive water, injurious to health, is a nuisance, and an actionable injury. Neal & Shelton v. Henry, Meigs, 17. 2. (Right of flooding land above.) A right of permanently overflowing the land of another, by a mill-dam to be constructed below his line, is a hereditament; and a contract for the sale of it must, therefore, be in writing. Harris v. Miller, Meigs, 158. WILLS. (Appointment in lieu of legacies bequeathed.) A person made a will, giving certain legacies out of his personal property, and devised his real estate to his wife and one of his sons, and appointed a stranger to his will, an executor. Before his death, he sold all his personal property to the son to whom the devise was made, and took his notes for payment in different sums, payable to different and several of his children; and these notes were enclosed in the will. Held, that these notes were an appointment of so much to the several persons to whom they were made payable; and that the legatees could take nothing by their legacies, independent of such appointments, inasmuch as the legacies were payable out of the personal property which was sold by the testator before his death. Logan v. Deshay, 1 Clarke, 209. WITNESS. (Recollection of) A book published by a witness may be read to show inaccuracy of the recollection of the witness. Harmer's heirs v. Morris & Gwynne, 1 McLean, 46. 2. (Subscribing.) An instrument of thirty years’ standing, not impeached, need not be proved by the subscribing witness. Piatt v. Wattier and another, 1 McLean, 161. 3. (Mortgagor.) A mortgagor who has executed a mortgage alleged to be usurious, cannot be examined as a witness to prove the usury by a subsequent purchaser of the property, even though he is indemnified by such subsequent purchaser. Bardwell v. Howe, 1 Clarke, 281. 4. (Trustee.) A mere trustee may be examined as a witness in favor of either party. Ib. 5. (Heirs of mortgagee.) The heirs of a mortgagee are not competent witnesses to prove the bona fides of the mortgage or its continuing force as a lien, in consequence of their interest. Cartiss v. Tripp, 1 Clarke, 318. 6. (Payee of note.) The payee of a note given without consideration, to one who has passed it with a guaranty of payment, is an incompetent witness for the maker to prove the note usurious in its inception. Ramsay v. Harris, 1 Clarke, 330.
Municipal Court of the City of Boston, April Term, 1840.
Perjury –A deposition taken in perpetuam, but not recorded within three months from the caption, is not admissible in evidence in any civil action after the lapse of that period.
After the expiration of ninety days from the taking of a deposition in perpetuam, without the same having been recorded in the registry of deeds, according to the revised statutes, chapter 94, section 37, it becomes a dead letter, and cannot be used in evidence to support an indictment for perjury, alleged to have been committed by the deponent in giving the same.
The defendant was charged with wilful and corrupt perjury in giving his deposition in perpetuam; Held, that the government could not prove his testimony by parol evidence, inasmuch as the indictment referred to the deposition remaining.
The caption of the justices, certifying that a deposition was taken to perpetuate the testimony of a witness, was held sufficient evidence of that fact, although the party, at whose request it was taken, omitted, in his application, to state that he was desirous to perpetuate the testimony of the witness, according to the revised statutes, chapter 94, section 34.
This was an indictment against Phineas J. Stone for perjury, and was founded on sect. 2, of chap. 128 of the revised statutes, which is in these words: “if any person, of whom an oath shall be required by law, shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is required, such person shall be deemed guilty of perjury.” The indictment set forth the alleged perjury in ample form, and charged it to have been committed by the defendant, in answers to certain interrogatories, contained in a deposition which was taken in perpetual remembrance of certain matters or things, before Joseph Willard and Aurelius D. Parker, Esquires, justices of the peace, and counsellors at law, on February 9, 1839, pursuant to the 34th section of the 94th chapter of the revised statutes. After the jury were empanelled, S. D. Parker, attorney for the commonwealth, before calling any witnesses, offered in evidence and in support of the prosecution, the defendant's deposition, which contained the alleged perjury, and the proof that it had been taken pursuant to the statute. To the reading of this deposition, Choate and A. Cushing, counsel for the defendant, objected; for the cause that it had not been recorded within ninety days after the taking thereof, as directed in the revised statutes, sect. 37, chap. 94. They argued, that it could not be given in evidence for any purpose, either in the trial of a civil action between persons interested, or in support of a criminal accusation against the deponent for any matter contained in the deposition. Parker admitted that it could not be read in evidence in the trial of a civil action; but he insisted, that inasmuch as the alleged perjury was committed at the time the deposition was given, whether it was recorded or not was not material. The perjury was a matter independent of the recording of the deposition, and done before it was required, that the deposition should be put on record. If it was ever committed, the failure to record the deposition could not purge the criminal act. If it was good for no other purpose, it ought to avail against the deponent for the wilful perjury. THACHER J. adjourned the court to the afternoon, when he pronounced the following opinion. The deposition is offered as one taken in perpetuam, and as containing the evidence, that all forms required by law had been observed to render it valid. Annexed to it is, (1) the written application to the magistrates for taking the deposition, in which William Jones, the applicant, sets forth his title and interest in the subject, for which he wished to perpetuate the testimony, and the names of the deponent and of all persons interested. (2) It contains the original notice which was issued by the magistrate, and service of the same. (3) To the deposition is added the certificate of the magistrates, of the time and manner of taking it, and that it was taken in perpetual remembrance of the thing, the name of the person for whom it was taken, and of all persons who were notified, and also of all who attended at the time. It also sets forth the tenor of the oath which was administered to the depoment. The paper is the highest and best evidence of all these facts. If the deposition was not taken according to the forms of law, it never could have had a legal existence. An objection was also made to the deposition, for the insufficiency of the application to the magistrates, in not expressing that it might be taken to perpetuate the remembrance of the thing. But the notice from the magistrates to the persons interested, and the certificate of the magistrates, show that the deposition was