Bosworth v. Sturtevant

Wilde, J. Three exceptions were taken, by the defendants’ counsel, to the rulings of the judge who presided at the trial of this cause. The first is, that the declarations of Charles Holmes were not competent evidence to prove the contents of a lost deed. But as both parties claim title from Holmes, and as we presume he was not living at the time of the trial, although that fact is not expressly stated in the report of the evidence, we are of opinion that his declarations were rightly admitted. White v. Loring, 24 Pick. 322, 323. The second exception is to the ruling of the court as to the construction of the deed from Charles Holmes to John Waterman, from which the defendants derive their title. But we are of opinion, that the instructions to the jury were strictly correct, according to the well established rules of construction as to the descriptive words in a conveyance. Whether the finding of the jury was supported by the evidence or not, is a question not open on these exceptions. [400] The third and last exception is, that the instructions to the jury were incorrect, as to the defendants’ liability as joint or several' trespassers, and to the form of the verdict, as directed by the court. With regard to this exception, we think that the verdict, as directed, is not in conformity with the finding of the jury, as stated by them. But this error may be corrected, and the verdict may be altered, so as to conform to the finding of the jury. That finding was, that the defendants were joint trespassers, in entering the plaintiffs’ close for the purpose of division or partition; and that, as to the cutting and carrying away of the timber and wood, after partition, they were distinct and independent acts of trespass committed by the defendants separately. Upon this finding, we think the plaintiffs have a right to elect either to enter a nol. pros, as to one of the defendants, and take judgment against the other, or they may have judgment against both for nominal damages. This is not like the case of the Kennebeck Purchase v. Boulton, 4 Mass. 419 ; it not appearing that the defendants committed the trespasses at the same time. The plaintiffs elected to take judgment against both defendants, for nominal damages, and such judgment was entered.