Legal Opinion

Yale v. Comstock

Massachusetts Supreme Judicial Court

Decided September 15, 1873PublishedCited by 16 opinions

Complaint under the mill act. Trial in the Superior Court, before Dewey, J., who, after a verdict for the respondent, allowed the complainant’s bill of exceptions, from which it appeared that the complainant derived his title by deed from Allen S. Yale, July 81, 1871. The respondent derived his title by deed from Marshall Brace, February 26,1868, and claimed a prescriptive right to maintain his dam at the height it was maintained during the time covered by this complaint.

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Complaint under the mill act. Trial in the Superior Court, before Dewey, J., who, after a verdict for the respondent, allowed the complainant’s bill of exceptions, from which it appeared that the complainant derived his title by deed from Allen S. Yale, July 81, 1871. The respondent derived his title by deed from Marshall Brace, February 26,1868, and claimed a prescriptive right to maintain his dam at the height it was maintained during the time covered by this complaint. It appeared that a mill and dam, for the working of the same, had been maintained, by those under whom the respondent…

1Opinion of the CourtMorton, J.

It is an established rule of law that evidence of what a deceased witness testified on a former trial is competent in any subsequent trial of the same issue, between the same parties. And privies in estate are deemed to be the same parties within this rule. Commonwealth v. Richards, 18 Pick. 434. Warren v. Nichols, 6 Met. 261. Jackson v. Lawson, 15 Johns. 539. Jackson v. Crissey, 3 Wend. 251. Under this rule the presiding judge rightly admitted evidence of what Marshall Brace testified in the former trial of the cases between Brace and Yale. The parties in this suit derive their titles…

2Cases cited2 opinions

  1. Jackson ex dem. Bates v. LawsonNew York Supreme Court · 1818
  2. Jackson ex dem. Barton v. CrisseyNew York Supreme Court · 1829

3Cited by16 opinions

  1. Commonwealth v. DiPietroMassachusetts Supreme Judicial Court · 1977
  2. McInturff v. Insurance Co. of North AmericaIllinois Supreme Court · 1910
  3. McCreery v. GreenMichigan Supreme Court · 1878
  4. Walsh v. District Court of SpringfieldMassachusetts Supreme Judicial Court · 1937
  5. Metropolitan St. Ry. Co. v. GumbyCourt of Appeals for the Second Circuit · 1900

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