
    Daniel Russell, by his Guardians, Zenas Coffin et al. versus Charles Coffin.
    The selec;men of a town being appointed guardians of a spendthrift, under the statute authorizing the judge of probate to appoint the selectmen or 66 other suitable persons,” do not cease to be such guardians on the expiration of the period for which they were elected to the office of selectmen.
    It is not requisite that such guardians should give a bond with sureties, as a condition precedent to their acting ; it being in the power of the judge of probate to remove them at any time, on their failing to give security as he may direct.
    One of two witnesses to a deed deposed that he did not recollect witnessing it, but knew the attestation to be in his handwriting, and that the other subscribing witness had a short time previously, but long after the commencement of the suit, m which the deposition was taken, left the Commonwealth, after advertising his intention so to do, and that though the deponent did not recollect having seen him write his name, he had often received letters from him, and thought the signature in question was his handwriting. Held, that this was sufficient proof of the execution of the deed for the purpose of reading it in evidence.
    A grantee, not having been in actual possession of the granted premises otherwise than by leasing them to his grantor and receiving rent from him, executes to a purchaser for a valuable consideration, a deed of conveyance, by tc quitclaim and release ” in the form in common use in Massachusetts, which was duly recorded m the registry of deeds. Held, that this was a sufficient conveyance to pass the estate, though the releasee had not a previous interest in or possession of the estate. _
    Where a witness on the stand, upon cross-examination, contradicted a deposition he had previously given in the same case, the party calling him was not permitted to call other witnesses in support of his general character for truth.
    This was a writ of entry, dated the 19th of April, 1825, wherein the demandant counted on his own seisin and a disseisin by James Bigelow, who aliened to the tenant. The plea was, that Bigelow never disseised.
    At the trial, before Wilde J., the demandant produced the decree of the judge of probate for the county of Nantucket, of the 25th of November, 1324, appointing the selectmen of the town of Nantucket, naming them, to be guardians of Russell, as a spendthrift, and also a bond of the same date, given by the same persons to the judge of probate, for the faithful performance of their duty as guardians of Russell, stated therein to be a person non compos mentis. The selectmen of Nantucket, so appointed, ceased to be selectmen of that town in the March or April following their appointment as guardians, and one of them, Zenas Coffin, had died since the last continuance of this action ; and only two of them, namely, Thomas Macy and Hezekiah Barnard, were selectmen of that town at the time of the trial of the action, holding their offices by an election made a long time after the commencement of the suit.
    It was contended by the defendants, that under these circumstances a nonsuit ought to be entered, or that the suit ought to abate. The objection wras overruled and the point reserved for the opinion of the Court.
    The demandant then offered a deed of release from William Coffin to Russell, of the demanded premises, dated April 28th, 1819, containing a covenant of warranty only against all claiming under the releasor, and purporting to be witnessed by Josiah Hussey and Oliver C. Bartlett. To prove the execution of this deed the demandant read the deposition of Josiah Hussey, who could only testify that the signature of his name was in his handwriting, and he had no doubt he saw it executed, as he was not in the habit of signing his name to what he did not see executed.
    It appeared also from Hussey’s deposition, that Oliver C-Bartlett had been a resident of Nantucket long since the commencement of this action, and had removed to New York about a fortnight before the time of taking Hussey’s deposition, having previously published his intention of removing, in the public journals of the island. He also testified to the handwriting of Bartlett. The tenant objected to the reading of the deed in evidence, on the ground that the testimony of the other subscribing witness had not been produced. The judge admitted the deed to be read and reserved the point.
    To prove seisin and possession, the demandant read the deposition of William Coffin, who testified to the execution of his deed of release, and of several deeds not produced at the trial, from Benjamin Winslow to the witness. The witness never had actual possession under these deeds, but he considered Winslow as his tenant at will ; who had remained in possession until 1825, excepting when he was put out of possession by the levy of an execution in favor of James Bigelow in the spring of 1822.
    Upon this testimony it was contended, in behalf of the tenant, that it did not appear that William Coffin had ever been in actual possession of the premises, so that the release could operate, which, it was contended, did not itself give seisin ; and the demandant had never made any formal entry, either by himself or guardian, before commencing the suit; and as there was no evidence of an ouster or disseisin of Russell by Bigelow, the demandant had not supported his action, and a non-suit ought to be entered. But this objection was also over ruled.
    The tenant then gave in evidence copies of the proceedings in a suit of Bigelow against Winslow, from which it appeared that an attachment was made of Winslow’s right in the land, and that the land was set off to' Bigelow as the property of Winslow, whereupon Winslow, who was then in possession, was turned out, and Bigelow put into possession. The tenant also gave evidence of a warranty deed of the premises from Bigelow to himself.
    The demandant then offered in evidence a deed of the premises from Winslow to William Coffin, dated October, 1826, purporting to be witnessed by Josiah Hussey and James Hedge. He first read the deposition of Hussey stating that he had no particular recollection of the transaction, but that the signature was his handwriting, and that he believed the signature of Hedge to be in his handwriting. Hussey had never seen Hedge sign his name, but he had received letters from him several times, and he thought he had seen him write. The demandant had summoned Hedge, the other subscribing witness, who was present in court, but he declined to produce him, stating that he was a witness adverse to the demandant. The tenant contended, that upon this testimony the deed ought not to be read in evidence until Hedge should be called to testify to its execution. The objection was overruled and the deed was permitted to be read in evidence, and the point was reserved.
    Hedge, being called by the tenant, gave testimony tending to show that the deeds from Winslow were made for the purpose of defrauding his creditors, and that this was known to Russell; and other testimony was introduced, to show, that the release was made to Russell by collusion between W. Coffin, Russell and Winslow, for the same purpose. Testimony was offered on the part of the demandant, to rebut the evidence produced by the tenant; and the demandant was permitted to cross-examine Hedge as to the testimony he had given in a certain deposition then in the counsel’s hands, which had not been read to the witness, nor in evidence, and the witness having given testimony in some particulars different from such deposition, and having testified to some things material in the cause, not stated in his deposition, the counsel were permitted to give the deposition in evidence to impeach his testimony. Whereupon the tenant proposed to call witnesses to prove the general character of the witness for truth. But this evidence was ruled out, and the counsel for the demand-ant were permitted, in argument to the jury, to treat the testimony of this witness as having been given falsely, with a view to benefit the tenant ; and the jury were instructed, that this was a subject proper for their consideration ; to all which the tenant excepted.
    
      March 13th.
    
    The jury found a verdict for the demandant.
    
      K. Whitman and Rand,
    for the tenant, objected to the sufficiency of the bond of the guardians, for want of sureties. It did not appear whether it was the bond of the selectmen as such, or their personal bond ; if the former, they had ceased to be the proper parties, as their office expired at the end of the year. There were seven originally, now only two. Their names cannot be struck off one after another, so as to leave only one obligor in the bond, without defeating the guardianship. Morgan v. Dillon, 9 Mod. 142; Bac. Abr. Guardian, A.
    
    The execution of the release was not sufficiently proved. It being known that Bartlett, one of the subscribing witnesses, was about to leave the State, his deposition should have been taken. 1 Stark. Ev. 330, 340 ; Harrison on Ev. 94.
    Neither Coffin nor Russell having possession, nor having made any formal entry, nothing passed by the release. Thacher v. Cobb, 5 Pick. 425; Porter v. Perkins, 5 Mass. R. 233; Warren v. Childs, 11 Mass. R. 222; Hamblet v. Francis, 4 Mass. R. 78; Kennebeck Purchase v. Call, 1 Mass. R. 483; Bennet v. Irwin, 3 Johns. R. 366; 4 Dane’s Abr. 144, c. 110, art. 5, § 26; Dixon on Title Deeds, 663, 665; 2 Preston on Conv. 324. To give effect to a release like this, there must be some privity of estate between the rsleasor and releasee. A release to a tenant at sufferance Clone balding over, will not pass any estate. If it is construed to be a bargain and sale, the releasor is made to covenant that he has a right in the land, which is inconsistent with the intention of the deed.
    The evidence offered, of Hedge’s good character, ought to have been admitted. 3 Stark. Ev. 1757; Stephenson v. Walker, 3 Esp. R. 284. His general character being impeached, the tenant ought to have been permitted to support it.
    As one of the guardians has deceased since the action was commenced, it must abate.
    The guardians are not rightly appointed ; the decree of the judge of probate states Russell to be a spendthrift ; the bond is given as by guardians of a person non compos mentis.
    
    
      F. Dexter, for the demandant,
    contended that the statute does not require the guardians to be such, in their official capacity of selectmen. As to the decease of one of the guardians since the suit was commenced, as he was a mere trustee, this is not a cause of abatement or nonsuit. Bac. Abr. Abatement. Where the same judgment may still be rendered, the death of a party is not a cause of abatement. On the death of one tenant in common, the suit in the names of all abates ; but not so in the case of joint tenants. In the present case the trust devolves on the survivors.
    As to the proof of the execution of the release, where one of the subscribing witnesses is beyond the process of the court, proof of his handwriting is sufficient. Dudley v. Sumner, 5 Mass. R. 462; 1 Phil. Ev. 364, note; Jackson v. Burton, 11 Johns. R. 64; Barnes v. Trompowsky, 7 T. R. 265.
    In regard to the possession requisite to give effect to the release, W. Coffin states, that Winslow, being in possession, made his deed to Coffin, thereby giving him a seisin, and as Winslow continued in possession as tenant under Coffin, his possession was that of Coffin. This deed of release, if the releasor is in possession, will operate as a bargain and sale. Pray v. Pierce, 7 Mass. R. 381. A release may be construed to pass an estate, though the releasor is not in possession Goodtitle v. Bailey, Cowp. 598.
    The demandant had a right to cross-examine Hedge before producing his former deposition. 3 Stark. Ev. 1750. In the Queen’s case, 2 Brod. & Bingh. 300, it was held that evidence of the contents of a letter is not to be given, if the letter can be produced. But our purpose was, not to prove what the former deposition contained, but to discredit the witness. 3 Stark. Ev. 1745. This did not authorize the tenant to bring evidence of general character. Stephenson v. Walker, 4 Esp. R. 50. Evidence of character can be introduced only where the character is impeached generally ; not where the witness is discredited as to a particular fact. If a witness contradicts himself on the stand, this certainly does not give a right to introduce evidence of general character, nor can .such evidence be introduced any more in case of his contradicting himself in giving his testimony at two different times in the same case. In Bishop of Durham v. Beaumont, 1 Campb. 210, two witnesses contradicted each other, and evidence of the general character of one of them was not permitted to be given ; nor could it be in this case where the witness contradicted himself.
    
      April 2d.
    
   Parker C. J.

delivered the opinion of the Court. The first objection to the action is, that the demandants are not entitled to sue as guardians, the letter of guardianship being to them with five others, selectmen of the town of Nantucket, the term of whose office has expired, and the demandants not being selectmen, at the time the writ was sued out.

The statute authorizes the judge of probate to take care of the estates of spendthrifts, by appointing the selectmen or any other suitable persons as guardians over them ; and the persons appointed are to give bonds, &c.

We think it very clear, that the legislature did not intend that the selectmen, in their municipal character, should be guardians ; that every thing done respecting the estate should be done by the board sitting in its municipal form ; that the trust of guardian should be annual, so that new appointments should be necessary every year ; or that it should go by sue-cession, with the office of selectmen. In giving the power to appoint the selectmen, the legislature seem only to have considered the persons holding that office as enjoying the confidence of the town, whose interests were to be taken care of by the guardians ; a principal object being to prevent the estate from being wasted, lest the spendthrift might become charge able to the town. The judge of probate is to appoint “the selectmen or some other suitable persons ” ; evidently recommending the selectmen as suitable persons, and directing the attention of the judge of probate to them as such, but not intending to vest them with the trust as a corporation or municipal body ; otherwise their personal bonds would not have been required, and it would have been expressly enacted, that the selectmen and their successors in office should be the guardians.

The case of Newhall v. Wheeler, 7 Mass. R. 189, is somewhat similiar. In that case, there was a conveyance to three persons, selectmen of the town of Hollis, and their successors in the trust of selectmen for the time being, for the use, &c. of one Hunt during his life, with a remainder to his heirs forever. It was held, that the three persons, to whom the conveyance was made, took the estate personally in trust, notwithstanding it was conveyed to them as selectmen.

The letter of guardianship is certainly far from being an accurate execution of the power of the judge of probate, under the statute; but its defects are not substantial. It is directed to the selectmen of Nantucket, without naming them ; but in the close of the instrument, the names of the persons holding that office are mentioned. The bond is taken from them in their private capacities, and binds their heirs, executors and administrators; but there are no sureties. This, however, does not make the guardianship void ; for the giving bond with surety is not a condition precedent to the executing of the authority of guardian, it being in the power of the judge of probate to remove guardians, if they fail to give security from time to time as he shall direct. St. 1783, c. 38 ; St. 1816, c. 94, § 3.

We think then, that the demandants are rightly in court as guardians, they having been lawfully appointed with others, and the trust having devolved upon them.

The next objection is, that the deed of release, under which the demandants claim, was not sufficiently proved, one of the subscribing witnesses, whose deposition is in the case, not recollecting the fact of execution, though verifying his attestation or rather his signature as a witness, and the other not being called.

It is so very common a case, for attesting witnesses, who frequently are present but for a moment and do nothing but write their names, to take no notice of or to forget the instrument which they attest, that if it were required that they should recollect the facts and circumstances, few estates would bear a scrutiny. It has been the invariable practice in such cases, for the instrument to go to the jury with such testimony as was given in this case, not as conclusive, but as presumptive proof of the execution.

And one of the subscribing witnesses is sufficient, the othei not being within the process of the court; unless there is some reason to believe or suspect that the instrument has been forged.

In Norris v. Freeman, 3 Wils. 38, a new trial was granted, because one of the subscribing witnesses, who it seems was within reach, was not called. But this evidently was considered in a discretionary light by the court, and not as strictly a matter of law ; on the contrary, the case would seem to prove, that in ordinary cases the testimony of one of the subscribing witnesses was sufficient. In the case then before the court, the defendant in the action set up a release ; Uiere were strong grounds of suspicion that the "release was forced ; and there were witnesses, who swore that the signature waik.not, in their opinion, the plaintiff’s. The judge who tried the addon stated, that in his opinion the evidence was in favor of the plaintiff, Under these circumstances the court granted a new trial, because one of the subscribing witnesses was not called, in order that there might be a more satisfactory trial of the genuineness of the release. One witness swore, that he heard the defendant say he would let judgment go against him by default, and that he did not pretend he had any release. It also appeared that the declaration was of Trinity term 1768, and that the release was not pleaded until Trinity term in the next year. These were strong grounds of suspicion ; and it was on this account that a new trial was granted, in order that the other subscribing witness might be examined.

The case of Hodnett v. Forman, 1 Stark. R. 90, is in point. The bond sued purported to have been executed in Ireland, and to have been attested by two subscribing witnesses. The plaintiff called one of the witnesses, and proposed to prove the handwriting of the other witness, who was then in Ireland, and no application had been made to him to attend ; but on the authority of Prince v. Blackburn, 2 East, 250, Lord Ellenborough admitted the evidence.

In the case of Prince v. Blackburn, one of the subscribing witnesses was dead, and the other was in a foreign country. The defendant pleaded non est factum. The instrument was allowed to be read in evidence, upon proving the handwriting only, of both the witnesses.

In the case at bar, the absent witness was out of the Commonwealth, and the signature was proved to be his handwriting by the other witness.

But the more important question relates to the legal effect and operation of the deed of William Coffin to Russell, which is objected to, on the ground of its being a naked release, and therefore as not passing the estate, the releasee not being in possession at the time of its execution.

The general doctrine, on which this objection rests, that a mere release of a right to one not seised or in possession of the estate passes nothing as a release, cannot be contested. But this doctrine has been considerably qualified, even in ancient times, by a meritorious desire in courts of justice to give force to the intention of parties, although, by a strict technical construction of the form of conveyance adopted, that intention would be frustrated. The broad and liberal principle, that deeds and other instruments shall be so construed and applied as to pass an estate, when such was the intention, is laid down in Shep. Touch. 82, 83. It is recognised in the modern dgests, particularly in Cruise.

And it was fully sanctioned by this Court in the case of Pray v. Pierce, 7 Mass. R. 381. The counsel for the tenant admits, that that case, if law, must govern this ; but he denies its authority, and contends that it is not supported by the cases cited by the Court in the opinion; which was delivered by Parsons C. J., although it does not appear under his name.

It is very true that the cases cited differ in one respect from the case decided, namely, ■ that in the conveyances referred to, in addition to the words of release, there was the word grant. But the principle of the cases is the same. That principle is, that where it is apparent that there was an intention in the grantor to convey, and in the grantee to take, al though the instrument is not calculated technically to execute that intent, it should be made to operate in some other way, to effect the purpose.

Now we apprehend that the term grant, which appears in the English cases cited, has no effect in producing this result. A grant, by itself, does not technically pass the estate ; it conveys only an incorporeal right, and when used in instruments intended to operate as releases, it makes the instrument no more than a release. So that when a deed of lease and release, having the term grant in it, is made to operate as a covenant to stand seised to the use of the releasee, as in the case cited in Pray v. Pierce, it is only by force of the general principle of giving effect to the intention of the parties, in a way different from the technical operation of the instrument, that it is held so to operate.

Willes C. J., in Roe v. Tranmer, 2 Wils. 78, observes, “that the judges have been astuti to carry the intent of the parties into execution, and to give the most liberal and benign construction to deeds, mí res magis valeat, &c.” “ By the word intent is not meant the intent of the parties to pass the land by this or that particular kind of deed, or by any particular form or mode of conveyance ; but an inter' that the land shall pass at all events one way or other.”

Lord Hobart, in his Reports, p. 277, says, u I exceedingly commend the judges, that are curious and almost subtile astuti to invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury, which by rigid rules might be wrought out of the act.” And this deduration is cited and approved by Lord Hale, in Crossing v. Scudamore, 1 Ventr. 141.

Now, in the case before us, what are the elements of the contract between William Coffin, the releasor, and Russell, the releasee ? The former had the title and the seisin of the estate under a deed from Winslow; he had the possession, not actual but legal, Winslow being in as his tenant by lease ; he received from Russell a full, valuable consideration for the land, so acknowledged in the deed; he covenants against all claiming under him and his heirs ; and he releases all his right, &c. Now this deed cannot operate as a release, from the technical objection, that Russell was not then in possession. But shall the deed have no effect ? Was it not the real intention that William Coffin should sell and that Russell should purchase ? It would be going back to the dark ages, to say that it shall have no effect; when between the parties it was supposed to be as good and effectual to pass the estate, as a deed of bargain and sale should be.

We all know it to be very common for grantors, when selling and having a right to sell, to be desirous of protecting themselves against future claims, especially if there is any cloud on the title, though they are lawfully seised ; and the most common, though not the best way of doing this, is to give a quitclaim deed instead of a deed of bargain and sale.

A large, if not the greater portion of titles in the country, are of this sort. Now if the releasor is seised, so as not to sell a pretended title, there can be no reason why his deed of quitclaim should not pass the estate. If he is not seised and the releasee is not in possession, then nothing passes by the deed ; though it may then operate as an estoppel against the releasor.

We think it immaterial, whether this deed is to operate as a gift, a bargain and sale, or a covenant to stand seised; it is sufficient that it passed the estate. The case cannot he distinguished from Pray v. Pierce, and we have no disposition to overrule that case, believing that it was deliberately settled, anc^ t^at ^ rests uPon sound principle and sufficient authority.

(C ^ jee(j t^at js ¡ntenc[ec| and ma(je to one purpose, may enure to another ; for if it will not take effect in the way it is intended, it may take effect another way. And therefore a deed, made and intended for a release, may amount to a grant of a reversion, an attornment, or a surrender, or e con-verso. And if a man have two ways to pass lands by the common law, and he intended to pass them one way and they will not pass that way, in this case, ut res valeat, they may pass the other way.” Shep. Touch. 82.

In regard to .the objection, that the tenant was not allowed to give evidence of the general character of Hedge, one of the witnesses, we think it cannot prevail. Hedge was a subscribing witness to the deed from Winslow to William Coffin, but was not examined by the demandants, from an apprehension that his testimony would be adverse. He was then introduced by the tenant, and was cross-examined by the demandants, who afterwards read Hedge’s deposition, to contradict his testimony on the stand. There was nothing irregular in this course ; nor was there a right to go into evidence of his general character, notwithstanding the attempt to impeach him by contrasting his testimony given at a different time.

The position, as laid down by Starkie, cannot be carried to the extent contended for. He probably meant only, that where the questions put in the cross-examination and the answers did impeach his general character, the other party might rebut by proving a good general character. And so far we do not object to the principle. As in the case stated by Starkie, the witness was asked, whether she had not been twice committed to Bridewell, and answered that she had. This went to affect her general reputation ; and the party who called her, was allowed to prove, that since those commitments her character had been fair and good.

But it never was decided, that if a witness was contradicted as to any fact of his testimony, either by his own declarations at other times, or by other witnesses, evidence might be admitted to prove his general good character. If this were the practice, great delay and confusion would arise, and as almost all cases are tried upon controverted testimony, each witness must. bring his compurgators to support him when he is contradicted ; and indeed it would be a trial of the witnesses and not of the action.

None of the objections prevailing, the judgment must be upon the verdict. 
      
       See Whittemore v. Brooks, 1 Greenleaf, 61, note; 1 Stark. Evid. (5th Am. ed.) 327, 329 and notes.
     
      
       See Somes v. Skinner, 3 Pick. (2d ed.) 58, note 1; Reformed Dutch Church v. Veeder, 4 Wendell, 496; Croade v. Ingraham, 13 Pick. 549; Dart v. Dart 7 Connect. R. 250; Revised Stat, c. 59, § 5.
     