
    George Odiorne et al. versus Edward Wade.
    The right which the inhabitants of a town have in a way, common, or other easement, is not a corporate right, and therefore an inhabitant cannot be admitted as a witness, by virtue of St. 1792, c. 32, to prove a way for all the inhabitants, by a non-existing grant or by prescription.
    Trespass quare clausum fregit. The close described was a lane in the town of Malden.
    The defendant pleaded, 1. That the locus in quo was a public highway by prescription. 2. That it was a private way by a non-existing grant to the predecessors of the defendant. 3. That it was a private way to the defendant and his predecessors by prescription. 4. '['hat it was a way by a non-existing grant to the inhabitants of Malden. 5. That it was a way for all the inhabitants of Malden by prescription. These pleas resulted in issues to the country.
    At the trial, before Morton J., it appeared, that the town of Malden had, by vote, assumed the defence of the suit, and that it was defended at their expense. The defendant, to support the above issues on his part, called a number of witnesses who were inhabitants of Malden. They were objected to, on account of their interest in the event of the suit, and were rejected.
    The defendant then, by leave of court, waived his fourth and fifth pleas, and went to trial upon the three first pleas, upon which the jury returned a verdict for the plaintiffs.
    If the witnesses were improperly rejected, the verdict was to be set aside, a new trial granted, and the fourth and fifth picas restored ; otherwise judgment was to be rendered upon the verdict.
    
      Oct 13th
    
    
      Hoar and C. Lewis, for the defendant,
    cited St. 1792, c. 32, which provides, that in suits wherein a town is a party or interested in the event of the suit, any inhabitant may be admitted as a competent witness, provided he has no other interest therein than as an inhabitant of the town. The interest of the witnesses in the use of the road comes within the statute ; as much so as where the question relates to the settlement of a pauper. In both cases the interest results to the witness from his being a member of the corporation. The testimony in a case like the one now before the Court, is necessarily local, and the statute intends that in such a case an inhabitant of a town may be a witness.
    
      Hilliard and T. Fuller, contra,
    
    relied on Lufkin v. Haskell, 3 Pick. 356.
    
      Oct. 17th.
    
   Parker C. J.

delivered the opinion of the Court. The question as to the competency of the witnesses whose testimony was rejected at the trial, was decided in the case of Lufkin v. Haskell. The distinction was there taken, between cases in which the town, in its corporate capacity, has an interest, and those in which the inhabitants of a town have a right of common, or way, or other easement; which is not a corporate right, but a privilege to the individual inhabitants, depending generally upon prescription arising from their locality. The statute of 1792 w'as only intended to remove the incompetency of witnesses in the first class of cases ; and as it is a departure from the common law rule of evidence, it ought not to be extended by construction beyond the expressed intention of the legislature.

Judgment according to verdict. 
      
       See Revised Slat. c. 94, § 54.
     