
    The Inhabitants of Stockbridge versus The Inhabitants of West Stockbridge.
    Where the act incorporating a town could not be found, paroi evidence tending to show its existence and loss was admitted; and, after more than thirty years’ use of the powers and privileges of a town, such evidence was holden to be competent evidence of the incorporation.
    Where a citizen of the Province of Massachusetts Bay, for a valuable and sufficient consideration, purchased the use of a slave from his owner, living in New Jersey, for ten years, and the slave lived ten years here in the service of such citizen, it was holden, that he gained no settlement here in right of the purchaser, or as derived from him.
    * This was assumpsit for expenses incurred by the [*4001 plaintiffs in the support of one Frank Duncan, a pauper, alleged by them to have his legal settlement in West Stockbridge.
    
    The action was submitted to the determination of the Court upon the following case stated.
    In July, 1774, the place since called West Stockbridge was organized as a district, and for thirty years past the inhabitants thereof have acted as a town ; but no charter or act of incorporation is to be found in Boston, or elsewhere.
    The deposition of Elijah Williams was used at the trial, and came up in the case ; and it was agreed to be evidence of such incorporation, if competent for that purpose. He testifies that he removed into that part of Stockbridge which has since been called West Stock-bridge, several years before its supposed incorporation ; that he remembers being at Boston while Mr. Hutchinson was governor of the then Province, and conversing with him on the subject of the incorporation ; that he believes that he obtained an act for that purpose, and carried the same home with him, although he has no particular recollection of that fact; and that the inhabitants have done business as a town from that time.
    The witness, previous to the month of August, 1770, being the owner of a forge, and being in want of a bloomer to assist in working the same, heard of a black man, who was a slave and said to be a good workman, then living with his master in New. Jersey. Having conscientious objections against holding a slave, the witness purchased the time of the slave for ten years, for which he paid the master £ 100, New Jersey currency. He brought the man, who is the pauper above named, to West Stockbridge, and he continued in the service of the witness until he was fully paid and satisfied for the money he had advanced for his services, as aforesaid.
    [*401 ] * It was agreed by the parties, that Williams, the witness, had his residence, and held a large real estate, in that part of Stockbridge which is now known as West Stockbridge, from the year 1770 to the year 1780 ; that regular notice and demand were given and made by the plaintiffs, and a refusal on the part of the defendants to pay the expense incurred in the support of the pauper ; and that the same amounted to the sum of $ 133.
    If the Court should be of opinion that the foregoing evidence would be competent to prove that the town of West Stockbridge was ever incorporated, and that the pauper had his legal settlement in that town at the time of the commencement of this action, judgment was to be entered for the plaintiffs, for the abovementioned sum ; otherwise, they were to become nonsuit.
    
      Ashmun, for the plaintiffs.
    
      Whiting and Howe, for the defendants.
   Wilde, J.,

delivered the opinion of the Court. Two questions are made upon the facts agreed in this case.

1. Whether the deposition of Elijah Williams be admissible evidence, to prove the incorporation of the town of West Stockbridge.

2. If such evidence be admissible, whether the pauper ever gained a. settlement in that town.

The first question does not seem to admit of a reasonable doubt and the counsel for the defendants, in their argument, have declined very properly, we think, to insist on this ground of defence.

Records, generally, are to be proved by inspection, or by copies properly authenticated ; but, if there be sufficient proof of the loss or destruction of a record, much inferior evidence of its contents may be admitted. In the case before us, it is agreed, that, for more than thirty years past, the inhabitants of West Stockbridge have exercised and enjoyed all the powers, privileges, and immunities of a town. They have been admitted to the right of representation in the General Court, have been assessed in their proportion of * all State and County taxes ; and, by many other acts and [ *402 ] proceedings, their existence as a corporation has been recognized by the legislature.

But the act of incorporation is not to be found, nor can any record relating to it be discovered in the secretary’s office. From the facts, however, the presumption is violent, that the town has been regularly incorporated, and that the record has been in some way lost or destroyed. The existence of the record is also proved by the deposition in question; and it cannot be doubted that paroi evidence is competent to prove the existence and loss of a record. This, then, being satisfactorily proved, secondary evidence of the incorporation of the town is clearly admissible by the rules of evidence.,

Upon the second question, it has been inferred by the counsel for the plaintiffs, from the facts in the case, that the pauper became a slave of Williams, and, through him, gained a derivative settlement in West Stockbridge. But we cannot admit this inference, as we think it repugnant to the terms of the contract, and the obvious intention of the parties, which is principally'to be regarded in the construction of contracts. Williams, upon whose testimony alone the plaintiffs rely, expressly denies that he purchased the pauper, or held him as a slave. He considered him as a servant, but not as in a state of slavery. He treated him as such ; nor could he, by any reasonable construction of the contract, legally treat him otherwise. The property in the slave remained unaltered by the contract; unless it may be considered as amounting to a manumission. Certainly the pioperty was not transferred to Williams against his will, and his conscientious scruples, as expressed to the master, when he made the contract.

For these reasons, we are of opinion that the pauper gained no settlement in the town of West Stockbridge ; and that the plaintiffs, according to the agreement of the parties, must be called.

Plaintiffs nonsuit. 
      
       The witness says, in the deposition, that he has no recollection ofthe fact, that an act of incorporation was obtained. Can this be proof that it was obtained?
     
      
      
        Dillingham vs. Snow el al., 5 Mass. Rep. 547; 3 Mass. Rep. 276. — Klock vs. Richtmeyer, 13 Johns. 367. — Schauber vs. Jackson, 2 Wend. 60. — Matthews vs. Trinity Church, 3 Serg. Rawle, 509. — Hathaway vs. Clark, 5 Pick. 490. — Farrar’s case, Skin. 78. — 1 Eden, 296. — Cowp. 215. — 6 East, 215. — 2 Ves., Jr., 583. — 1 Jac. & Walk. 63. — Rex vs. Montague, 4 B. & C 538. — Mayor of Hull vs. Homer, Cowp. 102. —3 D. & E. 158. — Matthews, 199-195.
     
      
      
        [Greenleaf on Evidence, 553.— Angell & Ames on Corporations, 40, 41, 128, and cases cited. —Ed.]
     
      
      
        Stockbridge vs. West Stockbridge, 14 Mass. Rep. 257. — Winchendon vs. Hatfield, 4 Mass. Rep. 123. — Springfield vs. Wilbraham, 4 Mass. Rep. 496. — Dighton vs. Freetown, 4 Mass. Rep. 539. — Andover vs. Canton, 13 Mass. Rep. 547. — Westborough vs. Westfield, 16 Mass. Rep. 74.
     