
    
      The Inhabitants of the First Parish in Brunswick vs. McKean.
    Legal presumptions generally apply to facts of a transitory character, the proper evidence of which is not usually preserved with care ; but not to records or public documents, in the custody of officers charged with their preservation, unless proved to have been lost or destroyed.
    A motion to set aside a verdict for the supposed misdirection of the jury by thu judge, in a matter of law, will not be sustained, unless the grounds of the motion appear in the judge’s report, or are stated in a bill of exceptions.
    Pleas in justification of a trespass guare clausum frtgit for cutting down a fence, which allego that the act was done on two public highways, leading the one from the other : and also that it was done on one of the highways only, are not inconsistent with each other ; and a verdict finding each of these issues for the defendant is not void for inconsistency or uncertainty.
    This was an action of trespass quare clausum fregit, against the defendant, for cutting down a fence erected by the plaintiffs on what they alledged to be their close in Brunswick. The defendant pleaded the general issue, and several special pleas in justi-íication; alledging in one of them, that the fence was on two pub - lic highways, viz. the twelve-rod-road, and the Jíarjmwclbnrdá leading from it; and in another, only saying that it was on the twelve-rod-road.
    At the trial, before the chief justice, the plaintiffs, in order to show that the twelv e-rod -road, which ivas laid out and accepted March 21, 1769, had been reduced to the width of eight rods, offered in evidence two votes - one passed at a meeting of the inhabitants of Brunswick, JlprilQ, 1792, appointing a committee to lay out the same road eight rods wide, from the old fort, to Maquoit-hny, except at the landing place, where it was to remain at its full width and the other passed at a town meeting April 1, 1793, accepting the eight-rod-road as then laid out on the plan, with the amendments made on the same plan. The counsel for the defendant objected to the admission of these votes, unless preceded or accompanied by attested copies of the w arrants for calling the town-meetings at which they were passed, to show that the votes were authorised by the warrants j and no reason in fact being assigned, why such copies of the warrants could not be, and were not produced, the chief justice re-jeeted the evidence. A verdict being afterwards returned for the defendant, this point was reported by the chief justice at the request of the plaintiffs, for the consideration of the court. The plaintiffs also filed a motion for a new trial; — 1, because the vei diet found the same trespass done on two different roads, which is impossible 2, because it also found that the same trespass ivas done on both roaus, and also on the twelve-rod-road only, which is impossible -3, because the jury were instructed, that twenty years’ uninterrupted use of the roads, adversely to the plaintiffs, was evidence of a grant, though there was no proof of their actual location ; and that this rule applied as well to the plaintiffs ia their corporals capacity, as to individ - uals ; - 4, because the copies of the votes before mentioned were rejected; — 5, because the verdict found the trespass done on both roads, without distinguishing what was done on each.
    
      Longfellow and Mitchell, for the plaintiffs,
    argued that the evidence rejected was admissible, the transactions being of more than thirty years standing ; in which case the existence of proper warrants is to be presumed. Monumoi Great Beach v. Rogers 1 Mass. 159. Blossom v. Cannon 14.Mass. 177. Sumner v. Sebee 8 Greenl. 223. IAttle v. Libby 2 Greenl. 242. Pitts v. Temple 2 Mass. 53,8. Colman v. Anderson 10 Mass. 105. Courts have gone so far as to presume the incorporation of a town. Stockbridge v. West Stockbridge 12 Mass. 400.
    They also contended, that the findings of the jury were contradictory and uncertain, and therefore void.
    The third ground of the motion was not argued, the court considering it not regularly before them.
    
      Orr and Greenleaf, for the defendant
   Weston J.

delivered the opinion of the court.

It does not appear, that the town of Brunswick had any legal right to alter the road in that town, originally laid out in 1769, twelve rods wide, by contracting its width to eight rods ; but if they had, and it had been recently done, attested copies of the warrants, under which they exercised this authority, ought to have been produced, as in its nature preliminary to the votes, by which such alteration was accepted. But it is urged, that this being an ancient transaction, this proof is by law dispensed with, and the regularity of the proceedings presumed. A general and very important rule of evidence is, that the best must be given, of which the nature of the thing is capable. Where from lapse of time or other circumstances, it appears that a party has it not in his power to produce the evidence, usually required to prove certain facts, such facts may often be legally presumed from other facts and circumstances, the existence of which cannot fairly be accounted for, without such presumption. But this presumption does not legally arise, where there is nothing in the case from which to infer, that the regular evidence is not in existence, or not accessible to the party intrusted to establish the facts in question. On the contrary, a failure to produce the best evidence in the power of the party, justly creates a suspicion, that its effect might not be favorable to him, if produced. Legal presumptions generally apply to facts of a transitory char actor, the proper evidence of which is not usually preserved with care ; but not to records or public documents, in the custody of officers, charged with their preservation and safe keeping-; unless proved to have been lost or destroyed.

In Colman v. Anderson, cited in the argument, Sewall J. who delivered the opinion of the court says, “ the judge was right in submitting such evidence as there was, although incomplete, if the jury were satisfied that the deficiencies in the evidence were not chargeable to the fault or negligence of the party, and that nothing, in the power of the party to produce, was wilfully withheld.”

The votes in question, passed at the meetings of the inhabitants of the town of Brunswick, could have no effieaey, unless in pursuance of articles regularly inserted in the warrants, by which these meetings were called. According to the usual course of proceedings, these warrants were either recorded, or preserved, in the office of the town clerk. For any thing that appears in the case, they might have been there found, and certified copies obtained. No sufficient reason having been assigned why they were not produced, copies of the votes were, in our opinion properly rejected.

The foregoing is the only point presented, by the report of the judge. A motion for a new trial Las been filed in the case, predicated upon several reasons distinctly assigned ; the third of which is upon a supposed misdirection of the judge to the jury in a matter of law. As this does not appear in the report, and is not taken by way of exception, it is not regularly before us. The other reasons are founded upon the alleged uncertainly and inconsistency of the verdict.

The trespass proved was the cutting down of two posts, one of which stood at the intersection of the HarpsweU-road with the twelve-rod road, the former of which is described in one of the pleas, as running from the latter. This post therefore, standing on the line of confluence, must have been partly in the one roan, and partlj in the other. The other post stood on the opposite side of the twolve-rod-road. As to the second issue, the jun found the supposed trespass was done on both roads. ' This would be true, if part was on one and part on the other ; and it ought to be so intended, if it be impossible that the whole could be done on each. But if the Harpswell-roaá ran across the twelven’od-road, the common ground traversed by both might well be called the Ilarpswell-road and the twelve-rod-road ; and thus there would be no inconsistency in finding the whole of the supposed trespass done on both roads. This is not absolutely inconsistent with the averment in the plea, that the one road ran from the other ; the term from,” whether applied to time or place, in legal contemplation, not uniformly or necessarily excluding such time or place. And a verdict, if by fair intendment u may have a consistent construction, is not to be set aside for unceitainty. As to the third issue, the jury found the supposed trespass done on the twelve-rod-road. This may be reconciled with their finding upon the second issue, upon the assumption that the locus in quo, being common to both roads, might be called by the name of both, or of either.

But it is of no importance to the merits of this case, to distinguish with accuracy upon which of these roads the posts stood, or whether they may be regarded as standing on both roads, or partly on the one and partly on the other. The real question in controversy, and the point substantially in issue was, whether they stood la tho public highway, and, obstructing the same, might be removed ; and this is very clearly found.

The motion for a new trial is oyérruled.

Judgment on the verdict„  