Stedman ex dem. M'Kenzie v. Putney ( 1789 )

On trial to the jury, it was objected by the defendant’s counsel, that it does not appear that the warning f°r ^Ie proprietor’s meeting was published according to law; and the clerk has not inserted that the proprietor’s meeting Avas regularly warned. It is not, 1 therefore to he presumed, nor proved aliuna. 1 1

Court. — The better way is for the clerk to insert the AYarning in'the records, and that the same was published according to law. In Avliich case it will be presumed to be so, prima fade.

But if it be ommitted, as the publication is not a corporate act of the proprietors, but something preparatory ; the records are not so conclusive as other 1 1 . Pro°f- Ns to the publication itself in the papers, there is no office, no repository, to Avhich application can be made on occasion. Witnesses may therefore be admitted to prove this point.

Court — If there was no title at the commencement the suit, it cannot, as to the purposes of this suit, be aided by any subsequent act.

Objection allowed.

Court. — Partition can be only by deed, or in the method pointed out by Statute. In the first case, it must be proved by the deed; in the latter, by the proprietor’s records. You might as well prove a conveyance by parole evidence, as severance.

Verdict, not guilty.