The Inhabitants of the Fourth Parish in West Springfield versus Harvey Root et al., 18 Pick. 318

Wilde J. delivered the opinion of the Court. The plaintiffs proved at the trial, that the bell and bell frame replevied, had been in their possession for several years, and had been used by them during that time for all parish purposes ; and this undoubtedly was good prima facie evidence of property. But this evidence was rebutted by the defendants, who proved, that the bell was purchased by subscription, the defendants and others being subscribers, and was by them hung up in the meetinghouse by the plaintiffs’ permission.

This is conclusive evidence of property in the subscribers, unless there has been a donation of the property to the parish. At a meeting of the parish on October 23d, 1826, it was voted, “ that the subscribers for a bell havé leave to place the same in a convenient place in the meetinghouse to be rung.” And it was voted also, that the bell should be the property of the subscribers, subject to their control and direction. These votes rebut any presumption of a donation to the parish, which might, perhaps, otherwise be raised from the unexplained possession and use of the bell by the parish.

It is objected that the record of this meeting is not attested by the parish clerk. But it'was produced as the parish record, and as such was admitted in evidence without objection, and is made a part of the case. The book containing this record appears to be the parish book of records, and is in sundry places attested, as the record of the proceedings of the parish, by the parish clerk. Under these circumstances it is very clear that this objection cannot prevail. It is immaterial whether the warning of the parish meeting were strictly in pursuance of law or not.

For the votes show how and when the bell- was received by the parish ; and this rebuts the presumption of any other acceptance of the supposed donation. If, therefore, the meeting was illegal, still there is no presumptive proof of the acceptance by the parish of such donation. The taking, therefore, was lawful. A lessee at will, or a depository of goods for a time not limited, can maintain no action against the general owner, for taking them away.

And besides, the parish voted that the bill should be subject to the control and direction of the subscribers ; and moreover, the parties are at issue only on the question of property. Judgment for the defendants.