from particular and direct interest at the time, and are since deceased.1

§ 146. In this connection may be mentioned the subject of perambulations. The writ de perambulatione faciendâ lies at common law, when two lords are in doubt as to the limits of their lordships, villas, &c., and by consent appear in chancery, and agree that a perambulation be made between them. Their consent being enrolled in chancery, a writ is directed to the sheriff to make the perambulation, by the oaths of a jury of twelve knights, and to set up the bounds and limits, in certainty, between the parties.2 These proceedings and the return are evidence against the parties and all others in privity with them, on grounds hereafter to be considered. But the perambulation consists not only of this higher written evidence, but also of the acts of the persons making it, and their assistants, such as marking boundaries, setting up monuments, and the like, including their declarations respecting such acts, made during the transactions. Evidence of what these persons were heard to say upon such occasions is always received; not, however, as hearsay, and under any supposed exception in favor of questions of ancient boundary, but as part of the res gesta, and explanatory of the acts themselves, done in the course of the ambit. Indeed, in the case of such extensive domains as lordships, they being matters of general interest, traditionary evidence of common fame seems also admissible on the other grounds, which have been previously discussed.*

1 Supra, §§ 128, 129, 130, 135, 136, 137. It is held in New York, that in ascertaining facts, relative to the possession of, and title to, lands, which occurred more than a century before the time of trial, evidence is admissible which, in regard to recent events, could not be received; such as histories of established credit, as to public transactions; the recitals in public records, statutes, legislative journals, and ancient grants and charters; judicial records; ancient maps, and depositions, and the like. But it is admitted that this evidence is always to be received with great caution, and with due allowance for its imperfection, and its capability of misleading. Bogardus v. Trinity Church, Kinney's Law Compend. for 1850, p. 159. [See also as to the admissibility of ancient maps and surveys, Ross v. Rhoads, 15 Penn. St. R. 163; Penny Pot Landing v. Philadelphia, 16 Ib. 79; Whitehouse v. Bickford, 9 Foster, 471; Adams v. Stanyan, 4 Ib. 405; Dan

iel v. Wilkin, 12 English Law & Eq. 547.]

25 Com. Dig. 732, Pleader, 3 G.; F. N. B. [183] D.; 1 Story on Eq. Jurisp. § 611. See also St. 13 G. 3, c. 81, § 14; Št. 41 G. 3, c. 81, § 14; St. 58 G. 3, c. 45, § 16.

3 Weeks v. Sparke, 1 M. & S. 687, per Ld. Ellenborough; supra, § 108; Ellicott v. Pearl, 1 McLean, 211.

Supra, § 128-137. The writ de perambulatione faciendâ is not known to have been adopted in practice, in the United States; but in several of the states, remedies somewhat similar in principle have been provided by statutes. In some of the states, provision is only made for a periodical perambulation of the boundaries of towns by the selectmen; LL. Maine, Rev. 1840, ch. 5; LL. N. Hamp. 1842, ch. 37; Mass. Rev. Stats. ch. 15; LL. Connecticut, Rev. 1849, tit. 3, ch. 7; or, for a definite settlement of controversies re

CHAPTER VIII.

OF DECLARATIONS AGAINST INTEREST.

* § 147. Declarations against the interest of the person making them how regarded, inter alios.

148. The interest of the party, his means of knowledge, and the want of motive to misrepresent, afford the guaranty of truth.

149. All cases do not require the declaration to be against interest; but that is the general rule.

150. The rule includes written entries, even in private books, affecting questions involving the rights of third parties.

151. Entries received where countervailed by credits.

152. So also where the particular portion not against the interest of person making it.

153. Not requisite the party could be a witness himself, or made on personal knowledge, or no other testimony.

154. What proof of the character in which the party acted is required. 155. Entries in parish books, as to ecclesiastical dues.]

§ 147. A THIRD exception to the rule, rejecting hearsay evidence, is allowed in the case of declarations and entries made by persons since deceased, and against the interest of the persons making them, at the time when they were made. We have already seen,1 that declarations of third persons, admitted in evidence, are of two classes; one of which consists of written entries, made in the course of official duty, or of professional employment; where the entry is one of a number of facts, which are ordinary and usually connected with each other, so that the proof of one affords a presumption that the others have taken place; and. therefore, a fair and regular entry, such as usually accompanies facts similar to those of which it speaks, and apparently contemporaneous with them, is received as original presumptive evidence of those facts. And, the entry itself being original evidence, it is of no importance, as regards its admissibility, whether the person making it be yet living or dead. But declarations of the other class, of which we are now to speak, are secondary evidence, and are received only in consequence of the death of the person making them. This class embraces not only entries in books, but all other dec

1 Supra, §§ 115, 116, and cases there cited

larations or statements of facts, whether verbal or in writing, and whether they were made at the time of the fact declared or at a subsequent day.1 But, to render them admissible, it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest.2 When these circumstances concur, the evidence is received, leaving its weight and value to be determined by other considerations.

§ 148. The ground upon which this evidence is received, is the extreme improbability of its falsehood. The regard which men usually pay to their own interest is deemed a sufficient security, both that the declarations were not made under any mistake of fact, or want of information on the part of the declarant, if he had the requisite means of knowledge, and that the matter declared is true. The apprehension of fraud in the statement is rendered still more improbable from the circumstance, that it is not receivable in evidence until after the death of the declarant; and that it is always competent for the party, against whom such declarations are adduced, to point out any sinister motive for making them. It is true, that the ordinary and highest tests of the fidelity, accuracy, and completeness of judicial evidence are

1 Ivat v. Finch, 1 Taunt. 141; Doe v. Jones, 1 Campb. 367; Davies v. Pierce, 2 T. R. 53, and Holloway v. Raikes, there cited; Doe v. Williams, Cowp. 621; Peaceable v. Watson, 4 Taunt. 16; Stanley v. White, 14 East, 332, 341, per Ld. Ellenborough; Haddow v. Parry, 3 Taunt. 303; Goss v. Watlington, 3 Brod. & Bing. 132; Strode v. Winchester, 1 Dick. 397; Barker v. Ray, 2 Russ. 63, 76, and cases in p. 67, note; Warren v. Greenville, 2 Stra. 1129; 2 Burr. 1071, 1072, s. c.; Doe v. Turford, 3 B. & Ad. 898, per Parke, J.; Harrison v. Blades, 3 Campb. 457; Manning v. Leachmere, 1 Atk. 458.

Short v. Lee, 2 Jac. & Walk. 464, 488, per Sir Thomas Plumer, M. R.; Doe v. Robson, 15 East, 32, 34; Higham v. Ridgway, 10 East, 109, per Ld. Ellenborough; Middleton v. Melton, 10 B. & C. 317, 327, per Parke, J.; Regina v. Worth, 4 Ad. & El. N. s. 137, per Ld. Denman; 2 Smith's Leading Cases, 193, note, and cases there cited; Spargo v. Brown, 9 B. & C. 935. The interest, with which the declarations were at variance, must be of a pecuniary nature. Davis v. Lloyd, 1 Car. & P. 276. The apprehension of possible danger of a prosecution is not suffi

cient. The Sussex Peerage Case, 11
Clark & Fin. 85. In Holladay v. Little-
page, 2 Munf. 316, the joint declarations
of a deceased shipmaster, and the living
owner, that the defendant's passage-money
had been paid by the plaintiff, were held
admissible, as parts of the res gesta, being
contemporaneous with the time of sailing.
This case, therefore, is not opposed to the
others cited. Neither is Sherman v. Cros-
by, 11 Johns. 70, where a receipt of pay-
ment of a judgment recovered by a third
person against the defendant was held ad-
missible in an action for the money so paid,
by the party paying it, he having had
authority to adjust the demand, and the
receipt being a documentary fact in the
adjustment; though the attorney who
signed the receipt was not produced, nor
proved to be dead. In auditing the ac-
counts of guardians, administrators, &c.,
the course is, to admit receipts as primâ
facie sufficient vouchers.
Akins, 4 Pick. 283; Nichols v. Webb, 8
Wheat. 326; Welsh v. Barrett, 15 Mass.
380; Wilbur v. Selden, 6 Cowen, 162;
Farmers Bank v. Whitehill, 16 S. & R.
89, 90; Stokes v. Stokes, 6 Martin, N. 8.
351.

Shearman v.

here wanting; but their place is, in some measure, supplied by the circumstances of the declarant; and the inconveniences resulting from the exclusion of evidence, having such guaranties for its accuracy in fact, and from its freedom from fraud, are deemed much greater, in general, than any which would probably be experienced from its admission.1

§ 149. In some cases, the courts seem to have admitted this evidence, without requiring proof of adverse interest in the declarant; while in others stress is laid on the fact, that such interest had already appeared, aliunde, in the course of the trial. In one case it was argued, upon the authorities cited, that it was not material that the declarant ever had any actual interest, contrary to his declaration; but this position was not sustained by the court.2 In many other cases, where the evidence consisted of entries in books of account, and the like, they seem to have been clearly admissible as entries made in the ordinary course of business or duty, or parts of the res gestae, and therefore as original, and not secondary evidence; though the fact, that they were made against the interest of the person making them, was also adverted to.8 But in regard to declarations in general, not being entries or acts of the last-mentioned character, and which are admissible only on the ground of having been made contrary to the interest of the declarant, the weight of authority, as well as the principle of the exception we are considering, seem plainly to require that such adverse interest should appear, either in the nature of the case, or from extraneous proof.

1 Phil. & Am. on Evid. 307, 808; 1 Phil Evid. 293, 294; Gresley on Evid. 221; [Bird v. Hueston, 10 Chritchfield (Ohio), 418.]

2 Barker v. Ray, 2 Russ. 63, 67, 68, cases cited in note; Id. p. 76. Upon this point, Eldon, Lord Chancellor, said:The cases satisfy me, that evidence is admissible of declarations made by persons who have a competent knowledge of the subject to which such declarations refer, and where their interest is concerned; and the only doubt I have entertained was as to the position, that you are to receive evidence of declarations where there is no interest. At a certain period of my professional life, I should have said that this doctrine was quite new to me. I do not mean to say more than that I still doubt concerning it. When I have oc

And it seems not to be suffi

casion to express my opinion judicially upon it, I will do so; but I desire not to be considered as bound by that, as a rule of evidence.' The objection arising from the rejection of such evidence in the case was disposed of in another manner.

3 It has been questioned, whether there is any difference in the principle of admissibility between a written entry and an oral declaration of an agent, concerning his having received money for his principal. See supra, § 113, note; Fursdon v. Clogg, 10 M. & W. 572; Infra, § 152, note.

4 Higham v. Ridgway, 10 East, 109; Warren v. Greenville, 2 Stra. 1129; expounded by Lord Mansfield, in 2 Burr. 1071, 1072; Gleadow v. Atkin, 3 Tyrwh. 302, 303; 1 Cromp. & Mees. 423, 424; Short v. Lee, 2 Jac. & W. 489; Marks v