it be of boundary or of right of common by custom, or the like, evidence of reputation is admitted only under the qualifications already stated, requiring competent knowledge in the declarants, or persons from whom the information is derived, and that they dividual proprietors. But this dictum was not called for in the case; for the question was, whether there had anciently been a highway over a certain tract of upland; which, being a subject of common and general interest, was clearly within the rule. It has, however, subsequently been settled as a point of local law in that State, that such evidence is admissible to prove private boundaries. Hinny v. Farnsworth, 17 Conn. 355, 363. In Pennsylvania, reputation and hearsay are held entitled to respect, in a question of boundary, where from lapse of time there is great difficulty in proving the existence of the original landmarks. Nieman v. Ward, 1 Watts & Serg. 68. In Den d. Tate v. Southard, 1 Hawks, 45, the question was, whether the lines of the surrounding tracts of land, if made for those tracts alone, and not for the tract in dispute, might be shown by reputation to be the "known and visible boundaries" of the latter tract, within the fair meaning of those words in the statute of North Carolina, of 1791, c. 15. It was objected that the boundaries mentioned in the act were those only which had been expressly recognized as the bounds of the particular tract in question, by some grant or mesne conveyance thereof; but the objection was overruled. But in a subsequent case (Den d. Sasser v. Herring, 3 Dever. Law Rep. 340), the learned chief-justice admits, that, in that State, the rules of the common law, in questions of private boundary, have been broken in upon. "We have," he remarks, "in questions of boundary, given to the single declarations of a deceased individual, as to a line or corner, the weight of common reputation, and permitted such declarations to be proven; under the rule, that, in questions of boundary, hearsay is evidence. Whether this is within the spirit and reason of the rule, it is now too late to inquire. It is the well-established law of this State. And if the propriety of the rule was now res integra, perhaps the necessity of the case, arising from the situation of our country, and the want of self-evident termini of our lands, would require its adoption. For, although it sometimes leads to falsehood, it more often tends to the establishment of truth. From necessity, we have, in this instance, sacrificed the principles upon which the rules of evidence are founded." VOL. I. [Such declarations are admissible if made by persons deceased, while in possession of land owned by them, and in the act of pointing out the boundaries, and nothing appears to show an interest to misrepresent, Bartlett v. Emerson, 7 Gray (Mass.), 174; but not otherwise, Long v. Colton, 116 Mass. 414.] A similar course has been adopted in Tennessee. Beard v. Talbot, 1 Cooke, 142. In South Carolina, the declarations of a deceased surveyor, who originally surveyed the land, are admissible, on a question as to its location. Speer v. Coate, 3 McCord, 227; Blythe v. Sutherland, Id. 258. In Kentucky, the latter practice seems similar to that in North Carolina. Smith v. Nowells, 2 Littell, 159; Smith v. Prewitt, 2 A. K. Marsh. 155, 158. In New Hampshire, the like evidence has in one case been held admissible, upon the alleged authority of the rule of the common law, in 1 Phil. Evid. 182; but in the citation of the passage by the learned chief-justice, it is plain, from the omission of part of the text, that the restriction of the rule to subjects of public or general interest was not under his consideration. Shepherd v. Thompson, 4 N. H. 213, 214. More recently, however, it has been decided in that State, "that the declarations of deceased persons, who, from their situation, appear to have had the means of knowledge respecting private boundaries, and who had no interest to misrepresent, may well be admitted in evidence." Great Falls Co. v. Worster, 15 N. H. 412, 437; Smith v. Powers, I. 546, 564. [But see Wendell v. Abbott, 45 N. H. 349.] Subject to these exceptions, the general practice in this country, in the admission of traditionary evidence as to boundaries, seems to agree with the doctrine of the common law as stated in the text. In Weems v. Disney, 4 Har. & McHen. 156, the depositions admitted were annexed to a return of commissioners, appointed under a statute of Maryland, "for marking and bounding lands," and would seem, therefore, to have been admissible as part of the return, which expressly referred to them; but no final decision was had upon the point, the suit having been compromised. In Buchanan v. Moore, 10 S. & R. 275, the point was whether traditionary evidence was admissible while the declarant was living. 12 178 L. G. PISTOLESL LAW OF EVIDENCE. [PART II. be persons free from particular and direct interest at the time, and are since deceased.1 § 146. Perambulations. 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.* By the Roman law, traditionary evidence of common fame seems to have been deemed admissible, even in matters of private boundary. Mascard. De Probat. vol. i. p. 391, Concl. 396. 1 Supra, §§ 128-130, 135-137. 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. Bo gardus 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. 163; Penny Pot Landing v. Philadelphia, 16 Id. 79; Whitehouse v. Bickford, 9 Foster, 471; Adams v. Stanyan, 4 Id. 405; Daniel v. Wilkin, 12 English Law & Eq. 547.] 25 Com. Dig. 732, Pleader, 3 G.; F. N. B. [133] D.; 1 Story on Eq. Jurisp. § 611. See also Stat. 13 Geo. III. c. 81, § 14; Stat. 41 Geo. III. c. 81, § 14; Stat. 58 Geo. III. c. 45, § 16. 8 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, reme L. C. PISTOLESI. dies 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, c. 5; LL. N. H. 1842, c. 37; Mass. Rev. Stats. c. 15; LL. Conn. Rev. 1849, tit. 3, c. 7; or, for a definite settlement of controversies respecting them, by the public surveyor, as in New York, Rev. Code, pt. i. c. 8, tit. 6. In others, the remedy is extended to the boundaries of private estates. See Elmer's Digest, pp. 98, 99, 315, 316; New Jersey, Rev. St. 1846, tit. 22, c. 12; Virginia, Rev. Code, 1819, vol. i. pp. 358, 359. A very complete summary remedy, in all cases of disputed boundary, is provided in the statutes of Delaware, Revision of 1829, pp. 80, 81, tit. Boundaries, III. To perambulations made under any of these statutes, the principles stated in the text, it is conceived, will apply. CHAPTER VIII. OF DECLARATIONS AGAINST INTEREST. A third exception to the § 147. Declarations against interest. 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 declarations 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.2 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.3 When these circumstances concur, 1 Supra, §§ 115, 116, and cases there cited. 2 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, n.; Warren v. Greenville, 2 Stra. 1129; s. c. 2 Burr. 1071, 1072; Doe v. Turford, 3 B. & Ad. 898, per Parke, J.; Harrison v. Blades, 3 Campb. 457; Manning v. Leachmere, 1 Atk. 453. 8 Short v. Lee, 2 Jac. & Walk. 464, the evidence is received, leaving its weight and value to be determined by other considerations. § 148. Ground of their admissibility. 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 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 In some cases, the courts seem § 149. Must be against interest. 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. 817, 327, per Parke, J.; Regina v. Worth, 4 Ad. & El. N. 8. 137, per Ld. Denman; 2 Smith's Lead. Cas. 193, n., and cases there cited; Spargo v. Brown, 9 B. & C. 935 [Percival v. Nanson, 21 L. J. N. S. Exch. 1]. The interest with which the declarations were at variance must be of a pecuniary nature. Davis v. Lloyd, 1 C. & K. 276. The amount of interest is immaterial on the question of admissibility. Orrett v. Corser, 21 Beav. 52. But the mere making a contract is not necessarily against interest from the fact that the party is obliged thereby. Reg. v. Worth, 4 Q. B. 132.] The apprehension of possible danger of a prosecution is not sufficient. The Sussex Peerage Case, 11 Clark & Fin. 85. In Holladay v. Littlepage, 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 This case, of the res gesta, being contemporaneous 1 Phil. & Am. on Evid. 307, 308; 1 Phil. Evid. 293, 294; Gresley on Evid. 221 [Bird v. Hueston, 10 Critchfield (Ohio), 418]. |