Chapman v. Twitchell , 37 Me. 59 ( 1853 )

Wells, J.

— The question between the parties was, how far eastward lot numbered eighteen extended. The defendant contended, that one of its eastern bounds was a white pine stump. James Walker, introduced by the defendant, testified that he and others went to the plaintiff, and asked him to show the north-east corner of the land bonded; that he said, Twitchell could show them where the corner was; that Twitchell went and showed them the corner, and the white pine stump. It does not appear by the exceptions, whether Twitchell was the defendant or some other person, but it is said in argument, that he was not the defendant. Twitchell made no declaration, that what he pointed out was the boundary. It is not stated that he said any thing, but it may be implied, that he was not entirely silent while he performed the acts. The language of the plaintiff would indicate, that confidence could be reposed in tbe knowledge and fidelity of Twitcbell. If Twitcbell bad gone with Walker and bad pointed out tbe boundary, and tbe information, concerning wbat be did, bad been communicated to tbe plaintiff, wbo should admit tbe accuracy of Twitcbell, no doubt could exist, that such an admission could be legally received in evidence. Wbat tbe plaintiff did say is equivalent to admission, that Twitcbell knew tbe boundary, and would point it out truly. An admission, that one will perform an act correctly, is very nearly allied to an admission, that it bas been so done, after it bas taken place.

The admissions of a third person are receivable in evidence against the party wbo has expressly referred another to him for information in regard to an uncertain or disputed fact. In sucb cases the party is bound by 'the declarations of the person referred to, in tbe same manner, and to tbe same extent, as if they were made by himself. 1 Greenl. Ev. § 182; Williams v. Innes, 1 Camp. 364.

• In tbe present case tbe conversation was between tbe plaintiff and tbe witness Walker. But it is to be regarded as an admission, and on this principle it is to be received, although not made to tbe party to tbe suit. Brock v. Kent, 1 Camp. 366, in note.

Tbe testimony of tbe acts of Twitcbell was properly admitted. Tbe estimate of timber west of tbe white pine stump, and tbe certificates of it, do not appear to have any bearing upon tbe question at issue; they are immaterial facts, and could not in any manner have prejudiced tbe rights of tbe plaintiff.

Tbe authenticity of tbe plan offered in evidence by the plaintiff, could not be established by tbe declarations of Eli Twitcbell. Tbe fact, that be bad long since died, would not authorize their reception, any more than tbe declarations of deceased witnesses in ordinary cases. Assuming that the plan, which is not exhibited with tbe papers in tbe case, purports to delineate tbe lines of tbe several lots in Bethel, and that tbe certificate of Eli Twitcbell, made upon it, is an affirmation of their correctness, it could not be regarded as legally admissible. Traditionary evidence may be admissible in relation to the boundaries of parishes, manors, and the like, which are of public interest, and generally of remote antiquity, but it is inadmissible for the purpose of proving the boundary of a private estate, when not identical with one of a public nature. 1 G-reenl. Ev. § 145. It would be a new element in the law of evidence, to admit the diagrams or declarations of deceased persons for the purpose of proving the limits or boundaries of lots between individuals, when those persons were never the owners or possessors of them.

Exceptions overruled.

Shepley, C. J., and Tenney, Rice and Appleton, J. J., concurred.