#### The Inhabitants of Bridgewater *versus*The Inhabitants of West Bridgewater.

A town record of an ancient grant (in 1664) of land and a dwellinghouse thereon, by the town to an individual, in consideration of his settling among them in the ministry,— his last will devising his “ homestead ” to his five sons, — their deed of <r the lands and tenements given to them by said last will,” describing the same by the monuments mentioned in the original grant, —• and the testimony of Jiving witnesses acquainted with the monuments, that the land -lies in a part of the town recently -incorporated as a separate town, — are *competent*-.evidence to -show that the first grantee.resided within the limits of the new town.

Assumpsit for the support of a pauper, who was supposed by the plaintiffs to have acquired a settlement in West Bridge-water, by virtue of *St.*1821, c. '82, incorporating that town, *197(previously a part of Bridgewater,) which enacts, “ that all persons who may hereafter become chargeable as paupers to the said town of Bridgewater, or West Bridgewater, shall be considered as belonging to that town on the territory of which they had their settlement at the time of passing this act, and shall in future be chargeable to that town only.” At the trial in the Common Pleas, before *Williams*J., it appeared, that the pauper and his ancestors, so far back as the memory of living witnesses extended, had resided on the territory now inc-uded in Bridgewater; but the plaintiffs alleged that he was the descendant of James Keith, the first minister in Bridgewater, and after offering evidence to prove his pedigree, they undertook to prove the settlement of Keith to have been within the territory now West Bridgewater. For this purpose they offered in evidence an extract from the town records of Bridgewater, before it was divided into several towns, purporting to contain a grant in 1664 of certain lands (bounding them by monuments) and a dwellinghouse thereon, from the town to Keith, in consideration of his settling among them in the gospel ministry. Also other votes and acts of the town regarding him as their minister, increasing his salary, &c. for many years following. Also Keith’s last will, dated July 20, 1718, and duly proved, by which he devised to his five sons, his “ homestead.” Also the deed of the five sons to Ephraim and William Fobes, dated March 18, 1724, conveying “ the lands and tenements given to them by said last will,” and describing the same by the monuments mentioned in the original grant of 1664. The plaintiffs also offered to prove, by deeds and records of the mesne conveyances from that time to the present, and by witnesses who knew the monuments above mentioned, that the land and house granted by the town to Keith, were in the territory now West Bridgewater. But the judge ruled that this was not competent evidence to prove that the domicil or residence of Keith was in that territory, and the jury returned a verdict for the defendants. To this opinion and direction the plaintiffs filed exceptions.

*Oct.*21st.

*Eddy,*in support of the exceptions,

cited 1 Stark. Ev. 17, 73 ; 3 Stark. Ev. 1245 ;—and as to the construction of *St.**1981821, c. 82, *East Bridgewater*v. *Bridgewater,*2 Pick. 572, [2nd ed. 573, note 1.]

*May term*1829, *11 Plymouth.*

IF. *Baylies, contra,*

said that supposing the words “ my homestead ” in the will, to be equivalent to “ the place where I now dwell,” this evidence of the testator’s residence was hearsay, and therefore inadmissible to prove that fact; and this declaration of the testator being out of the case, nothing remains but the simple fact of a grant to him of land in West Bridgewater ; which has no tendency to prove that he lived there. *Rex*v. *Eriswell,*3 T. R. 707 ; *Outram*v. *Morewood,*5 T. R. 123; *Rex*v. *Nuneham Courtney,*1 East, 373; *Rex*v. *Abergwilly,*2 East, 63; *Rex*v. *Ferry Fryestone,*ibid. 54 ; *Rex*v. *Erith,*8 East, 542 ; *Mima Queen*v. *Hepburn,*7 Cranch, 295 ; *Braintree*v. *Hingham,*1 Pick. 245 ; [2nd ed. 247, note 3 ;] *Wilmington*v. *Burlington, 4*Pick. 174, [2nd ed. 176, note 1.]

Per *Curiam.*

We cannot conceive of evidence more pertinent to prove the point in question; which was, on what pan of old Bridgewater did James Keith live. The fact indeed is not, at this distance of time, capable of proof by any other kind of testimony. Whether conclusive or not was for the jury to determine.

It certainly is not objectionable as parol evidence, for it consists in records and deeds, except so much of it as goes to prove the actual situation of the land as described in these documents, and parol evidence is always admitted, and indeed is necessary for that purpose.

A new trial must therefore be had at the bar of this Court.