#### Isaac Van Deusen *versus*Benajah W. Turner.

Upon a question of boundary, the declaration of a deceased person who pointed out a line of marked trees, saying it was a known division line, was *held*to be admissible in evidence, as part of the res *gestea;*but any further declaration made by him at the time, of a fact material to the issue, was *held*to be inadmissible.

Trespass *quare clausum.*Plea, the general issue. At the trial, before *Morton*J., the defendant set up title in himself in the *locus in*quo, and the defence depended upon the division line between the plaintiff’s and defendant’s respective lands. The defendant offered to prove, that in 1796 Josiah Dewey deceased, who nine years before had owned, in right of his wife, the plaintiff’s land, went with the witness upon the land in question and pointed out to him a line of marked trees, which he told the witness was a known division line between the land belonging to the persons from whom respectively the plaintiff and the defendant derived their titles. The judge admitted the evidence, that Dewey went with the witness to *539this line of marked trees and pointed it out as the north line of the plaintiff’s lot, but rejected all other declarations of Dewey. If this evidence was wrongfully rejected, a new trial was to be granted ; otherwise judgment was to be rendered on the verdict, for the plaintiff.

*Dwight, C. A. Dewey*and Porter, for the defendant,

cited 1 Stark. Ev. 47, 49 ; *Davis*v. *Spooner,*3 Pick. 284 ; *Pool*v. *Bridges,*4 Pick. 378 ; *Milford*v. *Bellingham,*16 Mass. R. 108.

*Sept. V$>lh*

*Jones*and *Bishop,*for the plaintiff,

cited *Weeks*v. Sparke, 1 Maule & Selw. 680 ; *Outram*v. *Morewood,*14 East, 327, 330 ; 1 Phil. Ev. (2d edit.) 189.

*Sept. 20th.*

*Per Curiam.*

This seems to be a plain question. The judge admitted evidence that Dewey went to the line and pointed it out, but rejected the other declarations. This decision appears to us to be correct and conformable to the established rule. Dewey is to be considered as on the same footing with any other person having the same means of knowl edge, and the circumstance that he had been an owner of the estate several years before, can make no difference. The general rule is, that the declarations of a deceased person are not admissible, being rejected as hearsay and not under oath, with a few exceptions as to genealogy, &c. As part of the *res gestae,*having pointed out the line of marked trees, it was allowed further to show what he then said this line meant.

Any further declaration of a fact material to the issue, would have been an attempt to prove such fact by hearsay evidence, and so contrary to the rule. Had the deceased been requested to go and point out the line, and he had done it without any declaration whatever, it would have been an act of the same character and admissible upon the same principle. If any particular question is supposed to have been rejected which ought to have been admitted, it should have been specified, and embraced in the report.1

*Judgment on the verdict.*

1

 See *Higley*v. Bidwell, 9 Connect. R. 447; *Shepherd*v. Thompson, 4 N. H. R. 213; *Hamilton*v. Menor, 2 Serg. & R. 70; *Sturgeon*v. *Waugh, 2*Yeates, 476; *Caufman*v. *Congregation of Cedar*Spring, 6 Binney, 59; *McDonald*v. *540*McCall,*10 Johns. R. 377; *Redding*v. *McCubbin,*1 Harr. & McHen. 368 *Howell*v. *Tilden,*1 Harr. & McHen. 84; *Hall*v. *Gittings,*2 Harr. & Johns 12; *Sasser v. Herring,*3 Devereux, 340; *Beard,*v. *Talbot,*1 Cooke, 142 Greenl. on Ev. § 145, note.