
    H. H. Wardlaw vs. S. J. Hammond.
    The sixty days’ notice required by the Act of 1828, before the office copy of a will of real estate can be given in evidence, must be in writing.
    Applications for continuance are addressed to the discretion of the presiding Judge.
    Defendant had built a dam and overflowed land, which then, and for many years after, was in the possession of J. W. After J. W’s death, plaintiff being in possession, and claiming to be owner, brought case against the defendant for overflowing the land: — Held, that it was inadmissible to prove by the declarations of J. W. while in possession, that he was a mere tenant for life in right of his wife, and that plaintiff was a remainder-man.
    After the death of J. W. and his wife, a bill in equity for partition had been filed, in which it was alleged that the parties were entitled as remainder-men after the death of J. W’s. wife, and a copy of a will was exhibited which showed the rights of the parties. The land was ordered to be sold, and plaintiff, one of the romainder-men, became the purchaser: — Held, that the proceedings in equity, though admissible lo show the foundation of plaintiff’s deed and to establish the identity of the land, were not admissible, as against the defendant, a stranger, to show that the parties were entitle.d to the land as remainder-men.
    BEFOBE WHITNEB, J., AT ANDEBSOÜST, FALL TEBM, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action on the case for overflowing plaintiff’s land.
    “ The defendant twenty-three, twenty-four or twenty-five years before had erected on his own land a valuable mill, and also a mill dam, which backed the water upon the lands now owned by plaintiff. The dam was broken by the August freshet in 1852, and immediately rebuilt.
    “In the progress of the case much testimony was heard calculated to enhance or lessen the damages, which I presume need not be reported.
    “ The case was regarded as one of very great hardship either way — the prosecution and defence was looked upon by the opposing party as. very ungracious, and hence each, as I was advised in the outset, stood upon his legal rights.
    
      “ The questions mainly involved were as to the character of defendant’s use and the right established thereby, as against the present plaintiff.
    “ It was alleged that the lands in question were conveyed by the will of Hugh Wardlaw to his daughter Peggy Wardlaw during her life, and after her death to her children. Peggy Wardlaw intermarried with James Wardlaw, and they occupied these lands near forty years.
    “During this time the mills and dam were erected and the latter reconstructed. Their children, of whom plaintiff was one, were raised on the place,, and lived in the family or immediate neighborhood, all being of age at the time of constructing the mills, without any objection on their part.
    
      “ On the death of James and Peggy Wardlaw, which happened recently, the former surviving a short time, a bill was filed in the Court of Equity for partition of the lands amongst the children, claiming under the devise of Hugh Wardlaw, — a sale was ordered, made and confirmed, and a title deed executed to plaintiff by the Commissioner in Equity for Anderson, bearing date January 7,1855. This suit was brought to March Court, 1855. Shortly before the writ was issued and after the plaintiff acquired title, he went to see the defendant, now an aged, diseased and very infirm man, on the subject of the overflow. Defendant said they had always been friendly and he desired to continue so; that when he put the dam there it was by the leave of old Mr. Wardlaw, and proposed to submit the whole matter to their friends and he would do whatever they said. The witness said the plaintiff did not seem to close with this proposition, and defendant then asked what would satisfy him, and plaintiff said to remove the water — and the interview there ended.
    “ Another witness, the brother of the plaintiff, testified that he was once present at a chat between his father and defendant twenty-five years ago, and when the mill and dam were in a course of construction. Defendant said something about cutting the rafters of the dam as he feared it would back the water above a particular ford on these lands. The father of witness said that it would make no difference as he could get another ford and made no objection to the work going on. The same witness said that about the same time, though at another con'versation, he was present when something was said about a trade or exchange of lands on another part of same tract. He could not recollect all that was said but amongst other things defendant said, if the children were all willing they were now of age and the trade might be made.
    1 “A plat of these lands was introduced, certified by James Gilmer for James Wardlaw, 25th October, 1837 — and deed from the Commissioner in Equity to plaintiff for same lands, was read and admitted from register’s office, the original as was alleged being mislaid. No question was raised as to plaintiff’s, possession, &c.
    “ The defendant introduced no evidence. In reference to the" different grounds of appeal it is proper for me to add something.
    
      “ 1st Ground. A paper purporting to be a certified copy of the last will and testament of Hugh Wardlaw was offered, and an objection to its being received in evidence, sustained, no notice having been given to opposite party.
    
      “ 2nd Ground. After the foregoing objection was sustained a witness was sworn and examined. The record of proceedings in equity were offered, and the Commissioner, the keeper of the record, introduced to verify. Pending an objection to its introduction the hour for recess being at hand the case was suspended — after the interval, counsel for plaintiff announced his purpose to move for a¡ continuance in consequence of these various objections, and another which he apprehended from the absence of plaintiff’s original deed, as he intended when going into the case to rely on the registry, &c. The continuance was opposed — the case ordered on — the record in equity admitted, and- the production of original deed to plaintiff waived. It did not appear that the party was any way misled by his adversary or otherwise surprised than one often finds himself in the progress of a case, that a witness on whom he relied fails to prove a fact as he anticipated, or is deemed incompetent when called to the stand.
    
      “ 3rd Ground. The plaintiff struggled to supply the evidence it was said would have been furnished by the adduction of Hugh Wardlaw’s will. Hence a witness was interrogated as to any declaration made by James Wardlaw as to the character of his estate in these lands, or of the estate of his children. Eor such a purpose I deemed such declarations, if made, incompetent, there being higher evidence — any such declarations made in presence of defendant or any admission by defendant in reference thereto were permitted to be inquired after freely and would have been fully heard. There was not an intimation that reached my ear that such declarations were called for as explanatory 1 of the nature of James Wardlaw’s possession,’ and to my mind it seems, thus limited, if made at all, they would have been unavailing. However subordinate the possession of James Wardlaw to the superior or peculiar title of plaintiff’s could not of itself avail in the issue presented.
    
      “4th and 5th Grounds. I did not feel warranted upon the case made to ‘ charge the jury, as matter of law, that that which began in permission could never, under the circumstances, ripen into right,’ and I did not charge them, ‘ that even although it commenced by the permission of James Wardlaw the husband of the tenant for life and not of right; that inasmuch as the easement had been enjoyed for twenty years they were not warranted in coming to the conclusion that defendant continued the use under such permission,’ &c. Acquiescence or permission at the inception of such an enterprise I did not think necessarily included or excluded the one or the other.
    44 A distinction was taken broadly as to the right to be affected or acquired by such use as between one who occupied the position of tenant for life, and the remainder-man, altogether favorable to plaintiff. The jury were told that in such a case as that alleged there would be no such injury as to the freehold as would authorise a suit, and therefore a right could not be acquired even by such use and for the period of twenty years against the remainder-man, the tenant for life having during the term or any portion of it the lawful possession of the premises. Whatever questions may be raised on such a proposition, as applicable to the present case where the remainder-men were of age during the whole term, it could hardly be by way of complaint from the plaintiff.
    44 The jury were told, that to create a prescriptive right there must be twenty years uninterrupted, continuous, adverse use, and as to what was or what was not an adverse use or enjoyment would depend upon the facts and circumstances of the case to be ascertained by the jury. 4 If the enjoyment is shown to have originated in mistake, or by favor or license, or if it was commenced and continued in any manner which does indicate an assertion of right, the enjoyment is not adverse and consequently the presumption is not raised;’ 4 But that the enjoyment without interruption for the length of time prescribed, is so strong evidence of a right that a jury should not consider small circumstances as founding a presumption that it arose otherwise than by grant.’
    44 6th Ground. Although I admitted the record or proceedings in equity and a paper purporting to be a certified copy of the will of Hugh Wardlaw was filed as an exhibit, I did not think that the will was thereby proven or to be regarded as in evidence.
    Such proceedings however conclusive between parties would not thus affect or conclude the rights of third persons or dispense with the ordinary rules of evidence — whether the proof aliunde satisfied the jury of the matter alleged by plaintiff was submitted to them.
    “7 th Ground. The coni plaint set forth in this ground reaches me under such circumstances that I' can only make the following statement: — more than two weeks actively employed in the Court intervened before I had any intimation that such a proposition was regarded as maintained. My allusions to the effect of such verdict as the jury might render were in reference to the question of damages. They were told this was very peculiarly and exclusively a matter for them — they were guarded against the mistake that in giving damages they were thereby to change the property, even although they should give a verdict equal to the fee simple value of the land affected — that the design being to abate the nuisance it would be competent for the plaintiff to renew his action in the event of the right being with him, again and again, until the remedy was effectual. That it was not unusual, in those cases where the contest was to test the right upon a controverted issue or doubtful question, for juries to adopt mild means at first, administering more sternly on a second application if necessary by the obstinacy of a defendant. If upon the question raised the facts were with the plaintiff, I certainly took it for granted their verdict would be for him. I should regret to think any wrong had been done the plaintiff from a careless form of expression on this point. I had no purpose to instruct them as to the effect of a verdict for defendant. It was riot a proposition on which I profess to have entertained an opinion; neither can I well see if asserted and found to be erroneous in what way it serv.es to negative the verdict of the jury.
    “ The verdict was .for defendant.”
    
      The plaintiff appealed and now moved this Court for a new trial, on the grounds :
    1. Because his Honor the presiding Judge, erred in holding •that an exemplified copy of the will of Hugh Wardlaw, deceased, was not admissible in evidence, unless sixty days previous notice had been given to defendant, of the intention to introduce such copy.
    2. Because the plaintiff was taken by surprise, as well by the objection of defendant’s counsel, as by the ruling of his Honor, that the said copy (will) was not admissible in evidence, and it is most respectfully submitted, that under the circumstances of the case, as developed in the course of the trial, his Honor should, for the promotion'of the ends of justice, have allowed plaintiff to continue the causé, to afford him time to give notice of his intention to offer said copy (will) in evidence, if such notice be' in fact necessary.
    3. Because his Honor erred in holding that the declarations of James Wardlaw, the husband of Peggy Wardlaw, the tenant for life of the lands which had been flooded by defendant, were not admissible in evidence, as explanatory of the nature of his possession, and the extent of his claim to the lands in question.
    4. Because his Honor erred in charging the jury, that although defendant originally flooded the lands of plaintiff by permission of James Wardlaw, the husband of the tenant for life, and not of right, that inasmuch as the easement had been enjoyed for upwards of twenty years, they were not warranted in coming to the conclusion, that defendant continued the use, under such permission, but that although defendant had recently admitted, that he erected his dam by the permission of James Wardlaw, as was in proof, such permission did not prevent the use from becoming adverse.
    5. Because the proof was full and complete, that defendant flooded plaintiff’s lands at the outset, by permission' merely, and that he continued the use by permission, without the slightest proof that he ever held or attempted to hold adversely, and his Honor should have charged the jury, as matter of law, that that which began in permission, could never, under circumstances, ripen into right.
    6. Because his Honor erred in holding that the record from the Court of Equity (which had been admitted in evidence) for the partition of the lands of James and Peggy Wardlaw, in which the will of Hugh Wardlaw, deceased, was made an exhibit, could not be considered by the jury, in passing upon the question, as to whether the children of Peggy Wardlaw took the lands in question as remainder-men, upon the termination of her life estate, — When it is respectfully submitted, that the said record, together with other facts proved, made such a prima facie case, as to put the defendant to proof, to show the contrary; and in the. absence of such proof, it should have been given in charge to the jury, to determine whether or not, it had béen shown to their satisfaction, that the children of Peggy Wardlaw, were remainder-men, under the will of Hugh Ward-law, deceased.
    7. Because his Honor erred in saying to the jury, that whatever the verdict might be, it would not conclude the parties —that, one action did not settle the question, but that many might be brought; which operated to mislead the jury, and cause them to conclude, that although the verdict was for defendant, plaintiff might sue again without prejudice.
    . 8. Because the verdict of the jury, is in other respects con. trary to law and the evidence, and subversive of the principles of justice between man and man.
    Reed, MeGrowen, for appellants.
    
      Orr, Willces, contra.
   The opinion of the Court was delivered by

Whitner, J.

The terms of the Act of 1823, authorizing office copies of wills to be given in evidence are very explicit. A notice of sixty days to the opposite party previous to the trial, is indispensable, and, in accordance with the rule laid down by this Court in an analogous case, should be in writing.

In reference to the second ground, it need only be said, that applications for the continuance of a cause are addressed to the discretion of the presiding Judge. To aid in the exercise of a sound discretion, terms are prescribed for the party applying, but because of the ever varying circumstances, no inflexible rule can be laid down; and no difference of opinion has been expressed as to the propriety of the course adopted in this case. Under the precise state of facts existing when the motion was made on Circuit, a continuance would have furnished an embarrassing precedent. However the objection of defendant’s counsel and the ruling of the Court may have taken the party unawares, by no just interpretation of surprise in its legal acceptation could the plaintiff be regarded as entitled to its shield. He had neither been misled by his adversary nor had any new development presented new issues, or rendered necessary other inquiries to ascertain facts then suggested for the first time, or lying without the range of preparation originally proper for the case.

The third ground presents plausible matter of complaint, but this must be taken in connection with the report of the case. The parties, the issue, and especially the question propounded to the witness, must be kept in view. The fact inquired after was the character of the plaintiff’s title, and not of declarant’s possession, a distinct substantive matter susceptible of higher evidence, and to be attained in a less objectionable mode. The general objection which attaches to all such evidence should always exclude it, unless in each particular case it is brought within some recognized exception. Declarations of third persons are incompetent to establish a specific fact which is susceptible of being proved by witnesses who speak from their own knowledge, or which may be established by higher evidence. The intrinsic weakness of such testimony; its incompetency to satisfy the mind, and the frauds which might be practiced under such cover, all lead to the enforcement of the general rule, and incline the Courts not to extend the class of exceptions.

Had the declarant been living and on the stand his answer to the question propounded would not have been competent; another person equally cognizant of the fact, though interrogated, was not permitted to speak to the same point, and no complaint was made of that ruling. How then is it that declarant, because in possession, becomes a privileged witness. These estates were separate and independent as between the declarant and the plaintiff upon the plaintiff’s own allegation, and whether either was in possession of the premises during the period that elapsed, in no possible way affected the subject matter of inquiry.

I am certainly aware that declarations are often competent as a part of the res gestee when they would not otherwise be. They become in fact identical with the act done and so give it character by unfolding the nature and quality of facts they are intended to explain. Thus it is conceded a possession may be qualified or explained by the declarations of the possessor at the time, the apparent owner being thus cut down or elevated in his title as the case may be. This is the precise language of the books, and this the legitimate effect of such evidence; but the application to the case in hand is not seen. However conclusive it may have been shown that the declarant was in possession as a life-tenant only, it in no way resulted that the plaintiff was the remainder-man. This was the aim of the plaintiff, and falling short of that fact, his end would not have been attained. -If the inquiry on the Circuit had therefore been shaped as the ground of appeal now indicates, and the declarations received limited merely to the character of the possession, the result must have been precisely the same.

On the remaining grounds little need be added to the notice taken of them in the report. The instructions to the jury as to the character of 'the use by defendant, whether adverse or otherwise, were in accordance with well-settled legal principles. These questions were properly referred to the jury, and their verdict cannot be disturbed upon the facts on which they passed. A remaining ground calls for a passing notice. The proceedings in equity for partition of these lands were admitted as showing the foundation of plaintiff’s deed, and were pertinent to establish the identity of the lands. It cannot be, that facts alleged to be true in such a proceeding, however solemnly admitted by parties defendant, furnish evidence to be used against an entire stranger. The common law rule is too clear to admit of doubt, that their operation is confined to parties or privies. The benefit claimed would open a wide door for the manufacture of testimony, and jeopardize the rights of third persons to an alarming extent.

The motion for new trial is dismissed.

O’Neall, Withers, Glover and Munro, JL, concurred.

Wardlaw, J., did not hear the case.

Appeal dismissed.  