
    *Reuben Burroughs against Samuel Thorne.
    Award, set aside, because arbitrators recompe 
    
    tator’s right to ^"¿’al^yhout competent, in £,g premises!"
    BURROUGHS commenced an action for a trespass, , . e 1 t i • -Lx , 1 upon a very narrow strip of land, lying between the farms of the parties, which had long been the subject expensive litigation, between them. They then entered into an arbitration bond, and agreed, to make their mission, a rule of court. The arbitrators, made an award, by which, among other things, they ordered, that suits pending, should be no furtlior prosecuted ; and adjudged the line in favour of Burroughs. Thorne, took a rale to shew cause, why the award should not be set aside, and filed several reasons; among the rest, that the arbitrators rejected, as witnesses, Joseph Thorne and Isaac Thorne, offered by the defendant, to prove the declarations and admissions of Joseph Burroughs, the father of plaintiff, under whom he claims, and who was then in the ownership and possession of the land, when the declarations were made. The objection to the witnesses, was, that they were the executors of Thomas Thorne, deceased, and as executors, had sold to defendant, such right to the premises, as their testator had, and given a deed without warranty.
    
    
      Coxe for Thorne, and Armstrong for Burroughs.
    
    
      
      
         The declarations of a former owner while in possession are competent. Townsend vs. Johnson, Pen. *706. Ferguson vs. Recve, 1 Har. 194. Tomlin ads. Cox, 4 Har. 77. Ten Eyck vs. Runk, 2 Dutch. 513. Horner vs. Stillwell, 6 Vr. 307. See Horner vs. Leeds, 1 Dutch. 106. Cox vs. Baird, 6 Hal. 105.
      
    
   The court.

It is greatly to be regretted, that the spirit of litigation, which has existed so strongly in this case,' should receive any opportunity of nourishment, from the decision of the court; but the evidence offered, was manifestly competent, and the witnesses free from legal exception. The arbitrators, certainly erred in refusing to hear them ; and the award must be set aside.

Upon the report of the arbitrators being made, Burroughs, by leave of the court, and in obedience to the award, discontinued his action of trespass. Armstrong therefore, prayed leave to vacate the rule, for discontinuance, and permit the suit to remain in force; which was granted.  