
    [Chambersburg,
    October 17, 1823.]
    BUCHANAN and others against MOORE.
    IN ERROR.
    Where it is proved that a fieri facias and venditioni existed, and are lost, the execution docket of the Court of Common Pleas is evidence to prove their contents, and the proceedings had upon therii.
    Where the sheriff sold the property of A. and B. as “ 200 acres of arable land, more or less, in JVewton township,” and A. and B. had two adjoining tracts there, one of 114 acres and allowance, the other of 161 acres 32 perches and allowance: the declarations of A. at the time of Sale, that the land, selling contained more than either of these tracts taken separately, are evidence in an ejectment by the purchaser against B. and others, for the land.
    So A’s. returns of the land to the assessor are evidence.
    The circumstance of A’s. having assigned the land for the benefit of his creditors 20 years before the trial, does not prevent his declarations being evidence, if the assignees have never accepted nor interfered.
    Parol evidence is not admissible of the contents of a written paper produced and read by the opposite party on a particular occasion, unless notice has been given to him to produce it.
    Declarations of a deceased person are evidence as to boundary! but not of those of a person living, who might be produced.
    Itn a question as to the quantity of land purchased at a sheriff’s sale, evidence of the annual value of the land, is immaterial, and not admissible.
    Error to the Court of Commbn Pleafe of Cumberland, county.
    Ejectment by John Moore, who was plaintiff below, against Thomas Buchanan, Robert Buchanan, and James Strong, to recover a tract of land in Cumberland county, which the plaintiff claimed under a sale to him by the sheriff of Cumberland county, on the 6th August, 1806, by virtue of a pluries venditioni exponas, issued after a fieri facias on a judgment at'the suit of John Field, against Alexander and Thomas Buchanan, obtained in January, 1795. The property sold was described in the adver* tisement and sheriff’s deed to be “200 acres of arable land, more or less, in Newton township, bounded by lands in the possession of Thomas and John Russell, with a saw mill thereon.” At the time of sale, Thomas Buchanan had two different tracts adjoining each other, one containing 114 acres and allowance, the other 161 acres and 32 perches, and allowance, which originally were different tracts, taken up under separate warrants, but which the plaintiff alleged had been considered and held as one tract by the person of whom Buchanan purchased, and by Buchanan himself, and were purchased by the plaintiff as one tract. The plaintiff received possession under his purchase of the smaller tract, and this ejectment was brought for the residue.
    After proving the action and judgment at the suit of Field, against A. and T. Buchanan, and its revival by scire facias, the plaintiff called the prothonotary, who stated, that he had diligently searched his office for the fieri facias, and several writs of ven
      ditioni exponas, alleged to have been issued in 1798,1S03,1804,1805, and 1806, and that they could not be found: he also proved by the sheriffs who had been in office at those times, that a 'fieri facias had been issued and an inquisition held on the land, and that neither the fieri facias nor the inquisition, nor writs of venditioni, could be found among their papers. , The plaintiff then offered to read the entry in the execution docket of the court, to show that such writs had been issued and returned, and the proceedings had upon them. This evidence was objected to by the defendants, and admitted by the court. The defendants tendered a bill of exceptions.
    The plaintiff then offered the deed from George Stroop, sheriff of Cumberland county, to the plaintiff, which was likewise objected to by the defendants, and admitted by the court, who sealed another bill of exceptions.
    In the course of the plaintiffs evidence it appeared, that about 20 years before the trial, T. Buchanan, had been discharged under the insolvent law, and assigned all his property for the benefit of his creditors. But it was further shown, that the trustees had never acted under the assignment, and T. Buchanan retained possession of the land in question, and had always conducted the defence of this suit, there being no interférence on the part of his creditors.
    The plaintiff afterwards offered in evidence the deposition’ of George Stroop sheriff aforesaid, stating, that at the time he had the lands of Á. Buchanan and T. Buchanan, advertised for sale, the said T. Buchanan called on him, and told him that he had not properly described the land in the advertisement, for the saw mill tract contained upwards of 300 acres: but said he would give the deponent a proper description of it some time or other. Accordingly, some time after, T. Buchanan called on the deponent with a small paper, containing a description of his lands advertised for sale, in which the saw mill tract was described to contain 300 acres. He wanted the deponent to alter the advertisement, but the deponent said he thought he had no authority to alter it: that the advertisement was agreeable to the venditioni. At the time of sale, the deponent publicly mentioned, that said Buchanan had told him, that the tract contained more land than the advertisement mentioned. Buchanan being present, said there was. This part of the deposition was objected to by the defendants, but admitted by the court, who sealed a bill of exceptions.
    The plaintiff then offered James Lamberton, to prove, that at the time of the sheriff’s sale, the plaintiff, and William Moore, T. Buchanan, himself and others being present, a conversation took place1 between,Stroop, the plaintiff, W. Moore, and T. Buchanan. T. BuchanariXoli Stroop, that the land was not well described; that there was more land, he thought, than was mentioned in the advertisement: that the plaintiff asked the witness whether he knew the land, T. Buchanan was present, but witness did not know whether he heard. Witness told plaintiff he had long known the land, and thought there was more in it. Witness mentioned to plaintiff it was very cheap, and there were one or two bids more. This evidence was objected to by the defendants, and admitted by the court, who sealed a fourth bill of exceptions.
    The plaintiff further offered in evidence the returns of T. Buchanan of this land to the assessor, after the levy, and before the sale, in which the two tracts were described as one. This evidence also, the defendants objected to, but the court received it, and sealed another bill of exceptions.
    The defendants produced Matthew Woodburn as a witness, to prove the division line between the two tracts; and this witness stated, among other things, that William Appleby, a son-in-law of M‘Curdy, (from whom T. Buchanan purchased,) showed him the line. This part of the testimony was objected to by the plaintiffs, and rejected by the court. Whereupon the defendants excepted.
    The defendants then offered to show that the profits of the saw mill would have paid the 1,215 dollars, for which the plaintiff purchased the land at sheriff’s sale, in four years, even without using' any timber on the land: and that the land with the improvements, was worth 2000 dollars at the time of the sheriff’s sale. To this also the plaintiff objected, and the court rejected it: and sealed a seventh bill of exceptions.
    The jury found a verdict for the plaintiff below.
    
      Carothers and Alexander, for the plaintiffs in error.
    1st and 2d bills of exceptions. The exceptions depend on the' same principle; for if the execution docket was not evidence, the sheriff’s deed ought not to have been admitted. We contend, that the execution docket was not evidence. It is not a record. It might be convenient that it should be considered as a record, but it is not so considered. It is not a copy of any paper in the cause: it is a mere minute, made by the officer, perhaps imperfectly or erroneously. There was no proof that the entry in it was a copy of the returns of levy made by the sheriff. Nor could such entry be any proof that an inquisition had been held, and the land condemned.In ancient transactions, perhaps, the docket might be received as good evidence, under the circumstances of this case: but this transaction being recent, it should have been proved by whom these docket entries were made. Perhaps the officer who made the entry was living, and if so, he should have been examined as to the manner of making the entries, and the papers from which he made them.-
    3d and 4th bills of exceptions. The levy and advertisement of sale, cannot be explained and altered by parol evidence. Verbal declarations at the time of a sale, are inadmissible for the purpose of varying the conditions of sale. Sugd. Vend. 23. Besides, be-fore the time of the declarations alleged to have been made by Buchanan, he had assigned his estate to trustees for the benefit of his creditors; and his declarations ought not to affect their prior title. It is a further objection to these declarations, that they were not made to Moore, the plaintiff. They were offered by way of establishing a fraud in Buchanan, in misrepresenting the property which the sheriff was selling. Unless then, the declarations were made to the plaintiff, they were not admissible. As to the evidence of Stroop in relation to the contents of a written paper, it was manifestly improper: since no notice had been given to Buchanan to produce the paper.
    5th bill of exceptions. The assessment was made after the levy and before the sale, and the returns of Buchanan were not evidence on the same principles.
    6th bill, The rejection of what Appleby had told Woodburn. Considered as hearsay, this evidence was proper, because it related to boundary. But it was not so much hearsay, as part of what Was shown on the ground by Appleby.
    
    7th bill. The evidence of the value of the land was offered to show, that it could not be intended to sell both tracts. It showed the intention of the parties. It went to rebut the charge of fraud set up by the plaintiff
    
      Mahon and Metzger, contra.
    1st and 2d bills. Before the evidence of the docket was received, a ground was laid by proving, that the writ of fieri facias, and the inquisition were lost. Such writs are often lost, and in that case the docket is the next best evidence^ and ought to be resorted to.
    3d and 4th bills. Thomas Buchanan was a defendant in the suit and tenant in possession: his confessions or declarations were evidence to show the boundaries of the land sold by the sheriff. They were, moreover part of the res gesta, in which ease, hearsay evidence is admissible. 1 Phill. Evid. 202. As to the assignment, it was in proof that the assignees never interfered, and that Buchanan has been suffered to remain in possession for 20 years. The written paper alluded to, was not a paper wanted by the plaintiff to make out his title: it was only a memorandum made by Buchanan himself, and the paper itself was not evidence.
    5th bill. This evidence was Buchanan’s own assertion, that he occupied the whole as one tract.
    6th bill. What W. Appleby was heard to say was not evidence, because he was living, or at least there was no proof of his death.
    7th bill. As to the value of the land, it could not be evidence. It could only tend to mislead the jury: and could throw no light on the question, what was the quantity of land bought by the plaintiff.
   The opinion of the court was delivered by

Tilghman, C. J.

John Moore, the plaintiff below, in this ejectment, claimed the land in dispute under a sheriff’s sale, by virtue of a judgment and execution for John Field, against Alex» ander and Thomas Buchanan. Seven bills of exceptions to evidence were taken by the defendant’s counsel, in the course of the trial.

1st and 2d. The two first bills of exceptions depend on the same principle. It was proved, that search had been made in the prothonotary’s office, for several judicial writs, necessary to the completion of the plaintiff’s title, and that they were not to be found. It was proved also, that these writs were once in existence, and the plaintiff then offered in evidence the docket of the Court of Common Pleas, by the entries in which it appeared, that such writs had issued and been returned. This evidence was objected to by the defendants’ counsel, and admitted by the court. I have no doubt, that the docket entries were evidence. The best evidence would have been the writs themselves, returned by the sheriff. But we know too well, by sad experience, that the loss of writs, after they are returned, is no uncommon thing. In such cases, the law admits secondary evidence, and surely the docket entries may be received as such. They are, in their nature, more to be relied on, than the memory of any man. And although they are but short minutes, yet they contain the substance of the transaction. When it is said, in a few abbreviated words, that a fieri facias or venditioni exponas issued to a certain term, and that the sheriff returned, levied on certain lands, inquest held, and condemned, and lands sold for g certain price, to a certain persqn, we understand the whole matter as perfectly as if the writs and returns had been recited .at large, And these entries having been made by a confidential officer, in a public book, preserved gmong the records of the court, it cannot be denied that they are entitled to great weight: Indeed, they have been frequently admitted as evidence, in eases of this kind, and there can be no reason for questioning the propriety of the practice.

3, 4. The 3d and 4th exceptions are in many respects of the same nature and may be considered together. It may appear strange, but so it is, that the only matter in dispute was, what was the land sold by the sheriff to the plaintiff. It was described in Very vague terms, “200 acres of arable land more or less, in Newton township, bounded by lands in possession of Thomas and John Russel, with a saw mill thereon.” Now the fact was that Buchanan, had adjoining lands, which originally were two different tracts, but as the plaintiff alleges, had been long considered and held as one tract, and the question was, whether both were sold, or only one. In order to prove that the sale was of both, the plaintiff offered the depositions of George Stroop, whose evidence tended to show, from a conversation between him and Thomas Buchanan, one of the defendants, that the said Buchanan, understood the sale to be of both tracts. The plaintiff offered to prove also, by James Lamberton, that at the time of sale, Thomas Buchanan, publicly spoke of the quantity of land then exposed to sale, as being more than was contained in either of the tracts taken separately. To all this evidence the counsel for the defendant objected, but the court admitted it. This evidence does not appear to be at all inconsistent with the deed. It proved the impression of the defendant that the tract of land described by the sheriff, as 200 acres more or less, was considerably more than 200 acres. This might assist the jury in identifying the land. When they once made up their minds on the question, whether the two tracts were considered as one, the rest would be very easy, because the lines of each tract were known. Although the description in the sherifFs deed was vague, it was not so much so, as to be void, for uncertainty. And in construing that deed, it was proper and indeed necessary to inquire by evidence dehors, whether Mr. Buchanan’s land had been generally considered and spoken of as only one tract, or as two. His own understanding on that point was certainly important, and I cannot see why the evidence should not have been admitted. It was urged as one reason against the evidence, that Mr. Buchanan had been discharged by the insolvent act, and assigned all his property for the benefit of his creditors, and therefore his confession ought not to prejudice his creditors who were the persons most interested in this suit. But to this it was answered, that the assignment in trust for the creditors, though made a long time ago, (not less than 20 years) had never been acted on. The assignees never accepted the trust, and Mr. Buchanan, had always retained the possession of the land. Considering these circumstances and moreover, that Mr. Buchanan was the only person who has conducted the defence in this suit, without an interference on the part of his creditors, I think that his confessions were evidence against himself, and that his creditors ought not to be regarded. It may be, (and the conduct of the creditors gives countenance to the supposition) that he has made some arrangement, by which he is to retain his right to the land now in dispute, and in that case, although he assigned for the'benefit of his creditors, these would be a resulting trust, quoad hoc for his own benefit. But there was a part of George Siroop’s deposition to which there was a special objection, on a ground not yet touched. Stroop swore, that Thomas Buchanan told him the lands were not properly described in the advertisement of sale, and that at some other time he would give him a proper description. That accordingly, Buchanan called on him some time afterwards, “ with a small paper containing a description of his lands advertised for sale, in which the saw mill tract was described, as containing upwards of 300 acres.” The objection to this part of the deposition was that the description being in writing, parol evidence of its contents was not admissible-without notice having been given to Buchanan, to produce it. The objection was good. The parol evidence ought not to have been received. The very same point was decided in the case of Freeman (in error) v. Pennock’s Administrators, (Lancaster, May, 1821,) not yet reported. Until Buchanan refused or neglected, to produce the paper alluded to, on notice, the evidence of Stroop, was not the best which the nature of the case admitted of. In the admission of this part of the deposition there was error.

5th. After the levy was made on Buchanan’s property, and before the sale, while he remained in possession of it, he made a return to the assessor, in which these two tracts were described as one. The plaintiff offered this return in evidence, and the court admitted it, to which the defendants excepted. I think it was good evidence, on the same principle that the confessions of Buchanan, mentioned in the 8d and 4th exceptions were evidence, on which I have before expressed my opinion.

6th. The 6th exception was to part of the testimony of Matthew Woodburn, a witness for the defendants which the court rejected; Woodburn was describing the boundaries of the defendants’ land, and mentioned a certain line as having been shown to him by William Bppleby, who was living at the time of the trial. The rule is, that in cases of boundary, the declarations of deceased persons are evidence; The law on this subject is accurately stated in 1 Phill. Evid. 182, (New York, Ed. by Dunlap,) where the general rule is given with the exceptions, and in page Í64, after citing a variety of cases, it is said, that “in all the cases which have been mentioned on this subject, the person who made the declaration was deceased at the time of the trial.” And there is great reason for the law being so held — why should the declarations without oath, of a person who maj’ be produced, and examined on oath, be evidence? why should the party against whom the evidence is offered, be deprived of the opportunity of cross-examining the witness? In case of death there is a necessity. But while the witness is living, there is no pretence for dispensing with the general rule, which rejects all testimony except on oath, and in the presence of the parties to the suit. I am of opinion therefore, that there was no error in the rejection of this evidence.

7th. The 7th and last exception, was to the rejection of the evidence offered by the defendants of the annual value of the land sold by the sheriff to the plaintiff. I do not think that this evidence was proper. The question was, whether the sheriff sold the land claimed in this suit. Its annual value was immaterial. The evidence might have led the jury astray from the true point of inquiry. It might perhaps have had some influence on their finding, in a doubtful case. They might have leaned against the plaintiff, because he had got the worth of his money, though he lost the land in dispute. Upon the whole, I am of opinion that the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded*  