
    [*] TOWNSEND against JOHNSON, and others. [519]
    Acts and declarations of a person in possession, under whom a party claims, are competent evidence in a boundary cause 
    
    This was an action of trespass quare clausum fregit. Pleas 1, Not guilty: 2 Liberum tenementum.
    
    On the trial at the Cape May Circuit, it was admitted to be a boundary dispute. The plaintiff) after giving much evidence, offered to read in evidence a deed from the West Jersey Society, to Nathaniel Jenkins, dated the 11th "June, 1752, for a certain tract of swamp adjoining to the swamp of the plaintiff, and also to the swamp of the defendants, and calling for a corner, being a corner of the plaintiff’s swamp, in the line of Jeremiah Hand’s swamp, (the defendants claimed title under Jer. Hand) it being a corner in the line in dispute; to the reading of this deed in evidence, the defendants objected, and the evidence was overruled by the judge; the plaintiff also offered to prove by witnesses, that Jesse Hand, under whom the defendants claimed title, had, before he sold the place, shown a certain maple on Long Bridge, as a corner to his swamp, some chains further from his beginning corner than that shown by him to the jury on the view, (but which was not called for in his deed, nor would the length of chain mentioned in deed, extend so far as the maple). This evidence was also objected to by the defendants, and rejected by the judge. The jury found a verdict for the defendants; on the coming in of the postea, the plaintiff obtained a rule to show cause why a new trial should not be awarded on the ground of the judge’s rejecting legal and proper testimony. This rule being argued,
    
      
       S. P. Saunders PL and Pk. 60; 6 Halst. 223; 4 John. 234; 2 Serg, and Rawle, 354.
      
    
   Pensingtom, J.

Delivered the opinion of the court. It is admitted in the case, that the principal question on the trial, was the boundary line of the two tracts of land. The acts and declarations of Mr. Hand, under whom the defendants claimed title, relative to the boundary line, made and done while he was in possession [*] and owned the land, was competent evidence to go to the jury; that he showed the jury on the view, a different corner, made no diffei’ence; he could give no evidence on the view; and even if he had done it, the testimony was admissible on another ground; this evidence was not conclusive, but Avould go to show the understanding of Mr. Hand at the time, and to explain an ancient transaction. The deed to Jenkins of a tract of land adjoining the land in controversy, calling for a corner in Townsend’s swamp, in the line of Hand’s [520] swamp, made upwards of a half a century ago, was competent evidence. It went to show what was the understanding of those who located the land adjoining, and also that of the West Jersey Society, at the time; it was evidence of the reputed boundary, fifty years ago, which is always evidence in boundary questions. We give no opinion as to the degree of weight this testimony ought to have with the jury; this must, as in other cases, depend on other facts and circumstances in the cause; it being admissible, the plaintiff ought to have had the benefit of it. Let there be a new trial, with costs, to abide the event of the suit.

Rule for a new trial made absolute.'

Distinguished in Den, John v. Morris, 3 Halst. 213; Brewer v. Porch, 2 Harr. 377.

Cited in Den, Cox v. Tomlin, 4 Harr. 76; Ten Eyck v. Runk, 2 Dutch. 513; Horner v. Stillwell, 6 Vr. 310.  