Goodwin v. Jack

Dickerson, J. The first error alleged in the bill of exceptions is the admission by the presiding justice of certain ancient books entitled “Pejepscot Records.” Courts have felt obliged from necessity to depart from the strict rules of evidence in the admission of ancient writings, documents, books and records, to prove the existence of the facts they recite. The rule of evidence requiring the testimony of the lawful custodian of books of record offered in evidence, that they are of the description claimed, before they are admissible, has repeatedly been relaxed in the case of ancient books of record of proprietors of land. In such instances, such books have been held to prove themselves. When ancient books, purporting to be the records of such proprietary, contain obvious internal evidence of their own verity, and theré is no evidence of the present existence of the proprietary or of any person representing it, or any clerk or other person authorized.to keep the records, they are admissible in evidence without proof of the legal organization of the proprietary, or of its subsequent meetings. King et als. v. Little et als., 1 Cush., 440; Rust v. Boston Mill Corporation, 6 Pick., 165; Monumoi Great Beach v. Rogers, 1 Mass., 159; Pitts v. Temple, 2 Mass., 538; Tolman v. Emerson, 4 Pick., 160. The books offered in evidence purporting to be “Pejepscot Records,” cover a period- of more than a hundred years and contain strong internal evidence of their own verity. There is no evidence to impeach their genuineness, or of the present existence of the proprietary, or of any person authorized to represent it, or having any proprietary interest therein. Previous to the decease of John McKeen of Brunswick, they were in his possession, he claiming title to certain lands under the Pejepscot Proprietors. At the time of the trial they were in the possession of the librarian of the Maine Historical Society. Time has swept away all who could have testified to the original organization of the association, so long [417] known as “Pejepscot Proprietors.” To require such, evidence, or even parol testimony in the ordinary way, that the books offered are what they purport to be, would be practically to exclude these records from being used as evidence in any case affecting the title to any land originally derived from those proprietors. Under these circumstances, we think that the books offered are to be regarded as proving themselves to be what they purport to be, —“Pejepscot Records,” — and that they are competent evidence of the doings of the “Pejepscot Proprietors,” without parol or other evidence of their original organization, or the regularity of their subsequent meetings; they are, in fact, the very best evidence of those facts that is attainable. It appears from these records that, at a meeting of the proprietors held February 12, 1767, by adjournment, it was voted, “that the plan of the township of Topsham be completed in order for a division among the proprietors, and that Belcher Noyes be directed and empowered to see it effected in the best manner. The same book contains a record of Noyes’ letter to Merrill, of Merrill’s attestation of the genuineness of that letter, of his acceptance of the trust committed to him by Noyes in his letter, and the “Field book of the survey as drawn by Merrill, on the 23d and 26th of July, 1768,” in pursuance of his instructions from Noyes. These entries were made by authority of the party interested to preserve and perpetuate the evidence of these transactions, contained in letters and other fugitive papers, liable' to be lost or destroyed. They were made, too, among the solemn records of the doings of the meetings of the proprietors, where they would be most likely to escape the fortuities of accident and mischance, and the ravages of time. Being found, as we have seen, among records that prove themselves, after the lapse of more than a hundred years, these entries may properly be regarded as primary evidence, the presumption being that the originals have long since been lost or destroyed, and no shadow of suspicion resting upon their authenticity. Moreover, there does not appear to be any [418] known place to search for the originals, or any living witness hy whom to prove their loss or destruction. They are, therefore, the best evidence that exists, of the facts they contain. The next objection is to the admission in evidence of a copy of what purports to he John Merrill’s plan of the township of Tops-ham. This objection is two-fold : 1st, That no such original plan is proved to have been made; and 2d, that if it is, there is no sufficient evidence of the loss of the original, or that the plan offered is a copy. Did John Merrill make a plan of the township of Topsham ? We have already seen that the proprietors by their vote of February 12,1767, ordered “a plan of the township of Topsham to be completed,” and “directed and empowered Belcher Noyes to see it effected in the best mannerthat Noyes, by his letter of October 21, 1767, to John Merrill, authorized him to perform that work “by a regular surveythat Merrill accepted that trust, on the same day, and returned “A Field Book of the survey of the respective divisions of the lots' in the township of Topsham, as drawn by him the 23d and 26th of July, 1768.” It further appears that at a meeting of the proprietors on the same 26th of July, 1768, Merrill’s account for surveying the township of Tops-ham was allowed, and Belcher Noyes was authorized to execute a deed of certain land to Merrill in payment of his services, which was done August 6, 1768, the deed specifying that it was given “in payment for surveying the township of Topsham.” From the declared purpose and acts of the proprietors, the directions of Noyes to Merrill, and Merrill’s doings, it is reasonable to conclude that a plan of the township of Topsham was made by Merrill. Indeed, the certificate of Merrill upon the copy offered, in substance, that the original plan was drawn “at the request of the proprietors of said Topsham,” confirms this conclusion ; and though this certificate bears date July 21, 1786, instead of 1768, we think it is clear from the dates of the several transactions touching this subject, that the copyist inadvertently transposed the last two figures, writing 86 instead of 68. By making [419] this correction, the drawing of the plan, becomes cotemporaneous with the survey, and the extension of the field notes upon the proprietor’s records, and consistent with their declared purposes, and Noyes’ directions to Merrill. But if there could be any doubt as to whether Merrill ever drew a plan of Topsham, it is removed by the testimony that such a plan was seen some twenty-five years before the trial, in possession of John McKeen, who claimed to have an interest in certain land derived from the Pejepscot Proprietors, and with whom was, also, found their records, including the field book. It further appears in evidence, that the original plan could not be found in possession of the family of McKeen after his decease, nor in the archives of the Maine Historical Society, where the other muniments of the proprietors were deposited. We think the plaintiff has placed himself in a situation to introduce a copy, of Merrill’s plan of Topsham, and in view of the strong internal evidence borne upon the face of the paper offered,, of its identity with the original, on the testimony that “it is the-same as the original,” we think it was properly admitted in evidence as a copy of Merrill’s plan. The objection to the court’s instructions to the jury that the-action might be maintained, though a part of the description of the-premises in the declaration was not sustained by the evidence, i's-obviated by the fact that, in one of the counts, the locus in quo- is. described as “land of the plaintiff situated in- Topsham, containing about fifty acres.” There being no demurrer to that count, and the defendants having pleaded to it, the action might at least be-sustained on that count. But we think the objection cannot be-sustained on any ground. The same particularity of description; is not required as in criminal cases. In the other count in the writ the locus in quo is alleged to be “a fifty acre lot,” “numbered 19”' “in the town of Topsham.” If the locus proved conformed to the declaration in these several respects, the jury would be authorized to return a verdict for the plaintiff, though it should not answer to the description in some other respects. [420] Our conclusion is, that the rulings and instructions of the presiding justice afford no legal ground of exceptions, and that there is nothing to warrant setting the verdict aside on the motion. Motion and exceptions overruled. Appleton, C. J., Cutting, Danforth, Virgin and Peters, JJ-, concurred.