Williams v. Ensign

Hosmer, Ch. J. Whether, while in possession of the premises in controversy, the declaration of Cotton, that he held under Williams, from whom the defendant derived title, and was to deliver him a part of the produce of the land, was admissible in evidence, is the only question in this case. To ascertain the character of an act, or the intention with which it was performed, hearsay has often been admitted part of the res gesta. This, very frequently, is the best and only evidence, of which the nature of the case admits. In Bateman & al. v. Bailey, 5 Term Rep. 512. upon the enquiry whether the departure of a trader from his dwelling-house amounted to an act of bankruptcy, a declaration of his motives for absenting himself, made at the time of his absence, was received in evidence. In 1 Co. Inst. 374. a. it is said, “That where one coparcener enters on the whole of the estate descended, this does not divest the estate, which, by law, descends to the other, unless she enters claiming the whole; in which event, the freehold in law of the other parcener is divested: So, if having entered, the coparcener makes a feoffment of the whole, the act subsequent explains the entry precedent.” This antient rule of law necessarily implies, that the acts and declarations of the occupant are good evidence, to demonstrate the character and intent of the possession. In the case of Holloway v. Rakes, cited in Davies v. Pierce, 2 Term Rep. 55. a witness was called, and admitted, to speak to the declarations of the occupant, that he held as tenant to the devisor, whose seisin it was necessary to prove; and in Doe d. Foster v. Williams, Cowp. 621. in order to determine who was in possession, evidence of the tenant’s declarations, to [458] whom she paid real, was adjudged to have beer, rightly received. Hindly brought an action of ejectment against Rickarby, for a house, of which a Mrs. Luthman had been in possession; and the declarations of Mrs. Luthman, made while in possession, were admitted in evidence to ascertain whether she held, in her own right, or as tenant to Rickarby. Doe d. Hindly v. Rickarby, 5 Esp. Rep. 4. In Peaceable d. Uncle v. Watson, 4 Taun. 16. the declarations of a deceased occupier of land were received in evidence to prove under whom he held the possession; a case entirely analogous to the one now under discussion. To the same effect, precisely, was Jackson d. Youngs & al. v. Vredenbergh, 1 Johns. Rep. 159. in which the declarations of a Mrs. Punderson were proved, to shew in what character, or with what intent, she entered upon and held the premises in dispute. I have cautiously abstained from citing cases, in which the declarations were against the interest of the person making them, or where the party to be affected by the testimony, claimed title under the person who made the declarations. It is perfectly clear, that the evidence offered in this case, should have been received; and for the rejection of it, I would advise the granting of a new trial. The other Judges were of the same opinion. New trial to be granted.