The rule that courses and distances yield to natural and ascertained objects is well settled, and I do not know.that it is disputed here. If there had been a known ground line between the Wolf and Kempe Tracts, that would have controlled the distance or chaining along the Dunderburgh Turnpike road called for by the defendants’ deed. The circuit judge in charging the jury stated that upon a view of all the evidence, excepting that which arose out of the deeds, he was of opinion that the weight of it was in favor of the plaintiff’s location, that is, as I understand it, that the line of the Wolf tract is where the line is drawn on the map from point P to point E.; but that the deeds afforded strong evidence against the plaintiff and in favor of the defendants. That is, that the fact that the chaining or distance along the turnpike road from point I on the map carried the line to the foot of the green line marked on the map, or beyond that point.
The judge instructed the jury that the description in the deed from De Forest to Moser, running 36 chains and 75 links along the Dunderburgh Turnpike road to the Wolf Tract, if not conclusive against De Forest, and those claiming under him, that the southerly line of the Wolf Tract was that distance from where the line north 45° east, mentioned in the deed, intersects the turnpike, (point I on the map,) was at least a strong recognition, under hand and seal, of the correctness of De Forest’s description of the Kempe Tract, in his deed to Moser, and therefore, of the accuracy of the Gurnee and Parmenter line which crosses that turnpike at the end of 36 chains and 75 links, running from where the course north 45°, mentioned in the deed, intersects the turnpike.
The plaintiff’s counsel excepted. I am inclined to think *168that too much importance was given to the distance of 36 chains and 75 links called for by the deeds under which the defendant holds his title ; I think it should have been submitted to the jury to find from the evidence where the line between the Wolf and Kempe Tracts was, and in doing that, it would have been entirely proper to have instructed them, if there was any doubt as to its location from" the evidence, and of that which the course and distances described in the deeds indicated, that then it would be proper for them to look to that in connection with the other evidence, but that if they could ascertain from the evidence the location of that line, although the distance from point I at the turnpike road to the line of the two tracts fell short of 36 chains and 75 links, that must yield to the line thus found and ascertained.
After a careful examination of the evidence aside of that furnished by the course and distance, alluded to, contained in the deeds, I entirely agree with the judge at the circuit that the weight of it was in favor of the plaintiff’s location.
And although I think the facts in the case did'not warrant so strong an expression of opinion, as to the controlling effect of the deeds, yet I am of opinion that the exception to the charge does not raise any legal question; nothing, as I can see, was said by the judge beyond commenting upon mere matters of evidence or the weight of it, and even to that the attention of the judge was not directed by the exception.
I am satisfied that there is no error in the decision of the circuit judge in allowing the defendant to give evidence of the interest of the witness Morgan, in the event of the suit, to affect his credit, nor in rejecting the deed offered in evidence op the ground it had been acknowledged in another county before a commissioner of deeds, on the ground that there was no certificate required by the statute. (1 R. S. 749, § 18.)
The plaintiff’s counsel offered to prove that for thirty or forty years past, it had always been reported and understood in the neighborhood, that a monument in the shape of a Harrow marked a corner between the Kempe and Wolf Tracts. It was objected to, overruled, and an exception taken. The judge stated that he would allow witnesses who had seen the monu*169ment to give evidence that such monument identically was known and reputed as one of the boundaries.
I am of opinion that the judge correctly shut out the proposed evidence. The existence of the monument could not be thus proved, consistent with any rule of evidence. It was merely hearsay, and not within any exception to the rule, that such evidence is inadmissible. (1 Green. Ev. § 145, n. 1.)
It is next objected that the judge at the circuit decided erroneously, in rejecting the evidence offered to show what Harmanus Hans, who was a chain-bearer in an old survey, made upward of thirty years before the trial, of the' line between the Wolf and Kempe Tracts, then dead, told the witness before any controversies arose about the boundary line, respecting that survey and the boundary line, and the monument, and marks upon it.
It will be observed that it was not proposed to show the declaration of Hans made at the time the act was done, which they were supposed to characterize, but upon other subsequent occasions. It may be, that declarations by a chain-bearer, who is deceased, in making a survey of a line, made, at the time the act was done, in regard to the line run, and monuments reached, &c., would be admissible to prove the facts as part of the res gestee. . But the evidence offered in this case was mere hearsay, and not within any of the few exceptions to the rule which excludes such evidence as proof of a fact affecting a party in a court of justice, and, I think, was properly excluded.
Upon the same ground I think the evidence offered of the declarations of Morgan, the surveyor, were rightly excluded. It was said on the argument that he was the agent of the parties in making that survey, and that was urged as an additional ground for the admission of his declarations. But of that there is no evidence in the case. The evidence on that point is, that he was not, but was in the employ of the state. Be that as it may, the declarations proposed to be proved were made subsequent to the making of the survey, and were no part of the res gestee; and admitting he had been the agent of the parties in making the survey, he could not affect the interests of either, *170by any subsequent declarations. Declarations of an agent must be confined to such statements as are made by him either at the time of the act done by him as such, about which he was employed or acting within the scope of his authority. .
Evidence was given showing that Parmenter run a line between the Wolf and Kempe Tracts a few years before the trial, beginning at the split rock on the Hudson river in the line P. E., marked on the map, and run on that line within a chain or a chain and a half of point P. and made a monument. The plaintiff’s counsel then proposed to prove, (Parmenter being dead,) that Parmenter when he made that monument or corner, stated, as a reason for not running quite to the Harrow monument, that there was so much dispute about the line, that he would not run further, so as to be certain of being within bounds. The evidence was objected to and rejected, to which there was an exception.
Although the evidence offered was hearsay, yet it constituted a part of the transaction which was the subject of inquiry. The act of Parmenter in stopping short of the Harrow monument, unexplained, would be more or less strong, to show, that the line run by him was not the true line between the two tracts, as it did not reach the monument called for. It was, therefore, material to show some reason, if it existed, why Parmenter did stop short of that monument, consistent with the principal fact, that his line, if run, would reach it; therefore I think to show the nature of Parmenter’s act in stopping short of it, or his motives in so doing, proof of what he said at the time of doing it, was admissible evidence for the pur pose of showing its true character. (Cow. and Hill’s Notes to Phillip’s Ev. 1 part. 585, note 444; 1 Green. Ev. § 108, n. 2.) On this ground, I think the judgment of the supreme court should be reversed, and a venire de novo be awarded.
Gardiner, J.One Parmenter was employed to run the line between the Kempe and Wolf Tracts, some two years before the trial; by whom does not very satisfactorily appear, but probably by Morgan, who was in possession, under Wood, the plaintiff below, under a contract for the purchase of the premises in question or some part thereof. A map made by Par*171menter was used upon the trial. It appears that this surveyor in running the said line, stopped one or two chains short of the Harrow monument, a terminus which was in the same line, and which the plaintiff attempted to show was an original monument. Parmenter established a new monument at the place where he stopped. He died some time before the trial. O.ne ■ Morgan was called as a witness, and the plaintiff proposed to show by him, “ that Parmenter when he made his corner stated as a reason for not running quite to the Harrow monument, that there was so much dispute about the line that he would not run further, so as to be sure that he was within bounds.” This was objected to, and overruled by the circuit judge, and the plaintiff excepted.
The establishment of the monument was a part of the duty of the surveyor. The reasons for the act given at the time of its performance, and in explanation of it, were a part of the res gestee, and competent evidence. A pile of stones of themselves indicate nothing. Whether they were designed- to denote a corner, or the course of a line, or were put together for the purpose of marking the spot from which the survey was afterward to be continued, can in the nature of things be learned only from the declarations of those engaged in the survey. A line mark upon a tree, the map itself which was produced in evidence at the trial without objection, are merely declarations and explanations of the survey. And it follows that if Parmenter was authorized to establish a monument at all, that authority included the right to declare the purpose for which it was established. This was in effect the proposition of the plaintiff. He proposed to show that the surveyor, when he fixed the monument, placed it in a particular spot, not because he had run the distance called for by the deed, or because his survey led him to suppose that it was the corner of the land as originally surveyed, but from an avowed intention to avoid all controversy thereafter by stopping short of the true corner of the tract. In Barclay v. Howell, (6 Peters, 504,) one Wood was employed to fix upon the plan of the town of Pittsburgh, and to survey it. His declaration that a particular street should be left open to the river’s edge, for the use of the town, was *172held admissible as a part of the res gestee, as explanation of the act done. The principle is the same, whether the declaration relates to a street or monument. It is true that the evidence of the survey of Parmenter wqs offered by the plaintiff; no question, however, was made as to its competency at the trial, and of course cannot be entertained here. We must assume that it was properly admitted, and the declaration of Parmenter should have been received as a part of the survey. (United States v. Brig Burdett, 9 Peters, 689; 2 Denio, 141.)
Decision.—Judgment affirmed.
Bronson, Ruggles, Jones, & Johnson, Judges, were for affirmance generally. "
Jewett, Ch. J., Gardiner, Wright, & Gray, Judges, were for reversal, upon the ground stated in the opinions of Judges Jewett and Gardiner.
.Note. The court affirmed the judgment in this case with an expression of approval of the opinion of the circuit judge upon one point only, to wit: that the law of 1833, ch. 271, § 19, had not changed the statute, (2 JR. S. 325, § 74,) in relation to the reading of deeds in evidence; that the county clerk’s certificate was still necessary.
Reported 1 Comstock, 77.
Note. Jewett, J., arrives at the following results: That although the facts in the case did not warrant so strong an expression of opinion, in the charge of the circuit judge, as to the controlling effect of the deeds, yet, that the exception to the charge did not raise any legal question.
There was no error in allowing the defendant to give evidence of the interest of the witness Morgan in the event of the suit, to affect his credit.
Nor in rejecting the deed offered in evidence, on the ground, that it had been acknowledged in another county, before a commissioner of deeds, and that there was no certificate required by the statute.
That the existence of a monument, making a boundary between lands, could not be proved by general reputation.
That the declarations of a chain-bearer, (now dead,) in running a boundary line, made not at the time of the running of the line, but afterward, is not a part of the res gestee, and are inadmissible as evidence
It is otherwise, where such declarations are offered to be proved as made at the time of the survey.
And on the same principle, the declarations of a surveyor, made subsequent to the survey, are inadmissible as evidence to show a boundary line or monument, although he is claimed to have been the agent of both parties
Because, the declarations of an agent must be confined to such statements as *173are made by him, either at the time of the act done by him as such, or acting within the scope of his authority.
But the declarations of a surveyor, (now dead,) made at the time he made the survey, giving certain reasons for stopping the course and distance where he did, &c., is competent evidence. It is a part of the res gestee.
Gardiner, J., discusses but one point in his opinion, and arrives at then same conclusion thereon as Judge Jewett, to wit: That if a surveyor was authorized to establish a monument at all, that authority included the right to declare the purpose for which it was established. And the plaintiff had a right to show such declarations as a part of the res gestee.