The only exception is to the admission of the declarations of Wyman as to the character of the bound or monument he pointed out. His acts in going upon the land and pointing out the monuments were admitted without objection.
The declarations were not competent evidence. Among the *176exceptions to the rule excluding hearsay testimony are declarations respecting ancient boundaries. In this commonwealth, the declarations of persons not living at the time of the trial, made while in possession of land owned by them, and when in the act of pointing out their boundaries, with respect to such boundaries, where nothing appears to show an interest to deceive or misrepresent, have been admitted as evidence. Daggett v. Shaw, 5 Met. 223. If a suit or controversy were then existing, as to the boundaries, between the owners of the adjoining lots, such evidence would be excluded. Ib.
The person, whose declarations were offered in the case at bar, was not at the time, and never had been the owner of the land; did not then or ever claim to be the owner; was not, and never had been in the possession of the estate, as tenant or otherwise. He does not therefore come within the rule of any case settled in this commonwealth. In the case of Van Deusen v. Turner, 12 Pick. 532, the person whose declaration was admitted had before been the owner of the land, though in right of his wife. The case at bar therefore does not fall within it. The decision in the case of Van Deusen v. Turner was a departure from principle, and the case has been regarded by the court and the profession as wrongly decided.
Under the changes in the law of evidence, by which all persons interested, and all parties even, have become competent witnesses, there is no occasion to extend the exceptions to the rule which requires for testimony the sanction of the oath of him upon whose credit the fact rests, and the salutary test of cross-examination. See the recent case of Papendick v. Bridgewater, 5 El. & Bl. 176. Exceptions sustained.