IRA FULLER ads. DEN EX DEM. NATHANIEL SAXTON, ET AL.
1. Where the plaintiff applies for a struck jury, no notice of the application need be given to the defendant, unless the latter have a rule by proviso, in which case two days notice of the intended application must be given.
2. The defendant-, unless he have a rule by proviso, cannot enter a rule for a struck jury without giving two days notice to the plaintiff.
3. Where a party upon the trial objects to the jury being sworn because no legal notice of their meeting to view the premises has been served upon him, the Judge holding the Circuit has a discretionary power, -for this cause to postpone the trial, or to order it on.
4. In an action between two parties, an entry in the books of account of one of them signed by a third person since deceased, is not competent evidence to prove that the latter acknowledged that he acted as the agent of the party in exercising various acts of ownership over the premises in dispute.
5. A recital in an ancient deed or will, of any antecedent deed or document consistent with its own provisions, will, after the lapse of a long period of time, be presumptive proof of the former existence of such deed or document; the more especially where no deed, declaration, act or claim is shown to rebut such presumption.
*62This action was brought to recover part of a tract of eight hundred and eighty four acres of land situate in the county of Sussex. It was tried at the Circuit Court for that county, held in August 1841, when a verdict was found for the plaintiff. On the return of the postea, the defendant obtained a rule to show cause, why the verdict should not be set aside and a new trial granted.
Upon the return of the venire facias, at the trial, the defendant objected to the jury being sworn, on the ground that no notice had been given to him or his attorney of the application at bar for a struck jury, the same having been granted without notice, and because no legal notice had been given of the meeting of the jury to view the premises. The court overruled both objections and the jury was sworn.
In support of his title the plaintiff gave the following evidence:
A certificate of a return to Johu, Daniel and William Coxe, for eight hundred and eighty-four acres, dated the 20th day of April, 1745, and duly recorded, which return was made under a warrant of location to the same persons for twenty thousand acres from the council of proprietors of West Jersey and dated in the year 1742.
An exemplified copy of the will of Daniel Coxe, dated in 1757, and proved in 1758, containing a devise to his daughter Grace of “ his lot .of eight hundred and eighty-four acres, an equivalent tract marked in division deed A.”
An inquisition taken in Hunterdon county, on the 3d day of May, 1779, against John Tabor Kemp and Grace, his wife as “ adherents of the British” and a judgment of forfeiture against them in the Hunterdon Court of Common Pleas, entered on the first Tuesday of August, 1779.
An order of the Common Pleas of Sussex county, by virtue of the above stated judgment, dated the 19th day of August, 1786, directed to J. Gaston, commissioner to sell forfeited estates, commanding him to make sale.
A process from the same court, upon the same judgment, tested in August, 1814, and directed to Armstrong, Edsale and Bidleman, commissioners to sell forfeited estates; together with their return of their sale of eight hundred and eighty-four acres on the 24th day of November, 1814, to John Johnson, for six *63hundred and fifty dollars and their deed to Johnson for the tract dated the 24th day of May, 1815.
This title was brought down by several mesne conveyances to the lessors of the plaintiff.
William Armstrong, a witness called by the plaintiff, testified that he was one of the commissioners; that they sold this tract as thejands of J. Tabor Kemp and Grace his wife, forfeited to the State, and that Grace Kemp was the daughter of Daniel Coxe. On his cross examination, he said he did not know her; but it was reported that she was the daughter of Daniel Coxe, though he had not heard it from any member of, or person intimate in, the family. The remainder of the plaintiff’s testimony related to the payment of taxes, cutting timber and other acts of possession in and upon the premises in dispute.
The defendant gave in evidence a survey and return to John Lock, for ninety acres of land, dated the 8th of January, 1808, and another to the same person for four hundred acres, dated 13th January, 1808, both of which were duly recorded ; these tracts formed part of the eight hundred and eighty-four acre tract and from these surveys and returns he deduced his documentary title. The remaining part of his evidence also related to the question of possession. Among other matters he offered in evidence his book of account or original entries, containing a settlement between himself and Thomas Armstrong, signed by both. Armstrong being dead, this evidence was offered to prove that whilst he exercised various acts of ownership over the premises in dispute, such as cutting timber and renting them out, he acted as the agent of the defendant and recognized him as the owner. This evidence was overruled by the court.
The judge among other things charged the jury, that the devise to Grace Coxe in the will of her father Daniel Coxe, gave her a color of title and as John and William Coxe made no claim to the lands for thirty-one years before the judgment of forfeiture and for sixty years afterwards, the jury might presume that during the lifetime of Daniel, there had been a severance of the joint-tenancy and the entire interest had been vested in him and advised the jury so to presume and if they did so, the title of Grace Coxe under the will was good.
He also charged, that the testimony of Armstrong was not *64sufficient to prove that Grace Coxe and Grace Kemp was the same person ; but that as the metes and bounds of the survey devised to Grace Coxe were the same as those in the deed from the commissioners to John Johnson, the jury might presume that Grace Coxe and Grace Kemp, was the same person, and that the judgment of forfeiture and deed to Johnson, were prima faeie evidence that at the date of the deed, the title to the land was in the State and was by it conveyed to Johnson and advised the jury so to consider it.
Daniel Haines in support of the rule.
P. D. Vroom against the rule.
The opinion of the Court was pronounced by
Nevitjs, J.
Several reasons have been assigned and urged in support of this rule which I consider in their order presented. The defendant insists in the first place, that the court erred in overruling the objection to the jury’s being sworn, because there was no notice of the application for a special jury or of the meeting of the jury of view. The statute does not require a notice of application for a rule for a special jury, nor is it required by rule of court.” The rule of court provides, that a defendant shall not enter a rule for a struck jury without two days notice to the plaintiff. But this does not apply to the plaintiff, unless the defendant has a rule by proviso and then the plaintiff shall give two days notice of such application. The other part of the objection may be answered by the fact stated in the argument and not denied, that the defendant was actually present at the view and took part in' it, and it further appears from the whole case, that there was no necessity for a view at all. Be that however as it may, the judge at the Circuit had a discretionary power for this cause to postpone the trial, or order it on, and it does not appear that he exercised it improperly or that any prejudice resulted to the defendant.
It is next insisted, that the judge erred in overruling the defendant’s book of account. I do not think so. As between the defendant and Armstrong, or persons claiming under either, it might be lawful evidence but it is not evidence to affect the rights of third persons. No one can tell what motive may have induced these entries. It is not like the books of a parish clerk or *65other public officer, or of a physician, but here is a book of the party himself, containing evidence of his own making and the assent of Mr. Armstrong, to some of its entries, cannot legalize it. Armstrong’s admissions in his lifetime, not under oath, of his agency or relation to the defendant could not be evidence against a third person and these entries are nothing more. The book was properly overruled.
The next objections insisted upon by the defendant, are to that part of the judge’s charge above recited. And in this too I think there was no error. The lands in dispute were returned to Daniel, John and William Coxe, in 1745. Twelve years after, Daniel made his will devising the whole tract to his daughter Grace, and in that devise he distinctly refers to a deed of partition, he calls this the “ equivalent tract, and marked A. in the deed of division.” A recital in an ancient deed or will of any antecedent deed or document consistent with its own provisions, will after the lapse of such a period be presumptive proof of the former existence of such deed or document, and especially where no deed, declaration, act or claim is shown to rebut such presumption. In the present case this presumption is strengthened by the fact, that other lands were returned to Daniel, John and William Coxe and held by them jointly in 1745 and this being called, the “ equivalent tract ” would indicate that it had fallen to his lot in some partition of such lands; add to this Daniel’s open claim of title to the whole, shown by the fact of his devising it, and not the slightest evidence of any claim being advanced by John or William or any person in their name for the long period of eighty years, and the judge was clearly right in instructing the jury, that they might presume a severance of this joint tenancy, and that the entire interest in these lands had become vested in Daniel Coxe.
Nor do I perceive any error in his instructions to the jury, that the evidence would warrant them in presuming that Grace Coxe was the person whose lands were confiscated in 1779 by the name of Grace Kemp. There was abundant evidence to warrant this inference. The lands devised to Grace Coxe and the lauds sold under the judgment of forfeiture, as the lands of J. Tabor Kemp and Grace his wife, are identical in description. The tract was known as far back as the memory of witnesses *66could reach as the Kemp tract, and I think the evidence of Mr. Armstrong, one of the commissioners, that Grace Kemp was reputed to be the daughter of Daniel Coxe, was competent and legal and entitled to weight, though he could not trace such reputation to the family. The jury were not misled upon this point. I deem it unnecessary to notice the further objections to this charge, as I do not find them sustained by the law or evidence.
The rule discharged with costs.