Jackson v. Vandyke

1 N.J.L. 32

Opinion

Per Cur.

There was a rule for a view; the plaintiff refused to join in it or attend; this map is, therefore, ex parte, and cannot be shown to the jury.

The plaintiff offered a map of the premises in dispute, made upon a former ejectment between the same parties, which had been referred to arbitrators and a view taken.

Per Cur.

This must be rejected also. The plaintiff, by-refusing to join in the view, has prevented the jury from having seen the lands in question, and thereby put it out of their power to detect misrepresentations or mistakes.

The plaintiff offered the will of one Neil, under whom he claimed, dated October 30th, 1734, proved by two witnesses, who swear it was executed in their presence, but the proof is totally silent with regard to the other, or third witness.

[29] This was objected to, because by the act of the legislature of New Jersey, passed 17th of March, 1713-14, (Paterson’s Laws of N. J. 5,) it was required that the testator should execute his will in the presence of three witnesses. Sed non allocatur — Per Cur. The will is shown to be signed by three witnesses; the proof is according to the custom which has been long recognized — the will is evidence for the jury,

(a)

The plaintiff offered one Corshaw as a witness.

Per Cur.

He holds part of the land in controversy, and cannot be admitted as a witness to the title.

He then offered a map corresponding, as was stated, with a deed of partition that had been given in evidence, alleging that it had been delivered with the deed, and that possession had gone with it.

Per Cur.

It is evidence against the parties themselves, but it cannot be admitted for them against one claiming in opposition to their title.

C

.) The doctrine laid down by the court is directly at variance with the decisions of other courts and the now acknowledged law. See particularly 4 Day's Conn. Rep. 51; Curtiss v. Strong, Comyn’s Rep. 91; Hilliard v. Jennings, Carthew 514; 1 Ld. Ray. 505; 2 Bay. 484, Hopkins v. Albertson. See Pat. Laws of N. J., fol. 5, § 2, and fol. 397, § 7, which make the records of wills and transcripts of record certified, as good evidence as if the will was produced and proved.