Sargent, J.
The first objection, that to the caption of John Page’s [353] deposition, cannot be sustained. Its use on a former trial without objection is considered as a waiver of all merely formal objections, whether to the deposition itself or to the caption. Burnham v. Wood, 8 N. H. 337; Bartlett v. Hoyt, 33 N. H. 162; Reed v. Spaulding, Sullivan Co. January Term, 1863. And where the minutes of the counsel differed or were silent upon the point, the minutes of the presiding judge before whom the former trial was had, would be held conclusive.
We think, after evidence had been introduced tending to show that George W. Wendell acted as the general agent of John Wendell, in the care, management and sale of all his lands in Springfield, and that John had never been known to disavow any of the acts of said George in such agency, that interrogatory seventeen and the answer to the same in John Page’s deposition, in regard to said George's admission as to where the true line was between John Wendell, his principal, and Moses Eastman, which would be the line between the parties in this case, was properly admitted, with the instructions that were given to the jury on that point, as having some tendency to prove that the true line was then known and understood to be by John Wendell and his agent, where the defendant now claims it to be.
We think the evidence was properly introduced as tending to show an admission by one whom the jury might properly find, from the other evidence in the case, to have been authorized to make it in behalf of plaintiff’s grantor in relation to this line. And the question as to the authority to make the admission was properly referred to the jury, who, if they found the agent in this matter was acting within the scope of his authority, would consider the testimony in relation to his admission,otherwise they would lay it out of the case.
The instructions requested were properly withheld, as there was no state of facts proved to which the ruling would apply, otherwise the instructions would have been given. If the testimony in this case had shown that the agent had only been authorized to sell land and take pay therefor, then the instructions asked might have been proper, but as the evidence tended to show more than that, it became immaterial what the rule might be in a state of facts that did not exist in this case.
The evidence shows that Benjamin Colby, deceased, had been conversant with the lands and bounds in the neighborhood, and his statement in regard to the bounds of this lot made to a third person during Colby’s life, in relation to the northwest corner of defendant’s lands, were received without objection. But the evidence went further than this, and defendant stated not only what Colby said about the bound, but that he also said that certain pine stumps on the land in dispute were cut by Moses Eastman and that said Colby assisted Eastman in drawing off the trees. This was admitted subject to plaintiff’s exception. This was, no doubt, an important fact in its bearings on the case ; that Moses Eastman, the defendant’s remote grantor, cleared the land in dispute many years ago; that he was in possession performing acts of ownership of a public and notorious character, such as would have been likely to attract the notice of the true owner, if Eastman did not own it; the fact that [354] said Eastman cut and removed these large and valuable pine trees in the presence, and by the assistance, of Colby, who had been, and perhaps then was, Wendell’s agent to see that no trespasses were committed on his lands, would be important and perhaps vital for the defendant to prove. But being thus important, such fact, if proved at all, must be proved by competent testimony. But we know of no rule of evidence by which such facts, can be proved by hearsay or by reputation. It is not claimed that Colby’s statements were made as Wendell’s agent, in a way to bind Wendell; and his statements in relation to these matters, not under oath even though since deceased, are clearly inadmissible. The evidence of reputation is confined to monuments and lines and boundaries, but does not extend to acts of ownership, or possession, or to any other facts necessary to make out the defendant’s case. On this ground the verdict must be set aside.
As the pleadings stand, it was left to the jury to find not only which termini were the correct ones, but also to find where the defendant’s line run between the termini. If they found the termini, as claimed by the defendant, to be correct, they might start northerly and go to Bog Brook, thence on the southerly side of the Main Bog, and thence southerly or southwesterly to the Evans corner, and making a large circle to the north of a straight line; or they might have gone anywhere between that line and a straight line or still further south than a straight line, wherever they should find "the southerly side of the boggy ground on said premises” to be. This was the issue tendered in the plea and joined by the plaintiff, and the verdict will not now be set aside because' the jury found this line in one place rather than in another.
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Sargent, J.
The first objection, that to the caption of John Page’s [353] deposition, cannot be sustained. Its use on a former trial without objection is considered as a waiver of all merely formal objections, whether to the deposition itself or to the caption. Burnham v. Wood, 8 N. H. 337; Bartlett v. Hoyt, 33 N. H. 162; Reed v. Spaulding, Sullivan Co. January Term, 1863. And where the minutes of the counsel differed or were silent upon the point, the minutes of the presiding judge before whom the former trial was had, would be held conclusive.
We think, after evidence had been introduced tending to show that George W. Wendell acted as the general agent of John Wendell, in the care, management and sale of all his lands in Springfield, and that John had never been known to disavow any of the acts of said George in such agency, that interrogatory seventeen and the answer to the same in John Page’s deposition, in regard to said George's admission as to where the true line was between John Wendell, his principal, and Moses Eastman, which would be the line between the parties in this case, was properly admitted, with the instructions that were given to the jury on that point, as having some tendency to prove that the true line was then known and understood to be by John Wendell and his agent, where the defendant now claims it to be.
We think the evidence was properly introduced as tending to show an admission by one whom the jury might properly find, from the other evidence in the case, to have been authorized to make it in behalf of plaintiff’s grantor in relation to this line. And the question as to the authority to make the admission was properly referred to the jury, who, if they found the agent in this matter was acting within the scope of his authority, would consider the testimony in relation to his admission,otherwise they would lay it out of the case.
The instructions requested were properly withheld, as there was no state of facts proved to which the ruling would apply, otherwise the instructions would have been given. If the testimony in this case had shown that the agent had only been authorized to sell land and take pay therefor, then the instructions asked might have been proper, but as the evidence tended to show more than that, it became immaterial what the rule might be in a state of facts that did not exist in this case.
The evidence shows that Benjamin Colby, deceased, had been conversant with the lands and bounds in the neighborhood, and his statement in regard to the bounds of this lot made to a third person during Colby’s life, in relation to the northwest corner of defendant’s lands, were received without objection. But the evidence went further than this, and defendant stated not only what Colby said about the bound, but that he also said that certain pine stumps on the land in dispute were cut by Moses Eastman and that said Colby assisted Eastman in drawing off the trees. This was admitted subject to plaintiff’s exception. This was, no doubt, an important fact in its bearings on the case ; that Moses Eastman, the defendant’s remote grantor, cleared the land in dispute many years ago; that he was in possession performing acts of ownership of a public and notorious character, such as would have been likely to attract the notice of the true owner, if Eastman did not own it; the fact that [354] said Eastman cut and removed these large and valuable pine trees in the presence, and by the assistance, of Colby, who had been, and perhaps then was, Wendell’s agent to see that no trespasses were committed on his lands, would be important and perhaps vital for the defendant to prove. But being thus important, such fact, if proved at all, must be proved by competent testimony. But we know of no rule of evidence by which such facts, can be proved by hearsay or by reputation. It is not claimed that Colby’s statements were made as Wendell’s agent, in a way to bind Wendell; and his statements in relation to these matters, not under oath even though since deceased, are clearly inadmissible. The evidence of reputation is confined to monuments and lines and boundaries, but does not extend to acts of ownership, or possession, or to any other facts necessary to make out the defendant’s case. On this ground the verdict must be set aside.
As the pleadings stand, it was left to the jury to find not only which termini were the correct ones, but also to find where the defendant’s line run between the termini. If they found the termini, as claimed by the defendant, to be correct, they might start northerly and go to Bog Brook, thence on the southerly side of the Main Bog, and thence southerly or southwesterly to the Evans corner, and making a large circle to the north of a straight line; or they might have gone anywhere between that line and a straight line or still further south than a straight line, wherever they should find "the southerly side of the boggy ground on said premises” to be. This was the issue tendered in the plea and joined by the plaintiff, and the verdict will not now be set aside because' the jury found this line in one place rather than in another.
It would seem from 'all the facts disclosed in the case, that here it was not very certain where the southerly side of the boggy ground, was located, or how far the boggy ground extended. And, although in some cases a bog or boggy ground may be so located and so surrounded as to be a good monument, and a line which, should run by the southerly side of it would be as well defined and as easily and as certainly located as though it run to any other fixed monument, yet in other cases it might be difficult to fix the line that should divide the boggy ground from that which was not boggy; and it would seem that this was the fact here. But the defendant should locate the line to which he claims in such a way that it can be found and followed upon the land, and that if the jury find a verdict in his favor and establish the line in the words in which he has described it in his plea it would make a definite and distinct boundary upon the land. But here if the jury had found a verdict for the defendant, and established his line just as he had described it in his plea, it would have made nothing certain except the termini. The line might have varied any where between these termini, according to the opinion of different juries or different individuals as to the extent of the boggy ground. Here there may have been nothing appearing on the face of the plea that could necessarily make it bad on demurrer, because the boggy ground might be so well defined that a line running from a given monument by the southerly side of such boggy ground to another given monument might be as well traced and defined and as fixed and definite [355] as if the middle monument had been an oak tree, properly described. But this case falls clearly within the principle- of Wells v. Jackson Company, 44 N. H. 61, where certain facts exist, which, when in connection with the plea, will make it impossible- to frame a replication raising the issue intended to be tried upon the plea as filed, and where á motion might properly be made to reject the plea for that reason; whichi motion, upon the facts being shown, would be granted, and the defendant would be compelled to amend his plea by locating not only the termini, but the whole course of his line by well defined monuments. In other words, he would be compelled to set a stake where he claimed the southerly side of the boggy ground to be, and having thus definitely located his line he must stand or fall by the line thus chosen. Then a verdict for the defendant which should follow the line described in his plea and in the same words in which he has there described it, would be the fixing of a definite line and boundary, and would be a sufficient verdict.
If the defendant has doubts as to where his line is, he may locate it in such a way at least, as to make himself safe, if he chooses; but when he has located his line he must prove up to that line or lose his case. As the issue was joined in this case, the verdict may have been well enough, at least, it would hardly be set aside on that account, nor because it was against the evidence. But, as the verdict is to be set aside on another ground, the plaintiff may do well before another trial to be prepared to prove to the court, that "the southerly side of boggy ground” in this case is a very uncertain monument, which may be here or may be there, and, on motion to reject the plea, compel the defendant to locate "the southerly side of boggy ground” by setting- a stake- or stakes or some other fixed monument or monuments where he-claims his line should go, so that a jury shall only be obliged, if they find a verdict for the defendant, to describe the line as the defendant describes it in his plea, which shall be a sufficient location of the line and an intelligible description of the same.
New trial granted.