he acted in that capacity (1). And where the words imply merely ignorance or negligence, without admitting the plaintiff to be qualified, and the plaintiff avers that he is qualified, he will be bound to prove his qualification (2), 174 SECT. VII, That Hearsay is not Evidence, Ir is a general principle in the law of evidence, that, if any fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth; and the reason of the rule is, because evidence ought to be given under the sanction of an oath, and that the person, who is to be affected by the evidence, may have an opportunity of interrogating the witness as to his means of knowledge and concerning all the particulars of the fact. Hearsay evidence of a fact, therefore, is not admissible (a). And the same principle is applicable to statements in writing, no less than to words spoken: whether spoken or written, they are equally inadmissible in evidence. The only difference between them in this respect is, that there is a greater facility of proof in the one case than in the other; a written account is proved to be genuine, by proof of the hand-writing; but the genuineness of mere oral declarations must depend upon the memory and accuracy of the witness, who professess to repeat them. (1) Pickford v. Gutch, 8 T. R. 305., n. (a).; Moises v. Thornton, 8 T. R. 303. In this last case, there was also an averment, that the plain tiff (had taken the degree of doctor of (a) Vide Overseers of Germantown v. Overseers of Livingston, 2 Caines' Rep. 107. Jackson d. Watson v. Cris, 11 Johns. Rep. 437. Claiborne v. Parrish, 2 Wash. 146. Gray v. Goodrich, 7 Johns. Rep. 95. To this general rule there are some exceptions, which Exceptions. will be separately considered. First, with regard to hearsay on questions of pedigree. In case of pedigree, &c. "On inquiring into the truth of facts, which happened a long time ago, the courts have varied from the strict rules. of evidence applicable to modern facts of the same description, on account of the great difficulty of proving those remote facts in the ordinary manner, by living witnesses. On this principle, hearsay and reputation (which latter is the hearsay of those who may be supposed to have known the fact, handed down from one to another,) have been admitted as evidence in cases of pedigree (1) (a).” Thus, declarations of deceased members of the family are admissible evidence to prove relationship, as, who was a person's grandfather, or whom he married, or how many children he had, or as to the time of marriage or of the birth of a child, and the like, "of which it cannot be reasonably presumed, that better evidence is to be procured." In ancient times, while the feudal system prevailed, great facilities of establishing descents were afforded by means of inquisitions post mortem. The heads of families, upon these occasions, made solemn declarations, which were preserved as matter of record (2). But, these having now grown into disuse, it is often extremely difficult to prove a pedigree; and recourse must be had, from necessity, to the best evidence that the nature of the subject will admit. *In a late case, proof by one of the family, that a particular person had many years before gone abroad, and was supposed to have died there, and that the witness had not heard in the family of his having married, was considered by the Court of King's Bench, good prima facie evidence of the person's death without lawful issue (1). (1) Per Le Blanc, J. in Higham v. Ridgway, 10 East 120. And see the Chancellor's judgment in the case of Vowles v. Young, 13 Ves. jun. 143. (2) 13 Ves. jun. 143. (1) Doe dem. Banning v. Griffin, 15 East 293. (a) Vide Strickland's Lessee v. Pool, 1 Dall. 14. * 175 It is not, however, every statement or tradition in the family, that can be admitted in evidence. "The tradition,” said Lord Eldon in the case of Whitlocke v. Baker (2), "must be from persons having such a connexion with the party to whom it relates, that it is natural and likely, from their domestic habits and connexions, that they are speaking the truth, and that they could not be mistaken. Declarations in the family, descriptions in wills, descriptions upon monuments, in bibles (a) and registry books (b), are all admitted upon the principle, that they are the natural effusions of a party, who must know the truth, and who speaks upon an occasion, when his mind stands in an even position, without any temptation to exceed or fall short of the truth." Lord Thurlow appears to have adopted the rule with the same limitations. It was his opinion, (as the Chancellor stated in the late case of the Berkeley peerage, where this subject was much discussed,) that declarations made for the express purpose of being given in evidence, on a question of pedigree, could not be received. If, for example, he said, a person were to take up his family bible, and, conceiving the idea of its being afterwards produced in evidence, were to write down uno flatu the births and deaths of his children, such an entry would not be admissible (c). (2) 13 Ves. 514. (a) Vide Douglas's Lessee v. Sanderson, 2 Dall. 116. (b) So, the original registry kept by a religious society of the births and deaths among its members is evidence. Stoever v. Whitman's Lessee, 6 Binney 416. (c) In an action of ejectment for land in the state of New-York, the lessors of the plaintiff resided in England, and claimed to be heirs of the person who died seised of the premises: a witness deposed at the trial, that he knew the ancestor, and had charge of the land as his agent, and corresponded with him, and after his death with the lessor, who sent him a power to act for him as heir and devisee, and that his information was also derived from persons acquainted with the family of the lessors; it was held that Descriptions in family bibles have been mentioned only by way of example. The admissibility of such entries, it is scarcely necessary to observe, can in no degree depend *upon the circumstance of their being inserted in the family bible, though on that account the statement may be entitled to greater consideration. A memorandum inserted in any other book, by one of the family, may be given in evidence. So, a will by an ancestor is evidence on a question of pedigree, (though it be found cancelled, and not known to have been proved or acted upon,) if it appears to be treated as a paper relating to the family (1). And recitals in family deeds, monumental inscriptions, engravings on rings, old pedigrees hung up in a family mansion, and the like, (in which it is improbable that a description would be suffered to continue, if erroneous,) are all of them admissible upon the same principle (2). Declarations made by a deceased husband, as to the legitimacy of his wife, are evidence, though he was not related to her by blood; for the husband must be supposed to have more intimate knowledge on that subject, than a distant relation (3). But the opinion of deceased neighbours, or of acquaintances of the family, are not evidence on a question of pedigree (4); nor is the hearsay of a relative to be admitted, when the relative himself can be produced (5). (1) Doe d. Johnson v. Lord Pembroke, 11 East 505. (2) 13 Ves, jun. 144. Bull. N. P. 10 East 120. (4) 13 Ves. jun. 147. 514. 3 T. R. 723. See Bull. N. P. 295. 1 Maul. & Sel. 689. 14 East 330. (5) Pendrel v. Pendrel, 2 Str. 924. (3) Vowles v. Young, 13 Ves. jun. Bull. N. P. 113. Harrison v. Blades, 3 Campb. 457. 233. Cowp. 594. 148. the knowledge thus derived by the witness of the death of the ancestor and heirship of the lessor, was evidence of pedigree sufficient to go to the jury. Thompson, J. in delivering the opinion of the court observes, that the books furnish us with no definite or precise rule on the subject: almost any circumstances which are calculated to show a general reputation and afford reasonable grounds of belief, are received as evidence of pedigree. Jackson d. Ross & others v. Cooley, 8 Johns. Rep. 128. * 176 * 177 The declarations of a deceased member of the family are not to be admitted, unless, as was before mentioned, they have been made under circumstances, when the relation may be supposed without an interest and without a bias. If they were made on a subject in dispute, after the commencement of a suit, or after a controversy preparatory to one, they ought not to be received in evidence, on account of the probability, that they were partially drawn from the deceased, or perhaps intended by him, to serve one of the *contending parties. There has been some difference of opinion on this subject. In a case, reported in Viner's Abridgement (1), Ch. B. Reynolds refused to admit declarations, which had been made at a time when the point had become the subject of controversy. On the other hand such evidence was received by Lord Camden (2); and Lord Mansfield in the case of Goodright on the demise of Stevens v. Moss (3) was of opinion, that an answer* by a deceased mother to a bill filed against her, stating the time of a child's birth, might be admitted as evidence on the footing of a declaration. On the trial of the cause, Mr. Baron Eyre rejected this answer, together with the general declarations of the father and mother; in consequence of (1) Dev. Sp. Ass. 1731. Vin. Ab. Ev. [T. b. 91.] (2) Hayward v. Firmion, cor. Lord Camden, Sitt. after Tr. term 1766, cited by Lawrence, J. in the Berkeley peerage case; and see * The answer is described by the reporter of this case as an answer in Chancery. It appears from an inquiry, which was made in the case of the Berkeley peerage, that proceedings had been instituted in the Court of Chancery, and that afterwards a bill was filed in the Exchequer, by the youngest son, claiming as a legitimate child, against the mother who was administratrix of her deceased husband. The mother in her answer averred, that the complainant was born before marriage and illegitimate. Now as she was entitled as administratrix to a distributive share of the husband's effects, and was therefore interested to defeat the right of any other persons, who might claim a part under the distribution, her answer most clearly ought not to have been admitted. This objection however was not. adverted to; nor does it seem to have occurred, that the statement in the answer was inadmissible, as having been made after the commencement of a suit. |