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such feeling as is produced by some subsequent cause, or some cause not in being when the mortgage was executed.

In the case of Smith v. Post, 1 Hun, 516, the action was to recover property which had been levied upon by virtue of an execution, and which property had been sold by virtue of a chattel mortgage in favor of the defendant. In this case the General Term of the Third Department held that the provision in the mortgage that in case of default in payment, or in case the mortgagee should at any time deem himself unsafe, he might take possession of the property and sell the same, was for the benefit of the mortgagee, and authorized him to take possessionwhen there was default, or when in his judgment he deemed it best for the safety of his demand. And no proof was required to show that he considered himself unsafe, as the legal presumption would be that such was the fact when possession was taken before it was due.

Thomas Mort. 443, states the rule to be that "where there is a clause in the mortgage which authorizes the mortgagee to take possession at any time when he may deem himself unsafe, the mortgagee may take the property away from the mortgagor at any time when he may think it best for his own interest, and if the power contained in the mortgage justifies such a course, he may sell the property and thus bar the equity of redemption even before the debt becomes due."

Jones, in his new edition just published on Chattel Mortgages, at section 431, says: "A provision that the mortgagee may take possession whenever he shall deem himself unsafe is for his benefit, and authorizes him to take possession, when in his judgment he deems it best for his safety to do so; and upon his taking possession before default no proof is required to show that he considered himself unsafe, as the legal presumption is that such was the fact. He is made the sole judge of the happening of the contingency upon which he may take possession. It is immaterial whether his apprehensions of loss be well or ill founded. Being entitled to possession of the property for such cause, he may maintain an action for the possession of it against any one who detains it, or trover for the conversion of it. He may moreover take possession without making any previous demand for payment. Such a clause vests in the mortgagee an absolute discretion to take possession of property when he may deem himself insecure, and the exercise of this right does not depend upon the fact that he has reasonable ground for deeming himself insecure. Nor is such a contract a hard and unconscionable one, especially as the right of possession passes with the legal title by force of the mortgage, in the absence of any agreement to the contrary. When the parties have made their own contract the courts will not set them aside and make a new one for them. Such a provision in a mortgage is a contract right, and therefore it cannot be impaired by subsequent legislation. If the mortgagor wishes to retain possession of the property until the mortgagee shall have reasonable grounds to deem himself insecure, he can insert, or have inserted, a stipulation to that effect in the mortgage; or if he wishes to go still further, and retain possession of the property until the mortgagee shall become in fact insecure, he can have a stipulation put into the mortgage to that effect. But if he chooses only to have inserted in the mortgage a clause that he shall have the right to possession of the property until the mortgagee shall deem himself insecure, then he can only retain the property until the mortgagee does in fact deem himself insecure; and he has no right to question the grounds upon which the mortgagee entertains such feelings of insecurity. He cannot say to the mortgagee, 'You are unreasonable; you have no

right to feel insecure; there are in fact no grounds for such feeling of insecurity.' The only question at all material in such a case is whether the mortgagee does in fact so feel; and if the mortgagee claims that he has such a feeling, and afterward on the trial testifies that at the time he took possession of the property he had such a feeling, and if upon the facts of the case it is possible at all to believe that any person, however timid and fearful he might be, might have had such a feeling, then it should be held that the mortgagee had a right to take possession of the property. Under a clause authorizing the mortgagee to take possession whenever he should deem himself insecure, he is entitled to exercise this right if he has good reason to think, and did think, that he had been overreached in regard to the value of the property."

We have thus briefly referred to the principal decisions in our own State and of Illinois, and have given the rule as stated by our recent elementary writers upon the question. There are numerous decisions in other States which we have examined. Whilst there is some conflict in the decisions we are of the opinion that the weight of authority is in accordance with the rule as stated by Jones.

In the case under consideration the defendant testifies that at the time he took possession of the mare he did in fact deem himself unsafe. We are of the opinion that there existed reasonable grounds for such feeling. The mortgage was upon the wheat and rye growing upon the defendant's farm. These crops were relied upon in chief to pay the defendant's claim. The crops had substantially failed. The plaintiff, when he examined the crops on the Sunday prior to the sale, reported that he did not believe the crops would pay the expenses of harvesting. He sold his interest in the crops to the defendant for $10. The defendant, when he harvested the crops, realized therefrom but the sum of $39, whilst it cost him 47 to harvest them. The crops having substantially failed, the mare only was left to secure the defendant for the amount still unpaid upon the mortgage. The mare, as the defendant claims, was worth but the sum of $50. Other witnesses corroborated him upon the value of the mare. We think therefore that the evidence establishes the fact that he in good faith believed himself insecure. If so, within all of the anthorities, he would have the right to take possession of the mare under the mortgage.

Judgment reversed and new trial ordered before another referee, costs to abide the event.

Smith, P. J., Barker and Bradley, JJ., concur on the last ground stated in the opinion.

[See 42 Am. Rep. 152; 41 Ohio St. 41; 30 Alb. L. J. 402; ante, 4; 35 Eng. Rep. 708.]

STATUTE OF LIMITATIONS - ACKNOWLEDGMENT-PART PAYMENT BY JOINT PROMISOR.

NEW JERSEY SUPREME COURT, JUNE TERM, 1884. PARKER V. BUTTERWORTH.*

Defendant, a joint maker of a promissory note, in a letter written to the plaintiff, admitted that he signed the note as surety, and added: "It would be impossible for me to pay the note at this time; therefore I shall be a thousand times obliged to thee if thee will allow it to rest until John (the other maker) or I, or both, are in better condition to liquidate it." Held, to be a qualified promise by the defendant to pay when his circumstances had so improved that he had the ability to pay, and that the plaintiff could not make the promise available without affirmative proof of the substantial fulfillment of the condition.

*S. C., 46 N. J. Law, 244.

A payment on account by one joint promisor will not remove the bar of the statute of limitations as against a co-promisor in whose favor the statute had attached when the payment was made.

N the rule to show cause why a verdict for the

James M. Stratton and Charles Haight, for the rule. James Steen, contra.

The opinion states the case.

DEPUE, J. This suit was brought upon a joint and several promissory note made by John H. Woodward and William L. Butterworth, bearing date June 17, 1867, for the sum of $1,241.46, payable to Deborah Parker and Leah Parker, or the survivor of them, in one year after date. Deborah died in 1874. The suit was

in the name of Leah, the survivor, as plaintiff, and Woodward being out of the jurisdiction of the court, Butterworth alone was made defendant. The action was begun by a summons returnable April 3, 1883. The defense was the statute of limitations. To meet this defense the plaintiff relied (1) on an acknowledgment or promise to pay, contained in a letter written to her by Butterworth, the defendant, bearing date September 1, 1877, and (2) upon a payment of $100 on the note made June 1, 1882, by Woodward, the other joint maker.

By the Limitation Act, as contained in the revision, which went into effect January 1, 1875, it is provided with respect to actions on simple contracts, first, that "no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of this act, or to deprive any person of the benefit thereof, unless such acknowledgment or promise shall be made or continued by or in some writing to be signed by the party chargeable thereby," second, "that where there shall be two or more joint contractors or executors or administrators of any contractor, no such joint contractor, executor or administrator shall lose the benefit of this act so as to be chargeable in respect or by reason only of any written acknowledgment or promise, and signed by any other or others of them;" third, that "nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever;" fourth, "that in actions to be commenced against two or more such joint contractors or executors or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by this act as to one or more of such joint contractors or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise or otherwise, judgment may be given, and with costs allowed for the plaintiffas to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff;" fifth, "that no indorsement or memorandum of any payment, written or made after this act shall go into effect, upon any promissory note, bill of exchange or other writing, by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the operation of this act." Rev., p. 595, 596, §§ 10, 11.

These sections are in substance the same as sections 1 and 3 of 9 Geo. IV., ch. 14 The only change they made in the law is with respect to the rules of evidence. Before this statute an acknowledgment or promise to pay, or a payment on account, under some circumstances, would take a case out of the statute of limitations. The new statute simply required that the acknowledgment or promise to have that effect should be in writing, and signed by the party to be charged

thereby. It made no alteration in the legal construction or effect of an acknowledgment or promise when proved in the manner prescribed by the statute, and the question whether the document written and signed "amounts to an acknowledgment or promise is no other inquiry than whether the same words, if proved, before the statute was enacted, to have been spoken by the defendant, would have had a similar operation and effect." Haydon v. Williams, 7 Bing. 163; Edwards v. Culley, 4 H. & N. 378; Dickenson v. Hatfield, 5 C. & P. 46; Wood Lim., § 84.

The statute has made no change in the law with respect to payment on account, except that the indorsement or memorandum of the payment upon any promissory note, bill of exchange or other writing, written or made after the act went into effect, by the party to whom payment is made, shall not be sufficient proof thereof. Payment, as a fact, must be proved by evidence aliunde. It may be proved by any kind of evidence, written or oral, which otherwise would be competent as proof of a matter of fact in issue; and any payment which would have been sufficient before this statute was passed is still sufficient to remove the bar of the statute of limitations. Merritt v. Day, 9 Vroom, 32; Cleave v. Jones, 6 Exch. 573, 578; Bevan v. Gething, 3 Q. B. 740; Bradley v. James, 13 C. B. 822; First Nat. Bank v. Ballou, 49 N. Y. 155; Wood Lim., § 96.

The statute has the words "acknowledgment or promise" and "evidence of a new and continuing contract." The use of these words in the disjunctive in the statement of the law gave rise to a series of opposing authorities, in some of which it was held that the statute of limitations was founded on a mere presumption of payment, and that whatever repelled that presumption was an answer to the statute, and that therefore an acknowledgment of the non-payment of a debt, though accompanied by a conditional promise, or even a refusal to pay, was a sufficient answer to the statute. These cases were overruled by the Court of King's Bench before the act of 9 Geo. IV. was passed, in Tanner v. Smart, 6 B. & C. 603, a case which Baron Parke said put an end to a series of decisions which were a disgrace to the law. Hart v. Prendergast, 14 M. & W. 741.

Since the decision in Tanner v. Smart the law in the English courts has been settled on this footing - that from a bare unqualified acknowledgment of a subsisting debt the law will imply a promise to pay which will obviate the bar of the statute, but that if there be in the admission, or on the face of the writing containing such an acknowledgment, any thing to repel the inference of a promise to pay, the rule expressum facit cessare tacitum applies, no promise will be implied, and the acknowledgment will not enable the plaintiff to recover. And if the acknowledgment be coupled with a promise which is qualified or conditional, neither the acknowledgment nor the promise will be available unless the condition has been performed or the event happened by which the promise is qualified. Smith v. Thorne, 18 Q. B. 134, Hart v. Prendergast, 14 M. & W.741, 744; Sidwell v. Mason, 2 H. & Ν. 306, 309, 310; Everett v. Robertson, 1 El. & El 16-19; In re River Steamer Co., L. R., 6 Ch. App. 822-828; Skeet v. Lindsay, L. R., 2 Exch. Div. 314-316; Wood Lim., § 85.

The weight of authority in the courts of this coun try is in accordance with the English doctrine, as will appear in the note of the American editors to Whitcomb v. Whiting, 1 Sm. Lead. Cas. 982; and such has been the course of decision in this State. Belles v. Belles, 7 Hal. 339; Ridgway v. English, 2 Zab. 409, 413, 419; Ex'rs of Conover v. Conover, Saxt. 403.

The defendant's letter of September 1, 1877, relied on as an acknowledgment or promise, was written in answer to a letter of the plaintiff, which was not produced in evidence. No part of the defendant's letter, except the paragraph which will be quoted, contains any thing which could be construed to be an acknowledgment or promise. That paragraph is in these words: "It would be impossible for me to pay the note at this time; therefore I shall be a thousand times obliged to thee if thee will allow it to rest until John or I, or both, are in better condition to liquidate it." It is clear that there is not in these words an unqualified promise to pay immediately or on request. The preceding paragraphs of the letter identify the note sued on as that to which the correspondence related, and contain an admission by the defendant that he signed the note as surety for Woodward. Taken in connection with the defendant's admission that he signed the note, and his declaration of his present inability to pay, I think the words quoted are sufficient to warrant the implication of a qualified promise by the defendant to pay when his circumstances had so improved that he had the ability to pay. To make such a promise available the plaintiff was bound to furnish affirmative proof of the substantial fulfillment of the condi tion (Tanner v. Smart, Haydon v. Williams, supra: Scales v. Jacob. 3 Bing. 638; Ayton v. Bolt, 4 id. 105; Edmunds v. Downs, 2 C. & M. 459; Meyerhoff v. Froehlich, 4 C P. Div. 63; Tompkins v. Brown, 1 Den. 247; Wood Limitations, §77); and of that there was no evidence. The verdict cannot be sustained on the new promise of the defendant.

To take the case out of the statute of limitations by a payment on account, the plaintiff relied on a payment made by Woodward, one of the joint makers of the note. Woodward sent a draft to the plaintiff for $100 in a letter directed to her, dated Durango, Cal., May 9, 1882. The plaintiff received the money on the draft, and June 1, 1882, credited it on the note. The letter remitting the draft gave no directions as to the appropriation of the money. The only reference to the subject is in these words: "Inclosed is draft for $100. It strained me to raise it, but I thought thee needed it." There was some evidence that there was another indebtedness on the part of Woodward to the plaintiff besides the note in suit. The judge left the question to the jury whether the payment was made on account of this note, under proper instructions, and I think there was sufficient evidence to justify the jury in finding that the payment was made thereon.

Woodward removed from this State shortly after the note was given. He resided in California when the suit was brought. Although the fact does not appear distinctly by the evidence, it is probable that his continued residence out of this State avoided the bar of the statute of limitations as against him. Butterworth resided in this State, and the statute was a bar to any action against him on the note at the time this payment was made. The problem presented by these facts is whether a payment on account by one joint promisor will remove the bar of the statute of limitations as against a co-promisor in whose favor the statute had attached when the payment was made.

The leading case on this subject is, of course, Whitcomb v. Whiting, 2 Doug. 652. In that case the declaration was in form on a promissory note executed by the defendant. Pleas, non assumpsit and non assumpsit infra sex annos. The plaintiff produced a joint and several note executed by the defendant and three others, and having proved payment by one of the others of interest on the note, and part of the principal within six years, and the judge thinking that was sufficient to take the case out of the statute as against the defendant, a verdict was found for the plaintiff. On rule to show cause before Lord Mansfield, Chief Justice, and Willes, Ashurst and Buller, Justices, the verdict was sustained. Lord Mansfield

said: "Payment by one is payment by all, the one acting virtually as agent for the rest; and in the same manner an admission by one is an admission by all: and the law raises the promise to pay when the debt is admitted to be due." Willes, J., said: "The defendant has had the advantage of the partial payment, and therefore must be bound by it." Ashurst aud Buller, JJ., were of the same opinion.

Whitcomb v. Whiting, though not always approved, has been so frequently declared to be the law in this State that its force as authority cannot now be disputed. I have quoted the case almost at length with a view of an inquiry as to what the case decided. It will be observed that it does not appear in the report of the case that the note in suit was affected by the statute of limitations at the time the payment was made. Indeed it appears inferentially to have been otherwise, for no such point was made by counsel, and it is improbable that an available argument of so much plausibility, if not weight, should have been overlooked by counsel or passed by the court without comment. Lord Mansfield's reasoning that "payment by one is payment by all, the one acting virtually as agent for the rest." could apply only to a payment made in the interest of all; and the observation of Willes, J., that "the defendant had had the advantage of the partial payment, and therefore must be bound by it," would be wholly inapplicable if the defendant had been entirely released from his liability on the note by the statute when his copromisor made the payment. The report of this case affords no warrant for the assumption that it decided that a payment within six years before suit, by one promisor, would take a case out of the statute as against a copromisor, where the payment was made after the statute had effected a discharge of the latter from the joint obligation. The other leading English cases on the subject are Burleigh v. Stott's Admra., 8 B. & C. 36, and Perham v. Raynal, 2 Bing. 306, more fully reported in 9 Moore, 566.

In Burleigh v. Stott's Admr., the suit was against the administrator of Stott, one of the makers of a joint and several promissory note. The note was dated March 4, 1818, and payable to Robert Burleigh, the plaintiff, on demand. Stott died March 3, 1821. The suit was brought October 3, 1826. It appeared that Thomas Burleigh, the other maker, and who was the principal debtor on the 10th of October, 1818, paid the interest on the note to that day, and on the 10th of October, 1820, the interest then due, and a sum on account of the principal, without the knowledge of Stott. These payments were made by Burleigh whilst the joint liability of himself and Stott subsisted; and as was said by Holroyd, J., Stott had the benefit of the part payment, and he ought to bear the burden. The court following Whitcomb v. Whiting, gave judgment for the plaintiff.

In Perham v. Raynal, one of the defendants was surety on a joint and several note, and within six years before suit a co-defendant, who was the principal debtor, had acknowledged the debt to be due. It does not appear in either report of the case whether the acknowledgment was before or after the bar of the statute. The questions discussed and decided were whether Whitcomb v. Whiting was law, and whether an acknowledgment by the principal debtor could affect a surety.

The only cases in the English courts which directly decide that payment by one copromisor after the bar of the statute had attached would deprive the other promisor of the benefit of the statute, are Channell v. Ditchburn, 5 M. & W. 494, and Goddard v. Ingram, 3 Q. B. 839.

In Channell v. Ditchburn the suit was against the makers of a joint and several promissory note. The proof was of the payment of interest by one of the makers within six years from the commencement of the suit, but more than six years after the note became due. The debt had been once barred by the statute, and the court held that it was revived against both the makers by the payment of interest by one. The case was decided on the assumption that Whitcomb v. Whiting was a parallel case, and on the authority of Manderston v. Robertson, 4 Man. & R. 440. On looking at the report of Manderston v. Robertson it will be found that that point was not adverted to.

In Goddard v. Ingram the suit was against surviving partners to recover the balance of a debt due on partnership account, on which one of the partners had made a small payment after the whole account was barred. The payment was made after the dissolution of the partnership, and when the partner making it was "in the jaws of bankruptcy," and the jury found that the payment was made by him in concert with the plaintiffs, in fraud of his copartners. This case was decided after Channell v. Ditchburn, and there was also prominent in it the question of the agency of partners in the matter of partnership business after a dissolution of the firm. The court set aside a verdict for the defendant without stating the grounds of decision, or assigning any reason except that they could not forbear to act on the numerous authorities.

There is another class of cases which will throw light on the principle involved in the matter under discussion. I refer to those decisions which hold that payment by one promisor after the death of his copromisor will not revive the debt as against the personal representatives of the latter. Of this class Atkins v. Tredgold, 2 B. & C. 23, is the leading case. The suit there was against the executors of John Tredgold on joint and several promissory notes made by John Tredgold and Robert Tredgold, bearing date respectively January 17, 1806, and January 17, 1809. John died in March, 1810, and Robert continued to pay the interest until May, 1816. The court, consisting of Abbott, C. J., Bayley, Holroyd and Best, JJ., held that the payments made after the testator's death did not take the case out of the statute. All the judges distinguished the case from Whitcomb v. Whiting, and declared their unwillingness to extend the principle of that decision. Bayley, J., speaking of Whitcomb v. Whiting, distinguished that case from the case then before the court, in that the statute had attached before the payment was made by Robert; and "therefore," he said, “John Tredgold being at that time protected, could not be subjected to any new obligation by the act of Robert." Holroyd, J., referring to Whitcomb v. Whiting, said, "that case has gone far enough, but it does not govern the present. There the defendaut Whiting was liable upon a joint promise at the time the payment was made. The court decided that when one of two joint promisors pays a part, that was to be considered in law as a payment by both. But here at the time when the payment was made, thejoint contract had ceased to exist; for it was determined by the death of John Tredgold."

Turning from the English decisions to the cases in our courts, we find Whitcomb v. Whiting approved and followed in Corlies v. Fleming, 1 Vroom, 349. In that case the suit was commenced July 11, 1861, against the two defendants, on a joint and several note given by them and one Farrington, since deceased, dated September 4, 1850. The interest on the note had been paid by Fleming every year to the year 1860, inclusive. Each payment of interest was made at a time when the joint liability of the defendants existed, and each one of these payments renewed the joint obligation for six years. Disborough v. Bidleman's Heirs, 1 Zab. 677, approved Whitcomb v. Whiting, and followed Atkins v.

Tredgold. The suit was against the heirs of a deceased obligor on a bond which was joint and several. This court and the Court of Errors held that a payment on the bond by the surviving obligor, after the death of his co-obligor, did not take the case out of the statute as against the heirs of the latter. This decision was made on the authority and reasoning of Atkins v. Tredgold, that the payment was not made whilst the joint obligation of the two parties existed, and that the agency of the one to act for and bind the other ceased when their joint liability was ended. Whitcomb v. Whiting was again approved in this court in Merritt v. Day, 9 Vroom, 32. That suit was against partners on a firm note. The payment by one partner, which was regarded as taking the case out of the statute, though made after the dissolution of the partnership, was before the time of limitation had lapsed. The chief justice in his opinion gives that circumstance special prominence, and in commenting on Whitcomb v. Whiting deduces "a right either of the joint debtors to arrest by his sole act the running of the statute," "from the existence of the joint indebtedness," and "infers from the fact of the joint obligation and the unity of interest the agency to renew the contract as against the force of the statute."

***

in

We are bound by Whitcomb v. Whiting, for the reason I have mentioned; but the other English cases I have cited we are under no constraint to follow, except so far as they have already been adopted by our courts. The doctrine that a joint debt, when once barred by the statute, can be revived as against all the original debtors by the unauthorized act of one of them, adjudged in Channell v. Ditchburn and Goddard v. Ingram, has neither reason nor justice for its support. That such a doctrine was considered as either unjust or unwise is shown by the fact that in England it has been overturned by act of Parliament. 19 and 20 Vic., ch. 97, § 14. The true principle on which Whitcomb v. Whiting rests is that of the agency of joint debtors for each other, inferred from the unity of their interest, which makes the act of payment by the one the act of all-an agency which arising out of the joint indebtedness, subsists only so long as the joint indebtedness continues, and ceases as soon as the joint liability being determined, the parties become as strangers to each other. Atkins v. Tredgold and Disborough v. Bidleman's Heirs were decided on this reasoning, and there is no rational distinction between the determination of the joint interest of the parties by death and its termination by the bar of the statute of limitations, which makes the lapse of time a positive and legal bar in all cases within its provisions. Thorpe v. Corwin, Spenc. 311.

I have not referred to cases in the courts of our sister States. Whitcomb v. Whiting has given rise to so much discussion, with great diversity of views, and been so denied and qualified, not only by judicial decisions but by legislation, that a reference to the American cases would be of little profit. The courts of some of the other States have adopted the same views on this subject that we have expressed, as will be seen by the notes to Whitcomb v. Whiting, 1 Sm. Lead Cas.

The verdict should be set aside and a new trial granted.

EVIDENCE DECLARATIONS AS TO PEDIGREE. MAINE SUPREME COURT, JUNE 10, 1884.

NORTHROP V. HALE.*

On the question of pedigree declarations are admissible. (1) When it appears by extrinsic evidence that the declarant

*To appear in 76 Maine Reports.

was lawfully related by blood or marriage to the person or family whose history the facts concern. (2) That the declarant was dead when the declarations were tendered. (3) That they were made ante litem motam.

Thus in determining who are the rightful distributees of an intestate estate, the declarations of the intestate's sister (since deceased), in whose family the claimant was not only born and brought up, but in which the intestate herself also lived, when the claimant was born, and for several years thereafter, are admissible when made ante litem motam, for the purpose of showing that the claimant was the natural son of the intestate, who had not then been married.

A

PPEAL from the decree of the judge of probate. The opinion states the case.

Nathan & Henry B. Cleaves and M. P. Frank, for plaintiff.

Drummond & Drummond and Clarence Hale, for defendant.

VIRGIN, J. This is an appeal from a decree of the judge of probate, wherein he ordered the distribution of an intestate estate and adjudged, against the claim of the appellant, that he was not the natural son of the intestate, but was the legitimate son of the intestate's sister.

In the Supreme Court of Probate, to which the appeal was taken, the same question was submitted to a jury, who found against the appellant.

At the trial of the issue it appeared inter alia that the appellant was born in Steubenville, Ohio, and was brought up there in the family of the intestate's sister, in which also the intestate resided at the time of the appellant's birth, and for several years thereafter. The appellant tendered the "declaration of Mary Northrop (the intestate's sister) relative to the birth and parentage of John A. Northrop," the appellant. What the specific declarations were the bill of exception fails to disclose. It is sufficiently general to include declarations that the appellant was the lawful son of the declarant, which was claimed by the appellee. The admissibility of such a declaration would not be successfully challenged under any known rule of evidence. For the practice in such cases seems to be that some evidence of the requisite relationship (though the exact degree may not be essential perhaps, Vowles v. Young, 13 Ves. 140) dehors the declarations must be shown before they can be admitted. Futter v. Randall, 2 Moore & P. 24; Plant v. Taylor, 7 Hurl. & Nor. 237; Gee v. Ward, 7 E. & Β. 514.

And this evidence is primarily addressed to the presiding justice, who, before admitting the declarations, must be satisfied that a prima facie case of the requi site relationship has been made out. Jenkins v. Davis, 10 Q. B. 313, 322; Hitchins V. Eardley, L. R., 2 P. & D. 248. And the facts shown, the birth, place of birth, the bringing up and name of the appellant, are ample prima facie evidence of relationship to warrant the admission of the declaration mentioned. 4 Camp. 416; Viall v. Smith, 6 R. I. 417. Still there is some apparent discrepancy in the practice. Blackburn v. Crawfords, 3 Wall. 175; Jewell v. Jewell, 1 How. 219, 231; Alexander v. Chamberlin, 1 Thomp. & Cook (N. Y. Sup. Ct.) 600.

But the appellant could not be aggrieved by the exclusion of a declaration which would disprove his claim, and his exception for such an exclusion could not therefore be sustained.

ful distributees of an intestate estate, the declarations of the intestate's sister (since deceased), in whose family he was not only born and brought up, but in which also the intestate herself lived when the appellant was born, and for several years thereafter, are admissible for the purpose of showing that he was the natural son of the intestate, who had not then been married.

All of the authorities seem to concur in holding that while her declarations would be competent to show the appellant to be her own illegitimate son, born before her marriage, and yet under a rule founded, as Lord Mansfield said, "in decency, morality and policy," her declarations would not be allowed to prove her own son illegitimate if born in wedlock. Goodright v. Moss, Cowp. 591; 1 Greenl. Ev., §§ 253, 344; Haddock v. B. & M. R., 3 Allen, 300; Abington v. Duxbury, 105 Mass. 287. Can her declarations be admitted to show the illegitimacy of her unmarried sister's son, born and brought up in her own family? This involves no bastardizing of her own issue.

Formerly the declarations of servants, physicians and intimate friends have been admitted at nisi prius in the English courts. But in Johnson v. Lawson, 2 Bing. 86, the court unanimously rejected the declarations of a deceased housekeeper. Best, C. J., remarked that the admission of evidence in such cases must be subject to some limits; limiting declarants to relatives connected by blood or marriage afforded a certain and intelligible rule; and if that were passed an almost endless inquiry as to the degree of intimacy between the family and the declarant might be involved. Since that decision all modern authorities exclude declarations coming from neighbors, intimate acquaintances, etc., of the family as being mere hearsay evidence. Vowles v. Young, 13 Ves. 147; Whitelocke v. Baker, id. 514; Jackson v. Browner, 18 Johns. 37, 39.

It has therefore become a universally recognized exception to the general rule excluding hearsay, based on various sound considerations, that as to certain facts of family history, usually denominated pedigree, comprising inter alia, birth, death and marriage, together with their respective dates, and, in a qualified sense, legitimacy and illegitimacy, declarations are admissible: (1) When it appears by evidence dehors the declarations that the declarant was lawfully related by blood or marriage to the person or family whose history the facts concern. (2) That the declarant was dead when the declarations were tendered. (3) That they were made ante litem motam. 1 Greenl. Ev., §§ 103 et seq. and notes; 1 Whart. Ev., §§ 201 et seq. and notes; 1 Tayl. Ev., §§ 571 et seq. and notes; Best Prin. Ev. (Am. ed.), § 498 and notes.

*

Lord Chancellor Eldon said such declarations "are admissible upon the principle that they are the natural effusions of a party who speaks upon an occasion when his mind stands in an even position without any temptation to exceed or fall short of the truth, * * that they must be from persons having such connection with the party to whom they relate, that it is natural and likely, from their domestic habits and connections, that they are speaking the truth and cannot be mistaken."

Lord Chancellor Erskine declared that the "law resorts to hearsay evidence of relations upon the principle of interest in the person from whom the descent is to be made out." Vowles v. Young, supra. This view was adopted by Prof. Greenleaf. 1 Greenl. Ev., § 103. And Mr. Taylor sums up the authorities by declaring such declarations admissible coming from such sources, as relatives "may be supposed to have the greatest interest in seeking the best opportunities for obtaining, and the least reason for falsifying informa

Yet considering the appellant's claim, together with the facts and admissions disclosed in the bill of exception, we can have no doubt that the declarations ten dered and excluded had a direct bearing upon the issue, and that the question intended to be raised by the parties is; Whether, in determining who are the right- | tion on the subject." 1 Taylor Ev., § 571. Do not the

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