
    Flowers’ lessee vs. Haralson.
    The facts that D, T and J were brothers, that they were all dead, and that D. and T. died without issue, may be proved by reputation in an action of ejectment brought by the children of J. to recover land granted to D.
    Proof by a witness that he knew D, T and J, that he inhabited the same town with them, and that, as far as he had knowledge, they were reputed and concluded to have been brothers, and that D and T were reputed and concluded to have died without issue, is competent evidence of reputation to go to a jury.
    Births and deaths are matters of pedigree and may be proved by reputation.
    This was an action of ejectment brought by the lessors of plaintiff in error against the defendant in error. On the trial below, the lessors of the plaintiff read a grant for twenty-five hundred acres of land, to David Flowers, dated in 1789, and claimed title as the heirs of the grantee. To fix their identity it was first attempted to be proved, that David Flowers died leaving no issue. That Thomas Flowers died without issue. That James Flowers was also dead, and that the three were brothers* Evidence was introduced and admitted, showing that the' lessors of the plaintiff were the children and lawful issue of James Flowers. The deposition of James W. Walker was offered in evidence and is in the following words.
    “1. Question by plaintiff’s attorney. Were you acquainted with David Flowers, James Flowers and Thomas Flowers? and if yea, state whether they were reputed to be brothers, and if David Flowers and Thomas Flowers did or did not die leaving no lawful issue.
    Answer. I was acquainted with David Flowers, James Flowers and Thomas Flowers, and as far as I had knowledge, they were reputed and concluded to be brothers; andas far as I had knowledge, David and Thomas Flowers died leaving no lawful issue.
    
      2. Question by plaintiff’s attorney. Do you know where the said David, James and Thomas Flowers lived? If yea, please state your recollection of their residence, &c.
    Answer. My acquaintance with David and Thomas Flowers was in Wilmington, New Hanover county, State of North Carolina, and to the best of my knowledge, they both died in Wilmington. I was also acquainted with James Flowers in said Wilmington, who afterwards removed to Brunswick county in said State, and I have understood he died there.”
    On motion of the defendant, the deposition, and every part thereof, was rejected by the court as irrelevant and illegal testimony. The jury found a verdict for the defendant. For the rejection of the deposition of Walker, among other reasons, a new trial was moved for, and refused, from which decision of the court this appeal in error was prosecuted.
    
      Andrew L. Martin, for the plaintiffs in error.
    P. M. Miller, for the defendant in error.
   Catron, Ch. J.

delivered the opinion of the court.

If the three brothers were dead, and if the lessors of the plaintiff, the nephews and nieces of the grantee, are the only survivors of the family, they are the heirs. The evidence of Walker was therefore directly relevant. Was it legal in other respects? The witness says he knew the three Flowers’, and as far as he had knowledge, they were reputed brothers. This was rather a particular mode of expression, than a circumstance from which want of information could be inferred. The witness inhabited the same town with the Flowers, and the jury could well judge the extent of knowledge. David and Thomas died in the town, and died without issue. As to the relationship, the witness says the Flowers were reputed and concluded to be brothers, and that David , , and Thomas were concluded and reputed to have died without issue; and to the best of witness’ knowledge they died in the town of Wilmington. Whether they died at the place matters nothing; reputation said they had died. But the ojection rests itself on this: the witness does not say it was generally reputed and concluded. The expressions used by the witness can mean nothing less. In the State vs. Ewell, determined at the last term of this court at Nashville, the defendant was charged with incest; the relationship of the offending female was of course necessary to be proved. The witness was asked if he knew Dabney Ewell, the defendant, and Pleasant Ewell and Pleasant Ewell’s daughter. He answered, he did. Were Dabney and Pleasant Ewell brothers, and was A. the daughter of Pleasant Ewell, he was next asked. They were so reputed, was the answer. The competency of the evidence was not called in question, on the ground that it wanted legal certainty, but because it was insisted, marriages and birthg must, in a case like that, be proved. The court held the evidence competent. Reputation of 'pedigree is the result of the public mind, founded upon actual knowledge of the whole community; and experience and knowledge in the nature and habits of man teach the un erring certainty of the public knowledge and conclusion in relation to family history. Individuals may fail in their investigations of particular facts; but where marriages, births and deaths are the facts to be learned, human curiosity saves us the trouble and expense of proving the occurrences by witnesses present, or by the hearsay of those who were, or of the family connexion. No individual investigations or testimony can generally be equal in certainty to the curious’ scrutiny; and if secrecy be attempted, public curiosity sets on foot an anxious search for the truth. General reputation of such facts is not only competent, but highly credible, 3 Stark. Ev. 1117, Title Pedigree. The form in which 'the witness states his knowledge, obtained from general reputation, of the relationship and death of the Flowers’, might have been more technically stated, yet we think the deposition was clearly competent evidence to go to the jury: the judgment must be reversed and the cause remanded for another trial.

Judgment reversed..  