
    The Inhabitants of Braintree versus The Inhabitants of Hingham.
    A deposition in perpetuara, not recorded pursuant to the statute, of a person since deceased, is not admissible as hearsay evidence to prove the facts stated in the deposition.
    Hearsay evidence is not admissible to prove that a person was warned to leave a town, pursuant to the provincial act of 4 W. ^ M. c. 13.
    Assumpsit for expenses incurred by the plaintiffs in support of Mary Lovis and her two children, paupers, whose settlement was alleged to be in Hingham.
    
      It was admitted, at the trial, that the paupers had a deriva tive settlement from Thomas Lovis, the great-grandfather of the children, and that he removed, in the year 1751, from Marblehead to Hingham, and resided there many years until he died.
    The defendants attempted to show, that within a year after his removal to Hingham he was duly warned to leave the town. For this purpose they proved, that the records of the Court of Sessions for the county to which Hingham belonged, when the warning was supposed to have been given, had been destroyed or lost; and then they offered the deposition of Thomas Lovis, taken in perpetuam, to prove the warning ; but as it had not been recorded pursuant to the statute, it was rejected by the Court. The defendants then moved the Court to admit the declaratians of Lovis, contained in the deposition and sworn to by him, to go to the jury, as hearsay evidence, to prove that he came to Hingham in March 1751, and that in the spring of the same year he was warned by a constable to leave the town. This evidence also was rejected.
    The jury found a verdict for the plaintiffs. If the evidence rejected ought to have been admitted, a new trial was to be granted ; otherwise, judgment was to be entered according to the verdict ; unless it should be arrested for the reasons assigned by the defendants in a motion for that purpose.
    
      B. Sumner and Cushing, for the defendants.
    The loss of the best evidence having been proved, the next best that the case admitted of was offered and ought to have been received. Hearsay evidence is admissible in cases of pedigree, reputation, prescription and custom. This case is most like those relating to pedigree. The warning was an ancient fact, and could be proved in no other way than by hearsay. There was no living witness. The fact was not notorious, and came from a person who must have had the best knowledge of it ; and it was one about which he could not be mistaken. He had no bias, for he could neither gain nor lose by his testimony ; or, if he preferred continuing in Hingham, where he had lived a long time, the bias would rather be contrary to his testimony. It does not appear that any suit had been commenced, or was likely to be ; it was a common precaution with towns to have such depositions taken. The evidence was from a credible source ; the veracity of the witness has not been impeached. The truth would be obtained by his declaration as much as if the deposition had been regularly taken. The recording does not make a deposition true. His declaration has an advantage over common hearsay evidence, because it has been sworn to. This evidence comes within all the reasons for admitting hearsay evidence respecting pedigree, and there are several cases in which such evidence has been admitted. Rex v. Greenwich, Burr. S. C. 243; Rex v. Nutley, ibid. 701; Rex v. Creech St. Michael’s, ibid. 765; Rex v. The Inhabitants of Holy Trinity, &c., Cald. 141. In Rex v. Eriswell, 3 D. & E. 707, the court was divided. The cases to the contrary, —Rex v. Chadderton, 2 East, 27; Rex v. Ferry Frystone, ibid. 54; Rex v. Abergwilly, ibid. 63, — were decided without being argued. In Rex v. Nuneham Courtney, 1 East, 373, the person, whose declarations were offered in evidence and rejected, was living, having absconded. That case, too, was not argued, and no reasons are given for the decision.
    Such evidence has been admitted on the ground of analogy, in cases not relating to pedigree, but where the same reasons existed. Davies v. Pierce, 2 D. & E. 53; Peaceable d. Uncle v. Watson, 4 Taunt. 16; Thompson v. Trevannion, Skin. 402; Aveson v. Kinnaird, 6 East, 188; Hingham v. Ridgway, 10 East, 109; Herbert v. Tuckal, T. Raym. 84; Jackson d. Miner v. Boneham, 15 Johns. Rep. 226; Douglass’s Lessee v. Sanderson, 2 Dallas, 116; Crouch v. Eveleth, 15 Mass. Rep. 306. In Rex v. Erith, 8 East, 539, the declaration of a father respecting the place of his child’s birth was rejected, and Lord Ellenborough said, the point turned on a single fact, involving no question but of locality, and, therefore, not falling within the rules applicable to cases of pedigree ; but this reason is not satisfactory.
    
      Thacher, for the plaintiffs.
   Per Curiam.

The deposition, when offered as such, having been properly rejected because it was not recorded, it was next attempted to prove by it the declaration of the deponent. To admit it for this purpose would be making the statute nugatory respecting depositions in perpetuam.

Independently of this objection, however, by the law ol England it is clear, that this evidence was not admissible. It was not evidence of pedigree, reputation, prescription, or custom.

A case of the same nature occurred in one of the western counties. The question related to the citizenship of a man who had deserted from Burgoyne’s army. Evidence was offered of his saying that he was born in Germany; but it was rejected on the same ground, not being evidence of pedigree, &c.

The provincial act of 4 Will. Mar. c. 13, required several steps to be taken in regard to warning a person to leave a town, of which a return was to be made to the Court of Sessions. The records in the present case were lost, and inferior evidence might, therefore, have been admitted. But here was evidence of a single fact only, which would, not show that all the requisite steps had been taken, even if the evidence were admissible.

Judgment according to the verdict. 
      
      
        Bradstreet v. Baldwin, 11 Mass. R. 229
     
      
       See 4 Campb. 412; Banert v. Day, 3 Wash. C. C. R. 243; Bordereau v. Montgomery, cited in Coxe’s Dig. 306.
     
      
       See the subject of admitting evidence of this kind discussed at much length in the opinions of the twelve judges, in The Berkeley Peerage case, 4 Campb. 401--Reporter.
      
     
      
       See Wilmington v. Burlington, 4 Pick. 174; Shearer v. Clay, 1 Littell’s R. (Kentucky) 266; Briney v. Hann, 3 Marshall, 326; Brooks v. Clay, 3 Marshall, 550; Chapman v. Chapman, 2 Conn. R. 347; Jackson v. Browner, 18 Johns. R. 37; Jackson v. Cooley, 8 Johns. R. 128; Jackson v. King, 5 Cowen, 237. General reputation and tradition of a family, of the death of one of its members, is admissible in evidence. Pancoast v. Addison, 1 Har & J. 356; Jackson v. Boneham, 15 Johns. R. 226; Jackson v. Etz, 5 Cowen, 314. See also Jackson v. Cody, 9 Cowen, 140; Ward v. Oxford, 8 Pick. 476 Bridgewater v. West Bridgewater, 7 Pick. 191; Little v. Palister, 4 Greenl. 209; Queen v. Hepburn, 7 Cranch. 290; Davis v. Wood, 1 Wheaton, 6; Elliot v. Peirsol, 1 Peters’s S. C. R 328; Chirac v. Reinecker, 2 Peters’s S C. R 620
     