
    Jackson, ex dem. Ross, Wilson and others, against Cooley.
    In an action of ejectment, the lessors of the plaintiff resided in England, and claimed to be heirs of the person who died seised of the land in question. A witness here he1,r'kneiv Yht iTY¡CScharge agentaU<1 ^and corresponded with him, and after his death, who sent him á hiYYasYitdrYnd liu'hiformatimí was also derued from persons acquainted with the family of the lessors; it this was suffipriina Lfude^o’( ship81" to°go6to
    evidenee is sufficient to prove » 'pedigree.
    t he acknowjedgment of a deed from persons describing ’themselves as heirs, taken, according to the directions of the act, before the major of Londons is also a circumstance of weight in evidence of pedigree.
    THIS was an action of ejectment. The cause was J tried at the Essex circuit, before Mr. Justice Van Ness, ’ J ’ the 15th January, 1811.
    The plaintiff produced in evidence a patent for 2,000 1 _ 1 acres of land, in Boquett, from the king of Great Britain, , ... dated 16th April, 1765, to James Ross, and an exemplmcation of a deed for the same land from Ross to William Wilson and John Goodrich, in fee, dated 10th August, * 765; recorded in the secretary’s office. The deposition of Caru Ludlow, of the city of New-Tork, taken by 3 J consent of the parties, was also read in evidence. He testified, that about thirty years ago, he knew William Wilson, who then resided in New-Tork, and removed to England, prior to the year 1783, where he died, as the witness understood, between the year 1788 and 1795; 7 • J that he was not married; that the witness never heard that he left any children, nor any brother or sister, nephew or niece, except his nephew John Wilson, one of the lessors, who claimed to be the heir at law and devisee William Wilson. The witness was the agent of William Wilson, in his life-time, and superintended his lands, particularly those in the patent to Ross, and correspond-1 . . ed with him; and after the decease of William Wilson, . , . , . John Wilson sent a power or attorney, in which he styles himself the heir at law and devisee of William Wilson, to the witness, which was dated the 16th November, 1798. The witness had corresponded with John Wilson, and had always understood from persons acquainted with the family, that he was the heir at law and devisee of his uncle William Wilson, who claimed one undivided moiety of the land patented to Boss, and John Goodrich the other moiety. The witness was the agent of Goodrich, in his life-time, and was, afterwards, empowered to act as agent of the children and coheiresses of Goodrich, who are also lessors of the plaintiff. The information of the witness was derived from the several powers of attorney he had received, during a correspondence with the parties, and from conversations with Goldshorough Banyar, and Samuel Corp and others, acquainted with the families of Wilson and Goodrich, but he had never seen Joseph Wilson, or the children of Goodrich, all of whom resided in England.
    
    A witness for the defendant testified, that five or six years before, a Mr. Kempthorne came to view the premises, who said, that he was the grandson of John Goodrich, and that there were sixteen or eighteen heirs of Goodrich who claimed half of the patent, and several sisters belonging to the family. 1'here was also some evidence on the part of the defendant, relative to an adverse possession of the tenants, which it is unnecessary to state.
    It appeared that Mr. Ludlow had paid the taxes in 1786 and 1787, and directed the tenants to pay the taxes on the land in their possession. The jury, under the direction of the judge, found a verdict for the plaintiff.
    A motion was made to set aside the verdict, and for a new trial, which was submitted to the court, without argument.
   Thompson, J.

delivered the opinion of the court. The lessors of the plaintiff claim title to the premises in question, as heirs at law of ’ William Wilson and John Goodrich, deceased. A regular title from the government having been shown in their ancestors, the only question upon the trial was, whether the evidence warranted the jury, in finding that the lessors were the heirs of Wilson and Goodrich. No objection was made t@ the competency of the evidence. It was, therefore, a question altogether for the jury. Cary Ludlow testified that he was well acquainted with William Wilson, when he resided in New-York; that he removed from this country to England prior to the year 1/83; that he was his agent here, and superintended his lands; that he died, as he has always understood, some time between' the years 1788 and 1795; leaving no children, or brother or sister, and that John Wilson was his only nephew and heir at law; that after the death of William Wilson, he acted as the agent of John Wilson, in relation to the lands in question, by virtue of a power of attorney from him, bearing date the 18th of November, 1795; wherein he is styled the heir at law of William Wilson; that he has corresponded with John Wilson, and has always understood, from the acquaintances of the family, and the people who claimed an interest in these lands under the patent to Ross, that John Wilson was both devisee and heir at law to William Wilson, who claimed an undivided moiety of the lands granted to Ross; and that John Goodrich claimed the other moiety. The testimony of Ludloxu, showing that the other lessors of the plaintiff were the heirs at law of John Goodrich, was substantially the same. In addition to which, a deed from them to Ezra Coats, another lessor, was produced, wherein they are described as such heirs. This deed was duly acknowledged, before the mayor of Loudon, agreeably to the statute of this state. Mr. Ludlow further stated, that his information was derived from the several powers of attorney he received, and correspondence with the parties, and conversations with Goldsborough Banyar, Samuel Corp, and other acquaintanees of the families of Wilson and Goodrich.

This testimony was sufficient, prima facie, to be submitted to the jury. Had there been any evidence, on the part of the defendant, casting any doubt or suspicion on the subject, the sufficiency of the evidence might be somewhat questionable. Testimony, as to pedigree, is not to be tested by the ordinary rules of evidence. The subject necessarily requires a relaxation of those rules; and it is, of course, always treated as an excepted case. Hearsay evidence, or any thing which shows a general reputation, is admissible to establish a pedigree. (Peak. Evid. 9.) The declarations of persons, who from their situation were likely to know, are competent evidence Lord Mansfield (Goodright v. Moss, Cowp. 591.) says, tradition is sufficient in point of pedigree. Circumstances may be proved; such as an entry in a family bible; an inscription on a tombstone; a pedigree hung up in a family mansion, which are all good evidence. In this case,, also, the recitals in deeds, the finding of a special verdict between other parties, stating a pedigree, (Buller, 233.) a bill in chancery, by an ancestor, (7 Term. Rep. 3. note,) though not admissible in other cases, are competent to prove a family pedigree. The declarations of the members of a family, and of others, living in habits of intimacy with them, are said, by Lord Kenyon, to be received as evidence of pedigree; (Term Rep. 723.) and he does not confine it to the declarations of deceased persons only. The acknowledgment of the deed to Coats., by the heirs of Goodrich, before the mayor of London, is a fact of some importance in proof of pedigree. Our statute requires that the officer taking the acknowledge ment should know, or have satisfactory evidence, that the grantors are the persons described therein, and who executed the deed. The grantors being described as such heirs, their identity must have been known to the mayor; or proof thereof given to him. And this, though ex parte, is entitled to as much, if not more weight than many circumstances we find in the books which have been received as evidence of pedigree. 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; and I cannot say that the testimony given to the jury, in this case, was not sufficient to warrant the verdict, in finding that, the lessors of the plaintiff were the heirs at law of Wilson and Goodrich, especially, as it was in proof, that the defendant does not pretend to claim the title to the premises, or any thing more than the mere naked possession.

The opinion of the court, accordingly, is, that the motion for a new trial must be denied.

Spencer, J.

(dissenting.) On the trial of this cause, a title to the premises in question was shown in William Wilson and John Goodrich, each a moiety, both of whom are dead; and it became necessary to prove that John Wilson was the heir at law of William Wilson, and that Margarét Goodrich and others were coheiresses of John Goodrich.

The only proof of the pedigrees of those claiming to, be the heirs of William Wilson and John Goodrich, was the deposition of Cary Ludlow. He states, that William Wilson died in England, as he has always understood, between the years 1788 and 1795, leaving John Wilson, .his nephew, heir at law; that he (Ludlow) was the agent of William Wilson, during his life, and superintended his lands, particularly those in question; that he corresponded with William Wilson^ and after his decease John Wilson empowered him to act as his agent on the premise^. The power is dated 18th November, 1795, and in it John Wilson is styled the heir at law and1 devisee of William Wilson; that he had corresponded with John Wilson, and has always understood from all the acquaintances of the family, and the people who claimed an interest in said lands, under the patent to Ross, that John Wilson was both devisee and heir at law of William Wilson, since John succeeded to the estate; that he was the agent of John Goodrich'm his life-time,and after his death he was empowered to act as the agent of the children and coheiresses of J. Goodrich,who are the lessors of the plaintiff; that he never heard that W. Wilson left any children, or brother ox-sister, or any other nephew or niece than John Wilson-, that this information was derived from the several powers of attorney he received, from correspondence with the parties, and conversations with Goldsborough Banyar, Samuel Corp, and other acquaintances of the families of Wilson and Goodrich; that he had always paid the taxes on the land he knew was improved. A deed from Margaret Goodrich and others to Ezra Goats, jun. dated 2d September, i 807, was then offex-ed in evidence, and was objected to, on the ground that the heirship of the grantors was not sufficiently proved, though it was admitted that John Goodrich was dead. The deed was admitted.

Ihe defendant’s counsel raised several other objections, all of which I consider so clearly untenable, as not to require an opinion on them; the only objection I shall examine, is this, whether the evidence of Mr. Ludlow made out, legally, the facts, that John Wilson was the heir of William Wilson, and that Margaret Goodrich and the other grantors in the deed to Goats, were the heirs of John Goodrich.

I had, at first, supposed that there was fuller proof in favour of John Wilson’s claim to be heir of William Wilson, than with respect to those alleging themselves to be heirs of John Goodrich, but I am satisfied they stand on the same footing.

As a general rule of law, all material facts are to be proved by persons having personal knowledge of the facts to which they depose; for evidence signifies that which demonstrates the truth of the point in issue. There are several exceptions to the rule, growing out of the particular circumstances of the cases; and in questions of pedigree, prescriptive custom, or character, hearsay evidence will be admitted, for the reason that, in these instances, (and some others might be added,) the facts to be proved are, in their very nature, not susr ceptible of positive proof; but whilst the general rule of law is relaxed to the necessity of particular cases, care should be taken, not to go beyond that necessity, and admit the most vague hearsays.-

The testimony of Mr. Ludlow goes to show, first, that he was the agent of William Wilson and John Goodrich, in their life-times; second, their deaths.; third, powers of attorney from John Wilson, the supposed nephew of William Wilson, and from the children and coheiresses . of John Goodrich; fourth, that he paid taxes on the improved lauds in behalf of his constituents; and fifth, information derived as well from the powers of attorney, and correspondence with the parties, as from conversation with Messsrs. Banyar and Corp, and other acquaintances of the families of Wilson and Goodrich, that they are respectively heirs of Wilson and Goodrich.

To the two first facts there can be no objection. Mr. Ludlow’s testimony was competent to prove them. The other facts do not establish, even prima facie, the fact of heirship.

The powers of attorney and correspondence, were acts done by the persons asserting themselves to be heirs; and upon.no principle can such acts be evidence in their favour, to establish the facts they set up. A correspondence with a person abroad may enable his correspondent here to testify to his hand-writing; and the writing thus proved may be used against the foreign correspondent; but he cannot create evidence for- himself. The correspondence and powers of attorney might be evidence against the persons asserting themselves to be heirs; but it would be overthrowing every rule of evidence to admit them as evidence for them. (5 Term Rep. 121.) The circumstance that they live abroad cannot alter the effect of their acts. If a power of attorney, and letters, would be evidence of the heirship in this case, then such acts would equally be evidence, if the parties resided here.

The payment of taxes is thrown in as a makeweight. It cannot be considered as any evidence whatever of ownership. Taxes are frequently imposed without any designation of the owner; and if payment of them was to be regarded as evidence of title, no man would be secure.

It comes then to this; is the information of Messrs. Banyar and Corp, and other acquaintances of the families, that kind of hearsay, in the case of pedigree, which the law requires? I think it clearly is not.

It is not shown in the case, where Messrs. Banyar and Corp, and the other acquaintances of the families reside, or whether they are living or dead. If they reside within the jurisdiction of the court, then it follows, that instead of our having their knowledge of the families, we have the intelligence at second hand. Peake, (in his Treatise on Evidence, p. 11.) after speaking of hearsay evidence, in cases of pedigree, prescription and. custom, says, “ In these cases, therefore, the law departs from its general rule, and receives evidence of the declarations of deceased persons, who, from their situation, were likely to know the facts, and also the general reputation of the place, or family most interested to preserve in memory the circumstances attending it; any thing which shows such reputation is, on a question of this sort, received in evidence, though oftentimes wholly inadmissible in other cases.” Again, (p. 12.) “ So to prove the state of a family, as who a man married, what: children he had, that A. died abroad, &c. declarations of deceased persons, who, from their situation were likely to know, and the general belief of the family, are sufficient.” And (p. 13.) he illustrates the distinction be? tween hearsay evidence of mere facts, and of general reputation, between the proof in cases of pedigree, and cases of custom and prescription. (1 Bull. N. P. 294, 295.)

Had Mr. Ludlow been acquainted in the families of Wilson and Goodrich, and from that been likely to know the relation which these persons bore to Wilson and Goodrich, his testimony would have been competent; but it is derived from others, none of whom appear to be dead, and all of whom, for aught that appears, may be amenable to our process. Such testimony never was admitted to be sufficient; and though to admit it in this case might probably relieve the party from expense and trouble, and promote justice, I confess I am unwilling to break in upon the established rules of evidence, and put every thing afloat.

It appears to me, therefore, that there ought to be a new trial, with costs, to abide the event of the suit.

Motion denied.  