
    The Inhabitants of Wilmington versus The Inhabitants of Burlington.
    Hearsay evidence is not admissible to prove the place of a person’s birth.
    In an action for the support of a pauper deriving his settlement from that of his father or of his mother, brought against the town where the mother had her settlement, the burden of proof is not on the defendants to show that the father bad a settlement in some other town, but on the plaintiffs to show (by proving where he did belong) that he had not a settlement within the commonwealth. Semble. *
    Assumpsit for expenses incurred in the support of Jonathan Taylor, his wife, and children. The case came before the Court upon exceptions filed by the plaintiffs in the Court of Common Pleas.
    Jonathan Taylor had no settlement within the common* wealth in his own right. He was the son of John Taylor, whose wife, the mother of Jonathan, had her settlement in Burlington. John Taylor was an illegitimate child, and to prove that he was born in Reading or Medford, the defendants offered the deposition of Elizabeth Johnson ; who testified, that “ when she was about ten years old, which was more than seventy years ago, her father and mother brought home to their house in Reading a male infant, which her mother told her they brought from Medford.” Being interrogated “ who brought the child,” she said, in the same deposition, “ I do not remember being present when he was first brought into the house.”
    Oc. 19th.
    This was all the evidence offered by the defendants to prove the birth of John Taylor in some other town than Burlington. The plaintiffs objected that it was evidence of the declaration of a third person, and that the declaration appeared not to have been made at the time when the child was brought. But the judge directed the jury, that if they believed the witness heard the declaration at any part of the same day on which the child was brought, it was competent evidence.
    The judge also instructed the jury, that if they should be satisfied that John Taylor was born in some town in the commonwealth other than Burlington, although they should not be satisfied in what town, it would justify them in finding a verdict for the defendants.
    A verdict was found for the defendants, and the jury, upon an inquiry by the judge, said they were satisfied that John Taylor was born within the commonwealth and not in Burlington, but in what other town they could not tell.
    
      Jos. Locke supported the exceptions.
    The declarations of the witness’s mother were not admissible as part of the res gestee, because they did not at all illustrate the motives for bringing the child from Medford, nor give a character to the transaction. 1 Stark, on Evid. 46 ; 1 Phillipps on Evid. (6th ed.) 218. The instruction was incorrect in regard to-the time of malting the declarations ; to constitute a part of the res gestee, they must accompany the acts dene.
    
      
      Oct. 21st.
    
    The mother of Jonathan Taylor having been proved to have had her settlement in Burlington, it was incumbent on the defendants, in order to avoid being charged, to prove in what other town the father had a settlement. Take away the hearsay evidence, and it is as probable that he was born in Burlington, as in any other town.
    
      Hoar, for the defendants.
    If the declarations were competent evidence, whether they were properly or improperly called part of the res gesta is not material. In the proof of facts so ancient as the birth of John Taylor, the Court do not require the same kind or degree of evidence, as in regard to recent transactions. Where better evidence is not attainable, declarations of unbiassed deceased persons are admitted in questions of legitimacy and pedigree, and the position of Lord Ellenborough, that a birthplace cannot be proved by reputation, is an anomaly not founded in reason. Bateman v. Bailey, 5 T. R. 512 ; Aveson v. Ld. Kinnaird, 6 East, 188 ; Thompson v. Trevannion, Skin. 402 ; Bac. Abr. Evidence, K; PhiHipps on Evid. (6th ed.) 228. But if these declarations are excluded, then the child’s being found at Reading immediately after its birth, is evidence of its having been born in that town; which is equally well for the defendants.
    As to the other point, it was necessary for the plaintiffs to aver and to prove the settlement to be in Burlington. Andover v. Salem, 3 Mass. R. 438. It is sufficient for the defendants to prove that the birth of John Taylor was in some other town than Burlington, without showing in what town.
    
      Locke, in reply, said he had not supposed it would be contended that hearsay was admissible to prove a place of birth, and he referred on this point to 3 Dane’s Abr. 394 ; Alberton’s Lessee v. Robeson, 1 Dallas, 9 ; Douglasses Lessee v. Sanderson, 2 Dallas, 116 ; Davis v. Wood, 1 Wheat. 6; Rex v. Erith, 8 East, 539 ; Goodright v. Moss, Cowp. 591 ; Queen v. Hepburn, 7 Cranch, 290.
   Per Curiam.

By the English authorities, hearsay evidence is admissible to prove pedigree, but not the place of a child’s birth. The reason of the distinction probably is, that where a person is treated as a child for many years, there is rather a course of conduct than a simple declaration showing the relationship ; whereas the question of birthplace presents a distinct fact. This reason, however, is not altogether satisfactory. But the rule of evidence appears to be established, and it has been sanctioned by this Court in a case in which the declaration of an alien as to the place of his birth was rejected. * It is better to uphold the rules of evidence, than to admit testimony of a doubtful character.

We are however strongly inclined to the opinion, that the burden of proof was mistaken at the trial. It was incumbent on the plaintiffs to show first, that the father had not a settlement within the commonwealth ; for though this is a negative in appearance, yet it is proved by showing where he did belong. Otherwise the plaintiffs would always rest their case upon proving that the mother had a settlement in the defendant town.

New trial granted. 
      
       See Shearer v. Clay, 1 Littell, (Ken.) 266; Independence v. Pompton, 4 Halsted, 209; Braintree v. Hingham, 1 Pick. (2d ed.) 247, n. 3; Roscoe’e Dig. Crim. Ev. (Amer. ed.) 22, n. (1); 2 Stark. Ev. (5th Amer. ed.) 611 Jackson v. Etz, 5 Cowen, 320.
     
      
       See Braintree v. Hingham, 1 Pick 247.
     