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such feeling as is produced by some subsequent cause, right to feel insecure; there are in fact no grounds or some cause not in being when the mortgage was for such feelivg of insecurity. The only question at executed.

all material in such a case is whether the mortgages In the case of Smith v. Post, 1 Hun, 516, the action does in fact so feel; and if the mortgagee claims that was to recover property which had been levied upon he bas such a feeling, and afterward on the trial testiby virtue of an execution, and which property had fies that at the time he took possession of the property been sold by virtue of a chattel mortgage in favor of he had such a feeling, and if upon the facts of the case the defendant. In this case the General Term of the it is possible at all to believe that any person, however Third Department held that the provision in the timid and fearful he might be, might bave had such a mortgage that in case of default in payment, or in case feeling, then it should be held that the mortgagee bad the mortgagee should at any time deem himself un a right to take possession of the property. Under a safe, he might take possession of the property and sell clause authorizing the mortgageu to take possession the same, was for the benefit of the mortgagee, and whenever he should deem himself insecure, he is entiauthorized him to take possession when there was de tled to exercise this right if he has good reason to fault, or when in his judgment he deemed it best for think, and did think, that he had been overreached in the safety of his demand. And no proof was required regard to the value of the property.” to show that he considered himself unsafe, as the legal We have thus briefly referred to the principal decispresumption would be that such was the fact when ions in our own State and of Illinois, and have given possession was taken before it was due.

the rule as stated by our recent elementary writers Thomas Mort. 4.13, states the rule to be that “whero upon the question. There are numerous decisions in there is a clause in the mortgage which authorizes the other States which we have examined. Whilst there mortgagee to take possession at any time when he is some conflict in the decisions we are of the opinion may deem himself unsafe, the mortgagee may take tbat the weight of authority is in accordance with the the property away from the mortgagor at any time rule as stated by Jones. when he may think it best for his own interest, and if In the case under consideration the defendant testithe power contained in the mortgage justifies such a fies that at the time he took possession of the mare he course, he may sell the property and thus bar the did in fact deem himself unsafe. We are of the opinequity of redemption even beforo the debt becomes ion that there existed reasonable grounds for such due."

feeling. The mortgage was upon the wheat and rye Jones, in his new edition just published on Chattel growing upon the defendaut's farm.

These crops Mortgages, at section 1:31, says: “A provision that the were relied upon in chief to pay the defendant's claim. mortgagee may take possession whenever he shall deem The crops had substantially failed. The plaintiff, when himself unsafe is for his benefit, and authorizes him he examined the crops on the Sunday prior to the sale, to take possession, when in his judgment he deems it reported that he did not believe the crops would pay best for his safety to do so; and upon his taking pos the expenses of harvesting. Ile sold his interest in session before default no proof is required to show the crops to the defendant for $10. The defendant, that he considered himself unsafe, as the legal pre when he harvested the crops, realized therefrom but sumption is that such was the fact. IIe is made the the sum of $39, whilst it cost him 47 to harvest them. sole judge of the happening of tho contingency upon The crops having substantially failed, the mare only which he may take possession. It is immaterial was left to secure the defendant for the amount still whether his apprehensions of loss be well or ill unpaid upon the mortgage. The mare, as the defendfounded. Being entitled to possession of the property ant claims, was worth but the sum of $30. Other witfor such cause, he may maintain an action for the pos nesses corroborated him upon the value of the mare. session of it against any one who detains it, or trover We think therefore that the evidence establishes the for the conversion of it. Ile may moreover take pos fact that he in good faith believed himself insecure. session without making any previous demand for pay If so, within all of the authorities, he would have the ment. Such a clause vests in the mortgagee an abso) right to take possession of the mare under the mortlute discretion to take possession of property when he gage. may deem himself insecure, and the exercise of this Judgment reversed and new trial ordered before right does not depend upon the fact that he has rea another referee, costs to abide the event. sonable ground for deeming himself insecure. Nor is Smith, P. J., Barker and Bradley, JJ., concur ou such a contract a hard and unconscionable one, the last ground stated in the opinion. especially as the right of possession passes with the [See 4: Am. Rep. 15:2; 11 Ohio St. 41; 30 Alb. L. J. legal title by force of the mortgage, in the absence of 40:2; ante, 4; 35 Eng. Rep. 708.] any agreement to the contrary. When the parties have made their own contract the courts will not set them aside and make it new one for them. Such a pro STATUTE (F LLUITATIONS ACKNOWLEDGvision in a mortgage is a contract right, and therefore HEAT- PART PILIE.IT' BY JOIT PROit cannot be impaired by subsequent legislation. If

ISOR. the mortgagor wishes to retain possession of the property until the mortgageo shall have reasonable grounds NEW JERSEY SUPREME COURT, JUNE TERM, 1884. to doem himself insecuro, ho can insert, or have in

PARKER V. BUTTERWORTI.* serted, a stipulation to that effect in the mortgage; or if he wishes to go still furtlier, and retain posses

Defendant, a joint maker of a promissory note, in a letter sion of the propert.y until the mortgagee shall become

written to the plaintiff, admitted that he signed the note in fact insecure, he can have a stipulation put into the

as surety, and added: “It would be impossible for me to

pay the note at this time; therefore I shall be a thousand mortgage to that effect. But if he chooses only to

times obliged to thee if thee will allow it to rest until John have inserted in the mortgage a clauso that he shall

(the other maker) or I, or both, are in better condition to have the right to possession of the property until the

liquidato it.” Helil, to be a qualified promise by the demortgagee shall deem himself insecure, then he can

fendant to pay when his circumstances had so improved only retain the property until the mortgageo does in

that lie had the ability to pay, and that the plaintiff could fact deem himself insecure; and he has no right to

not mako the promiso availablo without affirmative proof question the grounds upon which the mortgagee en

of the substantial fulfillment of the condition. tertains such feelings of insecurity. IIo cannot say to the mortgagee, 'You are unreasonablo; you havo no

*S. C., 40 N. J. Law, 244.


A payment on account by one joint promisor will not remove thereby. It made no alteration in the legal construc

the bar of the statute of limitations as against a co-promo tion or effect of au acknowledgment or promise when isor in whose favor the statute had attached when the proved in the manner prescribed by the statute, and payment was made.

the question whether the document written and signed the rule to sbow cause why a verdict for the

"amounts to an acknowledgment or promise is no plaintiff should not be set aside.

other inquiry than whether the samo words, if proved,

before the statute was enacted, to have been spoken James M. Stratton and Charles Haight, for the ru.v.

by the defendant, would have had a similar operation James Steen, contra.

and effect." Hayılon v. IT'illiams, ņ Bing. 163; Ed

wards v. Culley, 4 II. & N. 378; Dickenson v. Ilatfield, The opinion states the case.

5 C. & P. 46; Wood Lim., § 81. DEPUE, J. This suit was brought upon a joint and The statute has made no change in the law with reseveral promissory note made by John H. Woodward spect to payment on account, except that the indorseand William L. Butterworth, bearing date June 17, ment or memorandum of the payment upon any prom1867, for the sum of $1,241.46, payable to Deborah Par- | issory note, bill of exchauge or other writing, written ker and Leah Parker, or the survivor of them, in one or made after the act went into effect, by the party to year after date. Deborah died in 1874. The suit was whom payment is made, shall not be sufficient proof in the name of Leah, the survivor, as plaintiff, thereof. Payment, as a fact, niust be proved by eviand Woodward being out of the, jurisdiction of the dence aliunde. It may be proved by any kind of evicourt, Butterworth alone was made defendant. The dence, written or oral, which otherwise would be comaction was begun by a summons returnable April 3, petent as proof of a matter of fact in issue; and any 1883. The defense was the statute of limitations. To payment which would have been sufficient before this meet this defense the plaintiff relied (1) on an acknowl- statute was passed is still sufficient to remove the bar edgment or promise to pay, contained in a letter writ of the statute of limitations. Merritt v. Day, 9 Vroom, ten to her by Butterworth, the defendant, bearing 32; Cleave v. Jones, 6 Exch. 573, 578; Bevan v. Gethdate September 1, 1877, and (2) upon a payment of $100 ing, 3 Q. B. 740; Bradley v. James, 13 C. B. 822; First on the pote made June 1, 1882, by Woodward, the Nat. Bunk v. Ballou, 49 N. Y. 155; Wood Lim., § 96. other joint maker.

The statute has the words acknowledgment or By the Limitation Act, as contained in the revision, promise ” and “evidence of a new and continuing which went into effect January 1, 1875, it is provided contract.” The use of these words in the disjunctive in with respect to actions on simple contracts, first, that the statement of the law gave rise to a series of oppos"no acknowledgment or promise by words only shalling authorities, in some of wbich it was held that the be deemed sufficient evidence of a new or continuing statute of limitations was founded on a mere presumpcontract, whereby to take any case out of the opera tion of payment, and that whatever repelled that pretion of this act, or to deprive any person of the benefit sumption was an answer to the statute, and that therethereof, unless such acknowledgment or promise shall fore an acknowledgment of the non-payment of a be made or continued by or in some writing to be debt, though accompanied by a conditional promise, sigued by the party chargeable thereby;" second, or even a refusal to pay, was a sufficient answer to the "that where there shall be two or more joint contrac- statute. These cases were overruled by the Court tors or executors or administrators of any contractor, of King's Bench before the act of 9 Geo. IV. was no such joint contractor, executor or administrator | passed, in Tanner v. Smart, 6 B. & (!. 603, a case which shall lose the benefit of this act so as to be chargeable Baron Parke said put an end to a series of decisions in respect or by reason only of any written acknowl which were a disgrace to the law. Hart v.Prendergast, edgment or promise, and signed by any other or 14 M. & W. 741. others of them;" third, that "nothing herein contained Since the decision in Tunner v. Smart the law in the shall alter or take away or lessen the effect of any pay- English courts has been settled on this footing — that ment of any principal or interest made by any person from a bare unqualified acknowledgment of a subsistwbatsoever;" fourth, “that in actions to be com ing debt tho law will imply a promise to pay which menced against two or more such joint contractors or will obviate the bar of the statute, but that if there bo executors or administrators, if it shall appear at tho in the admission, or on the face of the writing containtrial or otherwise that the plaintiff, though barred by ing such an acknowledgment, any thing to repel the this act as to one or more of such joint contractors or inference of a promise to pay, the rule expressum facit executors or administrators, shall nevertheless be enti cessure tacitum applies, no promise will be implied, tled to recover against any other or others of the defend and the acknowledgment will not enable the plaintiff ants, by virtue of a new acknowledgment or prom to recover. And if the acknowledgment be coupled ise or otherwise, judgment may be given, and with with a promise which is qualified or conditional, costs allowed for the plaintiff as to such defendant or neither the acknowledgment nor the promise will be defendants against whom he shall recover, and for the available unless the condition has been performed or other defendant or defendants against the plaintiff: ” the event happened by which the promise is qualified. fifth, “that no indorsement or nemorandum of any Smith v. Thorne, 18 Q. B. 134, Hart r. Prendergast, 14 payment, written or made after this act shall go into M. & W.711, 741; Siduell v. lluson, 2. II. & N. 306, 309, effect, upon any promissory note, bill of exchange or 310; Everett r. Robertson, 1 El. & EI 16-19; In re River other writing, by or on behalf of the party to whom Steamer Co., L. R., 6 Ch. App. 822-8:28; Skect r. Lindsuch payment shall be made, shall be deemed sufficient suy, L. R., 2 Exch. Div. 314-316; Wood Lim., $ 85. proof of such payment so as to take the case out of tbe The weight of authority in the courts of this counoperation of this act." Rev., p. 595, 596, $$ 10, 11. try is in accordance with the English doctrine, as will

These sections are in substance the same as sections appear in the note of the American editors to IT hit1 and 3 of 9 Geo. IV., ch. 14 The only change they comb r, Whiting, 1 Sm. Lead. ('as. 98?; and sucb has made iu the law is with respect to the rules of evi- been the course of decision in this state. Belles v. dence. Before this statute an acknowledgment or Belles, Ilal. 339; Ridguay r. English, 2 Zab. 409, 413, promise to pay, or a payment on account, under some 419; Errs of ('onorer v. Conorer, Saxt. 103. circumstances, would take a case out of the statute of The defendant's letter of September 1, 1877, relied on limitations. The new statute simply required that the as an acknowledgment or promise, was written in anacknowledgment or promise to have that effect should swer to a letter of the plaintiff, which was not probe in writing, and signed by the party to be charged duced in evidence. No part of the defendant's letter,

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except the paragraph which will be quoted, coutains 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 ciear 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 defeudant 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 iniproved 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, Ilaydon v. Williams, supra: Scales v. Jacob. 3 Bing. 638; Ayton v. Bolt, 4 id. 105; Edmunds v. Downs, 2 ('. & M. 459; Jeyerhoff v. Froehlich, 40 P. Div. 63; Tompkins v. Brown, 1 Den. 247; Wood Limitations, $77); aud 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, tho 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 mo to raise it, but I thought theo needed it." There was some evidenco that there was another indebtedness on the part of Woodward to the plaintiff besides the note in suit. The judgo left the question to the jury whether the payment was made on account of this noto, under proper instructions, and I think there was sutlicient evidence to justify the jury in finding that the payment was mado thereon.

Woodward removed from this State shortly after the note was given. IIo resided in California when the suit was brought. Although the fact does not appear distinctly by the evidence, it is probablo that his continued residence out of this Stato avoided the bar of the statute of limitations as against him. Butterworth resided in this State, and the statuto was a bar to any action against him on tho note at the time this payment was made. The problem presented by theso facts is whether a payment on account by one joint promisor will removo the bar of the statuto of limitations as against co-promisor in whoso favor the statute had attached when tho paymont 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 noto executed by the defendant. Pleas, non (ssumpsit and non assumpsit infra sex unnos. The plaintiff produced a joint and several noto 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 judgo thinking that was sufficient to take the case out of the statute as against the defendant, a verdict was found for the plaiutiff. On rule to show causo before Lord Mansfield, Chief Justice, and Willos, 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; aud in the same manner au 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 defend. ant 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 tho payment was made after the statute had effected a discharge of the latter from the joint obligation. The other leading Evglish cases on tbo subject aro 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 (ctober 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 aocount 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 .10lroyd, J., Stott had the benefit of the part payment, and ho 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 statuto, are Channell v. Ditchburn, 5 M. & W. 494, and Goddard v. Ingram, 3 Q. B. 839.

In Chunnell v. Ditchburn the suit was against the

* *


makers of a joint and several promissory note. The Tredgold. The suit was against the heirs of a deceased proof was of the payment of interest by one of the obligor on a bond which was joint and several. This makers within six years from the commencement of court and the Court of Errors held that a paythe suit, but more than six years after the note be ment on the bond by the surviving obligor, after the came due. The debt had been once barred by the death of bis co-obligor, did not take the case out of statute, and the court held that it was revived against the statute as against the heirs of the latter. This deboth the makers by the payment of interest by one. cision was made on the authority and reasoning of The case was decided on the assumption that Ihit Atkins v. Tredgold, that the payment was not made comb v. Whiting was a parallel case, and on the au whilst the joint obligation of the two parties existed, thority of Manderston v. Robertson, 4 Man. & R. 440. and that the agency of the one to act for and bind the On looking at the report of Manderston v Robertson it other ceased when their joint liability was ended. will be found that that point was not adverted to. Whitcomb v. Il'hiling was again approved in this court

In Goddard v. Ingram the suit was against surviv. in N[erritt v. Day, 9 Vroom, 32. That suit was against ing partners to recover the balance of a debt due on partners on a firm note. The payment by one partpartnership account, on which one of the partners had ner, which was regarded as taking the case out of the made a small payınent after the whole account was statute, though made after the dissolution of the partbarred. The payment was made after the dissolution nersbip, was before the time of limitation had lapsed. of the partnersbip, and when the partner making it The chief justice in his opinion gives that circuinwas “in the jaws of bankruptcy,'' and the jury found stance special prominence, and in commenting on that the payment was made by him in concert with Whilcomb v. Whiting deduces“ a right * in the plaintiffa, in fraud of his copartners. This case was either of the joint debtors to arrest by his solo act the decided after Channellv. Ditchburn, and there was running of the statute,' "o from the existence of the also promijentin it the question of the agency of part- | joint indebtedness,” and “infers from the fact of the ners in the matter of partnership business after a dis- joint obligation and the unity of interest the agenoy solution of the firm. The court set aside a verdict for to renew the contract as against the force of the statthe defendant without stating the grounds of decision, or assigning any reason except that they could We are bound by IFhitromb v. Whiting, for the reanot forbear to act on the numerous authorities.

son I hare mentioned; but the other English cases I There is another class of cases which will throw have cited we aro under no constraint to follow, exlight on the principle involved in the matter under cept so far as they have already been adopted by our discussion. I refer to those decisions which hold that courts. The doctrine that a joint debt, when once payment by one promisor after the death of his co barred by the statute, can be revived as against all the promisor will not revive the debt as against tho per original debtors by the unauthorized act of one of sonal representatives of the latter. Of this class them, adjudged in Channell v. Ditchburn and Goddard Atkins v. Tredgold, 2 B. & C. 23, is the leading case. v. Ingram, bas neither reason nor justice for its supThe suit there was against the executors of John port. That such a doctrine was considered as either Tredgold on joint and several promissory notes made unjust or unwise is shown by the fact that in England by John Tredgold and Robert Tredgold, bearing date it has been overturned by act of Parliament. 19 and respectively January 17, 1806, and January 17, 1809. 20 Vic., ch. 97, § 14. The true principle on which WhitJohn died in March, 1810, and Robert continued to comb v. Whiting rests is that of the agency of joint pay the interest until May, 1816. The court, consist debtors for each other, inferred from the wity of ing of Abbott, C. J., Bayley, IIolroyd and Best, JJ., their interest, which makes the act of payment by the held that the payments made after the testator's death one the act of all-an agency which arising out of the did not take the case out of the statute. All the judges joint indebtedness, subsists only so long as the joint distinguished the case from Whitcomb v. Whiling, and indebtedness continues, and ceases as soon as the joint declared their unwillingness to extend the principle of liability being determined, the parties become as that decision. Bayley, J., speaking of Whitcomb v. strangers to each other. Aikins v. Tredgold and DisWhiting, distinguished that case from the case then borough v. Bidicman's lleirs were decided on this before the court, in that the statute had attached be reasoning, and there is no rational distinction between fore the payment was made by Robert; and “there the determination of the joint interest of the parties fore," he said, “John Tredgold being at that time pro by death and its termination by the bar of the statute tected, could not be subjected to any new obligation of limitations, which makes the lapse of time a posiby the act of Robert.” Holroyd, J., referring to Whit tive and legal bar in all cases within its provisious. comb v. Whiting, said, “that case has gono far enough, Thorpe v. Corwin, Speno. 311. but it does not govern the present. There the defend I have not referred to cases in the courts of our sisaut Whiting was liable upon a joint promise at the ter States. Whitcomb v. Whiting has given rise to so time the payment was made. The court decided that much discussion, with great diversity of views, and when one of two joint promisors pays a part, that was been so denied and qualified, not only by judicial deto be considered in law as a payment by both. But cisions but by legislation, that a reference to the here at the time when the payment was made, the joint American cases would be of little profit. The courts contract had ceased to exist; for it was determined by of some of the other States have adopted the same the death of John Tredgold.”

views on this subject that we have expressed, as will Turning from the English decisions to the cases in: be seen by the notes to Whitcomb v. Whiting, 1 Su. our courts, we find Whitcomb v. Il'hiting approved and Lead Cas. followed in Corlies v. Fleming, 1 Vroom, 319. Iu that The verdict should be set aside and a

new trial case the suit was commenced July 11, 1861, against the granted. two defendants, on a joint and several note giren by them aud one Farrington, since deceased, dated Sep

EVIDENCE DECL 11'ITIOUS IS TO PEDIGREE. tember 4, 1850. The interest on the note had been paid by Fleming erery year to the year 1860, inclusive.

MAINE SUPREME COURT, JUNE 10, 1884. Each payment of interest was made at a time when the joint liability of the defendants existed, and each one

NORTIIROP V. IIALE. * of these payments renewed the joint obligation for six

On the question of pedigree declarations are admissible. (1) years. Disborough v. Bidleman's Heirs, 1 Zab. 677, ap

When it appears by extrinsic evidence that the declarant proved Thitcomb v. IThiting, and followed Atkins v.

*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 inte liten motum. Thus in deterinining 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.

APPEAL from the decree of the judge of probate.

The states the . Nathan & blowy B. Cleaves and 11. 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 tho family of the intestate's sister, in which also the intestato 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 sufliciently general to include declinrations 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 eridence. For the practice in such cases seems to be that some evidence of the requisito relationship (though the exact degree may not be essential perhaps, l'oules v. Young, 13 l'es. 110) dehors the declarations must be shown before they can be admitted. Futter V. Rundall, 2 Moore & P. 24; Plumut v. Taylor, 7 Ilurl. & Vor. 237; Gee v. Ilird, E. & B. 511.

And this evidence is primarily addressed to the presiding justice, who, before admitting the declarations, must be satisfied that a prima furie case of the requi. site relationship has been made out. Denliins v. Duris, 10 Q. B. 313, 3.22; Ilitchins t'. Earlley, L. R., 2 P. & 1). 248. And the facts shown, the birth, place of birth, the bringing up and name of the appellant, are ample primu fucie evidence of relationship to warrant the admission of the declaration mentioned. 4 ('amp. 416; Viall v.

Smith, 6 R. I. 417. Still thero is somo apparent discrepancy in the practice. Blackburn v. (ruufords, 3 Wall. 17:3; Jewell v. Jewell, 1 low. 219, 231;

Alexander v. (hamberlin, 1 Thomp. & Cook (N. Y. Sup. ('t.) 600.

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

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 beariug upon the is. sue, and that the question intended to be raised by the parties is: Whether, in determining who are the right

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 owu 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, ('owp. 591; 1 Greenl. Ev., $S 253, 344; Haddocle v B. & M. R., 3 Allen, 300; Abington v. Duxbury, 105 Mass. 287. ('an 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, ('. J., remarked that the admission of evidence in such cases must be subject to some limits; limiting declarants to relatives connected by blood or ma ige 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. l’owles r. Young, 1:3 Ves. 147; Whitelocke v. Baker, id. 511; 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: (i) When it appears by evidenco dehors the declarations that the declarant was lawfully related by blood or marriage to the person or family whose history the facts concern. (32) That the declarant was dead when the declarations were tendered. (3) That they were made ante litem motam. 1 Greenl. Ev., $$ 103 et seq. and notes; 1 Whart. Ev., $S 201 et seq. and notes; 1 Tayl. Er., $$ 571 et seq. and notes; Best Prin. Ev. (1m. ed.), $ 198 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 conneotion with the party to whom they relate, that it is natural and likely, from their domestic habits and connections, that they aro speaking the truth and caunot be mistaken."

Lord ('hancellor Erskino 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." l'oules v. Young, Supra. This view was adopted by Prof. Greenleaf. 1 Greenl. Ev., s 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 information on the subject.” 1 Taylor Ev., $ 571. Do not the

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