Open main menu

Page:United States Reports, Volume 2.djvu/123

This page needs to be proofread.


Surinam: Conroe Pemjylomnia. 'xrj to alepolitions, and there proof by other witneilizs ought to ryg r. beuugiven of the deponenfs death. That all the cafes required VV" pmj,whieh mult be nnderllcood, by dilinterelled wimeffes. r dri. 445. 2~S!ra. gzo. Gilb. I•`or.R•m. 14o. Sb¤rv.~g6g. Upon the fmud point, he admitted, that flighter evidence was required of pedigree than of many other things, fnch as general » report, declarations of parents after their death, &c. but he nr- 5i that this tgeneralreport mult be proved on oath before' the nrt; and at the declaration of parents who could be produ- ced and {worn, and were alive,was no evidence. Coup. gg:. So infcriptions on tomb-llones, or entries in family bibles; but the teflimony of fuch infcriptions, or of fnch entries, mufl: be in the nfnal courfe. Copies ·of· parilh regiflers were good ; yet even thefe mult be proved on oath to be true copies. In this cafe there was no regular proof, that the leaf of the bible produced was ever cut out of the family bible of M•Mi¢.5kx¢L It depend- ed partly on the uotary’s certificate, and, partly, on the ex parte depoiition taken before him in the adjoining llate; neither of which were evidence. Lewir ifhewed canfe againil the rule, and urged that the was a captions exception, the merits being clearly with the plain- tiff} and that the evidence only came in aid of other proof That he confidered the firlt point as fettled, having been fo ruled in . the cafe of Lwanf lefiee ·u. Hurt. That in the leffee of Marvi: ru. Flora, the depofition of a witnefs was read on proof by oath · of the plaintiff, that the witnefs was infirmand unable to attend. That none of the cafes fay it mult be bly diiinterelted proof; and the law does not requirethe fame ri&nefs in the proof offered to fatisfy the confcicnce of the conrt,_that it does in the proof offered to a jury. ` ` ` _ On the _/Brand point he urged, that flight proof was fuiiicient - _- ` in the cafe of pedigree ; and that this evidence admitted by the `“ `° judge was only corroborative of other proof, and therefore as ‘ 1-*- juftice had been done, no caufe for a new trial. He faid that ex parte affidavits had often been admitted in evidence, parti- cularly in the cafe of I·bgler’.r leilicc ·u. Simpjbn, tried at Larmf » ter 1 78 : and that though thcfe were affidavits taken beyond [eas, that there could be no lim: drawn but the jurifdiétion of the court. That heariixy being fullicient evidence in cafe of pedi- gree, this was flronger, being on oath and certified by a notary. Brmybrrl, in reply, obferved, that the eafit of ex parte aflidavits had been confined to thofe of perfons beyond feas, and it would be very pernicious to extend the rule. That the only circum- fiance, that could give any validity to the leaf in quellion, was regular pmnf of its being inthe bible of ]l·I‘]lIi¢l·.w’, and written by him, orhy his clireéliotie. But no legal proof was given when . the