70 U.S. 175
SCOTUS
1866

Lead Opinion

Mr. Justice SWAYNE

delivered the opinion of the court.

We will consider the exceptions, so far as we deem necessary — both as respects the testimony and the instructions— in the order in which they are presented by the record; [the order which precedes. Hep.']

The first exception relates to the admission of evidence as to what Sarah Evans had said in regard to the marriage of her sister, Elizabeth Taylor, with Mr. Crawford.* Was the testimony rightly admitted ?

Greenleaf says:† “ It is now settled that the law resorts to hearsay evidence in cases of pedigree, upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is therefore restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore interested in the succession in question.”

It is well settled, that before the declarations can be admitted, the relationship of the declarant to the family must be established by other testimony.‡

Here the question related to the family of Dr. Crawford. The defendants in error claimed to belong to the family, and to be his nephew and nieces. To prove this relationship, it was competent for them to give in evidence the declarations of any deceased member of that family. But the declarations of a person belonging to another family — such person claiming to be connected with that family only by *188the intermarriage of a member of each family — rests upon a different principle. A declaration from such a source of the marriage which constitutes the affinity of the declarant, is not such evidence aliunde as the law requires.

It is insisted by the defendants in error, upon the authority of Moncton v. The Attorney-General,* that it was sufficient to show the relationship of the declarant to Elizabeth Taylor. As we understand that case, it has no application to the point under consideration. None of the writers on the law of evidence have given it so wide a scope. Hubback thus† states the principle which it decides: “It is sufficient that the declarant be connected by extrinsic evidence with one branch of the family, touching which his declaration is tendered.” Lord Brougham himself said in that case: “ I entirely agree that, in order to admit hearsay evidence in pedigree, you must, by evidence dehors the declarations, connect the persons making them, with the family. To say that you cannot prove the declarations of A., who is proved to be a relation by blood of B., touching the relationship of B. with C., unless you have first connected him with C., is a proposition which has no warrant, either in the principle upon which hearsay is let in, or in the decided cases.” If it had been proved by independent testimony that Sarah Evans was related by blood to any branch of the family of David Crawford, and her declarations had been offered to prove the relationship of another person claiming, or claimed to belong also to that family, this case would be in point. But the declaration of Sarah Evans, offered to prove that her sister was connected by marriage with a member of that family, was neither within the principle nor the language of that authority.

In Edwards v. Harvey‡ an issue out of chancery was directed, to try the question whether “A. B., from whom the plaintiff claimed, was not proved to be related to C. D., who was the granting party in the conveyance to the plaintiff.” A new trial was moved for, on the ground that the court had rejected a paper offered in evidence by the plaintiff. *189“ It was a pedigree drawn out by Bridget Lloyd, a maiden lady, deceased, showing that C. D., who was her relative, was related to A. B.” The master of the rolls “ refused a new trial, because if Miss Bridget Lloyd’s pedigree, written by herself, were evidence for her relation, so would her declaration have been, to show that she was herself entitled to the estate.”

In Doe v. Fuller* Chief Justice Best said: “ If there were no other evidence than the declarations of John to show that James was a member of the family, they could not have been received, as that would be carrying the rule as to the admissibility of hearsay evidence further than has ever yet been done, viz., to allow a party to claim an alliance with a family by the bare assertion of it.”

We think the court erred in admitting the testimony.

The next question is as to the entry in the baptismal register of St. Patrick’s Church.† The plaintiff in error objected to it as inadmissible for any purpose. If admitted, hb contended that it was competent to prove but the fact and date of the baptism. The court overruled both objections, and admitted the entry as evidence, as well of the fact and date of the baptism, as of the fact that the child was baptized “ as the lawful child of Thomas B. Crawford and Elizabeth Taylor, his wife.”

The register was admissible upon the ground that the entries in it were made by the writer in the ordinary course of his business.

How far such an entry is evidence, is a different question.' Upon that subject, Starkie‡ thus lays down the rule: “ An entry of the time of a child’s birth, although contained in a public register, is not evidence as to the time of the birth, unless it can be proved that the entry was made by direction of the father or mother; and this seems to be received as a declaration made by one of them — for a clergyman has no authority to make an entry as to the time of the birth, and *190possesses no means for making any inquiries as to the fact.” Greenleaf* says: “ It is to be remembered that they are not generally evidence of any fact not required to be recorded in them, and which did not occur in the presence of the registering officer. Thus a parish register is evidence only of the time of the marriage, and of its celebration defacto, for these are the only facts necessarily within the knowledge of the party making the entry.”

Without further evidence, the court ought not to have admitted the entry in question for any purpose but to prove the baptism of the child, and the date of . the administration of the rite. We think this proposition too clear to require discussion.

The third matter is as to the transcript of the record in the Orphans’ Court of Prince George’s County, Maryland. It was proposed by the plaintiff in error to read from it the finding of the jury which, upon one issue directed, — that namely whether Mr. Crawford ever lawfully married Elizabeth Taylor, either before or after the birth of George Thomas Crawford — was in the negative: and also to read the order of the court made thereupon.† The court below rejected the evidence.

Such a result, under the laws of Maryland, to which our attention has been called, has all the elements of res judicata. The transcript was competent evidence against George Thomas Crawford. As to him it was an estoppel, and barred his right of action. But it did not affect the other defendants in error, who were not parties to the proceeding. If they proved a marriage, as alleged, they were entitled to recover the entire property. This they might have done, although the demise was laid in the declaration as made jointly by all the parties. By a statute of Maryland, a joint demise is made several as well as joint, and a recovery may be had accordingly, by one or more of the lessors. In this case it was immaterial to the plaintiff in error, who recovered. A verdict in favor of one or all was alike fatal to *191his claim to the property in controversy. The error of the court, therefore, did him no injury.

"We come, in the fourth place, to consider the matter of the testimony of the Reverend Mr. Fiziac, examined in France on a commission, and whose deposition was offered by the plaintiff in error, and in a large part excluded by the court.*

The witness is not very explicit as to the “ private memorandum” which he testifies that he kept. We understand, from what is said, that it was a book or paper, in which he entered, or intended to enter, each marriage as it occurred. Such entries, being made by the writer in the ordinary course of his business, are competent evidence.

If offered to prove a marriage, the production of the memorandum would have been necessary, for two reasons: it would have been the best evidence of the existence and contents of the entry, and would have given to the adverse party the means, to which he was entitled, of a cross-examination. Here it was proposed to use the testimony negatively. The object was to draw the inference that the marriage had not occurred, from the fact that no entry of it was found to exist. "We think the same''considerations apply as if the purpose had been to prove a marriage affirmatively.

While the memorandum was within the reach of the party, proof that it did or did not contain a particular entry could not be received without producing the memorandum itself. In the absence of proof of a further effort to procure the original — or, failing that, of an effort to procure an examined copy — this objection, taken at the proper time, would perhaps have been sufficient to exclude the testimony. If it had been notified in season to the plaintiff in error that the objection was to be made, he might have obviated the difficulty. The deposition was taken in France, under a commission, upon interrogatories by both parties. The objection could not, therefore, be made before the taking officer. It should have been presented, before the trial, by a motion to suppress. At the trial it came too late. It was *192then to he considered as finally waived.* The court, therefore, erred in rejecting the testimony.

In regard to the other exception relating to this deposition, we entertain no doubt. The cross-interrogatories were not very respectful to the witness. His answers were natural and proper, and should have gone to the jury.

The fifth point raised relates to Mr. Bowie.† "Was the testimony of this gentleman — the attorney who drew the will of Mr. Crawford, and by whom the plaintiff in error offered to prove what was said by the testator in their interviews preceding the preparation of the will, and, in that connection, concerning the illegitimacy of the children and his relation to their mother — rightly excluded ?

It is asserted that the communications upon these subjects to the attorney were covered by the seal of professional confidence, and that he could not, therefore, be permitted to disclose them.

The principle of privileged communications was ably considered by Lord Brougham in Greenough v. Gaskel.‡ .He said: “The foundation of the rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence — in the practice of courts — and in those matters affecting the rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources. Deprived of all professional assistance, a man would not venture to *193consult any skilful person, or would only dare to tell his counsel half his case.”

In Russel v. Jackson,* the contest was between the heirs-at-law and a devisee. The heirs claimed that the devise was upon a trust, unexpressed, because illegal. The question was, whether the solicitor by whom the will was drawn should be allowed to testify what was said by the testator contemporaneously upon the subject? The devisee claimed the benefit of the rule. The Vice-Chancellor said: “ When we pass from cases of conflict between the rights of a client and parties claiming under him — and those of third persons — to cases of a testamentary disposition of a client,, do the same reasons apply ? The disclosure in such eases can affect no right or interest of the client; and the apprehension of it can present no impediment to a full statement to the solicitor, unless he were contemplating an illegal disposition — a case to which I shall presently refer; and the disclosure, when made, would expose the court to no greater difficulty than it has in all cases when the views and intentions of parties, or the objects for which the disposition is made, are unknown. In the case, then, of a testamentary disposition, the very foundations on. which the rule proceeds seem to be wanting; and, in the absence of any illegal purpose entertained by the testator, there does not seem to be any ground for applying the rule in such a case. Can it be said, then, that the communication is protected because it may lead to the disclosure of an illegal purpose ? I think not; and that evidence, otherwise admissible, cannot be rejected upon such grounds. Another view of the case is, that the protection which the rule gives, is the protection of the client; and it cannot be said to be for the protection of the client that evidence should be rejected — the effect of which would be to prove a trust created by him, and to destroy a claim to take beneficially by the parties accepting the trust.”

This reasoning applies to the declarations of the testator here in question. How can it be said to be for his interest *194to exclude any testimony in support of what he solemnly proclaimed and put on record by his will ? Especially can this be said in regard to property to which he never had or assumed to have any title, and in regard to a claim by others to that property, which he did all in his power, by his will, to foreclose ?

But there is another ground upon which we prefer to place our decision. The client may waive the protection of the rule. The waiver may be express or implied. "We think it as effectual here by implication as the most explicit language could have made it. It could have been no clearer if the client had expressly enjoined it upon the attorney to give this testimony whenever the truth of his testamentary declaration should be challenged by any of those to whom it related. A different result would involve a perversion of the rule, inconsistent with its object, and in direct conflict with the reasons upon which it is founded.

Finally, as to the instructions to the jury asked and refused, and as to Jthose given.*

The first and third instructions offered by the defendants in error were properly given. The two instructions submitted by the plaintiffs in error were unexceptionable, and should also have been given. The three instructions given by the -court sud sponte were characterized by a common error. They submitted to the jury, as a qúestion to be considered, whether there was not a marriage at a different time and place, and contracted in a different manner from that alleged by the putative wife, Elizabeth Taylor. Her testimony was clear and positive. It was wholly inconsistent with such a proposition. If there were none as alleged by her, clearly there was none at any time. This was the hinge upon which turned the controversy. All the testimony clustered about and related to that inquiry. The jury should have been so instructed, and their deliberations confined accordingly. Lord Hale says, they should be told “ where the main question or the knot of the business lies.”† The *195further inquiry did not arise in the case. What was said could hardly fail to mislead and confuse. It permitted them to substitute conjecture for deduction, and opened a field beyond the sphere of the case, where the means of error were abundant.

The third of these charges is liable to a further objection. It instructed the jury, that if the facts were as there stated, “ the presumption of law was in favor of the legitimacy of the children.” Under such circumstances the law makes no presumption. The question to be determined was one of fact and not of law. The facts referred to were a i>art of the evidence. They were to be weighed against the countervailing evidence. They might, by possibility, all be true, and yet no marriage have occurred, and the children all be illegitimate.

In our view of the ease, the question of a marriage per verba de presentí did not arise. We have, therefore, not. considered that subject.

Judgment reversed, with costs, and the case remanded to the Circuit Court, with an order to issue a venire de novo.

Notes

Supra, p. 182.

On Evidence, vol. i, § 103.

1 Taylor on Evidence, § 576.

2 Russel & Milne, 156.

On Succession, 660.

Cooper, 38.

2 Moore & Payne, 24.

Supra, p. 182.

On Evidence, 612; 2d Lond. ed.

On Evidence, J 493.

Supra, p. 183.

Supra, p. 183.

York Co. v. Central Railroad, supra, p. 107.

Supra, p. 184.

1 Mylne & Keen, 98.

15 Jurist, l, 117.

Supra, pp. 184-6.

History of the Common Law, 256



Dissenting Opinion

Mr. Justice CLIFFORD

dissenting.

I dissent from the judgment of the court in this ease, and that is all I think it necessary to say in reply to several of the prominent topics discussed in the opinion of a majority of the court. But there are three propositions laid down in the opinion to which I desire specially to refer as not receiving my assent, because I think they are of some practical importance.

1. The Circuit Coui’t admitted the church record, or evidence of its contents, after proof of its loss. The effect of the decision here is that it was not admissible. Unless I am greatly deceived, the ruling of the Circuit Court is sustained by all the authorities upon the subject. Apart from authorities if seems to me that it was correct in principle, as evi denced by the general course of practice.

2. Second proposition referred to has respect to the testi*196mony of the attorney. I think it was properly excluded as falling within the rule of privileged communication; and I am also of the opinion that the suggestion of waiver is utterly without foundation or just pretence.

3. Reference is made in the third place to the construction given to the charge of the Circuit Court. Rightly interpreted, the charge, as it seems to me, is correct; but the opinion of the majority of the court places a construction upon it which I think does great injustice to the judge who presided at the trial.

Having stated the three propositions to which I dissent, I do not wish to add anything to the statement.