2 Conn. 347 | Conn. | 1817
It is a general principle in the law of evidence, that hearsay from a person not a party to the suit, is not admissible ; because such person was not under oath, and the opposite party had no opportunity to cross-examine. But in ancient transactions, where no living witnesses can be bad, it has become necessary to adopt a different rule ; and in such cases, it has been decided, that the declarations, memoranda, or entries made in writing, with regard to any facts, by persons in a situation to know the truth, and under no bias to misrepresent, shall be admitted as evidence of such facts j for this is the best evidence the nature of the case will admit ofand is, therefore, admissible from necessity.
The declarations of the deceased members of a family, or those who have lived in the family, and may, from their con-nexion with it, be supposed to know the state of it, áre ad mis-
It is not, however, every statement or tradition in the family, that can be admitted in evidence. The declaration must be from persons having such a connexion with the party to whom it relates, that it is natural and likely, from their domestic habits and connexions, they arc speaking the truth, and cannot be mistaken j and when they are made for the express purpose of being given in evidence on a question of pedigree, they will not be received. If a person were to take up a biblfe, and having the idea that it was afterwards to be produced in evidence, were to w rite down, at once, the births and deaths of his children, such an entry would not be admissible.
But the declarations of a deceased member of the family are not to be admitted, unless it appears they have been made under such circumstances that the relation may be supposed to be without an interest, and without a bias. If they w ere to be made on a subject in dispute, after the commencement of a suit, or after a controversy preparatory to one, they ought not to be received in evidence, on account of the probability that they were partially drawn from the deceased, or perhaps intended by him to serve one of the contending parties.
The opinions of deceased neighbours or acquaintances of the family, are not evidence in a question of pedigree ; for they cannot be supposed to have that certain knowledge which can be relied on. It is also essential, that the relative should be deceased to make his hearsay admissible; for otherwise, he can be produced in court.
From this it appears, that the deceased relative, whose declarations are given in evidence, is to be considered as standing on the foot of a witness, and the hearsay declarations are admitted in lieu of his testimony. It is, therefore, essential, that the relative whose declarations are given in evidence, should be named, so that the court may be enabled to know whether his relationship or connexion with the family, whose pedigree is in question, was such that he may be supposed to know the truth of the declarations ; and whether
But in the present case, the deponent docs not name the person whose declarations lie Isas sworn to ; so that it cannot be known whether the relationship or connexion with the family was such that they could know the truth of what they said, or whether they were under a bias or interest not to speak the truth. Nor does it appear, that the persons whose declarations are sworn to, are dead. Nor does the deponent testify to a declaration, from any person, that Lydia was the daughter of Nicholas Ackley, but only that she inherited the common and undivided land of Nicholas, and was his relative. To make the evidence admissible, he should have sworn to declarations of such relationship as made her the heir of Nicholas as to the land in question ; for a general declaration by a living witness,that a certain person inherited the land of another, without being able to tell by what relationship, would be inadmissible.
New trial to be granted.
