Sitler v. Gehr

105 Pa. 577 | Pa. | 1884

Mr. Justice Paxson

delivered the opinion of the court, April 14, 1884.

The first five assignments. of error may be considered together,. They raise the question of the admissibility of the declarations of Anna Maria Gehr and John Gehr upon a question of pedigree. The purpose of offering said declarations was to establish relationship between the plaintiff and Balser Geehr, of Berks county. The evidence was objected to because it was not shown aliunde that the declarants were of the family of the Berks county Balser Geehr. The evidence was admitted and bill sealed for the defendants.

The rules of evidence applicable to pedigree cases are: 1. That the statements must be made ante litem motam. 2. Declarant must be dead. And 3. But a prior condition to both these is, that it should be proved by some source of evidence independent of the statement itself, that the person making the statement is related to the family about which he speaks: Smith v. Tebbitt, L. R., 1 P. & D., 354.

It was not denied that the first two conditions had been fulfilled. Neither was it questioned that the declarants were shown by evidence dehors the declaration to be related to the family of Joseph Gehr, the ancestor of the plaintiff, but it was contended that the declarants must be shown by evidence aliunde to be related -to Balser Geehr, of Berks county; in other words, to the person last seised of the estate, or his particular branch of the family. To state the question in another form: the declarants were Anna Maria Gehr and John Gehr; the plaintiffs’ ancestor was Joseph Gehr; the deceased ancestor was Balser Geehr, of Berks county. It was not denied that the declarants were of the family of Joseph Gehr, and it was attempted to show by their declarations that the above named Joseph Gehr and Balser Geehr were related to each. The question was, whether sufficient ground had been laid for such declarations.

The plaintiffs in error contend, not only that the declarants must be shown by evidence aliunde to be related to the family as to which the declarations were made, but also that they must also be thus shown to be related to the person who died seised. The first part of this proposition is undoubtedly true under all the authorities; the latter portion of it is not so clear. I have carefully examined all the authorities cited on both sides upon this point, and many others to which our attention was not called upon the argument, and although there is some conflict in the cases the weight of authority seems to be that while a declarant must be shown by evidence aliunde to belong to the family, it does not appear to be necessary to show that he belongs to the same branch of it. In Vowles v. Young, 13 Vesey, 147, it was held that the declarations of a deceased husband concerning the descent or pedigree of his wife are admissible. And in Jewell v. Jewell, 1 Howard, 219, that the declarations of a deceased husband of one of the plaintiffs claiming as heir of her father, that his wife was not married to her father, were admitted.

It would seem, however, that the declarations of a husband in regard to his wife's family, or of a wife in regard to her husband’s, rest upon substantially the same principles as those of a relation by blood, and these cases do not throw much light upon the qrrestion we are considering.

Doe dem. Jenkins v. Davies, 59 E. C. L. R., 314, cited by plaintiff in error, was an action of ejectment, and the vital question in the case was, whether Elizabeth Jenkins was legitimate ; if she was, it was admitted the verdict must be for defendant. After the plaintiff had offered evidence to show that E. J. was not legitimate, an attorney produced a certificate of the marriage of Eleanor Diller to John Davies, the father of E. J., and stated that he had received it from E. J. when he was inquiring into the pedigree. He was then asked whether E. J. made any statement regarding her mother’s marriage; the question was objected to upon various grounds: “ 1. That she was not yet conclusively proved to be a member of the family; and 2. That the question whether E. J. was a member of the family was in fact the issue for the jury, and if she was decided to be legitimate her declarations to prove-her legitimacy were superfluous. It was held by Lord Den-man, in regard to the first objection, that it was the duty of the judge to decide whether it was proved to him, and he decided that it was; and as to the second objection, he answered it by saying: “Neither the admissibility nor the effect of the evidence is altered by the accident that the fact which is for the judge as a condition precedent is the same fact which is for the jury in the issue.” Here the declarant rvas not shown aliunde to be a member of the family; her declaration tended to make her so.

Blackburn v. Crawfords, 3 Wall., 185, also cited by plaintiffs' in error, does not sustain their contention. In this case the question was, whether Dr. Crawford had been married to Elizabeth Taylor. The plaintiffs claimed to be his nieces and nephews. To prove this relationship they offered the declaration of one Sarah Evans, who was a sister of Elizabeth Taylor. The evidence was held incompetent because she did not belong to the family. The question was, who were Dr. Crawford’s heirs. It was said by Mr. Justice S"WAYNE, in delivering the opinion of the court: “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 declaration had been offered to prove the relationship of another person claiming or claimed to belong also to that family, this ease, Monkton v. Attorney-General, 2 Rus. & M., 157, would have been in point. But this 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.”

Monkton v. The Attorney-General, referred to by Justice Swayne, will be commented upon later in this opinion.

Attorney-General v. Kohler, House of Lords’ Cases, vol. 9, page 653, we regard as authority against the position assumed by the plaintiffs. There the issue was the right of succession fo the estate of one George Keylor, an officer of artillery, who died intestate. The claims of the respondents depended upon their establishing the identity of the intestate with one George Frederick Koehler, which they offered to do by the declarations of Johann Jacob Koehler, an uncle of George Frederick Koehler. It having been established that the declarant was the uncle of George Frederick Koehler, his declarations were admitted as to the pedigree of George Frederick Koehler and the events of his early life, tracing him into the artillery service and identifying him with George Keylor, the intestate. It will be noticed in this case that there was no evidence aliunde to show that Johann Jacob Koehler, the declarant, was related to George Keylor, the artilleryman. It was shown, however, that he belonged to a branch of the family.

In Chapman v. Chapman, 2 Conn., 347, the witness did not name the person whose declaration he had sworn to, nor did it even appear that the declarant was dead. It was properly held that the evidence was inadmissible.

In Davies v. Morgan, 1 Crompton & Jervis, 587, it was ruled that declarations of deceased corporators were evidence of a custom to exclude foreigners. But it was not shown .that the declarant was a member of the corporation. In Doe v. Randall, 2 M. & P., 20, it was held that declarations of a party connected by marriage are a missible. Casey v. O’Shaunessy, 7 Jurist, 1140, was an attempt to prove declarations of a Catholic priest as to the legitimacy of the parties. It was not contended that he was related to any of the parties, and his declarations were only to the effect that the parties had always been reputed to be husband and wife in his parish. In Johnson v. Lawson, 2 Bing., 86, it was held that declarations of servants and intimate acquaintances are not admissible evidence in questions of pedigree. Crease v. Barrett, 1 C. M. & R. Exch. R., 919, involved a question of custom, in which it was held that “declarations of a deceased lord of the manor as to the extent of his rights over the wastes of a manor are not admissible; aliter if spoken of the extent of the waste only.” In Jackson v. Browner, 18 Johns, 37, the witnesses were not connected with the family and had no personal knowledge of the fact of which they spoke, and did not derive their information from persons connected with the family. Waldron v. Tuttle, 4 N. H., 371, merely confines the rule to declarations of deceased persons who had no interest and who were relatives. Gregory v. Baugh, 4 Randolph, 611, is principally a review of all the laws concerning Indian slavery in the State of Virginia, and it was held that in questions of freedom, evidence that there had been a belief in the neighborhood, more than fifty or sixty years before, that the female, ancestor of the plaintiff was entitled to her freedom, was not admissible. Whitelocke v. Baker, 13 Vesey, 514, was a case of partition, and it was merely ruled that the tradition must be from persons having such a connection with the party to whom it relates that it is natural and likely from their domestic habits and connections that they are speaking the truth, and that they could not be mistaken.

Many of the above authorities were not cited by the plaintiffs in error. Most of them are, however, referred to in the authorities they rely upon, and I have gone over them, at the risk of being tedious, in order to ascertain just what they decide. It will be seen that those of them which bear upon this question at all do not go beyond the admitted principle that before declarations of deceased persons can be received in questions of pedigree, the declarant must be shown aliunde to be related to some branch of the family as to which the declarations are offered. The whole question is thus summed up by Mr. Wharton in his work on Evidence, page 216: “ Declarations as to a family in order to be received must emanate from deceased persons connected with such family by blood or marriage.” The same rule is laid down in most of the approved text books. See Phillips on Ev., § 275; Taylor on Ev., 576. The last case to which I shall refer is that of Monkton v. Attorney-General, 2 Rus. & M., 157, where it was said by Lord Brougham: “I entirely agree, that in order to admit hearsay evidence in pedigree, you must by evidence dehors the declarations connect the person making them with the family. But I cannot go the length of holding that you must prove him to be connected with both the branches of the family, touching which his declaration is tendered. That he is connected with the family is sufficient; and that connection once proved, his declarations are then let in upon questions touching that family; not declarations of details which would not be evidence, but declarations of the nature of pedigree; that is to say, of who was'related to whom, by what links the relationship was'made out, whether it was a relationship of consanguinity or of affinity only, when the parties died, or whether they are actually dead; everything in short, which is, strictly speaking, matter of pedigree, may be proved as matter relating to the condition of the family, by the declarations of deceased persons, who, by evidence dehors those •declarations, have been previously connected with the family respecting' which their declarations are tendered. To say that you cannot receive in evidence 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 also by evidence, dehors his declaration with 0., is a proposition which has no warrant either upon the principle upon which hearsay is let in, or in the decided cases; and it plainty involves this absurdity that if, in order to connect B. with 0., I am first to prove that A. is connected with B., and then to superadd the proof that he is connected with C., I do a thing which is vain and superfluous, for then the declaration is used to pi’ove the very fact which I have already established; inasmuch as it is not’more true that things which are equal to the same thing are equal to one another, than that persons related by blood to the same individual are more or less related by blood to each other. It is clear, both upon principle and from total want of any contrary authority in adjudged cases, or in the dicta of judges or text writers, that the argument fails entirely, which would limit the rule respecting evidence of that description to a greater extent than by requiring you to connect with the family, by matter dehors the declaration itself, the party whose declaration you receive.”

This case was much relied upon by the defendant in error, and the facts certainly are strikingly similar to those of the case in hand. The decedent, Samuel Troutback, died at Madras in 1785. After reciting in his will that he had no •relation or kindred alive to his knowledge or belief, having outlived them all, he gave “ unto Mr. John Troutbeck, surgeon, late of the ship Speke, in the English East India Company’s .service, the sum of five gold star pagodas.....as a person nearly of the same name with Troutback, though I solemnly believe and declare that the said John Troutbeck is not in any way related to me, or of the same family or kindred with me, and I disclaim all relationship with him or to him.” The testator then proceeded to dispose of his property by charitable bequests which were void. On the appeal the main question was how far the vice-chancellor was right in rejecting from his consideration, as evidence of the relationship between the testator and the claimants, certain documents purporting to be a genealogical narrative and pedigree of the Troutbeck family. These papers were in the handwriting of John Trout-beck (the surgeon mentioned as legatee in the will), and were found among his papers at the time of his death, which occurred in 1792. The result of the narrative and pedigree was that George, the narrator’s father, and Samuel, the testator, who died at Madras, were descended from the same grandfather, and were therefore first cousins. There was no difficulty in connecting the claimants and the narrator with George of Riding; and the testator was distinctly shown to be the son of Samuel Troutback of Wapping. The difficulty lay in connecting George with Samuel, and this was fully made out by the narrative or pedigree referred to, which was held to be admissible for that purpose. It was to these facts that Lord Buougham applied the language I have cited from his opinion, and the case shows very satisfactorily that while a declarant must be connected with the family — that is, with some branch of it — yet, when that connection is proved, the relationship between different members of the family may be shown by his declarations, or, as is stated in the syllabus to that case: “Where in a pedigree case the object is to connect A. with C., after proving that B., a deceased person, was related to A., it is competent to give in evidence declarations by B., in which he claimed relationship with C.”

We now return to the question of the competency of the declarations in this ease. We have already seen that the declarants were related to the plaintiff’s ancestor. They were therefore of his family. The plaintiff’s name was Banker Gehr, and the question was whether he was related to the Balser Geehr of Berks county. The deposition of the plaintiff, taken after he was one hundred years old, was read upon the tiial below, and he testified that he was named after Balser Geehr of Berks county, and that the said Balser Geehr was his uncle, a brother of his father. It is true that his knowledge of this relationship was derived from his mother. He said : “ About his being my uncle, my mother told me that, she always called him my uncle ; that’s what made me know.” Was this sufficient to justify the learned judge in admitting the declarations?

It is to be observed, in the first place, the evidence was to the court, not to the jury. It is the province of the court to decide whether a sufficient connection had been established to permit the declaration to go to the jury. As was said in Doe v. Jenkins (supra), in a similar ease: “It was the duty of the judge to decide whether it was proved to him. There are conditions precedent which are required to be fulfilled before evidence is admissible for the jury. Thus, an oath or its equivalent, and competency, are conditions precedent to admitting viva voce evidence ; and apprehension of immediate death to admitting evidence of dying declarations; and search to' secondary evidence of lost writings; and so is consanguinity or affinity in the declarant to declarations of deceased relatives. The judge alone has to decide whether the condh tion has been fulfilled. If proof is by witnesses, he must decide upon their credibility. If counter evidence is offered, he must receive it before he decides, and he has no right to ask the opinion of the jury on the fact as a conditign precedent.” See Bartlett v. Smith, 11 M. & W., 483.

The learned Judge below was satisfied and received the evidence. We cannot say he was wrong. The plaintiff was a competent witness, made so by law, and his testimony, as to’ his relationship with Balser Geehr, of Berks County, was properly received. It is true his information was derived-from his mother, and was to that extent hearsay. But a large proportion of the knowledge which every intelligent man has is derived from hearsay. Indeed we scarcely realize how little we actually know from our own observation and investigation. We learn the truths of history, the secrets of science and our knowledge of the world generally, from what we have read, or from what others have told us. What does a man know of his deceased ancestors but what he has learned from his immediate relatives ? How was the plaintiff, who had never seen Balser Geehr, of Berks County, to know that the latter was his uncle except from his mother? It is in just such cases that the strict rules of evidence are relaxed as regards hearsay. If it were otherwise pedigree could not be proved at all in many cases, and in one sense it is primary not secondary evidence. The law upon this point is clearly stated in 1 Wharton’s Evidence, § 201: “ Pedigree, from the nature of things, is open to proof by hearsay in respect to all family incidents, as to which no living witness can be found. If what has been handed clown in families cannot be in this way proved, pedigree could not, in most cases, be proved at all. Nor is such tradition, in its best sense, open to the objections applicable to hearsay. A., called as a witness to pedigree, may indeed say B. told me this. But pedigree testimony usually takes another shape. It is not, ‘B. told this,’ but ‘such was the understanding of the family.’ The constitution of a family may become a matter of immediate perception. A., B., C., and D., are brought up as brothers in the same household; if any one says to A., ‘B. is your brother,’ A. would not regard such an announcement as any more disclosing a fact to him, than would the announcement to him that he is a human being. That B. is his brother is one of the conditions of his family existence. He fits into a family of which B. is a member in the same way that one stone fits into an arch of which another stone is part. The position of one presupposes the position of the other. As to remote relations the same reasoning applies though with diminished force. The recognition of such relations forms part of a family atmosphere ; the existence of such relationship constitutes the family. A family, in this sense, is an object of immediate instead of mediate perception. To say that A. is a brother, or a cousin or an uncle, or an aunt, is not hearsay, but primary evidence. But recognition of pedigree is not limited to such conditions. Even where there is no family consensus to be appealed to, what is said by one member of the family to another as to pedigree may be received to prove such pedigree. Hence it is admissible for A. to prove, with the limitations hereafter expressed, what was told him by deceased relatives as to family relations.”

We cannot say, therefore, that the plaintiff was an incompetent witness to prove his relationship to the Balser Geehr, of Berks County, nor that his testimony was incompetent from the fact that his knowledge upon that subject was derived from his deceased mother. She always told him that Balser Geehr was his uncle; it was a part of their family history; one of their family traditions, furnished by one who had the means of knowledge and no possible motive to falsify, so far as appears in the case. When the plaintiff testified that Balser Geehr, of Berks County, was his uncle, he testified to a fact. The evidence was primary, not secondary. This puts at rest all question of the declarations of Anna Maria Gehr and. John Gehr. They are shown to belong to a branch of the Gehr family and from their position as such likely to have had accurate information of the matters to which their declarations referred. The learned Judge below thought the connection between the families sufficiently established to admit the evidence, aud in this we see no error.

The sixth assignment of error does not require an extended discussion. The evidence rejected does not come within any recognized rule in regard to pedigree. No declarations of any deceased person were offered. It was simply a conversation between two living persons in regard to the Gehr family. Even the conversation was not offered, but merely the conclusion which they drew from it. The offer was properly rejected.

The seventh and eighth assignments relate to the rejection by the Court of “the original record of the Kutztown Evangelical Lutheran Church, commencing in 1810, for the purpose of showing the burial record of Hannah Bast, and the names of her parents, place of birth, dates of birth and death, which was the usual way of keeping the record.” Objection was made to this because it was not a church record, but merely a private book kept by the pastor Rev. John Knoske, claimed by him as his private property, and containing a minute of his acts outside as well as inside of the church.

The further objection was made that the record was not evidence of anything except the death and burial of the person mentioned and the time and place thereof.

The learned Judge held that the book in question was a church registry for marriages, deaths, and burials, that it was intended to be kept, and possibly was kept, according to the requirements of the Act of 1800: that it would be evidence 'to show the deaths of Mary Eva Zimmerman and Hannah Bast, but that for the other purposes offered it was incompetent. Without discussing the character of the book, we are of opinion it was properly rejected. It was not alleged that the time of the death of these ladies was material to the issue, on the contrary, the manifest object of the offer was to prove that Hannah Bast was the daughter of Conrad Geehr and Anna Maria his wife, and to show when and where she was born. This burial list was competent to show the death and burial of these ladies, but what the pastor put down in the book as to their parentage, and the time and place of their birth, was incompetent, for the plain reason that it was no part of his duty to make such entries. Such registers are not, in general, evidence of any fact not required to be recorded in them, and which did not occur in the presence of the registering officer: Phillips on Evidence, vol. ii., *280. It was held in Clark v. Trinity Church, 5 W. & S., 266, that “ an entry in 1811, in the handwriting of the pastor of a church in a book kept in the church as a registry of baptisms and births, the object of which entry was to register the baptism of a person and not his birth, and in which the time of the birth is introduced merely by wajr of description, is not evidence of the date of the birth.”

The rule is thus stated by Mr. Greenleaf in his work on Evidence, vol. i., § 493: “ A parish register is evidence only of the time of the marriage, and of its celebration de facto; for these are the only facts necessary within the knowledge of the person making tire entry. So a register of baptism, taken by itself, is evidence only of that fact, though, if the child were proved aliunde to have been then very young, it might afford presumptive evidence that it was born in the same parish. Neither is the mention of the child’s age, in the register of christenings, any evidence of the day of his birth, to support a plea of infancy. In all these and similar cases, the register is no proof of the identity of the parties there named, with the parties in controversy, but the fact of identity must be established by other evidence. It is also necessary in all these cases that the register be one which the law requires should be kept, and that it be kept in the manner required by law.” This principle is recognized in most of leading textbooks and numerous decisions in England and in this country. It is sufficient to refer to Rex v. Clapham, 4 C. & P., 29; Burghart v. Angerstein, 6 Id., 690 ; Williams v. Lloyd, 39 E. C. L. R., 595; Whitcher v. McLaughlin, 115 Mass., 168; Blackburn v. Crawfords, 3 Wall., 189.

We are unable to see any error in the rejection of the mortgage referred to in the ninth asssignment. The object of this offer was to show that the Conrad Geehr mentioned by the defendants’ witnesses as the father of the Geehrs of Berks county resided in Philadelphia as early as 1739, and that the family of Geehr in Berks county were entirely different from the Lancaster county family of the same name, from whom the plaintiff was descended. The obvious objection to this evidence was that none of the defendants’ witnesses speaks of any Conrad Geehr residing at Germantown, and the recital in the mortgage in no way connected the Conrad Geehr, who was the mortgagor, with the Conrad Geehr mentioned by the witnesses. The bare fact that a Conrad Geehr lived in Germantown, that he borrowed money and gave a mortgage to some one in Oley township in 1743, many years before Balser Geehr is heard of in that township, would not of itself connect that Conrad with this Balser Geehr. Mere identity of name must be accompanied with some circumstances of time or place before we can attach any value to it as affecting rights of property.

It is true there are some authorities which hold that identity of name is prima facie evidence of identity of person. So much was said by Justice Sharswood in McConeghy v. Kirk, 18 P. F. Smith, 203. That this is the ordinary rule may be conceded. But it does not apply where the transaction is remote. The true rule is believed to be that laid down by Chief Justice Gibson in Sailor v. Hertzogg, 2 Barr, 182, where he says: “Identity of name is ordinarily, but not always, prima facie evidence of personal identity. The authorities on the subject may be consulted in Sewell v. Evans, 4 Ad. & Ellis, n. s., 626, from which Lord Denham and other judges of the Queen’s Bench, concluded that identity of name is something from which an inference may be drawn, unless the name were a veiy common one or the transaction remote; and the reason given for casting the onus on the party who denies is, that disproof can be readily had by calling the person whose identity is denied into court. The name in this instance is not a very common one; but after more than a quarter of a century there ought certainly to be some preliminary evidence, however small.” ,The soundness of this rule cannot be successfully questioned. It would work great injustice if rights of property, after a great length of time, were allowed to depend upon mere identity of name. A prima facie case thus submitted to a jury might be extremely difficult, if not impossible, to disprove. I know of no case in which mere identity of name has been held sufficient after the great lapse of time which exists here.

The assignments from the tenth to the fourteenth inclusive allege error in the exclusion of a series of voluminous documents from the public, records of Lancaster county. To go over these papers in detail would extend this opinion to an inconvenient length, and would serve no good purpose. The object of the offers, as I understand them, was to show the pedigree of the plaintiff’s family, and that he was not connected with the Geehr family of Berks county. They show recitals in wills, deeds, mortgages, etc. There are also copies of assessments and other papers. They are, perhaps, the equivalent of the declarations of deceased persons, but there is nothing to connect them, or either of them, with the Baltzer Gehr who is the plaintiff in -this suit, or with the Berks county family of Geehr. Hence the objections made by the defendants to the admission of the declarations of Anna Maria Gehr and John Gehr, and which have already been considered, apply with far greater force to these papers. Regarding them as declarations, the declarants are not shown aliunde to belong to either branch of the family. We are of opinion that these records were properly excluded.

There remain but the- fifteenth and sixteenth assignments, in which error is assigned to the charge of the court in some brief comments made by the learned judge upon the evidence. If not entirely accurate, they disclose no such error as would justify a reversal.

Judgment affirmed.

May 16, 1884. The Cottiít (Paxsoh, J.).

A motion has been made for a re-argument in the above case based upon our ruling in regard to the exclusion of the Lancaster county records by the court. The impression appears to prevail that because we dismissed the assignments of error relating to this question without an extended discussion, we had not examined it with care, or were misled upon the facts. The first assumption is certainly incorrect. I examined this branch of the case with all the more care from the fact that we were not aided by an extended oral argument. The paper books, however, supplied us with a very careful printed argument, so that the loss of an oral argument was not so important as it may seem to the learned counsel for the plaintiff in error. That the point was not more fully discussed in the opinion was owing to the fact that it had already been extended to what I feared was an unreasonable length in discussing the more important questions of the cause.

A careful re-examination and study of the case has failed to satisfy us that we were misled either upon the facts or the law.

The records referred to were offered to rebut the testimony of the plaintiff and to establish the pedigree of his family in Lancaster county. The plaintiff in his deposition had stated that when he was six years old (1788), his father, with his family, moved from Cocalico township, Lancaster county, where he had lived on his brother Paul’s land; second, that his father’s name was Joseph, and that he was the youngest of the family; and third, that his father had three brothers, Paul, Andrew and John, who lived in the same neighborhood in Lancaster county. The plaintiff did not know his grandfather’s name; he never saw him, and then stated that Balser Geehr, of Berks county, was his uncle, upon information derived from his mother. ’

The defendants attempted to show, by the excluded records, that Joseph Gehr, the plaintiff's father, and Paul, Andrew and John Gehr, mentioned in the records of Lancaster county, were brothers; that they were the sons of John Gehr, senior, and hence could not have been the sons of Conrad Geehr, a brother of the Balser Geehr, of Berks County.

The difficulty in the way of the defendants is that there is nothing but identity of name to connect the Gehrs named in the records with the family of the plaintiff. This will not do as to people who died a hundred years ago. The reason and the authority for this position were given in the opinion already filed, and need not be repeated. Not only is there no proof aliunde to connect them, but there is evidence as to Paul and Andrew, at least, which makes their identity more than doubtful. Indeed, it seems hardly possible that they are the Paul and Andrew referred to by the plaintiff. To show the competency of the evidence, the argument was made that the plaintiff had spoken of his father living on his brother Paul’s land in Cocalieo township, Lancaster county. But we must remember that the plaintiff was born in 1782 ; he left Lancaster county in 1788, when about six years old, and the records show that the Paul Gehr named therein died in 1773, which was five years before the'plaintiff was born. And as to Andrew Gehr the case was still stronger, for the plaintiff testified to having seen his father’s brother Andrew, while the Andrew Gehr of the records must have died prior to 1772, according to the records themselves. It is not correct, therefore, to say, that there was .proof aliunde to connect these Gehrs with the plaintiff, and that the plaintiff’s own deposition, furnishes such proof. There is really nothing but identity of name, and even if this were some evidence it would be too weak and inconclusive to base a verdict upon. Unless the plaintiff’s case is a fabrication, and the testimony false as to the declarations of the deceased members of his family, his relationship to Balser Geehr, of Berks county, was established. There is nothing in the case to indicate such a fabrication, and if the evidence rejected had been admitted, it would not be sufficient to justify a jury in coming to such a conclusion.

The rejected records do not contradict the plaintiff’s testimony. As a pedigree of his family, it rests upon a number of circumstances, each dependent upon the other. With the essential links relating to Paul and Andrew Gehr broken, the whole superstructure crumbles.

We see no sufficient reason to order a re-argument, and the motion therefore is refused.