Viall Others v. Smith

We see no reason to doubt the admissibility of the evidence offered by the plaintiffs to prove that their mother was the legitimate daughter of Ebenezer Smith, to wit, that she was called and treated as his daughter, both by him and by his family. Evidence from reputation in the family is clearly good upon a question of pedigree. Goodright d. Stevens v. Moss, Cowp. 591; Vowles v. Young, 13 Ves. 145-148; Whitelocke v.Baker, Ib. 514; Doe d. Northey v. Harvey, 1 Ry. M. 297;Jenkins v. Evans, 10 Ad. Ell. (N.S.) 314; Jackson v.Browner, 18 Johns. R. 39. Nor is this evidence objectionable if the registry of marriages and births in the town of Barrington speaks a different language, upon the notion that the latter, as record evidence, is, as long as it exists, the exclusive evidence upon this subject. Such a registry, though it may have more force, is of no higher legal degree, as evidence, than that which it was in this case invoked to exclude; being admissible, as a public document, upon the mere prima facie presumption of its correctness, because kept in the course of his official duty by a person accredited by the public. 1 Starkie on Ev. 196, 300, (8th Am. ed.); Jackson v. Boneham, 15 Johns. R. 228. Indeed, as a registry of the marriage, we are of opinion that the registry here produced, because not such as the law required, has no force whatever as evidence. The statute in relation to such registries then in force, (Dig. 1798, pp. 486, 487,) required, by its first section, that all persons having authority to join persons in marriage should, immediately after the solemnization thereof, give a marriage certificate in a prescribed form; and by its second section, that the persons married should within a month, subject to a penalty for neglect, have the certificate registered in the town clerk's office of the town where the marriage was celebrated. The evidence of the marriage here provided is the certificate of the person authorized by law to join persons in marriage; and the registry was designed to perpetuate and make known this evidence. The marriage registry differs from that of births and deaths, required by the third section of the same statute to be kept by the town clerk, upon information to be furnished to him, in case of children, by the parents of the children born or dying. The town clerk of Barrington, whose registry is here produced, seems to have confounded these requirements; and to have recorded a marriage in the same manner that he did a birth or death — as a fact occurring within his own knowledge, or of which he is informed by others, or even by mere rumor. Certainly, this is not the kind of marriage registry which the law appointed him to keep, substituting, as it does, his own declaration, for the record of an official certificate. Such a document is presumed to be correct merely because kept by a public official in the course of his official duty; and if not so kept, how can such a presumption arise? Upon this ground, therefore, if the former was wanting, a marriage registry thus kept could not stand in the way of family repute, so as to exclude it as evidence.

It is suggested, however, that such a registry, though not kept as required by law, may be admitted as evidence of pedigree, upon the same principle that inscriptions upon monuments, or engravings upon rings are; and that is, as explained by Lord Erskine in Vowles v. Young, supra, that the family would not permit such an inscription, if it were erroneous, and the person would not wear the ring, with a falsehood engraven upon it. The difficulty with this suggestion is, that it assimilates a town-clerk's entry, as a source of presumed family repute, with an inscription upon a family monument, or an engraving upon a family ring; that it confounds that which upon its face is the act of a stranger, with that which usually is, and therefore, in the absence of proof to the contrary, is presumed to be, the act of the family. No doubt, if this declaration of the town-clerk of Barrington, as to the time of Ebenezer Smith's marriage, was traced by proof to information furnished by him or by the members of his family, such sanction, by way of family repute, would render it admissible as evidence. But without such sanction, why is his written declaration not under oath — not made in the course of official duty, because not such as the law authorizes him to make — to be received in evidence, more than that of any other stranger to the family? In May v. May, 2 Stra. 1073, a book of daily entries of chris tenings, out of which the parish-clerk, once in three months, posted his entries into the parish registry, was rejected, when offered to prove that the plaintiff was illegitimate, by the letters "B.B." for "base-born" being added to his name; no such mark being against his name in the parish registry. Upon this case Mr. Starkie remarks, "If the entry in the day-book, which represented the plaintiff to be illegitimate, had been made under the directionsof the reputed father and mother, the evidence would, it seems, have been admissible, as the declaration of a deceased parent. In the absence of such evidence, it appeared to be nothing more than a private memorandum, made for the purpose of assisting the clerk to make up the registry." 1 Starkie on Evid. 298, n. h, (8th Am. ed.); see also Duins v. Donovan, 3 Hag. 301. In no other light than as a private memorandum, can we regard the written declaration of the town-clerk of Barrington, here produced, as to the time of the marriage of Ebenezer Smith. Since he does not profess to record what alone by law he was authorized to record, what he has written must be regarded as his personal, and not his official act; and is not admissible in evidence without accompanying proof to connect it with information furnished by the family. As no such evidence accompanied the certified copy from the registry produced in this case, we are of the opinion, that the judge who presided at the trial committed no error, when he instructed the jury, wholly to disregard the copy, as evidence of the illegitimacy of Louisa Viall.

We do not think that the proof offered, on the part of the defendant, of the declaration of Ebenezer Smith, "that unless he made a will, Louisa could get nothing by law," points with certainty to her illegitimacy. It would be just as true if she had been fully advanced, as if she had been illegitimate. The meaning, however, of such an expression, depends so much upon the connection in which it is used, that it should have gone to the jury for them to judge, whether the speaker used it in the sense attributed to him by the defendant. The rejection of the proof precluded this right of the jury; and for this reason there must be a new trial of this case, — the costs to abide the event of the new trial.