Jackson ex dem. Garland v. Browner

Sí>encer, Ch. J. delivered the opinion of the Court. Mr. Justice Le Blanc, in Higham v. Ridgeway, (10 East, 120.) lays down the rule of evidence in cases of pedigree with perspicuity, and places it on a reasonable ground. He considers it as a departure from the strict rules of evidence, on account of the great difficulty of proving remote facts in the ordinary way, by living witnesses; “ and on this ground,” he says, “ hearsay and reputation (which latter is the hearsay of those who may be supposed to have known the fact, handed down from one to another) have been admitted as evidence in cases of pedigree.” “ The tradition” said Lord Eldon, in Whitelock and Baker, (13 Vesey, 514.) “ 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, that they are speaking the truth, and that they could not bo mistaken. In'this -case, the point was, whether the lessors of the plaintiff were the heirs of John M'-Ncil. John M’Meil left this country before the resolution, and went to Ireland, where he soon after died ; of these facts there is sufficient proof. Part of great lot No. 4. (and the premises are in that lot) is held under deeds from John M‘Neil, who was the patentee. A part is held under Luke Owens, who claimed an undivided part of the lot under a deed from Thomas Garland. The witness (Shall) then proceeded to state that Owens had informed him that the mother of Garland was a sister of M'Neil, and that he had a number of sisters. It does not appear that Owens is dead, or that he knew, or professed to know, the facts he stated, from any connexion or acquaintance with MKeiVs family, or his sisters. In that respect, Owen’s declarations are of no weight, and to admit them as evidence would be contrary to every rule of evidence. Alexander M'Kinnon says, he was born in "Ballycastle in Ireland, which he left about ten years ago. That he knew the lesser, Daniel Malean; that his father and mother are dead; that he has frequently heard of one John M Jieil, in Ballycastle ; that he understood from the physician who attended him, and others, that [40] he died before the witness’s recollection ¿ and that he has often seen thé house where he died; that he understood, that John M‘Neil left no children; that he understood, that he had four sisters, one of whom married Malean, one married O'Hale, and one married Garland; and he understood that Daniel M‘Clean was the son of a sister of John M'Neil. &c. Ezekiel M‘Kinnon's testimony is to the same purport. Now, the radical defect in all this evidence is, that the witnesses are not themselves connected -with these families, know nothing personally of the facts to which they speak, and have not derived their information from such persons as had any connexion or particular acquaintance with the family from which John M'Neil sprang. All that they state is loose hearsay from some unknown source. Since 1765, John McNeil must have returned to Ireland) for in September of that year, the deed of partition was executed. His death, therefore, is not at so remote a period, but that in all probability there are living witnesses capable of informing us who his heirs were. At all events, the proof here is entirely inconclusive. The evidence falls short, in material respects, of giving any thing but unfounded hearsay, derived from we know not whom. Motion denied.