Inhabitants of Braintree v. Inhabitants of Hingham

18 Mass. 245

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1822
• Status: Published

Opinion

Per Curiam.

The deposition, when offered as such, having been properly rejected because it was not recorded,¹ it was next attempted to prove by it the declaration of the deponent. To admit it for this purpose would be making the statute nugatory respecting depositions in perpetuam.1

Independently of this objection, however, by the law ol England it is clear, that this evidence was not admissible.² It was not evidence of pedigree, reputation, prescription, or custom.

A case of the same nature occurred in one of the western counties. The question related to the citizenship of a man who had deserted from Burgoyne’s army. Evidence was offered of his saying that he was born in Germany; but it was rejected on the same ground, not being evidence of pedigree, &c.³

The provincial act of 4 Will. Mar. c. 13, required several steps to be taken in regard to warning a person to leave a town, of which a return was to be made to the Court of Sessions. The records in the present case were lost, and inferior evidence might, therefore, have been admitted. But here was evidence of a single fact only, which would, not show that all the requisite steps had been taken, even if the evidence were admissible.

Judgment according to the verdict.

1 Bradstreet v. Baldwin, 11 Mass. R. 229

1 See 4 Campb. 412; Banert v. Day, 3 Wash. C. C. R. 243; Bordereau v. Montgomery, cited in Coxe’s Dig. 306.

2 See the subject of admitting evidence of this kind discussed at much length in the opinions of the twelve judges, in The Berkeley Peerage case, 4 Campb. 401--Reporter.

3 See Wilmington v. Burlington, 4 Pick. 174; Shearer v. Clay, 1 Littell’s R. (Kentucky) 266; Briney v. Hann, 3 Marshall, 326; Brooks v. Clay, 3 Marshall, 550; Chapman v. Chapman, 2 Conn. R. 347; Jackson v. Browner, 18 Johns. R. 37; Jackson v. Cooley, 8 Johns. R. 128; Jackson v. King, 5 Cowen, 237. General reputation and tradition of a family, of the death of one of its members, is admissible in evidence. Pancoast v. Addison, 1 Har & J. 356; Jackson v. Boneham, 15 Johns. R. 226; Jackson v. Etz, 5 Cowen, 314. See also Jackson v. Cody, 9 Cowen, 140; Ward v. Oxford, 8 Pick. 476 Bridgewater v. West Bridgewater, 7 Pick. 191; Little v. Palister, 4 Greenl. 209; Queen v. Hepburn, 7 Cranch. 290; Davis v. Wood, 1 Wheaton, 6; Elliot v. Peirsol, 1 Peters’s S. C. R 328; Chirac v. Reinecker, 2 Peters’s S C. R 620