Halliday v. McDougall. principal testimony as to the foreign partner, it is fair to presume he placed much stress upon it. In McPherson v. Rathbone, 11 Wendell, 98, the court say it was undoubtedly competent to have proved a partnership of all the defendants by general reputation, but probably no such reputation could be shown as to Samuel Rathbone. If Chief Justice Savage (who delivered the opinion of the court in this case) intended to lay down the broad doctrine that a copartnership may be proved by general reputation, I am of the opinion he has carried it further than it has been carried in any other case, and further than prudence and sound discretion would warrant. But I am not prepared to believe he intended thus to extend the doctrine. As the case then under consideration called for no such decision, I think that portion of his opinion is to be regarded rather as a dictum, than as laying down so important a principle of law. While no case has been found to sanction the doctrine to such an extent, there are several cases which, either in substance or in direct terms, repudiate it. Whitney v. Sterling, 14 Johns. 216. 2 Har. & Johns. 400. Brownson v. Crandall, 11 Conn. R. 93. Goddard v. Pratt, 16 Pick. R. 433. The position contended for by the plaintiff's counsel, that in actions against partners, it is not required of the plaintiffs to give as strict proof of the existence of the copartnership, as partners themselves are required to give when they are plaintiffs, is undoubtedly correct. Cary on Part. 136. And the reason is obvious. In the latter case the facts are presumed to be within their own knowledge; but not so when the plaintiff is endeavoring to show the defendants partners. In such cases, to establish a joint liability, it is sufficient for the plaintiff to show that the defendants have held themselves out and appeared to the world in the character of partners, and that they have carried on their business together. Cary on Part. 136. I am of the opinion, therefore, that the testimony was proper to be submitted to the jury, and was properly submitted; that the charge of the judge was correct, and that the judgment of the supreme court should be reversed. Russell v. Schuyler. On the question being put, Shall this judgment be reversed? all the members of the court voted in the affirmative. Whereupon the judgment of the supreme court was accordingly REVERSED. RUSSELL US. JACKSON, ex dem. SCHUYLER and others. For the purpose of raising a presumption or proving a pedigree in an action for the recovery of lands by recitals contained in an ancient instrument, the probate of a will as a will of personal estate, or the record thereof in the proper office, is admissible in evidence. Evidence of pedigree; and evidence to warrant the presumption of an an. cient grant. ERROR from the supreme court. This was an action of ejectment brought by the heirs of the late Gen. Philip Schuyler against Timothy Russell, for the recovery of a lot of land lying in that part of Cosby's manor in the county of Oneida, which is situate on the south side of the Mohawk river. The cause was tried in October, 1827, before the Hon. NATHAN WILLIAMS, then one of the circuit judges. The jury found a verdict for the plaintiff. The defendant having tendered and procured a bill of exceptions to be sealed, moved the court for a new trial; which motion was denied and judgment rendered for the plaintiff. The defendant thereupon sued out a writ of error. The facts detailed in the bill of exceptions for the purpose of presenting the questions of law raised upon the trial are voluminous, but are sufficiently detailed in the opinion of the CHANCELLOR. The cause was argued in this court, by. C. P. Kirkland, for the plaintiff in error. J. A. Spencer, for the defendant in error. After advisement the following opinion was delivered: By the CHANCELLOR. The writ of error in this case is brought to reverse a judgment of the supeme court, by which the heirs of the late General Shuyler, the lessors of Russell v. Schuyler. the plaintiff in the court below, recovered a lot of land in the possession of Russell, the defendant, in that part of Cosby's manor which lies on the south side of the Mohawk river. It appears by the patents which were produced in evidence, that this tract of land, which was afterwards called Crosby's manor, was granted in two patents, to Joseph Worrell and others, on the 2d of January, 1734, as lands purchased from the Indians, by the German settlers, by license of Governor Burnet. General Schuyler derived title to the premises by a deed from Henry Augustus, Duke of Grafton, Charles Lord South Hampton and others, claiming to be the heirs at law of Lady Elizabeth Jeffreys formerly the wife of Lord Augustus Fitzroy, executed March 6, 1793, by John Watts as their attorney. And the two principal questions for our consideration are: First. Whether the evidence of pedigree, produced by the lessors of the plaintiff upon the trial, was sufficient to show that the grantors in the deed of 1793, to General Schuyler, were the grand children and heirs at law of Col. William Cosby, the former governor of the colonies of New-York and New-Jersey? and, Second. Whether the evidence was sufficient to authorize the presumption of a conveyance of Cosby's manor, by the original patentees thereof, to Gov. Crosby previous to his death? Another question has been raised as to the evidence of the will of Gov. Cosby as a will of real estate. But though I agree with the supreme court, that the probate was legal evidence in this case under the statute, even if it had been necessary for the lessors of the plaintiff to trace their title through that will, the question is of very little importance in the decision of this cause. The evidence shows that Gov. Cosby had two sons, William and Henry; and it appears to be wholly immaterial whether the descent of the premises in question to Lady Elizabeth Fitzroy, is traced through her brother William, as the oldest son, who by the common law was the heir of his father, or through him as the devisee of his father under the supposed will. In either case, to enable her to take the property by descent, it must be presumed that her brother Henry died without issue; or at least that his issue had become extinct previous to her Russell v. Schuyler. death in 1788, as he or his issue, by the common law, would take by descent from the elder brother in preference to her. If William and Henry both died without issue, or if neither had any issue living at the time of her death, the real estate which formerly belonged to her father, and which had not been sold by his heirs or devisees in her lifetime, must necessarily belong to her: either as the heir of her father, or of William her oldest brother, or of her mother Orace Cosby, who was the sole devisee of all the real estate of Henry the younger brother. And for the mere purpose of raising a presumption or of proving a pedigree by the recitals contained in an ancient instrument, I think the probate of the will before the proper officer as a will of personal estate, or the record thereof in the proper office as required by law, must necessarily be of as much if not of more force than the production of an ancient will itself without any proof of its actual execution by the supposed testator; Mr. Justice Buller's opinion to the contrary notwithstanding. See Bull. N. P. 246. 1 Moody & Rob. 466. To establish the pedigree of the grantors in the deed of 1793, to General Schuyler, and to show that their mother was the sister and only surviving heir of William, the eldest son of Governor Cosby, the lessors of the plaintiff called John Watts, who was born previous to 1750; he being seventy-eight years of age at the time of the trial in 1627. He testified that Lord Southampton, one of the sons of Lady Elizabeth Fitzroy, or Jeffreys, was connected with him by marriage, having married his first cousin; that he had seen him in this country in 1771, as a colonel in the British army, and afterwards in England, in 1785: that he also knew William Cosby, who resided at New Rochelle, and was reputed to be the only surviving son and the heir at law of William Cosby; and that he was supposed to be insane, and was reputed to have died unmarried, and without lawful issue. This witness also testified that he understood and believed, and it was generally reputed, that Elizabeth Cosby, the sister of William Cosby, of New Rochelle, married Lord Augustus Fitzroy; and after his death, married James Jeffreys, Esq., a commissioner of the custom in England; and that the grantors in the deed of 1793, were her Russell v. Schuyler. children and heirs; she having died previous to the execu tion of their power of attorney to him, in 1791. The evidence of this witness, who testified that he derived his knowledge of this family not only from general reputation, but also from his connection with them, and from his having acted as their agent in this country, is all the evidence which could reasonably be required to establish pedigree, and to trace descent under such circumstances. It is certainly as good, if not better evidence, than inscriptions upon tomb stones, or entries in bibles, and other religious books, in the handwriting of persons whose writing is unknown; which are sometimes resorted to for the purpose of establishing pedegree. Roscoe on Ev. 26. Whitlock v. Baker, 13 Ves. 514. Slaney v. Wade, 7 Sim. R. 595. Hood v. Beauchamp, 8 id. 26. This was also a case in which a witness connected as the late John Watts was, with this family, by the marriage of his cousin Ann, the daughter of Admiral Warren, with Charles Fitzroy, the first Lord Southampton, could not well mistake upon a question of pedigree and descent, which it was only necessary to trace back for two generations. All the grantors in the deed to General Schuyler, claimed to be grandchildren of one of our provincial governors, and some of them were themselves not unknown to fame, as every reader of Junius' letters is well aware. In addition to all this, two at least of the grantors in the deed of 1793, were of the blood royal of the Stuarts; although the quarterings of their escutcheons, which indicated their descent from the kings of England and Scotland, and of France, were debruised by a baton sinister. For it is a matter of public history that Henry Fitzroy, their great grand father, the first Duke of Grafton, who was killed at the siege of Cork, was one of the numerous illegitimate children of that royal libertine of whom Horace Walpole said: "Fortune, or fair or frowning, on his soul He was the second son of Barbara Villers, or Mrs. Palmer, one of Charles the second's seven favorite mistresses; who was ennobled by that dissolute monarch, by the titles |