And the fact that the declarations are in direct support of the declarant's title will not exclude them. Nor will the mere fact that the declarant was in the same situation touching the matter in contest with the party relying on the declaration, render such evidence incompetent.2 But the declarations must not be made obviously in the declarant's own interest.3 Declarations made for the purpose of evidence would, of course, be incompetent.4 (d) PEDIGREE IN ISSUE.-It has been said "that such declarations are admissible only in cases in which the pedigree to which they relate is in issue, and not to those in which it is only relevant to the issue; 5" but this rule has been weakened by some of the decisions of the courts in the United States, and some authorities have declared it to have absolutely no force in this country, nor has it escaped animadversion even in England. 2. Forms of Hearsay (a) ORAL DECLARATIONS.-Oral declarations of deceased relations are clearly admissible with the qualifications as stated in the preceding sections." 1. Doe v. Davies, 10 Q. B. 325. v. Plainfield, 39 Conn. 563; Independ 2. 1 Whart., § 214; Monkton v. At- ence v. Pompton, 9 N. J. L. 209; Wiltorney-Gen'l, 2 Russ. & M. 160; Pow-mington v. Burlington, 4 Pick. (Mass.) ell's Evidence (4th ed.) 165; Mosely v. 174; Adams v. Swansea, 116 Mass. Davies, II Price 162; Harwood v. 591. Sims, Wightw. 117; Deacle v. Hancock, 13 Price, 236, 237; Freeman v. Phillips, 4 M. & S. 486, 491; Davies v. Morgan, 1 C. & J. 593; Nicholls v. Parker, 14 East 331; Doe v. Faiver, R. & M. 141, 142. See also Shedden v. Attorney-Gen❜l, 2 Sw. & T. 170. Overruling Walker v. Beauchamp, 6 C. & P. 552; Reilly v. Fitzgerald, 1 Drury Chan. 120-140; Davies v. Lowndes, 7 Scott N. R. 198; 6 M. & Gr. 517. And see Butler v. Mountgarrett, 7 H. L. Cas. 633; Elliot v. Peirsol, 1 Pet. (U. S.) 328. 3. 1 Whart., § 207. See also Best's Ev., § 498. Thus the statement by a deceased person who has been twice married, tending to invalidate his first and thus establish his second marriage has been rejected. Grant v. Taylor, 7 H. & M. 211; DeHaven v. DeHaven, 77 Ind. 238. 4. Chapman v. Chapman, 2 Conn. 747. B. Stephen Dig. of Evidence, art. 31; Whittuck v. Walters, 4 C. & P. 3756 I Greenleaf's Evidence, 103, note b; 1 Taylor on Evidence 645; Shields v. Boucher, De G. & Sm. 40; Smith v. Smith, L. R., 10 Eq. 273; 1 L. R., Irish 206; Figg v. Wederburn, 6 Jur. 218; Haynes v. Guthrie, 139 B. D. 818; R. v. Erith, 8 East 539. See also Londonderry v. Andover, 28 Vt. 416; Union 6. 1 Whart. Ev., 206. In Brookfield v. Warren, 16 Gray (Mass.) 174, the court said: "Some of the authorities seem to limit the competency of this species of proof to cases where the main subject of inquiry relates to pedigree, and where the existence of birth, marriage and death and the times when these events happened are put directly in issue; but upon principle we can see no reason for such a limitation. If this evidence is admissible to prove such facts at all it is equally so in all cases whenever they become legitimate subjects of judicial inquiry and investigation. Mr. Taylor has this to say of the rule: 'As Mr. Phillips justly observes, there appears to be no foundation for any distinction between cases where a matter of pedigree is the direct subject of inquiry and other cases where it occurs incidentally."" Taylor on Evidence, § 581, citing 1 Ph. on Evidence, 215, note 5. See also Wilson v. Brownlee, 24 Ärk. 586; Abbott's Trial Evidence 90, where the learned author denies that the rule has any force in the United States, citing North Brookfield v. Warren, 16 Gray (Mass.) 174; Prim v. Stewart, 7 Tex. 178. 7. I Taylor on Evidence, § 583; Crouch v. Hooper, 16 Beav. 184, 189; Webb v. Haycock, 19 Beav. 342; Clement v. Hunt, 1 Jones (N. Car.) L. 400. (b) FAMILY CONDUCT.-Family conduct, such as the tacit recognition of relationship, and the disposition and devolution of property, is admissible evidence from which the opinion and belief of the family may be inferred. Thus it was said, "if the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion that the son is legitimate."1 (c) FAMILY RECORDS-ENTRIES IN BIBLES-CORRESPONDENCE, ETC.-Entries made by a parent or by a relation in Bibles, prayer-books, missals,4 almanacs, or indeed in any other book, document, or paper, are all admissible to show facts 3 Such declarations are seldom entitled to any great weight; for not only are they generally sought to be established by connections of the family or other persons interested in the result of the litigation, but they are often recorded or remembered for the first time after the contest has arisen. In these cases the court necessarily runs considerable risk of being deceived by deliberate falsehood, for it is obviously difficult, not to say impossible, to convict a witness of perjury, in narrating what he alleges that he heard in a conversation with a deceased person. And, even assuming that the sincerity of the witness cannot reasonably be doubted, it often happens that little réliance can be placed on the accuracy of his testimony; for men without deliberately intending to falsify facts, are extremely prone to believe what they wish, and to confound what they believe with what they have heard, and ascribe to memory what is merely the result of imagination. 1 Taylor on Evidence, 583; citing Romely M. R., in Crouch v. Hooper, 16 Beav. 184, 189. See also as to the weight of such oral declarations the opinion of Langdale, M. R., in Johnston v. Todd, 5 Beav. 599. 1. Mansfield, C. J.; in Berkeley Peerage Case, 4 Camp. 413; 1 Greenl. Ev., § 106; 1 Taylor Ev., § 649; Morris v. Davies, 5 Cl. & Fin. 163, 241; Banbury Peer., 1 Sim. & St. 153; Rex v. Mansfield, Q. B. 444; Townshend Peer., 10 Cl. & Fin. 289; Atchly v. Sprigg, 33 L. J., Ch. 345; Hargrave v. Hargrave, 2 C. & Kir. 701. The declarations of a person, since deceased, that he was going to visit his relatives at such a place have been held admissible to show that the family had relatives there. Rishton v. Nesbitt, 2 Moo. & R. 554. Where it is shown that two persons recognized one another as brothers so 5 long ago that living witnesses acquainted with their ancestors cannot be found, it may be presumed that their parents were married. Green v. Norment, 5 Mackey (D. C.) 80. Again if the question be whether a person from whom the claimant traces his descent was the son of a particular testator, the fact that all members of the family appear to have been mentioned in the will, but that no notice is taken of such a person, is strong evidence to show that he was not the son, or, at least, that he had died without issue before the date of the will. I Taylor Ev., § 584; Tracy Peer., 10 Cl. & Fin. 100; Robinson v. AttorneyGen'l, 10 Cl. & Fin. 498-500. And where the object be to prove that a man left no children the production of his will of which no notice is taken of his family, and by which his property is bequeathed to strangers or collateral relations, is cogent evidence of having died childless. Hungate v. Gascoyne, 2 Ph. 25; De Ross Peer., 2 Cowp. 540. The fact that the son took the name of a person with whom his mother, at the time of his birth, lived in a state of adultery, which name he and his descendants ever after retained, constitutes “a very strong family recognition of his illegitimacy." Goodright v. Saul, 4 T. R. 356. So a marked difference in the treatment of the bastard and the legitimate children is a fact for consideration. Murray v. Milner, 12 Ch. D. 845. 2. Berkeley Peer. Cases, 4 Camp. 401; Lewis v. Marshall, 5 Pet. (U. S.) 470, 476; Watson v. Brewster, 1 Pa. St. 381. 3. Leigh Peer. Cases, Pr. Min. 310. 4. Slane Peer. Cases, 5 Cl. & Fin. 41. 5. Herbert v. Tuckal, T. Ray 84. 6. Jackson v. Cooley, 8 Johns. (N. Y.) 128, 131; Douglas v. Saunderson, 2 Dall. (U. S.) 116; Carskadden v. which constitute pedigree.1 Entries in a family Bible or Testament will be admissible, even without proof that they have been made by a relative; for as the book is the ordinary register of families, and is usually accessible to all its members, the presumption is that the whole family, more or less, have adopted the entries contained in it and have thereby given them authenticity.2 This presumption, however, will not prevail in favor of any entry in any other book, however religious its character may be, but proof must be given either that the entry was made by some member of the family, or that it was acknowledged by a relative as a correct family memorial.3 The correspondence of deceased members of the family will be received on proof of the handwriting, as will the recitals of any marriage settlements and other family deeds, descriptions in wills and the like. In regard to recitals of pedigree in bills and answers in chancery, a distinction has been taken between those facts which are Poorman, 10 Watts (Pa.) 82; Collins v. Grantham, 12 Ind. 440; Clara v. Ewell, 2 Cranch (C. C.) 288. 1. 1 Taylor on Evidence, § 585. See also cases cited above and in this section. 2. Berkeley Peer. Cases, 4 Camp. 421; Monkton v. Attorney-General, 2 Russ. & M. 162; Hubbard v. Lees, I L. R., Exch. 255; 4 H. & C. 418. 3. 1 Taylor on Evidence, § 585; Tracy Peer. Cases, 10 Cl. & Fin. 100; Crawford & Lindsay Peer. Cases, 2 H. L. 558, 560; Hood v. Beauchamp, 8 Sim. 26; Carkshadden v. Poorman, 10 Watts (Pa.) 82. 4. Huntington Peer., Atty. Gen. Rep. 357; Kidney v. Cockbury, 2 Russ. & M. 168; Leigh Peer. Pr. Min., pt. 2, P. 140; Hastings Peer. Pr. Min. 196. See also Butler v. Ganett, 6 Ir. L. R., N. S. 77; 7 H. L. 633. 5. 1 Taylor's Ev., § 586; Marshmont Peer. Pr. Min. 345, 353. See also Arith Peer. Pr. Min. 105. But see Hubbard v. Lees, L. R., I Ex. 265. 6. Neal v. Wilding, 2 Str. 1151; De Ross Peer., 2 Coop. 541, 542; Chandos Peer. Pr. Min. 27; Stafford Peer. Pr. Min. 110; Zouch Peer. Pr. Min. 276; Lisle Peer. Pr. Min. 116; Van Bury Peer. Pr. Min. 6, 117; Baux Peer. Pr. Min. 44; Huntley Peer. Pr. Min. 15; Roscommon Peer. Pr. Min. 36. 7. Smith v. Tibbot, 1 L. R., P. & D. 354; Schaeff v. Keener, 64 Pa. St. 376. So recitals of descent and descriptions of parties in deeds or other than family instruments will be received, provided the deeds come from the proper custody and are proved, or may from age, be presumed to have been executed by some member of the family to which the statements referred. I Taylor Ev. 586 and cases cited; but the execution of the deed by a relation is an indispensable requisite; and, therefore, where an indenture of assignment which recited that the assignee was a son of certain parties, was executed alone by the assignor, who was not a member of the family, it was rejected. Slaney v. Wade, 1 Myl. & Cr. 338. See also Fort v. Clark, i Russ. 601; Jackson v. Cooley, 8 Johns. (N. Y.) 128; Jackson v. Russeй, 4 Wend. (N. Y.) 543; Keller v. Nutz, 5 S. & R. (Pa.) 251. A deed sixty years old, admissible as an ancient deed, contained recitals to the effect that a former owner of the land died intestate, and that the grantor was his only son and heir. Held, that the recitals were admissible on the question of pedigree. Fulkerson v. Holmes, 117 U. S. 389. 8. 1 Taylor Ev., § 586; Vullieny v. Huskisson, 3 Y. & C. Exr. 82; De Ross Peer., 2 Coop. 540; Russell v. Jackson, 22 Wend. (N. Y.) 277; Pearson v. Pearson, 46 Cal. 677; Blackburn v. Crawford, 70 U. S. 175. Even a canceled will, which did not appear to have been acted upon, has been admitted on proof that it was found among the papers of a descendant of the testator, who seemed to have kept it as containing statements relative to the family. Doe v. Pembrook, II East 504. not in dispute and those which are in controversy, the former being admitted, the latter excluded.1 (d) INSCRIPTIONS. - Inscriptions on tomb-stones,2 coffinplates, mural monuments, family portraits, engravings on rings, hatchments, charts of pedigree, and the like, are also admissible. Those which are proved to have been made by or under the direction of a deceased relative are admitted as his declarations, but if they have been publicly exhibited, and may therefore be supposed to have been well known to the family, their publicity supplies any defect of proof that they were declarations of deceased members of the family, and they are admitted on the ground of tacit and common assent.9 Mural and other funeral inscriptions are provable by copies or other secondary evidence. Their value as evidence depends much on the authority under which they are set up, and on the distance of time between their erection and the events which they commemorate.10 1. 1 Greenleaf's Evidence, 104; 1 Ph. Evidence, §§ 119 220, and authorities there cited. 1 Taylor's Evidence, 586; De Roos Peer., 2 Cowp. 543, 544; Goodright v. Moss, 2 Cowp. 591. Ex parte affidavits made several years before to prove pedigree by official requirement, and prior to any lis mota, are admissible. Hurst v. Jones, 1 Wall. Jr. (C. C.) 373. Similar recitals in old bills in equity are, it seems from the English cases, always inadmissible, as these last are regarded as mere flourishes by the draughtsmen. Boileau v. Rutland, 2 Exch. 678, per PARKE, B., citing Barder Peer. Cas., 2 Selden N. P., 756 (10th ed.) These cases appear to overrule Taylor v. Cole, 7 T. R. 9 n. 2. 1 Taylor's Evidence, § 587; I Greenleaf's Evidence, § 105; Monkton v. Attorney-Gen'l, 2 Russ. & Myl. 163; Goodright v. Moss, 2 Cowp. 594. 3. Chandos Peer., Pr. Min. 10; Rokeby Peer., Pr. Min. 4; Lovat Peer., Pr. Min. 77. 4. Slaney v. Wade, Myl. & Cr. 338; De Roos Peer., 2 Cowp. 544, 545. 5 Camoyes Peer., 6 Cl. & Fin. 801. 6. Vowles v. Young, 13 Ves. 144. 7. Hungate v. Gascoigne, 2 Cowp. R. 163. See also Vowles v. Young, 13 Ves. 155; North Brookfield v. War ren, 16 Gray (Mass.) 174; Eastman v. Martin, 19 N. H. 152; Haslam v. Cron, 19 W. R. 968. 10. I Greenleaf's Evidence, § 105; 1 Taylor's Evidence, § 585; 1 Phillips Evidence, § 222. Armorial Bearings.—An ancient pedigree purporting to have been collected from history as well as from other sources was held admissible, at least to show the relationship of persons described by the framer as living, and therefore to be presumed as known to him. Davies v. Lowndes, 7 Scott, N. R. 141. Armorial bearings proved to have existed while the heralds had the power to punish usurpations possess an official weight and credit. But this authority is thought to no longer exist in England, and of course has never existed in this country; and, at present, they amount to no more than family declarations. Greenleaf on Ev., 105, n. I. They are admissible in cases of pedigree; not only as tending to prove that the person who assumed them was of the family to which they of right belonged, but as illustrating the particular branch from which the descent was claimed, or as showing, by the impalings or quarterings, the nature of the blazonry, or the shape of the shield, what families were allied by marriage, or what members of the family were descended from an illegitimate stock, or were maidens, widows, or heiresses. Taylor on Evidence, § 657. PEDIS POSSESSIO.-A foothold; an actual possession. To constitute adverse possession, there must be pedis possessio, or a substantial inclosure.1 PEDDLER.-See HAWKERS AND PEDDLERS, vol. 9. p. 307. PEER-An equal in rank or condition, as in "trial by one's Judgment of his peers means “trial per pais," that is, peers. by a jury. PENAL. That which involves suffering: hence more largely, that which pertains to punishment; to inflict loss by way of restraint or sanction. Penal is used as a synonym of criminal in secondary senses of that word. Penal and criminal offense, penal and criminal code, and penal and criminal justice are equivalent expressions. In many connections the two words are not interchangeable; as in the expressions criminal or penal action, criminal conduct, penal bill or bond.4 1. Bouvier's L. Dict. VERSE POSSESSION, vol. generally LIMITATION vol. 13. p. 639. 2. And. L. Dict. See also AD1, p. 252. See OF ACTIONS, port of libraries. In Fennel v. Common Council of Bay City, 36 Mich. 190, the court by CAMPBELL, J., said: "We have heretofore on more than one occasion intimated that the penal laws referred 3. Fetter v. Wilt, 46 Pa. St. 460, to in the State constitution were the Craig v. Kline, 65 Pa. St. 399. 4. Abb. L. Dict. Penal Action.-See PENALTIES AND PENAL ACTIONS. Penal Bill-Penal Bond.-Vol. 2, p. 448. See BONDS, vol. 2, pp. 462, 467 a; OBLIGATIONS. Penal Clause.-That particular portion or subdivision of a statute which declares the consequences in the nature of punishment or losses which are to follow a violation of previous provisions. Abbott's L. Dict. See also STATUTES. "Penal Institutions of the State."— Where a statute prohibited the employment of the convicts in "the penal institutions of the State" in certain trades and at certain labor, it was held that "penal institutions of the State" did not include a penitentiary erected, maintained and operated by a county. Bronk v. Riley (Supreme Ct.), 2 N. Y. Supp. 266. Penal Statutes.-CRIMINAL LAW, vol. 4, p. 641; PENALTIES AND PENAL ACTIONS. See STATUTES. The constitution of Michigan declares that "all fines assessed and collected in the several counties and townships for any breach of the penal laws," shall be exclusively applied to the sup laws of the State. The term law, as defined by the elementary writers, emanates from the sovereignty and not from its creatures. The legislative power of the State is vested in the State legislature, and their enactments are the only instruments that can in any proper sense be called laws. In the decisions of this court referring to the class of provisions now before us, the distinction has been very expressly indicated. It is claimed, however, that certain of these fines may be regarded as imposed under the laws of the State, and the cases in 17 Mich. 390, and 18 Mich. 445, are cited for that purpose. Those cases, however, are very different. There the city charter, which was itself a State law, authorized the police court, which had no jurisdiction whatever, to impose any penalties in the cases in question but those defined by the law itself, to deal with those particular cases and punish them as the statute directed. The authority was distinctly statutory, and the penalties were neither imposed nor governed by the ordinances. The only important question involved was, whether special provision could be made for punishing unlawful acts in a single city; and that was decided to be law. ful." |