Jones v. Jones

Alvey, J., delivered the opinion of the Court. The issues for trial in the Court below were, 1st, Is Henry Jones a lawful child of Andrew D. Jones, deceased? and, 2ndly, Did the said Andrew D. Jones leave a widow, and if yea, who? These issues were sent from the Orphans’ Court to be tried, and upon trial the jury found that Henry Jones is a lawful child of Andrew D. Jones, ¹⁵¹ deceased, and that the latter left a widow, Frances Jones, formerly Frances Moore. In the course of the trial several exceptions were taken hy the appellants; four to rulings on questions as to the admissibility of evidence, and the fifth to the refusal of certain prayers offered’by the appellants.

The question raised by the first exception is as to the admissibility of secondary evidence of the superscription or direction of a letter written by the appellee, at Liverpool, to his mother, in Baltimore, in or about the year 1850 ; the question being to whom and how the letter was directed, the letter itself not being produced. The previous evidence had disclosed the condition of the mother, and the fact that she died about the year 1866. Her whole life, with the exception of the last two years of it, had been spent as a slave, and she died at the house of her former master. The letter is not shown to have been of any such importance as to require its preservation ; and as the party to whom it was written has been dead several years, and-there being no personal representative of whom inquiry could be made, it may well be presumed that the letter has been lost or destroyed; and therefore the evidence offered of the address written on the letter was properly received. 1 Taylor Ev., sec. 399.

By the second and third exceptions, the question was presented as to the admissibility, as evidence to the jury, of the personal resemblance0 of the appellee to his alleged father, Andrew D. Jones, deceased; and the Court below allowed the evidence to be given. In the argument here no authorities on this question were cited by counsel for either party ; but upon examination we find that such evidence has been admitted in the trial of questions of partus suppositio, but in ■ those cases only. In the celebrated Douglas cause, decided by the House of Lords in 1769, Lord Manseield said that he had always ¹⁵² considered likeness, as an argument of a child’s being the son of a parent. In other cases, if ther'e should he a likeness of features, there might he a discriminancy of voice, a difference in the gesture, the smile, and various other things ; whereas, a family likeness ran generally through all these ; for in every thing there was a resemblance,- as in features, size, attitude and action.

He accordingly allowed weight to the proved resemblance of the appellant in that case and his brother to Sir John Stewart and Lady Jane Douglas, and to their dissimilitude to the other persons whose children they were alleged to he. ' And the same sort of evidence was admitted by Mr. Justice Heath, in the case of Day vs. Day, at the Huntingdon ass., in 1797, upon the trial of an ejectment, where the question was one of partus suppositio. These cases are stated by Hubback, in his work on the evidence of succession, page 384 ; hut the author states them with strict limitation, and with apparent doubt whether such evidence he safe and reliable. And as we do not find the principle of these cases stated in other works on the law of evidence of approved authority, we think it fair to conclude that the cases mentioned have not been regarded as establishing a rule upon dhe subject. Indeed, Mr. Justice Heath, in the case of Day vs. Day, just referred to, admitted that resemblance is frequently exceedingly fanciful, and he therefore cautioned the jury as to the manner of considering such evidence ; and we all know that nothing is more notional in the great majority of cases.

What is taken as a resemblance by one is not perceived by another, with equal knowledge of the parties between whom the resemblance is supposed to exist. Where the parties are before the jury, and the latter can make the comparison for themselves, whatever resemblance is discovered may be a circumstance, in connection with others, to he considered. | But to allow third persons to testify as to their notions of the resemblance supposed to exist between parties, would he allowing that to he given as ¹⁵³ evidence upon which no'rational conclusion could he based, hut which might readily serve to mislead the jury. We think, therefore, the evidence should have heen excluded, and that the second and third exceptions were well taken. As to the ruling of the Court below, as stated in the fourth hill of exception, we find no error.

It was incumbent upon the parties offering the deposition to prove the hill and answer in the equity cause in which the deposition was taken, in order to show that a cause was depending, as well as to show who were the parties, and what was the subject-matter in issue. Proof of bill and answer is not necessary where the deposition is used against the deponent as his own admission, or for the purpose of contradicting him as a witness; but the deposition was offered for no such purpose in this case. The offer of the deposition should have been accompanied with the proffer to show that it was the deposition of a deceased witness, taken under oath, in a judicial proceeding, involving substantially the same question or matter in dispute as that on trial, to which the plaintiff and defendants were parties, and that the former had the right and opportunity to cross-examine the witness. 1 Taylor Ev., secs. 434 to 438. These requisites were not all complied with in the offer made by the defendants.

Though all the original papers were offered, non constat that they would have shown what was necessary to let in the deposition. Besides, it was improper to offer all the original papers belonging to the equity cause, without disclosing of what the papers consisted. It is not all the proceedings in an equity cause that can be offered, in order to let in the deposition of a deceased witness. It is only such parts of the proceedings as show the nature of the cause and the parties to the controversy, that are admitted, and they, not as evidence to the jury, but simply to the Court, to enable it to determine whether the deposition is evidence proper to be allowed to go to the jury. 2 Taylor Ev., sec. 1413. ¹⁵⁴ Moreover, the original papers should not have heen taken from the files of another Court and produced, instead of copies or exemplifications as provided for by the Code, Art. 37, secs. 58 and 59.

The principle has been long and well established, that, in order to prove the existence of a record which does not belong to the same Court, the proof must be by transcript under seal, and not by the original papers; these can only be used in the Court to which they belong. 2 Taylor Ev., sec. 1380. This principle is fully recognized by this Court in Boteler & Belt vs. State, use of Chew, 8 Gill & John., 359. We come now to the consideration of the prayers oifered by the appellants, and which were refused by the Court below. The proposition involved in the first prayer is too clear for question, except the assertion which it contains that there is no evidence of the occurrence of any marriage between the parties named, subsequent to the birth of the appellee.

Whatever we may think of the verdict as the result of the whole evidence in the cause, this Court will not say that the entire case, or the consideration of any particular question involved in it, should be taken from the jury, upon a prayer that there is no sufficient evidence to justify the finding for the adverse party, if there he any evidence from which a rational conclusion may be drawn as opposed to the theory of such prayer. Before such a prayer can be granted, the Court must assume the truth of all the evidence before the jury, tending to sustain the claim or defence, as the case may be, and of all inferences of fact fairly deducible from it, as on demurrer to evidence; and this though such evidence be contradicted in every particular by the opposing evidence in the cause. Upon no other principle can the case be withdrawn from the consideration of the jury, who alone are competent to decide on facts of which contradictory evidenoe has been given. ¹⁵⁵ McElderry vs. Flannagan, 1 H. & G., 308 ; Leopard vs. Ches. & Ohio Canal Co., 1 Gill, 222 . But, on the other hand, where the evidence is of such light and inconclusive nature that no rational conclusion can he fairly drawn therefrom in support of the claim or defence sought to be maintained by it, it becomes the imperative duty of the Court to instruct the jury that such evidence is not sufficient to be considered by them, and that their finding should be accordingly.

Questions whether verdicts have been rendered against the decided weight of evidence, or in disregard of the rules of evidence, or from passion or prejudice, can only be dealt with by the Court in which the trial takes place, upon motion for new trial. This Court has no power to go into a critical analysis of the evidence to determine the. comparative weight of that offered by the one side or the other ; all that it can properly do, in regard to such question, is to determine whether there was any evidence legally sufficient to be submitted to the jury, and that determination is arrived at without at all considering the question as to the preponderance of the opposing evidence. Now, in this case, the appellee fixes the time of his birth to be about the year 1820 ; and the most material part of the evidence offered by him, coming principally from himself as a witness, refers to a time