Vol. IV.] JONES v. JONES. [No. 11. parties are colored persons. Henry Jones, the plaintiff, claims to be the legitimate child of Andrew D. Jones, deceased, and that his father was married to his mother, Henny Jones, a slave woman, after the year 1819, and offered evidence at the trial tending to prove this fact. The defendants claim, and offer evidence tending to show, that Andrew D. Jones, at the time of the alleged marriage, was the lawful husband of Anne Jones, who died about the year 1844, after which he married Francis Moore, who claims to be his widow. The first, second, and third exceptions are sufficiently stated in the opinion of the court. Fourth Exception. The defendants, after other evidence, produced a paper purporting to contain the deposition given by one Tabitha Toy, before W. S. Pinkney, a commissioner of the circuit court of Baltimore city, in a cause depending in said court of Jones v. Jones. And further offered to prove that said paper had been filed among the proceedings in said cause, and that it was now produced from the bundle of original papers in said cause, all of which original papers defendants offered to give in evidence, and offered to prove that they were the original papers, and all of the original papers in said cause, and that said plaintiff was a party to said cause. And also offered to prove by the commissioner who took said deposition, that it was taken before him as commissioner of the circuit court of Baltimore city, in said equity case of Jones v. Jones, and returned by him to said court. And also offered to prove that said Tabitha Toy was now dead. And thereupon offered said paper, purporting to contain the deposition of said Tabitha Toy in evidence, in connection with the offer to prove the facts above stated. The plaintiff objected to the reading of said deposition in evidence under the offer made by the defendants, and the court (Dobbin, J.) sustained the objection. The defendants excepted. Fifth Exception. After all the evidence was closed, the defendants offered the following prayers: 1. If the jury find from the evidence that Henry Atkins, alias Jones, was the child of Henrietta Atkins, and that said Henrietta was, at the time of the birth of said Henry, a single woman, and that after the birth of said Henry no marriage in fact was had between said Andrew and Henrietta, then the verdict on the first issue should be for the defendants, and that there is no evidence of any such subsequent marriage. 2. If the jury find that Andrew D. Jones married Anne Smith in February, 1819, and thereafter lived and cohabited with her as his wife until the death of said Anne, if they shall find such death, and that after the death of said Anne, the said Andrew married the said Frances, and lived and cohabited with her as his wife until his death; then the marriage of said Andrew and Henrietta, as alleged, cannot, after the marriage of said Andrew and Anne, be established by cohabitation between said Andrew and Henrietta, or by repute that they were married, unless the jury find such cohabitation or repute between the death of said Anne and the marriage of said Andrew and said Frances; and if the jury do not find such cohabitation and repute of said Andrew and Henrietta in the said interval, then the plaintiff ought to prove an actual marriage between said Andrew and Henrietta before the marriage of said Andrew and Anne, if the jury find the latter marriage. Vol. IV.] JONES v. JONES. [No. 11. 3. That the burden of proof is upon the plaintiff, Henry Jones, to establish his legitimacy by showing a valid marriage between Andrew D. Jones and Henrietta Atkins, either by a marriage actually celebrated, or in the absence of proof of such a marriage, by the cohabitation of said Andrew and Henrietta as man and wife, or by repute that they were married, and that there is no evidence in this cause of any such marriage actually celebrated, nor of the cohabitation of said Andrew and Henrietta as man and wife, nor of any repute that they were married, or were husband and wife. 4. That if the jury shall find any intercourse whatever between the said Andrew and said Henny Atkins, and that the same was illicit in its commencement, then the presumption of law is that it so continued, and the burden of proof is upon the plaintiff to establish some subsequent valid marriage, of which there is no evidence. 5. That if the jury find that Andrew D. Jones married Anne Smith, on the 14th February, 1819, and that they thereafter lived together as man and wife until the death of said Anne, if they shall find such death, and that thereafter the said Andrew married Frances Jones, and lived with her as his wife until the death of said Andrew, and shall find that the said Henry Jones, the plaintiff, was not born earlier than the year 1820, and that the said Henrietta Atkins, his alleged mother, never cohabited with said Andrew, nor bore his name commonly, nor was by repute known as the wife of said Andrew, then the plaintiff cannot recover, and the finding of the jury upon the first issue should be for the defendant. 6. That there is evidence in the cause from which the jury may find that Frances Jones was lawfully married to Andrew D. Jones, and that if they so find, their finding on the second issue should be, that Andrew D. Jones did leave a widow, and that that widow is Frances Jones, one of the defendants. 7. That if the jury find that at the time of the alleged marriage between said Andrew and Henrietta, the said Henrietta was a slave, and thereafter continued a slave until the year 1863 or 1864, then the said alleged marriage was not valid, unless the owner of said Henrietta consented thereto; and if the jury shall find that Captain Frazier, mentioned in the evidence, was, during the time aforesaid, the owner of said Henrietta and never consented to the said marriage, then the jury should find that no valid marriage took place between said Henrietta and Andrew, as alleged on the part of the plaintiff, and that there is no evidence in the cause from which the jury can find or presume that said Captain Frazier, in his lifetime, or during the time aforesaid, consented to said alleged marriage, or treated said Henrietta as having been married, and that there is no evidence of any marriage between said Andrew and said Henrietta after the latter became a free woman. 8. That if the jury believe that the slip cut and produced in evidence was taken from a Bible, a part of a Bible found in the intestate's house, and in the custody of his administratrix, then the same is evidence of itself without the necessity of proof of handwriting. The plaintiff's counsel agreed in open court that the court should instruct the jury as prayed in the defendants' fifth prayer, and the court accordingly granted the same, and also granted the defendants' sixth Vol. IV.] JONES v. JONES. [No. 11. prayer, but rejected their first, second, third, fourth, seventh, and eighth prayers. The defendants excepted. The jury found by their verdict "that Henry Jones, the plaintiff, is a lawful child of the said Andrew D. Jones, the intestate. And that Frances Jones, formerly Frances Moore, is the surviving widow of the late Andrew D. Jones." The defendants appealed. The cause was argued before Bartol, C. J., Stewart, Bowie, and Alvey, JJ. Julian I. Alexander & George H. Williams, for the appellants. 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, 2dly, Did the said Andrew D. Jones have 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, deceased, and that the latter left a widow, Frances Jones, formerly Frances Moore. In the course of the trial several exceptions were taken by 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 on 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 resemblance 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 partûs suppositio, but in those cases only. In the celebrated Douglas cause, decided by the House of Lords in 1769, Lord Mansfield said that he had always considered likeness as an argument of a child's being the son of a parent. In other cases, if there should be a likeness of features, there might be a discriminable voice, a difference in the gesture, the smile, and various other things; whereas, a family likeness ran generally through all these; for in everything there was a resemblance, as in features, size, attitude, and action. He accordingly allowed weight to the proved resemblance of the appellant in that Vol. IV.] JONES v. JONES. [No. 11. 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 be. And the same sort of evidence was admitted by Mr Justice Heath, in the case of Day v. Day, at the Huntingdon assizes, in 1797, upon the trial of an ejectment, where the question was one of partûs suppositio. These cases are stated by Hubback in his work on the Evidence of Succession, page 384; but the author states them with strict limitation, and with apparent doubt whether such evidence be 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 the subject. Indeed, Mr. Justice Heath, in the case of Day v. 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 be considered. But to allow third persons to testify as to their notions of the resemblance supposed to exist between parties, would be allowing that to be given as evidence upon which no rational conclusion could be based, but which might readily serve to mislead the jury. We think, therefore, the evidence should have been excluded, and that the second and third exceptions were well taken. As to the ruling of the court below, as stated in the fourth bill of exception, we find no error. It was incumbent upon the parties offering the deposition to prove the bill 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 on 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 Vol. IV.] JONES v. JONES. [No. 11. proper to be allowed to go to the jury. 2 Taylor on Ev. sec. 1413. Moreover, the original papers should not have been 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 on Ev. sec. 1380. This principle is fully recognized by this court in Boteler v. State, use of Chew, 8 Gill & John. 359. · We come now to the consideration of the prayers offered 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 be 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 evidence has been given. McElderry v. Flannagan, 1 H. & G. 308; Leopard v. 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 be 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 subsequent to 1820. If, therefore, this evidence was legally sufficient to be submitted |