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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 Al

vey, JJ.

Julian I. Alexander f George H. Williams, for the appellants.
H. C. Wysham f Bernard Carter, contra.
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.)

Joxes 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 liinitation, 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 wbich 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. f 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

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to the jury, from which they might infer the fact of marriage of the appellee's mother with Andrew D. Jones, the court below was right in refusing the prayer. And, on careful consideration of the evidence, we think it was properly submitted to the jury. It is true, where there is no impediment to marriage, and the connection between the parties was illicit in its commencement, as it must have been in this case, according to the hypothesis of the prayer, it will be presumed to continue to be of the same character; and, in order to overcome that presumption, it will be necessary to adduce other evidence than that of the cohabitation of the parties to establish their marriage. Barnum v. Barnum, 42 Md. 251 ; Hubback on Ev. Suc. 360, 1 Bishop on Mar. & Div. sec. 506. But if evidence be adduced, such as shows a change in the conduct of the parties, or a change in the manner of treatment by their relations and friends, or other facts which indicate that they had changed their status before the world, and intended to make that relation lawful which was before unlawful, though such proof may not go to the direct proof of marriage, yet it may be sufficient upon which to found the presumption of marriage. And in this case, if, after the birth of the appellee, though born as a bastard, there was cohabitation of his father and mother, tủe latter assuming the name of the former, and the parties treated each other as man and wife, and treated the appellee as their child, and they were treated as and reputed to be man and wife by their friends and acquaintances, these are facts proper to be submitted to the jury, from which marriage may be inferred, notwithstanding the original illicit connection between the parties.

But while we think the first prayer was properly refused, we are of opinion that the second ought to have been granted.

As already mentioned, the jury have found that Andrew D. Jones left a widow surviving him, named Frances, formerly Frances Moore. The appellee's mother died, according to his own showing, in 1866, and there is not the slightest evidence to show, nor is it pretended, that the marriage of Andrew D. Jones to Frances Moore occurred after the death of Henny, the mother of the appellee.

How, or upon what theory, such a verdict was arrived at it is a little difficult to imagine. There was need of an explicit instruction from the court on this point of the case.

By the second prayer the court was asked to instruct the jury, that if it was found that Andrew D. Jones married Anne Smith in 1819, and thereafter lived and cohabited with her as his wife until her death, and that after her death said Andrew married Frances, and lived and cohabited with her as his wife until his death; then the alleged marriage of Andrew and Henny, the mother of the appellee, could not, after such marriage with Anne Smith, be established by cohabitation between Andrew and Henny, or by repute that they were married, unless such cohabitation or repute be found between the death of Anne and the marriage of Andrew and Frances; and if such cohabitation and repute be not found in such interval, then the appellant ought to prove an actual marriage between Andrew and Henny before the marriage of Andrew and Anne.

There is nothing in this prayer to which the appellee could rightfully object. It is, of course, very clear that Andrew D. Jones could not have been the lawful husband of two wives living at the same time. If, as a

Vol. IV.]

Jones v. JONES.

[No. 11.

fact, it be found that he married Anne Smith in 1819, and lived and cohabited with her, then, in the absence of direct proof of previous marriage, the presumption is that he was a single man when he married her, and during his marriage with her, of course, he could contract no valid marriage with another woman. The reason for such presumption is very clearly stated in the case of Breakey v. Breakey, 2 N. C. Q. B. 349, 358, where the chief justice of that court, in delivering his opinion, said : “If Andrew Breakey, after cohabiting many years with this defendant, had, during his lifetime, married another woman in this country, he would, by that act, have destroyed the presumption of his marriage with the defendant, which would otherwise have arisen from the fact of cohabitation. He would have shown by it, what the law could not have presumed, that he was willing to incur the moral guilt of living with a woman as her husband when he was not her husband, for inevitably this must have been the case in regard to one or the other of the women, when both were, to his knowledge, living at the same time. The consequence then would have been, that, if charged with bigamy in contracting the second marriage, the presumptions would rather have been against the fact of the first marriage, for cohabitation would in such case have supplied none in its favor; and the inference would rather be, that he must have been aware there was no sufficient ground for the reputation of the first marriage, or he would not have incurred the guilt of felony, and the danger which attends it, by marrying again.” The principle thus stated appears to have been fol. lowed in subsequent cases in the same court. 1 Bishop on Mar. & Div. sec. 444. Here, there is no pretence that there is any direct proof of marriage between Andrew D. Jones and Henny, the mother of the appellee; the only evidence relied on being that of habit and repute. The presumption of marriage from cohabitation may be rebutted by evidence of separation, without apparent rupture or sufficient cause. Jackson v. Claw, 18 John. 346 ; Senser v. Bower, 1 Penn. St. 450. And in case of conflicting presumptions, the one in favor of innocence shall prevail. 1 Penn. St. 452. This is fully exemplified by several cases stated by Bishop, in his work on Marriage and Divorce, volume 1, section 446. As, for instance, where in a legitimacy case, an actual marriage between the parents was proved, it was held, that this fact of marriage could not be overthrown by showing, simply on the strength of cohabitation and reputation, a preexisting marriage of one of the parties. And so, in a case occurring in the ecclesiastical court in England, where two women severally claimed administration of the effects of the deceased as being his widow, and the one who was last married to him offered to show that his marriage to the other woman was void by reason of his then having alive a former wife, who afterward, and before the last marriage, died; it was held, that evidence of cohabitation and repute was insufficient to establish the first marriage, notwithstanding both parties to it were dead, but such marriage should, as an actual fact, be proved. Taylor v. Taylor, 1 Lee, 571; 5 Eng. Ecc. Rep. 454.

If, then, it be found as a fact, according to the requirement of the appellants' second prayer, that Andrew D. Jones was married either to Anne Smith or Frances Moore during the life of Henny, the mother of the appellee (there being no evidence of any divorce), all mere presumption VOL. IV.

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