#### DOE ON DEMISE OF JOHN MOFFIT & AL vs. JOSHUA WITHERSPOON.

Where the lessors of the plaintiff claimed as the heirs of law of one A. D., ■ who was dead, Held, that the declarations of the said A. D. that the said lessors were the children of a married sister, deceased, and were her nearest living relations, were admissible in evidence, to prove the fact of such relationship.

Such declarations are competent to prove marriages as well as births.

The declarations of counsel on the trial of a cause, as to matters of fact, are , not evidence against one, who was managing the suit as agent for tile client, even if they could be against the client himself.

Held, that it was error in a Judge to instrnct the jury, when the enquiry was as to the mental capacity of a party, that ‘lit was not sufficient that she • should be able, merely to answer familiar questions,.but to manage her business with judgment and discernment.” It is sufficient, if the person understood what he was about.

Tlie case of Armstrongs. Short, 1 Haw. 11, cited and approved.

Appeal from the Superior Court of Law of Iredell County, at the Spring Term 1849, bis Honor Judge Erims presiding.

*186This was an action of ejectment begun in 183S. The lessors of the plaintiff claimed title to the premises in question, as the heirs at law of Ann Donahoe, who according to the proof, died in 1832, unmarried and childless. • The plaintiff exhibited in evidence a grant from the State to the said Donahoe for the land in dispute, dated in' 1780, and countersigned by John Shepherd, with the ad* dition pr. sec. The defendant objected to the reading of the grant, upon the ground, that it did not appear to have been duly countersigned by the Secretary of State. The Court overruled the objection and the grant Was read. To prove that the lessors of the plaintiff were the sole and proper heirs at law of Ann Donahoe, a witness was introduced, who swore, that, 25 or 26 3'ears ago, or perhaps a little more, he heard the said Ann Donahoe say, then a very old woman, when on a visit to the lessors of the plaintiff, that they were the nearest relations she had living, and that they were the children of her sister, who was long since dead, and who had many years before married one Whitaker, the father of the said lessors ; that the said lessors lived in the County cf McDowell, then Burke. Mrs. Wellborne, a witness for the defendant, swore, that, on one occasion, the said Donahoe came to her husband’s to get him to write her will, as she desired to leave her property to strangers, in order that it might not descend to her relations in Burke. The defendant claimed title to some lands from the said Donahoe, under several deeds offered in evidence, and executed by her in 1828,.1.830 and 1831, and covering the premises in question. The plaintiff insisted, that the said deeds were void, for want of mental capacity in the said Donahoe at the time to execute the same, and, to establish this fact, introduced much testimony, and, among other things, offered to prove by Col. Adolphus Erwin, that he was present, in .Wilkes.Court, in 1823, when a suit was-tried, in which one Howard was plaintiff, and the said Ann Dona-*187hoe defendant; that this defendant acted as the agent of the said Donahoe, and employed the Hon. D. F. Caldwell as counsel, and offered to prove, and, through his counsel insisted, that the said Donahoe was incompetent from old age to make a contract, and, upon that occasion, set up the incapacity of the said Donahoe, as matter of defence. The defendant objected to this testimony, upon the ground, 1st. for the want of a transcript of a record of the said suit; 2nd, that the defendant ought not to be affected by the declarations and acts of his counsel, and particularly, a3 he was only the agent of the said Dona-hoe in the management of the said suit. The Court decided, that it would be improper to speak of the detailed occurrences of the said suit, without producing a copy of the recoi'd, and that even a copy of the record could not be read by way of concluding the defendant in this action, but that the plaintiff might give evidence of the acts and declarations of the defendant, and also the declarations of his counsel in his presence, as to matters of fact, which declarations the jury might weigh at their discretion, Col. Erwin then proceeded, and stated that the defendant was present, in the hearing of his counsel in Wilkes, and that his counsel declared and argued to the jury, that the said Donahoe, from old age, was non compos mentis ; that the defendant acted at the time as agent for the said Donahoe, and employed the said counsel, and was silent when these declarations 'were made. The plaintiff then offered to read the deposition of a witness, taken Je bene esse, who was since dead, which deposi. tion was taken in pursuance of a commission issued by the Clerk, in vacation, on the application of the plaintiff. The defendant’s counsel objected to the reading of the deposition, upon the ground, that it was not taken in pursuance to the Act of Assembly. The .plaintiff’s counsel then read the following general rule, entered at the Fall term 1827, of this Court: "Ordered, by consent of the law*188yers attending this Court, that commissions to take depositions be issued by the Clerk of the Court, on application to "him, as other process.” The defendant’s counsel still objected, and argued that the case did not fall within the said rule. The Court entertained the opinion, that it was governed by the rule, but remarked that the rule itself was not law, but only a conventional agreement between the attorneys of this Court, and that, if the defendant’s counsel insisted upon it, he would disregard the rule and administer the law as understood by the Court. The defendant’s counsel replied, that they waived nothing. The Court rejected the deposition. The defendant’s counsel, to prove the sanity of the said Donahoe, at the time of making the said deed, offered to read the deposition of two witnesses, residents of the State of Georgia, and taken in pursuance of a commission issued by the Clerk of this Court in vacation and on the application of the defendant. The plaintiff’s counsel objected to the reading of thedeposition, upon the ground, that the commission issued without any special order of Court to that effect. The defendant’s counsel contended, that there was no proof, that the lessors of the plaintiff were the legitimate children of the said Donahoe’s sister, and that it was not in evidence, that she was ever lawfully married to the said Whitaker. The Court instructed the Jury, that, if they believed the' lessors were the children of said Donahoe’s sister and recognized by her as relatives, then the law presumed them legitimate, until the contrary appeared, and left it to them to say, from all the testimony, whether or not the lessors of the plaintiff were the heirs at law of Ann Donahoe. The Court further charged the Jury, that the law presumed the said Donahoe capable of making the said deed, unless the evidense satisfied them to the contrary, and that^ in judging of the sufficiency of her intellect, it was not merely necessary that she should be able to answer familiar questions, but to manage her business with judgment *189and discernment. The jury returned a verdict for the plaintiff. Rule for a new trial granted. Rule discharged and judgment of the Court; from which the defendant appealed to the Supreme Court.

Boydcn and Alexander, for the plaintiff.

Osborne, Bynum, Avery and Guión, for the defendant»

Nash, J.

This is an action of ejectment. The lessors of the plaintiff claim the land in controversy, as the heirs at law of Ann Donahoe, and the defendant claims title under her also. It is, therefore, unnecessary to decide the question, as to the sufficiency of the certificate upon the grant to her. Both parties are estopped to deny title in her. The declarations of Ann Donahoe were properly admitted, to prove the pedigree of the lessors of the plaintiff. In such questions it is often impossible to prove the relationship of past generations by living witnesses, and resort must be had to declarations, made by those now dead. who.were likely to know the facts. Ann Donahoe,who is dead and under whom the defendant claims title, who was at the time a very old woman, declared that the lessors of the plaintiff were the children of her sister, Mho was married to one Whitaker, both of whom died many years ago, and that they were her nearest relations. The question is not, as to the sufficiency, but as to the competence of the testimony. Ann Donahoe, as she states, was the sister of Whitaker’s wife, contemporaneous with her, and the lessors of the plaintiff were the issue of that marriage. These are not mere wanton declarations — they were made to the lessors themselves, when pointing out the connection between them and the said Ann, and, in all probabilitj', her heirs. Were these declarations of Mrs» Donahoe evidence proper to go to the jury of the fact of the marriage of Whitaker and her sister ? We think they were. A marriage is proved, cither by shewing an actual *190marriage, or by proof of reputation or cohabitation of the parties. The usual evidence under the first in this State is by some person, who was present at the ceremony. Under the 2nd, declarations of deceased members of a family, 3 Staidc. on evi., 4th part 939, 1st vol. do. 5S-59. But the declarations here went further than mere reputation. Mrs, Donahoe speaks of what she declares she knew to be the fact, that the lessors of the plaintiff were the children of her sister and born in wedlock. If so, the law presumes them to be legitimate, until the contrary is shewn. 2 vol. Stark, on evidence, 217, p. 4. Such a declaration is not only evidence of pedigree, but also of the state of the family, as regards the relationship of its different members. 1 Star. 95. In this case, it was not only as to the legitimacy of the lessors of the plaintiff, but also that they were her nearest living relations. The word relation is the same as kindred or consanguinity. Mrs. Whitaker was the sister of Mrs. Donahoe, who was the first purchaser of the land in question, and her collateral relations, and, upon her death without issue, was her heir or one of her heirs, and, upon the death of Mrs. Whitaker, her children stood in her place and succeeded to the inheritance of Mrs. Donahoe’s estate, exclusive of those more distantly related. 2 Ch. Blk. 204. The declarations of Mrs. Donahoe showed, that such was the fact, if believed, and entirely rebutted the idea, that there was' any person or persons, who stood between them and the succession. It was then evidence to go to the jury of these facts, and his Honor committed no error in admitting it. However small the weight might be, its admissibility seems to rest on clear legal principles. We think his Honor erred in admitting the testimony of Mr. Erwin, as to the declarations of the counsel of Mrs. Donahoe, made on the trial of the suit of Howard against her. The present defendant was the agent of Mrs. Donahoe in the management of that suit, and the declarations given in evidence were *191those of the counsel, made in his argument to the jury. His Honor held, that the plaintiff might give evidence of the acts and declarations of the defendant, and also the declarations of his counsel in his presence, as to matters of fact, which declarations the jury might weigh at their discretion. No fault can be found with the first part of his opinion. We cannot concur in the latter. In the first place, the counsel, whose declarations were given in evidence, was not the counsel of the defendant. To hold him bound by all the declarations, made by the counsel of his principal in the argument of the case, would be. carrying'his liability, as agent, farther than any principle of law, we are acquainted with, would justify. It would be carrying the doctrine very far to say, that a party to a suit was bound by declarations of counsel, made in histirgument to the jury, though made in his presence.

His Honor committed no error in rejecting the deposition offered in evidence by the plaintiff. It being taken de bene esse, it did not come within the rule, under which it was taken. He erred in rejectingthe deposition, offered by the defendant; this being taken under the general order, established by the Court; the other requiring a special or« der. which had not been obtained. We do not agree with his Honor in his declarations to the jury, upon the mental capacity of Ann Donahoe, as to the rule by which they were to ascertain the fact. He charged, that Ann Dona-hoe was deemed in law capable of making a contract, until the contrary was proved. This is correct, so far as this case i^'qoqeerned, He then,proceeds, in judging of the sufficiency of her intellect, “it was not sufficient, that she should be able, merely, to answer familiar questions, but to manage her business, with judgment and discernment.” We do not consider the rulé so laid down to be correct. If all persons are to be judgéd incapable of making contracts, who do not manage their business “with judgment and discernment,” we apprehend there are many more dis*192qualified by law than are now considered so. We know no better rule upon this subject, than that laid down by Lord Coke, that the person must be able to understand what he is about. To the same effect is the language of Chief Justice Tayt.or in the case of Armstrong and Arrington against Short, 1 Haw. 11. The rule laid down by his Honor was too broad, and well calculated to mislead the Jury.

Pearson, J.

The declarations of Ann Donahoe were clearly admissible, to prove the relationship of the lessors of the plaintiff to her. The declarations of a deceased member of a family are admitted, as evidence in matters of pedigree, using the word in its largest sense, so as to include marriages and births; for two reasons, it is a matter supposed to be within their knowledge ; it is a matter, about which they are presumed to be particularly interested to ascertain and declare the truth. Every one, from a feeling of nature, endeavors to know, who his relations are,and will seldom declare those to be his kinsmen who are not. Matters of pedigree arc difficult of proof, and, after one generation has passed, can rarely be established by better evidence. Declarations of deceased members of a family are received, as the best evidence the nature of the case admits, and as tending, most usually, to establish the truth. In this case, besides the above rule of evidence, the declarations of Ann Donahoe are admissible, upon the ground, that both of the parties claim under her; the lessors of the plaintiff as her alleged heirs, and the defendant as her alleged donee.

Per Curiam.

Judgment reversed and a venire de novo awarded.