(dissenting.) On the trial of this cause, a title to the premises in question was shown in William Wilson and John Goodrich, each a moiety, both of whom are dead; and it became necessary to prove that John Wilson was the heir at law of William Wilson, and that Margarét Goodrich and others were coheiresses of John Goodrich.
The only proof of the pedigrees of those claiming to, be the heirs of William Wilson and John Goodrich, was the deposition of Cary Ludlow. He states, that William Wilson died in England, as he has always understood, between the years 1788 and 1795, leaving John Wilson, .his nephew, heir at law; that he (Ludlow) was the agent of William Wilson, during his life, and superintended his lands, particularly those in question; that he corresponded with William Wilson^ and after his decease John Wilson empowered him to act as his agent on the premise^. The power is dated 18th November, 1795, and in it John Wilson is styled the heir at law and1 devisee of William *133Wilson; that he had corresponded with John Wilson, and has always understood from all the acquaintances of the family, and the people who claimed an interest in said lands, under the patent to Ross, that John Wilson was both devisee and heir at law of William Wilson, since John succeeded to the estate; that he was the agent of John Goodrich'm his life-time,and after his death he was empowered to act as the agent of the children and coheiresses of J. Goodrich,who are the lessors of the plaintiff; that he never heard that W. Wilson left any children, or brother ox-sister, or any other nephew or niece than John Wilson-, that this information was derived from the several powers of attorney he received, from correspondence with the parties, and conversations with Goldsborough Banyar, Samuel Corp, and other acquaintances of the families of Wilson and Goodrich; that he had always paid the taxes on the land he knew was improved. A deed from Margaret Goodrich and others to Ezra Goats, jun. dated 2d September, i 807, was then offex-ed in evidence, and was objected to, on the ground that the heirship of the grantors was not sufficiently proved, though it was admitted that John Goodrich was dead. The deed was admitted.
Ihe defendant’s counsel raised several other objections, all of which I consider so clearly untenable, as not to require an opinion on them; the only objection I shall examine, is this, whether the evidence of Mr. Ludlow made out, legally, the facts, that John Wilson was the heir of William Wilson, and that Margaret Goodrich and the other grantors in the deed to Goats, were the heirs of John Goodrich.
I had, at first, supposed that there was fuller proof in favour of John Wilson’s claim to be heir of William Wilson, than with respect to those alleging themselves to be heirs of John Goodrich, but I am satisfied they stand on the same footing.
As a general rule of law, all material facts are to be proved by persons having personal knowledge of the *134facts to which they depose; for evidence signifies that which demonstrates the truth of the point in issue. There are several exceptions to the rule, growing out of the particular circumstances of the cases; and in questions of pedigree, prescriptive custom, or character, hearsay evidence will be admitted, for the reason that, in these instances, (and some others might be added,) the facts to be proved are, in their very nature, not susr ceptible of positive proof; but whilst the general rule of law is relaxed to the necessity of particular cases, care should be taken, not to go beyond that necessity, and admit the most vague hearsays.-
The testimony of Mr. Ludlow goes to show, first, that he was the agent of William Wilson and John Goodrich, in their life-times; second, their deaths.; third, powers of attorney from John Wilson, the supposed nephew of William Wilson, and from the children and coheiresses . of John Goodrich; fourth, that he paid taxes on the improved lauds in behalf of his constituents; and fifth, information derived as well from the powers of attorney, and correspondence with the parties, as from conversation with Messsrs. Banyar and Corp, and other acquaintances of the families of Wilson and Goodrich, that they are respectively heirs of Wilson and Goodrich.
To the two first facts there can be no objection. Mr. Ludlow’s testimony was competent to prove them. The other facts do not establish, even prima facie, the fact of heirship.
The powers of attorney and correspondence, were acts done by the persons asserting themselves to be heirs; and upon.no principle can such acts be evidence in their favour, to establish the facts they set up. A correspondence with a person abroad may enable his correspondent here to testify to his hand-writing; and the writing thus proved may be used against the foreign correspondent; but he cannot create evidence for- himself. *135The correspondence and powers of attorney might be evidence against the persons asserting themselves to be heirs; but it would be overthrowing every rule of evidence to admit them as evidence for them. (5 Term Rep. 121.) The circumstance that they live abroad cannot alter the effect of their acts. If a power of attorney, and letters, would be evidence of the heirship in this case, then such acts would equally be evidence, if the parties resided here.
The payment of taxes is thrown in as a makeweight. It cannot be considered as any evidence whatever of ownership. Taxes are frequently imposed without any designation of the owner; and if payment of them was to be regarded as evidence of title, no man would be secure.
It comes then to this; is the information of Messrs. Banyar and Corp, and other acquaintances of the families, that kind of hearsay, in the case of pedigree, which the law requires? I think it clearly is not.
It is not shown in the case, where Messrs. Banyar and Corp, and the other acquaintances of the families reside, or whether they are living or dead. If they reside within the jurisdiction of the court, then it follows, that instead of our having their knowledge of the families, we have the intelligence at second hand. Peake, (in his Treatise on Evidence, p. 11.) after speaking of hearsay evidence, in cases of pedigree, prescription and. custom, says, “ In these cases, therefore, the law departs from its general rule, and receives evidence of the declarations of deceased persons, who, from their situation, were likely to know the facts, and also the general reputation of the place, or family most interested to preserve in memory the circumstances attending it; any thing which shows such reputation is, on a question of this sort, received in evidence, though oftentimes wholly inadmissible in other cases.” Again, (p. 12.) “ So to prove the state of a family, as who a man married, what: children he had, that A. died abroad, &c. declarations of *136deceased persons, who, from their situation were likely to know, and the general belief of the family, are sufficient.” And (p. 13.) he illustrates the distinction be? tween hearsay evidence of mere facts, and of general reputation, between the proof in cases of pedigree, and cases of custom and prescription. (1 Bull. N. P. 294, 295.)
Had Mr. Ludlow been acquainted in the families of Wilson and Goodrich, and from that been likely to know the relation which these persons bore to Wilson and Goodrich, his testimony would have been competent; but it is derived from others, none of whom appear to be dead, and all of whom, for aught that appears, may be amenable to our process. Such testimony never was admitted to be sufficient; and though to admit it in this case might probably relieve the party from expense and trouble, and promote justice, I confess I am unwilling to break in upon the established rules of evidence, and put every thing afloat.
It appears to me, therefore, that there ought to be a new trial, with costs, to abide the event of the suit.
Motion denied.