On Rehearing.
We are satisfied that the rejection of the depositions of witnesses, taken in Plaquemine Parish and used in the Kentucky suit, was error. The record contains the admission that the witnesses are dead, and their testimony was offered for the sole purpose of proving pedigree.
The general rule is that depositions relating to pedigree, where reputation would he evidence, are admissible even against strangers. 1 G-reenl. Ev. $ 555. It is put in another form directly applicable to this case: a deposition of a witness since dead, proving the pedigree of a plaintiff, may he offered in evidence, although it was taken in another case between different persons and on a different subject. Weeks’ Law of Depositions, $ 477; Lessee of Barnet vs. Day, 3 Wash. Cir. C. Rep. 243.
The rule has been found so necessary that even the contents of ex parte affidavits to prove pedigree, made several years before, have been held admissible as hearsay, there being no evidence of any actual suit on the subject at that time. Hurst vs. Jones, 1 Wall. jr. 373; Colvert vs. Millstead, 5 Leigh, 88.
*425These depositions being admitted, the proof that Julia Lampton was not the child of Edward Lampton is so overwhelming as to be to all appearance incontrovertible.
It cannot be pretended the issue of filiation was not tendered in the pleadings. They speak for themselves, and without reciting the averments therein made by the plaintiffs, it is patent from those of the defendant that both were striking at the same object.
The executor repeats it at every stage of his defence. His first ground of exception is that the plaintiffs “ can no longer contest her legitimacy,”—the second, that her undisturbed possession was under an order of court “recognising her as sole heir,”—the third, that her “ status as legitimate daughter of Edward Lampton has been established by a competent court of her domicile which has never been impeached,”—and in the answer it is renewed, “that her status as daughter and heir of Edward S. Lampton cannot be attacked by proceedings in a foreign tribunal, to which she was not a party.”
The issue was tendered and accepted, the defendant emphasising it with point. If we refuse to remand, and the defendant really has evidence which was'not used because under the ruling of the lower court it was unnecessary, great injustice will be done, and an additional reason is suggested in the amount of the judgment which is claimed to be excessive, and beyond the value of the succession.
It is therefore ordered and decreed that our former judgment is set aside, the judgment of the lower court is avoided and annulled, and the case is remanded to be proceeded with in accordance with the rulings in this and our former opinion, the costs of appeal to await the final decision of the cause.