1. It was competent for the defendants to show the circumstances under which they assessed the plaintiff's property. They were charged with having fraudulently and maliciously raised his valuation. Evidence tending to show that the valuation was raised in good faith was plainly admissible, and the testimony of Young clearly tended in that direction.
2. The declaration alleges that the defendants fraudulently and maliciously raised the valuation of the plaintiff's farm and also fraudulently and maliciously taxed a horse to the plaintiff which he did not own. It is not one of the plaintiff's grievances that the horse was over-valued. It was not then material at what value he was appraised in 1872, as no complaint is made that he was not appraised too high in 1871. Showing what the horse was appraised at in 1872 would have some tendency to show his value in 1871. But during the year the value of this horse, or the value of horses generally, may have increased or depreciated. The fact that the selectmen of 1872, one only of whom acted as such in 1871, appraised the horse at two thirds of the value at which he was appraised by the board of 1871, would hardly have any tendency to show that the board of 1871 acted fraudulently or maliciously. The presumption is, that each board acted honestly, until the presumption is removed by evidence. No two boards of officers would be generally expected to appraise property at exactly the same value, even at the same time. The fact that the board of 1872 appraised the horse lower than their predecessors, had no tendency to show that the board of 1871 did not act with the same honest intention. With the same propriety it might be argued that the fact that the appraisal of the board of 1871 differed from that of the board of 1872 shows that the latter *Page 626 board acted in bad faith. One board was as likely to be right as the other.
3. There was no state of facts that called for the first instructions requested. It appears that all three of the selectmen united in making the appraisal of the farm. Flanders, alone, took the list of the plaintiff's personal property, but it does not appear that the whole board did not unite in the appraisal. The evidence upon which an appraisal may be made may consist of a view and personal examination of the property, or of such other evidence as may be accessible to the assessors. But it is not important in this case how the appraisal was made, — whether by Flanders alone, and his judgment accepted by the others, or by an examination by the whole board; for the complaint is, that the horse was not taxable to the plaintiff — not that he was over-valued.
4. Neither were there any facts that called for the second instructions requested. There is no evidence reported from which the jury could infer that the plaintiff gave to the selectmen, or either of them, a list of his property subject to taxation, or that the defendants under took to doom the plaintiff. The instructions, therefore, were properly refused.
5. The testimony of Sterling Hibbard was only hearsay, and was improperly received. It does not appear that he got his information from his parents or other members of the family. Declarations as to pedigree are admissible, but they are confined to declarations made by relatives or the family. So. Hampton v. Fowler, 54 N.H. 197.
6. The reception of Lebbeus Hall's deposition presents a question upon which the authorities are not agreed. According to the English authorities, hearsay evidence is admissible to prove pedigree, but not the place of one's birth. The reason of the distinction is said to be, that where a person is treated as a child for many years, that is rather a course of conduct than a simple declaration showing relationship; whereas the question of birthplace presents a distinct fact. This reason, however, is not altogether satisfactory. Wilmington v. Burlington, 4 Pick. 174.
The term pedigree, as defined in 1 Gr. Ev., sec. 104, embraces not only descent and relationship, but also the facts of birth, marriage, and death, and the times when these events happened. And in note 1 the author adds, — "In a recent case this doctrine has been thought to warrant the admission of declarations made by a deceased person as to where his family came from, where he came from, and of what place his father was designated. Shields v. Boucher, 1 DeGex Smale 40."
Our attention has not been called to any case in our own reports in point. The weight of authority appears to be against the admission of such testimony. See authorities cited by the chief-justice, supra. If the deposition was properly received, it would seem competent for the defendants to contradict the statements of Mrs. Hall, and for that purpose the testimony of Hilliard, Beecher, and Drew should have been received. *Page 627
7. The testimony of Workman conflicted with the position of the defendants. Erastus Hibbard claimed that he was a citizen, because, although born in Canada, his father was born in the United States. Evidence that he ever claimed or stated that his father was born in Canada tended to contradict him, and was therefore admissible.
8. No reason has been assigned why evidence that Erastus Hibbard had voted for eighteen years in Stewartstown could be received.
9. The deeds of Luther Hibbard to Harvey and to Beecher were properly admitted. 1 Gr. Ev., sec. 104. Evidence of this character is different from the mere verbal declaration of a person as to his residence. "The designation of his residence in a solemn instrument, such as a deed or a will, is in the nature of a fact rather than a declaration, being made when there was no controversy, and when no possible interest could exist to give a false designation." Ward v. Oxford, 8 Pick. 476.
*STANLEY, J., C. C. I agree that the verdict on the second count should be set aside and a new trial granted. New trial on the second count.
* LADD, J., did not sit.