HURST v. JONES, 12 F. Cas. 1036

TILGHMAN, Chief Judge. Is it clear that Morris’s information is wholly derived from the affidavits? I think not. He says, that he had several “conversations” with ancient persons and was informed &c. But regarding the case as the defendant’s counsel view it, is that which is stated under the sanction of an oath, less persuasive or less likely to be true than the prattle of casual conversation? or is the truth of conversation rendered less probable by being after-wards sworn to?

Suppose this case: — A person, hearing another giving an account of the lineage of one whose pedigree he wishes; to establish, thereupon asks that other to go and swear to it Is the statement, when-sworn to, rendered less probable? 1 am not aware that any court has decided that the only declarations admissible are those dropped in passing conversation; nor do I see that the value of the declaration is essentially impaired because responsive to inquiry, or even to interested inquiry; provided no controversy has been stirred.

Suppose, that being interested to know my descent, I go to an aged friend and ask him such and such questions, and he tells me what he knows: is not this hearsay, and admissible? subject of course to the restriction which I have named, tuat it must be-made before controversy moved. For the rest, I do not see that any controversy had been stirred in 1768, when these-affidavits were made; and I therefore think that Morris’s deposition should be submitted to the jury. Under the court’s direction, they will decide upon its credibility and weight. GRIFFITH, Circuit Judge. ' I agree with-the chief justice.

Hearsay is admissible when made ante litem motam. That is this case. The present suit, it is admitted, was not stirred when the affidavits were made;: nor, in fact, were they made in any controversy properly so called. The secretary of the land office, it would appear, wanted a •chain of title produced for his own satisfaction. The rules of his office probably required that the evidence of an applicant’s title to a warrant should appear among the records; and Morris produced such evidence.

So far as appears, there is no dispute nor doubt as to the descent; nor was there any opposing claimant of the warrant. 1 infer that the affidavits were made in compliance with the technicality and routine of office. They are, then, nothing more nor less than sworn declarations ante litem mo-tam. I do not see that the jurat destroys their credibility; for if that which is dropped in the laxity of conversation be credible, why ceases it to be so when reduced to form, and sworn to after calm, solemn and thoughtful recollection? The case from 1 Dall. [1 U.

S.] 14, does not conflict with our opinion; for that case is inclusive rather than restrictive.

In short, while I have always admired the wise sentiment of Lord Talbot, that it is better to •suffer a particular mischief than a general Inconvenience; and feel in great strength, that the rules of evidence are founded upon large, general principles never to be broken away by the hardness of circumstances, I must yet admit, that in excluding this deposition we should narrow a rule of law beyond what is found in precedent. 1 may add, at the same time, that 1 should not be disposed to go greatly further than we do in this case. BASSETT, Circuit Judge. If we give to the deposition that favourable

interpretation which in support 'of proba ole intent human language may reasonably claim, it will by no means appear that Mr. Morris records only what is found in the affidavits. On the contrary: he had been inquiring in regard to the subject; “had many conversations with ancient people;” and as he might remember generally that the essence of what he learned was accurately set forth in their affidavits, we can understand why he presents documentary language (if it be the fact that he does so) rather than the less ■accurate recollections of an exhausted memory.

I agree with the chief justice and my brother on the other points.

In 176S, when the affidavits were taken, there does not appear to have been what, in the understanding of the law, is a “controversy stirred;” and though I was, at first, much oppressed by the argument that what Morris heard was in answer to his own inquiries made on the very point now in question, and with an interested view; yet I think, upon the, whole, that as the witnesses must be presumed to have been indifferent, as they cannot be regarded as officious volunteers; what they stated is not to be rejected purely because it was in answer to inquiry, or because (being, doubtless, desired so to do) they attested with their oath what they had said in conversation.

The evidence ought to be received; but is open, of course, to observation from the court. Depositions received.