tunities of observation, will arrive at different Day, at the Huntington Assizes in 1797, upon the conclusions, even in the case of mature persons, trial of ejectment, where the question was one of where a family likeness will be fully developed if partus suppositio, admitted that resemblance is there be any. And when applied to the immature frequently exceedingly fanciful, and therefore cau child its worthlessness as evidence to establish the tioned the jury in reference to such evidence. fact of parentage is greatly enhanced, and is of And in a trial in bastardy proceedings the mere too vague, uncertain, and fanciful a nature to be fact that a resemblance is claimed would be too submitted to the consideration of a jury. . . . We likely to lead captive the imagination of the jury, daily observe the most striking differences in physi and they would fancy they could see points of cal traits between parent and child, while indivi resemblance between the child and the putative duals born in different parts of the globe have been father. As in the case at bar, where the infant mistaken for each other. And even as to malfor was but a few weeks old, such evidence if allowed mations, although some remarkable resemblances in determining the paternity of the child would be in this respect have been noticed between father exceedingly fanciful, visionary, and dangerous." and child, yet we should act unwisely in relying The same was held in Risk v. State, 19 too much on them." Ind. 152, and Reitz v. State, 33 Ind. 187. The same doctrine was laid down in Clark In Eddy v. Gray, 4 Allen, 435; Jones v. v. Bradstreet, 80 Me. 454, in respect to a Jones, 45 Md. 144; Keniston v. Rowe, 16 child six weeks old. The court said : — Me. 38, the court hold that testimony of witnesses that the child looks like or resem "In a case like this, where the child was a mere bles in appearance the person charged to be infant, such evidence is too vague, uncertain, and the father is not admissible; and in People fanciful, and if allowed would establish not only v. Carney, 29 Hun, 47, it was held error an unwise but dangerous and uncertain rule of to allow the district attorney to ask the evidence. While it may be a well-known physio mother, as a witness, to look at the child, logical fact that peculiarities of form, feature, and then in court, and state what the color of its personal traits are oftentimes transmitted from parent to child, yet it is equally true, as a matter eyes was. In the words of the pastoral poet, of common knowledge, that during the first few nimiutn ne crede colori. It seems that at any age such evidence is weeks or even months of a child's existence it has that peculiar immaturity of features which extremely unsafe and untrustworthy. The characterizes it as an infant, and that it changes books are full of well-authenticated cases of often and very much in looks and appearance mistaken identity. Almost the first thing during that period. Resemblance then can be which two adult strangers do on being pre readily imagined. This is oftentimes the case. sented to one another is to trace resem Frequently such resemblances are purely notional blances in each other to others of their or imaginary. What may be considered a resem acquaintance. Another point in which such blance by one may not be perceived by another evidence must be regarded as unsafe consists having equal knowledge of the parties between in the fact that no two people will agree on whom the resemblance is supposed to exist. If an alleged resemblance, even in the same there should be a likeness of features, there might family. The moment a baby appears in a be a difference in the color of the hair or eyes. household the monthly nurse declares him As was said by the court in People v. Carney, 29 Hun, 47 : ' Common observation reminds us that to be the living image of his papa or her in families of children different colors of hair and mamma, as the case may be, while on the other hand the most intimate friends of the eyes are common, and that it would be a danger ous doctrine to permit a child's paternity to be family see' no resemblance to either parent, questioned or proved by the comparison of the but think the new-comer " favors " his greatcolor of its hair or eyes with that of the alleged uncle, or discover no likeness to anybody in parent.' Mr. Justice Heath, in the case of Day v. particular but the vacuity and stolidity of
