In The Bishop of Meath v. Marquis of Winchester,1 in the House of Lords, the general doctrine, more particularly as regards the next point to be considered, viz. the custody of the document, was fully considered. The main questions were, whether an ancient deed, and also a case concerning the right of presentation to a living, prepared for counsel by a former Bishop of Meath, in 1695, and found among the family papers of his descendants, were evidence touching the right of presentation as against the plaintiff in error. Both documents were held clearly admissible.

Ancient documents, to be receivable as such, must be proved to have come from the custody in which it was reasonable that they should be found.

Thus, in the above case, Tindal, C. J. said:"The result of the evidence, upon the bill of exceptions, we think is this-that these documents were found in a place in which, and under the care of persons, with whom papers of Bishop Dopping might naturally and reasonably be expected to be found, and that is precisely the custody which gives authenticity to documents found within it; for it is not necessary that they should be found in the best and most proper place of deposit. If documents continue in such custody, there never would be any question as to their authenticity; but it is when documents are found in other than the proper place of deposit, that the investigation commences, whether it was reasonable and natural, under the circumstances in the particular case, to expect that they should have been in the place, where they are actually found; for it is obvious that whilst there can be only one place of deposit, strictly and absolutely proper, there may be various and many that are reasonable and probable, though differing in degree; some being more so, some less; and in those cases the proposition to be determined is whether, the actual custody is so reasonably and probably to be

13 Bing. N. C. 183.

accounted for, that it impresses the mind, with the conviction, that the instrument found in such custody, must be genuine. That such is the character and description of the custody, which is held sufficiently genuine to render a document admissible, appears from all the cases. On the one hand, old grants to abbeys, have been rejected as evidence of private rights, where the possession of them has appeared altogether unconnected with the persons who had any interest in the estate. Thus, a manuscript found in the Herald'soffice, enumerating the possessions of the dissolved monastery of Tutbury, a manuscript found in the Bodleian library, Oxford; an old grant to a priory brought from the Cottonian MSS. in the British Museum; were held to be inadmissible, the possession of documents being unconnected with the interests in the property. On the other hand, an old chartulary of the dissolved abbey of Glastonbury, was held to be admissible because found in the possession of the owner of part of the abbey lands, though not of the principal proprietor. This was not the proper custody, which, as Lord Redesdale observed, would have been the Augmentation Office; and as between the different proprietors of the abbey lands, it might have been more reasonably expected to have been deposited with the largest; but it was, as the court argued, a place of custody where it might be reasonably expected to be found. So also, in the case of Jones v. Waller, the collector's book would have been as well authenticated if produced from the custody of the executor of the incumbent or his successor, as from the hands of the successor of the collector. Upon this principle, we think the case stated for the opinion of counsel, purporting to be stated on the part of Bishop Dopping, and found in the place and in the custody before described, was admissible in evidence. It was a document which related to the private interests of the bishop, at the time it was stated, for it bears date in 1695, about which time, it appears from other facts found, that Barry, the late incumbent, was dead and

that before 1697, Bishop Dopping collated his own son. It related, therefore, to a real transaction which took place at the time; and although it might be said to have related in some degree to the see, for the right of collation was claimed, as of an advowson granted to the see; yet it is manifest this case had been stated with reference to the private interests of the bishop in the particular avoidance, and that it was more reasonable to expect it to be preserved with his private papers, and family documents, than in the public registry of the diocese. But even considered as a document belonging to the see, it was not unreasonable that it should have been found in the bishop's mansion house; for, upon the evidence, there is only one single ecclesiastical record preserved in the registry of the diocese of Meath, of an earlier date than 1717; and on the other hand, the case and grant are found in the same parcel with several papers relating to the see of Meath, and in the same room were several visitation books of the diocese and other papers relating to the same see."

It appears from this case, that it is not necessary that the custody should be that which is strictly proper: it is sufficient if it be one which may be reasonably and naturally explained. But it is not sufficient to produce the documents without calling a witness to prove the custody from which they come.2

It is laid down by Mr. Phillipps,3 as a condition annexed to this class of evidence, that some act, e.g., of recognition or enjoyment, done with reference to the documents, is required to be shown if the nature of the case permits it: but he admits that where this cannot be done from the antiquity of the document, it will be admissible without such proof. It appears doubtful whether the qualification will hold even in this restricted form, and it is denied by Mr. Taylor. The

1 Doe dem. Neale v. Sampter, 8 Ad. & El. 154.

2 Evans v. Rees, 10 Ad. & El. 154.

3 1 Phill. 236; contrà, Tayl. 435.

latest authority rather confirms the latter view-Doe d. Egremont v. Pulman, where, in ejectment to prove that an ancient ancestor had been seised of the locus in quo, the lessor of the plaintiff produced from her muniment room, the counterpart of an old lease, purporting to be granted by the ancestor, but executed only by the lessee. It was held admissible, without proof, that the lessee had actually enjoyed under it. It is said to be an established principle, that nothing said or done by a person having at the time an interest in the subject-matter, shall be evidence either for him or persons claiming uuder him:2 and, therefore, in a settlement case,3 an old entry in a parochial book, was held not to be evidence of the terms under which a pauper resided in the parish. So, entries made by a deceased person, through whom the defendant claims, acknowledging the receipt of rent for the premises in question, are not evidence of title for the defendant.4

1 3 Q. B. 623.

2 Abbott, C. J., R. v. Debenham, 2 B. & Ald. 185,

3 Ibid.

4 Outram v. Morewood, 5 T. R. 123.

CHAPTER X.

ON EVIDENCE IN QUESTIONS OF PEDIGREE.

In questions of pedigree, or inquiries concerning relationship or descent, the rule by which hearsay evidence has been excluded is waived, and it is held that

XXXVIII. The statements of deceased persons, who were connected by blood or marriage, to the family in question, are admissible in cases of disputed pedigree.1

"There

In Davies v. Lowndes,2 Parke, B. said :seems to be no limitation in the rule as to blood relations; but with regard to relationship by affinity, it is different: it seems to be confined to declarations by a husband, as to his wife's relations." It is for the judge to decide as a question precedent to the admission of the evidence, whether the declarant has been sufficiently proved to have been connected by consanguinity or affinity to the family in question; and it makes no difference that the legitimacy of the declarant happens to be also the only question in issue.3

It is held that the declarations must have been from persons having such a connection with the family that it is natural and likely from their domestic habits, that they are speaking the truth, and could not be mis

1 Tayl. 414.

27 Scott N. R. 188.

3 Doe d. Jenkins v. Davies, 16 L. J. 218, Q. B.