66 Pedigree "-what it includes. This term embraces not only general questions of descent and relationship, but also the particular facts of birth, marriage and death, and the times when, either absolutely or relatively, those events happened. All these facts, therefore, may be proved from hearsay derived from relatives. It has been doubted whether specific dates can be so proved; but the preponderance of authority appears to be in favour of permitting them to be so proved. The written memorandum of a father as to the time when his child was born, has been received to prove when the infant would come of age (b); but in a settlement case the declaration of a father as to the place of his child's birth has been rejected, it not being strictly a question of pedigree (c). So, an order of removal was quashed, for being founded merely on the pauper's own evidence as to the time and place of her birth, because the statement was held to be one which she could not make of her own knowledge (d); but in Shields v. Boucher (e), KNIGHT BRUCE, V.-C., was of opinion that declarations of a person deceased as to what place his father came from would be admissible. Relationship must be established. Before the declarations of deceased relations can be received as such, it must be proved aliunde, i.e., by extrinsic and independent sources of evidence, that the declarants were related to the family (f). But prima facie evidence is sufficient if unrebutted (g). The declaration must not be in the declarant's own interest. Thus, a statement by a deceased person, who had been married twice, tending to invalidate his first, and thus (b) Per Lord ELLENBOROUGH Roe v. Rawlings, 7 East, 290. (c) R. v. Erith, 8 East, 539. (d) R. v. Rishworth, 2 Q. B. 487. (e) 1 De G. & Sm. 40. (f) Per Lord ELDON: Berkeley Peerage Case, 4 Camp. 419. (g) See Lyell v. Kennedy, 14 App. Cas. 451, establish his second, marriage, was rejected (h). It is no objection that the declarant was in pari casu with the party tendering the evidence (i). Does not apply to questions of age. It should be observed that the principle now under consideration applies only where questions of pedigree are involved, and therefore it does not apply to cases in which only the age of a person is material to be proved. Thus, where in an action for goods sold and delivered a defendant pleaded infancy, and it was sought to prove the plea by a statement contained in an affidavit made by the defendant's deceased father in a chancery suit to which the plaintiff was not a party, it was held that, there being no question of pedigree in the action, the evidence was not admissible (k). Must be ante litem motam.-The rule which has been mentioned in the preceding chapter, that the hearsay declarations of deceased witnesses to be admissible must have been made ante litem motam, is observed in cases of pedigree. On this head it is only necessary to refer to the declaration which has been already quoted, of MANSFIELD, C.J., in the Berkeley Peerage Case, that the lis mota, or beginning of the litigation, dates from the origin of the controversy, and not from the commencement of the trial. When a question of pedigree has assumed such a degree of conflicting interest, that the declarant must be reasonably presumed to be under the influence of undue partiality or prejudice, the disposition of the courts is either to reject his evidence altogether, or to receive it only with the strict limitations as to credibility which are laid down by the judges in their answer to the third question in the Berkeley Peerage Case. In a L.E. (h) Plant v. Taylor, 7 H. & N. 211. (i) Monkton v. Attorney-General, 2 R. & M. 159. M case of disputed descent from a lunatic, one of the claimants was allowed to give in evidence a deposition, made by a deceased relation of the lunatic before a master in chancery on an injunction, to discover who was entitled by consanguinity to become committee. It was urged that the deposition was inadmissible as being made post litem motam; but the court held that it was admissible (1). In a petition for a declaration of legitimacy it was proved that A., the petitioner's grandfather (whose legitimacy was in issue), had claimed some property in the possession of his reputed maternal uncle, but the latter said that he should defend any action which A. might bring, and communicated the circumstances to A.'s maternal uncle, and A. replied by letter that he wished to establish his legitimacy, but took no further proceedings. Sir J. HANNEN held that there was proof of the commencement of a controversy, so as to exclude subsequent declarations by any member of the family as to the marriage of A.'s father and mother (m). Entries in public documents.-Finally, it must be observed that an entry in a public document made by a public officer for the information of the public is presumed to be true, and is admissible in all cases, including those in which pedigree is in issue (n); therefore, in Lyell v. Kennedy (o), entries in Scotch Parochial Registers (produced from proper custody) were held admissible on a question of pedigree. (1) Gee v. Good, 29 L. T. 123. (m) Frederick v. Attorney-General, L. R. 3 P. & D. 196. (0) 14 App. Cas. 437. CHAPTER XII. DYING DECLARATIONS. THE principle that evidence is inadmissible, unless given on oath, and when the party who is to be affected by it can have the benefit of cross-examination, is limited by an exception in cases of homicide, where the deceased, under the impression of immediate or impending dissolution, has made a statement concerning the identity of the assailant, and the circumstances of the attack. It is presumed that the sense of approaching death in the declarant is calculated to produce in him a sentiment of responsibility, equal to that which a religious and conscientious man feels when required to make a statement on oath (a). Where the sense or conviction of approaching death is deficient or uncertain, dying declarations will not be received. Even when they are received, their value and credibility will vary infinitely, according to the circumstances. In all cases a strong objection to their full credibility arises from the fact that they are usually given in evidence against one who has had no opportunity of cross-examining the declarant, and thus of refuting out of his own mouth the errors, omissions, contradictions, and possibly wilful misstatements, which the latter may have committed. It often happens, also, that the declaration is made on great pressure, when the declarant is suffering from physical exhaustion or mental alienation, and when he is partially, or even wholly, unconscious of the full purport of his declaration. These considerations, combined (a) "Nemo moriturus præsumitur mentiri.” with the strong objection of the English law to condemn any man on the testimony of an absent, or even a deceased, witness, induce courts to regard this species of evidence with great watchfulness and suspicion. The judge, therefore, whose duty it is to inquire into the circumstances under which the declaration has been made, as a condition precedent to its admission, will generally exclude it if there appear to be any reasonable doubt as to the veracity, sanity, consciousness, or sense of religious responsibility and impending dissolution in the mind of the declarant at the time of the statement. Subject to these remarks it is held to be a rule that In murder, or homicide, the declarations of the deceased, concerning the cause and circumstances of his mortal wound, if made with a full consciousness of approaching death, are admissible in evidence for or against the prisoner who is charged with the crime (b). In R. v. Woodcock (c), EYRE, C.J., said: "The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice." In this case it was held that a statement made by the deceased to a magistrate, who administered an oath to her extra-judicially, could not be received; but that a statement made by her when her dissolution was fast approaching, and when she must have known the fact, (b) Dying declarations are inadmissible in civil cases (Stobart v. Dryden, 1 M. & W. 626. (e) 1 Leach, C. C. 502 |