a period granted, I think from January to March, they then applied for an extension of that period, and it was then stated that this remedy might be afforded in a complete form; and I have not the least reason, from anything I can see, to doubt that these statements are perfectly well *founded. Well, then, my Lords, what is this case? Instead of adopting that course they come to appeal against an order which seems to me to be entirely well founded, and to be the only order which the Court could have made, and which can do them no prejudice if they will only perform their duty towards this gentleman and towards the public, by doing that which they say they are able to do, by preventing all injury to his property by their works. think that there never was an application made to your Lordships that was more utterly ill-founded, and I hope that your Lordships will dismiss the appeal with costs. LORD CRANWORTH: I I do not think it necessary to say more than a few words in addition to what has been said by my noble and learned friends. The views that I take of this case are on record, and I can only say that I fully adhere to the judgment which I pronounced in the Court of Chancery. By the judgment I pronounced, of course I mean the judgment which I pronounced when I disposed of the matter in January, 1857. The case upon the evidence stands thus. (His Lordship here went through the evidence, and added:) It appears to me, therefore, that there is distinct evidence that the crops were more injured, and that there was a great increase in the volume of smoke; and all the witnesses say that these injurious effects have been materially aggravated since the building of the new retort-house. Orders appealed against affirmed, and appeal dis- RORKE v. ERRINGTON. (7 H. L. C. 617–632; S. C. 5 Jur. N. S. 1227; 9 Ir. C. L. R. 357.) [This decision turned entirely on the construction of stat. 12 & 13 Vict. c. 77, repealed by S. L. R. Act, 1875, and the case is now of no practical importance. See Jacomb v. Turner [1892] 1 Q. B. 47.] THE GAS LIGHT v. BROADBENT. [ 616] 1859. Aug. 5, 6. R.R. -VOL. CXV. 20 1859. July 6, 7. Lord CAMPBELL, L.C. BROUGHAM. Lord CRANWORTH, Lord WENSLEYDALE. Lord CHELMS FORD. WILLES, J. [ 633] [ *634 ] BUTLER v. MOUNTGARRET. (7 H. L. C. 633-650.) Statements made in the course of a conversation between a connexion of a family and some of the members of the family on the subject of a marriage supposed to have taken place in that family, cannot be given in evidence without previous proof that the persons who made the statements are dead. A controversy in a family, though not at that moment the subject of a suit, constitutes a lis sufficient to render inadmissible in evidence a letter written on that subject by one of the members of the family, and addressed to another member of it. S. B., H. B., and P. B. were, in 1816 (in this order of succession), the expectant heirs of a person who was then childless. In that year S. B. wrote to P. B. a letter, stating circumstances respecting an alleged marriage of H. B. in 1811, which, if true, would have the effect of handing over the succession to P. B.'s children. The then holder of the property did not die till 1846: Held, in an ejectment afterwards brought by the children of P. B., that this letter was not admissible. Qu. Whether the date a letter bears is primâ facie its true date? THIS was a proceeding in error brought on a judgment of the Exchequer Chamber in Ireland in an action of ejectment, brought by P. S. Butler, to recover from the defendant, Lord Mountgarret, certain lands in the county of Kilkenny, which had been the property of the late Earl of Kilkenny. The Earl, who had inherited the title of Viscount Mountgarret, but had been created Earl of Kilkenny, had three brothers, Somerset, Henry, and Pierce. Somerset died in 1826 without issue. Henry died in 1842, leaving the defendant, his eldest son by his marriage with Miss Harrison. Pierce died in June, 1846, leaving the plaintiff, his eldest son. The Earl died in July, 1846, without issue. The Earldom thereon became extinct, and Henry Edmund Butler (the defendant), the son of Henry, was admitted to the Viscounty, and entered into possession of the entailed estates. In July, 1853, the plaintiff brought against him an action of ejectment, on the ground that he was not the legitimate son of Henry, for that Henry, before his marriage with Miss Harrison, which was formally celebrated on the 3rd September, 1811, in the parish church of Brighton, had contracted per verba de præsenti a marriage at Edinburgh with a young widow named Colebrooke. The action was first tried at the Summer Assizes for the county of Kilkenny in 1854, when a verdict was found for the plaintiff; but the Court of Exchequer set aside this verdict, and ordered a new trial, which came on before Mr. Serjeant Berwick at the Spring Assizes for Kilkenny in 1855, when a verdict was found for the defendant. Exceptions were taken to the ruling of the learned Judge on certain points of evidence, and these exceptions were argued in the Exchequer Chamber, where judgment was given for the defendants. The evidence on the subject of the alleged Scotch marriage, as given by Mrs. Colebrooke's confidential servant, Sarah Stride, was in substance this: That at the end of March or beginning of April, 1811, Henry Butler came to the house where Mrs. Colebrooke (with whom he had previously had illicit connexion) was then living at Edinburgh, and insisted on being admitted, was very violent and threatening, and declared that Mrs. Colebrooke was his wife; that the house was his house, and that nobody should dare to keep him out; he scaled the wall at the back of the house, and entered. Mrs. Colebrooke met him at the top of the kitchen stairs in the hall. She had been up to that moment in bed with a Mr. Taaffe. She came down *in great confusion, Taaffe having been safely locked in the bedroom. She and Butler went into the housekeeper's room, where they remained ten minutes, or a quarter of an hour, and Taaffe, whom the witness Stride had in the meantime let out of the bedroom, was put into the drawing-room. Mrs. Colebrooke and Butler shortly afterwards went up to her bedroom, and after they had been there some little time, she rang the bell, which Stride answered, and she told Stride to call up the other servants. Stride called up William Johnston, the footman, and Margaret Johnston, his sister, the nursemaid; when the three servants were in the room, "Mrs. Colebrooke said that Mr. Butler wished me to call us up, to witness that him and her were man and wife. They were standing side by side with their backs to the fire, joining hands. Mr. Butler merely nodded his head." The plaintiff, farther to maintain the issue, produced the Dowager Marchioness of Ormonde, who said she was a connexion of the Mountgarret family. She had heard of the marriage of Henry Butler with Miss Harrison. She was asked whether before she heard of that marriage she had heard from some members of the Butler family that he had contracted a marriage in Scotland with a Mrs. Colebrooke. The question was objected to (1), and the learned Judge allowed the objection. This formed the ground of the first exception. Proof was then given that a letter, dated 26th September, 1816, signed "Somerset Butler," and addressed to Pierce Butler, was in Somerset Butler's handwriting, and the plaintiff's counsel proposed to read this letter, with the view of laying before the jury two particular passages *in it (2). The counsel for the defendant objected that the first (1) The objection, though not so stated in the bill of exceptions, was said to have been this: that it was not shown that the members of the family with whom the conversation to be proved took place, were dead. (2) The letter was in the following terms. The two passages are printed in italics: "DEAR PIERCE,-I think it just and fair to tell you all I know BUTLER v. MOUNT GARRET, [ *635 ] [ *636 ] BUTLER v. MOUNTGARRET. [ *637 ] of the two passages was something written after a certain matter had become the subject of controversy in the family, and that the letter must therefore be treated as a statement made post litem motam; and that the second of these passages was subject to the same objection, and was farther objectionable as being the statement of the contents of a written document. The learned Judge allowed the objection to each of the passages referred to, and the doing so formed the subject of the second and third exceptions. The defendant's counsel produced one Henry Preston, an agent for the post office, who proved the Moffatt post office mark on a letter "29th March, 1811." The letter itself was dated 26th March, 1811. This was a letter which purported to come from Mrs. Colebrooke, and was *addressed to a third person. The plaintiff's counsel objected that this letter (the object of producing which, was to throw doubt on the alleged date of the supposed Scotch marriage) was not admissible for that purpose, for that the post-mark was no evidence of the place in which the writer was when the letter was written. The learned Judge held that the letter was admissible in evidence, on the issue in the cause, and this constituted the matter of the fourth exception. The defendant's counsel, with the view of showing that after the supposed Scotch marriage Mrs. Colebrooke did not treat it as of any validity, then proposed to read in evidence a letter of Mrs. Colebrooke, dated 13th May, 1811, and signed by her in that name. This letter was objected to by the plaintiff's counsel, but was held to be admissible as evidence on the issue, and this formed the subject of the fifth exception. In his charge to the jury, the learned Judge read and commented on the letters of Mrs. Colebrooke which he had admitted in evidence. The plaintiff's counsel required that they should be withdrawn from the consideration of the jury, but the learned Judge refused to withdraw them, and this formed the subject of the sixth exception. much agitated; he said he was in a scrape; that Mrs. C. in Scotland had called up several of her servants as witnesses, and that they had taken each other as man and wife before them; that since she had declined acknowledging him. I told him she was his wife, and that he would be arrested for her debts, and advised him to advertise that he would not pay any future debts; he seemed to agree with me: he showed me a letter he had written her, calling her his wife, and the mother of his children. I laughed, as he previously told me one child was dead, and the other a miscarriage. He also showed me a few lines from her, abusing him, but not signed after this, he told me she had come to town; they had passed the night together, and had again quarrelled. Mrs. Harrison, at Brighton, complaining of his and her daughter's conduct, told me Mrs. Colebrooke had written her a letter, saying if she gave her 13,000l., she would give up her claim to Henry. Mr. Forth, of Brighton, told me she had mentioned much the same thing to him. This is all I know of the business. I am, dear Pierce, yours affectionately, S. BUTLER. CHELTENHAM, September 26th, 1816." The Court of Exchequer overruled all the exceptions, and gave judgment for the defendant. The case was then taken to the Exchequer Chamber, where this judgment was affirmed. The plaintiff then brought the case on error to this House. Sir H. Cairns, for the plaintiff in error: The question whether there had or had not been a communication between two members of a family on a supposed marriage in that family was admissible. It is not to be excluded on the ground that there was a domestic dispute, whether that particular fact did or not exist. There was not a lis mota at that time. * In Freeman v. Phillips (1), the depositions of freeholders, made many years before in a suit relating to the customs of the manor, were admitted in a proceeding for a false return to a mandamus as to the customs of the manor. In that case there was a lis mota. (THE LORD CHANCELLOR (LORD CAMPBELL): The ratio decidendi there was, that it was not the same question. LORD CHELMSFORD: The lis here was, at the date of the letter, deemed by all the parties to be inevitable. All the members of the family who were in a sound state of mind had their attention engaged on the subject.) But the mere existence of an interest which may probably become the subject of a lis, does not prevent family statements from being admissible. In the recent case of Partington v. Rennells (2), a widow lady having no children, advertised for members of her family. She received numerous letters from America. She died intestate, never having made up her mind as to who were her relatives. The declarations made by members of the family in America, as to the state of the family, were received in opposition to the argument that they were made by persons having a deep interest in making them. (Lord CHELMSFORD intimated a doubt whether any such declarations had been admitted, *except those which she in her lifetime had pronounced to be correct.) The true principle was stated by Lord ELDON, in Whitelock v. Then as to the objection that the statement of the contents of Henry Butler's letter was the statement of the contents of a written document, that objection cannot properly be taken here. Two men, Somerset Butler and Henry Butler, have met (1) 16 R. R. 524 (4 M. & S. 486). MS. (3) 9 R. R. 216 (13 Ves. 514). BUTLER v. MOUNTGARRET. [ *638 ] [ *639 ] |