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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 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
1 Doe d. Neale v. Sampter, 8 Ad. & El. 154.
2 Evans v. Rees, 10 Ad. & El. 154.
31 Phill. 236; contrà, Tayl. 435.
will be admissible without such proof. It appears doubtful whether this qualification will hold even in this restricted form, and it is denied by Mr. Taylor. A late 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 under 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.
Abbott, C. J.: R. v. Debenham, 2 B. & Ald. 185.
+ Outram v. Morewood, 5 T. R. 123.
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
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
In Davies v. Lowndes,2 Parke, B. said :—“There 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
1 Tayl. 414.
27 Scott N. R. 188.
3 Doe d. Jenkins v. Davies, 16 L. J. 218, Q. B.
they were speaking the truth, and could not be mistaken. The declaration of others than blood relations, and husbands and wives, are not admissible; thus, the declarations of deceased servants and intimate acquaintances are rejected;2 even though coming under the head of dying declarations.3 Nor are the declarations of illegitimate relations received.a
"The law resorts to hearsay of relations upon the principle of interest in the person from whom the descent is to be made out; and it is not necessary that evidence of consanguinity should have the correctness required as to other facts. If a person says another is his relative or next-of-kin, it is not necessary to state how the consanguinity exists. It is sufficient that he says A. is his relation, without stating the particular degree, which perhaps he could not tell if asked. But it is evidence, from the interest of the person in knowing the connections of the family; therefore, the opinion of the neighbourhood of what passed among acquaintances will not do."5 In this case it was held clear that the declarations by a deceased husband as to his wife's legitimacy are admissible, as well as those of her blood relations. Accordingly, in Doe d. Fuller v. Randall, it was held that the declaration of a deceased woman of statements made by her former husband, that his estate would go to J. F., and then to J. F.'s heir, were admissible to show the relationship of the lessor of the plaintiff to J. F. There Best, C.J., said:-" Consanguinity, or affinity by blood, therefore, is not necessary, and for this obvious reason, that a party by marriage is more likely to be informed of the state of the family of which he is to become a member, than a relation who is only distantly
Whitelocke v. Baker, 13 Ves. jun. 511.
2 Johnson v. Lawson, 9 Moore, 183.
5 Lord Erskine: Vowles v. Young, 13 Ves. 147.
connected by blood; as, by frequent conversations, the former may hear the particulars and characters of branches of the family long since dead.
The declarations of deceased persons must be taken with all their imperfections, and if they appear to have been made honestly and fairly, they are receivable. If, however, they are made post litem motam, they are not admissible, as the party making them must be presumed to have an interest, and not to have expressed an unprejudiced or unbiassed opinion."
It has been said by a learned judge, on the authority of an old case: "Hearsay is good evidence to prove who is my grandfather, when he married, and what children he had, &c., of which it is not reasonable to presume I have better evidence. So, to prove my father, mother, cousin, or other relation, beyond the sea dead; and the common reputation and belief of it in the family gives credit to such evidence."1 Hence arises the doctrine, that the declaration need not be one which has been made immediately by the deceased, as of his own knowledge or belief, to the witness; but it may be, as a learned judge has expressed it, "two deep," or indefinitely more remote in degree. It is sufficient to show that a general belief has prevailed in a family. Thus, evidence that a person went abroad when a young man, and, according to the repute of the family, had afterwards died in the West Indies, and that the family had never heard of his being married, is strictly admissible to show that he died unmarried.2 On this ground, not merely oral declarations of deceased persons connected with the family, but old family documents, genealogies, inscriptions on tombstones, on walls, or rings, if sufficiently authenticated as genuine, and as having been recognised as such by the family, will be received. This second and extended branch of the rule has been argued so recently and
1 Bull. N. P. 294, cited in note 15 East, 294. 2 Doe d. Banning v. Griffin, 1 East, 293.