1

ceding cases, a cancelled will of an ancestor, found among family papers, has been received as a declaration concerning the relations of the family. Pedigrees hung up in family mansions;2 a marriage certificate kept by the family;3 a genealogy made by a deceased member of a family, even though purporting to be founded partly on hearsay; engravings on rings, coffin-plates, and monumental inscriptions generally, are regarded as admissible, but not always as credible, evidence.6

Not only hearsay declarations of deceased relatives, but also proof of the manner in which a person has been brought up and treated by his family, will be evidence. In the Berkeley Peerage Case, Mansfield, C. J., said:" If the father is proved to have brought up the party as his legitimate son, this is sufficient evidence of legitimacy till impeached; and indeed it amounts to a daily assertion that the son is legitimate."7

The term pedigree 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, these events happened. All these facts, therefore, may be proved by hearsay derived from relatives. But 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.9 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;10 but in a settlement case the declaration of a father as to the place of his

Doe d. Johnson v. Earl of Pembroke, 11 East, 504.

2 Goodright v. Moss, Cowp. 594.

3 Doe v Davies, 10 Q. B. 314.

Monkton v. Attorney-General, 2 Russ. & M. 147.

5 Vowles v. Young, 13 Ves. 144.

6 Davies v. Lowndes, 6 M. & G. 527, and sup. 115.

74 Camp. 416.

9 Ib. 419.

8 Tayl. 418.

10 7 East, 290.

child's birth has been rejected, as not being strictly a question of pedigree. 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.2

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.3 It is superfluous to state that the declarant, if alive, must be called.4

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 generally in cases of pedigree. On this head, it is only necessary to refer to the declaration, which has been already quoted,5 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 late 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

1 R. v. Erith, 8 East, 539; s. v. Shields v. Boucher, 1 De Gex & Sm. 40.

2 R. v. Rishworth, 2 Q. B. 487.

3 Lord Eldon: Berkeley Peerage Case. 4 Camp. 419.

♦ Tayl. 418.

[EV.]

5 Sup. p. 105.

M

the deposition was inadmissible as being made post litem motam. But the court held that it was not so.1

A statement made by a deceased parent that a child was born before marriage, or that no marriage ever took place, is admissible; but evidence of want of access, or of non-access, in order to bastardize a child, appears to be generally inadmissible on grounds of public policy.3

1 Gee v. Good, 29 L. T. 123.

2 Goodright d. Stevens v. Moss, Cowp. 591; Hargrave v. Hargrave, 2 C. & K. 701.

3 1 Phill. 202; sup. p. 83.

123

CHAPTER XII.

ON EVIDENCE OF 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 another exception in cases of homicide, where the deceased, under the impression of immediate or impending dissolution, has made a statement concerning the person 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; and that the obligation to utter nothing but the strict truth is even greater, inasmuch as he knows the hour to be at hand when he must render an account of all his words and acts to the Supreme Being. Accordingly, where either the sense or conviction of approaching death is deficient or uncertain; or where it appears that the declarant had no sufficient belief in a future state, and his religious responsibility for his actions in this life; his dying declarations will not be received. But, even when they are received, their value and credibility will vary infinitely, according to 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 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 and religious responsibility, are admissible in evidence for or against a prisoner who is charged with the crime.

In Reg. v. Woodcock,' 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

1 Leach C. C. 502.