which, an application was made to the Court of King's Bench for a new trial. Lord Mansfield, on that occasion, considered the rejection either of the general declarations or of the answer to be a sufficient ground for a new trial; but he adverted more particularly to the former; and it does not appear from the report, that he laid any great stress on the rejection of the answer. Mr. Justice Aston concurred with Lord Mansfield in opinion, that the general declarations ought to have been admitted, but delivered *no opinion on the other point. Thus, the authorities on this subject appear to have been, at one time, nearly even. ly balanced. Great light has been thrown upon this subject by the opinions of many of the Judges in the late case of the Berkeley peerage (1). A question was on that occasion proposed to the Judges (2), in the following terms: “ Upon the trial of an ejectment respecting Black Acre between A and B, (in which it was necessary for A to prove that he was the legitimate son of J S,) A, after proving by other evidence that J S was his reputed father, offered to give in evidence a deposition made by JS in a cause in Chancery instituted by A against CD in order to perpetuate testimony to the alleged fact, (disputed by C D,) that he was the legitimate son of J S, in which character he claimed an estate in remainder in White Acre, which was also claimed in remainder by CD. B, the defendant in the ejectment, did not claim Black Acre under either A or C D, the plaintiff and defendant in the Chancery suit. According to law, could the deposition of J S be received in evidence upon the trial of such ejectment against B, as evidence of declarations of J S, the alleged father, in matters of pedigree?" The Judges present afterwards stated their opinions at length, and, with only one dissentient voice, agreed in considering the deposition of J S to be inadmissible. "The ground," said Mr. Justice Lawrence in de (1) May 13, 1811. MS. See also (2) May 2, 1811 MS. the case of the Banbury peerage claim, 1809, 2 Sel. N. P. 684. * 178 * 179 livering his opinion, "upon which the declarations of deceased members of the family are admitted in evidence in matters of pedigree, is the necessity of the case. But as the first object is to administer justice with as much certainty as possible, it is reasonable that only such declarations should be received, as have in their favour a presumption of being consistent with the truth. This presumption must depend upon circumstances; and if the relator has no *interest to serve, nor any object to answer, as may be the case where declarations are made subsequent to the commencement of a suit, and if there is no ground for supposing that the relator's mind has any bias, it is not unreasonable to conclude, that he has neither exceeded nor stopped short of the limits of truth. In such a case, therefore, the admission of these declarations, though without the sanction of an oath and without any opportunity of cross-examination, may be attended with less inconvenience than would follow from the total rejection of the evidence. But mischievous indeed would be the admission of such evidence, even with the usual sanction of an oath, if the declarations were made under that bias or feeling of interest, which may be expected to arise in the course of a controversy." For these reasons the deposition was not admissible as a declaration. Nor could it be admitted, as the answer of a witness in a judicial proceeding. "For a deposition," continued Mr. Justice Lawrence, "is the answer of a witness to such interrogations, as a litigating party suggests for the purpose of establishing certain facts, and is considered to be a partial representation, as against all persons who have no opportunity of drawing out the whole truth by cross-examination; on this account, it ought not to be received as evidence against a stranger." So, where the question was, whether the occupier of a particular farm was liable to the repair of a public road, and, to prove the affirmative, an award was produced, (which had been made some years before, when the same question was the subject of dispute between a former occupier and the township, where the lands were situated,) this evidence was rejected as inadmissible; on the ground, that the account, which deceased witnesses might have given to the arbitrator on that occasion, could not have been received, as the declarations were made post litem motam, and that the opinion of the arbitrator, formed upon such testimony, could not be entitled to more credit (1). And upon the *same principle, it should seem, depositions on a question of custom would not now be admitted in evidence against a person not claiming under any of the parties to the suit, in which the depositions were taken. * 180 to time of On a question, whether a testator at the time of making Hearsay as his will was of full age, a written memorandum by his de- birth. ceased father, stating the time of his birth, has been admitted to be good evidence (1). Here the controversy was not, as in a question of pedigree, from what parents he derived his birth, but at what precise time an undisputed birth had happened. Still however the observation, before made, applies to this sort of evidence, namely, that the father had peculiar means of knowing the fact in dispute without any interest to misrepresent it, and the fact itself was not a matter of notoriety, but necessarily lying within the knowledge of a few individuals of the family. So, on a question of legitimacy, the declarations of deceased persons, supposed to have been married, (who might themselves be examined if alive,) are admissible to disprove the fact of marriage (2). The declarations of a deceased parent, though they are As to place evidence of the time of a child's birth, will not be admitted of birth, &c. as evidence of the place of the birth (3). "The point in dispute (said Lord Ellenborough, in a case where the admissibility of such evidence was discussed,) turns on a single fact, involving only a question of locality, and there (1) R. v. Cotton, 3 Campb. 444. cor. Dampier, J. (1) Herbert v. Tuckal, Tr. at bar, Sir T. Raym. 84. cited in Brune v. Rawlins, 7 East 290; and see 10 East 120. (2) R. v. Bramley, 6 T. R. 330. May v. May, 1762, Tr. at bar, Bull. N. P. 112. (3) R. v. Erith, 8 East 542. * 181 fore not falling within the principle of the rules applicable to cases of pedigree." Nor can the declarations of a father or mother be received after their deaths to prove the want of access, so as to bastardize a child born during the marriage; for they could not be examined to that fact, if alive (4) (a); *and, even if that objection were removed, still, the case would not come within the principle on which such hearsay evidence can be made an exception to the general rule; as want of access (1), implying the continued separation of the parties, must be notorious to the whole neighbourhood, where they have resided, and is therefore capable of a more satisfactory proof. For the same reason, the declaration of a deceased person, as to having been relieved by a parish (2), or as to being hired for a year (3), are not evidence of those facts, on an appeal against an order of removal. The case, where the declaration of a parent was received as evidence of the time of a child's birth, has been before mentioned. From analogy to this, the declaration or written memorandum of a deceased surgeon, respecting the time of a birth at which he attended, appears to be evidence, as it was made on a matter peculiarly within his knowledge (4). And, for the same reason, the account, which a deceased person has given respecting his own bodily state during illness, or immediately after an injury, is admissible (5). In the case of Aveson v. Lord Kinnaird (6), which was an action upon a life-insurance of the plaintiff's wife, and where the question was, whether her life was in an insurable state, the account which she gave (4) R. v. Reading, Rep. temp. Hard. 79; Bull. N. P. 113. S. C. Stevens v. Moss, Cowp. 592. R. v. Luffe, 8 East 203. R. v. Kea, 11 East 133. (1) Bull. N. P. 113. (2) R. v. Chadderton, 2 East 29. (3) R. v. Nuneham Courtney, 1 East 373. R. v. Ferry Fristone, 2 East 55. R. v. Abergwilly, 2 East 63. (4) See 10 East 120. and Vin. Ab. Ev. T. b. 91. (5) Aveson v. Lord Kinnaird, 6 East 193. 198. Thompson and Wife v. Trevannion, Skin, 402. (6) 6 East 188. (a) Vide Bowles v. Bingham, 2 Mun. 442. of herself, explaining her appearance, in answer to inquiries a few days after the certificate of her health had been obtained, and her account also of the state, in which she had previously been at the time of obtaining the certificate, were received at the trial, and afterwards adjudged by the Court of King's Bench to be admissible evidence, for the purpose of showing that the wife was not in the *state of health described in the certificate. The substance of the conversation was, that she had continued ill from the time of obtaining the certificate down to the time when the conversation took place; and the declarations were held to be admissible, in the first place, as showing the opinion, which the deceased had of her own state of health, when the certificate was made out; and secondly, they were properly received, as evidence to contradict a surgeon, who had been called on the part of the plaintiff. So, to prove seisin in a devisor, the declarations of a deceased occupier of the land in question, that he held as his tenant, were received as evidence of that fact (1). Without such evidence it might have been impossible to prove an occupation by the deceased tenant under a particular person, though the simple fact of his occupation must have been capable of other proof; and, in addition to the circumstance of his having a peculiar knowledge of the fact, it may be observed, that the declaration was in some degree against his interest, since, in case of an action by his landlord, it might have been produced as evidence against him, or against any claiming under him (2). For the same reason, where the point was, whether certain lands were parcel of A's or B's estate, the declarations of a deceased occupier, who held under both A and B, have been admitted in evidence (3) (a). (1) Holloway v. Rakes, cited by Buller, J. in Davies v. Pierce, 21. R. 55. Uncle v. Watson, 4 Taunt. 16. (2) Uncle v. Watson, 4 Taunt. 16. (3) Roll v. Fellow, cor. Lord Hardwicke, C. J. Exr. Sp. Ass. (a) So, where a party claimed common pur cause de vicinage as appurtenant to a messuage, the declaration of a former tenant of * 182 |
