his parents, the Duke of Sussex and Lady Augusta Murray, were legally married, declarations contained in the Duke's will, and affirming, most solemnly the fact of marriage, as also statements to the same effect made by his Royal Highness in conversation, were rejected; it appearing that some years previously to such declarations and statements being made, a suit had been instituted by the Crown to annul the Prince's marriage, and it not being shown, as in truth it could not be, that that marriage was not the very marriage on which the claimant relied.'

$569. Whether declarations, made after the controversy has originated, are in all events to be excluded, even though proof be offered that the existence of the controversy was not known to the declarant, is a question respecting which some doubt exists. In the Berkeley Peerage case, Sir James Mansfield stated broadly that the affirmative of the proposition was the law, and added, as a reason, that “If an inquiry were to be instituted in each instance, whether the existence of the controversy was or was not known at the time of the declaration, much time would be wasted, and great confusion would be produced." On the other hand, Mr. Baron Graham, in the same case, contended that declarations were receivable, whenever it clearly appeared that the declarant could not have known that a suit was commenced or contemplated;" while, in a later case, Lord Brougham, speaking of a pedigree, observed, "Prove that it was made post litem motam, not meaning thereby a suit actually pending, but a controversy existing, and that the person making or concocting the declaration took part in the controversy;' show me even that there was a contemplation

1 11 Cl. & Fin. 85, 99-103.

* Id. 407.

4 Camp. 417. 4 Monkton v. Att.-Gen., 2 Russ. & My. 147, 161. In Reilly . Fitzgerald, 6 Ir. Eq. R. 348, Sugden, Ch., observed, that "this last sentence must have crept in by mistake;" and added, "It is not necessary, in order to exclude the evidence of a declaration, to show that the person making it took part in the controversy; it is perfectly settled that he need not be shown to have known of it." It will be remarked, that in this passage, his Lordship leaves the question untouched, as to what would be the effect of proving that the declarant did not know of the existence of the controversy, and merely states what is unquestionably the law, that the onus of showing knowledge does not lie on the party objecting to the evidence.

of legal proceedings, with a view to which the pedigree was manufactured, and I shall then hold that it comes within the rule which rejects evidence fabricated for a purpose, by a man who has an interest of his own to serve. The question then always will be, was the evidence in the particular case manufactured, or was it spontaneous and natural? If I had thought that this came within the description of manufactured evidence-manufactured for a purpose connected with the present controversy-I should, of course, at once have rejected it."

1

§ 570. In this conflict of judicial opinions it is difficult to ascertain the precise rule; but perhaps it may not be thought imprudent to suggest that neither of the learned judges has laid down the law with strict accuracy, and that declarations, though made post litem motam, will be admissible, if the party offering them in evidence can show, by any proof satisfactory to the judge, that the declarant was in all probability ignorant of the existence of the controversy. The Roman law may be cited in support of this suggestion; for though the civilians rejected, like ourselves, hearsay originating post litem motam, they recognised a distinction in favour of those declarations, which were made in a place so remote from the scene of controversy as to remove all suspicion that the declarant had heard of its existence. The rule and exception are thus stated by Mascardus :-" Nec vero tantummodo debent esse personæ graves, sed etiam debent deponere se audivisse ea quæ asserunt ante litem motam: quod si post litem motam deponerent, non solum non probarent, sed nec ullam fidem facerent; quia facilè contingere potest, ut quispiam id audiverit ab alio, qui illud protulit in fraudem, vel quod lis ipsa mota traxerit istam famam." "Istud autem quod diximus, debere testes deponere ante litem motam, sic est accipiendum, ut verum sit, si ibidem,

1 2 Russ. & My. 161. In Reilly v. Fitzgerald, 6 Ir. Eq. R. 349, Sugden, Ch., while commenting on this language of Lord Brougham, observes, "This is a sound and sensible exposition of the law. Suppose this state of facts existed; suppose a party lay by, forbearing to assert his claim, in order to enable him to assert it with more force afterwards by manufacturing evidence in his own favour, then, if you prove that that was done, if you show that the evidence was manufactured, the law excludes it."

ubi res agitur, audierit; at si alibi in loco, qui longissimè distaret, sic intellexerit, etiam post litem motam testes de auditu admittuntur. Longinquitas enim loci in causa est, ut omnis suspicio abesse videatur, quæ quidem suspicio adesse potest, quando testis de auditu post litem motam ibidem, ubi res agitur, deponit.'

1 Mas. de Prob., vol. 1, p. 401 (429), Concl. 410, n. 5, 6.

CHAPTER IX.

MATTERS OF PEDIGREE.

$571. QUESTIONS OF PEDIGREE form the second exception to the general rule rejecting hearsay evidence. This exception has been recognised on the ground of necessity; for as, in inquiries respecting relationship or descent, facts must often be proved, which occurred many years before the trial, and were known but to few persons, it is obvious that the strict enforcement of the ordinary rules of evidence in cases of this nature would frequently occasion a grievous failure of justice. Courts of law have therefore so far relaxed these rules in matters of pedigree, as to allow parties to have recourse to traditional evidence; often the sole species of proof which can be obtained. Still, it is not considered safe to admit such evidence without qualification; and though it was long doubtful whether the declarations of servants, friends, and neighbours, might not be received, the settled rule of admission is now restricted to hearsay proceeding from persons who were de jure related by blood or marriage to the family in question, and who, consequently, may be supposed to have had the greatest interest in seeking, the best opportunities for obtaining, and the least reason for falsifying, information on the subject.'

$572. So strictly has this limitation been enforced in modern

1 Johnson v. Lawson, 2 Bing. 86; 9 Moore, 183, S. C.; Crease v. Barrett, 1 C. M. & R. 928; Vowles v. Young, 13 Ves. 147, per Lord Erskine ; Goodright v. Moss, 2 Cowp. 594, per Lord Mansfield, as explained by Lord Eldon in Whitelocke . Baker, 13 Ves. 514; Monkton . Att. -Gen., 2 Russ. & Myl. 159, per Lord Brougham; Stafford Peerage, 1825, Pr. Min. p. 4 ; Jewell v. Jewell, 1 Howard, S. Ct. Rep. 231; 17 Peters, 213, S. C.; Jackson v. Browner, 18 Johns. 37; Chapman v. Chapman, 2 Conn. 347; Waldron v. Tuttle, 4 N. Hamp. 371. In Davies . Lowndes, 7 Scott, N. R. 188, Parke, B., observes, "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." See also S. C. p. 212.

times, that the declaration of an illegitimate member of a family, asserting that one of his natural brothers had died without issue, has been rejected.' In an older case, where the question was whether an eldest son, who had taken possession of the paternal estates, and conveyed them to one of the litigants, was born in wedlock, his own declaration that he was a bastard, though made subsequently to the conveyance, was, after his death, received by Mr. Justice Le Blanc. The learned judge appears to have considered this statement admissible, "as the representation of one of the family of the degree of relationship he bore to it;" but if the case just cited be law, as it would probably be deemed at the present day, the decision can scarcely rest upon this ground, unless the special circumstances of the case be prayed in aid; and it be contended, that, since the defendant's claim rested on the legitimacy of the vendor, he could not object to the vendor's declaration, without relinquishing the only prop of his title. Should this refined argument be deemed inconclusive, perhaps the admissibility of the declaration might be sustained, on the ground that the cause turned, not only on the condition of the father's family, but on the actual status of the declarant himself; but here we are met by the difficulty, that the son could only have known the fact of his own illegitimacy by information received from others; and, as a bastard has in the eye of the law no relatives, the hearsay must have been derived from strangers, and its admissibility might on that ground be questioned.

§ 573. On the whole, it may be considered as a point of great doubt, whether, under any circumstances, the declarations of a person deceased, asserting his own illegitimacy, can be received; excepting as admissions against himself and those who claim under him by some title derived subsequently to the statements being made. In the case referred to above,' evidence was received that the father had specified the time of his marriage, had declared his eldest son to have been born before that date, had heaped upon him

1 Doe v. Barton, 2 M. & Rob. 28, per Patteson, J. See Doe v. Davies, 10 Q. B. 314. 2 Cooke v. Lloyd, Pea. Ev. App. xxviii., per Le Blanc, J. 3 See R. v. Rishworth, 2 Q. B. 487, per Wightman, J.

4 See n. 2, ante.