place of custody where it might be reasonably expected to be found.”

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 (), and one which affords reasonable assurance of the authenticity of the document (). It is not however sufficient to produce the documents without calling a witness to prove the custody from which they come (m).

It has been doubted whether it is not necessary to show some act of recognition or enjoyment, done with reference to the documents. Thus in Doe v. Pulman (n), which was an action of 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, and 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 (0);

(k) Doe v. Sampter, 8 A. & E. 154.

(1) Per Coleridge, J., Doe v. Phillips, 8 Q. B. 158.

(m) Evans v. Rees, 10 A. & E. 154.

(n) 3 Q. B. 623; sed cf. Malcolmson v. O'Dea, 10 H. L. Cas. 593.

(0) Per Abbott, C. J., R. v. Debenham, 2 B. & Ald. 185.

and therefore in a settlement case (p), 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 (q).

(p) Ibid.

(2) Outram v. Morewood, 5 T. R. 123.

CHAPTER XI.

EVIDENCE IN QUESTIONS OF PEDIGREE.

IN questions of pedigree, or inquiries concerning relationship or descent, the rule by which hearsay or second-hand evidence is excluded is waived, and the rule is that

The statements of deceased persons, who were connected by blood or marriage with the family in question, made ante litem motam, are admissible to prove pedigree.

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 (a). As to the danger of placing too great reliance on this species of evidence, see the judgment of Lord Romilly in Crouch v. Hooper (b).

(a) Doe v. Davies, 10 Q. B. 314.
(b) 16 Beav. 182.

It has been held that the declarations must have been from persons having such a connection with the family that it is likely, from their domestic habits, that they were speaking the truth, and could not be mistaken (c). 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 (d), even though coming under the head of dying declarations (e); nor are the declarations of illegitimate relations received (ƒ).

the

"The law resorts to hearsay of relations upon 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 the acquaintances will not do" (g). It was accordingly held that the declarations by a deceased husband as to his wife's legitimacy are admissible, as well as those of her

(c) Whitelocke v. Baker, 13 Ves. 511.
(d) Johnson v. Lawson, 9 Moore, 183.
(e) Doe v. Ridgway, 4 B. & Ald. 53.
(f) Doe v. Barton, 2 M. & R. 28.

(g) Per Lord Erskine, Vowles v. Young, 13 Ves. 147.

blood relations. Again, in Doe v. Randall (h), 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. 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 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." The statement of a wife as to her husband's family, and that of a husband as to his wife's family, stand upon the same footing (i).

It has been said, 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,

(h) 2 M. & P. 20.

(i) See Shrewsbury Peerage case, 7 H. L. Cas. 23.