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settlement case the declaration of a father as to the place of his child's birth has been rejected, as not being strictly a question of pedigree (c). 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 (d); but in Shields v. Boucher (e), Knight Bruce, V.-C., was of opinion that declarations of a person deceased as to what place his father came from would be admissible.

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 (f). The declaration must not be in the declarant's own interest. Thus, a statement by a deceased person, who had been married twice, tending to invalidate his first, and thus establish his second, marriage, was rejected (g). It is no objection that the declarant was in pari casu with the party tendering the evidence (h).

It should be observed that the principle now under consideration applies only where questions of pedigree are involved, and therefore it does not apply to cases in which only the age of a person is material

(c) R. v. Erith, 8 East, 539.

(d) R. v. Rishworth, 2 Q. B. 487.

(e) 1 De G. & Sm. 40.

(f) Per Lord Eldon, Berkeley Peerage case, 4 Camp. 419.

(g) Plant v. Taylor, 7 H. & N. 211.

(h) Monckton v. Att.-Gen., 2 R. & M. 159.

to be proved. Thus, where in an action for goods sold and delivered a defendant pleaded infancy, and it was sought to prove the plea by a statement contained in an affidavit made by the defendant's deceased father in a chancery suit to which the plaintiff was not a party, it was held that, there being no question of pedigree in the case, the evidence was not admissible (i).

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 in cases of pedigree. On this head it is only necessary to refer to the declaration which has been already quoted, 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. So in a case of disputed descent from a lunatic, one of the claimants was allowed to give in evidence a deposition, made by a deceased

(i) Haines v. Guthrie, L. R., 13 Q. B. D. 818; 53 L. J., Q. B. 521; 33 W. R. 99.

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 the deposition was inadmissible as being made post litem motam; but the court held that it was admissible (k). In a petition for a declaration of legitimacy it was proved that A., the petitioner's grandfather (whose legitimacy was in issue), had claimed some property in the possession of his reputed maternal uncle, but the latter said that he should defend any action which A. might bring, and communicated the circumstances to A.'s maternal uncle, and A. replied by letter that he wished to establish his legitimacy, but took no further proceedings. Sir J. Hannen held that there was proof of the commencement of a controversy, so as to exclude subsequent declarations by any member of the family as to the marriage of A.'s father and mother (7).

(k) Gee v. Good, 29 L. T. 123.

(1) Frederick v. Att.-Gen., L. R., 3 P. & D. 196; 44 L. J., P. & M. 1; 22 W. R. 416.

CHAPTER XII.

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 (a). 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.

(a) "Nemo moriturus præsumitur mentiri."

Even when they are received, their value and credibility will vary infinitely, according to the 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 ap

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