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First, Of evidence gene.
3. Of secondary evidence.
4. Of hearsay evidence.
Hearsay ad. missible in questions of pedigree.
ble (a). But where in another settlement case, it appeared that there were two parts of an indenture, one of which had been destroyed, and the other delivered to Miss T., to whom the pauper had been assigned, and that application had been made to Miss T., (who was not called,) who said she could not find the iudenture, and did not know where it was ; the search was held to be insufficient (b). Where the loss or destruction of the paper may almost be presumed, very slight evidence of its loss or destruction is sufficient (c).
4. Of Hearsay Evidence (d). [See removals where the evidence is stated, on which removals are made.] (See the cases on soldiers' examination as evidence, ante, 742, 743.]
On an appeal against an order of removal, declarations of rated inhabitants of the appellant parish are evidence against that parish without calling the inhabitants, and shewing that he refused to be examined. 1 M.À S. 636; 1 Nol. P. L. 487.
In questions of pedigree, the oral or written declarations of deceased members of the family are admissible to prove the pedigree. Declarations in a family, descriptions in wills, inscriptions upon monuments, in bibles, and registry-books, are all admitted, upon the principle that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion where the mind stands in an even position, without any teniptation to exceed, or fall short of the truth (e). So a pedigree being up in a family mansion, is good evidence (f). The declarations of a parent are good evidence to prove the time of the birth of a child (9), but not the place of birth (h), and the entry of the time of a child's birth in a public register, is not evidence as to the time of the birth, unless it be proved that the entry was made by the direction of the father or mother; for a clergyman has no authority to make an entry as to the time of the birth (i). A bill in Chancery, by an ancestor, stating bis pedigree, is also admissible in the same manner as an inscription on a tomb-stone, or in a bible (k). So an old and cancelled will (?). So a paper found amongst others in chest of a person, is evidence as to his pedigree, 11 East, 504; [see exceptions, 2 Camp. 323.]
The hearsay must be from persons having such a connexion with the party to whom it relates, that it is natural and likely, from their domestic habits and connexions, that they are speaking the truth, and that they could not be mistaken (m). Declarations by a deceased husband, as to the legitimacy of his wife, and as to the pedigree of her family, are evidence (n).
The declaration of a surgeon, respecting the time of a birth at which he attended, seems to be evidence, as having been made on matter peculiarly within his knowledge (o); but the declarations of servants, and intimate acquaintances, are not admissible (p). The declarations of a deceased person, as to the fact of his own marriage, are evidence (9). But the declarations of a deceased mother, as to the non-access of her husband, are not evidence, for she would not have been allowed to prove that fact in person, if alive (v).
Hearsay of what persons admis. sible in questions of pedigree.
(a) Rex v. Morton, 4 M. & S. 48. (1) Doe v. Pembroke, 11 East, 504.
(c) Per Abbott, C. J., in Brewster v. Baker, 13 Ves. 514.
(0) Higham v. Ridgway, 10 East, (e) Per Lord Eldon, Whitelock v. 109; Vin. Ab. Ev. (T. b. 91); 1 Phill. Baker, 13 Ves. 514; Higham v. Ridgway, Ev. 228. 10 East, 120; B. N. P. 233.
(p) Johnson v. Lawson, 2 Bingh. 86. (f) Goodright v. Moss, Cowp. 294. (9) B. N. P.112; Rer v. Bramley, 6
(g) Herbert v. Tuckal, T. Raym. 84; T. R. 330. 7 East, 290; 15 East, 293.
(r) B. N. P. 112 ; Rer v. Luffe, 8 (h) Rerv.Erith, 8 East, 542, post, 805. East, 193; Goodright v. Moss, Coupe (i) Wihen v. Law, 3 Stark. 63.
594. (k) Taylor v. Cole, 7 T. R. 3 (a).
If the declarations have been made after a controversy has arisen with First, Of regard to the point in question, they are inadmissible (a). It is not neces
evidence genesary, in order to exclude the evidence, to show that the controversy was rally, &c. known to the person making the declaration (b).
4. Of hearsay In a variety of cases the declarations of deceased persons made against their evidence, own interest, have been admitted. Thus, entries by a deceased steward, of Hearsay not ad. money received by him from different persons, in satisfaction of trespasses missible post committed on the waste, are admissible to prove that the right to the soil of the waste was in his master (c). So also a declaration by a deceased occu
Hearsay of per
sons speaking pier of land, that he rented it under a certain person, is evidence of that against their person's seisin (d). Entries made by a deceased collector of rates, charging own interest ad
missible. himself with the receipt of money, and made by him in the public books of
Hearsay as to his office, are admissible against his surety to prove the receipts (e). So
public rights, &c., entries in the land-tax collector's books, stating A. B. to be rated for a parti- admissible. cular house, and his payment of the sum rated, are evidence to show that A. B. was occupier of the premises at the time (f).
Where the effect of the entry is not to charge the person or servant who made it, and who is since dead, it is not evidence; thus, in an action for the hire of horses, an entry by the plaintiff's servant, since dead, stating the terms of the agreement with the defendant, is not evidence (9).
Hearsay, or common reputation, is admissible to prove public or general rights (h). So it is admissible to prove a right affecting a number of persons, and which is, therefore, in the nature of a public right, as a manorial custom (), the boundaries between parishes or manors, &c(k). Though general reputation is evidence, yet the tradition of a particular fact is not (1). Before a customary right, &c., can be proved by evidence of reputation, a foundation must be laid, shewing acts of ownership, and then the evidence of reputation becomes admissible, such evidence being confined to what old persons, who were in a situation to know what these rights are, have been heard to say concerning them (m), These declarations, as in questions of pedigree, must not have been made post litem motam (n). Though where, in a suit as to the custom of a manor, it is attempted to give in evidence depositions in a former suit relative to a custom of the same manor, it is no objection that the depositions taken in the former suit were post litem motam, if the two suits were not upon the same custom, and where the former suit is very ancient; it is unnecessary to prove, by extrinsic evidence, that the witnesses who made the depositions, were in the situation in which they profess to stand, or that they had the means of becoming acquainted with the customs of the manor (0) Declarations of old persons, concerning the boundaries of parishes and manors, have been admitted in evidence, although the old persons were parishioners, and claimed rights of common on the wastes which their declarations had a tendency to enlarge (p). So declarations on a question of parochial modus were received, though the deceased was a parishioner, and liable to pay tithes (9).
It is now considered as settled law that the ex-parte examination of the Paupers declara. pauper taken in writing on oath before two magistrates, whether for the pur- tion when mot pose of inquiring into his settlement (r), or of removing him (8), is not ad
(a) Berkeley Peerage case, 4 Campb. (i) Denw. v. Spray, 1 T. R. 466. 401; Banbury Peerage case, 2 Selw. (k) Nichols v. Parker, 14 East, 331, N. P. 712, 4th ed.
or a Modus Il’eeks v. Sparke, 1 M.89.691. (6) 4 Campb. 417.
(1) Weeks v. Sparke, 1 M. & S. 687; (c) Barry v. Belibington, 4 T, K. 514. Ireland v. Powell, Peake, Ev. 15. (d) Uncle v. Watson, 4 Taunt. 16. (m) Ibid.
(e) Goss v. Wallington, 3 B. & B. (n) Rer v. Cotton, 3 Campb. 444. 132, Middleton v, Melton, 10 B. & C. (o) Freeman v.Phillips, 4 M. & S. 486. 317; Whitmash v. George, 8 B. & C. 556. (p) Nicholls v. Parker, 14 East, 331.
(1) Doe v. Cartwright, 1 R. & M. 62. (9) Harewood v. Sims, 1 Wightw. 112.
(g) Calvert v. Archbishop of Canter- (r) Rer v. Eriswall, 3 T. R. 707 ; bury, 2 Esp. 646.
Rer v. Ferry Frystone, 2 East, 54; Rer (h) See the Berkeley Peerage case, 4 Abergevilly, id. 75. Camph. 415 ; Weeks v. Sparke, 1 M. & (8) Rer v. Nirneham Courtney, 1 East, 9.686 ; Moorewood v. Jl'ood, 14 East, 329. 375.
First, Of missible in evidence upon a question of settlement, and this whether the evidence gene. pauper is insane, or has absconded, or is dead (a); and hearsay evidence of rally, &c.
the pauper's declaration as to his settlement, is equally inadmissible under 4. Of hearsay
any circumstances(6), for the general rules of evidence are to be applied to cases of this kind as well as to all others (c).
So evidence of the master's declarations after his death is equally inadmissible as to the pauper's having been hired, as those of the pauper (d).
But examinations of a soldier taken before a magistrate when quartered within his jurisdiction, are made evidence of settlement by the mutiny act, (10 Geo. IV. c. 6, s. 68, ante, 743), and that whether the soldier be dead or absent from the kingdom. The original examination has been held admissible in evidence as well as the attested copy, but no other attested copy is legal evidence while the original is in existence, except that given to the soldier, and when produced, they must be proved and authenticated in the same manner as other written instruments. "[See the cases on this act, ante, 743, 4.]
(Secondly)-Of Evidence of Settlement in Particular Casts.
1. Evidence of Seulement by Birth (e). Secondly, of The place of birth is primâ facie the place of settlement, as well of legievidence of sel- timate as of illegitimate children. (See ante, 277, 279). But, to establish tlement, &c.
a conclusive settlement by birth it must be made to appear, either that the 1. or evidence of child is illegitimate, or, if legitimate, that neither of its parents had obtained settlement by a settlement at any time before the question arises. (id. ibid.) To this
must be added, proof of the place in which the birth happened.
The ordinary cases of illegitimacy arise from the circumstance of the mother being single, down to the time that the child is born ; but the child of a married woman may be a bastard, in which case, it also takes a birth
settlement. (See ante, 279.] Presumptions After proof of the marriage, (as to which see that title, post, 808), a child is as to legitimacy.
presumed to be legitimate, though the contrary may be proved. The presumption will still be in favour of legitimacy, though the parents were separated by voluntary deed; but the presumption is the other way, if they are separated by a divorce, a mensâ et thoro; and the child is, of course, a bastard,
if begotten and born during a divorce a vinculo matrimonii. Parents may be Either of the parents may be examined as to the legitimacy or illegiti
macy of their children. The treatment of a child by a parent in his family the legitimacy of
as illegitimate, would be good evidence. And declarations of parents, in their lifetime, that the child was born before the marriage, are admissible in evidence. Rex v. Bramley, 6 T. R. 330.
The parents may prove the time of birth; and after their death, their may be proved by parents.
declarations, made in their lifetime, are evidence of that fact; but the register is only evidence of the christening; and non constat thence, when the child
was born. Per Lord Mansfield, C. J. Goodright v. Moss, Cowp. 591. Place of birth, It is obviously the best mode of fixing the locality of the birth, to call how proved.
some person who was present, or who knew and saw the mother in the parish, just before and immediately after that event, and who also saw the offspring, and can give evidence upon the question of identity. Or, these facts may be proved, by different witnesses respectively, according to their knowledge. It is clear that the party himself can have no recollection upon which to presume that he was born in a particular place, and the fact of his remembering
examined as to
Time of birth
(a) Ante, 803, notes (r) and (s).
(c) Ante, 802, 3; and Rer v. Har.
(d) Rer v. Leth, 5 T. R. 247.
(e) See division, ante, 792. Settlemeni by birth, ante, 277.
himself when he was four years of age, in the parish of A., is no proof that Secondly, Of he was born there. Rex v. Trowbridge, 7 B. & C. 252.
evidence of setIn Rex v. Erith, 8 East, 539. It appeared, on the evidence of the pauper,
tlement, 8c. that he remembered being at Erith with his father; that they had no fixed
1. Of evidence of residence; and that his father, who was now dead, had told him that he was settlement by born a bastard at Erith, and had pointed to that place as they were passing, birth. telling him that that was the place of his (the pauper's) birth. A search was Hearsay declara. made in the books of the parish of E., and no register of the pauper's bap
tion of the father,
as to the place of tism was to be found there. The sessions thought this sufficient evidence of his son's birth, is the pauper's birth at E. The judgment of the Court was delivered by Lord not evidence. Ellenborough. The controversy was not, as in a case of pedigree, from what parents the child derived its birth, but in what place an undisputed birth, derived from known and acknowledged parents, has happened. The point, thus stated, turns on a single fact, involving no question but that of locality, and, therefore, not governed by the rules applicable to places of pedigree; and is to be proved, therefore, as other facts generally are proved, according to the ordinary course of the common law; that is, by evidence to which the objection of hearsay does not apply. We are, therefore, upon this ground, of opinion that the evidence of the father's declaration as to the birth-place of the pauper, the bastard, ought not to have been received. Order of sessions quashed, (ante, 802.) [See Phill. Er. 229. 6th edit. 3 Stark. on Evid. 1115.]
The declaration of a deceased mother, as to the time of birth, is admissible in evidence, upon a question as to the place of birth of the child, though the father be living. Rex v. Birmingham; Rex v. Aston, K. B., Oct. 1829; Steer's Par. L. 599. [See ante, 802.]
Rex v. North Petherton, 5 B. f. C. 508; 8 D. & R. 325; 4 D. & R. Mag. Ca. 79. Joseph Rich was removed from North Petherton to West The register of Monckton. Order quashed. Case: To make out the settlement of the baptism is not, pauper's father, it was proved by a copy of the parish register of Spaxton, evidence of the that he was baptized in that parish. There was no other evidence of his place of a per. having been born in that parish, and the sessions thought, on the authority of Creech St. Michael, v. Pitminster, that they were bound to consider the register by itself, primâ facie proof of the place of his birth. When that case was quoted in King's Bench, Bayley, J., said, We do not know at what age the pauper's father was baptized. It was urged, that he was baptized within a very short time after his birth. According to the doctrine of the church, touching baptism,“ the pastors and curates are directed to admonish the people, that they defer not the baptism of infants any longer than the Sunday next after the child be born, unless upon great and reasonable cause declared by the curate, and by him approved.”—Gibson's Codex. Jur. Ecc. Bap. tit. 18, c. 9. The counsel on the other side were stopped by the Court.
-Bayley, J. The register of baptism per se is not evidence of the place of birth. If the age of the child at the time when it was baptized could be ascertained, the register might, in some cases, be evidence of the place of birth. If the child were then very young, the register would be presumptive evidence that it was born in that parish where it was baptized; but if the child were not then young, the circumstance of its having been baptized in a particular parish, would afford no presumption that it was born there. Here there was no evidence to shew the age of the child when it was baptized. We think, therefore, that the case must go back to the sessions to be reheard, in order that they may ascertain by other evidence whether the father of the pauper was born in the parish of Spaxton or not.
We do not say that a register of baptism is not evidence of the place of birth, when accompanied with proof of other circumstances, but that, taken by itself, it is not evidence of the place of birth.-Holroyd, J. I am of the same opinion. I think the register alone is not sufficient to establish the place of birth. It would be sufficient, coupled with proof that the pauper's parents were living within the same parish at the time of the baptism, or that the birth had been shortly previous to the baptism, which latter circumstance would afford a strong presumption that the child was born in the same parish where it was baptized. — Littledale, J., concurred.
1. Of evidence of
by the copy of
ter of christen
Evidence of bas. tardy after the
his own assertions inade dur.
Secondly, Of Creech St. Michael, v. Pitminster, Burr. S. C. 765. The mother of the evidence by set- pauper was subpænaed, but did not attend; and no account was given of tlement, &c. her being under any legal disability of attending. For which reason the
sessions quashed the order, as not being supported by the best evidence that settlement by
the nature of the case would admit of. On the other hand, a copy of the
parish register of Pitminster, was produced. “ Christenings, 1735, John, son Birth settlement of John Every and Mary his wife, baptized Dec. 5.” And one of the wilmay be proved
nesses swore, that the pauper lived many years ago with him ; that John the parish regis. Every, who lived in Pitminster, and died long since, was considered as the
pauper's father; and that he knew Mary Every who lives in Pitminster, and iness and by iden- whom he understood to be the pauper's mother, and has heard the pauper call tifying
her mother. On motion to quash the order of sessions, Lord Mansfield, C. J., seemed to think, and so it was afterwards determined, that this evidence was sufficient. The parents are competent to prove, that they were never legally married, or, there being a marriage, that the child was born at a certain time; or the fact of criminal intercourse, but not the non access of the husband.
St. Peter's v. Old Swinford, Burr, S. C. 25; 2 Bott, 4. The son of
J. H. was removed from St. Peter's to Old Swinford, as a bastard, bora mother's death, by the father,
there of Hannah Ashe. Order quashed. Case: J. H., the father, proved who contradicted that for seven years together he travelled with H. A., as wandering persons,
till the death of H. A., about 15 weeks since; during all that time they ing the mother's cohabited as man and wife, and it did not appear that the marriage was ever life, that he had
questioned in the lifetime of H. A. During the time that he and II. A. been married.
did so cohabit, she was delivered of three children; one of whom, the pauper, was born in 0. S. The pauper, and the others, were reputed as his children, and baptized as the legitimate child of him and H. A. He and H. A. were never married. And it appearing to the sessions, upon the evidence of J. H., that the pauper was born during the time that J. and H. did cohabit together, and were reputed husband and wife; and there being no other evidence, they were of opinion that the evidence of J. H. could not support the order, so as to bastardize the pauper. And in support of the order of sessions, was observed, that this man could not be a proper witness in the case, for nobody could be adjudged a bastard, without the evidence of the woman.—But by Lord Harduicke, C.J. There is no ground to support the order of sessions. It is an apparent fact, that this man and this woman were never married. The evidence of the man is admissible to prove this fact. The child is therefore a bastard, and must be settled where born.
In Rex v. Bramley, 6 T. R. 330. The sessions refused to receive the prove that they
mother as a witness, to prove that she never had been married, or had been illegally married; and also the declarations of the father and mother to that effect, they having cohabited together, and been reputed as man and wife, till the death of the father. But Lord Kenyon, C. J., held that this evidence was certainly admissible: that parents may be called to prove the children illegitimate. But he observed that such evidence was open to very great observation.
Rex v. Stockland, Burr. S. C. 508; 2 Bott. 91. John Moes and Elizadetented whether; beth Mason, father and mother of the pauper, being both resident in Chardafter thirty years
land, about 1723, went from thence together, declaring they were going to man and wife,
be married; and soon returned, declaring they had been married : and from the husband shall be permit thenceforward cohabited as man and wife for about thirty years, until the death ted to deny his of Elizabeth. The pauper was born at Chardland, in 1725, and there hapmarriage.
tized, and his baptisin registered as the son of John and Elizabeth Mons. John and Elizabeth Moes, some years before the death of Elizabeth, removed from Chardland to Stockland, and there acquired a settlement. They c carried with them the pauper, whose settlement depended upon this question, viz. Whether John and Elizabeth were to be considered as husband and wife at the time of his birth? It was contended at the sessions, that they were never married ; or, if they were, that Elizabeth had a former husband then living. Concerning which, several witnesses having been examined on both sides, John Moes, the father, was produced, in order to prove that he
were never married.
It had been