First, Of evidence generally, &c. 2. Of documentary evidence. How proved ing witnesses are dead, or during their attestation. window (a); so where the testator was in bed, and the witnesses retired through a small passage into another room, and attested the will on a table, opposite to the door, which was open, as well as the door of the testator's room (b). So where the testatrix sat in her carriage, opposite the window of the attorney's office, in which the will was attested (c). But where the will was attested in an adjoining room, and the jury found that in one part of the room, in which the testator was, a person inclining forward with his head out of the door, might have seen the witnesses, but that the testator was not in such a situation in the room that he might, by inclining forward, have seen them, it was held that the will was not duly attested (d). So, if the testator was in a state of insensibility at the time (e). If all the witnesses are dead, their hand-writing, and that of the testator, when the attest- should be proved, and though the attestation does not express that the witnesses subscribed the will in the presence of the testator, yet a jury may presume that fact in favour of the will (f). Even though all the witnesses to a will, should swear that the will was not duly executed, circumstantial evidence may be adduced in support of the will (g). Where two of the witnesses are dead, and the surviving witness charges them with fraud in the attestation of the will, evidence of their good character is admissible (4). Proof where will is thirty years old. Witnesses interested in the will. In a court of law, a will thirty years old, if the possession has gone under it, and sometimes without the possession, but always with the possession, if the signing is sufficiently recorded, proves itself; but if the signing is not sufficiently recorded, it is a question whether the age proves its validity, and then possession under the will, and claiming, and dealing with the property as if it had passed under the will, is cogent evidence to prove the duly signing, though it should not be recorded (i). The thirty years should be computed from the date of the will, and not from the death of the testator (k). By 25 Geo. II. c. 6, s. 1. If any person shall attest the execution of any will or codicil, to whom any beneficial devise, legacy, estate, interest, gift, or appointment of or affecting any real or personal estate, other than and except charges on lands, tenements, or hereditaments, for payment of debts, shall be thereby given or made, such devise, &c., shall so far only as concerns such person attesting the execution of such will or codicil, or any other person claiming under him, be null and void, and such person shall be admitted a witness to the execution of such will or codicil. By sect. 2, if a creditor of the devisor whose will is charged with the payment of the debt, attests the will, he shall be admitted as a witness. By sect. 3, a witness whose legacy has been paid, or accepted, or released, or who shall have refused to accept such legacy, on tender made, shall be admitted a witness; and by sect. 5, a legatee dying in the lifetime of the testator, or before he shall have received, or released, or refused to receive his legacy, shall be deemed to have been a competent witness, and his handwriting and subscribing in presence of testator may be proved by others. Where the attesting witness is the husband of a devisee, who takes an estate in fee, in remainder, under the will, he is not made competent by the statute (). But an executor who takes only a pecuniary interest under a will, is a competent witness to support it in an action, to recover a real estate devised by the will to the defendant, the question turning upon the sanity of the testator at the time of making the will (m). (a) Shires v. Glasscock, 1 Salk. 688; (b) Davy v. Smith, 3 Salk. 395. (g) Lowe v. Joliffe, 1 W. B. 365. Bishop of Durham v. Beaumont, 1 Campb. 207. (i) Per Lord Eldon, Lord Rancliffe v. Parkins, 6 Dow, 202; and see Dev. Lloyd, Peake Ev. App. 91; 4 T. R. 709. (k) Doe d. Oldham v. Woolley, 8 B. & C. 22. (1) Hatfield v. Thorp, 5 B. & 4. 589. (m) Doe d. Weed, v. Teage, 5 B. & C. 335; 8 D. & R. 63. the First, Of evidence generally, &e. 2. Of documen tary evidence. Proof of probate. Where the title to personal property under a will is in question, the original will cannot be read in evidence without some indorsement upon it, for of authentication, but the probate must be produced (a). The purpose seal of the Ecclesiastical Court on the probate, proves itself (b). If the probate be lost, it is not the practice of the Ecclesiastical Court to grant a second probate, but only an exemplification, which will be evidence of the proving of the will (c). To prove the probate revoked, an entry of the revocation in the book of the Prerogative Court is good evidence (d). Administration is proved by the production of the letters of administra- Proof of letters tion, or of a certificate or exemplification thereof, granted by the Ecclesias- of administratical Court (e), or without producing the letters of administration, by the original book of acts directing the grant of the letters (ƒ), and an examined copy of the act book, stating the grant of letters of administration to the defendant, is proof of his being administrator, without notice to produce the letters (g). 3. Of Secondary Evidence. (h) tion. What ground must be laid for the introduction of secondary evidence. It is a general rule that the best evidence must be given of which the 3. Of secondary nature of the case is capable. Secondary evidence, therefore, is inadmissible, evidence. unless the impossibility of procuring better evidence be previously shewn (i). To establish that better evidence cannot be obtained in the case of a lost deed, after proof of its due execution (k), the loss of the deed must be proved, and if two or more parts have been executed, the loss or destruction of all the parts should, it seems, be proved, before other evidence can be received (). Where the instrument is in the possession of the opposite part, parol evidence of its contents cannot be given, without proof of the service of a notice to produce it. All the proper sources, from which the primary evidence can be procured, must be exhausted, before secondary evidence can be admitted. Thus the party who has the legal custody of an instrument, must be applied to before parol evidence can be received (m). Where secondary evidence is offered, in consequence of the loss of the primary evidence, it must be shewn, in order to establish the loss, that diligent search has been made in those quarters from which the primary evidence was likely to be produced. Where the publisher of a paper, in which a libel had appeared, stated that he believed the original was either destroyed or lost, having been thrown aside as useless; this was held sufficient to let in secondary evidence (n). So where a licence to trade had been returned to the secretary of the governor who had granted it, and the secretary swore that it was his custom to destroy or put aside such licences amongst the waste papers of his oflice as of no further use, and that he supposed he had disposed of the licence in question, in the same manner as other licences, and that he had searched for it, but did not recollect whether he had found it or not, though he did not think he had found it; the Court held the loss sufficiently proved (0). So in a settlement case where it was proved that one part only of an indenture had been executed, that the pauper and master were both dead at the time of the trial, and that an inquiry for it had been made of the pauper shortly before his death, who said that the indenture had been given up to him after the expiration of the apprenticeship, and that he had burnt it, and that an inquiry had also been made of the daughter and sole executrix of the master, who said she knew nothing about it; it was held that a sufficient inquiry had been made to render parol evidence of the contents admissi (a) Rex v. Barnes, 1 Stark. Rep. 243. (b) Kempton v. Cross, Rep. temp. Hardw. 108. (c) Shepherd v. Shorthose, 1 Str. 412. (d) Ramsbottom's Case, 1 Leach, C. C. 4 Ed. 25 in notes. (e) Kempton v. Cross, Rep. temp. Hardw. 108; B. N. P. 246. (f) Ibid. Elden v. Keddel, 8 East, 187. (g) Davis v. Williams, 13 East, 232. (k) Rex v. Culpepper, Skin. 673. (m) Rex v. Stoke Golding, 1 B. & A. 173. (n) Rex v. Johnson, 7 East, 66. First, Of evidence generally, &c. 3. Of secondary evidence. 4. Of hearsay evidence. Hearsay admissible 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 indenture, 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 suthicient (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. & 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 temptation 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 (g), 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 (). A bill in Chancery, by an ancestor, stating his 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 (7). 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 sible in questions 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 (q). 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 (). Hearsay of what persons admis. of pedigree. (a) Rex v. Morton, 4 M. & S. 48. (d) See division, ante, 792. (e) Per Lord Eldon, Whitelock v. (f) Goodright v. Moss, Cowp. 94. (h) Rex v.Erith, 8 East, 542, post, 805. (1) Doe v. Pembroke, 11 East, 504. (m) Per Lord Eldon, Whitelock v. Baker, 13 Ves. 514. (n) Vowels v. Young, 13 Ves. 140; Doe v. Harvey, 1 R. & M. 297. (o) Higham v. Ridgway, 10 East, 109; Vin. Ab. Ev. (T. b. 91); 1 Phill. Ev. 228. (p) Johnson v. Lawson, 2 Bingh. 86. (q) B. N. P. 112; Rex v. Bramley, 6 T. R. 330. (r) B. N. P. 112; Rex v. Luffe, 8 East, 193; Goodright v. Moss, Coup. 594. If the declarations have been made after a controversy has arisen with regard to the point in question, they are inadmissible (a). It is not necessary, in order to exclude the evidence, to show that the controversy was known to the person making the declaration (b). In a variety of cases the declarations of deceased persons made against their own interest, have been admitted. Thus, entries by a deceased steward, of money received by him from different persons, in satisfaction of trespasses 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 occupier of land, that he rented it under a certain person, is evidence of that person's seisin (d). Entries made by a deceased collector of rates, charging himself with the receipt of money, and made by him in the public books of his office, are admissible against his surety to prove the receipts (e). So entries in the land-tax collector's books, stating A. B. to be rated for a particular house, and his payment of the sum rated, are evidence to show that A. B. was occupier of the premises at the time (ƒ). 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 (g). 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 (2), 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 (2). 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 (q). It is now considered as settled law that the ex-parte examination of the pauper taken in writing on oath before two magistrates, whether for the purpose of inquiring into his settlement (r), or of removing him (s), is not ad (a) Berkeley Peerage case, 4 Campb. 401; Banbury Peerage case, 2 Selw. N. P. 712, 4th ed. (b) 4 Campb. 417. (c) Barry v. Bebbington, 4 T. K. 514. (d) Uncle v. Watson, 4 Taunt. 16. (e) Goss v. Wallington, 3 B. & B. 132; Middleton v. Melton, 10 B. & C. 317; Whitmash v. George, 8 B. & C. 556. (f) Doe v. Cartwright, 1 R. & M. 62. (g) Calvert v. Archbishop of Canterbury, 2 Esp. 646. (h) See the Berkeley Peerage case, 4 Camph. 415; Weeks v. Sparke, 1 M. & S.686; Moorewood v.1 1.Wood, 14 East, 329. (i) Denw. v. Spray, 1 T. R. 466. (n) Rex v. Cotton, 3 Campl. 444. (s) Rex v. Nirneham Courtney, 1 East, 375. First, Of evidence generally, &c. 4. Of hearsay evidence, Hearsay not admissible post litem motam. Hearsay of persons speaking against their missible. admissible. Paupers declara. tion when not evidence. tion or examina First, Of evidence generally, &c. 4. Of hearsay evidence. missible in evidence upon a question of settlement, and this whether the pauper is insane, or has absconded, or is dead (a); and hearsay evidence of the pauper's declaration as to his settlement, is equally inadmissible under any circumstances (b), 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 (Secondly)-Of Evidence of Settlement in Particular Cases. 1. Evidence of Settlement by Birth (e). The place of birth is primâ facie the place of settlement, as well of legievidence of settimate 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 child is illegitimate, or, if legitimate, that neither of its parents had obtained 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. 1. Of evidence of settlement by birth. Presumptions 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.] 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 examined as to the legitimacy of their children. Time of birth may be proved by parents. Place of birth, how proved. Either of the parents may be examined as to the legitimacy or illegitimacy of their children. The treatment of a child by a parent in his family 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 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. It is obviously the best mode of fixing the locality of the birth, to call 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 (a) Ante, 803, notes (r) and (s). (d) Rex v. Leth, 5 T. R. 247. (e) See division, ante, 792. Settlement by birth, ante, 277. |