418 HEARSAY, WHEN ADMISSIBLE. to show the exact degree of relationship that subsists between the declarant and the person respecting whom the declarations are tendered, but it will be sufficient to prove that they were in some manner connected by blood or marriage (o); and if the question be whether any, or what, relationship subsists between two supposed branches of the same family, it is only necessary to establish the connection of the declarant with either branch (p). It has, indeed, been urged, that proof must be given connecting the declarant with both branches; but this proposition involves the absurdity, that if such a limitation were allowed, the declarations would be superfluous, as merely tending to prove a connection, which, by showing that the declarant was related to both branches, had already been established (g). § 444. Though hearsay evidence is admitted in cases of pedigree, on the assumption that no better evidence can be procured, yet the rule being once established, such evidence will not be rejected, though living witnesses might have been called to prove the very facts to which it relates (r). Thus, the declarations of a deceased mother, as to the time of the birth of her son, have been received, though the father was living and was not called (s). Still, if the declarant himself be alive, and capable of being examined, his declarations will be rejected (t). Another qualification, restricting the admission of hearsay evidence in matters of pedigree, has already been pointed out and discussed in the last chapter; we allude to the rule rejecting all hearsay declarations which are made post litem motam (u). § 445. The term pedigree embraces not only general questions of descent and relationship, but also the particular facts of birth, marriage, and death, and the times when, either absolutely or relatively, these events happened. All these facts, therefore, may be proved by hearsay derived from relatives, though, with respect (0) See Vowles v. Young, 13 Ves. 147. (p) Monkton v. Att.-Gen., 2 Russ. & My. 157, per Lord Brougham. (s) R. v. Birmingham, cited in Hubback, Ev. of Succession, p. 660. (u) Ante, §§ 432-438. BIRTH, MARRIAGE, AND DEATH, PROVEABLE BY HEARSAY. 419 to specific dates, some doubts have been entertained as to the extent and application of the rule. Thus, on the trial of an issue out of Chancery, Chief Justice Tindal has rejected the declarations of deceased persons, which were tendered to prove the ages of their relatives, on the ground that, though admissible for the purpose of showing the relationship, they could not be received as proof of particular facts, such as the ages of parties (v). Mr. Justice Patteson has also expressed a strong opinion adverse to the admissibility of such evidence, where the question was, whether, in support of a plea of infancy, letters written by the deceased father of the defendant could be read in evidence (w). Perhaps, in this last case, the opinion of the learned judge may have been influenced by the consideration, that the suit did not relate to a matter of pedigree; for although, as Mr. Phillipps justly observes, "there appears to be no foundation for a distinction between cases where a matter of pedigree is the direct subject of the suit, and other cases where it occurs incidentally" (x),—yet by one learned judge at least this distinction has been recognised (y). The authority, too, of Chief Justice Tindal's decision in the case above referred to, has been much shaken; for when it was brought before Lord Brougham on a motion for a new trial, his lordship intimated a very strong opinion in favour of the admissibility of the evidence, and subsequently stated that Mr. Justice Park and Mr. Justice Littledale, to whom he had submitted the point, entirely concurred in the view he had taken (z). If to these high authorities be added several old and some modern decisions expressly in point (a), the dicta of judges (b), the opinions of text writers (c), and the general practice of the profession, the student will probably be justified in concluding (v) Kidney v. Cockburn, 2 Russ. & My. 168. (w) Figg v. Wedderburne, 6 Jurist, 218. (y) Whittuck v. Waters, 4 C. & P. 375, per Park, J. (≈) Kidney v. Cockburn, 2 Russ. & My. 170, 171. (x) 1 Ph. Ev. 216, n. 5. (a) Herbert v. Tuckal, T. Raym. 84; recognised by Lord Ellenborough in Roe v. Rawlings, 7 East, 290; case cited in 1 Ph. Ev. 214, from Vin. Ab. Ev. T. b. 91; Vulliamy v. Huskisson, 3 Y. & Col. Ex. 82, per Lord Abinger; Ryder v. Malborne, cited 2 Russ. & My. 169, as a decision by Littledale, J. (b) Per Lord Mansfield in Goodright v. Moss, 2 Cowp. 594; per Lord Brougham, in Monkton v. Att.-Gen., 2 Russ. & My. 156. (c) 1 Ph. Ev. 213; Hubback, Ev. of Succession, 649; 3 St. Ev. 841. 420 HEARSAY OF PARTICULAR FACTS WHEN ADMISSIBLE. that the proposition contended for by Chief Justice Tindal and Mr. Justice Patteson is not law. § 446. It may be urged that, as hearsay evidence of particular facts is inadmissible in support of public rights (d), the same rule should prevail in matters of pedigree; but, in the Berkeley Peerage case, Sir James Mansfield drew a distinction between these two subjects of inquiry, which, we submit, puts the law in its proper light. "In cases of general right," said his Lordship, "which depend upon immemorial usage, living witnesses can only speak of their own knowledge to what has passed in their own time; and to supply the deficiency, the law receives the declarations of persons who are dead. There, however, the witness is only allowed to speak to what he has heard the dead man say respecting the reputation of the right of way, or of common, or the like. A declaration with regard to a particular fact, which would support or negative the right, is inadmissible. In matters of pedigree, it being impossible to prove by living witnesses the relationships of past generations, the declarations of deceased members of the family are admitted; but here, as the reputation must proceed on particular facts, such as marriages, births, and the like, from the necessity of the thing, the hearsay of the family as to these particular facts is not excluded. General rights are naturally talked of in the neighbourhood; and family transactions among the relations of the parties. Therefore, what is thus dropped in conversation upon such subjects, may be presumed to be true" (e). 447. Still the hearsay evidence must, it seems, be confined to such facts as are immediately connected with the question of pedigree; and declarations as to independent facts, from which the date of a genealogical event may be inferred, will probably be rejected. It is not easy to express this limitation of the rule in intelligible language, but the following cases will explain its purport. In a question of legitimacy, turning upon the time of birth, declarations by the deceased sister of the alleged bastard's mother, stating that she had suckled the child, were tendered in evidence; (d) Ante, § 424. . (e) 4 Camp. 415, 416. HEARSAY OF WHAT FACTS INADMISSIBLE. 421 and being coupled with proof of the time when her own child was born, tended to fix the alleged bastard's birth at a period subsequent to its parents' marriage. Mr. Baron Gurney admitted this evidence; but Lord Cottenham expressed an opinion that he was wrong in so doing (f). In another old case (g), where the question turned on the relative seniority of three sons, born at a birth, declarations by the father that he had christened them Stephanus, Fortunatus, and Achaius, according to the order of names in St. Paul's First Epistle to the Corinthians (h), for the purpose of distinguishing their seniority, as also declarations by an aunt, who was present at the confinement, and who, with a similar object, had tied strings round the arms of the second and third child, were admitted. The distinction between these two cases is clear. In the former, the fact of suckling the child had no direct bearing on its age or legitimacy, but was only a species of circumstantial evidence from which these facts might be inferred; whereas, in the latter, the christening and the tying strings round the arms of the children, were intended from the first to afford the means of ascertaining their relative seniority. § 448. When the rule admitting hearsay evidence in matters of pedigree was first established, strenuous efforts were made to include within its operation all questions in settlement cases, whether relating to matters of pedigree or not, which from the antiquity of the facts involved in them were difficult of proof; but these efforts failed (i); and so strictly has the rule been confined to matters of pedigree, that the declarations of a deceased father as to the place of his child's birth have been rejected (j), though he was obviously more likely to remember this fact with accuracy than the mere time when the child was born. Still, there are occasions when hearsay evidence of locality would seem to be admissible. Thus, if it be necessary to show, that a family had (f) Isaac v. Gompertz, cited in Hubback, Ev. of Succession, 650. (g) Vin. Ab. Ev. T. b. 91; probably referred to, as Spadwell v. Lawrence, J., in the Berkeley Peerage case, 4 Camp. 410. (h) Ch. 16, v. 17. by (i) R. v. Eriswell, 3 T. R. 707; R. v. Chadderton, 2 East, 29; R. v. Ferry Frystone, id. 53; R. v. Abergwilly, id. 62. (j) R. v. Erith, 8 East, 539. 422 EVIDENCE OF FAMILY CONDUCT ADMISSIBLE. had relations who lived at a particular place, declarations by a deceased member of the family, that " he was going to visit his relatives at that place," will be evidence; not, indeed, that he went there, or that any person of his name lived in that neighbourhood; but as proving a tradition in the family, that they once had relations living in the place in question, which tradition, in the event of its being shown by other evidence that persons of the same name had resided there, might be important as a mode of identifying those persons with the branch of the family alluded to (k). So, evidence has been received of a family tradition, that a particular individual died in India, for the purpose of connecting that individual with the family of the claimant (7). § 449. The forms under which hearsay evidence in matters of pedigree may be presented, are very numerous. Not only are the oral declarations of deceased relatives admissible, but family conduct, such as the tacit recognition of relationship, and the disposition and devolution of property, will also be received, as evidence from which the opinion and belief of the family may be inferred, and as resting ultimately on the same basis as evidence of family tradition. For, since the principal question in pedigree cases turns on the parentage or descent of an individual, it is obviously material, in order to resolve this question, to ascertain how he was treated and acknowledged by those who sustained towards him any relations of blood or of affinity. Thus, it was remarked by Sir James Mansfield, in the Berkeley Peerage case, that, "if the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion that the son is legitimate" (m). So, the concealment of the birth of a child from the husband,-the subsequent treatment of such child by the person who, at the time of its conception, was living in a state of adultery with the mother,— and the fact that the child and its descendants assumed the name of the adulterer, and had never been recognised in the family as the legitimate offspring of the husband,-are circumstances that will go far to rebut the presumption of legitimacy, which the law raises (k) Rishton v. Nesbitt, 2 M. & Rob. 554, per Rolfe, B. (7) Id. 556, citing Monkton v. Att.-Gen., 2 Russ. & My. 147-151. (m) 4 Camp. 416. |