ENTRIES IN BIBLES, ETC., ADMISSIBLE.

423

in favour of the issue of a married woman (n). Again, if the question be whether a person, from whom the claimant traces his descent, was the son of a particular testator, the fact that all the members of the family appear to have been mentioned in the will, but that no notice is taken of such person, is strong evidence to show, either that he was not the son, or at least that he had died without issue before the date of the will (o); and if the object be to prove that a man died without children, the production of his will, in which no notice is taken of his family, and by which his property is left to strangers or collateral relations, is cogent evidence of his having died childless (p).

§ 450. Entries made by a parent or relation in bibles (q), prayerbooks (r), missals (s), almanacs (t), or indeed in any other book, or in any document or paper (u), stating the fact and date of the birth, marriage (v), or death of a child, or other relation, are also received as the written declarations of the deceased persons who respectively made them. It would even seem that entries in a family bible would be admissible, without proof that they had been made by a relative; for as this book is the ordinary register of families, and is usually accessible to all its members, the presumption would be that the whole family had more or less adopted the entries contained in it, and had thereby given them

(n) Goodright v. Saul, 4 T. R. 356, per Ashurst, J.; Morris v. Davies, 5 Cl. & Fin. 163, 241, et seq.; Banbury Peerage, App. note (e) to Le Marchant's Rep. of Gardner Peerage, 389, 432, 433; 1 Sim. & Stu. 153, S.C.; R. v. Mansfield, 1 Q. B. 444; Townshend Peerage, 10 Cl. & Fin. 289.

(0) Tracy Peerage, 10 Cl. & Fin. 190, per Lord Campbell; Robson v. Att.-Gen., id. 498-500, per Lord Cottenham. See ante, § 426, ad fin.

(p) Hungate v. Gascoyne, 2 Phill. 25.

(9) Berkeley Peerage, 3rd question, 4 Camp. 401.

(r) Leigh Peerage, Pr. Mi. p. 310.

(s) Slane Peerage, Pr. Mi. pt. 2, p. 49; 5 Cl. & Fin. 41, S. C.

(t) Herbert v. Tuckal, Sir T. Raym. 84.

(u) Berkeley Peerage, 3rd question, 4 Camp. 418. See Jackson v. Cooley, 8 Johns. 128, 131; Douglas v. Saunderson, 2 Dall. 116; Carskadden v. Poorman, 10 Watts, 82.

(v) In the Sussex Peerage case, an entry made by the mother of the claimant in her prayer-book, declaring the fact of her marriage, was admitted in evidence, 11 Cl. & Fin. 85, 98.

424 RECITALS IN FAMILY DEEDS AND WILLS ADMISSIBLE.

authenticity (w). This presumption, however, will not prevail in favour of an entry in any other book, however religious its character may be, but proof must be given, either that the entry was made by some member of the family (x), or that it has been acknowledged or treated by a relative as a correct family memorial (y), or, at least, if ancient, that it was made at the time when it purports to have been written. In order to establish this last fact, the evidence of skilled witnesses, conversant with manuscripts of different ages, is admissible, though, as we have before observed, such evidence is entitled to very little weight (z).

§ 451. Again, the correspondence of deceased members of the family (a), will, on proof of the handwriting (b), be received, as will also recitals in marriage settlements (c), and other family deeds, descriptions in wills (d), and the like. Even a cancelled will, which did not appear to have been ever acted upon, has been admitted, on proof that it was found among the papers of a descendant of the testator, who seemed to have kept it as containing statements relative to the family (e). So, recitals of descent, and descriptions of parties, in deeds, other than family instruments, will be received, provided the deeds are proved to have been executed by some member of the family to which the statements refer (f). But, this is an indispensable requisite ;

(w) Berkeley Peerage, 4 Camp. 421, per Lords Ellenborough and Redesdale; Monkton v. Att.-Gen., 2 Russ. & My. 162, 163, per Lord Brougham.

(x) Tracy Peerage, cited Hubback, Ev. of Succession, 673.

(y) Hood v. Beauchamp, 8 Sim. 26.

(≈) Tracy Peerage, 10 Cl. & Fin. 154; ante, § 46.

(a) Huntingdon Peerage, Att.-Gen.'s Rep. 357; Kidney v. Cockburn, 2 Russ. & My. 168; Leigh Peerage, Pr. Min. pt. 2, p. 140; Hastings Peerage, Pr. Min. 196. (b) Marchmont Peerage, Pr. Min. 345, 353. See also Airth Peerage, Pr.

Min. 105.

(c) Neal v. Wilding, 2 Str. 1151; Chandos Peerage, Pr. Min. 27; Stafford Peerage, Pr. Min. 110; Zouch Peerage, Pr. Min. 276; Devon Peerage, by Nicolas, 1832, app. pp. 44, 46; Lisle Peerage, Pr. Min. 116, 127; Banbury Peerage, Pr. Min. 6, 117; Vaux Peerage, Pr. Min. 44; Huntly Peerage, Pr. Min. 15; Roscommon Peerage, Pr. Min. 36.

(d) Vulliamy v. Huskisson, 3 You. & Col. Ex. 82, per Lord Abinger; Lisle Peerage, by Nicolas, 51, 53. (e) Doe v. Pembroke, 11 East, 504. Hastings Peerage, Pr. Min. 200; Borth

(ƒ) Marmyon Peerage, Pr. Min. 111; wick Peerage, Pr. Min. 62. See Stokes v. Dawes, 4 Mason, 268.

INSCRIPTIONS ON TOMBSTONES, ETC., ADMISSIBLE.

425

and therefore, where an indenture of assignment, which recited that the assignee was the son of certain parties, was executed alone by the assignor, who was not a member of the family, it was rejected (g); and a similar fate attended a deed of conveyance, wherein the grantors recited the death of a man's sons, who were tenants in tail male, and declared themselves heirs of the bodies of his daughters, who were devisees in remainder (h). In regard to recitals of pedigree in bills and answers in Chancery, a distinction has been taken between those facts which are not in dispute, and those which are in controversy; the former being admitted as ordinary declarations, the latter being excluded as made post litem motam (i).

§ 452. Inscriptions on tombstones (j), coffin-plates (k), mural monuments (7), family portraits (m), engravings on rings (n), charts of pedigree (0), and the like, are also admissible. Those which are proved to have been made by, or under the direction of, a deceased relative, are admitted as his declarations. But if they have been publicly exhibited, and may therefore be supposed to have been well known to the family, their publicity supplies any defect of proof that they were declarations of deceased members of the family; and they are admitted on the ground of tacit and common assent (p). It is presumed, though this is a presumption which is doubtless often contrary to fact (q), that the

(g) Slaney v. Wade, 1 Myl. & Cr. 338.

(h) Fort v. Clarke, 1 Russ. 604.

(i) See 1 Ph. Ev. 219, 220, and the authorities there cited.

(j) Monkton v. Att.-Gen., 2 Russ. & My. 163; Goodright v. Moss, 2 Cowp. 594. (*) Chandos Peerage, Pr. Min. 10; Rokeby Peerage, Pr. Min. 4; Lovat Peerage, Pr. Min. 77. (1) Slaney v. Wade, 1 Myl. & Cr. 338. (m) Camoys Peerage, 6 Cl. & Fin. 801. (n) Vowles v. Young, 13 Ves. 144. (0) Monkton v. Att.-Gen., 2 Russ. & My. 163; Goodright v. Moss, 2 Cowp. 594. (p) Monkton v. Att.-Gen., 2 Russ. & My. 163; Davies v. Lowndes, 7 Scott, N. R. 193, per Parke, B., who observes, "The ground upon which the inscription on a tombstone or a tablet in a church is admitted, is, that it is presumed to have been put there by a member of the family cognizant of the facts, and whose declarations would be evidence; where a pedigree hung up in the family mansion is received, it is on the ground of its recognition by the members of the family."

(9) Some remarkable mis-statements on monuments are mentioned in 1 Ph. Ev. 222, and note 4.

426

VALUE OF MURAL INSCRIPTIONS AS EVIDENCE.

relatives of a family would not permit an erroneous inscription to remain; and that a person would not knowingly wear a ring which bore a mis-statement upon it (r). Doubts appear to have been entertained at Nisi Prius respecting the admissibility of an inscription on a tombstone in a burial ground for dissenters (s); but it is submitted that such doubts are wholly groundless; for not only has this very species of evidence been admitted by the House of Lords in peerage claims (t), but inscriptions on foreign monuments have also been received (u).

§ 453. Mural and other funereal inscriptions are proveable by copies, or other secondary evidence, as has been already shown (v). Their value as evidence depends much on the authority under which they were set up, and the distance of time between their erection and the events they commemorate (w); and if parol testimony of their contents be offered, on the ground that the original monuments are destroyed or effaced, the Court will not be satisfied, unless the prior existence of the monuments, and the genuineness of the inscriptions, be established in the very strongest manner that the circumstances of the case will admit (x). The ease with which evidence of this nature can be manufactured, and the difficulty of disproving it so as to fix the witnesses with perjury, show the necessity of enforcing this rule with more than ordinary strictness.

§ 454. Though the publicity of a document or inscription is a strong fact from which a family recognition of its truth may be presumed, yet a similar presumption may arise from other circumstances; and, therefore, if a document, though privately kept,

(r) Per Lord Erskine, in Vowles v. Young, 13 Ves. 144. (s) Whittuck v. Waters, 4 C. & P. 375.

(t) Say and Sele Peerage, Serj. Hill's Collect. in Linc. Inn Library, vol. 26, p. 173. (u) Hastings Peerage, Pr. Min. 197.

(v) Ante, § 323, and see Tracy Peerage, 10 Cl. & Fin. 164, 165; Roscommon and Leigh Peerages, cited, Hubback, Ev. of Succession, 692; Slaney v. Wade, 1 Myl. & Cr. 338; 7 Sim. 595, S.C. cor. V. Ch.

(w) Athenry Peerage, Pr. Min. 45; Vaux Peerage, Pr. Min. 129; Fitzwalter Peerage, Pr. Min. 34.

(x) Tracy Peerage, 10 Cl. & Fin. 154, 181, 182, 189, 192.

DOCUMENT MUST BE RECOGNISED BY FAMILY.

427

is clearly proved to have been preserved by members of the family as an authentic memorial of their pedigree, it will be receivable in evidence without proof of its origin (y). The mere production, however, of a document from among the family archives (z), and, à fortiori, its production from a museum, or other public place of deposit (a), will not be sufficient to render it admissible, without proof that it was made or recognised by some member of the family.

§ 455. The question how far a pedigree, purporting to have been compiled, either wholly or in part, from registers and other documents which are not shown to have been lost, is admissible, has been lately much discussed. The point arose in the case of Davies v. Lowndes (6), where a Welch pedigree, which was proved to be in the handwriting of one of the ancestors of the demandant, was offered in evidence, it being produced from the proper custody. The document traced the genealogy of the family from a remote and almost fabulous antiquity, and brought down the descent to the immediate cotemporary relatives of the writer. At the foot of it was a memorandum in these words: "Collected from parish registers, wills, monumental inscriptions, family records, and history. This account is now presented as correct, and as confirming the tradition handed down from one generation to another, to Thomas Lloyd, Esq., of Cwm Gloyne, this 4th day of July, A.D. 1733, by his loving kinsman, Wm. Lloyd." The counsel for the demandant contended that the entire document was admissible, or at least such parts of it as showed the relationship of those persons who were described by the framer as living, and who might therefore be presumed to be personally known to him; but the Court of Common Pleas rejected the whole, apparently on the ground that the memorandum bore upon the face of it a sort of certificate, that the statement in the pedigree was merely secondary evidence of existing originals from which it was compiled, and that the absence of those originals was not accounted for; and that if any part of the pedigree was derived from legitimate sources, viz. personal

(y) Vaux Peerage, Pr. Min. 62; Camoys Peerage, 6 Cl. & Fin. 801-803. (*) Fitzwalter Peerage, Pr. Min. 44; Lovat Peerage, Pr. Min. 81.

(a) Chandos Peerage, Pr. Min. 11.

(b) 5 Bing. N. C. 167; 7 Scott, 21, S.C.