knowledge or family tradition, it did not appear distinctly which was such part, and therefore the whole was inadmissible (c). The case was then brought before the Exchequer Chamber, and the conclusion at which that Court arrived, after much doubt and full consideration, was that part, if not all, of the pedigree was receivable in evidence. Lord Denman, in pronouncing the judgment of the Court, observes, that "a pedigree, whether in the shape of a genealogical tree or map, or contained in a book, or mural or monumental inscription, if recognised by a deceased member of the same family, is admissible, however early the period from which it purports to have been deduced. On what ground is this admitted? It may be that the simple act of recognition of the document, and consequent acknowledgment of the relationship stated in it, by a member of the family, is some evidence of that relationship, from whatever sources his information may have been derived, because he was likely, from his situation, to inquire into the truth of such matters, and, from his means of knowledge, to ascertain it" (d). His lordship, after referring to the language of Lords Brougham (e) and Cottenham (ƒ), and of the Vice-Chancellor of England (g), as giving great countenance to the opinion, that the recognition by a relative of a statement of relationship is evidence of the truth of that statement, adds, "if this be a correct view of the law, the pedigree in question was admissible, because it was certainly acknowledged by Wm. Lloyd to be correct." The judgment then continues thus. "But the reason why a pedigree, when made or recognised by a member of a family, is admissible, may be, that it is presumably made or recognised by him in consequence of his personal knowledge of the individuals therein stated to be relations, or of information received by him from some deceased member of what the latter knew, or heard from other members who lived before his time. And if so, it may well be contended, that, if the facts rebut that presumption, and show that no part of the pedigree

(c) Per Lord Denman, in Davies v. Lowndes, 7 Scott, N. R. 211; 6 M. & Gr. 525, S.C.

(d) 7 Scott, N. R. 211, 212; 6 M. & Gr. 525, 526, S.C.

(e) Monkton v. Att.-Gen., 2 Russ. & Myl. 156.

(f) Slaney v. Wade, 1 Myl. & Cr. 355.

(g) Slaney v. Wade, 7 Sim. 611.

ARMORIAL BEARINGS ADMISSIBLE.

429

was derived from proper sources of information, then the whole of it ought to be rejected; and so also if there be some, but an uncertain and undefined part, derived from improper sources. But when the framer speaks of individuals, whom he describes as living, we think the reasonable presumption is that he knew them, and spoke of his own personal knowledge, and not from reference to registers, wills, monumental inscriptions, and family records, or history; and consequently, to that extent, the statements in the pedigree are derived from a proper source, and are good evidence of the relationship of those persons" (h).

§ 456. Armorial bearings, whether carved on wood, painted on glass, engraved on monuments or seals, or otherwise emblazoned, are also admissible in cases of pedigree; not only as tending to prove that the person who assumed them was of the family to which they of right belonged, but as illustrating the particular branch from which the descent was claimed, or as showing, by the impalings or quarterings, the nature of the blazonry, or the shape of the shield, what families were allied by marriage, or what members of the family were descended from an illegitimate stock, or were maidens, widows, or heiresses (i). The value of this evidence depends almost wholly upon its antiquity; and as, since the Revolution (j), the heralds have exercised no authority in correcting usurpation, the use of armorial bearings subsequently to that date is entitled to but little, if any, weight as evidence of genealogy (k). When proof of this nature is offered, some officer of the Herald's College should be in attendance, to explain the meaning of the occult science (1).

(h) 7 Scott, N. R. 213; 6 M. & Gr. 527, S.C.

(i) Harl. MS. 1386, 6141; Hervey v. Hervey, 2 W. Bl. 877; Chandos Peerage, Pr. Min. 6, 24, 37, 40, 49; Huntingdon Peerage, by Bell, 280; Att.-Gen.'s Rep. 359, S.C.; Hastings Peerage, Pr. Min. 313; Co. Lit. 27, a; Fitzwalter Peerage, Pr. Min. 49; Camoys Peerage, Pr. Min. 58; 1 Sid. 354.

(j) The date of the last Herald's visitation was 1686, and of the first was 1528. See Hubback, Ev. of Succession, 542.

(k) 1 Ph. Ev. 224; Hubback, Ev. of Succession, 696.

(7) See Chandos Peerage, Pr. Min. 6, 24, 37, 40, 49. Besides the different species of evidence enumerated above, recourse may occasionally be had to the Herald's books, inquisitions post mortem, parish books, registers, &c.; but as these are admissible not as hearsay evidence, but as public documents, the law respecting them will be discussed in another part of this work.

430 HEARSAY ADMISSIBLE IN SUPPORT OF ANCIENT POSSESSION.

CHAPTER X.

OF ANCIENT POSSESSIONS.

§ 457. A THIRD EXCEPTION to the rule rejecting hearsay evidence is allowed in cases of ancient possession, and in favour of the admission of ancient documents in support of it. In matters of private right, not affecting any public or general interest, hearsay is, as we have seen (z), generally inadmissible. But the admission of ancient documents, purporting to constitute part of the transactions themselves, to which, as acts of ownership or of the exercise of right, the party against whom they are produced is not privy, stands on a different principle. It is true, on the one hand, that the documents in question consist of evidence, which is not proved to be part of any res gestæ, because the only proof of the transaction consists in the documents themselves; and these may have been fabricated, or, if genuine, may never have been acted upon. Their effect, too, if admitted in evidence, is to benefit persons connected in interest with the original parties to the documents, and from whose custody they have been produced. But, on the other hand, such documents always accompany, and form a part of, every legal transfer of title and possession by act of the parties; and there is, also, some presumption against their fabrication, where they refer to co-existing subjects by which their truth might be examined (a). On these grounds, therefore, as well as because such is generally the only attainable evidence of ancient possession, this proof is admitted, under the qualifications which will be stated.

§ 458. Since the value of these documents depends mainly on their having been at least contemporaneous with, if not part of, the act of transfer, care is first taken to ascertain their genuineness; and

(*) Ante, § 423.

(a) 1 Ph. Ev. 273; 1 St. Ev. 67; Clarkson v. Woodhouse, 5 T. R. 413, n., per Lord Mansfield.

LEGAL MEANING OF PROPER CUSTODY.

431

this may in general be shown primâ facie, by proof that they come from the proper custody. As this proof is by no means confined to documents tendered in support of ancient possession, but is required in most cases where deeds, papers, or writings are rendered admissible by any rule of law without strict proof of their authenticity, it becomes highly important to explain, with as much precision as possible, the legal meaning of the words " proper custody." We therefore propose, in this place, to illustrate the subject once for all, by referring to the leading decisions which bear upon it; and we cannot preface our observations better than by citing the language used by Chief Justice Tindal in the House of Lords, while pronouncing the opinion of the judges in the important case of the Bishop of Meath v. The Marquis of Winchester (6). "Documents," said his Lordship, "found in a place in which, and under the care of persons with whom, such papers might naturally and reasonably be expected to be found, are precisely in the custody, which gives authenticity to documents found within it; for it is not necessary that they should be found in the best and most proper place of deposit. If documents continue in such custody, there never would be any question as to their authenticity; but it is when documents are found in other than their proper place of deposit that the investigation commences, whether it was reasonable and natural under the circumstances in the particular case, to expect that they should have been in the place where they are actually found; for it is obvious, that, while there can be only one place of deposit strictly and absolutely proper, there may be many and various, that are reasonable and probable, though differing in degree; some being more so, some less; and in those cases the proposition to be determined is, whether the actual custody is so reasonably and probably to be accounted for, that it impresses the mind with the conviction that the instrument found in such custody must be genuine. That such is the character and description of the custody, which is held sufficiently genuine to render a document admissible, appears from all the cases "(c).

(b) 3 Bing. N. C. 200-202; 10 Bligh, 462-464, S. C. See also Doe v. Samples, 8 A. & E. 154, per Patteson, J. Phillips & 2.B.158

(c) For the American authorities, see Barr v. Gratz, 4 Wheat. 213, 221; Winn v. Patterson, 9 Peters, 663-675; Clarke v. Courtney, 5 Peters, 319, 344;

432

MEANING OF PROPER CUSTODY ILLUSTRATED.

§ 459. Thus, on the one hand, old grants to abbeys have been rejected as evidence of private rights, where the possession of them has appeared altogether unconnected with the persons who had any interest in the estate (c). So, a manuscript found in the Herald's Office, enumerating the possessions of a dissolved monastery (d); a curious manuscript book, entitled the "Secretum Abbatis," preserved in the Bodleian Library at Oxford, and containing a grant to an abbey (e); an old grant to a priory, brought from the Cottonian MSS. in the British Museum (f); and two ancient writings, purporting respectively to be an endowment of a vicarage and an inspeximus of the endowment under the seal of a bishop, both of which had been purchased at a sale as part of a private collection of manuscripts (g); have been held to be inadmissible, the possession of the documents being unconnected with the interest in the property (h). In the case of Randolph v. Gordon (i) this doctrine was carried to its extreme limit. There, the defendant, who was grandson of a former rector, produced a book, which purported to be the book of such rector; but as he did not show that he had found it among his grandfather's papers, or that it had come into his possession in a legitimate manner, it was rejected.

§ 460. On the other hand, the poor-house of a union has been considered not an improper repository for the documents of any parish within the union (); and an old chartulary of a dissolved abbey has been admitted, when found in the possession of the owner of part of the abbey lands, though not of the principal proprietor (k). The strictly proper custody for such a document as this last would have been the Augmentation Office (1); and as between the different proprietors of the abbey lands, it might

Jackson v. Laroway, 3 Johns. Cas. 283, approved in Jackson v. Luguere, 5 Cowen, 221, 225; Hewlett v. Cock, 7 Wend. 371, 374; Duncan v. Beard, 2 Nott & M'C. 400; Middleton v. Mass, id. 55. (c) 3 Bing. N. C. 201, per Tindal, C. J. (e) Michell v. Rabbetts, cited 3 Taunt. 91.

(d) Lygon v. Strutt, 2 Anstr. 601.

(ƒ) Swinnerton v. Marquis of Stafford, 3 Taunt. 91.

(g) Potts v. Durant, 3 Anstr. 789.

(h) Bishop of Meath v. Marquis of Winchester, 3 Bing. N. C. 201, per Tindal, C. J.

(i) 5 Price, 312. See also Manby v. Curtis, 1 Price, 225.

(j) Slater v. Hodgson, 2 Sess. Cas. 488.

(k) Bullen v. Michel, 2 Price, 413.

(1) Per Lord Redesdale, 4 Dow, 321.