recruiting, it will be presumed that he is duly "attested soldier" within the Mutiny Act. Wotton v. Gavin, 16 Q. B. 48; 20 L. J., Q. B. 73. See also R. v. Hawkins, 10 East, 211. So in the case of a constable appointed by commissioners under a local Act. Butler v. Ford, 1 Cr. & M. 662. And the fact is evidence even in his own favour. S. C. So, where it is necessary to prove the swearing of an affidavit before a commissioner of one of the superior courts, evidence of his acting as such is sufficient. R. v. Howard, 1 M. & Rob. 187. Similar proof of a party's appointment as vestry clerk, M'Gahey v. Alston, 2 M. & W. 206; as solicitor, Berryman v. Wise, supra; as overseer, Cannell v. Curtis, 2 N. C. 228; Doe d. Bowley v. Baines, 8 Q. B. 1037; or as incumbent of a living, Radford v. M'Intosh, 3 T. R. 635-has been held sufficient. But in all these cases the evidence is only presumptive, and may be rebutted, when the regularity of the appointment is a pertinent inquiry.

As to presumption that an instrument lost, or not produced on notice, is or is not duly stamped, see tit. Stamps-Effect of want of stamp; Stamp, when presumed, post, p. 220.

HEARSAY.

It is a general rule of evidence that declarations of persons not made upon oath are inadmissible evidence of the fact declared; Spargo v. Brown, 9 B. & C. 938; unless it be by way of admission by a party to the suit. Therefore, hearsay evidence, which is the mere repetition of such declarations upon the oath of a witness who heard them, is excluded. There are, however, certain classes of cases in which hearsay is on various grounds admissible. See Sturla v. Freccia, 5 Ap. Ca. 640, et seq., per Lord Blackburn.

Hearsay admissible in questions of pedigree.] In questions of pedigree, the oral or written declarations of deceased members of the family are admissible to prove a pedigree. And this exception is founded on the obvious difficulty of tracing descent and the relationship of deceased members of families by any other evidence. Thus, declarations of deceased parents are admissible to prove the legitimacy of their children. So, hearsay is good evidence to prove who is a person's grandfather; when he married; what children he had; or the death of a relation beyond sea, &c. B. N. P. 294-5; Bridger v. Huett, 2 F. & F. 35. The declarations of a deceased parent and another relation were admitted to show which of several children born at a birth was the eldest. Per Reynolds, C. B., 12 Vin. Abr. 247; cited 4 Camp. 410. Declarations in a family, descriptions in wills, inscriptions upon monuments, in bibles or other books, and in 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 it. Per Lord Eldon, Whitelocke v. Baker, 13 Ves. 514; Higham v. Ridgway, 10 East, 109; Berkeley Peerage case, 4 Camp. 418. And see the Slane Peerage case, 5 Cl. & Fin. 23; and the Vaux Peerage, Ib. 526. Entries in a family bible are admissible in evidence, on the ground that, being in that place, they are to be taken as assented to by those having the custody of the book; proof of the handwriting of the entries is therefore immaterial. Hubbard v. Lees, L. R., 1 Ex. 255. See also Berkeley Peerage case, 4 Camp. 421; per Lords Ellenborough and Redesdale. It seems, however, that in the case of any other book the entries must be proved to have been made by a member of the family; Tracy Peerage, Hubback, Evid.

of Succession, 673; or that they have been treated by a relative as a correct family memorial. Hood v. Beauchamp, 8 Sim. 26. A pedigree which has long hung up in a family mansion is good evidence in such cases; Goodright d. Stevens v. Moss, 2 Cowp. 594; or a marriage certificate kept by the family. Doe d. Jenkins v. Davies, 10 Q. B. 314. A minutebook of a visitation, signed by the heads of the family, has been admitted, though produced from a private library. Pitton v. Walter, 1 Stra. 162. A signed pedigree delivered to the Heralds' College by virtue of a commission under which the college was authorized to receive and enrol such pedigrees, was admitted. Shrewsbury Peerage case, 7 H. L. C. 19. So a paper in the handwriting of a deceased member of the family, purporting to give a genealogical account of the family, was held admissible, though never made public by the writer, erroneous in many particulars, and professing to be founded partly on hearsay. Monkton v. Att.-Gen., 2 Russ. & Myl. 147. So a ring, worn publicly, stating the date of the person's death whose name is engraved upon it. S. C., Id. 162. So a description of a party as 'daughter and heir" in a deed signed by the party so described. Doe d. Jenkins v. Davies, supra; Smith v. Tebbitt, L. R., 1 P. & M. 354. But an old pedigree, professing on the face of it to be compiled from "registers, wills, monumental inscriptions, family records, and history," and going back to a fabulous date, is not evidence, though proved to be signed by members of the family, except so far as it relates to persons presumably known to them, or respecting whom they may have obtained information from other members of the family; whether the mere recognition of a pedigree by a deceased ancestor will make it legitimate evidence (except against claimants under him) is doubtful. Ďavies v. Lowndes, 5 N. C. 161; 6 M. & Gr. 471, 512, 525, &c., Ex. Ch. 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 declaration would be evidence. Id. 512, per Parke, B.

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The memoranda of a parent have been held good evidence to prove the time of the birth of a child. Herbert v. Tuckal, T. Raym. 84, cited by Lord Ellenborough in Roe d. Brune v. Rawlings, 7 East, 290. So the statement of a parent, though written long after the time of birth. Glenister v. Harding, 29 Ch. D. 985. But only in a case of pedigree. Haines v. Guthrie, 13 Q. B. D. 818., C. A. So the declaration of a father as to the place of birth of a son was considered inadmissible, as being a mere question of locality, and not of pedigree, in R. v. Erith, 8 East, 542. So, in Shields v. Boucher, 1 De G. & Sm. 40, Wilde, C. J., rejected, upon the trial of an issue, declarations of a relation as to the part of England from which he had originally come; but on moving for a new trial, Knight-Bruce, V.-C., expressed a strong opinion in favour of their admissibility in a case of mere genealogy, and with a view to identify ancestors, and distinguished R. v. Erith, supra. Accord. per Kindersley, V.-C., in Bauer v. Mitford, 7 W. R. 570, June, 1859; and declarations of a party, showing that he has or had relations living at A., have been admitted to identify persons whose existence is proved aliunde. Rishton v. Nesbitt, 2 M. & Rob. 554; Hood v. Beauchamp, Hubback, Evid. of Succession, 468, cited 1 Tayl. Evid., § 582. The declarations of a party as to his own illegitimacy, or place of birth, seem inadmissible except against himself, or those claiming under him by title posterior to the declaration. R. v. Rishworth, 2 Q. B. 476.

Where statements contained in monumental inscriptions, and declarations made by a deceased relation, were offered in evidence upon the trial of an issue out of Chancery to prove the ages of the parties referred to,

Tindal, C. J., rejected the evidence; but Lord Brougham, C., after argument, expressed a very strong opinion in favour of it; and afterwards stated that he had the concurring opinions of Littledale, J., and Parke, J.; but, the suit being compromised, no further opinion was delivered. Kidney v. Cockburn, 2 Russ. & Myl. 167. An inscription on a tombstone, stating the death of a party at the age of ninety, was admitted as evidence of the age. Rider v. Malbone, cor. Littledale, J., cited Id. pp. 169, 170. For other cases in which inscriptions on monuments have been admitted in proof of pedigree, see 1 Taylor, Evidence, § 587, and Shrewsbury Peerage, 7 H. L. C. I. So, an old tracing from an effaced monument has been admitted. Slaney v. Wade, 7 Sim. 595. A bill in Chancery by a father, stating his pedigree, was admitted in Taylor v. Cole, 7 T. R. 3, n.; but this is contrary to the resolution of the judges in the Banbury Peerage case, 2 Selw. N. P., 2nd ed. 773, and to Boileau v. Rutlin, 2 Exch. 678. An answer in Chancery, sworn ante litem motam, seems unexceptionable as evidence of pedigree incidentally set forth in it; but in the Wharton Peerage case, 12 Cl. & Fin. 295, an answer, sworn but not filed, was rejected as evidence of pedigree. Proceedings in the sheriff's court in Scotland are admissible, when the pedigree is incidentally stated. Lyell v. Kennedy, 14 Ap. Ca. 437, D. P. The recital in a family conveyance by a trustee is evidence of parentage. Slaney v. Wade, supra. So an old and cancelled will has been allowed as evidence of the existence and relative ages of certain deceased members of the family from whom both parties derived title. Doe d. Johnson v. Pembroke, Earl of, 11 East, 504. The probate of a will is not primary evidence for this purpose. Doe d. Wild v. Ormerod, 1 M. & Rob. 466; Dike v. Polhill, 1 Ld. Raym. 744. The will itself and signature of the testator must be proved, unless the age of the document or other circumstance dispense with such proof; it is said, however, that the "ledger book" or "original rolls" of the Ecclesiastical Court, containing an enrolment of the will, are admissible evidence to prove relationship. B. N. P. 246.

It is not necessary that the declarations should be contemporaneous with the facts declared; thus, a person's declaration, that his grandmother's maiden name was A. B. is admissible. Per Ld. Brougham, C., Monkton v. Att.-Gen., 2 Russ. & Myl. 158. Nor is it necessary that the fact declared should be in the personal knowledge of the declarant; thus, the declaration of A. as to what he heard from B. is admissible, if both be relations. S. C. Id. 165.

Declarations of the kind above described are strictly admissible only in inquiries relating to descent or relationship, or in tracing the devolution of property. In proving recent events, such as the place of birth, age, death, &c., of a person, where that fact is directly in issue, stricter proof is required. Thus the declaration of a parent as to the time of a child's birth is not admissible to prove a defence of infancy. Haines v. Guthrie, 13 Q. B. D. 818, C. A. In peerage cases, also, unusually strict evidence is exacted.

General reputation is good evidence in pedigree cases, e. g., of heirship; Bridger v. Huett, 2 F. & F. 35; of marriage, Evans v. Morgan, 2 C. & J. 453; Shedden v. Patrick, 2 Sw. & Tr. 170; 30 L. J., P. M. & A. 217; Campbell v. Campbell, L. R., 1 H. L. Sc. 201, per Ld. Cranworth; but if it appear on cross-examination or otherwise that the witness is speaking of evidence given him by some individual, even as to general reputation, the evidence ceases to be admissible. Shedden v. Patrick, supra.

Hearsay, of what persons, admissible in questions of pedigree.] The hearsay must be from persons having such a connection by blood or marriage with the party to whom it relates, that it is natural and likely, from their

domestic habits and connections, that they are speaking the truth, and are not mistaken. Per Lord Eldon, C., Whitelocke v. Baker, 13 Ves. 514. Declarations by a deceased person as to her own legitimacy are evidence. Procur.-Gen. v. Williams, 31 L. J., P. M. & A. 157. So by a deceased husband as to the legitimacy of his wife, and as to the pedigree of her family, are evidence. Vowles v. Young, 13 Ves. 148; Doe d. Northey v. Harvey, Ry. & M. 297. So the declaration of a wife as to her husband's family. Shrewsbury Peerage, 7 H. L. C. 1. But not the declarations of her father. S. C. Nor the declarations of illegitimate relations. Doe d. Bamford v. Barton, 2 M. & Rob. 28; Crispin v. Doglioni, 3 Sw. & Tr. 44; 32 L. J., P. M. & A. 109. The declarations of servants and intimate acquaintance are not admissible. Johnson v. Lawson, 2 Bing. 86; S. C., 9 B. Moore, 183. The declarations of a deceased person, as to the fact of his own marriage, are evidence. B. N. P. 112; R. v. Bramley, 6 T. R. 330. The declarations of a deceased mother as to the non-access of her husband, are not evidence, on grounds of policy. R. v. Luffe, 8 East, 193; Goodright d. Stevens v. Moss, Cowp. 594. Nor are her declarations, or those of her husband, that her son is the son of another man. Cope v. Cope, 1 M. & Rob. 269. But where the non-access is admitted or established, the mother's declarations may be proof of paternity. Legge v. Edmonds, 25 L. J., Ch. 125. And her declarations that her child is a bastard, are admissible as evidence of her conduct; Aylesford Peerage, 11 Ap. Ca. 1; and so are those of the putative father; Burnaby v. Baillie, 42 Ch. D. 282; although the declarants are alive. And although the declarations of the parents are not admissible to bastardize a child born after marriage; they are admissible to prove that the child was born before marriage. Goodright d. Stevens v. Moss, Cowp. 591; Murray v. Milner, 12 Ch. D. 845. Before any such declaration can be admitted in evidence the relationship of the declarant by blood or marriage must be established by some proof independent of the declaration itself; it is the duty of the judge to decide whether this relationship is proved; slight evidence will, however, be sufficient. Plant v. Taylor, 7 H. & N. 237; 31 L. J., Ex. 289; Smith v. Tebbitt, L. R., 1 P. & M. 354.

Old depositions in a suit, purporting on the face of them to be made by relations, but not proved aliunde to have been so made, were not held evidence in the Banbury Peerage case, 2 Selw. N. P. 2nd ed. 773: Accord. Davies v. Morgan, 1 C. & J. 591; but see Freeman v. Phillipps, 4 M. & S. 486, cited post, p. 51, where the antiquity of the depositions was held to dispense with such extrinsic proof. Although it is necessary to give evidence dehors to connect the persons making them with the family, yet where the question is whether A. be related to C., the declarations of B., who is proved to have been related to A., are evidence to prove C. related to A., without evidence dehors to show B. related to C. Monkton v. Att.Gen., 2 Russ. & Myl. 156. When the judge has decided that the evidence is sufficient, he may receive the declaration, although the fact of relationship is the very point in issue in the cause; Doe d. Jenkins v. Davies, 10 Q. B. 314; and he is not bound to hear evidence on the voir dire to rebut the evidence of relationship. Hitchins v. Eardley, L. R., 2 P. & M. 248. It is no objection that the person who made the declaration stood in pari casu with the person tendering it in evidence. Monkton v. Att.-Gen., 2 Russ. & Myl. 159. In a claim of peerage a widow was admitted to prove declarations of her deceased husband in support of her son's title, though the husband, if living, would have had the right which the declarations went to establish. Cited by Abbott, C. J., in Doe d. Tilman v. Tarver, Ry. & M. 141. So declarations are admissible, though they tend to show the declarant's own title at the time, provided there was no lis mota;

S. C.; Doe d. Jenkins v. Davies, ante, p. 47; but in Plant v. Taylor, ante, p. 47, it was doubted whether a declaration by a person obviously in his own interest ought to be received. A deposition of a deceased relative taken on a commission of inquiry as to the next of kin of a lunatic, is admissible to establish the title of the lunatic's heir-at-law. Gee v. Ward, 7 E. & B. 509.

The relative, whose declarations are offered, must be proved to be dead before they can be admitted in evidence. Butler v. Mountgarret, Vt., 7 H. L. C. 633. Unless, indeed, from the circumstances, his death may be presumed; vide ante, p. 41.

Hearsay in questions of pedigree post litam motam.] If the declarations were made after a controversy has arisen with regard to the point in question, they are inadmissible. Berkeley Peerage, 4 Camp. 401. It is not necessary, in order to exclude the evidence, to show that the controversy was known to the person making the declaration. Ib. 417; Reilly v. Fitzgerald, 6 Ir. Eq. Rep. 348; Shedden v. Patrick, 2 Sw. & Tr. 170; 30 L. J., P. M. & A. 217. The declaration may be admissible though made from interested motives, and in order to prevent future controversy. Berkeley Peerage, 4 Camp. 418. The term controversy must not be understood as necessarily signifying an existing suit. Monkton v. Att.-Gen., 2 Russ. & Myl. 161; Butler v. Mountgarret, Vt., supra; Frederick v. Att.-Gen., L. R., 3 P. & M. 270. Nor a suit for the same purpose as the suit or proceeding in which the evidence is offered. Berkeley Peerage, supra; Sussex Peerage, 11 Cl. & Fin. 85; see Shrewsbury Peerage, 7 H. L. C. 1; and Davies v. Lowndes, 6 M. & Gr. 471, Ex. Ch.

Hearsay admissible to prove public rights.] Another exception to the rule which excludes hearsay evidence is where the question relates to matters of public or general interest. The term "interest" here means pecuniary interest, or some interest by which the legal rights or liabilities of a class of the community are affected; and the grounds of admissibility are, because the origin of such rights is generally ancient and obscure, and consequently incapable of direct proof;-because in local matters all persons living in the neighbourhood, and interested in them, are likely to be conversant with them;-because common rights are naturally the subject of common and public conversation, in the course of which, statements are made, which uncontradicted, are likely to be true; and thus a trustworthy reputation may arise from the concurrence of many unconnected with each other, and interested in investigating the truth. Ld. Campbell, in R. v. Bedfordshire, 4 E. & B. 541-2; 24 L. J., Q. B. 81. It will be seen from the following illustrations of the rule that all the grounds above enumerated need not exist in order to justify the reception of hearsay; and that, in some instances, other grounds may be adduced in favour of it.

Per

Common reputation is admissible to prove not only public or general rights (Berkeley Peerage, 4 Camp. 415; Weeks v. Sparke, 1 M. & S. 686; Morewood v. Wood, 14 East, 329), but also rights affecting a number of persons, and therefore in the nature of public rights, as a manorial custom; Denn d. Goodwin v. Spray, 1 T. R. 466; or the extent of a manor; Doe d. Padwick v. Skinner, 3 Exch. 84; or a reputed manor which once existed; Doe d. Molesworth v. Sleeman, 9 Q. B. 298; or common by cause of vicinage; Pritchard v. Powell, 10 Q. B. 589; or a custom in a borough. to exclude foreigners; semb. Davies v. Morgan, 1 C. & J. 587; or the boundaries between parishes or manors; Nicholls v. Parker, 14 East, 331, n.; a parish modus; Weeks v. Sparke, 1 M. & S. 691; White v. Lisle,