quires that the dispute should have related to the particular subject in issue, is based on sound sense; for, although the existence of such a controversy may reasonably be expected to render turbid the fountain of evidence, the mere discussion of other topics, however similar they may be in their general nature to the real matter in dispute, does not necessarily lead to the inference that that matter was controverted, and therefore is not deemed sufficient to exclude declarations made during that discussion as evidence of reputation. Thus, in a suit between a copyholder and the lord, where the point in issue was, whether a certain customary fine was to be assessed by the jury of the lord's court; depositions taken in an ancient suit against a former lord, where the controversy turned on the amount of such fine, in which depositions the fine was mentioned as assessible by the lord, were admitted as evidence to negative the existence of any custom for the jury to interfere.1 In that case, one of the learned judges observed, that "the distinction had been correctly taken, that where the lis mota was on the very point, the declarations of persons would not be evidence; because you cannot be sure, that in admitting the depositions of witnesses, selected and brought forward on a particular side of the question, who embark to a certain degree with the feelings and prejudices belonging to that particular side, you are drawing evidence from perfectly unpolluted sources. But where the point in controversy is foreign to that which was before controverted, there never has been a lis mota, and, consequently, the objection does not apply."

12

§ 633. It is not, however, necessary that the former controversy § should have been between the same parties, or should have related to the same property or claim, provided it appears that the matters, respecting which the declarations offered in evidence on the second trial were made, were in the former dispute really under discussion; and, therefore, in the Berkeley Peerage case,-where the question before the Committee of Privileges respected the legiti macy of the claimant, and this turned on the fact whether his

1 Freeman v. Phillipps, 4 M. & Sel. 486; Elliott v. Piersol, 1 Pet. 328, 337. 2 Freeman v. Phillipps, 4 M. & Sel. 497, per Bayley, J. See, also, Gee r. Ward, 7 E. & B. 509.

parents, who had married after his birth, and had subsequently had several children, had likewise been privately married two years before he was born ;-a deposition of the father, wherein he swore positively to the fact of the first marriage, was rejected, it having been taken some years before, in a suit instituted by the claimant and three of his brothers born before the second marriage against the other children born after that event, for the purpose of perpetuating the testimony of the legitimacy of the former, who claimed in that character to be entitled in remainder to an estate then held by the father. So, in the Sussex Peerage case, where the claimant, Colonel d'Este, was required to prove that his parents, the Duke of Sussex and Lady Augusta Murray, were legally married, declarations contained in the Duke's will and affirming most solemnly the fact of marriage, as also statements to the same effect made by his Royal Highness in conversation, were rejected; it appearing that some years previously to such declarations and statements being made, a suit had been instituted by the Crown to annul the Prince's marriage, and it not being shown, as in truth it could not be, that that marriage was not the very marriage on which the claimant relied.2

§ 634. It is now finally decided, that declarations, made after § 569 the controversy has originated, are in all events to be excluded, even though proof be offered that the existence of the controversy was not known to the declarant.3 This rule may, no doubt, at times operate oppressively; but its justification, if it can be justified, must rest on the ground, that, "If an inquiry were to be instituted in each instance, whether the existence of the controversy was or was not known at the time of the declaration, much time would be wasted, and great confusion would be produced."

14 Camp. 401.

2 11 Cl. & Fin. 85, 99-103.

Shedden v. Att.-Gen. & Patrick, 30 L. J., Pr. & Mat. 217; 2 Swab. & Trist. 170, S. C.

Berkeley Peer., 4 Camp. 417, per Sir J. Mansfield.

CHAPTER IX.

MATTERS OF PEDIGREE.

§ 635. QUESTIONS OF PEDIGREE form the second exception to §571 the general rule rejecting hearsay evidence. This exception has been recognised on the ground of necessity; for as, in inquiries respecting relationship or descent, facts must often be proved which occurred many years before the trial, and were known but to few persons, it is obvious that the strict enforcement of the ordinary rules of evidence in cases of this nature would frequently occasion a grievous failure of justice. Courts of law have therefore so far relaxed these rules in matters of pedigree, as to allow parties to have recourse to traditional evidence; often the sole species of proof which can be obtained. Still, it is not considered safe to admit such evidence without qualification; and though it was long doubtful whether the declarations of servants, friends, and neighbours, might not be received, the settled rule of admission is now restricted to hearsay proceeding from persons who were de jure related by blood or marriage to the family in question, and who, consequently, may be supposed to have had the greatest interest in seeking, the best opportunities for obtaining, and the least reason for falsifying, information on the subject.1

§ 636. So far as blood relations are concerned, no limitation in § 572 the above rule has ever been recognised; but with regard to

2

1 Johnson v. Lawson, 2 Bing. 86; 9 Moore, 183, S. C.; Crease v. Barrett, 1 C. M. & R. 928; Vowles v. Young, 13 Ves. 147, per Ld. Erskine; Goodright v. Moss, 2 Cowp. 594, per Ld. Mansfield, as explained by Ld. Eldon in Whitelocke v. Baker, 13 Ves. 514; Monkton v. Att.-Gen., 2 Russ. & Myl. 159, per Ld. Brougham; Stafford Peer. 1825, Pr. Min. p. 4; Jewell v. Jewell, 1 Howard, S. Ct. R. 231; 17 Pet. 213, S. C.; Jackson v. Browner, 18 Johns. 37; Chapman v. Chapman, 2 Conn. 347; Waldron v. Tuttle, 4 New Hamp. 371.

2 Davies v. Lowndes, 7 Scott, N. R. 188, per Parke, B.; Shrewsbury Peer., 7 H. of L. Cas. 23, per Ld. Wensleydale.

5

4

6

3

relationship by affinity, some lawyers, used to imagine that the rule was confined to declarations by a husband respecting the state of his wife's family. It is now however distinctly decided, that this view of the law is too narrow, and that no valid argument can be urged against the admissibility of a wife's declarations concerning her husband's relatives. Still, the law will not be further relaxed, even in favour of statements made by the wife's father; and so strictly has the limitation of the rule been enforced in modern times, that the declaration of an illegitimate member of a family, asserting that one of his natural brothers had died without issue, has been rejected. So, also, the court has refused to admit a declaration by one brother that another brother has had an illegitimate son. In an older case, where the question was whether an elder son, who had taken possession of the paternal estates, and conveyed them to one of the litigants, was born in wedlock, his own declaration that he was a bastard, though made subsequently to the conveyance, was, after his death, received by Mr. Justice Le Blanc. The learned judge appears to have considered this statement admissible, "as the representation of one of the family of the degree of relationship he bore to it;" but if the case just cited be law,—as it would probably be deemed at the present day, the decision can scarcely rest upon this ground, unless the special circumstances of the case be prayed in aid; and it be contended, that, since the defendant's claim rested on the legitimacy of the vendor, he could not object to the vendor's declaration, without relinquishing the only prop of his title. Should this refined argument be deemed inconclusive, perhaps the admissibility of the declaration might be sustained, on the ground that the cause turned, not only on the condition of the father's family, but on the actual status of the declarant himself; but here we are met by the difficulty, that the son could

1 Davies v. Lowndes, 7 Scott, N. R. 188, per Parke, B.; S. C. p. 212.

2 Shrewsbury Peer., 7 H. of L. Cas. 23, 26.

3 Id. 25.

Doe v. Barton, 2 M. & Rob. 28, per Patteson, J. See Doe v. Davies, 10 Q. B. 314.

5 Crispin v. Doglioni, 32 L. J., Pr. & Mat, 109; 3 Swab. & Trist. 44, S. C. Cooke v. Lloyd, Pea. Ev. App. xxviii., per Le Blanc, J. See Hitchins v.

Eardley, 2 Law Rep., P. & D. 248; 40 L. J., Pr. & Mat. 70, S. C.

only have known the fact of his own illegitimacy by information received from others; and, as a bastard has in the eye of the law no relatives, the hearsay must have been derived from strangers, and its admissibility might on that ground be questioned.

§ 637. On the whole, it may be considered as a point of great §5 doubt, whether, under any circumstances, the declarations of a person deceased, asserting his own illegitimacy, can be received; excepting as admissions against himself and those who claim under him by some title derived subsequently to the statements being made. In the case referred to above, evidence was received that the father had specified the time of his marriage, had declared his eldest son to have been born before that date, had heaped upon him opprobrious epithets implying illegitimacy, and had on his deathbed pointed to his younger son as his heir; and these declarations would seem to have been clearly admissible, if not as directly proving the bastardy of a person, who, though de facto his son, was de jure a stranger to him, at least as showing the position of the legitimate portion of his family, through whom the plaintiff claimed his title. It may be observed, by way of caution, that had the declarations of the father been confined to a general statement that his eldest son was illegitimate, they might possibly have been rejected; for as such statements might have been made in consequence of non-access after marriage, they would seem to fall within the rule of law, which perhaps still precludes parents from giving testimony to bastardise their issue born during wedlock.5

§ 638. If a man has once been connected with a family by mar- § 574 riage, the death of his wife will not dissolve that connexion, so as to render inadmissible declarations subsequently made by him; and therefore where, in a case of pedigree, a witness was asked whether

1 See R. v. Rishworth, 2 Q. B. 487, per Wightman, J.; and Proc. Gen. t. Williams, 31 L. J., Pr. & Mat. 157, per Sir C. Cresswell; S. C. nom. Dyke r. Williams, In re Mary Emsley, 2 Swab. & Trist. 491.

2 See n. 6, ante, p. 541.

3 See Goodright v. Moss, 2 Cowp. 593, 594, per Ld. Mansfield.

See post, § 950.

5 R. v. Stourton, 5 A. & E. 180.