2 almost wholly upon its antiquity; and as, since the Revolution,' 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. When proof of this nature is offered, some officer of the Heralds' College should be in attendance, to explain the meaning of the occult science.3 1 The date of the last Herald's visitation was 1686, and of the first was 1528. See Hubb. Ev. of Suc. 542. 21 Ph. Ev. 244; Hubb. Ev. of Suc. 696. 3 See Chandos Peer., Pr. Min. 6, 24, 37, 40, 49. Besides the different species of evidence enumerated above, recourse may occasionally be had to the Heralds' books, inquisitions post mortem, parish books, registers, &c.; but as these are admissible, not as the hearsay evidence of relatives, but as public documents, the law respecting them will be discussed hereafter: Part iii. Chap. iv. See De Roos Peer., 2 Coop. 545–552. CHAPTER X. ANCIENT POSSESSION. § 658. A THIRD EXCEPTION to the rule rejecting hearsay evidence 59 is allowed in favour of ancient documents when tendered in support of ancient possession. By the term "ancient documents," are meant documents more than thirty years old; and as these often furnish the only attainable evidence of ancient possession, the law, on the principle of necessity, allows them to be read in courts of justice on behalf of persons claiming under them, and against persons in no way privy to them, provided that they are not mere narratives of past events, but that they purport to have formed a part of the act of ownership, exercise of right, or other transaction to which they relate. No doubt this species of proof deserves to be scrutinised with care; for, first, its effect is to benefit those who are connected in interest with the original parties to the documents, and from whose custody they have been produced; and next, the documents are not proved, but are only presumed to have constituted part of the res gesta. Still, as forgery and fraud are, comparatively speaking, of rare occurrence, and as a fabricated deed will, generally, from some anachronism or other inconsistency, afford internal evidence of its real character, the danger of admitting these documents is less than might be supposed; and, at any rate, it is deemed more expedient to run some risk of occasional deception, than to permit injustice to be done by strict exclusion of what, in many cases, would turn out to be highly material evidence. On a balance, therefore, of evils, this kind of proof has for many years past been admitted, subject to certain qualifications, which will now be stated.' § 659. And first, care is especially taken to ascertain the genuine. § 594 ness of the ancient documents produced; and this may in general 1 See 1 Ph. Ev. 273; 1 St. Ev. 67; Gr. Ev. 141; and Best, Ev. 615. ་ be shown, primâ facie, by proof that they come from the proper custody.1 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." The subject, therefore, will be illustrated in this place once for all, by a reference to the leading decisions which bear upon it; and attention will first be drawn to 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.2 § 660. "Documents," said his lordship, "found in a place in 595 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 necesary that they should be found in the best and most proper place of deposit. If documents continued 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 1 See ante, & 432, et seq. 23 Bing. N. C. 200-202; 10 Bligh, 462-464, S. C. See, also, Doe v. Samples, 8 A. & E. 154, per Patteson, J.; Doe v. Phillips, 8 Q, B. 158. sufficiently genuine to render a document admissible, appears from all the cases." 991 2 § 661. Thus, on the one hand, old grants to abbeys have been ₹ 596 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. So, a manuscript found in the Heralds' Office, enumerating the possessions of a dissolved monastery,'a curious manuscript book, entitled the "Secretum Abbatis," preserved in the Bodleian Library at Oxford, and containing a grant to an abbey, an old grant to a priory, brought from the Cottonian MSS. in the British Museum, 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, have been held to be inadmissible, the possession of the documents being unconnected with the interest in the property.' So, also, as the registers of burials and baptisms are required by the Act of 52 G. 3, c. 146, §§ 1 & 5, to be kept by the clergyman of the parish either at his own residence or in the church, such registers, when produced from the house of the parish clerk, have, in the absence of all explanation on the subject, been rejected, as not coming from the proper custody. So, the courts have on several occasions refused to admit terriers, which have been found among the papers of a mere landholder in the parish," because the legitimate repository for such documents would be either the registry 6 For the American authorities, see Barr v. Gratz, 4 Wheat. 213, 221; Winn v. Patterson, 9 Pet. 663-675. Clarke v. Courtney, 5 Pet. 319, 344: Hewlett v. Cock, 7 Wend. 371, 374; Duncan v. Beard, 2 Nott & M'C. 400; Middleton r. Mass, id. 55. 23 Bing. N. C. 201, per Tindal, C. J. 3 Lygon v. Strutt, 2 Anstr. 601. Michell v. Rabbetts, cited 3 Taunt. 91. * Swinnerton v. M. of Stafford, 3 Taunt 91. Potts v. Durant, 3 Anstr. 789; 2 Eag. & Y. 432, S. C. Bp. of Meath v. M. of Winchester, 3 Bing. N. C. 201, per Tindal, C. J. Doe v. Fowler, 19 L. J., Q. B. 15; 14 Q. B. 700, S. C. Atkins v. Hatton, 2 Anstr. 386; 3 Gwill. 1406; 4 Wood's Decrees, 410; 2 Eag. & Y. 403, S. C.; Atkins v. Ld. Willoughby De Broke, 4 Wood's Decrees, 424. of the bishop, the registry of the archdeacon, or the church chest.1 In the case of Randolph v. Gordon' 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. § 662. On the other hand, the poor-house of a union has been ? 597 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. The strictly proper custody for such a document as this last would have been the Augmentation Office; and as between the different proprietors of the abbey lands, it might naturally be supposed to have been deposited with the largest; still the court held, that its actual place of custody was one, where it might reasonably be expected to be found." So, an old book of a collector of tithes would be equally well authenticated, whether produced from the custody of the successor, or executor, of the incumbent, or from the hands of the successor of the collector. So, also, an unproved will, more than thirty years old, disposing of real and personal estate, and produced from the custody of a younger son of the testator, who, in common with his brothers, derived a benefit under it, has been admitted, though it was contended that it should have been deposited in the ecclesiastical court of the diocese. 1 Armstrong v. Hewett, 4 Price, 216; 3 Eag. & Y. 835, S. C.; Potts v. Durant, 3 Anstr. 795; 3 Gwill. 1450, S. C. 25 Price, 312. See, also, Manby v. Curtis, 1 Price, 225. 3 Slater v. Hodgson, 2 Sess. Ca. 488; 9 Q. B. 727, S. C. Bullen v. Michel, 2 Price, 399, 413; 4 Dow, 297; 4 Gwill. 1779; 3 Eag. & Y. 757, S. C. See, also, Mytton v. Thornbury, 29 L. J., M. C. 109; S. C. nom. R. v. Mytton, 2 E. & E. 557. 5 Per Ld. Redesdale, in Bullen v. Michel, 4 Dow, 321. 6 5 Bp. of Meath v. M. of Winchester, 3 Bing. N. C. 201, 202, per Tindal, 'Id.; referring to Jones v. Waller, 3 Gwill. 346. C. J. * Doe v. Pearce, 2 M. & Rob. 240, per Coleridge, J.; Andrew v. Motley, 12 Com. B., N. S. 526. |