ÆäÀÌÁö À̹ÌÁö
PDF
ePub

DOCTRINE OF LIS MOTA.

413

litem motam, will be admissible, if the party offering them in evidence can show, by any proof satisfactory to the judge, that the declarant was in all probability ignorant of the existence of the controversy. The Roman law may be cited in support of this suggestion; for though the civilians rejected, like ourselves, hearsay originating post litem motam, they recognised a distinction in favour of those declarations, which were made in a place so remote from the scene of controversy as to remove all suspicion that the declarant had heard of its existence. The rule and exception are thus stated by Mascardus:-"Nec vero tantummodo debent esse personæ graves, sed etiam debent deponere se audivisse ea quæ asserunt ante litem motam: quod si post litem motam deponerent, non solum non probarent, sed nec ullam fidem facerent; quia facilè contingere potest, ut quispiam id audiverit ab alio, qui illud protulit in frandem, vel quod lis ipsa mota traxerit istam famam." "Istud autem quod diximus, debere testes deponere ante litem motam, sic est accipiendum, ut verum sit, si ibidem, ubi res agitur, audierit; at si alibi in loco, qui longissimè distaret, sic intellexerit, etiam post litem motam testes de auditu admittuntur. Longinquitas enim loci in causa est, ut omnis suspicio abesse videatur, quæ quidem suspicio adesse potest, quando testis de auditu post litem motam ibidem, ubi res agitur, deponit" (t).

(t) Mas. de Prob., vol. 1, p. 401 (429), Concl. 410, n. 5, 6.

414

HEARSAY ADMISSIBLE IN QUESTIONS OF PEDIGREE.

CHAPTER IX.

QUESTIONS OF PEDIGREE.

§ 439. QUESTIONS OF PEDIGREE form the second exception to 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 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 (a).

§ 440. So strictly has this limitation been enforced in recent

(a) 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 Lord Erskine; Goodright v. Moss, 2 Cowp. 594, per Lord Mansfield, as explained by Lord Eldon in Whitelocke v. Baker, 13 Ves. 514; Monkton v. Att.-Gen., 2 Russ. & Myl. 159, per Lord Brougham; Stafford Peerage, 1825, Pr. Min. p. 4; Jewell v. Jewell, 1 Howard, S. Ct. Rep. 231; 17 Peters, 213, S. C.; Jackson v. Browner, 18 Johns. 37; Chapman v. Chapman, 2 Conn. 347; Waldron v. Tuttle, 4 N. Hamp. 371. In Davies v. Lowndes, 7 Scott, N. R. 188, Parke, B., observes, "There seems to be no limitation in the rule as to blood relations; but, with regard to relationship by affinity, it is different; it seems to be confined to declarations by a husband as to his wife's relations." See also S. C., p. 212.

WHETHER DECLARATIONS OF BASTARD ADMISSIBLE.

415

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 (b). In an older case (c), where the question was whether an eldest 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 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. On the whole, it may be considered as a point of great 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 (d). In the case referred to above (e), 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

(b) Doe v. Barton, 2 M. & Rob. 28, per Patteson, J. See Doe v. Davies, 16 L. J. (N. S.) Q. B. 218.

(c) Cooke v. Lloyd, Pea. Ev. App. xxviii., per Le Blanc, J.
(d) See R. v. Rishworth, 2 Q. B. 487, per Wightman, J.
(e) See n. (c), ante.

416

DECLARATIONS OF HUSBAND AFTER WIFE'S DEATH.

illegitimacy, and had on his death-bed 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 (f). 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 precludes parents from giving testimony to bastardize their issue born during wedlock (g).

§ 441. If a man has once been connected with a family by marriage, the death of his wife will not dissolve that connection, so as to render inadmissible declarations subsequently made by him; and therefore where, in a case of pedigree, a witness was asked whether he had not heard a husband since deceased state, after his wife's death, that she was illegitimate, the answer was received, though the counsel declined to put the further question, whether the husband had derived his information from the wife during the coverture (h). The Court presumed in this case that the knowledge must have been obtained by the husband whilst he was a member of the family (i).

§ 442. Again, no valid objection can be taken to evidence of this kind, on the ground that it is hearsay upon hearsay, provided all the declarations come from different members of the same family, or do not directly appear to have been derived from strangers. Thus, the declarations of a deceased widow, respecting a statement which her husband had made to her, as to who his cousins were,―as also the declaration of a relative, in which he asserts

(f) See Goodright v. Moss, 2 Cowp. 593, 594, per Lord Mansfield.

(g) R. v. Sourton, 5 A. & E. 180.

(h) Vowles v. Young, 13 Ves. 140, per Lord Erskine; Doe v. Harvey, Ry. & M. 297, per Littledale, J. But see observations in last section.

(i) Per Burrough, J., in Johnson v. Lawson, 2 Bing. 92; 9 Moore, 194, S. C.

RELATIONSHIP OF DECLARANT MUST BE PROVED.

417

generally that he has heard what he states,-have been received. If this were not so, the main object of relaxing the ordinary rules of evidence would be frustrated, since it seldom happens that the declarations of deceased relatives embrace matters within their own personal knowledge (j). Even general repute in the family, proved by the testimony of a surviving member of it, has been considered as falling within the rule (k). Moreover, it is not necessary to show that the declarations were contemporaneous with the events to which they relate; for, as Lord Brougham has well observed, such a restriction "would defeat the purpose for which hearsay in pedigree is let in, by preventing it from ever going back beyond the lifetime of the person whose declaration is to be adduced in evidence;" and, to use a homely illustration, would even render inadmissible the statement of a deceased person as to the maiden name of his own grandmother (1).

§ 443. Before a declaration can be admitted in evidence, the relationship of the declarant with the family must be established by some proof, independent of the declaration itself (m); and although in tracing ancient pedigrees, the Court would probably be satisfied with slight evidence on this head, since the connection of the declarant with the family might be equally difficult of proof with the very fact in controversy, yet some evidence would certainly be required; for, otherwise, a stranger, by claiming alliance with a family, and then making statements respecting it, might assume to himself the power, after death, of materially altering the relative rights of its several branches (n). It seems, however, unnecessary

(j) Doe v. Randall, 2 Moo. & P. 20; Monkton v. Att.-Gen., 2 Russ. & My. 165, 166, per Lord Brougham; Slaney v. Wade, 7 Sim. 611, per V.-Ch.; 1 My. & Cr. 355, S.C., per Lord Cottenham. See Robson v. Att.-Gen., 10 Cl. & Fin. 500-503, and Davies v. Lowndes, 7 Scott, N. R. 211-213; 6 M. & Gr. 525-527, S.C. See post, § 455.

(k) Doe v. Griffin, 15 East, 293; B. N. P. 295.

() Monkton v. Att.-Gen., 2 Russ. & My. 157, 158; Lovat Peerage, Pr. Min. p. 89.

(m) Monkton v. Att.-Gen., 2 Russ. & My. 156, 157; Banbury Peerage, 2 Selw. N. P. 754; Per Lord Eldon, in Berkeley Peerage Case, 4 Camp. 419; Leigh Peerage, Pr. Min. p. 307; Stafford Peerage, 1825, Pr. Min. p. 5; R. v. All Saints, 7 B. & C. 789, per Bayley, J.; Davies v. Morgan, 1 Cr. & Jer. 591, per id. (n) See Doe v. Randall, 2 Moo. & P. 24, per Best, C. J.

EE

« ÀÌÀü°è¼Ó »