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the present chapter is to particularize the species of proof which, on occasions of this nature, have been [*]received as effectual,-more especially with regard to marriages, heirships, and deaths.
Recitals in ancient deeds, if consistent with the apparent state of a title, are one species of presumptive evidence of the facts which they relate (1). We have before had occasion to observe, that in themselves recitals are conclusive only against parties to the instruments containing them, and claimants under those parties; and that, in regard to strangers, they are for the most part wholly inoperative. Where, however, the deeds in which they are contained are ancient deeds, they acquire a force originally foreign to them. Corroborated by the circumstance of a corresponding subsequent enjoyment, a just and reasonable cause presents itself that they should no longer be regarded in the light of mere ex parte statements; because not only are the facts recited, and the present possession connected as cause and effect, the one accounting for the other, but the quiescence of the persons interested in disproving them is a tacit admission of their accuracy and truth. In conformity with these principles, it is the usual practice as between vendor and purchaser, when direct testimony is wanting, to rely upon recitals which are contained in deeds of thirty or forty years standing, and are confirmed
(1) Such recitals have been held to be good presumptive evidence of pedigree, where no adverse title by inheritance has been set up under the same ancestor, even though the land conveyed by the deeds is itself the subject of controversy. Little v. Palister, 3 Greenl. 200. See Jackson v. Cooley, 8 Johns. R. 128. See Stokes v. Dawes, 4 Mason, 268.
by unmolested enjoyment since, as sufficient and satisfactory.
Memoranda in ancient family bibles, old pedigrees, and other similar family records, are also accounted good evidence, on the ground that they were most probably made, or at least recognized as faithful, by persons [*]who possessed the means of knowing the truth, and had no inducement to misrepresent it (a). Accordingly, in one case, an old cancelled will which had never been acted on, was held sufficient to prove the fact of seniority between two of the testator's sons, in a dispute between their respective representatives (6).
On a similar principle, inscriptions upon tombstones and engravings on rings are admitted as evidence. For it is to be supposed that the relations of a family would not permit a monumental inscription to be made, or to remain when made, unless it were true in fact; and that they would not give, nor would the donee wear, a ring with an error upon the face of
An entry in the day book of a deceased medical practitioner for attendance on a woman at her lyingin, with a memorandum declaring the charge to have been paid, was in one case received as presumptive
(a) Cowp. 594 ; 10 East, 120; Raym. 84. 13 Ves. 514. Berkley Peerage (6) Doe d. Johnson v. Earl of case, 4 Camp. 401. That a me- Pembroke, 11 East, 504. morandum in a father's almanack (c) Cowp. 594 ; 10 East, 120; of the time of a son's birth, is evi- 13 Ves. 144, 514. dence, see Herbert v. Tuckal, T.
proof of the day on which the birth took place. The memorandum of payment was held, on the score of self-interest, to repel all objection to the competency of the evidence (a).
Declarations by deceased relatives as to particular events occurring in a family, or as to the members of [*]which it consisted, or as to its state and circumstances at a given period, may, when better evidence cannot be obtained, be resorted to as a medium of proof: for example, to prove who was a person's grandfather, when he married, what children he bad, &c.; or to prove the death of a relation beyond sea, or that he died unmarried, or without issue (6). Such declarations are entitled to credit, as they express the common reputation and belief in a family, of facts which are made the subject of anxious and disinterested inquiry.
Declarations by a man who has married into a family are also admissible, because he naturally becomes intimate with and interested in the concerns of his wife's relations(c). But evidence of the declarations of servants or acquaintance, by reason of the difficulty of confining such evidence within proper limits, is not admissible (d); much less tradition and opinion current in the neighbourhood(e).
The hearsay of deceased relations, to be effectual,
(a) Higham v. Ridgway, 10 (c) Vowles v. Young, 13 Ves. East, 109.
140. (6) Cowp. 594; 10 East, 120 ; (d) Johnson v. Lawson, 2 Bing. 13 Ves. 147,514; Bull. N. P. 294, 86. See also 13 Ves. 514. 5; Doe v. Griffin, 15 East, 293. (e) 13 Ves. 147.
must be above all suspicion of having proceeded from interested motives. Little or no weight will be attached to declarations, which have been made after disputes have arisen in the family, on the points to which the declarations relate (a) ; for the very principle, [*]as Lord Eldon expressed himself, on which such evidence is received, is its being the natural effusion of a person, who having had opportunities to know the truth, speaks on an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth(b). Declarations in contemplation of future controversy, though s uspicious, are not however always to be rejected. If the relater had no interest to serve nor object to attain, and no ground appears for supposing his mind to have been prepossessed in favour of either party, his declarations are entitled to no less credit, than if they were made under circumstances the most unobjectionable(c).
In proof of marriages the following additional particulars are admitted as evidence : cohabitation ; acknowledgments ofa marriage by the parties themselves ; reception of them as man and wife by their relations and friends; and common reputation(d)(1). The
(a) Edwards v. Harvey, Coop. (6) See 13 Ves. 514 ; 4 Camp. C. C. 39 ; Berkeley Peerage case, 409. 4 Camp. 401.
This latter case (c) See the third question in shows that depositions in Chance- the Berkley Peerage case, 4 Camp. ry, in answer to interrogatories by 401. one of the parties only, come with (d) Morres y. Miller, 1 Black. in the same rule.
632; 4 Burr. 2057, S. C.; Read
(1) Cheseldine v. Brewer, 1 Har. & M'Hen. 152. Allen v. Hall, 2 Nott &M Cord, 114. Hammich v. Brownson, 5 Day, 290. Pur
inference from circumstances of this nature may be aided by the fact, that the parties eloped for the express purpose of being married, and that they returned as having been married(a) ; of their having joined in fines or recoveries forthe purpose of barring the wife's right of dower(6); of their having corresponded when casually [*]separated, addressing each other as man and wife (c); of their children being described in parish registers of baptisms as the legitimate offspring of the father and mother(d); and of the husband's inpaling the wife's arms with his own on his plate, seals, and carriage(e). Where the marriage took place abroad, evidence of the parties having repaired to a chapel, and of a marriage service having been performed by a person officiating as priest, is also presumptive testimony that the marriage was duly solemnized() (1).
The presumption thus afforded may, after the death of the parties(g), commonly be relied on as conclusive.
v. Passer, Leader v. Barry, 1 and Stra. 1073 ; Lord Braybrooke v. 2 Esp. Rep. 213, 353; per Lord Inskip, 8 Ves. 417. Mansfield, Doug. 174 ; Cowp. 594; (e) Hervey v. Hervey, supru. Gordon v. Gordon, 3 Swans. 400. (f) Rex v. Inbabitants of
(a) Cooke v. Lloyd, Peake on Brampton, 10 East, 282. Evidence, 5th edit. p. iii.
(g) But not before : the evidence (6) Ibid. ; Hervey v. Hervey, 2 of either parent is admissible to Black. 899.
prove that no marriage took place. (c) Hervey v. Hervey, 2 Blac. Goodright v. Moss, Cowp. 591 ; 899.
Rex v. Inhabitants of Bramley, 6 (d) Ibid; also May v. May, 2 T. R. 330.
cell v. Purcell, 4 Hen. & M. 507. Newbury Port v. Boothbay, 9 Mass. 414. Selts v. Foster, 1 Taylor, 121. Whitehead v. Clinch, 2 Hay. 3. Fenton v. Reid, 4 John. 52. Jackson v. Claw, 18 Johns. 346. Forney v. Hallacher, 8 Serg. & R. 159.
(1) Upon a charge of incest committed with a daughter of the ac