This section is from the book "A Compendium Of The Law And Practice Of Vendors And Purchasers Of Real Estate", by J. Henry Dart. Also available from Amazon: A compendium of the law and practice of vendors and purchasers of real estate.
Births, marriages, and deaths; proved by extracts from parochial and General Registers.
(g) 2 Atk. 19; see 12 Ves. 252.
(h) As to recital of death of cestui que vie in renewed Ecclesiastical Lease being evidence, vide supra, 154.
(i) See 1 Moo. & Rob. 389.
(j) Hub. on Ev. 184. (k) Doe v. Barnes, 1 Moo. & Rob. 386.
(J) Sect. 38.
(m) See Att.-Gen. v. Culverwell,
In the absence of evidence of the above description, resort is necessarily had to evidence of a less formal character; such as declarations by members of the family (p), whether such declarations be made expressly for the purpose of evidence, or consist of recitals in deeds or wills, statements in pleadings in Chancery, etc. Such evidence is inadmissible in Court during the lifetime of the parties; but, in conveyancing, statutory declarations form the only available means of preserving the testimony of living witnesses, and, after their deaths, become admissible in Court; and where such declaration by relations cannot be procured, conveyancers act upon similar declarations made by strangers who have been acquainted with the family, although such declarations are inadmissible in Court (q), unless made contrary to the proprietory or pecuniary (r) interest of the declarant: so, statements of pedigree contained in letters, or entries in books, whether religious or otherwise (s), are admissible in Court, if the handwriting be proved to be that of a deceased member of the family (t): so also, old statements of pedigree are held admissible, on account of their public exposure to and recognition by the family, even although they cannot be distinctly attributed to any particular member of it: e. g., monumental inscriptions (n), a mural inscription in the Parish Church (v), coffin plates (w), inscriptions upon the walls of the mansion house (x), pedigrees hung up in the mansion (y), or preserved in the family library (z), entries in a family Bible, or, it would appear, in any other book which had been treated by the family as being in the nature of a family register (a); so, also, a pedigree presented by a third person to a member of the family, and recognised by him, is admissible in proof of the relationship of persons therein described as living, and who might be presumed to be personally known to him, even although the general pedigree be inadmissible by reason of its purporting to be collected from registers, wills, etc, and history (b): but a case for the opinion of counsel seems to be inadmissible, as being generally drawn by the solicitor and not by the party himself, and being often framed with a view to drive the opposite party to a reference, or for other purposes (c).
How otherwise proved, by declarations, etc.; entries in books, etc.; old pedigrees; inscriptions, etc.
R. cited in Hub. on Ev. 769; and Leach v. Leach, V. C. K. B., 8 Jur. 211; but see Parkinson v. Francis, 15 Sim. 160. In Tomlins v. Tomlins, 3 Jur. 167, the V. C. of England decided that the Certificate of a District Registrar is not evidence under the Act: in the later case of Trail v. Kibblewhite, 10 Jur. 107, the same learned Judge is stated to have acted upon such a certificate; but his attention does not seem to have been directed to the distinction between a District Registrar's, and the Registrar General's certificate.
(n) For a list of which see Hub. on Ev. p. 772.
(o) See sects. 1] and 13.
(p) See the remarks of Lord Lang, dale, upon the value to be attributed to traditionary evidence in Pedigree cases, in Johnston v. Todd, 5 Beav. 597.
(q) Johnson v. Lawson, 2 Bing. 86; Crease v. Barrett, 1 Cr. M. & R. 928; Casey v. O'Shaunessy, 7 Jur. 1140, P. C.
(r) See Sussex Peerage case, 11 Cl. & Fin. 85, 112; Lloyd v. Wait, 1 Ph. 61.
(s) See Herbert v. Tuckal, Sir T. Raym. 84; Berkeley Peerage case,
4 Camp. 418; Slane Peerage case,
5 Cl. & Fin. 24; Tracy Peerage, 10 Cl. & Fin. 154.
(t) As to proof of which, see The Fitzwalter Peerage, 10 Cl. & Fin. 193; Tracy Peerage, 10 Cl. & Fin. 154.
(u) See Peerage Cases, cited Hub. on Ev. 688; and see 10 Cl. & Fin. 154.
(v) Slaney v. Wade, 1 Myl. & Cr. 338.
(w) Hub. on Ev. 693.
(x) Camoys Barony, 6 Cl. & Fin. 801.
(y) See 1 Myl. & Cr. 356.
(z) Camoys Barony, 6 Cl. & Fin. 802; and see Davies v. Lowndes, 7 Sco. N. R. 141.
(a) See 2 Russ. & Myl. 162 Hood v. Beauchamp, 8 Sim. 26 Slane Peerage case, 5 Cl. & Fin. 24 Berkeley Peerage case, 4 Camp. 418
(b) Davies v. Lowndes, 7 Sco N. R. 141, 214.
And it seems probable that such evidence is admissible to prove not only the facts of birth, marriage, and death, but also such collateral matters, e. g., the local derivation of the family, as tend to show the identity of the parties (d).
All such evidence is generally inadmissible if made during existing (e), or with a view to anticipated (f) litigation or controversy involving the point in question; it seems, however, that the mere fact of the declarant having a distinct object in view in making his declaration, e.g., the prevention of disputes in a family, will not render the declaration inadmissible, although such object can only be gained by using the declaration in evidence (g): and, in a peerage case cited by Mr. Hubback (h), a pedigree transmitted by a father to his son with a view to induce him to make a claim to the peerage, which, however, never was made, was held admissible as evidence in favour of a party claiming through an elder branch of the family.
Whether the mere existence of that state of facts which may lead to a controversy is a lis mota within the above rule, is doubtful (i): the modern authorities seem to be opposed to such a doctrine; it was held in Slaney v. Wade (J) that a copy of an ancient mural inscription was not rendered inadmissible in evidence by reason of its having been made at the time when it was known that, on the death of a tenant for life of the family estates, questions would possibly arise as to who was entitled under a limitation in a will to the testator's right heirs.
 
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