This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(g) Sug. 14th ed. 418.
(h) Browne v. Warnoch, (1888) 7 Ir. L. R. 3.
(i) Lyddall v. Weston, (1739) 2 Atk. 19; see Hillary v. Waller, (1806) 12 Ves. at p. 252.
(k) See and consider Trevor v. T., (1833) 2 M. & K. 675; Lushing-ton v. Boldero, (1852) 15 Beav. at p. 2; 21 L. J. Ch. 49.
(m) Taylor, 11th ed. p. 1090.
(n) Birt v. Barlow, (1779) 1 Doug. 171.
(o) Sayer v. Glossop, (1848) 2 Ex. 409.
(p) See Doe v. Barnes, (1833) 1 Mo. & R. 389.
(q) Cf. Ryan v. Ring, (1889) 25 L. R. Ir. 184. See Re Turner, (1885) 29 Ch. D. 985; 53 L. T. 528. (r) Hub. on Ev. 184.
(s) Doe v. Barnes, sup. See the Church Building Act, 1851, s. 25, remedying errors in the solemnisation in certain cases. As to the identification of extracts from the parochial registers, see the Evidence Act, 1851, ss. 14, 17; Re Porter's Trust, (1856) 2 Jur. N. S. 349; 25 L. J. Ch. 688; Re Neddy Hall's Est., (1853) 17 Jur. 29; 22 L. J. Ch. 177; incorrectly reported, (1852) 2 D. M. & G. 748.
(t) In the Est. of Goodrich, 1904, P. 138; 73 L. J. P. 33.
(u) Re Valter's Trust, (1887) W. N. 128. In Tomlins v. T., (1839) 3 Jur. 167, Shadwell, V.-c, decided, that the certificate of a district registrar is not evidence under the Act; in Traill v. Kibblewhite, (1846) 10 Jur. 107, the same learned Judge is stated to have acted upon such a certificate; but his attention doe3 not seem to have been directed to the distinction between a District Registrar's, and the Registrar General's certificate.
Extracts from non-parochial registers have long been received by conveyancers as evidence; and by the Non-parochial Registers Act, 1840, as amended by the Births and Deaths Registration Act, 1858, the non-parochial registers deposited under the provisions of those Acts (x), and certified extracts therefrom (y), are made evidence in the Courts. Foreign registers of baptisms and marriages or certified extracts from them are also evidence in the Courts of this country as to those matters which are properly and regularly recorded in them when it sufficiently appears that they have been kept under the sanction of public authority, and are recognised by the tribunals of the country where they are kept as authentic records (z).
In the absence of evidence of the above description, resort is necessarily had to evidence of a less formal character (a), such as declarations by members of the family (b), whether such declarations be made expressly for the purpose of evidence, or consist of recitals in deeds or wills, or statements in pleadings in Court. The declaration of a wife as to the state of her husband's family is equally admissible with that of a husband as to the state of his wife's family (c); but before such a declaration can be admitted in evidence, the relationship of the declarant de jure by blood or marriage must be established by testimony independent of the declaration itself (d). 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, subject to the rules relating to declarations of deceased persons, admissible in Court; and where such declarations by relations cannot be procured, conveyancers act upon similar declarations made by strangers who have been acquainted with the family, though such declarations are inadmissible in Court (e), unless made contrary to the proprietary or pecuniary (f) interest of the declarant.
How otherwise proved - by declarations, etc.; family history to be proved by blood relation;
(x) Hub. on Ev. p. 772; Taylor, 11th ed. p. 1083.
(y) See ss. 11 and 13 of the earlier Act, which are by s. 3 of the later Act made applicable to the records deposited under it.
(z) Lyell v. Kennedy, (1889) 14 A. C. 437, 448; 59 L. J. Q. B. 268. where it was held on the ground stated in the text that Scotch parish registers or certified copies therefrom were receivable as evidence in an English Court; and see Perth Earldom, (1848) 2 H. L. C. 865; and the Evidence Act, 1851, s. 7. As to registers in Scotland and Ireland, and of British subjects abroad, see Taylor, p. 1083.
(a) See as to the evidence of a Jewish marriage in a foreign country, Rex v. Hammer, 1923, 2 K. B. 786.
(b) See the remarks of Lord Langdale upon the little value to be attributed to traditionary evidence in pedigree cases, in Johnston v. Todd, (1843) 5 Beav. 597; and see Crouch v. Hooper, (1852) 16 Beav. 182; 1 W. E. 10; Webb v. Haycock, (1854) 19 Beav. 342; as to proceedings in Court being evidence in pedigree cases, see Lyell v. Kennedy, sup. and p. 315, sup., and cases there cited.
(c) Shrewsbury Peerage case, (1858) 7 H. L. C. 1; Lyell v. Kennedy, sup.
In Re Stollery, Weir v. Treasury Solicitor (g), the facts were these. S., a widow, died in 1921, intestate, without issue and without any then known relatives, and administration to her estate was granted to the Treasury solicitor. In 1924, R. took out a summons for administration claiming to be next of kin, and an order directing the usual inquiries was made. In the course of the inquiries the question whether S.'s parents were married at the time of her death was raised. No record of the marriage could be found, but R. claimed to put in as evidence of such marriage a certificate of the birth of S., and certificates of the births of a brother and a sister of S. Each certificate gave the name and description of the parents (treating them as married) and gave also S.'s maiden name. It was held that these certificates were admissible in evidence upon the question of the marriage of S.'s parents; but that they were not alone sufficient, as they did not identify the persons mentioned therein. It would be for the Master, at the inquiry, to determine whether the certificates, taken in conjunction with the other evidence adduced, were sufficient to establish the fact of marriage.