him to be connected with both the branches of prove the family touching which his declaration is tender-. ed. That he is connected with the family is sufficient: and that connection once proved, his declarations are then let in upon questions touching that family; not declarations of details which would not be evidence (a), but declarations of the nature of pedigree, that is to say, of who was related to whom, by what links the relationship was made out, whether it was a relationship of consanguinity or of affinity only, when the parties died (b), or whether they are actually dead;-every thing, in short, which is, strictly speaking, matter of pedigree, may be proved as matter relating to the condition of the family, by the declarations of deceased persons who, by evidence dehors those declarations, have been previously connected with the family respecting which their declarations are tendered." XVI. "But is there no further restriction touching the subject matter, and touching the manner in which the declaration is made? Clearly there is, and nothing can be more satisfactory, or more consistent with good sense, or with legal principle and decided cases, than the summary of the doctrine given by Lord Eldon, in Whitlocke v. Baker (c). His Lordship there observes, that the admissibility of such evidence is founded upon the presumption that the words given in evidence are the natural effusion of SECTION 1. The words given in evi dence must be the natural effu sion of the par ty, upon an oc casion when his mind stands even, without bias. SECTION 1. the party, upon an occasion when his mind stands even, without bias, to exceed the truth or to fall short of it. I entirely agree that the words must be the natural effusion of the party, and that, generally speaking, he must have no bias upon his mind. But even here there must be a limit. It will be no valid objection to such evidence that the party may have stood, or thought he stood (for that would equally bias,) in pari casu with the party tendering the declaration, and relying upon it for the purpose of his own contention; for, it has been decided, that, although the party deceased, whose declaration you are giving in evidence, was in pari casu, and, if he had been living, might have stood in the shoes of the party who tenders his declaration in evidence, that is not sufficient to exclude it. With the exception of what is said in Drummond's case (a), where the evidence was clearly inadmissible upon other grounds, I can find no warrant for asserting that if you tender the evidence of a man by way of hearsay in a case of pedigree (and of such cases only I am now speaking), that evidence is inadmissible when it comes from a person who stood in pari casu with the party tendering it. Lord Tenterden, in Doe v. Turner (b), states the law to be directly the other way, and he refers to a peerage case in the House of Lords, where the declarations of a deceased husband were given in evidence on the part of his son, although the hus. band was so far in pari casu with the claimant, that, if the son was entitled to the peerage, then, the hus (a) 1 Leach's Cr. Ca. 378. (b) 1 Ry. & Mo. 142. band ought to have been a peer likewise. A stronger instance of similarity of situation than this can hardly be conceived, and the case certainly seems to go a great way. But, without pronouncing an opinion upon that decision, it is perfectly settled, both upon reason and authority, that the rule cannot be so far restricted as to exclude evidence, on account of the bias supposed to operate on the person making the declaration, in consequence of his being in the same situation, touching the matter in contest, with the party relying upon that declaration." XVII. "One restriction, however, clearly must be imposed: the declarations must be ante litem motam. If there be lis mota, or any thing which has precisely the same effect upon a person's mind with litis contestatio (a), that person's declaration ceases to be admissible in evidence. It is no longer what Lord Eldon calls a natural effusion of the mind." To these observations I shall only add, that the admissibility of hearsay evidence does not depend on its being of the first degree. The declarations tendered in evidence may either refer to what the party knew of his own knowledge, or, as is much more fre (a) "Not merely after the in the Berkeley case, as to recommencement of the suit, but jecting evidence of what is said after the dispute has arisen, that post litem motam; and, thinking is the primary meaning of the that the weight due to it was word lis."-Per Lawrence, J., matter rather to be left to a jury, in Berkeley's case, 4 Campb. I think it will be productive of 411. "I cannot help doubting," much inconvenience." Real said the late Mr. Bell, "the opin- Prop. Rep. App. I. 246. ion of the majority of the judges SECTION 1. quently the case, to what he had heard from others to whom he gave credit (a). SECTION 2. Of Evidence of Title by Alienation. XVIII. In order to continue that exclusive right Of the legal evi- of property which was first acquired by personal dence of the translation of property. occupancy, “the municipal law," says Sir William Blackstone, "has established Descents and Alienations: the former to continue the possession in the heirs of the proprietor after his involuntary dereliction of it by his death, the latter to continue it in those persons to whom the proprietor by his own voluntary act should choose to relinquish it in his lifetime. A translation or transfer of property being thus admitted by law, it became necessary that this transfer should be properly evidenced; in order to prevent disputes, either about the fact, as, whether there was any transfer at all; or concerning the persons by whom or to whom it was transferred; or with regard to the subject-matter, as, what the thing transferred consisted of; or, lastly, with relation to the mode and quality of the transfer, as for what (a) Monckton v. AttorneyGeneral, 2 Russ. & M. 165; Athol v. Ashburnham, Bull. N. P. 295; Doe d. Futter v. Randall, 2 Mo. & P. 20. The dictum in Johnson v. Lawson, 2 Bing. 88, that the Court will reject hearsay upon hearsay, or, as the learned judge expressed it, 66 hearsay two deep," is clearly not supported by authority. period of time, or, in other words, for what estate SECTION 2. and interest the conveyance was made. The legal evidences of this translation of property are," he adds, "called the common assurances of the kingdom, whereby every man's estate is assured to him, and all controversies, doubts, and difficulties are either prevented or removed" (a). These common assurances are of four kinds: 1. By matter in pais or deed; 2. By matter of record; 3. By special custom; and 4. By will. They are also appropriately called muniments, à muniendo, quia muniunt et defendunt hæreditatem. Common assur ances of four kinds, 1. By matter in pais; 2. By matter of record; 3. By special custom; and 4. By will. 1. Assurances pais, or deed. by matter in Title deeds be dent to the XIX. 1. With regard to assurances by matter in pais or deed, it is a general rule that they belong to the purchaser as incident to the land. Formerly, indeed, when charters of assurance usually contained a clause chasers, as inciof warranty, there was this distinction; that where land. the vendor warranted the title, those charters or evidences which enabled him to have his warranty paramount, belonged not to the purchaser, who neither relied upon the title, nor undertook the defence of it, but to the vendor: it being reasonable that he (a) Bla. Com. ii. 293, 294. According to Termes de la Ley "a book," said Mr. Justice Bayley, "of great antiquity and accuracy," (5 Barn. & Cr. 229)"charters of lands are writings, deeds, evidences, and instruments, made from one man to another, upon some estate con VOL. I. Р veyed or passed between them |