Loyal and grave. long honored for faithful service of years,
Seeing his face they are silent, and wait with listening ears:
He with his counsel calms their souls, assuages their ire.
So sank Ocean's thunder, as soon as the Ocean's sire
Looked on the deep, and riding at speed through firmament
blue

Guided his horses, and loosened the reins as his chariot flew.
En. I., 142-157 (p. 78).
We hope that Lord Justice Bowen will complete
his work, as he contemplates, and especially that
he will give us the Georgics, the most exquisite of
ancient
poems.

HEARSAY EVIDENCE TO PROVE PEDIGREE.

HE

EARSAY evidence is one of those instances by which it is admissible to prove a pedigree or relationship. It is only admitted as a matter of necessity; for without it there must necessarily, from the nature of the question under investigation, and the lapse of time, be a failure of justice. It has been the boast of commentators on the common law that it does not require the performance of an impossible thing; and this rule is applied in cases requiring proof of pedigree.

Courts take judicial knowledge of matters of his tory; proof of them is not required. Carr v. McCampbell, 61 Ind. 97; Romero v. United States, 1 Wall. 721. Matters relating to a pedigree are historical, but in a limited sense only. They are of private nature, of such as courts do not take judicial notice. And the reason for the exception is obvious, for it would be impracticable to require a court to privately investigate the relationship of every one before it, where it is essential to a determination of rights. This exception however has been broken down in one instance, where "Debrett's Peerage was used by the court; but it was used upon the ground that the personages referred to in it were historical characters, and their lives related to acts of public historical notoriety; and therefore comes within the general rule concerning matters of history. Russell v. Jackson, 22 Wend. 276; affirming 4 Wend. 543.

In speaking of proof of pedigree, Lord Mansfield said, that "from the necessity of the thing the hearsay of the family as to marriage, births and the like is admitted." Berkeley Peerage case, 4 Camp. 415; Cope v. Pearce, 7 Gill, 264; Craufurd v. Blackburn, 17 Md. 49; S. C., 77 Am. Dec. 323.

As it is only in matters of pedigree that such evidence is admissible, it is well to understand what is meant by that term. "The term 'pedigree' embraces not only descent and relationship, but also the facts of birth, marriage and death, and the time when those events happen." Cope v. Pearce, 7 Gill (Md.), 264; Craufurd v. Blackburn, 17 Md. 49; S. C., 77 Am. Dec. 323; Swink v. French, 11 Lea, 78; S. C., 47 Am. Rep. 277. Such declarations are not admissible to prove other facts. In an attempt to prove the freedom of a claimant, such evidence was held inadmissible for that purpose; but not to prove his relationship. Negro John Davis v. Wood, 1 Wheat. 6; see Pegram v. Isabel, 2 Hen. & Munf. 193; Mima Queen v. Helpburn, 7 Cranch, 290; Jones v. Jones, 36 Md. 447.

So if the declaration is that a certain person was an "heir" or a "relative" of the ancestor it is not admissible to prove such an inheritance; the particular relationship must be stated so that the court may know whether the person was an heir or not. Chapman v. Chapman, 2 Coun. 347; S. C., 7 Am. Dec. 277; cited, Brown v. Crandall, 11 Conn. 92.

The declarant need not have named from whom he obtained his information to render his declarations admissible; for knowledge of the facts relating to a

pedigree most generally exist in every family. Jewell v. Jewell, 3 How. 219; see Van Sickle v. Gibson, 40 Mich. 170.

In determing what may or may not be thus proven, the authorities are not always uniform; but we cite a few. Thus the declarations of a woman were held admissible to prove that a certain person is the son of her unmarried sister, although the effect is to show that he is a bastard. Northrop v. Hale, 76 Me. 306; 49 Am. Rep. 615; 31 Alb. L. J. 51.

So a mother's declaration was admitted to show the illegitimacy of her daughter, when it tended to prove that she was never married. Haddock v. Boston, etc., R. Co., 3 Allen, 300; Murray v. Milner, 12 Ch. Div. 845; S. C., 36 Moak, 720.

So where the question was whether the plaintiff's mother was the legitimate child of the ancestor, whose land was in dispute, and the record showed the latter's marriage at a certain date, the ancestor's declaration to the effect that "unless he made a will, Louisa (the plaintiff's mother), could get nothing held competent to go to the jury on the question of her illegitimany. Viall v. Smith, 6 R. I. 417.

was

So the declarations of a deceased member of a family are admissible to disprove the marriage of the parents; Jeweli v. Jewell, 1 How. 219, or to prove it. Chamberlain v. Chamberlain, 71 N. Y. 423. But the declarations of a husband and wife at or subsequent to the birth of the child are inadmissible to prove it illegitimate, in the absence of proof of non-access at the time of the conception. Dennison v. Page, 29 Penn. St. 420; S. C., 72 Am. Dec. 644. Yet where the legitimacy of a child born in wedlock was in issue, previous statements by the mother that the child was a bastard were held admissible as evidence of her conduct, although she would not have been allowed to make such statements in the witness-box. The Aylesford Peerage, 11 App. Cas. 1; S. C., 33 Alb. L. J. 324. But when such husband or wife is called by the opposite party to testify.

The declarations made to a witness by the father of an illegitimate son are not proof of pedigree. United States v. Brown, 3 McArthur, 64, and see Crispin v. Doglini, 2 S. & Tr. 493, where the declarations of a brother were not admitted.

The time of the birth may be so proven even though there be a family register in existence; Swink v. French, 11 Lea, 78; S. C., 47 Am. Rep. 277, for one is no higher evidence than the other. Clement v. Hunt, 1 Jones L. 400, but not the place of the birth. Vaughan v. Phebe, Mart. & Yerg. 5; S. C., 17 Am. Dec. 770; Carter v. Montgomery, 2 Tenn. Ch. 216; see however Tyler v. Flanders, 57 N. H. 618; King v. Erith, 8 East, 539; so may the time of a death and lack of issue; Flowers v. Harolson, 6 Yerg. 494; Saunders v. Fuller. 4 Humph. 516, but not the place of death or a shade of color. Carter v. Montgomery, 2 Tenn. Ch. 216; Shearer v. Clay, 1 Little, 266; Wilmington v. Burlington, 4 Pick. 174.

But the declarations of a deceased person, that he had a brother living at a certain place, were held competent to establish the right of the brother's children to inherit from the declarant. Here the statement of the place served to identify the claimant. Wise v Wynn, 59 Miss. 588; S. C., 42 Am. Rep. 38.

Hearsay information of the death of a person, derived from his immediate family, may be admitted as prima facie evidence of the fact. Dupont v. Davis, 30 Wis. 170; Anderson v. Parker, 6 Cal. 197; Clark v. Owens, 18 N. Y. 434.

According to recent English authorities it may be stated now as the law of England, that not only the age, but the place of both the birth and death may be proven by the declarations of a deceased ancestor. Shields v. Boucher, 1 DeG. & Sm. 40; Haines v. Guthrie

13 Q. B. 818: S. C., 37 Moak, 691; 24 Am. L. Reg. 170; Figg v. Wedderburne, 11 L. J. (Q. B.) 45; S. C., 6 Jur. 218: Plant v. Taylor.

Where a plaintiff claims to be the illegitimate son of a woman who had acted as his god-mother at his baptism, and had said to several strangers of the family that she was his mother, and to other strangers that he was her son and she would provide for him, the Imperial Supreme Court of Cassation (of Austria), held the evidence insufficent on account of the equivocal manner in which the terms " mother" and "son" were used. 24 Alb. L. J. 444.

The age of a deceased member of a family may be proven by hearsay. Watson v. Brewster, 1 Penn. St. 381. But actual residence cannot thus be proven for the purpose of creating a settlement. Londonderry v. Andover, 28 Vt. 416.

The declarant whose statements it is sought to use must have been related to the family by blood or marriage at the time he made them. Being thus related it is supposed he has a better knowledge of such matters than one not related. Thus the declaration of a husband concerning his wife's family, or of a wife concerning her husband's family, is equally admissible with those of either concerning his or her own family. Sitler v. Gehr, 105 Penn. St. 577; S. C., 51 Am. Rep. 207; De Haven v. DeHaven, 77 Ind. 236; Jewell v. Jewell, 1 How. 218; Cuddy v. Brown, 78 Ill. 415; Vowles v. Young, 13 Vesey, 140; Webb v. Richardson, 42 Vt. 465.

In this phase of the matter there is no particular degree of relationship in the family required; but the remoteness of the declarant is a matter to be considered in weighing his testimony. The witness testifying to the declarations need not be related; it is the declarant that must be related. Wilson v. Brownlee, 24 Ark. 586; S. C., 91 Am. Dec. 523. There are however reported cases, in which declarations of servants of the family, intimate friends and even neighbors have been admitted; but those are no longer authorities. B. N. P. 295; Weeks v. Sparke, 1 M. & S. 679; Higham v. Ridgway, 10 East, 120; R. v. Eriswell, 3 T. R. 723; Johnson v. Lawson, 2 Bingh. 86.

Nor is it every relationship that is sufficient. Thus where A. claimed as a child of B. and C., and the question at issue was whether B. and C. had ever married, the declaration of D., the sister of C. (who was B.'s wife), that B. and C. were married, was held inadmissible. "To prove the relationship, it was competent for them to give in evidence the declaration of any deceased member of the family. But the declarations of a person belonging to another family - such person claiming to be connected with that family only by the inter-marriage of a member of each family rests upon a different principle. A declaration from such a source of its marriage which constitutes the affinity of the declarant, is not such evidence aliunde as the law requires." Blackburn v. Crawford, 3 Wall. 175. But the declaration of A. a blood relation of B., to show that he, B., was married to C. may be received without showing any other relationship between A. and C. Monkton v. Attorney-General, 2 Russ & M. 156, see Edwards v. Harvey, Cooper Ch. 38; Doe d. Fuller v. Randall, 2 Moore & P. 24. So the declarations of an illegitimate child are not admissible to show relationship of the members of the family of his reputed father. Doe v. Barton, 2 M. & R. 28. A declaration of a wife that she had heard her first husband say that after his death the estate would go to F. and after F.'s death to his heir, under whom the lessor of the plaintiff claimed, was held admissible to show the relation of F. to the family. Doe v. Randall, 2 M. & P. 20.

Before the declarations of such a relative can be used, his death must be proven. Blackburn v. Craw

ford, 3 Wall. 175; Sitler v. Gehr, 105 Penn. St. 577; S. C., 51 Am. Rep. 207, for the declarations of a person living are not admissible, because it is not the best of evidence. Pendrel v. Pendrel, 2Str. 924; Doe v. Ridgway, 4 B. & A. 53. But the proof of death is not so strict as to require actual proof. Then showing by one of the family that a member of it went abroad many years ago, and was supposed to have died there, and that he, the witness, never heard in the family that he had ever been married, was held to be good evidence of the death of that person without issue. Doe v. Griffin, 15 East, 293; see Doe v. Jesson, 6 id. 80. Of course the fact of death may be proven by any legitimate evidence.

The declarant must be shown to have been a member of the family, within the meaning or previously defined by evidence dehors his own declarations, before the declarations are admissible. Sitler v. Gehr, 105 Penn. St. 577; S. C., 51 Am. Rep. 207; Blackburn v Crawford, 3 Wall. 175; Monkton v. Attorney-General, 2 Russ. & M. 157; Thompson v. Woolf, 8 Ore. 454; Smith v. Tibbitt, L. R., 1 P. D. 354. Thus the statement of a witness that he had received information verbally, and by letter, of the death of a person, it not appearing that he was related to the person, nor how he obtained his information, was held not competent evidence of that fact. Wilson v. Brownlee, 24 Ark. 586; S. C., 91 Am. Dec. 523; Chapman v. Chapman, 2 Conn. 347; S. C., 7 Am. Dec. 277.

Whether or not the relationship of the declarant is proven is a question for the court and not for the jury. Jenkins v. Davis, 10 Q. B. 313; Bartlett v. Smith, 11 M. & W. 483; Craufurd v. Blackburn, 17 Md. 49; S. C., 77 Am. Dec. 323. A few cases may be found in which the declarations of the declarant were used to show his relationship. Doe v. Davis, 59 E. C. L. 314.

Where a claimant of certain property sought to prove his relationship, the fact of his birth, place of birth, his bringing up in the family of his aunt, whose declarations were sought to be introduced, and his name, was held ample evidence of relationship. Northrop v. Hale, 76 Me. 306; S. C., 49 Am. Rep. 615; 31 Alb. L. J. 51; see Viall v. Smith, 6 R. I. 417. A wife may testify to her husband's death and burial by letters from his folks to her. Mason v. Fuller, 45 Vt. 29. Such declarations of relationship are admissible in all kinds of cases where the investigation of a pedigree is necessary. As in ejectment, Flowers v. Harolson, 6 Yerg. 494, upon an issue of devisavit vel non; Ford v. Ford, 7 Humph. 92, or on a trial of incest, but this last is doubtful. Ewell v. State, 6 Yerg. 364; S. C., 27 Am. Dec. 480.

But such evidence does not apply to proof of the facts which constitute a pedigree when they may be proved for other purposes; as where the defense is infancy in an action on contract. Haines v. Guthrie, 13 Q. B. 818; S. C., 37 Moak, 691; 24 Am. L. Reg. 170; Figg v. Wedderburne, 11 L. J. (Q. B.) 45; S. C., 6 Jur. 218; Plant v. Taylor, 7 H. & N. 227. Nor is it admissible to prove the place of settlement of a pauper. Rex v. Eriswell, 3 T. R. 707; Rex v. Erith, 8 East, 539. There is also evidence of a traditionary character, such as general repute in a family, to which a member of the family may testify; and it is no objection that it is hearsay upon hearsay. Doe v. Griffin, 15 East, 29; Doe v. Randall, 2 M. & P. 20; Monkton v. AttorneyGeneral, 2 Russ. & My. 165; Elliott v. Piersoll, 1 Pet. 328; Jackson v. King, 5 Cow. 237; S. C., 15 Am. Dec. 468. In such an instance it is for the judge to decide whether the declarant was related to the family; and when the evidence is admitted, for the jury to settle the fact to which the declarations related. Doe v. Davis, 11 Jur. 607; S. C., 10 Ad. & El. (N. S.) 314; Copser v. Pearce, 7 Gill, 247; Clements v. Hunt, 1 Jones L. 400. Such declarations, if they relate to events long

past, are not entitled to the weight they would have if related to more recent events. Johnson v. Todd, 5 Beavan, 599.

"And such statements of deceased members of the family may be proved not only by showing that they actually made the statements, but by showing that they acted upon them, or assented to them, or did any thing that amounted to showing that they recognized them." Sturla v. Freccia, 5 App. Cas. 623; S. C., 34 Moak, 1; 43 L. T. (N. S.) 209, see Carter v. Montgomery, 2 Tenn. Ch. 216; Eaton v. Tallmadge, 24 Wis. 217. But what the neighbors said or did cannot be proven. De Haven v. DeHaven, 77 Ind. 236.

The acts and declarations of the ancestor, as to his treatment of the person whose pedigree is in dispute, are an entirety, and when particular instances are called forth upon direct examination, the general conduct of such ancestor may be proved on cross-examination; but it is not error, on the cross-examination, to refuse to permit a witness to answer a question which calls for a statement made by the ancestor while testifying as a witness in an action affecting his personal interests, and concerning the pedigree of a person who may have been many years dead. De Haven v. De Haven, 77 Ind. 236.

Besides the oral declarations of deceased relatives there is other hearsay evidence consisting of written statements that are admissible. These statements are treated as the oral declarations with some varying incidents.

The first of these is what is termed a family record, usually such as is kept in a Bible, for it is a practice of the earliest times of the Anglo-Saxons, after their conversion to Christianity, to keep a record of important events in the sacred volume, and a record thus kept of births, marriages and deaths is admissible in evidence in proving pedigree. See Kemble's Saxons; Hunt v. Supreme Council of the Order of Chosen Friends, 31 N. W. Rep. 576; Douglass v. Sanderson, 2❘ Dall. 116; Carskadden v. Poorman, 10 Watts, 82; S. C., 36 Am. Dec. 145; Lewis v. Marshall, 5 Pet. 470; Sitler v. Gehr, 105 Penn. St. 577; S. C., 51 Am. Rep. 203, 207; Berkeley Peerage, 4 Camp. 401; Monkton v. AttorneyGeneral, 2 Russ. & My. 147; Jackson v. Cooley, 8 Johns. 128; Slane Peerage, 5 Cl. & F. 24; Sussex Peerage, 11 id. 85. Such entries are admissible if they come from the proper source, although the handwriting of the person making them is not proved. Hubbard v. Lees, L. R., 1 Ex. 255; Carskadden v. Poorman, 10 Watts, 82; S. C., 36 Am. Dec. 145. The rule is extended to entries in all kinds of books, and a hymn book. Collins v. Grontham, 12 Ind. 440; Berkeleys Peerage, 4 Camp. 401, or to an ancient deed containing recitals of family history, even against persons who are not parties to the deed, and who claim no right under it. Deery v. Cray, 5 Wall. 795; Jackson v. Cooley, 8 Johns. 128; Sleney v. Wade, 7 Sim. 595. So a letter containing statements as to its author's family, sworn to by his wife to have been written by him, in addition to her testimony that the facts atated in the letter had been frequently mentioned by her husband in his life time, was admitted. Elliott v. Peirsol, 1 Pet. 328. And the same is true of letters generally of a like character. Collins v. Grontham, 12 Ind. 440; Crouch v. Eveleth, 15 Mass. 305.

A leaf from a family Bible, containing the names of the children of one deceased, under whom the plaintiff claimed, annexed to a notarial certificate from another State, that was cut from the Bible in the notary's presence, and sworn before him to be the property and family Bible of the deceased, was admitted in evidence. Douglass v. Sanderson, 2 Dall. 116; see Hunt v. Supreme Council of the Order of Chosen Friends, 31 N. W. Rep. 576.

Where however the entry was in the band writing of a brother of the child, who testified that he copied that and other entries respecting the ages of the family, from another book in which original entries were made in his father's handwriting, by his directions, the entry was held inadmissible unless it was shown that the original was lost. Curtis v. Patton, 6 S. & R. 15, see Woodward v. Spiller, 1 Dana, 182; S. C., 25 Am. Dec. 139. Even a memorandum of the father, giving the date of the birth of his child, is admissible. Brune v. Rawlings, 7 East, 290; Collins v. Grontham, 12 Ind. 440; Hunt v. Supreme Council, etc., 31 N. W. Rep. 576. Such a paper was admitted, although it never was made public by the writer and was erroneous in several particulars and professed to be founded chiefly on hearsay. Monkton v. AttorneyGeneral, 2 Russ. & My. 140. So a will may be admitted. Doe v. Ormerod, 1 Mo. & R. 466, but not if made after a controversy arose; Sussex Peerage, 11 Cl. & Fin. 85; S. C., 33 Alb. L. J. 324, or an ex parte affidavit made abroad; Fogler v. Simpson, 2 Dall. 117; S. C., 1 Yeates, 17: but not one made in another State of the Union, Douglass v. Sanderson, 2 Dall. 118, unless made several years before by statutory enactment. Hurst v. Jones, Wall. Jr. 373. Even though a will be found in a cancelled state, it is admissible. Doe v. Earl of Pembroke, 11 East, 504. Such records are not only admissible to prove pedigree, but to disprove the relationship. Zouch v. Waters, 12 Vin. Ab. T., b. 87. pl. 5.

Testimony copied into a bill of exceptions, where the original commission and testimony used in au action of ejectment were lost, was admitted to establish pedigree in a subsequent action for mesne profits. Chirac v. Reinecker, 2 Pet. 613. Likewise a bill in chancery was admitted. Taylor v. Cole, 7 T. R. S.

Entries in a church register of burials are admissible. Lewis v. Marshall, 5 Pet. 470; Hunt v. Supreme Council, etc., 31 N. W. Rep. 576. So a copy of the register of births and deaths of Quakers in England, proved before the lord mayor of London, was admitted in evidence in Pennsylvania in 1759 to prove death. Hyam v. Edwards, 1 Dall. 2. Yet it has been held that such an entry is not evidence of the time of a birth, for the clergyman making it had no authority to make the entry, or to make an entry as to the time of the birth, and possessed no means for making any inquiry as to the facts. Goodright v. Moss, Cowp. 591. In later times an extract from a register of births purporting to be signed and certified by a deputy superintendent registrar, as the person in whose custody the register book was, was held admissible in evidence on its mere production. Queen v. Weaver, L. R., 2 Cr. Cas. Res. 85; S. C., 7 Moak, 323. So monumental inscriptions are admissible if made by a deceased relative, or under his directions. Kidney v. Cockburn, 2 Russ. & My. 167; Collins v. Grantham, 12 Ind. 440.

In England the herald's original visitation books are evidence, since it was his business to make out pedigrees. Steyner v. Burgesses of Droitwich, Skinn. 623; Earl of Thanet's case, 2 Jones, 224.

But a report of an official committee called a Giunta, which sat at Genoa, stating that a certain person was, in 1790, a uative of Quarto, aged about forty-five, was rejected, in an attempt to prove his age and place of residence; although it was proven to be “an authentic public document of the Genoese government, to which as far as the good faith of those who made it is concerned, credit might be justly given." Sturla v. Freccia, 5 App. Cas. 623; S. C., 34 Moak, 1; affirming 12 Ch. Div. 411.

The communication however between the family and the declarant may have been so infrequent, or his knowledge of it may have been so scant as to render

it worthless or inadmissible. Thus the husband of a grandchild cannot state his conclusion from the statements of his wife and her uncles, unless it was held they were so frequent and under such circumstances that he can say what was the uncontradicted repute in the family. Harland v. Eastman, 107 Ill. 535; see Birney v. Hann, 3 A. K. Marsh. 322; S. C., 13 Am. Dec. 167. So mere general, vague and unsubstantial testimony tending to support the assertion is of no avail as against record evidence to the contrary. Denoyer v. Ryan, 24 Fed. Rep. 77. But general reputation in the family that issue was born alive is admissible. Doe v. Killenn, 5 Del. 14.

And interrogatories relating to family relationship, dates of decease and marriages may all be answered on the basis of family tradition instead of direct personal knowledge. Van Sickle v. Gibson, 40 Mich. 170. So one may testify to his own age, although his parents are alive and present. State v. Cain, 9 W. Va. 559; Chever v. Congdon, 34 Mich. 296.

The proof of time and place should be made to establish identity of the person. "Mere identity of names must be accompanied with some circumstances of time or place before we can attach any value to it as affecting rights of property." Sitler v. Gehr, 105 Penn. St. 577; S. C., 51 Am. Rep. 207.

In transactions that are recent, mere identity of name is sufficient, or prima facie evidence. McConeghy v. Kirk, 68 Penn. St. 203.

"It would work great injustice if rights of property, after a great length of time, were allowed to depend upon mere identity of name. A prima facie case thus submitted to a jury might be extremely difficult, if not impossible to disprove. I know of no case in which mere identity of name has been held sufficient after the great lapse of time which exists here." Sitler v. Gehr, supra; see Sewall v. Evans, 4 Ad. & El. (N. S.) 426; Sailor v. Hertzog, 2 Penn. St. 182.

In order to establish identity the events of the life of the remote ancestor may be traced, and this may be done by the declarations of a deceased relative. Thus the events of a son of a remote ancestor were proven by the declarations of a deceased relative, to prove identity, by showing that such son was a military officer in the artillery service, and by such means identifying him. Attorney-General v. Kohler, 9 H. L. Cas. 653.

So producing letters-patent to one, and then tracing descent from one of the same name, was held prima facie evidence that the patentee and ancestor were the same person; and it further lies on the person opposing such a presumption to rebut it by showing another person of corresponding name, age and the like, or in some other way. Jackson v. King, 5 Cow. 237; S. C., 15 Am. Dec. 468.

There are no grades in such hearsay evidence. Of course if the declarant is alive he must be called; but if he is dead his declarations are not to be excluded because the fact of relationship may be proven by a living witness cognizant of the fact. The weight of such evidence is one exclusively for the jury; but in law the testimony of a living witness is of no more value than that of the dead declarant. Craufurd v. Blackburn, 17 Md. 49; S. C., 77 Am. Dec. 323; Saunders v. Fuller, 4 Humph. 516. But the testimony of living members of a family, and the declarations of its deceased members are entitled to more weight than the testimony of persons unconnected with the family. Saunders v. Fuller, supra; Swink v. French, 11 Lea, 78; S. C., 47 Am. Rep. 277; see Dupoyster v. Gagoni (Abst.), 34 Alb. L. J. 516.

In proving heirship, and right to certain property by virtue of such heirship, it often becomes a matter of consideration for the claimant, whether or not he will introduce evidence showing there are no other

heirs. If it be shown that there are collateral remote ancestors whose descendants would be entitled to share in the inheritance, yet it must be further shown that there were such descendants if it is desired to defeat the claimant; for the latter is not bound to do it. There is no presumption for or against a remote person having left children or heirs. It is a fact to be proven by the person claiming it. Slight evidence however is sufficient to show there are some such as an advertisement in a public newspaper for them, especially if it state there is property to which they are entitled by descent. Greaves v. Greenwood, 2 Exch Div. 289; S. C., 20 Moak, 547; see Earl of Roscommon's Claim, 6 Cl. & F. 97; Doe v. Wolley, 8 B. & C. 22: Emmerson v. White, 9 Fost. 482; Richards v. Richards, 15 East, 294.

The declarations of a deceased member of a family are not only admitted because of necessity but for the reason that they were spoken at a time when the declarant had no other motive than to speak the truth. If therefore it appears that the declarant had any other motive than to speak the truth, or if any other possible motive existed, or if any other fact existed that may have impelled its speaking, his declarations are inadmissible. Before such declarations are admissible it must at least presumptively appear that they were made at a time when there was no temptation to misrepresent the facts. Berkeley Peerage, 4 Comp. 416; Banbury Peerage, 2 Wheat. Selw. N. P. 558; S. C., 1 Sim. & Sim. 153. They must be free from the presumption of interest or bias. Chapman v. Chapman, 2 Conn. 347; S. C., 7 Am. Dec. 277.

In such instances the mind mus. stand indifferently. The fact however that it is to the interest of the declarant to keep up his family history, and that he might derive an interest by proof of the fact, does not render them inadmissible. Doe d. Tilman v. Tarver, 1 Ry. & M. 141.

Thus in the case of Doe d. Tilman v. Tarver, such declarations were held admissible which tended to show that the parties making them were entitled to a remainder on failure of the issue of the then possessors of the estate. And in this same case it is added that a widow was allowed to prove, in the House of Lords, the declaratious of her husband, in support of her title. though the husband, if living, would have had the right which the declarations went to establish. Not only must they be free from bias or interest, but they must have been made in point of time ante litem motam, before the controversy arose. David v. Sittig, 1 Martin, (N. S.), 147; S. C., 14 Am. Dec. 179; Vowles v. Young, 13 Ves. 143; Ellicott v. Pearol, 10 Pet. 411; Whitlock v. Baker, 13 Ves. 514; King v. Eswell, 3 T. R. 723; Stein v. Bowman, 13 Pet. 209, Elliott v. Peirsol, 1 id. 328; Strickland v. Poole, 1 Dall. 14; Northrop v. Hale, 76 Me. 306; S. C., 49 Am. Rep. 615; 31 Alb. L. J. 51.

But where a controversy had arisen between parties concerning the validity of a deed against which one of the parties claimed, and no controversy was then expected to arise about the heirship, a letter written, stating the pedigree of the clainants, was not excluded by the rule of law as to declarations made post litem motam. Elliott v. Peirsol, 1 Pet. 328.

It is not enough that they were made before the suit was commenced; that cannot be taken as the criterion. Berkeley Peerage, 4 Comp. 401; Monkton v. Attorney-General, 2 Russ. & My. 161. What is the commencement of the controversy has been defined to be "the arising of that state of facts on which the claim is founded without any thing more." Walker v. Countess of Beauchamp, 6 C. & P. 552. A controversy in a family, though not at that moment the subject of a suit, constitutes sufficiently a lis mota, to

render inadmissible a letter written on that subject by one member of the family to another. Butler v. Mountgarret, 7 H. L. Cas. 633.

Within the meaning of the term, lis mota, as already expressed, is the further idea of a controversy upon the same particular subject in issue. The mere fact that a matter was under discussion at a trial when there was no controversy over it, although there was a controversy over some other branch of the subject, is not sufficient to exclude the declarations then made. In one case it was said that "the distinction had been correctly taken, that where the lis mota was on the very point, the declarations of persons would not be evidence; because you cannot be sure, that in admitting the deposition of witneses, selected and brought forward on a particular side of the question, who embark, to a certain degree, with the feelings and prejudices belonging to that particular side, you are drawing evidence from perfectly unpolluted sources. But where the point in controversy is foreign to that which was before controverted, that never has been a lis mota, and consequently the objection does not apply. Freeman v. Phillips, 4 M. & S. 486; see Shedden v. Patrick, 3 Sw. & Tr. 170.

To

Courts will not inquire whether or not the declarant had any knowledge of the controversy when he made the declarations. His ignorance is immaterial; for they must be excluded, although he at the time of their utterance knew nothing about the controversy. The unbending test is to exclude all declarations made at the time and after the controvery arose. inquire whether a dead person had knowledge at the time he made the declaration of the controversy would raise too many issues, and lead on to confusion and erroneous conclusions. Berkeley Peerage, 4 Comp. 401. Even though an action be commenced fraudulently, with a view thereby to exclude such declarations, they are not, because of that fact, admissible. Shedden v. Patrick, 2 Sw. & Tr. 170; see Jenkins v. Davies, 10 Q. B. (N. S.) 314.

W. W. THORNTON,

ATTORNEY ADMISSION TO PRACTICE REGENTS EXAMINATION.

NEW YORK COURT OF APPEALS, JAN. 24, 1888.

IN THE MATTER OF THE APPLICATION OF FRANCIS G. MOORE, A STUDENT AT LAW.

It is requisite to admission to practice as an attorney, that the candidate shall have passed the regents' examination, prescribed by the rules, within three months from the commencement of his clerkship.

PER CURIAM. The above is one of a number of applications recently made to this court, requesting an order exempting the applicant from the obligations of subdivision 3, of rule No. 4, relating to the admission of attorneys and counselors, requiring proof that applicants for admission as attorneys had, within three months after commencing their clerkships, passed the regents' examination prescribed by the rules.

This rule was adopted by the court in 1882, has been extensively published in the rules and otherwise since, and has, from the time of its adoption, been uniformly enforced in the examination of students throughout the State.

There would seem to be no valid reason why a person called upon to determine the, to him, important question of selecting a vocation for life, should not have made himself familiar with the conditions imposed by law to the privilege of pursuing such avoca

tion. Notwithstanding this fact, it is apparent that many students have heedlessly remained in ignorance of the rule until their periods of study had nearly, or quite expired, and have then come to this court with applications to be exempted from its operation. The object of this rule can be obtained only by its uniform and strict enforcement. It was clearly its intention, by requiring certain intellectual qualifications on the part of students when commencing their course of legal studies, to insure as far as possible, the attainment of the ability required, when finally licensed by the court, to perform the responsible and important duty of advising clients as to their legal rights and duties.

This rule, like all statutes, should be construed so as to promote the object which its framers had in view in adopting it. The rules of courts are made under special statutory authority and when made have the force and effect of statutes. People, ex rel. Mayor, etc., v. Nichols, 18 Hun, 535.

While a rule, which is merely directory in its provisions, may be disregarded or obviated by allowing the act required to be performed to be done nunc pro tunc, this is not so with reference to mandatory provisions. Here the object of the rule was to require, at the commencement of his clerkship, certain specified proof of the student's qualifications. This proof cannot be allowed to be subsequently supplied without defeating its object and practically annulling its provisions. We do not think we are at liberty to do this. When the rule was adopted it became the law for the court as well as to the citizens upon whom it was designed to operate, and we have no more power to disregard its provisions, in determining the rights of a student, than we should have to disregard the force of a statute in determining the rights of individuals thereunder. We conceive that it would be quite unfortunate for any lawyer to commence the practice of the law under the impression that obedience to the requirements of the law could safely be disregarded, and that he could trust to favor or indulgence to be relieved from the punishment which follows such conduct to the general public. It may be unfortunate for the individual that he should be obliged to continue the study of the law for a longer period of time than others who have complied with the provisions of the rules, but it is a misfortune which he has brought upon himself by inexcusable carelessness and a disregard of the most ordinary precaution. The application should be denied. All concur.

NEGLIGENCE-PROXIMATE CAUSE-WHEN QUESTION OF LAW.

SUPREME COURT OF PENNSYLVANIA, NOV. 11, 1887.

SOUTH-SIDE PASSENGER RY. Co. v. TRICH. Plaintiff's wife was jolted off the platform of a car into the street by a sudden whipping up of the car horses. She alighted on her feet. While standing there she was struck and injured by a runaway horse and buggy. In a suit for damages against the car company, there being no dispute as to the facts, defendant's counsel asked the court to charge that if there was any negligence on the part of the driver of the car, it was not the proximate cause of the injury. The court refused, saying that it was a question for the jury under the evidence. Held, error. RROR to Court of Common Pleas No. 2, Allegheny county. Actions by Mr. and Mrs. Trich, against a passenger railway company in the city of Pittsburgh, to recover damages for personal injuries received by Mrs. Trich. The plaintiff in error was operating the

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