manner, a person who has mortgaged lands cannot be an evidence *concerning them; for the equity of redemption still [ *252 ] remains in him. (e) An heir apparent may, however, be a witness concering the title of the land, because his heirship is a mere contingency; but a remainderman cannot, for he hath a present estate in the land; and this rule extends to the remainderman in tail.(ƒ)

Let us now consider the proofs to be adduced by a claimant in ejectment, when his title to the lands can be controverted. [1]

(e) Anon. 11 Mod. 354.

(f) Smith v. Blackham, Salk 283.

[1] In an Ejectment by A. for the use of the heirs of B., a deposition taken in a former Ejectment by B. against the same defendants, for the same land, but in which the plaintiff claimed under a different title, cannot be read in evidence. Cluggage & Al. vs. Lessee of Duncan, 1 Serg. & R. Rep. 111.

In special verdict in Ejectment, or on a writ of right, if the ancestors of a party be stated to have been successively seised and possessed from 1669 to 1730; and no interruption be found, the maxim "that what appears not is to be taken as not having existed," fixes such seisin and possession to have been uninterrupted. Birch vs. Alexander, 1 Wash. Rep. 34, 37.

Where an Act for vesting certain lands of D. C. in C. C., referred to a location and enumeration of the lands of D. C. made, &c. and delivered to the commissioners of forfeitures, and directed them to be appraised by such persons as the commissioners of forfeitures should appoint, and the appraised value to be paid either to the commissioners, or Treasurer, &c.; as against the State, the location and enumeration, thus adopted by the Act, are conclusive that the lands mentioned in them belonged to D. C. Jackson ex dem. Swartwout vs. Cole, 4 Cowen's Rep. 587.

An exemplification of a copy of the certificate of the appraisers filed in the Treasurer's office, having an endorsement by the Treasurer upon it, that the original had been delivered to C. C. deceased, and it being shown that it could not be found among the papers of C. C., was held admissible in evidence, though it was the exemplified copy of a copy. Ibid.

This copy having been furnished to the Treasurer by the commissioners of forfeitures for his information, and as his guide, under the Act for vesting the land in C. C., may be regarded as an original for some purposes, and especially as against the State, the Treasurer having indorsed upon it all he did under it. Ibid.

Where a state officer, e. g. the Treasurer, does an act which would be a violation of his duty, unless certain terms or conditions had first been performed by an individual, as between the State and the individual, such performance shall be deemed, prima facie, to have taken place. Ibid.

A. died seised of lands, leaving three sons, B., C., and D. In Ejectment by the heirs of B., against E., who claimed to hold under D., E, offered in evidence the will of A., dated 1757, by which he devised his real

When the party claims as heir at law, he must prove that the ancestor from whom he derives his title, was the person last seised of the actual freehold and inheritance; that is to say, who was last actually in possession of the lands in fee-simple, (g) and that he, the claimant is his heir. [2]

The seisin of the ancestor may be proved in the first instance, by showing that he was either in the actual possession of the [*253] premises, at the time of his death, or in the receipt of rent

(g) Co. Litt. 11.b. Jenkins, d. Harris, v. Pritchard, 2 Wils 45.

estate to his three sons and their heirs, in equal proportions; but it being objected that the will was void, on account of the insanity of the testator, E., waived the production of the will. and relied on a parol partition of the testator's estate, between the three sons, made in 1786, a previous holding by them as tenants in common, and the separate possession under the parti tion of D., continued from that time: Held, that, though when a tenancy in common is admitted, a parol partition, followed by possession under it, will be valid; yet, when the whole right or title of the party setting up the tenancy in common, and parol partition is denied, a parol partition and possession under it, will not be sufficient to transfer the title; that by waiving the will of A. the title was to be considered in B., as heir at law, and could not be devested by parol. Jackson ex dem. Van Beuren & Al. vs. Vosburgh, 9 Johns. Rep. 270.

Though, after a possession by D. for so long a time a tenancy in common might have been presumed; yet, by offering the will of A., and waiving it, the door was shut against the presumption of any other source of title. Ibid.

Where, in Ejectment, the defendant gave evidence to show that certain lands of D. C. under whom the lessors of the plaintiff claimed title, were forfeited by an act of attainder, Held, that this was prima facie evidence that the title to the premises in question was once in D. C., and that the plaintiff might without further proof of the title in D. C., proceed to deduce a title from him. Jackson ex dem. Swartwout & Ux. vs. Cole, 4 Cowen's Rep. 587.

[2] If a naked power to sell be given to executors, the land in the mean time descends to the heir, and an Ejectment may be brought for it in his name. Brown vs. Dysinger & Al. 1 Rawle's Rep. 408.

On the death of a person, intestate, leaving no widow nor lawful issue, but a father, and brothers, and sisters, the remainder. in fee, vests in the brothers and sisters, under the 6th section of the act of 19th April, 1794, at the same instant that the life estate passes to the father. M'Comb vs. Dillo, 5 Serg. & R. Rep. 304.

Therefore a person who has married one of the sisters, cannot be a witness in favour of the father in an Ejectment for land, that descended from such intestate, though he has released all his interest in possession, remainder or reversion in his own right, or the right of his wife. Ibid.

from the ter-tenant; for possession is presumptive evidence of a seisin in fee, until the contrary be shown. (h) If, however, it is probable that the defendant may be able to rebut this presumption, the lessor should be prepared with other proofs of his ancestor's title.

In order to show the heirship of the claimant, he must prove his des-1 cent from the person last seised, when he claims as lineal heir, or the descent of himself and the person last seised from some common ancestor, or at least from two brothers or sisters, (i) if he claims collaterally; together with the extinction of all those lines of descent which would claim before him. This is done by proving the marriages, births and deaths, necessary to complete his title, and showing the identity of the several parties.

Thus, supposing A. the claimant and B. the person last seised, to be cousins, descended from a common ancestor C., B. being the only child of D., the elder son of C., and A. the only child of E., the younger son of C. In this case A. must prove the marriage of C., the birth and marriage of D., the birth, marriage, and death of E., the birth and death without issue of B., and his own birth ;(j) for it is a maxim of law, that he who asserts the death of another, who was once living, must prove his death, whether the affirmative issue be that he be dead or living.(k)

*The testimony of persons present when the events hap- [ *254] pened, or who knew the parties concerned at those periods, and the productions of extracts from parish registers, are the most satisfactory modes of proving facts of this nature; and when the claimant is the lineal descendant of the person last seised, but little difficulty can arise in procuring the necessary proofs. But when he claims as collateral heir, and it is necessary to trace the relationship between him and the person last seised through many descents to a common ancestor, difficulties often intervene, from the remoteness of the period to which the inquiries must be directed, which, upon the ordinary rules of evidence, would be insuperable. To remedy this evil, the courts, from the necessity of the case, have relaxed those rules in inquiries of this nature; and allow hearsay and reputation (which latter is the hearsay of

(h) B. N. P 103.

(i) Roe, d. Thorne, v. Lord, 2 W. Blk.

(j) 2 Blk. Comm. 208, &c.
(k) Wilson v. Hodges, 2 East, 312.

those, who may be supposed to have known the fact, handed down from one to another) to be admitted as evidence in cases of pedigree.(1)

Thus, declarations of deceased members of the family are [255] admissible evidence to prove relationship; as who was a person's grandfather, or whom he married, or how many children he had, or as to the time of a marriage, or of the birth of a child, and the like, of which it cannot reasonably be presumed, that better evidence is to be produced.(m) So also declarations made by a deceased husband as to the legitimacy of his wife, are evidence, though he was not related to her by blood; for the husband must be supposed to have more intimate knowledge on that subject than a distant relation.(n) In like manner the declarations of parents, as to whether they were ever married, or whether their children were born before or after marriage, is admissible evidence; although their declarations cannot be received to bastardize their children born in wedlock.(0)

But hearsay evidence is not admissible to prove the place of any particular birth; for that is a question of locality only, and does not fall within the principle of the rules applicable to cases of pedigree:(p) nor are the opinions of deceased neighbors, or of the acquaintances of the family, evidence on questions of this nature;(q) nor is [*256] *the hearsay of a relative to be admitted when the relative himself can be produced. (r) It is also necessary, in order to entitle the declarations of a deceased relative to be admitted, that they should be made under circumstances, when the relation may be supposed without an interest, and without a bias; and, therefore, if they are made on a subject in dispute after the commencement of a suit, or after a controversary preparatory to one, they ought not to be received, on account of the probability that they were partially drawn from the deceased, or, perhaps, intended by him to serve one of the contending parties.(s)

Entries in family bibles, or other books, may likewise be received in

(1) Higham v. Ridgway, 10 East, 120.
(m) B. N. P. 294

(n) Vowels v. Young, 13 Ves. Jun. 148.
(0) Goodright, d. Stevens, v. Moss, Cowp.

591.

(p) Rex v. Inhabitants of Erith, 8 East, 542.

(4) Vowels v. Young, 13 Ves. 147, 514.

Rex v. Inhabitants of Eriswell, 3 T. R. 707, 723. Weeks v. Sparke, 1 M. & S. 688. et vide 14 East, 330.

(r) Pendrell v. Pendrell, Stran. 294. Harrison v. Blades, 3 Campb. 457.

(8) The case of the Berkeley Peerage, 4 Campb. 401.

evidence in questions of pedigree. (1) So also recitals in family deeds, monumental inscriptions, engravings on rings, old pedigrees hung up in a family mansion, and the like.(u) And where a will of a deceased ancestor was found, amongst the papers of the person last seised, cancelled, and no evidence was given of its having ever been proved or acted upon, it was nevertheless allowed to be read in evidence as a paper relating to the family; the place in which it was found being considered as amounting to its recognition, by the party last seised, as the declaration of his ancestor concerning the state of his family.(v) And in a late case, proof by one of the family, that a particular person had many years before gone abroad, and was supposed to have died there, and that the witness had not heard in the family of his having married, was held good *prima facie evidence of the person's death without [ *257 ] lawful issue.(w)

The original visitation bocks of heralds, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them on oath, are allowed to be good evidence of pedigrees.(x)

When the lessor claims as heir to copyhold premises, he must, in addition to the foregoing evidence, produce the rolls of the manor,(y) which show a surrender to him, or to those under whom he claims; but it is not necessary that he should prove his own admittance, unless the ejectment be against the lord.(z) If however, the ejectment is against the lord, he must either show that he is admitted, or that he has tendered himself to be admitted and been refused; but it is not necessary to tender himself to be admitted at the lord's court, if the steward, upon application out of court, has refused to admit him (a)

When he claims as customary heir, he must, after proving his pedigree, show that he is heir strictly within the custom, for every custom which departs from the common law is construed strictly; and if the custom

(1) Whitlocke v. Baker, 13 Ves. 514.

(u) Vowels v. Young, 13 Ves 148. (v) Doe, d. Johnson, v. Lord Pembroke, 11 East, 505.

(w) Doe, d. Banning v Griffin, 15 East, 293. et vide 19 Car. II. c. 6. s. 1. Doe, d. George, v. Jesson, 6 East, 80.

(x) 2 S. N. P. 772.

(y) Post, 270.

(z) Rumney v. Eves, 1 Leon, 100. Holdfast. d. Woollams, v. Clapham, 1 E. R. 600. Doe, d. Tarrant, v. Hellier, 3 T. R. 162. Ante, 66

(a) Doe, d. Burrell, v. Bellamy, 2 M. & S. 87. Ante, 67.