[Slaney v. Wade.-1 Mylne & Craig, 338.]

tiffs, claiming to be heir-at-law of the testator Edward Moreton, and, as such, seeking to redeem the mortgage.

Upon the statement in the bill it appeared, that Thomas Moreton and Elizabeth his wife were the common ancestors of the plaintiff, and of the testator Edward Moreton; that the testator was the last descendant of Edward, their eldest son who left issue; that Thomas and Elizabeth Moreton had another son, Robert, from whom were descended Robert Jones Moreton, the last tenant for life, and Robert Moreton his second cousin, a person of unsound mind who died in a lunatic asylum at Bilston, at the close of the year 1802, intestate and without issue, and with whom the line of Robert, the son of Thomas and Elizabeth, terminated; and that the plaintiff was himself descended from a daughter of Thomas and Elizabeth Moreton, whose Christian name was Ann, and who married a person named Robert Slaney. The bill then alleged, that upon the death of Robert Jones Moreton without issue, in the year 1801, the fee-simple of the testator's estates became vested in possession in Robert Moreton of Bilston, from whom, subject to the mortgage, they descended to the plaintiff as the heir at law of Edward and Robert.*

To this bill the defendant pleaded a negative plea, putting in issue the plaintiff's title as heir at law. In the year 1834, after issue had been joined upon the plea, and evidence had been gone into on both sides, the plaintiff died, having devised the property in question to his children, who thereupon filed a supplemental bill, for the purpose of carrying on the suit: and as it was agreed that the question of pedigree would be more satisfactorily tried at law, two issues were directed to try whether Robert Slaney, the father of the plaintiffs in the supplemental suit, was beir at law of the testator Edward Moreton, and also whether he was heir at law of Robert Moreton the lunatic.

The issues were tried at the last summer assizes for the county of Salop, before Mr. Justice Williams and a special jury, and the jury found a verdict for the plaintiffs upon both issues. A motion for a new trial, having been refused by the Vice-Chancellor, the application was now renewed.

The case was very fully argued by Mr. Serjeant Talfourd, Mr. Barber, Mr. Wigram, and Mr. R. V. Richards, in support of the motion; and by the Attorney-General, Mr. Knight, Mr. Temple, Mr. Maule, and Mr. Whateley, for the plaintiffs.

In the course of the argument a great variety of collateral and subordinate points were raised and contested by the counsel on both sides; but the question principally discussed, and the only one to which it is considered necessary to advert here, related to the admissibility of certain evidence which had been objected to at the trial, and which the learned judge who presided, had, as the defendant contended, improperly allowed to go to the jury.

The evidence objected to was of two kinds, and had reference to two distinct parts of the plaintiffs' case.

The descent of the original plaintiff from a daughter of Thomas and Elizabeth Moreton was clearly made out: but in order to establish his claim, it was necessary also to show, first, that the testator was

The mode in which the plaintiff stated his claim, will be more clearly understood upon reference to the pedigree in the next page:

VOL. XIII.-37

[Slaney v. Wade.-1 Mylne & Craig, 338.]

descended from Edward, son of the same Thomas and Elizabeth, and was the last survivior of that branch of the family; and, secondly, that when Robert Jones Moreton died, in the year 1801, Robert Moreton, of Bilston, was the testator's heir at law.

The first point was proposed to be established by secondary evidence of the contents of a mural inscription which had for many years existed in what was called the Moreton chancel, in the parish church of Shiffnal, but which had been washed over and effaced in the year 1810, when the church underwent considerable alterations and repairs, and when the Moreton chancel was enclosed and added to the vestry. It appeared that the Moreton family had for a long period been possessed of a mansion house and other property in the parish of Shiffnal, and that several of its members had resided there, and had been buried in the Moreton chancel, which until the alterations referred to, had formed a recess, opening by an archway into the great chancel. The inscription was not engraved, but was written or painted upon the plaster, in a material resembling lampblack, and it purported to give the history of that branch of the family of Thomas and Elizabeth Moreton, of which the testator Edward Moreton was alleged to be the last surviving descendant.

To prove the contents of this inscription, three paper writings, which were alleged to be copies of it, and which were all substantially the same, were produced. One of them, which was distinguished by the name of Morry's copy, was proved to be in the handwriting of one Morry, a schoolmaster who died in the year 1775, and to have upon it an endorsement in the handwriting of Moreton Aglionby Slaney, an attorney, who was a first cousin of the original plaintiff, and who died in the year 1813. Another, which was called Moreton Aglionby Slaney's copy, was proved to be wholly in the handwriting of that gentleman, and it was endorsed by him, " Monuments in the Moreton chancel of Shiffnal church, copied in February 1796." These two copies came from the possession of the Slaney family. The third, denominated Adams's copy, was taken in the year 1810, shortly before the repairs in the church were commenced, by a person of the name of Adams, assisted by one Aimes, the parish clerk, under the direction of the then vicar of Shiffnal, who was since dead. It had been originally written in pencil, and the letters were afterwards traced over with ink by the vicar. Aimes was examined in the chancery suit; but he died. before the trial of the issues, and his deposition was read at the trial. Adams was called as a witness at the trial, and proved the facts above stated with reference to the time and manner of making the copy.

The inscription in question, according to the copy made by Moreton Aglionby Slaney, was as follows:

"Thomas Moreton, Esq. married Elizabeth, daughter of Edward Moreton, of Engleton, Com. Stafford, Esq., and had issue Richard, Edward, Thomas, and Robert, and six daughters. The said Thomas Moreton, the father, was here buried, the 15th day of July, anno Domini 1634. The said Richard Moreton was here also buried, the 30th day of August 1658; he died without issue. The said Thomas Moreton, the son, was here also buried, the 18th day of August 1662. The said Elizabeth Moreton, the mother, was here also buried, the 29th day of June 1664. The said Edward Moreton married Mary, daughter, of Yates, of London, gentleman; and the said Edward died, and was buried in

[Slaney v. Wade.-1 Mylne & Craig, 338.]

London, in September 1665. He left issue only Thomas, his son. The said Robert was here buried in January 1676. The aforesaid Thomas Moreton, son of Edward, married Mary, daughter and heir of William Price, of Christioneth, in the parish of Ruabon, in the county of Denbigh, gentleman, and dying in December 1702, he lieth buried in the church of Ruabon aforesaid, leaving issue only Thomas, his son, and which last-mentioned Thomas Moreton dying at Christioneth aforesaid, was buried here on the 28th November 1710, in a coffin covered with lead. He left by Anne his wife, daughter of Kenrych Eyton, Esq., issue only two sons, Thomas and Edward. Thomas, the eldest son, died August 3d, 1736, and was buried in Ruabon church."

Besides the general objections to the evidence furnished by the contents of the inscription, and to the manner in which those contents were proved, an objection was taken to the two copies of the inscription called "Morry's copy," and "Moreton Aglionby Slaney's copy," which it was admitted had formerly come out of the custody of repositories of Moreton Aglionby Slaney. These copies, it was said, had been procured or prepared by Moreton Aglionby Slaney at a time when he was contemplating some suit or legal proceedings for the recovery of the very estates in question in the cause, and with a view to assist in such proceedings; or, at all events, long after the question as to who would be entitled to the reversion in fee of the devised estates upon the death of Robert Jones Moreton without issue, had become the subject of considerable inquiry and discussion in the Moreton family; and they were therefore, it was contended, inadmissible, as coming within the principle which excludes declarations, whether oral or written, made after the existence of a lis mota. In support of this objection, was produced a letter, written and sent to the defendant, by Moreton A. Slaney in the month of December 1795, in which that gentleman, who was a practising attorney, stated that on Monday he intended to commence his inquiries after Mr. Moreton's pedigree, and hoped to be fortunate enough to bring something to light, of which the defendant should be immediately advised. This letter was verified by the defendant's affidavit, and was brought forward for the first time upon the present motion.

With respect to the second line of the pedigree, all the earlier links in the chain were sufficiently made out; and the only material point in which the plaintiff had any difficulty, was in proving that Robert Moreton, the lunatic who died at Bilston in the year 1802, was the legitimate son of Slaney Moreton (the second). For this purpose, among other evidence tendered by the plaintiff and admitted by the judge, an indenture was produced, bearing date the 30th of November 1797, which purported to be made between Mary Stanton of Kenilworth, widow, of the one part, and Robert Moreton of Bilston, gentleman, of the other part. This indenture recited, that certain leasehold premises in Birming ham had been assigned to Richard Brandwood of that place, in the year 1740; that Brandwood, by his will, dated in the year 1742, gave the premises to Samuel Walford and Isaac Stanton, their executors, &c., upon trust for his daughter Elizabeth for life; and after her decease, for such child or children as she should leave behind her, in such manner as she should, by any deed attested by three witnesses, or by her last will and testament, appoint; and in default of such appointment, in trust to assign and transfer the premises unto the child or children she should leave

[Slaney v. Wade.-1 Mylne & Craig, 338.]

behind her; and for want of such children, then to the executors or administrators of his said daughter. The indenture went on to recite, that Elizabeth, the daughter of the said Richard Brand wood, afterwards intermarried with one Slaney Moreton of Birmingham, who, some time since, died, leaving the said Elizabeth Moreton, and the said Robert Moreton, (party thereto) the only child of the said marriage, him surviving; that the said Elizabeth Moreton had since died without having executed any appointment of the leasehold premises pursuant to her power, by means whereof the said Robert Moreton was become legally entitled to an assignment of the said leasehold property; that Isaac Stanton survived his co-trustee and died, having appointed his nephew, Isaac Stanton of Kenilworth, his sole executor, who proved his will; and that Isaac Stanton of Kenilworth had since died, leaving Mary Stanton, party thereto, his widow and sole executrix. The indenture then proceeded, in the usual form, to assign the leasehold premises at Birmingham to Robert Moreton, his executors, administrators, and assigns. This deed, which was executed by Mary Stanton, but was not executed by Robert Moreton, was produced from the custody of a person in whom the leasehold property comprised in the deed had become subsequently vested.

For the defendant it was argued, that the Berkeley peerage case, 4 Campb. 401, and especially the language of Mr. Baron Wood, showed the strong disposition of courts in recent times, to contract rather than relax the rule with respect to the admissibility of hearsay evidence in matters of pedigree. Besides, the class of facts and circumstances in the present case was not one with respect to which the rules of heresay evidence should be extended; Johnson v. Lawson, 2 Bingh. 86. There were two points, however, in which the evidence admitted by the learned judge, in support of the plaintiff's case, was particularly open to objection; the one referring to the mural inscription; the other to Mary Stanton's deed. The parol evidence only proved, that there had been some inscription on the walls of the chancel. Morry's copy, whether made before the year 1775 or not, was not made by a member of the family, and could not even be looked at, for the purpose of showing that it was a copy of something in the chancel; for it had not been compared with the original. As to the supposed copy which purported to have been made in the year 1796, Moreton Aglionby Slaney could not be made a witness for the date: it was not to be assumed that his copy was made in 1796, as the result of searches made at the request of another person, for the inscription was open to all the world, and might have. been copied by any person at any time. That copy, if it amounted to a declaration at all, was not a declaration made at a season and time when the party making it was compelled to make it. Moreton Aglionby Slaney was an attorney; and it never could be contended that all the papers left in the hands of an attorney were to be made evidence, because he might happen to be a relation of the family afterwards setting up the claim. Adams, a living witness, might have proved the inscription from recollection, or from a copy made by him at the time. He spoke, however, from a paper which was now in ink, but which, according to his testimony, was formerly in pencil. There was no proof that the ink was correctly substituted for the pencil marks. Adams spoke to the inscription by combining together several different means of knowledge, no one of which was by itself legitimate. The pencil marks ap