It is not necessary that the possession should be gained by the actual entry of the very person in whom the seisin is alleged, It may be gained by the entry or possession of the guardian, and the guardian need not have been formally assigned. If a stranger enter into the lands of an infant, he will be considered as entering as guardian; and the entry of such person will make a possessio patris, so as to answer the maxim possessio patris facit sororem esse hæredem "the brother's possession makes the sister the heiress." (Vide Watkins on Descents, 64. Co. Litt. 89. Morgan v. Morgan, 1 Atkyn's R. 489. Dormer v. Fortescue, 3 ib. 130. Doe v. Keen, 7 Term R. 386.) So the possession may be gained by the possession of the ancestor's lessee for years of the person in whom the seisin is alleged, or his tenant by elegit; and this, though the heir dies before the day of payment. And it seems that an heir may gain a seisin by making a lease at will, or for years, before his own entry. (Watkins on Descents, 65. Bushley v. Dixon, 3 Barn. & Cres. R. 298. Co. Litt. 15, a.) And a seisin may be gained by the entry of a coparcener, joint-tenant or tenant in common; or by the entry of a person entering in the name of him who is entitled to the land, though without a precedent command or subsequent assent. (Vide Smales v. Dale, 1 Hobart's R. 120. Co. Litt. 245, a, 258, a.)

There can be no mesne seisin of a remainder or reversion, expectant on an estate of freehold, while such a remainder or reversion continues in a regular course of descent. But as it may be sold, devised, or charged by the person entitled to it, the descent of it may be changed by the execution of certain acts of ownership, as, by granting it over for a term of life, or in tail; the execution of such acts of ownership being equivalent to actual seisin of an estate which is capable of being reduced into possession by entry. With respect, therefore, to the proof of a title by descent to a remainder or reversion expectant on an estate of freehold, the claimant must prove himself heir to the person originally seised of the entire fee simple, and who created the particular estate of freehold; or to the person in whom the remainder or reversion first vested by purchase; or in case acts of ownership have been exercised of the nature before alluded to, to the person by whom, or in whose favor acts of ownership over the remainder or reversion in question have been last exerted. (Watkins on Descents, 137, 151.)

After the seisin of the party from whom the plaintiff claims, it

must in the next place be shown either that the claimant is lineally descended from him, or, if he claims collaterally, that they are both of them sprung from the same common ancestor; at least, it must be shown that the claimant and the deceased were descended from brothers or sisters. (Roe v. Lord, 3 W. Black. R. 1099. Jenkins v. Pritchard, 2 Wils. R. 45.) And when he claims as collateral heir, as before intimated, it must be further shown that all the branches interposed between the claimant and the ancestor, which, if in existence, would have a preferable title, are extinct.

In ejectment the lessor of the plaintiff claimed as heir by descent, and showed the death of his elder brothers, but did not prove that they died without issue. The court said: "This must likewise be proved. The plaintiff must remove every possibility of title in another person before he can recover: no presumptive being to be admitted against the person in possession." (Richards v. Richards, 15 East's R. 294, note.) But proof by one of a family that many years before a younger brother of the person last seised had gone abroad, and that the repute of the family was that he had died there, and that the witness had never heard in the family of his having been married, the court of king's bench held prima facie evidence that the party was dead without lawful issue, and nothing appearing to the contrary, was sufficient to entitle the next claimant by descent to recover in ejectment. Lord Ellenborough, C. J., remarked that the evidence was sufficient to call upon the defendant to give prima facie evidence, at least, that the deceased brother of the person last seised was married; and asked, "what other evidence could the lessor be expected to produce that he was not married, than that none of the family had ever heard that he was." (Doe v. Griffin, 15 East's R. 293.) Here it will be observed was negative evidence of the marriage of the person in question, which was not the case in Richards v. Richards, referred to in the note to the principal case.

To establish the fact of the pedigree of the claimant, the register of births, marriages and burials is competent evidence; and wherever an original is of a public nature, and admissible in evidence, an examined copy will be equally admitted. This rule is necessary, as well for the security of the instrument, as for the convenience of the public.

Parish registers and the register of marriages and births kept in the records of a town are evidence of pedigree and heirship; that

is to say, they are evidence of what they purport to record, namely, that certain persons therein described were baptized, married or buried at a particular time or place; but they are not evidence of any other facts inserted in them, as of the time or place of birth of an infant. The general rule is, that when the litigation involves an inquiry into facts which must have transpired, if at all, beyond the reach of memory of the living, statements of historians, recitals in public records, in statutes, and legislative journals, the proceedings in courts of justice, their averments and results, are, from necessity, admissible, but with great caution and due allowance; and historical evidence is restricted to facts of a public and general nature. (Bogardus v. Trinity Church, 4 Sandf. Ch. R. 633. Jackson v. Boneham, 15 Johns. R. 226.) In the case of Jackson v. Boneham, a sworn copy of the records of the town of Stonington, which contained the date of the marriage of the parents of the lessors, and the time of the birth of their children, was admitted. In the opinion delivered, Thompson, C. J., says: "We do not perceive any objection to the admission of a sworn copy of the records as evidence of the family."

An official registry of marriages kept in a church by the clergyman ministering there, or, in case no such registry is kept, a private memorandum, in which the minister, in the ordinary course of his business, has entered, or intended to enter, as it occurred, each marriage celebrated by him, seems to be admissible on a question whether such minister ever did or did not celebrate a particular marriage. (Blackburn v. Crawfords, 3 Wall. U. S. R. 175.)

Entries in family bibles are admitted in cases of pedigree; but such entries are not evidence, if recently made, and the person who made them is in court. They are only received when there is no living witness who can speak to the recorded fact. (Leggett v. Boyd, 3 Wend. R. 379. Fosgate v. Herkimer Manufacturing and Hydraulic Company, 12 Barb. R. 352, 359.) And it has been held, that a notice in a newspaper, published in the state of New York, of the death of a person in Texas, is no evidence of his death. Only a year and a half had expired, however, between the date of the newspaper and the trial on which it was offered as evidence; and the court stated, that there was no difficulty in proving the fact of the death of the individual, if true, by executing a commission and examining the widow. (Fosgate v. Herkimer Manufacturing and Hydraulic Company, 9 Barb. 287, 295.)

For the purpose of raising a presumption or proving a pedigree in an action for the recovery of lands by recitals contained in an ancient instrument, the probate of a will as a will of personal estate, or the record thereof in the proper office, is admissible in evidence. And inscriptions upon tombstones, entries in bibles and other religious books in the handwriting of persons whose writing is unknown, are sometimes resorted to for the purpose of establishing pedigree. (Whitlock v. Baker, 13 Vesey's R. 514. Slaney v. Wade, 7 Sim. R. 595. Hood v. Beauchamp, 8 ib. 26. Russell v. Schuyler, 22 Wend. R. 237.)

The marriage of parties and the birth of their offspring may be proved, like any other fact, by direct proof from witnesses who were present at the nuptials or birth. And in respect to marriage for the purpose of establishing pedigree, the same may be proved by cohabitation as husband and wife, reputation, and the like. The acts and declaration of a man and woman, and other attending circumstances during their cohabitation together, being a part of the res gesta, are proper evidence to show the character of their intercourse, whether it was matrimonial or meritricious. (Harman v. Harman, 16 Ill. R. 85. Henderson v. Cargill, 31 Miss. R. 367. Ford v. Ford, 4 Ala. R. 142. Thorndell v. Morrison, 25 Penn. R. 326. Kenyon v. Ashbridge, 35 ib. 157. In the matter of Taylor, 9 Paige's Ch. R. 611. Rose v. Clark, 8 ib. 574. Kahl v. Kraner, 7 B. Mon. R. 130. Jenkins v. Bisbee, 1 Edwards' Ch. R. 377. Tilts v. Foster, Taylor's R. 121. And vide Evans v. Morgan, 2 Cromp. & Jerv. R. 453.) But, although the parties cohabit together, and, as regards society, hold themselves out as husband and wife, and other facts indicative of wedlock have been sworn to by witnesses, a court or jury may find that the cohabitation was illicit, and that no valid marriage had taken place. (Robertson v. Crawford, 3 Beavan's R. 102. Same Case, 43 Eng. Ch. R. 101. Blackburn v. Crawfords, 3 Wallace's U. S. R. 175.) Still, the general and ordinary presumption of the law is in favor of innocence, in questions of marriage and legitimacy, where children are concerned. Cohabitation is presumed to be lawful until the contrary appears, and moreover, in cases of conflicting presumptions on the subject of marriage and legitimacy, that in favor of innocence must prevail. (Physick's Appeal, 4 Am. Law Reg. N. S. 418, 423, 424. Sensor v. Bower, 1 Penn. R. 450. Hill v. Hill's Admrs., 32 ib. 511. Vide also Starr v. Peck, 1 Hill's R. 270)

Where there is no proof of actual marriage, it seems that cohabitation and reputation are necessary to ground a presumption of marriage; proof of cohabitation alone is not sufficient. Reputation must also be proved, which consists of the speech of the people who have an opportunity to know the parties, to be proved by them. It seems, further, by the same case, that marriage is in law a civil contract, not requiring any form of solemnization before officers of church or state, but it must be evidenced by words in the present tense, uttered for the purpose of establishing the relation of husband and wife, and should be proved by the signature of the parties, or by witnesses present when it was made. (Commonwealth v. Stromp, 7 Am. Law Reg. N. S. 61. Same Case, 53 Penn. R. 132.) It has been well remarked by an eminent judge, that "the cohabitation of persons as husband and wife, without marriage, is too frequent to need comment; and confessions of marriage in all such cases, whether a marriage in fact has taken place or not, may be expected to justify the conduct and screen the offenders from censure and punishment. Unlike confessions in ordinary cases, made against one's interest, these are not unfrequently prompted from the most selfish motives." (The State v. Roswell, 6 Conn. R. 446, 451.) This only proves that this character of evidence should be received with great caution and care.

But it is well settled that, upon all questions of genealogy, and generally upon questions relating to births, marriages and deaths, in the absence of higher evidence, resort may be had to what is commonly said and understood to be true among the immediate relations and family connections of the party to whom the inquiry relates. (Clark v. Owens, 18 N. Y. R. 434.) And the declarations of deceased members of the family, whether relatives or connections by marriage, are admissible evidence to prove relationship, deaths or marriages, but the declarations of servants or intimate acquaintances are not received for this purpose. (Johnson v. Lawson, 2 Bing. R. 90.) Declarations upon matters of pedigree are admitted, though made by persons in pari jure with the party using them; but they may be objected to if they were not made ante litem motam. Said Le Blanc, J.: "On inquiring into the truth of facts which happened a long time ago, the courts have varied from the strict rules of evidence applicable to facts of the same description happening in modern times, because of the difficulty or impossibility by lapse of