William Fitzharding Berkeley, claiming as of Right to Be Earl of Berkeley, &
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 1811 |
| Date | 13 May 1811 |
| Court | High Court |
English Reports Citation: 171 E.R. 128
KING'S BENCH AND COMMON PLEAS
128 WILLIAM ITTZHABDING BERKELEY 4 CAMP. 402. house op lords. committee of privileges. On the Petition of william fitzharding berkeley, claiming as of right to be earl of berkeley, &c. Monday, May 13, 1811. (1. Upon the trial of an ejectment respecting Black Acre, between A. and B. in which it was necessary for A to prove that he was the legitimate son of J. S.-A. after proving by other evidence that J S. was his reputed father, offered to give in evidence a deposition made by J. S. m a cause in Chancery, instituted by A. against C. D. in order to perpetuate testimony to the alleged fact disputed by C. IX that he was the legitimate son of J. S., m which character he claimed an estate in remainder in White Acre, which was also claimed in remainder by C. D.-B the defendant m the ejectment, did not claim Black Acre under either A. or C D the plaintiff and defendant in the Chancery suit. Held by the Judges (Graham B dwsentwnt), that according to law, the deposition of J. S. could not be received upon the trial of such ejectment against B. as evidence of declarations of J S the alleged father, in matter of pedigree 2. Upon the trial of an ejectment respecting Long Acre, between E. and F. in which it was necessary for E. to prove that he was the legitimate son of W., the said W. being at that time dead, E after proving by other evidence that W. was his reputed father, offered to give in evidence an entry in a Bible, in which Bible W. had made such entry in his own hand-writing that E. was his eldest son, born in lawful wedlock from G. the wife of W., on the 1st day of May 1778, and signed by W. himself. Held by the Judges unanimously that such entry m such Bible (or in any other book, or on any other piece of paper) could be received to prove that E. is the legitimate son of W as evidence of the declaration of W in matter of pedigree 3 Upon the trial of an ejectment respecting Little Acre between N. and P. in which it was necessary for N. to prove that he was the legitimate son of T., the said T. being at that time dead ; N. after proving by other evidence that T. was his reputed father, offered to give in evidence an entry in a Bible, in which Bible T had made such entry in his own hand-writing, that N. was his eldest son, born in lawful wedlock from J. the wife of T., on the 1st day of May 1778, and signed by T. himself: And it was proved in evidence on the said trial that the said T had declared " that he T. had made such entry for the express purpose of establishing the legitimacy and the time of the birth, of his eldest son N , in case the same should be called in question, in any case or in any cause whatsoever, by any person, after the death of him the said T." Held by the Judges unanimously that such entry m such Bible (or in any other book, or on any other piece of paper) could be received to prove that N. is the legitimate son of T., as evidence of the declaration of T. in matter of pedigree (but with strong circumstances of suspicion on account of its particularity).) Frederick Augustus Berkeley, the fifth Earl of Berkeley, died 8th August 1810 [402J On the 27th of October in the same year, the claimant presented a petition to his Majesty, praying that a writ might be issued to summon him to Parliament by the title of Earl of Berkeley, as eldest son of the late Earl, by Mary, Countess of Berkeley. This petition, on the recommendation of Sir Vicary Gibba, then his Majesty's Attorney-General, was referred by the Prince Regent to the House of Lords. To explain the questions submitted in this case to the Judges, it is only necessary to state that Wilbam Fitzhardmg Berkeley, the claimant, was born 26th December 1786, and that he alleged that his father and mother were married in the parish of Berkeley, in the county of Gloucester, on the 30th of March 1785. They were likewke married in the parish of St. Mary Lambeth, on the 16th of May 1796, till which time Lady Berkeley did not appear as his Lordship's wife , nor was the claimant till some time after treated as their legitimate son. They had several children after the second marriage The only question before the Lords respected the legitimacy of the claimant, and that depended entirely upon the reality of the first marriage alleged to h.ave taken place between bis parents. In the year 1799 a bill was filed in the Court of Chancery by the present claimant and three of his brothers, born before the second marriage, to perpetuate the testimony of their legitimacy, on the ground that they were entitled, in remainder 4 CAMP. 403. WILLIAM FITZHARDING BERKELEY 129 in tail after an estate for life, to certain lands then held by their father ,-the children born after the second marriage and others entitled in remainder after them being made the defendants (a) The Earl of Berkeley was one of the witnesses examined on interrogatories for the plaintiffs, and in his deposition he swore positively to the reality of the first marriage and the plaintiff's legitimacy The counsel for the claimant, after a large body of other evidence adduced before the Committee of Privileges, now proposed to read this deposition as a declaration by the late Earl of Berkeley in matter of pedigree respecting the legitimacy of his son. [403] The admissibihty of the deposition was opposed by Sir Vicary Gibbs, the Attorney-General, on the part of the Crown, and Sir Thomas Plomer, Sohcitor-General,. appointed to watch the interests of the eldest son, born after the marriage in the parish of Lambeth Thereupon the Judges were summoned, and the following questions were submitted by the House of Lords to their consideration 1 " Upon the trial of an ejectment respecting Black Acre, between A and B in which it was necessary for A to prove that he was the legitimate sou of J S -A after proving by other evidence that J S was his reputed father, offered to give in evidence a deposition made by J. S. in a cause in Chancery, instituted by A against C D., id order to perpetuate testimony to the alleged fact disputed by C D , that he was the legitimate son of J S , in which character he claimed an estate in remainder in White Acre, which was also claimed in remainder by C D -B the defendant in the ejectment did not claim Black Acre under either A or C. D , the plaintiff and defendant in the Chancery suit '' According to law, could the deposition of J S be received upon the trial of such ejectment, against B. as evidence of declarations of J. S the alleged father in matters of pedigree ? 2. " Upon the trial of an ejectment respecting Long Acre, between E. and F , in which it was necessary for E to prove that he was the legitimate son of W , the aaid W being at that time dead,-E. after proving by other evidence that W. was his reputed father, offered to give in evidence an entry in a Bible, m which Bible W. had made such entry in his own hand-writing, that E was his eldest son born in lawful wedlock from G the wife of W , on the 1st day of May 1778, and signed by W. himself. " Could such entry in such Bible be received to prove that E. is the legitimate son of W , as evidence of the declaration of W in the matter of pedigree l [404] 3. " Upon the trial of an ejectment respecting Little Acre, between N and P , in which it was necessary for N. to prove that he was the legitimate son af T , the said T. being at that time dead , N. after proving by other evidence that T was his reputed father, offered to give m evidence an entry m a Bible, in which Bible T. had made such entry in his own hand-writing that N was his eldest son, born in lawful wedlock from J the wife of T , on the 1st day of May 1778 and signed by T himself: And it was proved in evidence on the said trial that the said T had ' declared ' that he T had made such entry for the express purpose of establishing the legitimacy, and the time of the birth, of his eldest son N , in case the same should be called in question, in any case or in any cause whatsoever, by any person, after the death of him the said T ' " Could such entry in such Bible be received, to prove that N is the legitimate son of T., as evidence of the declaration of T. in matter of pedigree ? " Upon the first question, the Judges not being unanimous, they delivered their opinions seriatim, Bayley, J.-The opinion which I have formed is that the deposition is not admissible evidence. Your Lordships observe that the party against whom the evidence is offered was a stranger to the suit, and the deposition is offered m evidence, not in its character of deposition, but as a declaration 1 lay out of consideration the circumstance stated m the question of its being the deposition of a reputed father ; because I believe all the Judges are agreed that no objection arises to its admissibihty on that ground. The grounds on which it appears to me that the deposition is not receivable in evidence as the declaration of the witness are these : because it was (a) See Lord Dursley v. Fifzhardinge, 6 Ves. 251. N. P. n.^5 130 WILLIAM FITZHARDING BERKELEY 4 CAMP. 406. made post htem motam, after a controversy raised upon this very point because J. S. the witness who made it was brought forward to speak to the point by a person who had a direct interest in establishing it because the deposition is upon interrogatories formally put to J S by an interested party . and because B against whom it is proposed that the de-[405]-positions should be read, had no opportunity of putting any questions on his own behalf [n general when evidence is given viva voce in courts of justice, the witnesses speak to what they know, and each party has in turn an opportunity of putting such questions an he may think fit for the purpose of drawing forth the whole truth, and of throwing every light upon the subject which the witness is capable of giving. Whoever has attended to the...
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