Every thing shows that they were taken, not post litem, but post controversiam, motam. So far as now known, they may be voluntary affidavits, concocted either for the purpose of sustaining this pedigree, or for some other purpose interesting to the person who devised them.

It has been argued, that they are at least as admissible as evidence of what those who made them, or any other dead person, said, would be; or as clauses in deeds, inscriptions on rings, entries in books, family pedigrees, and such things, are. But it is not so. These, and all the other things to which affidavits such as these are compared, are received, because when honest, they form parts of real and known proceedings, or occur where opposite interests probably arise,or record natural feelings and events, in a natural way, and on natural occasions. These things owe their credit to their simplicity, to their accordance with the general course of life, to the absence of any preparation, or of any motive to prepare, for a future object. But the prospective manufacture of evidence, in the form of written statements, calculated to establish particular facts, are only rendered the more suspicious by their being made to assume a judicial appearance. Fractures in links of descent are better known, and their consequences are generally better foreseen, by the party interested, at the time they occur, than they can be long afterwards; and to what danger would the law and future families be exposed, if this party were allowed to obtain and store up ex parte affidavits, or other artful written statements, on these subjects, and Courts were obliged to receive them after every possibility of checking them was extinguished? These documents, and much of the other evidence in this case, shew that somebody was uneasy about this pedigree even in 1722, and was trying to correct its defects.

But the Lord Ordinary has not absolutely rejected these affidavits, partly because, after all, there may be some doubt of their competency in a question of pedigree, and partly because their admission makes no difference in his view of the result; and he is unwilling to rest his judgment on a ground which may be removed. For the question, as to their credit and efficacy, remains.

The affidavit of Sara Lyner bears to have been taken before a person called Jonas Percy, described, but not proved, to have been an officer of Chancery in Ireland; it is only subscribed by the alleged deponent's mark. A person called George Stone also subscribes; but it scarcely appears

in what capacity; for Percy merely attests, "I know the above voucher, George Stone;" but his happening to be an acquaintance of this Mr Percy is very unimportant, and he does not himself say that he intended to vouch any thing. It is difficult to imagine any document introduced into a cause with fewer recommendations.

The affidavit of Henry Hovenden is a little better in one respect, and a great deal worse in another. It bears to have been taken before a person of the name of Pocklington, who, (though it be not otherwise proved,) was admitted by the pursuers, at the debate, to have been a Baron of Exchequer in Ireland at the time. It is signed by Hovenden, whose signature bears to be attested by a notary public. All this is respectable enough.

But it is said by the pursuers, that the paper on which the body of the affidavit is written, had previously been covered by some other writing; that it was this original writing which was sworn to before Baron Pocklington; and that that original has been removed chemically, and the existing affidavit inserted in its place above the signature.

The evidence of this charge of fabrication, (which is not directed against the defender personally,) consists of the appearance of the paper, and of the uncontradicted testimony of Dr Fyfe and Dr Gregory, two chemical gentlemen of undoubted character and skill. The Lord Ordinary is very unwilling to hold this painful charge to be legally established; and therefore, he carries the result no farther than this, that the paper is exposed to a degree of suspicion which makes it unsafe to rely on this document.

However, let the genuineness of both affidavits be assumed, -what do they establish?

Lyner was 84 years old when she deponed. She states, that the Rev. John Alexander was the son of John of Antrim ; and this part of her statement rests on rational grounds; because she says, that she was twenty years in the family of the latter, and was present at his marriage, and nursed his wife after the Rev. John was born. But her testimony as to Antrim, being the son of Gartmare, is by no means so satisfactory. All that she says on this subject, is that her mother was for some time in the service of Lord Mongomery, in the county of Down, and while there, (no date given,) Mr John Alexander of Gartmore, a son of the Lord Sterline in Scotland, came to see my Lord, and brought with him his ounely son.' She then says, that this only son was John of

Antrim. Now, the whole of this statement depends upon the facts, that John of Gartmore took a person with him to Ireland, and that this person was his son. But on these points, there is nothing beyond the mere unexplained assertion, or conjecture, of this solitary witness, that he brought with him his only son.' As the alleged son, if he ever existed, was obviously born in Scotland, where this woman does not say that she ever was, it does not appear on what authority he was held to be a son of the person who appeared with him. It rests entirely upon the witness calling him so.

Hovenden's affidavit is chiefly occupied by an account of a translation made by him of an alleged charter; and all that he says about the pedigree is, in the following introductory sentence: That he is intimately acquainted with the Rev. minister John Alexander, grandson, and only male re'presentative of John Alexander of Gartmore, the fourth son of William, first Earl of Stirling, in Scotland; which said John 'Alexander was formerly of Antrim.' This is liable to the same observation with the last document. It merely contains the general assertion of the deponent; who no doubt describes the pedigree agreeably to the wishes of those who made him take the affidavit, but states no circumstance to warrant his opinion.

SECOND, TOMBSTONES have sometimes gone far to decide pedigrees; but probably none was ever founded on in circumstances like the one relied on by the defender.

The stone itself confessedly does not exist. But a copy of the inscription which is said to have been upon it is alleged to have been inserted in a Bible. But the Bible confessedly does not exist. All that is produced is, a piece of paper, which is said to have been a page of the Bible on which a copy had been made.

Now, the only evidence of this page having been a part of the Bible, consists of the signatures of four persons,-one a member of this family-one an attorney-the third, his wife, and the fourth, the clerk of a glass manufacturer. These persons attest, that this leaf, taken out of poor John's Bible, is put up with the other family papers for my son Benjamin. Done this 16th day of December 1766, in the presence of my 'friends, and Mr John Berry, who, at my request, have sub'scribed their names as witnesses.'

The inscription thus copied into the book, and thus cut out of it, is very strong in the defender's favour as strong as if it

had been composed for this very case. But as a piece of evidence it is liable to great objections.

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The alleged entry was confessedly not in the hand-writing of the person to whom the Bible belonged. It bears to have been copied for him by a stranger. Then there is no evidence whatever of the accuracy of the transcription from the tomb. The leaf begins with these words Inscription on my grandfather's tomb at Newton, copied for me by Mr Hum. Lyttleton.' But this Mr Humphrey Lyttleton attests nothing. Neither is there any person who professes to have any knowledge as to the accuracy of this copy; for even Lyttleton's hand-writing is not proved. Moreover, there is no proof, except by the signatures of those four persons, that the writing on the leaf was of the tenor now exhibited, or that it was truly taken from that book.

If all this had been the ordinary course of such domestic records, these signatures might have been satisfactory. But it is no part of the usual uses of a Bible to receive copies of inscriptions. Entries in family Bibles are admitted as evidence, because they record solemn incidents, unsuspiciously, in an usual way. But is any respect due to an extraordinary proceeding like this, when the original book, with all its memoranda, is not exhibited when the detached page, said to have been taken from it, is accompanied by signatures and attestations which shew that those engaged in cutting it out were aware that its separation from the book would deprive it of the credit due an original writing in a book belonging to the family, and where no good reason has been assigned for its excision; for if the object had really been to preserve this inscription with the other family papers, it is difficult to understand why the original and unmutilated book itself was not put up with them.

All this is stated on the assumption, that the words of the proof warrant no inference except that the leaf originally formed part of the Bible, and was cut from it If, however, the fact be supposed to be, that it never formed part of it, but was only a loose bit of paper put within the leaves; it is obvious that this would present a still harder case for the defender to grapple with.

The defender attempts to corroborate the copy, by proving that there really was such a tombstone. But his evidence on this point consists merely of the testimony of Margaret M'Blain, a pauper aged 80. And the substance of what this person says is merely, that her deceased husband, who was a mason,

told her, about forty or forty-four years previous to the time at which she was examined, that when he was new flagging the floor of the Old Church, he had seen the grave of a Lady Mount Alexander, and that the deponent's husband farther stated to her, that there was a tombstone just along side of the tombstone of Lady Mount Alexander, with the name "John Alexander, Esq. Antrim, upon it." That this stone was

broken, and that he built it into one of the walls of the church for its better preservation.' According to this, the stone was visible and safe in the wall in the year 1792. If so, the fact could surely have been better established than by the hearsay evidence of this solitary witness. And, after all, she speaks merely of a stone with the mere name of John Alexander, Esq. of Antrim, upon it, which certainly does not identify it with the John Alexander in question.

But this evidence is disproved. James Dalziel and David Dalziel, stone cutters employed about this very church, say that they never saw such a stone. Mr Cassidy, the clergyman, who has been constantly there for the last twentyseven years, not only never saw it, but "being shewn the inscription alleged to be a copy of that on the tombstone of John Alexander, is quite positive that no grave-stone in the vestibule, or chapel, bore any such inscription.' It is true, that his twenty-seven years only carry us back to the year 1808, and that M'Blain spoke of part of the stone as standing in 1792. But Mr John Turnly and Margaret McCully go back each to the year 1765, when they were born; and though they were in the constant habit of being about this church, they are both positive that no such inscription ever was there. M'Cully being shewn a copy of the alleged inscription on John Alexander's tomb, depones, that she never saw any such tombstone bearing such inscription, and is certain, that if any such existed, she must have seen it. Depones, that she is herself a Montgomery, and curious about the family history; and is certain, that a stone of such size, as to bear so long an inscription relating to any member of the Alexander family, would have attracted her notice. Depones, that she has resided all her life in Newtonards.'

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THIRD, the defender's object in examining Margaret M'Blain and Eleanor Battersby was to shew, that independently of the affidavits, and of the tombstone, the filiation of the two John Alexanders was known and believed upon other grounds. Both of their statements are certainly to this effect; but con