cases of public or general interest, because it may have come from persons in pari casu with the party offering it, would be inconsistent with the qualification of the rule which has already been mentioned, namely, that the statement thus admitted must appear to have been made by persons having competent knowledge of the subject.1 Without such knowledge, the testimony is worthless. In matters of public right, all persons are presumed to possess that degree of knowledge, which serves to give some weight to their declarations respecting them, because all have a common interest. But in subjects interesting to a comparatively small portion of the community, as a city or parish, a foundation for admitting evidence of reputation, or the declarations of ancient and deceased persons, must first be laid, by showing that, from their situation, they probably were conversant with the matter of which they were speaking.2

§ 137. The probable want of competent knowledge in the declarant is the reason generally assigned for rejecting evidence of reputation or common fame, in matters of mere private right. "Evidence of reputation, upon general points, is receivable," said Lord Kenyon, "because, all mankind being interested therein, it is natural to suppose that they may be conversant with the subjects, and that they should discourse together about them, having all the same means of information. But how can this apply to private titles, either with regard to particular customs, or private prescriptions? How is it possible for strangers to know any thing of what concerns only private titles ?" The case of prescriptive rights has sometimes been mentioned as an exception; but it is believed that where evidence of reputation has been admitted in such cases, it will be found that the right was one in which many persons were equally interested. The weight of authority, as well as the

1 Supra, §§ 128, 129.

2 Weeks v. Sparke, 1 M. & S. 679, 686, 690; Doe d. Molesworth v. Sleeman, 1 New Pr. Cas. 170; Morewood v. Wood, 14 Fast, 327, note; Crease v. Barrett, 1 Cr. M. & Ros. 929; Duke of Newcastle v. Broxtowe, 4 B. & Ad. 273; Rogers v. Wood, 2 B. & Ad. 245. The Roman law, as stated by Mascardus, agrees with the doctrine in the text. Confines probantur per testes. Verum scias velim, testes in hac materia, qui vicini, et circum ibi habitant, esse magis idoneos quam alios. Si testes non sentiant commodum vel incommodum immedia

tum, possint pro sua communitate deponere. Licet hujusmodi testes sint de universitate, et deponant super confinibus suce universitatis, probant, dummodum præcipuum ipsi commodum non sentiant, licent inferant commodum in universum." Mascard. De Probat. vol. 4, pp. 389, 890, Concl. 395, n. 1, 2, 9, 19.

8 Morewood v. Wood, 14 East, 329, note, per Ld. Kenyon; 1 Stark. Evid. 30, 31; Clothier v. Chapman, 14 East, 331, note; Reed v. Jackson, 1 East, 857; Out ram v. Morewood, 5 T. R. 121, 128; Weeks v. Sparke, 1 M. & S. 679.

reason of the rule, seem alike to forbid the admission of this kind of evidence, except in cases of a public or quasi public nature.1

§ 138. This principle may serve to explain and reconcile what is said in the books respecting the admissibility of reputation, in regard to particular facts. Upon general points, as we have seen, such evidence is receivable, because of the general interest which the community have in them; but particular facts of a private nature, not being notorious, may be misrepresented or misunder stood, and may have been connected with other facts, by which, if known, their effect might be limited or explained. Reputation as to the existence of such particular facts is, therefore, rejected. But, if the particular fact is proved aliunde, evidence of general reputation may be received to qualify and explain it. Thus, in a suit for tithes, where a parochial modus of sixpence per acre was set up, it was conceded that evidence of reputation of the payment of that sum for one piece of land would not be admissible; but it was held, that such evidence would be admissible to the fact that it had always been customary to pay that sum for all the lands in the parish. And where the question on the record was whether a turnpike was within the limits of a certain town, evidence of general reputation was admitted to show that the bounds of the town extended as far as a certain close; but not that formerly there were houses, where none then stood; the latter being a

1 Ellicott v. Pearl, 10 Peters, 412; Richards v. Bassett, 10 B. & C. 657, 662, 663, per Littledale, J.; supra, § 130. The following are cases of a quasi public nature; though they are usually, but, on the foregoing principles, erroneously, cited in favor of the admissibility of evidence of reputation in cases of mere private right. Bp. of Meath v. Ld. Belfield, Bull. N. P. 295, where the question was, who presented the former incumbent of a parish; a fact interesting to all the parishioners; Price v. Littlewood, 3 Campb. 288, where an old entry in the vestry-book, by the church-wardens, showing by what persons certain parts of the church were repaired, in consideration of their occupancy of pews, was admitted, to show title to a pew, in one under whom the plaintiff claimed; - Barnes v. Mawson, 1 M. & S. 77, which was a question of boundary between two large districts of a manor called the Old and New Lands; Anscomb v. Shore, 1 Taunt. 261, where the right of common prescribed for was claimed by all the inhabitants of Hampton; Blackett v.

Lowes, 2 M. & S. 494, 500, where the question was as to the general usage of all the tenants of a manor, the defendant being one, to cut certain woods;- Brett v. Beales, 1 Mood. & Malk. 416, which was a claim of ancient tolls belonging to the Corporation of Cambridge; - White v. Lisle, 5 Madd. Ch. R. 214, 224, 225, where evidence of reputation, in regard to a parochial modus, was held admissi ble, because "a class or district of persons was concerned;" but denied in regard to a farm modus, because none but the occupant of the farm was concerned. In Davies v. Lewis, 2 Chitty, R. 535, the declarations offered in evidence were clearly admissible, as being those of tenants in possession, stating under whom they held. See supra, § 108.

2 Harwood v. Sims, Wightw. 112, more fully reported and explained in Moseley v. Davies, 11 Price, 162, 169-172; Chatfield v. Fryer, 1 Price, 253; Wells v. Jesus College, 7 C. & P. 284; Leathes v. Newith, 4 Price, 355.

particular fact, in which the public had no interest.1 So, where, upon an information against the sheriff of the county of Chester, for not executing a death-warrant, the question was whether the sheriff of the county or the sheriffs of the city were to execute sentence of death, traditionary evidence that the sheriffs of the county had always been exempted from the performance of that duty was rejected, it being a private question between two individuals; the public having an interest only that execution be done, and not in the person by whom it was performed.2 The question of the admissibility of this sort of evidence seems, therefore, to turn upon the nature of the reputed fact, whether it was interesting to one party only, or to many. If it were of a public or general nature, it falls within the exception we are now considering, by which hearsay evidence, under the restrictions already mentioned, is admitted. But if it had no connection with the exercise of any public right, nor the discharge of any public duty, nor with any other matter of general interest, it falls within the general rule, by which hearsay evidence is excluded.3

§ 139. Hitherto we have mentioned oral declarations, as the medium of proving traditionary reputation in matters of public and general interest. The principle, however, upon which these are admitted, applies to documentary and all other kinds of proof denominated hearsay. If the matter in controversy is ancient, and not susceptible of better evidence, any proof in the nature of traditionary declarations is receivable, whether it be oral or written; subject to the qualifications we have stated. Thus, deeds, leases, and other private documents, have been admitted, as declaratory of the public matters recited in them.

1 Ireland v. Powell, Salop. Spr. Ass. 1802, per Chambre, J.; Peake's Evid. 13, 14 (Norris's edit. p. 27). [* It is no ground of objection to the admissibility of such evidence, that matters of private interest are also involved in the public controversy. Reg. v. Bedford, 4 El. & Bl. 535. S. C. 29 Eng. Law and Eq. R. 89.]

2 Rex v. Antrobus, 2 Ad. & Él. 788, 794.

3 White v. Lisle, 4 Madd. Ch. R. 214, 224, 225; Bp. of Meath v. Ld. Belfield, 1 Wils. 215; Bull. N. P. 295; Weeks v. Sparke, 1 M. & S. 679; Withnell v. Gartham, 1 Esp. 322; Doe v. Thomas, 14 East, 323; Phil. & Am. on Evid. 258; 1 Stark. Evid. 84, 35; Outram v. Morewood, 5 T. R. 121, 123; Rex v. Eriswell,

Maps, also, showing the

8 T. R. 709, per Grose, J. Where particular knowledge of a fact is sought to be brought home to a party, evidence of the general reputation and belief of the exist ence of that fact, among his neighbors, is admissible to the jury, as tending to show that he also had knowledge of it, as well as they. Brander v. Ferridy, 16 Louisiana, R. 296.

Curzon v. Lomax, 5 Esp. 60; Brett v. Beales, 1 M. & M. 416; Claxton v. Dare, 10 B. & C. 17; Clarkson v. Woodhouse, 5 T. R. 412, n.; 3 Doug. 189, s. c.; Barnes v. Mawson, 1 M. & S. 77, 78; Coombs v. Coether, 1 M. & M. 398 ; Beebe v. Parker, 5 T. R. 26; Freeman v. Phillips, 4 M. & S. 486; Crease v. Bar rett, 1 Cr. Mees. & Ros. 923; Denn v.

boundaries of towns and parishes, are admissible, if it appear that they have been made by persons having adequate knowledge.1 Verdicts, also, are receivable evidence of reputation, in questions of public or general interest.2 Thus, for example, where a public right of way was in question, the plaintiff was allowed to show a verdict rendered in his own favor, against a defendant in another suit, in which the same right of way was in issue; but Lord Kenyon observed, that such evidence was, perhaps, not entitled to much weight, and certainly was not conclusive. The circumstance, that the verdict was post litem motam, does not affect its admissibility.8

§ 140. It is further to be observed, that reputation is evidence as well against a public right as in its favor. Accordingly, where the question was, whether a landing-place was public or private property, reputation, from the declaration of ancient deceased persons, that it was the private landing-place of the party and his ancestors, was held admissible; the learned judge remarking, that there was no distinction between the evidence of reputation to establish, and to disparage a public right.

Spray, 1 T. R. 466; Bullen v. Michel, 4
Dow, 298; Taylor v. Cook, 8 Price, 650.

11 Phil. Evid. 250, 251; Alcock v. Cooke, 2 Moore & Payne, 625; 5 Bing. 340, s. c.; Noyes v. White, 19 Conn. 250. Upon a question of boundary between two farms, it being proved that the boundary of one of them was identical with that of a hamlet, evidence of reputation, as to the bounds of the hamlet was held admissible. Thomas v. Jenkins, 1 N. & P. 588. But an old map of a parish, produced from the parish chest, and which was made under a private inclosure act, was held inadmissible evidence of boundary, without proof of the inclosure act. Reg. v. Milton, 1 C. & K. 58.

cision upon the right should be had, no final decree ever having been made, is inadmissible as evidence of reputation. Pim v. Currell, 6 M. & W. 234.

3 Reed v. Jackson, 1 East, 355, 357; Bull. N. P. 233; City of London v. Clarke, Carth. 181; Rhodes v. Ainsworth, 1 B. & Ald. 87, 89, per Holroyd, J.; Lancum v. Lovell, 9 Bing. 465, 469; Cort v. Birkbeck, 1 Doug. 218, 222, per Lord Mansfield; Case of the Manchester Mills, 1 Doug. 221, n.; Berry v. Banner, Peake's Cas. 156; Biddulph v. Ather, 2 Wils. 23; Brisco v. Lomax, 3 N. & P. 388; Evans v. Rees, 2 P. & D. 627; 10 Ad. & El. 151,

8. C.

Drinkwater v. Porter, 7 C. & P. 181; 2 But an interlocutory decree for pre- R. v. Sutton, 3 N. & P. 569. serving the status quo, until a final de

CHAPTER VII.

OF ANCIENT POSSESSIONS.

*§ 141. Ancient documents admitted to establish ancient possessions. 142. The document must come from the proper custody.

143. Generally required that acts of use under them be shown.

144. These documents should appear to be parts of the transactions in question. 145. Under same restrictions reputation received to establish public, but not pri vate, boundaries.

146. Perambulations of public boundaries established in a similar manner.]

§ 141. A second exception to the rule, rejecting hearsay evidence, is allowed in cases of ancient possession, and in favor of the admission of ancient documents in support of it. In matters of private right, not affecting any public or general interest, hearsay is generally inadmissible. But the admission of ancient documents, purporting to constitute part of the transactions. themselves, to which, as acts of ownership, or of the exercise of right, the party against whom they are produced is not privy, stands on a different principle. It is true, on the one hand, that the documents in question consist of evidence which is not proved to be part of any res gesta, because the only proof of the transaction consists in the documents themselves; and these may have been fabricated, or, if genuine, may never have been acted upon. And their effect, if admitted in evidence, is to benefit persons connected in interest with the original parties to the documents, and from whose custody they have been produced. But, on the other hand, such documents always accompany and form a part of every legal transfer, of title and possession by act of the parties; and there is, also, some presumption against their fabrication, where they refer to co-existing subjects by which their truth might be examined.1 On this ground, therefore, as well as because such is generally the only attainable evidence of ancient possession, this proof is admitted, under the qualifications which will be stated.

1 1 Phil. Evid. 278; 1 Stark Evid. 66, 67; Clarkson v. Woodhouse, 5 T. R. 418, n., per Ld. Mansfield