Pedigree.

45 Bridger v. Huett, 2 F. & F. 35; of marriage, Evans v. Morgan, 2 C. & J. 453; Shedden v. Patrick, 2 Sw. & Tr. 170; 30 L. J., P. M. & A. 217; Campbell v. Campbell, L. R., 1 H. L. Sc. 201, per Ld. Cranworth; but if it appears on cross-examination or otherwise that the witness is speaking of evidence given him by some individual, even as to general reputation, the evidence ceases to be admissible. Shedden v. Patrick, supra.

Hearsay, of what persons, admissible in questions of pedigree.] The hearsay must be from persons having such a connection by blood or marriage with the party to whom it relates, that it is natural and likely, from their domestic habits and connections, that they are speaking the truth, and are not mistaken. Per Lord Eldon, C., Whitelocke v. Baker, 13 Ves. 514. Declarations by a deceased person as to her own legitimacy are evidence. Procur.-Gen. v. Williams, 31 L. J., P. M. & A. 157. So by a deceased husband as to the legitimacy of his wife, and as to the pedigree of her family, are evidence. Voules v. Young, 13 Ves. 148; Doe d. Northey v. Harvey, Ry. & M. 297. So the declaration of a wife as to her husband's family. Shrewsbury Peerage, 7 H. L. C. 1. But not the declarations of her father. S. C. Nor the declarations of illegitimate relations. Doe d. Bamford v. Barton, 2 M. & Rob. 28; Crispin v. Doglioni, 3 Sw. & Tr. 44; 32 L. J., P. M. & A. 109. The declarations of servants and intimate acquaintance are not admissible. Johnson v. Lawson, 2 Bing. 86; S. C., 9 B. Moore, 183. The declarations of a deceased person, as to the fact of his own marriage, are evidence. B. N. P. 112; R. v. Bramley, 6 T. R. 330. The declarations of a deceased mother as to the non-access of her husband, are not evidence; on grounds of policy. R. v. Luffe, 8 East, 193; Goodright d. Stevens v. Moss, Cowp. 594. But where the non-access is admitted or established, her declarations may be proof of paternity. Legge v. Edmonds, 25 L. J., Ch. 125. See further post, Action for recovery of land by heir-at-law; Defence; Proof of illegitimacy. Before any such declaration can be admitted in evidence the relationship of the declarant by blood or marriage must be established by some proof independent of the declaration itself; it is the duty of the judge to decide whether this relationship is proved; slight evidence will, however, be sufficient; Plant v. Taylor, 7 H. & N. 237; 31 L. J., Ex. 289; Smith v. Tebbitt, L. R., 1 P. & M. 354.

Old depositions in a suit, purporting on the face of them to be made by relations, but not proved aliunde to have been so made, were not held evidence in the Banbury Peerage case, 2 Selw. N. P. 2nd ed. 773; Accord. Davies v. Morgan, 1 C. & J. 591; but see Freeman v. Phillipps, 4 M. & S. 486, cited post, p. 49, where the antiquity of the depositions was held to dispense with such extrinsic proof. Although it is necessary to give evidence dehors to connect the persons making them with the family, yet where the question is whether A. be related to C., the declarations of B., who is proved to have been related to A., are evidence to prove C. related to A., without evidence dehors to show B. related to C. Monkton v. Att.-Gen., 2 Russ. & Myl. 156. When the judge has decided that the evidence is sufficient, he may receive the declaration, although the fact of relationship is the very point in issue in the cause; Doe d. Jenkins v. Davies, 10 Q. B. 314; and he is not bound to hear evidence on the voir dire to rebut the evidence of relationship. Hitchins v. Eardley, L. R., 2 P. & M. 248. It is no objection that the person who made the declaration stood in pari casu with the person tendering it in evidence; Monkton v. Att.-Gen., 2 Russ. & Myl. 159. In a claim of peerage a widow was admitted to prove declarations of her deceased husband in support of her son's title, though the husband, if living, would have had the right which the declarations went to establish. Cited by Abbott, C. J., in Doe d. Tilman v. Tarver, Ry. & M. 141. So declarations

are admissible, though they tend to show the declarant's own title at the time, provided there was then no lis mota. S. C.; Doe d. Jenkins v. Davies, ante, p. 45; but in Plant v. Taylor, ante, p. 45, it was doubted whether a declaration by a person obviously in his own interest ought to be received. A deposition of a deceased relative taken on a commission of inquiry as to the next of kin of a lunatic, is admissible to establish the title of the lunatic's heir at law. Gee v. Ward, 7 E. & B. 509.

The relative, whose declarations are offered, must be proved to be dead, before they can be adır itted in evidence. Butler v. Mountgarret, Vt., 7 H. L. C. 633. Unless, indeed, from the circumstances, his death may be presumed, vide ante, p. 40.

Hearsay in questions of pedigree post litem motam.] If the declarations were made after a controversy has arisen with regard to the point in question, they are inadmissible. Berkeley Peerage, 4 Camp. 401. It is not necessary, in order to exclude the evidence, to show that the controversy was known to the person making the declaration. Ib. 417; Reilly v. Fitzgerald, 6 Ir. Eq. Rep. 348; Shedden v. Patrick, 2 Sw. & Tr. 170; 30 L. J., P. M. & A. 217. The declaration may be admissible though made from interested motives, and in order to prevent future controversy. Berkeley Peerage, 4 Camp. 418. The term controversy must not be understood as necessarily signifying an existing suit. Monkton v. Att.-Gen., 2 Russ. & Myl. 161; Butler v. Mountgarret, Vt., supra; Frederick v. Att.-Gen., L. R., 3 P. & M. 270. Nor a suit for the same purpose as the suit or proceeding in which the evidence is offered. Berkeley Peerage, supra; Sussex Peerage, 11 Cl. & Fin. 85; see Shrewsbury Peerage, 7 H. L. C. 1; and Davies v. Lowndes, 6 M. & Gr. 471, Ex. Ch.

Hearsay admissible to prove public rights.] Another exception to the rule which excludes hearsay evidence is where the question relates to matters of public or general interest. The term "interest " here means pecuniary interest, or some interest by which the legal rights or liabilities of a class of the community are affected; and the grounds of admissibility are, because the origin of such rights is generally ancient and obscure, and consequently incapable of direct proof;-because in local matters all persons living in the neighbourhood, and interested in them, are likely to be conversant with them ;-because common rights are naturally the subject of common and public conversation, in the course of which, statements are made, which uncontradicted, are likely to be true; and thus a trustworthy reputation may arise from the concurrence of many unconnected with each other, and interested in investigating the truth. Per Ld. Campbell, in R. v. Bedfordshire, 4 E. & B. 541-2; 24 L. J., Q. B. 81. It will be seen from the following illustrations of the rule that all the grounds above enumerated need not exist in order to justify the reception of hearsay; and that, in some instances, other grounds may be adduced in favour of it.

Common reputation is admissible to prove not only public or general rights (Berkeley Peerage, 4 Camp. 415; Weeks v. Sparke, 1 M. & S. 686; Morewood v. Wood, 14 East, 329); but also rights affecting a number of persons, and therefore in the nature of public rights, as a manorial custom; Denn d. Goodwin v. Spray, 1 T. R. 466; or the extent of a manor; Doe d. Padwick v. Skinner, 3 Exch. 84; or a reputed manor which once existed; Doe d. Molesworth v. Sleeman, 9 Q. B. 298; or common by cause of vicinage; Pritchard v. Powell, 10 Q. B. 589; or a custom in a borough to exclude foreigners; semb. Davies v. Morgan, 1 C. & J. 587; or the boundaries between parishes or manors; Nicholls v. Parker, 14 East, 331, n.; a parish modus; Weeks v. Sparke, 1 M. & S. 691; White v. Lisle, 4 Madd.

215; or parochial chapelry; Carr v. Mostyn, 5 Exch. 69; a toll traverse; Brett v. Beales, M. & M. 416; a ferry; Pim v. Curell, 6 M. & W. 234; a county bridge; R. v. Bedfordshire, 4 E. & B. 535; 24 L. J., Q. B. 81; a several fishery; Neill v. Duke of Devonshire, 8 Ap. Ca. 135, D. P.; or a right of freewarren by prescription over an entire manor, including demesne and tenemental lands; Carnarvon, El. of, v. Villebois, 13 M. & W. 313. Therefore the declaration of deceased copyholders; or a saving of the right in a private act for inclosure, inter alia, of copyholders' common rights; or a verdict and judgment against a copyholder, are all evidence of such a right of freewarren. S. C., Id. A deed between the lord and certain copyholders, ratifying customs claimed by the latter in consideration of a payment to the lord, is evidence as against other copyholders where they set up a general custom negatived by the deed. Semb. Anglesey, Ms. of, v. Hatherton, Ld., 10 M. & W. 218. A customary heriot payable by a freeholder of a manor, may be proved by presentments and payments of heriots by other freeholders of the manor. Damerell v Protheroe, 10 Q. B. 20. Reputation is admissible to prove the prescriptive liability of certain landowners to repair a county bridge; for it is a matter of public interest, though private interests are also involved. R. v.Bedfordshire, supra; overruling R. v.Wavertree, 2 M. & Rob.

353.

But to prove a prescriptive right, strictly private, such evidence is not admissible; Morewood v. Wood, 14 East, 327; Richards v. Bassett, 10 B. & C. 663; and Weeks v. Sparke, 1 M. & S. 687, where it was allowed in support of a claim of a prescriptive right for the plaintiff, owner of a certain estate, to abridge by tillage the rights of common appurtenant claimed by the defendant and many others, is overruled by Dunraven, El. of, v. Llewellyn, 15 Q. B. 791 ; 19 L. J., Q. B. 388, Ex. Ch. ; and see Pritchard v. Powell, supra. So, reputation as to the exemption of the sheriff of a county from the performance of a public duty, viz., the execution of criminals, was rejected in R. v. Antrobus, 2 Ad. & E. 793. But where the boundary of a tenement and a hamlet are proved to coincide, then evidence of reputation as to the bounds of the latter is legitimate evidence of the former. Thomas v. Jenkins, 6 Ad. & E. 525.

On a question whether a certain road was a highway, a copperplate map was produced, in which it was so described; it purported to have been taken by the direction of the churchwardens, and proof was offered that it was generally received in the parish as an authentic map; but Lord Kenyon rejected the evidence. Pollard v. Scott, Peake, 18. So the production of an old printed map of a county from the custody of a county magistrate, who had it some years in his possession, does not make it admissible to prove the bounds of the county. Hammond v. Bradstreet, 10 Exch. 390; 23 L. J., Ex. 332, Ex. Ch. It should seem, however, that if such a map had been supported by proof of its compilation by persons having particular means of knowledge of the bounds, or had been in some way sanctioned publicly as authentic, it might have been admissible as reputation; otherwise there is no reason for attaching more value to an engraved map than to a printed book as evidence of its contents; nor does the current use of it by those who reside in the district delineated in it imply an assent to all its details. The tithe commission maps are not, under 6 & 7 Will. 4, c. 71, s. 64, evidence as to the boundary of land in the case of disputed title. Wilberforce v. Hearfield, 5 Ch. D. 709. An old map commonly used at a manor court to define the limits of copyholds, is not evidence of a highway, though ways may be indicated upon it; especially if it does not purport to describe them as public ways. Pipe v. Fulcher, 1 E. & E. 111; 28 L. J., Q. B. 12. A public meeting called for the purpose of considering about repairing a way, at which several present signed a paper stating that it was not a public

way, is evidence, though slight, against the right. Barraclough v. Johnson, 8 Ad. & E. 99. Even where general reputation is evidence, yet the tradition of a particular fact is not; as that a house once stood in a particular spot. Ireland v. Powell, Peake, Evid. 15. Nor is reputation admissible evidence of a farm modus. Pritchett v. Honeyborne, 1 Y. & J. 135. Where a question of public way was in issue, the declarations of a deceased occupier of land made whilst planting a tree, stating that he planted it to show the boundary of the road, are not evidence of the public right, for it is not a statement of general reputation but of a particular fact. R. v. Bliss, 7 Ad. & E. 550. The declarations of a deceased lord of the manor as to the extent of the waste are not evidence in extension of it. Crease v. Barrett, 1 C. M. & R. 919. Where the question was, whether a place was within the limits of a hundred, ancient entries of orders of justices in sessions, stating the place to be within such limits, were held to be evidence of reputation, though the justices were not proved to have been resident within the hundred or county. Newcastle, Dk. of, v. Broxtowe, 4 B. & Ad. 273. So the question being whether certain land is in the parish of A. or B., ancient leases, in which they are described as lying in parish B., are evidence that the land is in that parish. Plaxton v. Dare, 10 B. & C. 17. In assumpsit for tolls by a lessee of the corporation of Cambridge, an old deed of composition between it and the University, recognising the right, was admitted in behalf of the plaintiff, though not proved to have been acted upon. Brett v. Beales, M. & M. 416. Aliter of a mere award, not proved to have been acquiesced in. S. C. So an award inter alios is not evidence, as reputation, of the boundary of a parish and county. Evans v. Rees, 10 Ad. & E. 151; Wenman v. Mackenzie, 5 E. & B. 447. The finding of a jury, under a commission duly issued out of the duchy court of Lancaster on the petition of the parties to ascertain the bounds of adjoining manors, is evidence of such bounds. Brisco v. Lomax, 8 Ad. & E. 198. But an interlocutory order of the same court, containing only a provisional arrangement between the parties, is not evidence of reputation. Pim v. Curell, 6 M. & W. 234. Generally, a verdict, and judgment thereon, in a matter in which reputation is admissible evidence, is also admissible; so of a decree, or inquest of office lawfully authorised. See post, Effect of documentary evidence. Reputation alone is said to be evidence of the existence of a manor. Steel v. Prickett, 2 Stark. 463; but it seems that some foundation should be laid by proof of acts done, as holding courts, &c.; and the production of a deputation to kill game is not of itself sufficient proof even of a colourable title to a real manor; Rushworth v. Craven, McCl. & Y. 417; for the lord of a mere reputed manor may grant one.

The rule with regard to the practice from whom the declarations proceed has been thus laid down: In cases of rights or customs which are not, strictly speaking, public, but are of a general nature and concern a multitude of persons (as in questions with respect to boundaries and customs of particular districts), it seems that hearsay evidence is not admissible, unless it be derived from persons conversant with the neighbourhood. On the other hand, actual inhabitancy in the place, the boundaries of which are in dispute, is unnecessary. But where the right is strictly public (a claim of highway, for instance), in which all the king's subjects are interested, it is difficult to say that there ought to be any such limitation. In a matter in which all are concerned, reputation from any one appears to be receivable, but almost worthless unless it came from persons who are shown to have some means of knowledge, as by living in the neighbourhood, or frequently using the road in dispute. Per Parke, B., in Crease v. Barrett, 1 C. M. & R. 919; Doe d. Molesworth v. Sleeman, 9 Q. B. 301, per cur. Thus, a document purporting to be a decree of certain persons, the Lord Treasurer

and Chancellor of the Exchequer, &c., who had no authority as a court, was held to be inadmissible evidence as reputation on a question whether the city of Chester, before it was a made a county itself, formed a part of the county palatinate, because those personages had from their situations no peculiar knowledge of the facts. Rogers v. Wood, 2 B. & Ad. 245. So the answers of the tenants of a manor to an old commission of survey issued by the lord, finding the bounds of a manor and his right to wreck, are evidence of the former, but not of the latter, they having no peculiar means of knowledge, and the lord's title to such a franchise not being a matter of public concern. Talbot v. Lewis, 1 C. M. & R. 495. Such a claim of wreck is one affecting only the interest of the Crown, and not the tenants; and the case differs in that respect from a right of freewarren in Carnarvon, El. of, v. Villebois, 13 M. & W. 313.

Ancient answers of the customary tenants of a manor, stating the rights of the lord of the manor to all mines within it, are evidence even against the freeholders, for this claim affects all the tenants. Crease v. Barrett, ante, p. 48. As to the admissibility of inquisitions and surveys, as evidence of reputation, see post, Effect of Inquisitions, &c. Declarations of old persons concerning the boundaries of parishes and manors have been admitted in evidence, though they were parishioners and claimed right of common on the wastes which their declarations had a tendency to enlarge. Nicholls v. Parker, 14 East, 331; Plaxton v. Dare, 10 B. & C. 19. See also R. v. Mytton, 2 E. & E. 557; S. C. sub. nom. Mytton v. Thornbury, 29 L. J., M. C. 109, post, p. 97. So, declarations on a question of parochial modus were received, though the deceased was a parishioner, and liable to pay tithe. Harwood v. Sims, Wightw. 112; Deacle v. Hancock, M'Clel. 85; S.C., 13 Price, 226. So, a written declaration of a deceased corporator was considered to be evidence in support of a custom to exclude foreigners. Davies v. Morgan, 1 C. & J. 587.

In order to the admission of evidence of reputation, it is not necessary that the fact of user should be shown: Crease v. Barrett, supra; although there are cases in which it has been so considered; see Weeks v. Sparke, 1 M. & S. 686; Rushworth v. Craven, M'Cl. & Y. 417; and it is obvious that such evidence without user will be of little weight.

Such declarations, as in questions of pedigree (ride ante, p. 46), must not have been made post litem motam. R. v. Cotton, 3 Camp. 444. But where, in a suit as to the custom of a manor, depositions in a former suit relative to a custom of the same manor were offered in evidence, it was held no objection that the depositions taken in the former suit were post litem motam, if the two suits were not upon the same custom; and where the former suit was very ancient, it was held unnecessary to prove by intrinsic evidence that the witnesses who made the depositions were in the situation in which they professed to stand, or that they had the means of becoming acquainted with the customs of the manor. Freeman v. Phillipps, 4 M. & S. 486; but see Banbury Peerage case, 2 Selw. N. P. 2nd ed. 773, ante, p. 45.

The declarations of old persons still alive, cannot be admitted as proof of reputation. Woolway v. Rowe, 1 Ad. & E. 117.

Hearsay admissible when part of the transaction.] When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, and explanatory of it, it is admissible. Words and declarations are admissible when they accompany some act, the nature, object, or motive of which are the subject of the inquiry; 1 Phil. Ev. 194, 9th ed., cited by Crompton, J., Hyde v. Palmer, 3 B. & S. 657; 32 L. J., Q. B. 126, and see Bennison v. Cartwright, 5 B. & S. 1; 33 L. J., Q. B. 137. In the case of an equivocal act, the

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