character, and the evidence, therefore, becomes admissible. We think this position cannot be maintained. We are of opinion, therefore, that the evidence of reputation offered in this case was, according to the well-established rule in the modern cases, inadmissible, as it is in reality in support of a mere private prescription; and the number of these private rights does not make them to be of a public nature." The Court of Appeal in the case last mentioned, said that the question whether a piece of land was part of a common over which any one in certain parishes had a right of common, was a question of such general interest in the locality as to let in evidence of reputation, and they held that the Earl of Dunraven v. Llewellyn was no authority to the contrary, as the issue in that case was simply whether a piece of land was the plaintiff's or defendant's. LINDLEY, M.R., also said that Warrich v. Queen's College, Oxford (z), shows that the Earl of Dunraven v. Llewellyn does not go so far as is sometimes supposed. On an issue whether or not certain land, in a district repairing it own roads, was a common highway, it has been held admissible, but slight, evidence that, before the point was litigated, the inhabitants held a public meeting to consider the repair of the way, and that several of them, since dead, signed a paper on the occasion, stating that the land was not a public highway (a). So the verdict or presentment of a jury summoned by a court of competent jurisdiction to determine the boundaries of two manors is admissible evidence of reputation, in an issue as to the boundary of a third manor, which is conterminous with one of the former (b). Some of the remarks of the learned judges, in this last case, may appear to be at variance with the later case of Earl of Dunraven v. Llewellyn. Thus, COLERIDGE, J., states: "On the question of L. E. (3) L. R. 6 Ch. 716. (a) Barraclough v. Johnson, 8 A. & E. 99. Ꮮ boundary between two owners, no doubt reputation is admissible"; but this observation must be limited by the circumstances of the case, which seem to have been regarded as converting an apparently personal question into one of a public nature. An award, being in the nature of a private transaction, is not evidence of reputation (c). The general doctrine was discussed elaborately in the case of R. v. Bedfordshire (d). There, on an indictment against a county for not repairing a public bridge, the defendants pleaded that A. was liable to repair a portion, ratione tenure of the manor of O.; G. a certain other portion, ratione tenure of the manor of H.; and T. the residue, ratione tenure of the manor of C. Evidence of reputation was tendered by the defendants to show that, by immemorial custom, the respective parties mentioned in this plea had repaired the respective portions. The evidence was rejected at the trial, apparently on the ground that the interests were of a private nature; but the court held that the evidence ought to have been received. Lord CAMPBELL, after recognising the general principle, “that public reports ought not to be held admissible so as to affect the rights of private persons," proceeded to say: "Upon the question here raised, all the inhabitants of the county, who have property liable to be assessed to the county rate, have an interest whether this bridge was to be repaired in part by the owners of certain lands, ratione tenure; such persons would be affected by the verdict of the jury; and then there are others whom it would also affect; viz., those who require the use of the bridge, and to them it is of importance upon whom the liability rests to repair the bridge. If a prosecution arises, heavy expenses are sure to be incurred, and therefore such questions are certain to be discussed, and a true reputation is very likely to exist. Certainly, the question objected to in this case touches the rights of individuals; but then it also affects that of the county and the ratepayers. For these reasons, we think that evidence of reputation was improperly rejected." (c) Erans v. Rees, 10 A. & E. 151; Lady Wenman v. Mackenzie, 5 E. & B. 447. (d) 4 E. & B. 535. Whether the public are entitled to fish in a tidal river is a question of public interest on which evidence of reputation is admissible (e). In questions concerning the admissibility of reputation, distinctions have been drawn between cases in which a public interest, and others in which merely a local interest, is concerned; but reputation appears to be equally receivable in both instances, although its value will depend essentially on the vicinity of the witness to the locus in quo, and his personal knowledge of the surrounding circumstances. "In a matter in which all are concerned, reputation from any one appears to be receivable; but of course it would be almost worthless, unless it came from persons who were shown to have some means of knowledge, as by living in the neighbourhood" (ƒ). The next important restriction on the rule under consideration, is contained in the principle that The declarations of deceased persons are not admissible as reputation, unless they have been made ante litem motam, i.e., before the issue has become, or appeared likely to become, à subject of judicial controversy. In R. v. Cotton (g), DAMPIER, J., said: "The reason why the declarations of deceased persons [are admitted] upon public rights, made ante litem motam when there was no existing dispute respecting them, is that these declarations are considered as disinterested, dispassionate, and made without any intention to serve a cause or mislead posterity; but the case is entirely altered post litem motam, when a controversy has arisen respecting the point to which the declarations apply. Declarations then made are so likely to be produced by interest, prejudice, or passion, that no reliance can safely be placed upon them, and they would more frequently impose upon the understanding than conduce to the elucidation of the truth. It has, therefore, been wisely decided that evidence of reputation arising post litem motam shall not be admitted." (e) Neill v. Duke of Devonshire, 8 App. Cas. 35. (f) Per PARKE, B.: Crease v. Barrett, 1 C. M. & R. 928. Thus, the presentment of a homage, sworn to determine boundaries, has been rejected, because there was no jurisdiction, and because it amounted to a declaration post litem motam (h); but in an action by a copyholder against his lord, where the question was as to the amount of fine payable to the latter, the incidental depositions of witnesses, in an action by a former claimant against a former lord, have been admitted as evidence for the lord, as depositions of persons called on behalf of a person standing in pari jure with the plaintiff, and because the same custom was not in controversy (i). It seems to be settled that the lis mota dates not from the commencement of an action or suit, nor even from the commencement of actual litigation, but from the time when the question began to attract public attention as a controversy, The line of distinction is the origin of the controversy, and not the commencement of the suit. After the controversy has originated, all declarations are to be excluded, whether the controversy was or was not known to the declarant (k). Declarations however, will not be excluded on account of their having been made with the express view of preventing disputes (1) or in direct support of the declarant's title (m), or from the declarant being in the same situation, touching the matter in contest, with the party relying on the declaration (n). (h) Basset v. Richards, 10 B. & C. 657. (i) Freeman v. Phillipps, 4 M. & S. 497. (k) Per MANSFIELD, C.J.: Berkeley Peerage Case, 4 Camp. 417. (1) Berkeley Peerage Case, 4 Camp. 401. (m) Doe v. Daries, 10 Q. B. 325. (n) Monkton v. Attorney-General, 2 Russ. & M. 160. CHAPTER X. EVIDENCE OF ANCIENT POSSESSION. ALTHOUGH, as has been previously stated, hearsay or second-hand evidence is not generally admissible in questions concerning merely private and personal rights, yet it is received, in some cases, where a controversy refers to a time so remote that it is unreasonable to expect a higher species of evidence; but in such cases the surrounding circumstances must be free from reasonable suspicion, and it must appear that the deeds or other documents, in which the hearsay is contained, are ancient, i.e., more than thirty years old; that they come from the custody in which they would presumably be found, if authentic; and that they have been regarded and treated as authentic by the guardians of them. It is therefore a rule that Ancient documents purporting to be a part of the transactions to which they relate, and not a mere narrative of them, are receivable in evidence that those transactions actually occurred, provided they be produced from proper custody. In Roe v. Rawlings (a), a paper was received which purported to be a statement by a confidential agent, to a former tenant for life, of rent reserved in 1728, and as such had been indorsed by the latter. This was held to be evidence in 1806 of the fact for the plaintiff, a tenant in tail, to whom it had been handed down with other muniments of title, to show that the rent (a) 7 East, 279. |