principle it can be considered admissible, unless it is subscribed and written by a party to the cause, or by one through whom a party to the cause claims interest. It is perfectly true that, under a decision pronounced by Mr. Justice BOSANQUET, in the Common Pleas (1), to which I adverted in the course of the argument, the practice has been to treat the date in a letter as its true date. This matter was under consideration in the Court of Exchequer at the time when my noble and learned friend opposite was a member of that Court, in the *case of Potez v. Glossop (2), where it was laid down by the Judges that we were compelled, by the many cases which had been decided, to hold the date to be primâ facie evidence as to the time of writing the letter; but we intimated our opinion very strongly at least I did, and I believe my noble and learned friend concurred with me that it would be proper to take the opinion of a superior Court by a bill of exceptions, if that point should ever become material. I observe that that case has been followed in one or two cases that are referred to in the note of that case of Potez v. Glossop. I merely make that observation in order that I may not be considered as acquiescing in the opinion of the Irish Judges, who consider that point as finally settled. It is not finally settled. LORD CHELMSFORD: My Lords, I concur entirely with my noble and learned friends who have preceded me. I should not say a word upon the subject of the first exception, if it were not for the fact that Mr. Taylor, in his excellent work upon Evidence, has stated this case as an authority, that the court of error in Ireland had rejected this evidence upon the ground that it had not been limited to statements made by deceased relatives. Now, I observe, upon looking into the opinions of the Judges, that it was only Baron GREENE who distinctly made that objection to the evidence. The other Judges went upon totally different grounds. But the exception being in this particular form, which merely states that the Marchioness of Ormonde had heard from some member of the Butler family that he had contracted a marriage in Scotland, when the case is brought before your Lordships it is necessary for the parties to prove that *exception in the express terms in which it is framed. Your Lordship intimated an opinion a few days ago in another case that it was necessary to hold parties strictly to the form of their exceptions. Now, this exception shows merely that (1) Anderson v. Weston, 54 R. R. (2) 76 R. R. 573 (2 Ex. 191). 798 (6 Bing. N. C. 300). BUTLER v. MOUNTGARRET. [ *647 ] [ *648 ] BUTLER v. MOUNT. GARRET. [ *649 ] some the Judge refused to admit evidence of declarations of members of the family." It says no more. Before declarations of members of a family can be admitted, it is necessary to show that the parties by whom they are said to have been uttered are not in existence. That is a part of the evidence that must be produced by the party who is proposing to give proof of those declarations. It is the very foundation upon which those declarations are admitted, and, therefore, it is perfectly clear, that upon the frame of this exception the learned Judge's ruling was quite correct, that this evidence was inadmissible. Then, it is only necessary to advert very shortly to the other exceptions which arose upon the letter from Somerset Butler to Pierce Butler in the year 1816. If it were at all necessary to go into that question, I should be disposed to adopt the opinion of Baron GREENE, that the statements in that letter do not amount to a declaration of the fact of a marriage. But it is quite unnecessary to express any opinion upon that question, because I think the point upon which we have had the assistance of the learned Judges, and their opinion with regard to there having been a lis mota at the time the letter was written, is quite sufficient to dispose of that exception. With respect to what is lis mota, I think I should be disposed to adopt the opinion which was expressed by Lord ST. LEONARDS in a case before him, which is stated in Baron GREENE'S judgment (1); he cites Lord ST. LEONARDS' opinion, "That there is lis when conflicting statements are made in the family" (which, perhaps, I should not be disposed to adopt to the full extent), when it becomes, in short, a matter of discussion and controversy." The question here is, whether the letter itself does not show that the question of the marriage of Mr. Henry Butler with Mrs. Colebrooke was a subject of discussion and controversy in the family at the time when that declaration was made. It appears that the letter was written by Mr. Somerset Butler to Mr. Pierce Butler. The state of the family at that time was this: Edmund, Lord Kilkenny, who was the eldest brother, was out of his mind, and had no issue. Mr. Somerset Butler, the next in succession, also had no issue. Mr. Henry Butler, the father of Lord Mountgarret, was the third brother, and Mr. Pierce Butler the fourth. This letter shows, that the three parties, Somerset, Henry, and Pierce, all of them had their minds directed to the subject of controversy, whether or not there had been a (1) 6 Ir. L. R. N. S. 159. marriage between Mr. Henry Butler and Mrs. Colebrooke. And upon that depended, certainly in the year 1816, when, as I understand, Lord Mountgarret was born, the legitimacy of Lord Mountgarret: that question then was in controversy; and if Lord Mountgarret was illegitimate, then Pierce Butler would be entitled as next in succession to Somerset, who had no children. Under these circumstances, the very commencement of the letter shows that the parties were entering into a consideration of the state of the family with reference to the devolution of the honours and the estates which were involved in the discussion. The writer of the letter says, "I think it fair and just to tell you what I know of the circumstances connected with Henry and Mrs. Colebrooke." Then it was for the Judge to determine whether the letter itself, if there was no other evidence in the case, was not sufficient to establish the fact of there being a lis mota. The learned Judge was of that opinion, and rejected the evidence. I think the learned Judge was perfectly justified in so doing. I think *the letter shows, in the strongest possible way, that there was a controversy existing, and, therefore, under these circumstances, I think the Judges of the Court of Exchequer Chamber were perfectly correct in overruling the exceptions; and I agree with my noble and learned friends, that the judgment ought to be for the defendant in error. Judgment affirmed, with costs, and cause remitted. LORD WATERPARK v. FENNELL (1). (7 H. L. C. 650-689; S. C. 5 Jur. N. S. 1135; 7 W. R. 634.) Where parcels are described in old documents by words of a general nature, or of doubtful import, evidence of usage is proper to be received to show what they comprehend. In 1704 was granted a lease of certain land in the county of Tipperary. The land was described in the demise, as "Lands, &c. in Scartany, containing 94 acres; Garry roan, containing 104 acres; and the village of Scartnaglowrane, and part of Whitechurch and Tincurry, containing 148 acres, with all rights;" there was then a reservation of mines and of the liberty of fishing and fowling, in favour of the lessor, and of "the liberty of commonage and cutting of turf on the mountain of Tincurry," in favour of certain specified tenants of the lessor. The lease was a renewable lease, and had been renewed twice since that period, in the same terms. The mountain was equally known by the name of the mountain of Scartnaglowrane or of Tincurry. There was a collection of houses generally called the village of Scartnaglowrane on one of its sides. This village of Tincurry was at some little distance from it. The houses of the former village, and the arable land attached to them, had from time to time been increased in (1) Hastings Corporation v. Ivall (1874) L. R. 19 Eq. 558, 582; Devonshire (Duke) v. Pattinson (1887) 20 Q. B. D. 263, 273, 57 L. J. Q. B. 189, 58 L. T. 392; Pryor v. Petre [1894] 2 Ch. 11, 63 L. J. Ch. 531, 70 L. T. 331; BUTLER v. MOUNTGARRET. [ *650 ] 1859. Feb. 21, 22. June 11, 15. Lord FORD, L. C. CRANWORTH. Lord WENSLEY DALE. Lord BROUGHAM. WIGHTMAN, J. WILLIAMS, J. B. [650] number and extent at the pleasure of the lessee and his under-tenants, who regularly paid him rent for the same, and their cattle alone grazed on the mountain. The lessee had always sported on the mountain: Held, that these facts had been properly admitted in evidence, to explain the words of the demise, and having been so, the Judge ought to have left to the jury, and ought not to have decided of his own authority, the question whether the mountain of Scartnaglowrane passed under the demise. TRESPASS. Declaration that the defendant, on the 21st August, 1854, broke in upon and entered lands of the plaintiff, called the mountain of Scartnaglowrane or Tincurry, and with dogs and guns hunted, &c. The defendant pleaded that he was lawfully possessed of the said lands by virtue of a lease, dated 23rd February, 1853, for a term of 99 years or three lives, which lease was a renewal of an original lease, dated 26th January, 1763, for a like term. The lease mentioned in the plea was itself a renewal of a lease of 9th January, 1704. The following was the issue finally, by the consent of all parties, presented to the jury: "Whether, under the lease of 9th January, 1704, and the several derivative and renewed leases under which defendant's title is acquired, the defendant is, as against the plaintiff, entitled to the right of sporting over the lands in the plaint mentioned." The case was tried before Mr. Justice Moore, at the sittings after Easter Term, 1855. The affirmative of the issue being on the defendant, he gave in evidence the lease of the 9th January, 1704. This was a lease made by Sir Richard Pyne, then Lord Chief Justice of Ireland, to two persons of the name of Sargent. The demise was, "All that and those the lands, tenements, and hereditaments in Scartany, containing, by estimation, ninety-four acres; Garryroan, containing, by estimation, one hundred and four acres, and the village of Scartnaglowrane and part of Whitechurch and Tincurry, containing, by estimation, one hundred and forty-eight acres, as fully and amply as the same is demised and granted to the said Sir Richard Pyne by the corporation for making of hollow sword blades, now and of late in the occupation of Thomas Travers, gentleman, and his under-tenants, lying and being in the parish of Whitechurch, Barony of Iffa and Offa, and county of Tipperary, with all the rights, members, *and appurtenances to the said lands and premises belonging, or in anywise appertaining (excepting and always reserving all mines, minerals, and all other royalties whatsoever, with liberty of ingress and egress to dig out and carry away the same with horses, carriages, and otherwise, with liberty of fishing, fowling, hunting, and hawking, which the said Sir Richard Pyne doth reserve to himself, his v. FENNELL. heirs and assigns), in and upon all and singular the pre- WATERPARK mises, and also excepting always unto Thomas Travers, gentleman, and his assigns, tenants of the lands of Burgess, to Richard and John Price, gentlemen, and their assigns, tenants of the lands of Ballyhohan, Ballygizzane and Tubrid, to Terence Daniel, gentleman, and his assigns, tenants of the lands of Russagh, free liberty of commonage and cutting of turf on the mountain of Tincurry." Witnesses were also examined for the defendant, and they proved that the mountain was called Scartnaglowrane and also Tincurry; that the quantity of land under culture was less than 213 acres; that these lands were in the occupation of the defendant's tenants, who paid him rent for the same, and their cattle, and theirs alone, grazed on the mountain; that there is a collection of houses, or a village, on the mountain; that the mail-coach road to Cork runs through part of Scartnaglowrane, and divides the houses from the mountain; that formerly there were not so many houses, or so much land under tillage; but that the houses were increased in number, and more land brought into cultivation, at the defendant's pleasure; that there is turf all over the mountain; that the only turf bog is on the top of it; that it is on that bog that the tenants of Lord Waterpark cut and take turf; that the 148 acres demised by the lease of 1704 form part of the 212 now under cultivation; that the defendant's father and himself had sported over the mountain of Scartnaglowrane without any hindrance. The defendant's counsel asked the learned Judge to direct a verdict for the defendant, on the ground that on the proper construction of the lease of 1704, the 1,700 acres of mountain land (of which the whole mountain consisted) did not pass to the lessee. The learned Judge, however, declined to do so, and the plaintiff then produced evidence. The chief witness was the plaintiff's agent, who had been his gamekeeper for ten years, who stated, that the whole mountain contained 1,700 acres; that he had paid income tax for the plaintiff in respect of the mountain, and that he warned off the defendant from shooting on the mountain. On cross-examination, the agent admitted, that he had first warned off the defendant about five years before the trial, but that the defendant took no notice of his warning; that about twenty years ago what he called the village of Scartnaglowrane consisted of only three or four houses, separated from each other, and that each house had a little farm about it. The learned Judge left the following question to the jury, [ *653 ] |