commencement of the suit. After the controversy has originated, all declarations are to be excluded, whether it was or was not known to the witness" (e). Declarations, however, will not be excluded on account of their having been made with the express view of preventing disputes (f), or in direct support of the declarant's title (g), or from the declarant being in the same situation, touching the matter in contest with the party relying on the declaration (h).

(e) Per Mansfield, C. J., Berkeley Peerage case, 4 Camp. 417. (f) Berkeley Peerage case. 4 Camp. 401.

(g) Doe v. Davies, 10 Q. B. 325.

(h) Monkton v. Att.-Gen., 2 Russ. & M. 160.

CHAPTER X.

ON EVIDENCE OF ANCIENT POSSESSION.

ALTHOUGH, as has been stated in the preceding chapter, hearsay 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 (i).

In Roe v. Rawlings (j), a paper was received

(i) Cf. Guru Persad Rai v. Beikunt Chundra Rai, 6 W. R., Civil Rulings, 82.

(j) 7 East, 279.

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 of the fact, for the plaintiff, a tenant in tail, in 1806, to whom it had been handed down with other muniments of title, to show that the rent reserved by a tenant for life, who had immediately preceded the plaintiff, was less than the rent originally reserved. Lord Ellenborough said:"Ancient deeds, proved to have been found amongst deeds and evidences of land, may be given in evidence, although the execution of them cannot be proved; and the reason given is, that it is hard to prove ancient things, and the finding them in such a place is a presumption they were fairly and honestly obtained, and reserved for use, and are free from suspicion of dishonesty.' This paper, therefore, having been found amongst the muniments of the family. . . accredited . . . and preserved ... we think that it was evidence to be left to the jury of the amount of the ancient rent at the time it bears date."

Thus, the counterparts of old leases from the repository of the lord of a manor have been received in evidence of the demise of premises, even without proof of enjoyment (k). In that case, tried in 1782, several leases, dated between 1680 and 1702, were received as undoubtedly ancient; but a lease dated in 1730 was rejected as too recent. But in Malcolmson v. O'Dea, it was laid down that the true ground for admitting a lease is that of its showing

(k) Clarkson v. Woodhouse, 3 Doug. 189; S. C. 5 T. R. 412, n.

an act or acts of ownership (1). So, to prove a personal prescriptive right of fishery, as appurtenant to a manor, old licences on the court rolls, granted by the lords of the manor, are admissible (m). And old rent rolls or court rolls are received to prove rights to which they refer.

So, in ejectment, where both plaintiff and defendant claimed through E., it was held that an ancient entry made by E.'s steward in his rent-book, was evidence as to the identity of the property (n). So, ancient terriers are received to prove the amount of vicarial tithes (o).

In The Bishop of Meath v. Marquis of Winchester (p), in the House of Lords, the general doctrine, more particularly as regards the next point to be considered, viz., the custody of the document, was fully considered. The main questions were, whether an ancient deed, and also a case concerning the right of presentation to a living, prepared for counsel by a former Bishop of Meath, in 1695, and found among the family papers of his descendants, were evidence touching the right of presentation as against the plaintiff in error. Both documents were held clearly admissible.

Ancient documents, to be receivable as such, must be proved to have come from the custody in which it was reasonable that they should be found. This doctrine has been recently applied to family Bibles. A

(1) Malcolmson v. O'Dea, 10 H. of L. Cas. 593.

(m) Rogers v. Allen, 1 Camp. 309; and Malcolmson v. O'Dea, 10 H. of L. Cas. 593.

(n) Doe v. Seaton, 2 Ad. & El. 171.

(0) Pearson v. Beck, 8 Ex. 452.

(p) 3 Bing. N. C. 183.

New Testament containing entries of the births, deaths, and marriages of a family, produced by a member thereof, and proved to have been in the possession of the family for a long time, is admissible in evidence without proof of handwriting (g).

"The

Thus, in the case of The Bishop of Meath v. Marquis of Winchester (r), Tindal, C. J., said :result of the evidence, upon the bill of exceptions, we think is this-that these documents were found in a place in which, and under the care of persons with whom, papers of Bishop Dopping might naturally and reasonably be expected to be found, and that is precisely the custody which gives authenticity to documents found within it; for it is not necessary that they should be found in the best and most proper place of deposit. If documents continue in such custody, there never would be any question as to their authenticity; but it is when documents are found in other than the proper place of deposit, that the investigation commences, whether it was reasonable and natural, under the circumstances in the particular case, to expect that they should have been in the place where they are actually found; for it is obvious that whilst there can be only one place of deposit strictly and absolutely proper, there may be various and many that are reasonable and probable, though differing in degree; some being more so, some less; and in those cases the proposition to be determined is, whether the actual custody is so reasonably and probably to be accounted for, that it impresses

(q) Hubbard v. Lees, 4 H. & C. 418.

(r) 3 Bing. N. C. 183.