MAPS WHEN EVIDENCE OF REPUTATION.

403 the manor, and a great many of the copyholders, in which the latter claimed, and the former admitted and confirmed, what they mutually conceived to be the immemorial customs of the manor, but which deed omitted all mention of the particular custom in question, was strong evidence of reputation to show that it did not exist at that day, and that the subsequent usage relied upon in support of it, was referable to usurpation, and not to right (p).

§ 427. It will have been seen from several of the cases cited in this chapter, that oral declarations are not the sole medium of proving traditionary reputation in matters of public and general interest; and, indeed, the principle of the exception applies equally to documentary evidence, and to all other kinds of proof denominated hearsay. Thus, deeds (q), leases (r), and other private documents have been admitted, as declaratory of the public matters recited in them. Whether maps, showing the boundaries of towns, manors, and parishes, and proved to have been made or recognised by persons having adequate knowledge, would be admissible, is a question respecting which some doubts exist. On principle, they would seem to be valid evidence of reputation, and in a late trial of an indictment against a parish for the non-repair of a highway, where, in order to show that the road in question was not within the parish, a map was produced which had been made some thirty years before by a surveyor, from information derived from an old parishioner, who had pointed out to him the boundaries, Mr. Justice Erskine held, that, if proof could be given of the old man's death, the map would be admissible as evidence of reputation, though it came from the chest of the parish indicted (s). On another occasion, also, maps appear to have been received as public documents (t); but in an older case, where, in order to prove that the locus in quo was a highway, a copper-plate map, which purported on its face to have been taken by the direction of some

(p) Marquis of Anglesey v. Lord Hatherton, 10 M. & W. 218, 239-241, 244. (9) Curzon v. Lomax, Esp. 60, per Lord Ellenborough; Brett v. Beales, M. & M. 416, per Lord Tenterden.

(r) Plaxton v. Dare, 10 B. & C. 17; 1 M. & Ry. 1, S. C.; Barnes v. Mawson, 1 M. & Sel. 78, 79; Marquis of Anglesey v. Lord Hatherton, 10 M. & W. 218. (8) R. v. Milton, 1 C. & Kir. 58.

(t) Alcock v. Cook, per Tindal, C. J., cited 1 Ph. Ev. 251, n. (1).

404

PRESENTMENTS-VERDICTS-JUDGMENTS-DECREES.

former churchwardens, and which it was proposed to prove was generally received by the parish as authentic, was rejected by Lord Kenyon, who observed, "that it would be equally improper to admit it, as to admit a plan taken by the lord of a manor, who might thereby crush and destroy the estates of his tenants (t)." It does not appear in this case that the map was an ancient one, or that the churchwardens, by whose direction it was drawn, were dead, and consequently the decision is of the less authority.

§ 428. Again, presentments in manor courts (u), stating the customs or boundaries of a manor,-depositions of conventionary tenants of a manor, taken in an authorised inquiry, and representing the rights of the lord (v),-and other similar documents, have been admitted as evidence of reputation (x); though, unless it can be satisfactorily proved, or at least reasonably inferred, that the proceedings were conducted in a legal and regular manner, it will seldom be prudent to run the risk of a new trial by tendering such evidence (y).

§ 429. It has often been said that verdicts of juries, and judgments, decrees, and orders of courts of competent jurisdiction, are evidence of reputation; and possibly, when juries were summoned de vicineto, and were consequently assumed to be acquainted with the subject in controversy (2), this may have been a correct mode of stating the ground on which verdicts were admitted; though it never could have been strictly accurate with respect to other judicial documents, and though it does not apply, at the present day, even to verdicts (a). Still these documents, though not reputation, are as good evidence as reputation (6); and whatever be the principle on which they are admitted, the rule has been established

(t) Pollard v. Scott, Pea. R. 19.

(u) Evans v. Rees, 10 A. & E. 151; Roe v. Parker, 5 T. R. 26; Arundell v. Lord Falmouth, 2 M. & Sel. 441.

(v) Crease v. Barrett, 1 C. M. & R. 919; 5 Tyrw. 458, S. C.; Freeman v. Phillipps, 4 M. & Sel. 486. (x) See Evans v. Taylor, 7 A. & E. 626.

(y) See R. v. Leigh, 10 A. & E. 411.

(2) Pim v. Curell, 6 M. & W. 254, per Alderson, B.

(a) Evans v. Rees, 10 A. & E. 153, per Patteson and Coleridge, Js.; Brisco v.

Lomax, 8 A. & E. 212, per Patteson, J.

(b) Brisco v. Lomax, 8 A. & E. 211, per Littledale, J.

VERDICTS WHEN EVIDENCE IN NATURE OF REPUTATION. 405

by too many authorities to be now questioned (c), that, in all cases involving matters of public or general interest, wherein reputation is evidence, a verdict or a judgment upon the matter directly in issue, though pronounced in a cause litigated between strangers to the parties on the record, is also admissible; not as tending to prove any specific fact existing at the time, but as evidence of the most solemn kind, of an adjudication by a competent tribunal upon the state of facts and the question of usage at that time (d). Thus, for example, where a public right of way was in question, the plaintiff was allowed to show a verdict, rendered in his own favour against a defendant in another suit, in which the same right of way was in issue (e); and it matters not with respect to the admissibility, though it may as to the weight, of such evidence, that the judgment has been suffered by default, and, though of a very recent date, is not supported by any proof of execution or of the payment of damages (f); or even that the verdict, where a verdict has been obtained, has not been followed up by any judgment or decree (g). Neither is it material whether the verdict be pronounced at Nisi Prius, or be the finding of a jury summoned under a commission from a Duchy Court, or any other special commission; provided it can be proved, or can be inferred from the circumstances, that the inquiry was a lawful one (h).

§ 430. If, when the record is produced, there appears to have been a direct issue on the right or custom in controversy, the opponent will not be entitled to show that in fact no evidence was given on that issue; since the record is conclusive of the fact of such a finding, though not of its truth as between other parties (i). If the record contains no direct issue on the custom, the party producing it must furnish some evidence to show that the custom was really in question; for, otherwise, the mere verdict

(c) Evans v. Rees, 10 A. & E. 156, per Lord Denman.

(d) Pim v. Curell, 6 M. & W. 266, per Lord Abinger.

(e) Reed v. Jackson, 1 East, 355.

(ƒ) Earl of Carnarvon v. Villebois, 13 M. & W. 313, 329, 332.

(g) Brisco v. Lomax, 8 A. & E. 198; 3 N. & P. 388, S. C.

(h) Id.

(i) Reed v. Jackson, 1 East, 355.

406

DECREES AND ORDERS EVIDENCE OF REPUTATION.

would prove nothing (j). In the late case of the Earl of Carnarvon v. Villebois, which was an action by the lord of a manor against a copyholder for trespassing on his free warren, an ancient judgment on a quo warranto information filed by the AttorneyGeneral against a former lord, in which the defendant pleaded, and the Attorney-General confessed, a prescriptive title to the free warren as appurtenant to the manor, was received in evidence for the plaintiff, as being the judgment of a competent court upon a matter of a public nature which concerns the Crown and the subject. The Court observed, that "it was admissible on the same footing as an allowance before the justices of Eyre, an inquisition post mortem, or an injunction issuing out of the Court of Exchequer to ascertain the extent of the Crown lands" (k).

§ 431. Decrees and orders of all competent tribunals stand upon the same footing as verdicts (1); and, therefore, orders of the commissioners of sewers requiring land-owners to repair seawalls, will, on an issue respecting the liability of a party to make such repairs, be evidence as adjudications by a court of competent jurisdiction; and the fact that they have been duly executed and acted upon will be presumed, if they are of an ancient date (m). To render decrees of a Court of Chancery admissible, it is unnecessary to put in the depositions to which they refer; because, in equity, the judge must collect the questions in dispute from the bill and answer only (n). Still, a decree, to be evidence, must be final; and mere interlocutory orders, not involving any judgment upon the rights of the parties, cannot be received (o). So anxious are the Courts to confine this species of evidence within strict limits, that they have rejected an award in a suit inter alios, though the cause was referred by order of the judge at Nisi Prius (p). It seems scarcely necessary to add, that no verdict,

(j) Laybourn v. Crisp, 4 M. & W. 325, 326, per Lord Abinger.

(k) 13 M. & W. 313, 331, per Parke, B.

(7) See Laybourn v. Crisp, 4 M. & W. 326, per Parke, B.

(m) R. v. Leigh, 10 A. & E. 398.

(n) Laybourn v. Crisp, 4 M. & W. 320, 326, 327. It seems that the depositions may be read by the opposite party as his evidence, id.

(0) Pim v. Curell, 6 M. & W. 234, 265–267.

(p) Evans v. Rees, 10 A. & E. 151; 2 P. & D. 627, S. C.; R. v. Cotton, 3 Camp. 444.

DECLARATIONS MADE POST LITEM MOTAM INADMISSIBLE. 407

judgment, decree, or order, can be received, if it appear that the parties pronouncing it were acting without legal authority (q).

§ 432. It now becomes necessary to consider an important qualification of the exception under discussion, which is, that declarations, to be admissible as evidence of reputation, must have been made before any controversy arose touching the matter to which they relate; or, as it is usually expressed, ante litem motam. As this qualification is not confined to matters of public and general interest, but equally governs the admissibility of hearsay evidence in matters of pedigree, it will be convenient to illustrate its operation by referring indiscriminately to both these classes of cases. Now the ground on which the declarations of deceased persons are admitted at all, is, that they are the natural effusions of a party who is presumed to know the truth, and to speak upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth (r). But no man is presumed to be thus indifferent in regard to matters in actual controversy; for when the contest has begun, people generally take part on the one side or the other; their minds are in a ferment; and, if they are disposed to speak the truth, facts are seen by them through a false medium. To avoid, therefore, the mischiefs which would otherwise result, all ex parte declarations, even those upon oath, are rejected, if they can be referred to a date subsequent to the beginning of the controversy (s).

§ 433. This rule of evidence was familiar in the Roman law; but the term lis mota was there applied strictly to the commencement of the action, and was not referred to any earlier period of the controversy (t). But in our law, the term lis is taken in the

(2) Rogers v. Wood, 2 B. & Ad. 245.

(r) Per Lord Eldon, in Whitelocke v. Baker, 13 Ves. 514; R. v. Cotton, 3 Camp. 446, per Dampier, J.

(s) Berkeley Peerage, 4 Camp. 401, 409, 413; Monkton v. Att.-Gen., 2 Russ. & My. 160, 161; Richards v. Bassett, 10 B. & C. 657.

(t) Lis est, ut primum in jus, vel in judicium ventum est; antequam in judicium veniatur, controversia est, non lis. Cujac. Opera Posth. tom. 5, col. 193, B. & col. 162, D. Lis inchoata est ordinata per libellum, et satisdationem, licet non sit lis contesta. Corpus Juris Glossatum, tom. 1, col. 553, ad Dig. lib. iv. tit. 6, 1. 12. Lis mota censetur, etiamsi solus actor egerit. Calv. Lex. Verb. Lis mota.