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attention as a controversy. "The line of distinction is the origin of the controversy, and not the commence. ment of the suit. After the controversy has originated, all declarations are to be excluded, whether it was or was not known to the witness." 1

1 Per Mansfield, C. J., 4 Camp 417.




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


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,1 provided they be produced from proper custody.

In Roe d. Brune v. Rawlings,2 a paper was received which purported to be a statement by a confidential agent, to a former tenant for life, of rent reserved in

1 Tayl. 436; 1 Phill. 234.

2 7 East, 279.

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 saspicion 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.1 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. 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.2 And old rent rolls or court rolls are received to prove rights to which they refer.3

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. So, ancient


1 Clarkson v. Woodhouse, 3 Doug. 189; S. C., 5 T. R. 412, n. Rogers v. Allen, 1 Camp. 309.

31 Phill. 235.

Doe dem. Strode v. Seaton, 2 Ad. & El. 171.

terriers are received to prove the amount of vicarial tithes.1

In The Bishop of Meath v. Marquis of Winchester,2 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.

Thus, in the above case, Tindal, C. J., said :— "The 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

1 Pearson v. Beck, 22 L. J. 213, Ex.

23 Bing. N. C. 183.

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 the mind with the conviction, that the instrument found in such custody must be genuine. That such is the character and description of the custody, which is held sufficiently genuine to render a document admissible, appears from all the cases. On the one hand, old grants to abbeys have been rejected as evidence of private rights, where the possession of them has appeared altogether unconnected with the persons who had any interest in the estate. Thus, a manuscript found in the Herald's Office, enumerating the possessions of the dissolved monastery of Tutbury; a manuscript found in the Bodleian Library, Oxford; an old grant to a priory brought from the Cottonian MSS. in the British Museum; were held to be inadmissible, the possession of the documents being unconnected with the interests in the property. On the other hand an old chartulary of the dissolved abbey of Glastonbury was held to be admissible because found in the possession of the owner of part of the abbey lands, though not of the principal proprietor. This was not the proper custody, which, as Lord Redesdale observed, would have been the Augmentation Office; and, as between the different proprietors of the abbey lands, it might have been more reasonably expected to have been deposited with the largest; but it was, as the court argued, a place of custody where it might be reasonably expected to be found. So also, in the case of Jones v. Waller, the collector's book would have been as well authenticated if produced from the custody of the executor of the incumbent or his successor, as from the hands of the successor of the collector. Upon this principle, we think the case stated for the opinion of counsel, purporting to be stated on the part of Bishop Dopping, and found in the place and in the custody before described, was admissible in evidence. It was a document which related to the private interests of the [EV.]


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