v. Deakin, 4 B. & A. 433. Proof by one of a family, that, many years before, a younger brother of the person last seised had gone abroad, that the reputation in the family was that he had died there, and that the witness had never heard in the family of his having been married, is presumptive evidence of his death without issue. Doe v. Griffin, 15 East, 293. So where a person is shown to have been in existence a long time ago, as 100 years, his death unmarried and without issue will be presumed in the absence of any evidence to the contrary. Doe v. Wolley, 8 B. & C. 22. Proof that a person sailed in a ship bound for the West Indies two or three years ago, and that the ship has not since been heard of, is presumptive evidence that the person is dead; but the time of the death, if material, must depend upon the particular circumstances of the case. Watson v. King, 1 Stark. 121. See post, *Assumpsit on Policy of Insurance." The fact of the party being alive or dead at any particular period within, or at the end of, the seven years, must be proved by the party asserting that fact. Doe v. Nepean, 5 B. & Ad. 86.; S. C. on error, 2 M. & W. 894.

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Presumption as to the legality or regularity of acts and appointments.] Where a feoffment has been proved, livery of seisin may be presumed after twenty years, if possession has gone along with the feoffment; Biden r. Loveday, cited 1 Vern. 196., Rees v. Lloyd, Wightw. 123.; but a less time than twenty years is not sufficient. Doe v. Marquis of Cleveland, 9 B. & C. 864. A person will not be presumed to have committed an unlawful act therefore, when performances appeared to have taken place at a theatre, a licence was presumed in an action against a performer for not acting. Rodwell v. Redge, 1 C. & P. 220. But where the act directing the licence, likewise directs that a notice of it shall be painted on the outside of the house, and there is no such licence painted, it will be presumed, in an action for the penalty, that there is no licence. Gregory v. Tuffs, 6 C. & P. 271. When a man has been elected to a corporate office, the presumption is that he has taken the sacrament according to law. R. v. Hawkins, 10 East, 211. And generally, it may be laid down that illegality is not presumed; per Bayley B., in Gleadow v. Atkin, 1 C. & M. 418.; at least in a suit inter alios, or any collateral proceeding. See post, "Onus Probandi." So a fact may be presumed from the regular course of a public office: thus, where it was proved that the custom-house would not permit an entry to be made, unless there had been an indorsement on a licence, it was held, (the licence being lost,) that from this entry the indorsement might be presumed. Butler v. Allnutt, 1 Stark. 222. So the fact of a person acting in an official capacity, as a surrogate, is primâ facie evidence that he is duly appointed and has competent authority. R. v. Verelst, 3 Camp. 432. So of other public officers, though the appointment is in writing, as in the case of justices of the peace, constables, &c. Berryman v. Wise, 4 T. R. 366. Doe v. Haddon, 3 Doug. 310. So where a constable has been appointed by commissioners under a local act. Butler v. Ford, C. & M. 662. And the fact is evidence even as between third parties, and in his own favour. S. C. So where it is necessary to prove the swearing of an affidavit before a commissioner, evidence of his acting as such is sufficient. R. v. Howard, 1 M. & Rob. 187. Similar proof of a party's appointment as vestry clerk; M'Gahey v. Alston,

boundaries of which are in dispute, is unnecessary. But where the right is really public, a claim of highway, for instance, in which all the king's subjects are interested, it seems difficult to say that there ought to be any such limitation. 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 are shown to have some means of knowledge, as by living in the neighbourhood, or frequently using the road in dispute. Per Parke B. in Crease v. Barrett, 1 C. M. & R. 919. Thus a document purporting to be a decree of certain persons, the Lord Treasurer and Chancellor of the Exchequer, &c., who had no authority as a court, was held to be inadmissible evidence as reputation, on a question whether the city of Chester, before it was made a county of itself, formed a part of the county pala. tine; because those personages had from their situations no peculiar knowledge of the facts. Rogers v. Wood, 2 B. & Ad. 245. So the an swers of the tenants of a manor to an old commission of survey issued by the lord, finding the bounds of the manor and his right to wreck, are evidence of the former; but not of the latter; they having no peculiar means of knowledge, and the lord's title not being a matter of public concern. Talbot v. Lewis, 1 C. M. & R. 495. A document, tempore Eliz., produced from the office of the duchy of Lancaster, purporting to be a survey of a duchy manor taken by the deputy surveyor-general by the oaths of twenty tenants of the manor whose names were subscribed, was held inadmissible evidence of the bounds of the manor, there being no proof of the authority under which the survey was taken, and, consequently, no ground for presuming that any such survey was in fact made. Evans v. Taylor, 7 A. & E. 617. But ancient answers of the customary tenants of a manor, stating the rights of the lord of the manor to all mines within it, are evidence even against the freeholders. Crease v. Barrett, 1 C. M. & R. 919.

In order to the admission of evidence of reputation, it is not necessary that the fact of user should be shown; Crease v. Barrett, suprà ; although there are cases in which it has been so considered. See Weeks v. Sparke, 1 M. & S. 686. Rushworth v. Craven, M'Cl. & Y. 417., antè, p. 29.

These declarations, as in questions of pedigree, must not have been made post litem motam; R. v. Cotton, Camp. 444. But where, in a suit as to the custom of a manor, depositions in a former suit, relative to a custom of the same manor, were offered in evidence, it was held no objection that the depositions taken in the former suit were post litem motam, if the two suits were not upon the same custom; and where the former suit was very ancient, it was held unnecessary to prove by extrinsic evidence that the witnesses who made the depositions were in the situation in which they professed to stand, or that they had the means of becoming acquainted with the customs of the manor. Free man v. Phillipps, 4 M. & S. 486. But see Banbury Peerage case, antè, p. 27, 28. Declarations of old persons concerning the boundaries of parishes and manors have been admitted in evidence, though they were parishioners, and claimed right of common on the wastes, which their declarations had a tendency to enlarge. Nicholls v. Parker, 14 East, 331. Plaxton v. Dare, 10 B. & C. 19. So declarations on a question of parochial modus were received, though the deceased was

a parishioner and liable to pay tithe. Harewood v. Sims, 1 Wightw. 112, Deacle v. Hancock, M'Clel. 85., S. C. 13 Price, 226. So a written declaration of a deceased corporator seems to be evidence in support of a custom to exclude foreigners, though he could not have been called if alive. Davies v. Morgan, 1 C. & J. 587.

The declaration of an old person, still alive, cannot be admitted as proof of reputation. Per Patteson J., Woolway v. Rowe, 1 A. & E. 117.

Hearsay admissible when part of the transaction.] When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, and explanatory of it, it is admissible. Thus, in a case for a false re presentation of the solvency of A. B., whereby the plaintiff's trusted him with goods, their declarations at the time, that they trusted him in consequence of the representation, are admissible in evidence for them. Fellowes v. Williamson, M. & M. 306. So in an action against the drawer of a bill of exchange, what is said by the drawee, on the bill being presented when due, is evidence; but what passed between the drawee and the holder afterwards is not admissible. Prideaux v. Colber, 2 Stark. 57. A letter sent by plaintiff to defendant with the bill of exchange on which defendant is sued, may be read for the plaintiff, Bruce v. Hurly, 1 Stark. 24.; and see Kent v. Lowen, 1 Camp. 177. To prove that there was a good consideration for a conveyance, the verbal instructions of the alienor to his solicitor to prepare it, are good evidence. Tull v. Parlett, M. & M. 472. So declarations, made by a trader at the time of his absenting himself from home, are admissible on a question as to his bankruptcy, to show the motive of his absence. Bateman v. Bailey, 5 T. R. 512. In an action to recover money paid by a bankrupt in contemplation of bankruptcy, his declarations as to the state of his affairs, made about the time of the transaction, but unconnected with it, are admissible for the plaintiff. Vacher v. Cocks, M. & M. 358. Herbert v. Wilcocks, Id. 355. (n). So in an action to recover fraudulent payments, answers to letters written by the bankrupt, requesting assistance, may be read to prove the refusal to give assistance, and his consequent knowledge of the state of his affairs. Vacher v, Cocks, suprà. And see generally, as to declarations by bankrupts, post, tit. "Actions by Assignees of Bankrupts." A trader being in embarrassed circumstances, executed an assignment of all his "effects, stock, books, and book-debts," for the benefit of his creditors: in an action after his death against the assignee, as executor de son tort, it was held that a list of creditors, made out by the direction of the assignor, about the time of the execution of the assignment, was evidence for defendant, for the purpose of disproving fraud, Lewis v. Rogers, 1 C. M. & R. 48.; S. C. 4 Tyr. 872.

Where felling timber is offered as evidence of ownership, the declara tions of the party so employed, as to the property being in another, are evidence to rebut it. Per Parke B., Doe v. Arkwright, 5 C. & P. 575. So in actions of assault, evidence of what the plaintiff said immediately on receiving the hurt, is admissible for him. Thompson v. Trevanion, Skin. 402. So the declarations of a plaintiff made in a conversation with the defendant, if part of the res gesta, are admissible for the plaintiff as part

of his evidence. Hayslep v. Gymer, 1 A. & E. 162. But an act done cannot be qualified by insulated declarations made afterwards alio intuitu. Thus the schedule of an insolvent, delivered four months after execution of a deed, is not admissible on behalf of the assignees to show that it was executed with intent to petition. Peacock v. Harris, 5 A. & E. 449. And a declaration by the obligee, as to the application of previous payments made to him by the obligor, is not evidence as between the sureties. Dunn v. Slee, Holt N. P. 401. In an action for criminal conversation, the declarations of a wife at the time of her elopement, that she fled from terror of personal violence from her husband, seem to be evidence against him. See Aveson v. Kinnaird, 6 East, 193. And where in a similar action the defence was, that the plaintiff had connived at his wife's elopement, evidence was received, on behalf of the plaintiff, of the wife's declaration as to her intention in going. Hoare v. Allen, 3 Esp. 276. So letters written by her testifying affection for her husband, are also evidence for him. Willis v. Bernard, 8 Bing. 376. Where a will is disputed on the ground of fraud, circumvention, or forgery, declarations of his intention by the testator are admissible. Doe v. Hardy, 1 M. & Rob 525.

It is not every declaration that is receivable in evidence, merely because it accompanies an act done by the speaker. Thus, where the object is to establish a public way by reputation, it is no legitimate evidence to prove that the tenant of land near the way planted a tree, and, whilst doing so, stated that he did it "to show the boundary of the road.” R. v. Bliss, 7 A. & E. 550. The admissibility of the declaration de pends, not merely on its accompanying an act, but on the light which it throws upon an act which is, in itself, relevant and admissible evidence. See the opinions of the Judges in Wright v. Doe d. Tatham, 7 A. & E. 313.; S. C. 4 New Ca. 489.

Character.] Where character is in issue, hearsay evidence of the representations of third persons is admitted. Foulkes v. Sellway, 3 Esp.

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Assertions of ownership.] Under the head of hearsay are usually classed those cases in which expired leases, or other documents of a similar kind, asserting a right on the part of the maker, have been ad-· mitted as evidence of that right in favour of persons claiming under them they are in fact acts of ownership, and, as such, evidence of property. Thus old leases of fishing places by the lord of an adjacent manor are evidence of a right to the bed of the river in favour of those who claim under him. Hale de Jure Maris, p. 35. Where the ques tion was, whether certain lands within a manor were subject to a right of common, counterparts of old leases preserved among the muniments of the lord of the manor, from which it was inferred that the land was demised by the lord free from such charge, were allowed to be evidence for the plaintiff claiming under him, though possession under the leases was not shown. Clarkson v. Woodhouse, 5 T. R. 412. (n).; S. C. 3 Doug. 189. So old entries of licences on the court-rolls of a manor, stating that the lords of the manor had the several fishing in a navigable river, and for certain rents had granted liberty of fishing, were held admissible to prove a prescriptive right in

the 'plaintiffs claiming under the lords of the manor, without proof of payment under the licences: but such evidence is not entitled to any weight unless it be shown that in later times payments have been made under similar licences, or that the lords of the manor have exercised other acts of ownership which have been acquiesced in. Rogers v. Allen, 1 Camp. 309. So an old table of tolls kept by the town clerk of a corporation, by which the lessees of the tolls had always been guided in their collection, is admissible in favour of the claim of toll by the corporation; Brett v. Beales, M. & M. 419.; R. v. Carpenter, 2 Show. 48.; but mere entries in the corporation books of orders to grant leases, appointments of commissioners to manage them, &c., are not evidence. Brett v. Beales, M. & M. 429., and S. C. 5 M. & R. 433. 436. So an old entry of a resolution in the books of an eleemosynary corporation, being lay impropriators of tithes, that the tithe shall, on default of payment of the accustomed payment in lieu of tithe, be taken in kind, is not evidence for them against a claim of modus, without proof that tithe in kind had in fact been taken in pursuance of such order. Att. Gen. v. Cleeve, Somerset Sum. Ass., 1841, per Rolfe B. And generally what any one writes or says in his own favour cannot be evidence for himself or his representative. Glyn v. Bank of England, 2 Ves. 43. R. v. Debenham, 2 B. & A. 187. Therefore entries made by a deceased person, under whom the defendant claims, acknowledging the receipt of his rent for the premises in question, are not admissible for the defendant in proof of his title to them. Outram v. Morewood, 5 T. R. 123. So on a question whether the appointment of a curate belongs to the vicar or to a corporation, entries in old books belonging to the corporation are not evidence for them. Att. Gen. v. Corporation of Warwick, 4 Russ. 222. So a survey of a manor made by the owner is not evidence against a stranger in favour of a succeeding owner; Anon. 1 Stra. 95.; but where A. seised of the manors of B. and C., causes a survey to be taken of the manor of B., which is afterwards conveyed to E., and, after a long time, there are disputes between the lords of the manors of B. and C. about their boundaries, this old survey may be given in evidence. Bridgman v. Jennings, 1 Ld. Raym. 734. So property may be identified by the books of the deceased steward of a person from whom both plaintiff and defendant derive title. Doe v. Seaton, 2 A. & E. 171.

Hence it appears that mere private declarations of right, coupled with no act or visible exercise of it proved or presumable, are inadmissible as evidence in favour of the right asserted. As to acts of ownership, see post tit. Quare clausum fregit.

Declarations of persons having no interest to misrepresent.] On this ground entries by a deceased rector, or vicar, as to the receipt of ecclesiastical dues, are admissible for his successor. Legross v. Levemoor, 2 Gwill. 529. Armstrong v. Hewitt, 4 Price, 218. And even where the entries have been made by deceased impropriate rectors, they have been adinitted as evidence for their successors, though objected to as coming from the owners of the inheritance. Anon. Bunb. 46. Illingworth v. Leigh, 4 Gwill. 1618. So they are admissible, though the impropriator be a corporation aggregate; therefore old rolls of account, showing receipts by the tithe collectors of the college of vicars-choral,