their medical attendants are evidence as to the state of health, although letters to a medical man from his patient detailing the symptoms of his malady are not admissible (). On the same principle, in actions for crim. con., what the husband and wife had said to each other, or letters written by either party to the other, when there was no ground to suspect collusion, were admissible evidence to show the terms on which they lived (w); and the same rule applies to proceedings in the Divorce Court.

(4) Evidence of general reputation, general character, and general notoriety is original evidence, and not hearsay. Thus, general reputation is admissible to prove marriage (x), except in prosecutions for bigamy, and petitions for damages for adultery under the Divorce Act, in which the marriage must be strictly proved. Whenever the witness is shown to have derived his information from some assignable individual, it is excluded as hearsay (y). Following the principle laid down by Mr. Fraser (≈), Lord Redesdale, in a case, in the House of Lords (a), held, that repute to raise presumption of marriage must be founded on general, not singular, opinion; a divided repute is on such a subject no evidence at all. Here his Lordship was speaking probably of Scotch marriages only; for, in the subsequent case of Lyle v. Elwood (b), Vice-Chancellor Hall said: "It cannot be contended that wherever there is evidence of repute on one side and the other a marriage cannot be established."

When it is proposed to infer a marriage from repute, it is necessary to weigh the evidence cautiously-first, with respect

(v) Witt v. Klindworth, 3 S. & T. 143.

(w) Trelawney v. Coleman, 1 B. & Ald. 90; cf. Willis v. Bernard, 8 Bing.

376.

(x) Doe v. Fleming, 4 Bing. 266; Fox v. Bearblock, 17 Ch. D. 499.

(y) Shedden v. Att.-Gen., 2 S. & T. 170.

(z) Fraser on the Personal and Domestic Relations, Vol. I. p. 207. (a) Cunninghame v. Cunninghame, 2 Dow, 511.

L. R., 19 Eq. 98.

to the degree in which the opinion prevails; next, with respect to its causes; and, lastly, with respect to the inference to be drawn from it (c).

In trespass for destroying a picture, when the plea was not guilty, and the defence that the picture was a libel on the defendant's sister and brother-in-law, and that he had therefore destroyed it, Lord Ellenborough held, "that the declarations of the spectators while they looked at the picture in the exhibition room were evidence to show that the pictures portrayed were meant to represent the defendant's sister and brother-in-law" (d). So under a devise of lands in a certain parish evidence is admissible that a part not comprised in the parish was reported to be in it, and was intended to be included in the devise (e); but evidence of a rumour is not admissible to justify a slander (ƒ).

(5) Where several persons are proved to be engaged in one general conspiracy, all the transactions of that conspiracy by the different parties may and ought to be given in evidence; and it is enough if the party accused can be proved to be privy to the general conspiracy; for if that is proved everything that is done by the different parties concerned in it must also be imputed to him as a part of the conspiracy (g). Thus, in Hardy's trial for high treason, letters written by one conspirator to another were held to be evidence against the prisoner after his complicity had been established. So, if several defendants in trespass be proved to be co-trespassers by other competent evidence, the declaration of one as to the motives and circumstances of the trespass will be evidence against all who are proved to have combined together for the common object (h).

(c) Fraser, Vol. I. p. 206.

(e) Anstee v. Nelms, 1 H. & N. 225.

(d) Du Bost v. Beresford, 2 Camp. 511.

(f) Lockhart v. Jelly, 19 L. T., N. S. 659.

(9) Per Eyre, C. J., Re Hardy, 24 How. St. Tr. 451.
Per Lord Ellenborough, R. v. Hardwicke, 11 East, 585.

(6) Where either of the parties to the record appears to be merely a trustee for a third party, his declaration or admissions may be given in evidence to defeat the claim of such third party (i). In an action against a sheriff for a false return, the statements of his deputy to the plaintiff's attorney, as to the cause of the omission to make an arrest, have been held to be evidence against the defendant ().

A similar rule holds in cases of partnership and agency, i. e., that the acts or parol arrangements of a partner or agent, made in the ordinary course of business, bind a copartner or principal respectively, and may therefore be given in evidence for or against him (7).

The general rule stated at the commencement of this chapter has several important exceptions, which are discussed in the following chapters.

It must also be noticed that under rule 7 of Order 30 of the R. S. C. (for which see Appendix), on the hearing of a summons for directions the court or a judge has now power to make an order that evidence of any particular fact shall be given by statement on oath of information and belief, and thus to dispense pro tanto with the general rule as to hearsay evidence. Rule 7 is made under the provisions of sect. 3 of the Judicature Act, 1894 (m), upon which the power to dispense with strict evidence depends (n). On interlocutory motions affidavits may contain statements as to the deponent's belief, with the grounds thereof (0).

(i) Bauerman v. Radenius, 7 T. R. 663. (k) North v. Miles, 1 Camp. 389. (1) Sandilands v. Marsh, 2 B. & Ald. 673; Doe v. Hawkins, 2 Q. B. 212. (m) 57 & 58 Vict. c. 16.

(n) Baerlein v. Chartered Mercantile Bank, (1895) 2 Ch. 488.

(0) See post, p. 548.

CHAPTER IX.

HEARSAY IN MATTERS OF PUBLIC AND GENERAL

INTEREST.

WHEN an issue involves a question of public or general interest, the rule that hearsay or second-hand evidence is inadmissible does not apply: and generally—

In matters of public or general interest, popular reputation or opinion, or the declarations of deceased witnesses of competent knowledge, if made ante litem motam (i. e., before the litigated point has become the subject of controversy), and without reasonable suspicion of undue partiality or collusion, will be received as competent and credible evidence.

The ground for its reception lies in the supposition that the universality and notoriety of the interests concerned remove the temptation and the ability to misrepresent, which would arise if such evidence were received in matters of merely private and personal concerns. Accordingly, it is rejected wherever the point at issue appears to partake more of the nature of a private than of a public interest. Thus a map attached to an old enclosure award, although admissible to prove that a particular road was a public highway, was held inadmissible to prove the boundaries of such highway in favour of a defendant charged with obstructing the same (a).

In Wright v. Doe (b), Coltman, J., said :-" The true line (a) R. v. Berger, (1894) 1 Q. B. 823. (b) 7 A. E. 360.

is

(says Buller, J., in R. v. Eriswell) for courts to adhere to, that wherever evidence not on oath has been repeatedly received and sanctioned by judicial determination, it shall be allowed; but, beyond that, the rule that no evidence shall be admitted, but what is on oath, shall be observed. . . . Evidence of opinion is admitted in some cases without oath, as for instance where reputation is given in evidence to prove a public right. . . . The principle upon which I conceive the exception to rest is this, that the reputation can hardly exist without the concurrence of many parties interested to investigate the subject; and such concurrence is presumptive evidence of the existence of an ancient right, of which, in most cases, direct proof can no longer be given, and ought not to be expected; a restriction now generally admitted as limiting the exception is this, that the right claimed must be of a public nature affecting a considerable number of persons. And in the same case in the Exchequer Chamber (c), Alderson, B., said: "The general interest which belongs to the subject would lead to immediate contradiction from others, unless the statement proved were true; and the public nature of the right excludes the probability of individual bias, and makes the sanction of an oath less necessary."

In ejectment by the lessee of a tenant in tail against the devisee in fee of a previous remainderman, the question was whether the land in dispute was part of the estate which had been originally devised by a testator between fifty and sixty years previously. Evidence of reputation had been received that the land had been purchased by the original testator; but it was held that, notwithstanding some special circumstances in the case, the question was merely one of private ownership, and that therefore the evidence should have been rejected (d).

(c) 4 Bing. N. C. 528.

(d) Doe v. Thomas, 14 East, 323.