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among the judges, as to the admissibility of reputation, and the declarations of deceased persons to prove or disprove a claim of prescriptive right. In Morewood v. Wood, when to trespass the defendant pleaded a prescriptive right, Lord Kenyon and Ashhurst, J., held the question to be one of a personal nature, and that evidence of reputation should therefore be rejected. But Buller, J., and Grose, J., appear to have thought the issue to be sufficiently of a public nature to let in the evidence. So traditionary reputation has been received as evidence of the boundaries between two parishes and two manors; but not of the boundaries between two estates.2
In Reg. v. Sutton,3 the defendant was indicted for the non-repair of a bridge; and, to disprove her liability, offered a presentment of a jury in the reign of Edward III., by which it was found that they did not know who was liable to repair; and this was held to be evidence of reputation for the defendant.
Reputation has been received in support of an immemorial right of common, pur cause de vicinage so pleaded.4 In The Duke of Newcastle v. Hundred of Broxtowe, the question was, whether Nottingham Castle was within the Hundred; and it was held that orders made at the County Sessions between 1654 and 1660, in which the castle was described as being within the Hundred, were admissible, as the justices must be presumed to have had sufficient acquaintance with the subject to which their declarations related ; and that although contrary evidence that the castle was excepted from the Hundred was given from DomesdayBook, and an old charter of Henry VI., the judge was right in telling the jury to act on the evidence of a more modern and continuous reputation. But when the
1 14 East, 329 n.
14 East, 331.
8 Ad. & El. 516.
Prichard v. Powell, 10 Q. B. 589.
54 B. & Ad. 273.
question was as to the rights of the county of the City of Chester; as between that city and the County Palatine of Chester; a decree by a Lord Treasurer and other persons who were not a competent tribunal, and who had no personal knowledge of the facts except such as they derived from an irregular judicial proceeding, was held inadmissible evidence of reputation.1 So an extra-judicial report by a government surveyor, appointed by Queen Elizabeth, as to the boundaries of a manor has been rejected as evidence of such boundaries. "The surveyor," said Lord Denman, "does not appear to have had any authority to institute the inquiry; and, stripped of this authority, he has not merely no right to make any kind of return, but the presumption that he did make it falls to the ground. The paper may have been written by any clerk idling in the office, from his own imagination, or compelled, possibly, by some interested person in furtherance of a sinister object of his own." ."2 And, an old survey of landed property, taken under the directions of a former proprietor, is no evidence that he was entitled to it.3
In the recent case of Hammond v. Broadstreet, in the Exchequer Chamber, on a question in replevin whether goods were taken in Norfolk or Suffolk, a map of Suffolk purporting to have been republished in 1766, with corrections and additions, by the sons of J. K., from a map published in 1736 by J. K., who then took an accurate survey of the whole country, was tendered to show that the locus in quo was not in Suffolk. It was produced by a magistrate of both Norfolk and Suffolk, who had purchased it twelve or fourteen years previously, and before any dispute as to the boundaries had arisen. The court rejected the evidence chiefly on the ground that the new editors did not appear to have had any personal knowledge of
1 Rogers v. Wood, 2 B. & Ad. 245.
2 Evans v. Taylor, 7 B. & A. 617; S. C. 3 N. & P. 174. Daniel v. Wilkins, 21 L. J. 236, Ex.
4 S. C., 23 L. J. 332, Ex.
the subject, nor to be in any way connected with the district, so as to make it probable that they had such knowledge.
This case also illustrates the important principle that, before ancient documents can be received as evidence of reputation, it must be proved that they have come from the custody of a person who is presumptively connected sufficiently by knowledge with the matter in dispute, so as to render him an authority. They must also bear the plain marks of authenticity. Thus, in the above case it was held, that the fact of the map being in the possession of a county magistrate did not vouch for its accuracy; and that it was unlike the case of a deed of conveyance found in the custody of a party, who, if it were genuine, would be entitled to it.
The conversations of former tenants of a manor, and of other persons interested in it, appear to have been held good evidence as to the boundaries of the manor.1 But a survey of a manor belonging to Oliver Cromwell, and taken by commissioners appointed by him, containing also a presentment by a jury that certain dues were payable to the lord, was held inadmissible as a public document, or as reputation to prove such dues.2 And the case of Weeks v. Sparke, and the whole doctrine by which personal prescriptive rights have been identified in a great measure with public and general rights have been much shaken by a late case in the Exchequer Chamber. There the question in trespass was, as to the property in a plot of ground which lay between the waste of the plaintiff, and the estate of the defendant. The plaintiff offered evidence of statements made before any controversy arose, by his deceased tenants, who as such had exercised commonable rights over the waste adjoining the locus in quo;
1 Doe d. Molesworth v. Leeman, 15 L. J. 338, Q. B. Duke of Beaufort v. Smith, 19 L. J. 97, Ex.
3 Supra p. 78.
Earl of Dunraven v. Llewellyn, 19 L. J. 388, Q. B.
and other statements made by deceased persons, who, although not tenants were resident in the manor, and well acquainted with it. No evidence was given of an actual enjoyment of the right on the close by the tenants. Parke, B., said :- "If the question had been one in which all the inhabitants of the manor, or all the tenants of it or of a particular district of it, had been interested, reputation from any deceased inhabitant or tenant, or even deceased residents in the manor, would have been admissible, such residents having presumably a knowledge of such local customs: and if there had been a common law right for every tenant of the manor to have common on the wastes of a manor, reputation from any deceased tenant as to the extent of those wastes, and therefore as to any particular land being waste of the manor, would have been admissible. But, although there are some books which state that' common appendant,' is of ' common right; and that 'common appendant' is the 'common law right of every free tenant of the lord's wastes,
it is not to be understood that every tenant of a manor has by the common law such a right, but only that certain tenants have such a right, not by prescription, but as a right by common law incident to the grant. This right therefore is not a common right of all tenants, but belongs only to each grantee (before the statute of quia emptores) of arable land by virtue of his individual grant, and is an incident thereto; and it is as much a peculiar right of the grantee as one derived by express grant or prescription. . . We are therefore of opinion that the case is precisely in the same situation as if evidence had been offered that there were many persons, tenants of the manor, who had separate prescriptive rights over the lord's wastes; and reputation is not admissible in the case of such separate right, each being private, and depending on each separate prescription, unless the proposition can be supported that, because there are many such rights, the rights have a public character, and the evidence, therefore, becomes admissible. We think this position
cannot be maintained. . . We are of opinion, therefore, that the evidence of reputation offered in this case was, according to the well established rule in the modern cases, inadmissible, as it is in reality in support of a mere private prescription; and the number of these private rights does not make them to be of a public nature.”
On an issue whether or not certain land, in a district repairing its own roads, was a common highway; it has been held admissible, but slight evidence that, before the point was litigated, the inhabitants held a public meeting to consider the repair of the way, and that several of them, since dead, signed a paper on the occasion, stating that the land was not a public highway. So the verdict or presentment of a jury, summoned by a court of competent jurisdiction to determine the boundaries of two manors is admissible evidence of reputation, in an issue as to the boundary of a third manor, which is conterminous with one of the former.2 Some of the remarks of the learned judges, in this last case may appear to be at variance with the later case of the Earl of Dunraven v. Llewellyn. Thus, Coleridge, J., states: On the question of boundary, between two owners, no doubt reputation is admissible.' But this observation must be limited by the circumstances of the case, which seem to have been regarded as converting an apparently personal question into one of a public nature.
Since the present chapter has been in type, the general doctrine has been re-opened, and discussed elaborately in the case of Reg. v. Inhabitants of Bedfordshire. There, on an indictment against a county for not repairing a public bridge, the defendants pleaded that A. was liable to repair a portion, ratione tenuræ of the manor of O.; G. a certain other portion, ratione tenure of the manor of H.; and T. the residue, ratione tenure of the manor of C. Evidence of reputation
1 Barraclough v. Johnson, 8 Ad. & El. 99.
2 Brisco v. Lomax, 8 Ad. & El. 198.
33 Weekly Reporter, 205 Q. B.; 24 L. T. 268, Q. B.