90

LAW OF EVIDENCE.

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 suspicion 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 terriers are received to prove the amount of vicarial tithes.5

1 Clarkson v. Woodhouse, 3 Doug. 189; S. C., 5 T. R. 412, n. 2 Rogers v. Allen, 1 Camp. 309.

31 Phill. 235.

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

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

CHAPTER IX.

ON EVIDENCE OF ANCIENT POSSESSION.

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 the 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; 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 that

XXXVII. 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,' 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 1728, and as such had been indorsed by thelatter. This was

1 Tayl. 436; 1 Phill. 234. 2 7 East, 279.

I 3

that before 1697, Bishop Dopping collated his own son. It related, therefore, to a real transaction which took place at the time; and although it might be said to have related in some degree to the see, for the right of collation was claimed, as of an advowson granted to the see; yet it is manifest this case had been stated with reference to the private interests of the bishop in the particular avoidance, and that it was more reasonable to expect it to be preserved with his private papers, and family documents, than in the public registry of the diocese. But even considered as a document belonging to the see, it was not unreasonable that it should have been found in the bishop's mansion house; for, upon the evidence, there is only one single ecclesiastical record preserved in the registry of the diocese of Meath, of an earlier date than 1717; and on the other hand, the case and grant are found in the same parcel with several papers relating to the see of Meath, and in the same room were several visitation books of the diocese and other papers relating to the same see."

It appears from this case, that it is not necessary that the custody should be that which is strictly proper: it is sufficient if it be one which may be reasonably and naturally explained. But it is not sufficient to produce the documents without calling a witness to prove the custody from which they come.2

It is laid down by Mr. Phillipps,3 as a condition annexed to this class of evidence, that some act, e.g., of recognition or enjoyment, done with reference to the documents, is required to be shown if the nature of the case permits it: but he admits that where this cannot be done from the antiquity of the document, it will be admissible without such proof. It appears doubtful whether the qualification will hold even in this restricted form, and it is denied by Mr. Taylor.

1 Doe dem. Neale v. Sampter, 8 Ad. & El. 154.

2 Evans v. Rees, 10 Ad. & El. 154.

31 Phill. 236; contrà, Tayl. 435.

The

1

latest authority rather confirms the latter view-Doe d. Egremont v. Pulman, where, in ejectment to prove that an ancient ancestor had been seised of the locus in quo, the lessor of the plaintiff produced from her muniment room, the counterpart of an old lease, purporting to be granted by the ancestor, but executed only by the lessee. It was held admissible, without proof, that the lessee had actually enjoyed under it.

It is said to be an established principle, that nothing said or done by a person having at the time an interest in the subject-matter, shall be evidence either for him or persons claiming uuder him:2 and, therefore, in a settlement case,3 an old entry in a parochial book, was held not to be evidence of the terms under which

a pauper resided in the parish. So, entries made by a deceased person, through whom the defendant claims, acknowledging the receipt of rent for the premises in question, are not evidence of title for the defendant.4

1 3 Q. B. 623.

2 Abbott, C. J., R. v. Debenham, 2 B. & Ald. 185.

3 Ibid.

4 Outram v. Morewood, 5 T. R. 123.

CHAPTER X.

ON EVIDENCE IN QUESTIONS OF PEDIGREE.

In questions of pedigree, or inquiries concerning relationship or descent, the rule by which hearsay evidence has been excluded is waived, and it is held that

XXXVIII. The statements of deceased persons, who were connected by blood or marriage, to the family in question, are admissible in cases of disputed pedigree.1

"There

In Davies v. Lowndes,2 Parke, B. said :— seems to be no limitation in the rule as to blood relations; but with regard to relationship by affinity, it is different: it seems to be confined to declarations by a husband, as to his wife's relations." It is for the judge to decide as a question precedent to the admission of the evidence, whether the declarant has been sufficiently proved to have been connected by consanguinity or affinity to the family in question; and it makes no difference that the legitimacy of the declarant happens to be also the only question in issue.3

It is held that the declarations must have been from persons having such a connection with the family that it is natural and likely from their domestic habits, that they are speaking the truth, and could not be mis

1 Tayl. 414.

2 7 Scott N. R. 188.

3 Doe d. Jenkins v. Davies, 16 L. J. 218, Q. B.