evidence of a right beyond the memory of living witnesses, and On question of thus tends to support the modern usage. (o) public right, or custom. boundaries, 2. In questions upon a boundary between parishes or manors, (1) Hearsay as to or on a customary right, (2) (p) or on parochial or manorial cus- customs, &c. toms, (2) declarations made by deceased persons, who from their situation had the means of knowledge, and no interest to misrepresent, are admissible in evidence. tions. Perambulations are evidence of the extent of a particular parish Perambulaor manor; since it may be inferred, that those who perambulated believed the line of their perambulation to be the boundary of the district, and such acts are in some measure an exercise of the right. (3) Such evidence has been admitted from analogy to cases of public rights, in which it is clearly established, that reputation is admissible. (q) A right of common by custom is, strictly speaking, a private Common. right; but it is also a general right, and therefore (so far as regards the admissibility of this species of evidence) has been considered as public, because it affects a large number of occupiers within a district. But it is to be observed, the evidence is to be confined to what such old persons have said, as were in a situation to know what the rights were: and before a customary right can be proved by such evidence, a foundation ought to be laid by showing an exercise of the right, or acts of enjoyment within the period. of living memory; it is the exercise of the right that lets in the evidence of reputation. (4) Where, indeed, the subject-matter does not admit of acts of enjoyment or the exercise of a right, there the opinion of the place is of itself admissible in evidence; as, on a question of parochiality, proof of reputation, unaccompanied by evidence of acts done, is clearly admissible. (1) Nichols v. Parker, 14 East, 331. 1 Maule & Selw. 81. Parker, ib. 331, n. And see Weeks (2) Denn v. Spray, 1 T. R. 466. (3) 1 Maule & Selw. 687, 689. (0) See Note 475, p. 626. (p) See Note 476, p. 628. (q) See Note 477, p. 628. VOL. I. 32 On question of public right, or custom. Post litem mo tam. Declarations as to boundaries or customs, &c. made post litem motam, that is, after the very same point or question has become the subject of controversy, are not admissible. (1) But, unless there should appear to be a controversy as to the same precise point, it will not be enough, for the purpose of excluding the declarations of deceased persons, to show, that they claimed under the same custom. This kind of evidence has been received, on a question of parochial modus, though the deceased was a parishDeclarations ioner, and occupier of lands; (2) so also, on a question of parochial or manorial boundary, although the persons who had been heard to speak of the boundary were parishoners, and claimed rights of common on the very wastes which their declarations had a tendency to enlarge. (3) Modus. of occupiers. Tradition of been done in For the fact, Although, on a question of boundary or custom, the general opinion of the place is evidence of the general right, yet the tradition of a particular fact (as, that turf was dug, or a post particular fact. put down in a particular spot, &c.) said to have the exercise of that right, will not be evidence. (4) which is the subject of tradition, may have been done under a licence from the very persons against whom, or against whose representatives, the right is afterwards claimed; and, in general, single facts are so frequently misrepresented, or misreported, either from intention or from ignorance, and the various circumstances, which have accompanied a fact, and which may be essentially characteristic, are often so little known, or, if known, are so likely to pass unobserved, and to be forgotten in the course of time, that no credit can safely be given to such a tradition. Thus, on a question of parochial modus, evidence that a particular person, since deceased, paid a certain sum in lieu of tithes, would not be admissible; but if the witness says, he has heard from old inhabitants, that so much per acre was always paid in lieu of the tithes, or that it had always been the custom to make such payments, that will be good evidence; for Modas. (1) 11 Price, 180. Vide supra, p. (2) Harwood v. Sims, 1 Wightw. (3) Nichols v. Parker, 14 East, 331, tried before Le Blanc, J. 1805. (4) 3 T. R. 709. 5 T. R. 123. 14 East, 330, 331. 1 Maule & Selw. 687. Chatfield v. Fryer, 1 Price, 253. Gar Pedigree. it does not consist of hearsay of a particular fact, but comes within On question the general rule of evidence of reputation. (1) And, in questions right. of prescriptive of pedigree, as the reputation must necessarily proceed on particular facts, such as marriages, births, and the like, the hearsay of the family respecting these particular facts, from the necessity of the case, is not excluded. (2) With respect to the admissibility of common reputation, as evi- Hearsay as to dence of prescriptive rights strictly private, there has been consid- Prescriptive rights. erable doubt. In one of the latest cases on this subject, (3) where, on a motion for a new trial, the question was, whether such evidence ought to have been received, as evidence of a prescriptive right of digging stones on a waste, the Court of King's Bench was equally divided. A book of authority lays it down broadly, that "in questions of prescription, it is allowable to give hearsay evidence, in order to prove general reputation; and that, therefore, where the issue was on a right of way over the plaintiff's close, the defendants were admitted to give evidence of a conversation between persons not interested, then dead, wherein the right to the way was acknowledged." (4) But, on the other side, there are Not evidence. many great authorities against receiving this kind of evidence. (5) And there appears to be good reason for the distinction. For where individuals claim merely a private right, other people have not the same means of knowing it, nor, if they had, would they have the same interest to examine it. How, for instance, can the conmon belief among the inhabitants of a parish supply any kind of information, on a question of right of way claimed by an individual over a particular field ?(6) In such cases, common reputation appears to also Price v. Littlewood, 3 Campb. (5) Lord Kenyon in Reed v. Jack- (6) See 1 Maule & Selw. 691. Old leases, rent-rolls, &c. Prescription affecting general right. Old leases, rent-rolls. give no satisfactory information, and to be inapplicable to the point in issue. In the case of Weeks v. Sparke, (1) one of the latest cases on this subject, which was an action for a trespass on the plaintiff's close, parcel of a common, &c. the defendant justified for a prescriptive right of common at all times over the place, &c. and the plaintiff in his replication prescribed to use the place for tillage, &c. qualifying the defendant's general right; to support this prescriptive right of tillage, the plaintiff offered evidence of reputation, which was received at the trial; and the Court of King's Bench were of opinion, that it had been properly admitted, on the ground that the right claimed by the plaintiff, although claimed by prescription, yet was an abridgment of the general right of common over the waste, and affected a large number of occupiers within the district. Fourthly, as to the admissibility of old leases, rent-rolls, and surveys. Old leases and old rent-rolls have, in certain cases, been received in evidence, in favor of a party claiming under the lessors. (2) On a question, whether certain lands, which had been (1) Maule & Selw. 679. See City of London v. Clerke, Carth. 181. (2) Newburgh v. Newburgh, Vin. Abr. tit. Evid. T. b. 43. 3 Brown, * It has been said, that in the case of the Bishop of Meath v. Lord Belfield (a) in a quare impedit, after the plaintiff had given in evidence an entry, in the register of the diocese, of the institution of one K., (in which entry there was a blank, where the patron's name is usually inserted,) parol evidence of the general reputation of the country was offered, that K. was in by the presentation of one, under whom Lord Belfield claimed; and that upon a bill of exceptions, this evidence was adjudged to be admissible, on the ground that a presentation may be by parol, and what commences by parol may be transmitted to posterity by parol, and that this creates a general reputation. But Lord Kenyon, adverting to this case, in the case of the King v. Eriswell, (b) said, he admitted, that a presentation might be by parol, and might be proved by parol, that is, by a witness who was present and heard it : but he denied, that, in such a case, common reputation could be given in evidence. If it can, he added, why might not such evidence decide titles to estates, at least before the statute of frauds, when no written instrument was required to make a good feoffment of the greatest landed property in the kingdom? (a) Bull. N. P. 295, and cited by Buller J. in Rex v. Eriswell, 3 T. R. (b) 3 T. R. 723. Tellard v. Shebbeare, 2 Wils. 366. of leases. approved from a waste, were subject to a right of common, several Old leases, counterparts of old leases, kept among the muniments of the lord rent-rolls, &c. of the manor, by which the land appeared to have been demised Counterparts by the lord free from any such charge, were allowed to be evidence for the plaintiff, who claimed under the lord of the manor, against the defendant in trespass, who justified for common of pasture; they were admissible in evidence to prove this fact, that, at the time of their respective dates, the lord of the manor granted the land free from common; and though possession under the leases was not shown, yet that was not an objection against the admission of the evidence in this case, as the leases were so old, that no person could speak to possession under them. (1) Where the question was whether the plaintiffs were entitled to Court-rolls. a prescriptive right of exclusive fishery in a navigable river, which they claimed under the lords of the manor, they were allowed to give in evidence old entries of licences on the court-rolls of the Licences. manor, stating that the lords of the manor had the several fishery, and had granted the liberty of fishing for certain rents: nor was it thought necessary to prove payment under these licences, as they were of such an ancient date, that evidence of payment could not reasonably be expected. (2) The old licences were, therefore, admitted: but it was added, that they would not be entitled to any weight, unless payment under similar licences could be proved in later times, or that the lords of the manor had exercised other acts of ownership, which have been acquiesced in. Entries by a deceased person, of the receipt of rent for partic- Entries of reular lands, would not be evidence for a party claiming under ceipt of rent. the deceased, to show that the lands belonged to his ancestor. Thus, in the case of Outram v. Morewood, (3) (where one of the points to be established was, whether certain lands, described in ancient title deeds, were the same, for which certain rents had been at several times paid,) the Court of King's Bench determin (1) Clarkson v. Woodhouse, 2 T. R. 412, (a). (2) Rogers and others v. Allen, 1 Campb. 309, before Heath, J. (3) 5 T. R. 123. And see Lord Pomfret v. Smith, 7 Brown, P. C., 169, Toml. ed. 5 T. R. 413, n. |