Rector's books, old the deceased was a parishioner, and liable to pay tithe (1); so also, on a question of parochial or manorial boundary, although the persons, who had been heard to speak of the boundary, were parishioners, and claimed rights of common on the very wastes, which their declarations had a tendency to enlarge. (2) 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 such a turf was dug, or such a post put down in a particular spot, &c.) said to have been done in the exercise of that right, will not be evidence (3); for the fact, which is the subject of tradition, may have been done under a licence from the very persons, against whom or against whose privies, &c. 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, that will be good evidence; for it does not consist of hearsay of a particular fact, but comes within the general rule of evidence of reputation. (4) Entries made by a deceased rector in his book, of the receipt of ecclesiastical dues, have been in several cases admitted as evidence for his successor; because, it is said, (1) Harwood v. Sims, 1 Wightw.112. tried before Le Blanc J. 1805. (3) 3 T. R. 709. 5 T. R. 123. 14 East, 330, I. I Maul. & Sel.687. he had no interest to mistate the fact, in making an entry, which could not possibly be evidence for himself (1). "This, as Lord Hardwicke once said (2), is going a great way, but has been allowed, because the parson knows, that his entry cannot benefit either himself or his representative, who has nothing to do with the living; and it is not to be presumed, that the parson would make false entries for his successor, who stands indifferent to him." The cases however have gone still further; and similar entries, made by impropriate rectors, have been received as evidence for their successors, although objected to as coming from the owners of the inheritance (3). So, in a case where a question arose between an impropriate rector and a vicar respecting agistment tithe, the Court of Exchequer held that the books of a lessee of the rectory, stating the receipt of such tithe, were evidence, after the determination of their lease, for the impropriator (4); and entries by the steward of a former owner of the estate, containing an account of payments to the vicar in lieu of the tithes of particular lands, have been admitted as evidence for a succeeding owner against the impropriator (5). In the late case of Perigal v. Nicholson and others (6), on a bill for tithes filed by the vicar against the defendants, who insisted upon a modus for hay and agistment, the Court of (1) 7 East, 290. (2) 2 Ves. 43. (3) Anon. case, Bunb. 46. Anon. case, cor. King C. J. Vin. Ab. Ev. T. b. 73, and T. b. 117, art. 3. Illingworth v. Leigh, 4 Gwill. 1618. Woodnoth v. Ld. Cobham, 2 Gwill. 653; Bunb, 180, S. C. (4) Illingworth v. Leigh, 4 Gwill, 1618. (5) Woodnoth v. Lord Cobham, 2 Gwill. 653. (6) i Wightw.63; Wood B. dissenting. Such evidence is said to have been refused in Le Gross v. Levemoor, 2 Gwill. 527; has been mentioned as a singular exception by Ld. Kenyon in Outram v. Morewood, 5 T. R. 123; was disapproved of by Wood B. in Perigal v. Nicholson, I Wightw. Rep. 63, also by Price B. in Woodnoth v. Ld. Cobham, 2 Gwill. 653. King C. J., in a case before him in 1719, said, this evidence had been received per cursum Scaccarii, though he could not give a reason for it; Vin. Ab. Ev. (T. b. 73.) Exchequer admitted, as evidence for the plaintiff, an entry in the parish register, stating, that various moduses were due from the different townships of the parish for hay only, in which entry the sum total of all the moduses was in the handwriting of a preceding vicar, but it did not appear by whom the other part of the entry had been made. The majority of the Court held, as the report states, that the entry was admissible, upon the ground, that the vicar had no interest beyond his incumbency, and there did not appear to be any dispute at the time, or previously, respecting these tithes; and this entry, by admitting a modus in one article, was in abridgment of the rights of the vicar, and it was the application only which now accidentally became favourable to his successor. The cases in which rector's books have been received as evidence, in favour of a succeeding rector, against a stranger, appear to be very distinguishable from the cases. before cited, in which the declarations or written entries were made by deceased persons, peculiarly if not exclusively acquainted with the fact. The utmost to be said of these, is, that the declarations generally related to old facts, and were made by persons who could not have used them in their own favour; and the same may be said of a great variety of cases, in which the declarations of deceased persons have been uniformly rejected. The objection against hearsay (under which title such entries must be classed, for with respect to their admissibility it is not material, whether the declarations were written or merely spoken,) is, not that the person, who asserted the fact, might have been interested to misrepresent it, but that the assertion was made not under the sanction of an oath, and that the party, against whom the evidence is offered, had no opportunity of questioning the person as to the supposed fact. Here, the declarations were not against the interest of the person who made them, and were produced against a stranger; and further, the rights sought to be established by such declarations were in their nature capable of various other kinds of proof. Old leases and old rent-rolls have been received in evidence, in favour of a party claiming under the lessors (1). And, on a question, whether certain lands, which had been approved from a waste, were subject to a right of common, several counterparts of old leases kept among the muniments of the lord of the manor, by which the land appeared to have been demised 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, though possession under the leases was not shewn; the leases being so old, that no person could speak to possession under them (2). So, where the question was, whether the plaintiffs were entitled to 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 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 (3). 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 had been acquiesced in. A survey of a manor or estate, made by the owner, is not evidence against a stranger, in favour of a succeeding owner, that particular lands are parcel of the estate (4). (1) Newburgh v. Newburgh, Vin. Ab. "Evidence," T. b. 43. 3 Brown. Parl Cases, 553, last edit. Per Heath J. in 1 Campb. 309. (2) Clarkson v. Woodhouse, 5 T. R. 412, (a). (3) Rogers and others v. Allen, I Campb. 309, before Heath J. (4) Anon, 1 Str. 95. But But a survey, which was delivered by the owner to a purchaser of part of his estate, would be evidence against such former owner and against a purchaser of the other part; as in the case of Bridgman v. Jennings (1), where Lord Holt ruled, that if A be seised of the manors of 'B and C, and during his seisin of both he causes a survey to be taken of the manor of B, and afterwards the manor of B is conveyed to E, and afterwards there are disputes between the lords of the manors of B and C about their boundaries, that this old survey may be given in evidence: but it would be otherwise, said Lord Holt, if the two manors had not been in the hands of the same person at the time when the survey was taken. A survey, then, which has been made by a former owner of the estate, is not evidence of the locality or identity of land against any person, who was a mere stranger to the survey. So, in the case of Outram v. Morewood (2), (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 determined, that entries, made by a deceased person, under whom the defendant claimed, acknowledging the receipt of rent for the premises in question, were not admissible evidence for the defendant. Lord Kenyon on that occasion said, "This is distinguishable from all the cases cited. In those, something was produced in respect of the interest of the party; and what the party did or said may be evidence against himself. But here, the entry was a mere private memorandum, to remind the person that he had received the rent, and cannot be admitted to decide the right between these parties. Evidence of this kind can only be admitted to restrain, not to advance, the interest of the party who makes it. What a man does in his closet ought not to affect the rights of third persons. There is (1) 1 Ld. Raym. 734. Gilb. Ev. 70. And see Davies v. Pierce, z T. R. 53, cited suprà, p. 182. (2) 5 T. R. 123. And see Lord Pomfret v. Smith, 7 Brown P. C. 5 T.R. 413. n. only |