however, that although a private interest should be involved with a matter of public interest, the reputation respecting rights and liabilities affecting classes of the community cannot be excluded, or this relaxation of the rule against the admission of hearsay evidence would often be found unavailing" (n). In order, however, to make hearsay testimony admissible, it must be shown that the persons making the declaration or statement had a personal and competent knowledge of the subject (o); but if it can be fairly assumed from the nature of the evidence that it was derived from persons acquainted with the facts, the Courts will not demand particular evidence of their knowledge (p); and it has been said that if the question is one in which all the inhabitants within the manor, or all the tenants of it, or a particular district of it, are interested, reputation from any deceased inhabitant or tenant or even deceased resident in the manor would be admissible, such residents having presumably a knowledge of such local custom (q). It is also a further requisite that declarations by deceased persons, when tendered as evidence of reputation, must be shown to have been made ante litem motam, or in other words, before any controversy or dispute arose regarding the actual matter to which they relate (~); but the mere fact that there was previously a controversy regarding a matter very similar in its nature to the dispute which subsequently arises will not make declarations which have been made during the continuance of the first suit unavailable as evidence in a later action on the ground that they had been made after the controversy arose (s). On the principles above stated, evidence

(n) Per Curiam in Reg. v. Bedfordshire (Inhabts. of), 4 E. & B. 535, 541.

(0) Rogers v. Wood, 2 B. & Ad. 245, 256; Crease v. Barrett, 1 C. M. & R. 919.

(p) Freeman v. Phillipps, 4 M. &

S. 486.

(9) Dunraven (Earl of) v. Llewellyn, 15 Q. B. 791, 809.

(r) Taylor, Evidence, 8th ed.

554.

(s) Freeman v. Phillipps, 4 M. & S. 486.

of what old persons who were dead had been heard to say concerning the general boundaries of two manors, though not as to particular facts or transactions, was admitted in an action where the question was whether a certain common or waste was in one or other of the manors in question, even although the old persons lived within the manor and claimed rights of common on the waste, which would have been enlarged by their declarations, as it did not appear that there was at the time any dispute or litigation pending regarding the rights of the declarants (t). So, also, evidence of reputation has been admitted to prove not only that there was a known distinction within the manor between old and new land, but also to show what the boundaries of the new land were, and what was the general right of the lord over such land (u). Again, in an action concerning wreck, an ancient document purporting to be the answers of deceased tenants to commissioners appointed by a former lord was allowed as evidence of the boundary of the manor, but not of the private right to the franchise, as it was not a matter of public concern, or one respecting which the tenants had any peculiar means of knowledge (). But evidence of reputation will not be admissible where the question is as to the boundary between two private estates, or where the evidence goes to establish a particular fact; thus, declarations of old persons deceased as to what was the ancient boundary of a waste were not admitted where the question was whether the waste was parcel of a certain farm (y); and so in the case of Dunraven (Earl of) v. Llewellyn (≈), the declarations of tenants having only rights of common appendant over a waste were held inadmissible to prove that a certain spot

(t) Nicholls v. Parker, 14 East, 331, n.

(u) Barnes v. Mawson, 1 M. & S. 77, 81.

(x) Talbot v. Lewis, 1 C. M. & R. 495.

(y) Clothier v. Chapman, 14 East, 331, n.

(2) 15 Q. B. 791, 811, explaining Weeks v. Sparke, 1 M. & S. 679; and Prichard v. Powell, 10 Q. B. 589.

By the verdict of a jury.

was part of the manorial wastes, the Court being of opinion that, as the right of each tenant was a separate and private right and was not of a public character, reputation was inadmissible.

The boundary of a manor may also be proved by the verdict of a jury in a former action between third parties, for the verdict, though not reputation, is at least as good as evidence of reputation. Thus, where the question related to the boundary between two manors A. and B., and the plaintiff's contention was that a ridge of mountain was the boundary line, it was held that he might show in support of his case that the boundary between an adjoining manor C. and the manor B. was the ridge of the same line of mountain, and that he might prove the fact by the finding of a jury, who had been summoned under a commission from the Duchy Court of Lancaster for the purpose of determining the boundary between the manors C. and B. on the petition of former owners of C. and B., who had represented that the boundary was uncertain and that Not by award suits were likely to grow between them (a). But the

of arbitrator.

Terriers, surveys, &c.

award of an arbitrator setting out a boundary, as proved before him, cannot be received as evidence of the boundary (b).

Again, ancient records, terriers, presentments at manorial courts, surveys, conveyances, &c., have been admitted as evidence of reputation, or as equivalent thereto; but it must be shown that they come from a proper custody (c), and have been made under the proper authority (d), and they will then be receivable as public documents, for a document which appears to be no more than a survey taken by a private individual for his own purposes will not be received in evidence as a public document (e). But

(a) Brisco v. Lomax, 8 A. & E.

198.

(b) Evans v. Rees, 10 A. & E. 151.
(c) Ibid.

(d) Evans v. Taylor, 7 A. & E. 617.

(e) Daniel v. Wilkin, 7 Ex. 429; Phillips v. Hudson, L. R. 2 Ch.

an ancient survey of Crown lands, which came out of a proper custody and appeared to have been properly taken, has been admitted, although the commission could not be found (ƒ). Manorial surveys must be signed by the tenants, and presentments made by a jury of survey must be properly signed, and must be made at a court of survey (g). Such presentments are not admissible if made post litem motam. Thus in a case relating to the title of the soil of a sheepwalk a presentment on the court-rolls was rejected, wherein the jurors recited that they were sworn to view the land in question, and stated upon oath that it was part of a certain waste and not part of the freehold tenement, and it was held that it could not be admitted as a proper presentment, because the homage had no power to decide the question of private right, nor as an award for want of mutual submission, nor as evidence of reputation, because it was made after the commencement of the dispute (h).

To prove the extent and rights of a manor, formerly part of the Duchy of Lancaster, a document from the office of the Duchy, purporting to be a survey made by a former deputy-surveyor, founded on the presentments of the tenants at a court of survey, was held to be inadmissible, either as a document made under public authority, or as evidence of reputation, it appearing that the Crown had paid the expenses of the survey; and an argument based on the duties imposed on the surveyor by the Statute 'Extenta Maneri,' was rejected, because the Statute did not impose the duty of ascertaining the boundaries of manors (). A survey taken under a commission from the Crown, to which at the time the manor belonged, was admitted to show the extent of the demesne-lands at that

(f) Rowe v. Brenton, 8 B. & C. 737, 747.

(g) Vin. Abr. xii. 90, pl. 12; Stark. Evid. 473.

(h) Richards v. Bassett, 10 B. &

C. 657.

(i) Evans v. Taylor, 7 A. & E. 617; see Beaufort (Duke of) v. Smith, 4 Exch. 450. As to Statute Extenta Manerii, see ante, p. 4.

Presentments in court-rolls.

time (j). And an ancient survey of Crown lands, found in the office of Land Revenue Records and purporting to have been made by a proper authority, was taken as evidence of the title of the Crown to lands therein stated to have been purchased from a subject (k). It may be mentioned here that surveys of Church lands and Crown lands were taken in the time of the Commonwealth by commissioners acting under the authority of Acts or Ordinances of the Parliament, the copies of the surveys being deposited in many of the cathedrals, and in some cases in Lambeth Palace Library. "The originals would have been good evidence of the particulars of the surveyed estates; but as they were destroyed at the time of the great fire of London, the copies have been admitted as evidence in the place of the original surveys, provided they have been kept in unsuspected repositories" (). Private surveys and records can only come into evidence as declarations against interest (m).

Presentments in a court-roll are not evidence that the lord has acted as the owner of lands in dispute (n); nor are presentments of fines, amercements, or the like, evidence that the payments were due, unless the payment is also proved. But in a case where the question was whether the plaintiffs had a prescriptive right of exclusive fishery which they claimed under the lords of the manor, and as appurtenant to the manor, they were allowed to give in evidence entries of licences on the court-rolls of the manor, whereby it appeared that the lords had a several fishery and had granted liberty to fish in consideration of certain rents, without the necessity of proving payment under these licences, as they were of such ancient date that evi

(j) Dimes v. Arden, 6 N. & M. 494. (k) Doe d. King Will. IV. v. Roberts, 13 M. & W. 520.

(7) Phill. Evid. i. 405; Bullen v. Michel, 2 Price, 399.

(m) Bridgman v. Jennings, 1 Ld. Raym. 734; Phillips v. Hudson, L. R. 2 Ch. 243.

(n) Irwin (Visct.) v. Simpson, 7 Bro. P. C. 306, 317.