was tendered by the defendants to show that, by immemorial custom, the respective parties mentioned in this plea had repaired the respective portions. The evidence was rejected at the trial, apparently on the ground that the interests were of a private nature; but the court held that the evidence ought to have been received. Lord Campbell, C. J., after recognising the general principle, that public reports ought not to be held admissible so as to affect the rights of private persons," proceeded to say:-"Upon the question here raised, all the inhabitants of the county who have property liable to be assessed to the county rate, have an interest whether this bridge was to be repaired in part by the owners of certain lands, ratione tenure; such persons would be affected by the verdict of the jury; and then there are others whom it would also affect, viz., those who require to use the bridge, and to them it is of importance upon whom the liability rests to repair the bridge. If a prosecution arises, heavy expenses are sure to be incurred, and therefore such questions are certain to be discussed, and a true reputation is very likely to exist. . . . Certainly, the question objected to in this case touches the rights of individuals; but then it also affects that of the county and the rate-payers. For these reasons, we think that evidence of reputation was improperly rejected."

In questions concerning the admissibility of reputation, distinctions have been drawn between cases in which a public interest, and others in which merely a general or local interest, is concerned. But reputation appears to be equally receivable to both instances, although its value will depend essentially on the vicinity of the witness to the locus in quo, and his personal knowledge of the surrounding circumstances.

"In a matter in which all are concerned, reputation from any one appears to be receivable; but of course it would be almost worthless, unless it came from persons who were shown to have some means of knowledge, as by living in the neighbourhood."1

1 Parke, B., Crease v. Barrett, 1 C. M. & R. 929.

2. The next important restriction on the rule under consideration, is contained in the principle that,

XXXVI. The declarations of deceased persons are not admissible as reputation, unless they have been made ante litem motam, i. e. before the issue has become, or appeared likely to become, a subject of judicial controversy.

In R. v. Cotton,1 Dampier, J. said "The reason why the declarations of deceased persons [are admitted] upon public rights made ante litem motam, when there was no existing dispute respecting them is, that these declarations are considered as disinterested, dispassionate, and made without any intention to serve a cause or mislead posterity. But the case is entirely altered post litem motam, when a controversy has arisen respecting the point to which the declarations apply. Declarations then made, are so likely to be produced by interest, prejudice, or passion, that no reliance can safely be placed upon them, and they would more frequently impose upon the understanding, than conduce to the elucidation of the truth. It has, therefore, been wisely decided, that evidence of reputation arising post litem motam shall not be admitted."

Thus, the presentment of a homage, sworn to determine boundaries, has been rejected, because they had no jurisdiction, and because it amounted to a declaration post litem motam.2 But in an action by a copyholder against his lord, where the question was as to the amount of fine payable to the latter; the incidental depositions of witnesses in an action by a former claimant against a former lord, have been admitted as evidence for the lord, as depositions of persons called

1 3 Camp. 446.

2 Basset v. Richards, 10 B. & C. 657.

on behalf of a person standing in pari jure with the plaintiff, and because the same custom was not in controversy.1

It seems to be settled that, the lis mota dates, not from the commencement of an action or suit; nor even from the commencement of actual litigation; but from the time when the question began to attract public attention as a controversy. "The line of distinction is the origin of the controversy, and not the commencement of the suit. After the controversy has originated, all declarations are to be excluded, whether it was or was not known to the witness."2

1 Freeman v. Phillipps, 4 M. & S. 497. 2 Per Mansfield, C. J., 4 Camp. 417.

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.

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.♪

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

3 1 Phill. 235.

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

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