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215; or parochial chapelry; Carr v. Mostyn, 5 Exch. 69 ; a toll traverse ; Brett v. Beales, M. & M. 416 ; a ferry ; Pim v. Curell, 6 M. & W.234 ; á county bridge ; R. v. Bedfordshire, 4 E. & B. 535 ; 24 L. J., Q. B. 81; a several fishery ; Neill v. Duke of Devonshire, 8 Ap. Ca. 135, D. P.; or a right of freewarren by prescription over an entire manor, including demesne and tenemental lands ; Carnarvon, El. of, v. Villebois, 13 M. & W. 313. Therefore the declaration of deceased copyholders; or a saving of the right in a private act for inclosure, inter alia, of copyholders' common rights; or a verdict and judgment against a copyholder, are all evidence of such a right of freewarren. š. C., Id. A deed between the lord and certain copyholders, ratifying customs claimed by the latter in consideration of a payment to the lord, is evidence as against other copyholders where they set up a general custom negatived by the deed. Semb. Anglesey, Ms. of, v. Hatherton, Ld., 10 M. & W. 218. A customary heriot payable by a freeholder of a manor, may be proved by presentments and payments of heriots by other freeholders of the manor. Damerell v Protheroe, 10 Q. B. 20. Reputation is admissible to prove the prescriptive liability of certain landowners to repair a county bridge ; for it is a matter of public interest, though private interests are also involved. R. v.Bedfordshire, supra; overruling Å. v. IV avertree, 2 M. & Rob. 353.

But to prove a prescriptive right, strictly private, such evidence is not admissible ; Morewood v. 'Wood, 14 East, 327 ; Richards v. Bassett, 10 B. & C. 663; and Weeks v. Sparke, 1 M. & S. 687, where it was allowed in support of a claim of a prescriptive right for the plaintiff, owner of a certain estate, to abridge by tillage the rights of common appurtenant claimed by the defendant and many others, is overruled by Dunraven, El. of, v. Llewellyn, 15 Q. B. 791 ; 19 L. J., Q. B. 388, Ex. Ch. ; and see Pritchard v. Powell, supra. So, reputation as to the exemption of the sheriff of a county from the performance of a public duty, viz., the execution of criminals, was rejected in R. v. Antrobus, 2 Ad. & E. 793. But where the boundary of a tenement and a hamlet are proved to coincide, then evidence of reputation as to the bounds of the latter is legitimate evidence of the former. Thomas V. Jenkins, 6 Ad. & E. 525.

On a question whether a certain road was a highway, a copperplate map was produced, in which it was so described; it purported to have been taken by the direction of the churchwardens, and proof was offered that it was generally received in the parish as an authentic map; but Lord Kenyon rejected the evidence. Pollard v. Scott, Peake, 18. So the production of an old printed map of a county from the custody of a county magistrate, who had it some years in his possession, does not make it admissible to prove the bounds of the county. Hammond v. Bradstreet, 10 Exch. 390 ; 23 L. J., Ex. 332, Ex. Ch. It should seem, however, that if such a map had been supported by proof of its compilation by persons having particular means of knowledge of the bounds, or had been in some way sanctioned publicly as authentic, it might have been admissible as reputation ; otherwise there is no reason for attaching more value to an engraved map than to a printed book as evidence of its contents ; nor does the current use of it by those who reside in the district delineated in it imply an assent to all its details. The tithe commission maps are not, under 6 & 7 Will. 4, c. 71, s. 64, evidence as to the boundary of land in the case of disputed title. Wilberforce v. Hearfield, 5 Ch. D. 709. An old map commonly used at a manor court to define the limits of copyholds, is not evidence of a highway, though ways may be indicated upon it ; especially if it does not purport to describe them as public ways. Pipe v. Fulcher, 1 8. & E. 111; 28 L. J., Q. B. 12.

A public meeting called for the purpose of considering about repairing a way, at which several present signed a paper stating that it was not a public way, is evidence, though slight, against the right. Barraclough v. Johnson, 8 Ad. & E. 99. Even where general reputation is evidence, yet the tradition of a particular fact is not; as that a house once stood in a particular spot. Ireland v. Powell, Peake, Evid. 15. Nor is reputation admissible evidence of a farm modus. Pritchett v. Honeyborne, 1 Y. & J. 135. Where a question of public way was in issue, the declarations of a deceased occupier of land made whilst planting a tree, stating that he planted it to show the boundary of the road, are not evidence of the public right, for it is not a statement of general reputation but of a particular fact. R. v. Bliss, 7 Ad. & E. 550. The declarations of a deceased lord of the manor as to the extent of the waste are not evidence in extension of it. Crease v. Barrett, 1 C. M. & R. 919. Where the question was, whether a place was within the limits of a hundred, ancient entries of orders of justices in sessions, stating the place to be within such limits, were held to be evidence of reputation, though the justices were not proved to have been resident within the hundred or county. Newcastle, Dk. of, v. Broxtowe, 4 B. & Ad. 273. So the question being whether certain land is in the parish of A. or B., ancient leases, in which they are described as lying in parish B., are evidence that the land is in that parish. Plaxton v. Dare, 10 B. & C. 17. In assumpsit for tolls by a lessee of the corporation of Cambridge, an old deed of composition between it and the University, recognising the right, was admitted in behalf of the plaintiff, though not proved to have been acted upon. Brett v. Beales, M. & M. 416. Aliter of a mere award, not proved to have been acquiesced in. S. C. So an award inter alios is not evidence, as reputation, of the boundary of a parish and county. Evans v. Rees, 10 Ad. & E. 151 ; W'enman v. Mackenzie, 5 E. & B. 447. The finding of a jury, under a commission duly issued out of the duchy court of Lancaster on the petition of the parties to ascertain the bounds of adjoining manors, is evidence of such bounds. Brisco v. Lomax, 8 Ad. & E. 198. But an interlocutory order of the same court, containing only a provisional arrangement between the parties, is not evidence of reputation. Pim v. Curell, 6 M. & W. 234. Generally, a verdict, and judgment thereon, in a matter in which reputation is admissible evidence, is also admissible ; so of a decree, or inquest of office lawfully authorised. See post, Effect of documentary evidence. Reputation alone is said to be evidence of the existence of a manor. Steel v. Prickett, 2 Stark. 463 ; but it seems that some foundation should be laid by proof of acts done, as holding courts, &c. ; and the production of a deputation to kill game is not of itself sufficient proof even of a colourable title to a real manor ; Rushworth v. Craven, McCl. & Y. 417; for the lord of a mere reputed manor may grant one.

The rule with regard to the practice from whom the declarations proceed has been thus laid down: In cases of rights or customs which are not, strictly speaking, public, but are of a general nature and concern a multitude of persons (as in questions with respect to boundaries and customs of particular districts), it seems that hearsay evidence is not admissible, unless it be derived from persons conversant with the neighbourhood. On the other hand, actual inhabitancy in the place, the boundaries of which are in dispute, is unnecessary. But where the right is strictly public (a claim of highway, for instance), in which all the king's subjects are interested, it is difficult to say that there ought to be any such limitation. In a matter in which all are concerned, reputation from any one appears to be receivable, but almost worthless unless it came from persons who are shown to have some means of knowledge, as by living in the neighbourhood, or frequently using the road in dispute. Per Parke, B., in Crease v. Barrett, 1 C. M. & R.919; Doe d. Molesworth v. Sleeman, 9 Q. B. 301, per cur. Thus, a document purporting to be a decree of certain persons, the Lord Treasurer Part of Transaction.

49 and Chancellor of the Exchequer, &c., who had no authority as a court, was held to be inadmissible evidence as reputation on a question whether the city of Chester, before it was a made a county itself, formed a part of the county palatinate, because those personages had from their situations no peculiar knowledge of the facts. Rogers v. Wood, 2 B. & Ad. 245. So the answers of the tenants of a manor to an old commission of survey issued by the lord, finding the bounds of a manor and his right to ureck, are evidence of the former, but not of the latter, they having no peculiar means of knowledge, and the lord's title to such a franchise not being a matter of public concern. Talbot v. Lewis, 1 C. M. & R. 495. Such a claim of wreck is one affecting only the interest of the Crown, and not the tenants; and the case differs in that respect from a right of freewarren in Carnarvon, El. of, v. Villebois, 13 M. & W. 313.

Ancient answers of the customary tenants of a manor, stating the rights of the lord of the manor to all mines within it, are evidence even against the freeholders, for this claim affects all the tenants. Crease v. Barrett, ante, p. 48. As to the admissibility of inquisitions and surveys, as evidence of reputation, see post, Effect of Inquisitions, dc. Declarations of old persons concerning the boundaries of parishes and manors have been admitted in evidence, though they were parishioners and claimed right of common on the wastes which their declarations had a tendency to enlarge. Nicholls v. Parker, 14 East, 331 ; Plaxton v. Dare, 10 B. &C. 19. See also R. v. Mytton, 2 E. & E. 557; S. C. sub. nom. Mytton v. Thornbury, 29 L. J., M. C. 109, post, p. 97. So, declarations on a question of parochial modus were received, though the deceased was a parishioner, and liable to pay tithe. Harwood v. Sims, Wightw. 112 ; Deacle v. Hancock, M'Clel. 85; S.C., 13 Price, 226. So, a written declaration of a deceased corporator was considered to be evidence in support of a custom to exclude foreigners. Davies v. Morgan, 1 C. & J. 587.

In order to the admission of evidence of reputation, it is not necessary that the fact of user should be shown: Crease v. Barrett, supra; although there are cases in which it has been so considered ; see Weeks v. Sparke, 1 M. & S. 686; Rushworth v. Craven, M'Cl. & Y. 417; and it is obvious that such evidence without user will be of little weight.

Such declarations, as in questions of pedigree (ride ante, p. 46), must not have been made post litem motam. R. v. Cotton, 3 Camp. 444. But where, in a suit as to the custom of a manor, depositions in a former suit relative to a custom of the same manor were offered in evidence, it was held no objection that the depositions taken in the former suit were post litem motam, if the two suits were not upon the same custom ; and where the former suit was very ancient, it was held unnecessary to prove by intrinsic evidence that the witnesses who made the depositions were in the situation in which they professed to stand, or that they had the means of becoming acquainted with the customs of the manor. Freeman v. Phillipps, 4 M. & S. 486 ; but see Banbury Peerage case, 2 Selw. N. P. 2nd ed. 773, ante, p. 45.

The declarations of old persons still alive, cannot be admitted as proof of reputation. Woolway v. Rowe, 1 Ad. & E. 117.

Hearsay, admissible when part of the transaction.] When hearsay is introduced, not as a medium of proof in order to establish a distinct fact, but as being in itself a part of the transaction in question, and explanatory of it, it is admissible. Words and declarations are admissible when they accompany some act, the nature, object, or motive of which are the subject of the inquiry; 1 Phil. Ev. 194, 9th ed., cited by Crompton, J., Hyde v. Palmer, 3 B. & S. 657; 32 L. J., Q. B. 126, and see Bennison v. Cartwright, 5 B. & S. 1; 33 L. J., Q. B. 137. In the case of an equivocal act, the



accompanying declarations are often absolutely necessary to show the animus of the actor. Thus, if a debtor leaves home, the intent to avoid his creditors may be shown by his declarations at the time. Bateman v. Bailey, 5 T. R. 512. So a payment by a debtor may be explained by an accompanying request to apply it to a certain debt. In a suit for a false representation of the solvency of A. B., whereby the plaintiffs trusted him with goods, their declarations at the time that they trusted him in consequence of the representation are admissible in evidence for them. Fellowes v. Williamson, M. & M. 306. So in an action against the drawer of a bill of exchange, what was said by the drawee, on the bill being presented, is evidence for the plaintiff as to want of assets ; but not what passed between the drawee and the holder afterwards. Prideaux v. Collier, 2 Stark. 57. A letter sent by plaintiff to his indorser with the note on which the maker is sued, may be read for the plaintiff to show why it was sent. Bruce v. Hurly, 1 Stark. 24 ; and see Kent v. Lowen, 1 Camp. 177. To prove that there was a good consideration for a conveyance, the verbal instructions of the alienor to his solicitor to prepare it are good evidence. Tull v. Parlett, M. & M. 472. In an action to recover money paid by a bankrupt in contemplation of a bankruptcy, his declarations as to the state of his affairs, made about the time of the transaction, are admissible for the plaintiffs. Vacher v. Cocks, M. & M. 353; Herbert v.Wilcocks, Id. 355, n. So in an action to recover fraudulent payments, answers to letters written by a bankrupt, requesting assistance, may be read to prove the refusal to give assistance, and his consequent knowledge of the state of his affairs. Vacher v. Cocks, supra. And see generally, as to declarations by bankrupts, post, Part III. tit. Actions by trustees of bankrupts. A trader being in embarrassed circumstances, executed an assignment of all his “effects, stock, books, and book-debts,” for the benefit of his creditors : in an action after his death against the assignee, as executor de son tort, it was held that a list of creditors, made out by the direction of the assignor about the time of the execution of the assignment, was evidence for defendant for the purpose of rebutting fraud. Lewis v. Rogers, 1 C. M. & R. 48. Where felling timber is offered as an assertion of ownership, the declarations of the party so employed, showing ownership in another, are evidence to rebut it. Per Parke, B., Doe d. Stansbury v. Arkuright, 5 C. & P. 575.

Declarations are admissible as evidence of feelings, or of suffering : thus, in an action of assault on plaintiff's wife, evidence of what she said immediately on receiving the hurt is admissible for him. Thompson v. Trevanion, Skin. 402. The declarations of a wife at the time of her elopement that she fled from terror of personal violence from her husband, seem to be evidence against him. See Aveson v. Kinnaird, Ld., 6 East, 193. And there are other cases on the like principle decided in actions for adultery. See Willis v. Bernard, 8 Bing. 376.

In the Gardiner Peerage case, medical men were examined as to their experience of cases of protracted gestation. The commencement of the period of gestation was known to them only through the answers by women to questions relating to their sexual intercourse, menstruation, quickening, and other similar facts. Those answers were held inadmissible. Le Marchant's Rep., 174-6. In R. v. Johnson, 2 Car. & K. 354, to ascertain the state of a woman's health a few days before her death, a witness (not medical) was allowed to state the answers of the deceased woman to inquiries made by him.

Statements by a deceased vendor, made at the time of the sale to indicate the land sold, are admissible to identify it. Parrott v. Watts, 47 L. J., C. P. 79.

The declarations of a plaintiff made in a conversation with the defendant, if part of the res gesta, are admissible for the plaintiff as part of his evidence. Part of Transaction-Acts of Ownership.

51 Hayslep v. Gymer, 1 Ad. & E. 162. See post, p. 64. But an act done cannot, in general, be qualified by isolated declarations made afterwards, alio intuitu. Thus the schedule of an insolvent, delivered four months after execution of a deed, was not admissible on behalf of the assignees to show that it was executed with intent to petition. Peacock v. Harris, 5 Ad. & E. 449. And a declaration by the obligee, as to the application of past payments made to him by the obligor, is not evidence as between the sureties. Dunn v. Slee, Holt, N, P. 401. Where general character is in issue, evidence of reputation is admitted. Foulkes v. Šellway, 3 Esp. 236. See Evidence of Character, post, p. 83, and Examination of witnesses ; Evidence of character, post.

It is not every declaration that is receivable in evidence, merely because it accompanies an act done by the speaker. Thus, we have seen, p. 48, ante, that where the object is to establish a public way, it is not legitimate evidence to prove that the tenant of land near it planted a tree, and whilst doing so, stated that he did it " to show the boundary of the road." R. v. Bliss, 7 Ad. & E. 550. The admissibility of the declaration depends, not merely on its accompanying an act, but on the light which it throws upon an act which is, in itself

, relevant and admissible evidence. See, generally, the opinions of the judges in Wright v. Doe d. Tatham, 7 Ad. & E. 313, 361, &c. ; S. C., 4 N. C. 489, 498, 530, 544, 554, Ex. Ch. A declaration is sometimes receivable per se, as a claim. Thus, where the plaintiff asserts a right to goods under a sale to him by C., and the defence is that the alleged sale was collusive, defendant's witness may be asked, “whether he had not heard C. claim the goods after the sale ” Under such circumstances, a claim is as much an act done as if C. had taken the goods saying they were his. Ford v. Elliott, 4 Exch. 78. Where the object is merely to show that inquiries had been made for A. B. without success, the oral statement of his absence by a person at his residence is admissible evidence. Crossby v. Percy, 1 Taunt. 364 ; see further, R. v. Kenilworth, 7. Q. B. 642 ; and post, Part III. ; Actions by trustees of bankrupts ; Acts of bankruptcy ; Beginning to keep house. But if it be necessary to show that A. B. is actually out of the realm, such oral statement is not evidence of it. Robinson v. Markis, 2 M. & Rob. 375.

It has been justly remarked that many of the above cases are not strictly instances of hearsay (ie, second-hand) evidence, though commonly so classed. The res gesta in each case is original evidence; and the accompanying declaration, being part of it, is also original.

Acts or assertions of ownership.] Under the head of hearsay are usually classed those cases in which expired leases, grants, or other documents of a similar kind actively asserting a right on the part of the maker, have been admitted as evidence of that right in favour of persons claiming under him ; they are, in fact, acts of ownership, and, as such, evidence of property. Thus, old leases of fishing places by the lord of an adjacent manor are evidence of a right to the bed of the river in favour of those who claim under him. Hale, De Jure Mdris, p. 35 ; Neill v. Duke of Devonshire, 8 Ap. Ca. 135, D. P. Where the question was, whether certain lands within a manor were subject to a right of common, counterparts of old leases, produced from among the muniments of the lord of the manor, from which it might be inferred that the land was demised by the lord free from such charge, were allowed to be evidence for the plaintiff claiming under him, though possession under the lease was not shown. Clarkson v. Woodhouse, 3 Doug. 189; 5 T. R. 412, n. ; Bristow v. Cormican, 3 Ap. Ca. 641, D. P. And such counterparts are evidence of seisin, though only executed by the lessees. Doe d. El. of Egremont v. Pulman, 3 Q. B. 622; Magdalen Hospital v. Knotts, 8 Ch. D. 709, Č. A. So old entries of licences on the court rolls of

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