evidence was receivable. As to the first of these qualifications, the remarks in Crease v. Barrett already quoted (*) show that this distinction cannot be drawn where the question is one of a strictly public nature. And in the Earl of Dunraven v. Llewellyn, () where the question was one merely of a general nature, (the dispute arising between the lord of a manor and the owner of a freehold estate within the manor) Parke, B. said:

"In the course of the argument we intimated our opinion that the want of evidence of acts of enjoyment of the rights did not affect the admissibility of the evidence, but only its value when admitted. We also stated that no objection could be made to the evidence on the ground that it proceeded from persons who had not competent knowledge upon the subject, or from persons who were themselves interested in the question."

This passage vouches also the second point, that of acts of ownership on which Parke, B. in Crease v. Barrett(m) says:

"An observation was made in the course of the argument that all evidence of reputation was inadmissible, unless it was confirmed by proof of facts. We think that such proof is not an essential condition of its reception, but is only material as it affects its value when received; and indeed if such proof were required, there is amply sufficient in the present case."

Hence it may be gathered that in the present day objections of this nature affect the weight and not the admissibility of the testimony. Evidence of the description at present under consideration is always to be received with caution. Eminent judges have differed as to the weight to be attached to it; but it is perhaps safest to say that no ge neral rule can be laid down, but that the weight of the evidence must depend upon the particular circumstances of each case. matters are public" as Lord Ellenborough says, (n) "all are interested and must be presumed conversant with them," where the matter is of general interest, the opportunities of the declarants to obtain knowledge must vary perpetually.

"Where the

§ 140. Another qualification is that the declaration must have been made "ante litem motam" i. e. before the dispute itself was afoot. For this affords one of the best safeguards for its veracity. If such

(k) § 138.

(7) See § 134.

(m) § 128.

(n) Weeks v. Sparke, 1 M and S. 686,

declarations, made after the point was in dispute, were admitted, it is manifest that we should offer a premium to their fabrication.

Taylor writes as follows:(0)

"Now the ground on which the declarations of deceased persons are admitted at all, is, that they are the natural effusions of a party who is presumed to know the truth, and to speak upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth. But no man is presumed to be thus indifferent in regard to matters in actual controversy; for when the contest has begun, people generally take part on the one side or the other; their minds are in a ferment; and, if they are disposed to speak the truth, facts are seen by them through a false medium. To avoid, therefore, the mischiefs which would otherwise result, all exparte declarations, even those upon oath, are rejected, if they can be referred to a date subsequent to the beginning of the controversy." § 141. "Lis mota" is a term taken from the Roman Law according to which it referred to the institution of the suit: we with more reason seem to refer it back to the commencement of the dispute. (p)

§ 142. Whatever may be the precise limits of the rule of lis mota, the following propositions seem clear. In the language of Taylor:(9) "First, that declarations will not be rejected, in consequence of their having been made with the express view of preventing disputes; secondly, that they are admissible, if no dispute has arisen, though made in direct support of the title of the declarant; and, thirdly, that the mere fact of the declarant having stood, or having believed that he stood, in pari jure with the party relying on the declaration, will not render his statement inadmissible. In support of the first proposition, the Berkeley Peerage case may be referred to, where the judges unanimously held, in conformity with an earlier opinion expressed by Lord Mansfield, that an entry made by a father in any book, for the express purpose of establishing the legitimacy of his son and the time of his birth, in case the same should be called in question, will be receivable in evidence notwithstanding the professed view with which it was made. This doctrine has since been sanctioned by Lords Brougham and Cottenham in England, and by Sir Edward Sugden in Ireland, and may now be considered as established law in both countries. The latest decision in support of the second proposition is Doe v. Davies, where the Court observed, that although a feeling of interest will often cast suspicion

(o) § 432.

(p) I say seem to refer it; for the point is not yet set tled. See the state of the authorities in Taylor § 433, (and the cases in the note a.) and the sections to the end of the chapter 433-8.

on declarations, it has never been held to render them inadmissible. The third proposition is equally clear law; for although there is a peerage case which appears, at first sight, to throw some doubt upon the subject; yet it is highly probable that the pedigree was there rejected, not as having been made by a party while standing in the same situation as the claimant, but as having been concocted by such person in direct contemplation of himself laying claim to the dignity."

The dispute must have related to the subject-matter in issue; this was ruled in Freeman v. Phillipps, 4 M. and S. 497, where Bayley, J. said :(r)

"The distinction had been correctly taken, that where the lis mota was on the very point, the declarations of persons would not be evidence; because you cannot be sure, that in admitting the depositions of witnesses, selected and brought forward on a particular side of the question, who embark, to a certain degree, with the feelings and prejudices belonging to that particular side, you are drawing evidence from perfectly unpolluted sources. But where the point in controversy is foreign to that which was before controverted, there never has been a lis mota, and consequently the objection does not apply."

It appears still unsettled, whether such testimony is receivable where the declarant did not in fact know of the existence of any dispute at the time of making his declaration. In this uncertainty we may perhaps safely adopt the remarks of Taylor :(s)

"In this conflict of judicial opinions it is difficult to ascertain the precise rule; but perhaps we shall not be far wrong in suggesting that neither of the learned judges has laid down the law with strict accuracy, and that declarations, though made post litem motam, will be admissible, if the party offering them in evidence can show, by any proof satisfactory to the judge, that the declarant was in all probability ignorant of the existence of the controversy."

§ 143. The last qualification is that the evidence must be confined to general facts: evidence of particular acts cannot be given. For instance suppose the dispute were about a right of way from one village to another. A witness might say that he had heard old deceased persons say that the way had always been used as a public path: but he would not be allowed to say that A. B., deceased, had told him that

(r) Taylor, § 435.

(s) § 438.

he had individually used the way: for non constat but that he was a trespasser.

So in Crease v. Barrett() it was contended that the tenth answer was nothing more than a statement of a particular fact, and therefore not within the rule as to reputation, and it was held that the evidence ought not to have been received, on that ground.

CHAPTER XI.

II. ANCIENT POSSESSIONS.

§ 144. The distinction between this and the first head of this division, is, that as to that, the question arises from matters of general interest: we are now speaking of the ancient possessions of individuals. A deed or other document in writing thirty years old proves itself notwithstanding there are attesting witnesses to it; for looking at the age at which men ordinarily engage in such transactions of life as are likely to cause them to become witnesses to deeds, the general presumption is that they will not have survived that period thirty years. This is an arbitrary rule, and exceptions must be of daily occurrence: but the line must be drawn somewhere, and a mass of inconvenience would arise, if after such a lapse of time, it was always requisite to call the attesting witnesses, or account for their absence, or

prove their death.(*) A fortiori must this principle apply to ancient

documents.

§ 145. Ancient documents are receivable when they form a part of the transactions, and are not a mere narrative of facts-that is, they must form links of the chain of evidence.

§ 146. It must also be shown that modern ownership has been exercised by virtue of those ancient documents.

§ 147. So an old map, annexed to a deed, is receivable; but the qualification with which such evidence is receivable is that just above stated, viz., that it must be confirmed by proof of some act done under

(1) See ante § 138.

(v) These observations are made subject of course to the operation of Act II. of 1855, See. XXXVII.

the authority or license of the deed or other instrument, as for instance repairs done to the house to which the title deed refers: payment of rent on the land and the like: in short, possession proved of the property to which the ancient document relates, either by the party producing it, or those through whom he claims : and any act of ownership, that is, an act which exhibits the power of the party to exercise a control or disposition over the property, is sufficient for this purpose.

§ 148. Lastly, a most important necessity is that the document must come from the proper custody, of which hereafter.

CHAPTER XII.

III. PEDIGREE.

§ 149. I cannot more lucidly explain the principle upon which Hearsay is admitted in cases of Pedigree than in the words of Phillipps, (w) who writes as follows:

66

Hearsay statements of deceased persons are allowed to be received in matters of pedigree, subject however to various qualifications. This exception appears to be founded on the considerations, that the facts which are the subject of enquiry are frequently of an ancient date, and that the knowledge of them is usually confined to few individuals. By limiting the exception to the statements of deceased persons, a resort to this kind of evidence is precluded, where the hearsay tendered indicates the existence of more satisfactory proof, and it is only admitted on failure of the ordinary channels of information. According to the qualifications under which evidence of pedigree is received, provision is made that the statement should be derived from a person likely to be well informed upon the subject on which he was speaking, and free from any apparent motive for perverting the facts.

"The exception in question is framed upon general principles adapted to circumstances of frequent occurrence. It may happen that these principles will fail of application in many instances to which the exception might seem to extend. The exception is not confined to ancient facts, but extends also to matters of pedigree which have recently transpired; and the hearsay of

(10) Vol. I, p. 197.