Hearsay admissible in matters of general interest, Reasons for the exception. Examples of matters of public or general interest. SECTION II. Hearsay Evidence upon Matters of public or general Interest. Another subject, on which statements are receivable upon the credit of deceased persons who have neither been sworn to the truth of those statements, nor been cross-examined respecting them, relates to certain matters of public or general interest, of which the origin is in many cases, from their very nature, antecedent to the time of what is called legal memory, and, in the generality of instances, can be expected only to be found in times beyond the reach of living testimony. The same necessity, therefore, exists for resorting to hearsay evidence, as was pointed out in treating of pedigree. With respect to pedigree, indeed, one reason for admitting hearsay evidence of family incidents is, that a knowledge of them is confined to very few persons, which cannot be said of public rights. But, it is to be ob served, however generally known the origin of matters of public interest may once have been, their usual antiquity and the undefined generality of their nature render it more difficult to discover any testimony relating to them, not in the nature of hearsay, than where pedigree is the subject of inquiry. It is proposed to follow the same course as was adopted in treating of pedigree, and in the first place to illustrate by examples the nature of matters of public and general interest; secondly, to treat of the forms in which such hearsay evidence is usually presented; and lastly, of the qualifications with which it is received. On questions respecting a manorial custom, (1) a parochial modus, (2) a boundary between parishes or manors, (3) a custom (1) Denn v. Spray, 1 T. R. 466, custom of descent. Roe v. Parker, 5 T. R. 26, 31. It is there said, that tradition and received opinion are evidence of the lex loci. Doe d. Foster v. Jisson, 12 East, 62. (2) Chapman v. Smith, 3 Gwill 854. 2 Ves. Sen. 512, S. C. Harwood v. Sims, 1 Wightw. 112. (3) Nicholls v. Parker, 14 East, 331, n. 1 Maule & Selw. 81. Steel of a corporation to exclude foreigners from trading within a town, (1) a right claimed by a corporation to collect tolls on a public road, (2) respecting the jurisdiction of a Court, whether it be or be not a Court of record, (3) and the like-in which the public are concerned, as having a community of interest from residing in the same neighbourhood, or being entitled to the same privileges, or being subject to the same liabilities,-common reputation and the declarations of deceased persons, asserting or disclaiming the right at issue, are admissible in evidence. From the examples just mentioned, it will be seen that the General rights. term public, as applied to this subject, is not to be understood in it's literal sense; it has been defined to be synonymous with general, that is, what concerns a multitude of persons. (4) The leading authority upon this subject is the case of Weeks v. Sparke, (5) which was an action for a trespass on the plaintiff's close, parcel of a common, &c. ; the defendant justified for a prescriptive right of common at all times over the place, and the plaintiff in his replication prescribed to use the place . Pricket, 2 Stark. C. 466. Plaxton v. Dare, 10 Barn. & Cress. 17. Coombs v. Coether, 1 Mo. & Mal. 398. Barnes v. Mawson, 1 Maule & Selw. 81, boundary of the new land within a manor. (1) Davies v. Morgan, 1 Cromp. & Jerv. 593. v. (2) Brett v. Beales, 1 Mo. & Mal. 416. City of London Clarke, Carth. 181. B. N. P. 233. (3) Braine . Dew, 2 Peake, N.P.C. 204. Rogers v. Wood, 2 Barn. & Adolph. 245. (4) Per Bayley, J., 1 Maule & Selw. 690, and see Crease v. Barrett, 1 Cr. M. & R. 931. (5) 1 Maule & Selw. 679. It has been questioned whether evidence of reputation be receivable upon a trial concerning the liability of an individual to repair a pub. lic bridge ratione tenure. Case of Kelham bridge, tried at Lincoln, Spr. Ass. A. D. 1832. There is a dictum of Mr. J. Patteson in Rex v. Antrobus, 2 Ad. & Ellis, 794, District modus. for tillage, &c., qualifying the defendant's general right. To support this prescriptive right of tillage, the plaintiff offered evidence of reputation, which was received at the trial; and the Court of King's Bench were of opinion, that it had been properly admitted, on the ground that the right claimed by the plaintiff, although claimed by prescription, was yet an abridgment of the general right of common over the waste, ani affected a large number of occupiers within the district. Mt. Justice Bayley, in delivering his judgment in this case, says, take it that where the term public right is used, it does not mea public in the literal sense, but is synonymous with generat that is, what concerns a multitude of persons, now this is a g neral right, exercised by a variety of persons, though notpublic right of common." And Mr. Justice Dampier observe that "it is not to be disputed, that in public rights, reputati is admissible; and the rule has been extended to other rigl which cannot be strictly called public, such as manors, rishes, and a modus. A modus is, strictly speaking, a priv right, but it has been considered as public, so far as rega the admissibility of this species of evidence, because affects a large number of occupiers within a district. H the right claimed goes to abridge the rights of all the pers concerned over a large district of common: and, therefore think evidence of reputation is admissible." (1) (1) Hearsay evidence is also admissible upon matters of general history. This subject will be considered in Sect. I., upon Public Documentary Evidence, where books of history are noticed. Upon a custom in restraint of trade: Davies v. Morgan, 1 Tyrw. 457. (2) Before Lord Lyndhurst in Equity Ex. 11 July, 1832. On the admission of hearsay evidence to prove moduses, see Robinson v. Williamson, 9 Pr. 136, per Dampier, J., in Weeks v. Spark, supra, p. 252. Williamson v. Thompson, 9 Pr. 186, a township modus. Doninson v. Elsley, 1 M'Clel & Y. trial, on an issue from the Court of Exchequer, to try the validity of a modus, which was claimed in respect of a district, (not being a legal division of the country, as a hundred, parish, vill, or hamlet,) Lord Lyndhurst was of opinion, that evidence of reputation in favour of the modus was properly received on the trial, upon the authority of the case of Weeks v. Sparke; (1) the district comprising a great number of farms, and extending over more than two thousand acres, and the questions involving and applying to a great number of persons. Whether evidence of reputation be admissible upon a ques- Farm modus. on of a farm modus, appears to be a point not perfectly settled. has been generally understood in the Exchequer, that the vidence is inadmissible. (2) In an ancient case, it was reived; and also in some modern cases, where however the int was not much considered. (3) Upon the admissibility of hearsay evidence as proof of Hearsay in escriptive rights strictly private, and not affecting any public private rights general interest, there has been considerable difference of pinion. The Court of King's Bench was equally divided on the point in the case of Morewood v. Wood, (4) where Supra. Per Lord Lyndhurst in Wright Rudd, ubi supra. But his Lordstated that he was willing to r the question argued. In Wells Jesus College, 7 C. & P. 284, tation concerning a farm modus ars to have been rejected. It be observed, that an exemption the liability to which the rest the parish was subject, would kely to create general observaand remark. Webb v. Potts, Noy. 44. In te v. Lisle, 4 Madd. 214, this was said to stand alone, and be too loose to be relied on. The Chancellor ad hat there argument would, however, apply to parochial moduses, and other customary payments, where reputation is clearly admissible. In Doninson v. Elsley, 3 Eag. & Y., tithe cases, 1396, n., evidence of reputation in the case of a farm modus was read de bene esse, and similar evidence appears to have been received in Wooley v. Brownhill, 1 M'Clel. 317. In Bullen v. Mitchel, 4 Dow. P. C., which related to a farm modus, much documentary evidence was adduced, and was treated as evidence of reputation; but most of the documents were of a public nature. In Eagle on Tithes, vol 2, p. 439, there is a learned argument, to prove that evidence of reputation is admissible upon questions of farm moduses. (4) 14 East, 327. Lord Kenyon, C. J., and Ashurst, J., against the Declaration of accoucheur or midwife. gree hung up publicly in a family mansion, are all admissib in evidence, without knowing who may have been the autho of them. But in the absence of such publicity, they mu be shown to have been made by some particular member the family. (1) The authority of the case of Higham v. Ridgway is ope to much observation. It was decided by that case, that entry made by an accoucheur in his book of having delivere a woman of a child on a certain day, the charge for whic was marked "paid," was admissible as evidence of the birth the child on that day, on the trial of an issue as to his age the time of his afterwards suffering a recovery. (2) And a opinion was mentioned, in the course of the judgment, that suc an entry, or the declaration of a midwife as to the time birth, might be admissible, on the ground of having been mad of a matter peculiarly within the knowledge of the declarant. ( But the ground of the judgment seems to have been that th declaration was admissible, because the entry was against the interest of the accoucheur. (4) It is to be observed, tha the rule which limits hearsay evidence in matters of pedigre to the declarations of relatives was not, at the time of the deci sion in question, established, nor had the principle of it bee much considered. Neither was it brought before the notic of the Court that such evidence had been rejected in the Iris case of Annesly v. the Earl of Anglesea; in which case, thi question was, whether the plaintiff was Lord Altham's legiti mate son, and it became material to inquire whether Lad Altham ever had a child. To prove this, the declaration of (1) Monkton v. Attorney General, 2 Russell & Mylne, 162. In the Berkeley case of the family Bible, 4 Campb. 401, the handwriting was proved. Vide supra. (2) Higham v. Ridgway, 10 East, 109. (3) By Le Blanc, J., 10 East, 120. (4) Vide infra, where the subject of declarations against interest is considered; and see the principle of the decision in Higham v. Ridg way, stated by B. Bayley, in 1 Cri |