CHAPTER IX. HEARSAY IN MATTERS OF PUBLIC AND GENERAL WHEN an issue involves a question of public or general interest, the rule that hearsay or secondhand evidence is inadmissible does not apply: and generally In matters of public or general interest, popular reputation or opinion, or the declarations of deceased witnesses of competent knowledge, if made ante litem motam (i. e., before the litigated point has become the subject of controversy), and without reasonable suspicion of undue partiality or collusion, will be received as competent and credible evidence. The ground for its reception lies in the supposition that the universality and notoriety of the interests concerned remove the temptation and the ability to misrepresent, which would arise if such evidence were received in matters of merely private and personal concerns. Accordingly, it is rejected wherever the point at issue appears to partake more of the nature of a private than of a public interest. ... In Wright v. Doe (a), Coltman, J., said :-"The true line (says Buller, J., in R. v. Eriswell) for courts to adhere to, is that wherever evidence not on oath has been repeatedly received and sanctioned by judicial determination, it shall be allowed; but, beyond that, the rule that no evidence shall be admitted, but what is on oath, shall be observed. . . Evidence of opinion is admitted in some cases without oath, as for instance where reputation is given in evidence to prove a public right. . . . The principle upon which I conceive the exception to rest is this, that the reputation can hardly exist without the concurrence of many parties interested to investigate the subject; and such concurrence is presumptive evidence of the existence of an ancient right, of which, in most cases, direct proof can no longer be given, and ought not to be expected; a restriction now generally admitted as limiting the exception is this, that the right claimed must be of a public nature affecting a considerable number of persons." And in the same case in the Exchequer Chamber (6), Alderson, B., said: "The general interest which belongs to the subject would lead to immediate contradiction from others, unless the statement proved were true; and the public nature of the right excludes the probability of individual bias, and makes the sanction of an oath less necessary." In ejectment by the lessor of a plaintiff in tail against the devisee in fee of a previous remainder (a) 7 A. & E. 360. man, the question was whether the land in dispute was part of the estate which had been originally devised by a testator between fifty and sixty years previously. Evidence of reputation had been received that the land had been purchased by the original testator; but it was held that, notwithstanding some special circumstances in the case, the question was merely one of private ownership, and that therefore the evidence should have been rejected (c). In Weeks v. Sparke (d), to trespass to the plaintiff's close, the defendant pleaded a prescriptive right of common for his cattle, and the plaintiff replied, traversing the plea, and prescribing for a right to use the locus in quo for growing corn until harvest time. It was held that witnesses might prove the statement of a deceased neighbour as to the nature of the enjoyment of the respective rights; but that a foundation for its reception must first be laid by proof of the actual enjoyment of the rights. Le Blanc, J., said:-"How is the right to be proved? First, it is to be proved by acts of enjoyment within the period of living memory; and when this foundation is laid, then, inasmuch as there cannot be any witnesses to speak to acts of enjoyment beyond the time of living memory, evidence is to be admitted from old persons (not any old persons, but persons who have been conversant with the neighbourhood (c) Doe v. Thomas, 14 East, 323. (d) 1 M. & S. 679; sed cf. Earl of Dunraven v. Llewellyn, 15 Q. B. 791. where the waste lies, over which the particular right of common is claimed) of what they have heard other persons, of the same neighbourhood, who are deceased, say respecting the right. Thus far it is evidence as applicable to this prescriptive right, it being a prescription in which others are concerned, as well as the person claiming it; because a right of common is, to a certain extent, a public right. And the only evidence of reputation which was received was that from persons connected with the district. In the same manner, in questions of pedigree, although they are not of a public nature, the evidence of what persons connected with the family have been heard to say, is received as to the state of that family. In like manner also, upon questions of boundary, though the evidence of perambulations may be considered to a certain degree as evidence of an exercise of the right, yet it has been usual to go further, and admit the evidence of what old persons who are deceased have been heard to say on those occasions. The rule generally adopted, upon questions either of prescription or custom, is this, that after a foundation is once laid of the right by proving acts of ownership, then the evidence of reputation becomes admissible, such evidence being confined to what old persons, who were in a situation to know what those rights were, have been heard to say concerning them." There was formerly considerable conflict of opinion among the judges, as to the admissibility of reputation and the declarations of deceased persons to prove or disprove a claim of prescriptive right. In Morewood v. Wood (e), where to trespass the defendant pleaded a prescriptive right, Lord Kenyon and Ashhurst, J., held the question to be one of a private nature, and that evidence of reputation should therefore be rejected; but Buller, J., and Grose, J., appear to have thought the issue to be sufficiently of a public nature to let in the evidence. In a later case, Lord Ellenborough laid down the principle that when the right claimed does not curtail the general rights of others, being merely the claim of an individual against an individual, such evidence is not admissible (f). Traditionary reputation has been received as evidence of the boundaries between two parishes and two manors, but not of the boundaries between two estates (g). In R. v. Sutton (h), the defendant was indicted for the non-repair of a bridge, and, to disprove her liability, offered a presentment of a jury in the reign of Edward III., by which it was found that they did not know who was liable to repair; and this was held to be evidence of reputation for the defendant. Reputation has been received in support of an immemorial right of common, pur cause de vicinage so pleaded (i). In Duke of Newcastle v. Hundred of Broxtowe (k), the question was, whether Nottingham Castle was within the hundred; and it was held (e) 14 East, 327, n. (f) Weeks v. Sparke, 1 M. & S. 679. (h) 8 Ad. & El. 516. (i) Pritchard v. Powell, 10 Q. B. 589. (h) 4 B. & Ad. 273. |