the immemorial customs of the manor, but which deed omitted all mention of the particular custom in question, was strong evidence of reputation to show that it did not exist at that day, and that the subsequent usage relied upon in support of it was referable to usurpation, and not to right.'

§ 621. It will have been seen from several of the cases cited % 556 in this chapter, that oral declarations are not the sole medium of proving traditionary reputation in matters of public and general interest; and, indeed, the principle of the exception applies equally to documentary evidence, and to all other kinds of proof denominated hearsay. Thus deed, leases, and other private documents have been admitted, as declaratory of the public matters recited in them. Even copies and abstracts of old deeds and wills have occasionally been used for the same purpose, but these are not in themselves evidence of reputation, being merely admissible as secondary evidence of the original instruments. It follows, therefore, that no such document can in strictness be received at all, without some proof being furnished of the former existence and present loss of the originals."

§ 622. How far maps, showing the boundaries of counties, 557 towns, parishes, or manors, will be admissible, is a question respecting which some doubts exist. If such maps are not proved to have been prepared by persons who were deputed to make them by some one interested in the question, or who themselves appear to have had some knowledge of their own on the subject,

See

1 M. of Anglesey v. Ld. Hatherton, 10 M. & W. 218, 239–241, 244. D. of Portland v. Hill, 2 Law Rep., Eq. 765. 2 Gr. Ev. 139, in part.

3 Curzon v. Lomax, 5 Esp. 60, per Ld. Ellenborough; Brett v. Beales, M. & M. 416, per Ld. Tenterden.

* Plaxton r. Dare, 10 B. & C. 17; 1 M. & R. 1, S. C.; Barnes v. Mawson, 1 M. & Sel. 78, 79; M. of Anglesey v. Ld. Hatherton, 10 M. & W. 218; D. of Beaufort v. Smith. 4 Ex. R. 471, 472, per Parke, B.

5 See Shrewsbury Peer., 7 H. of L. Cas. 11, 12; Braye Peer., 6 Cl. & Fin. 757-767.

See and compare Doe v. Skinner, 3 Ex. R. 84; Doe v. Whitcombe, 6 Ex. R. 601; S. C. in Dom. Proc. 4 H. of L. Cas. 425; Perth Peer., 2 H. of L. Cas. 865; and D. of Devonshire v. Neill, 2 L. R. Ir. 132, 149, 167, per Palles, C. B.

or who at least are shown to have been in some way connected
with the district, so as to make it probable that they possessed
the requisite information, they cannot be received, whatever their
age or apparent accuracy may be.' If, however, proof be forth-
coming that they have been either made or recognised by persons
having adequate knowledge, they would seem, on principle, to be
valid evidence of reputation. Accordingly, upon the trial of an
indictment against a parish for the non repair of a highway, where,
in order to show that the road in question was not within the
parish, a map was produced which had been made some thirty
years before by a surveyor, from information derived from an old
parishioner, who had pointed out to him the boundaries, Mr.
Justice Erskine held, that, if proof could be given of the old
man's death, the map would be admissible as evidence of reputa-
tion, though it came from the chest of the parish indicted. On
another occasion, also, maps appear to have been received as public
documents; but in an older case, where, in order to prove that the
locus in quo was a highway, a copper-plate map, which purported
on its face to have been taken by the direction of some former
churchwardens, and which it was proposed to prove was generally
received by the parish as authentic, was rejected by Ld. Kenyon,
who observed, that "it would be equally improper to admit it, as
to admit a plan taken by the lord of the manor, who might thereby
crush and destroy the estate of his tenants."
It does not appear
in this case that the map was an ancient one, or that the church-
wardens, by whose direction it was drawn, were dead, and conse-
quently the decision is of the less authority.

5

§ 623. Again, copies of court rolls, and especially presentments 568 in manor courts, stating the customs or boundaries of a manor,depositions of conventionary tenants of a manor, taken in an

1 Hammond v. Bradstreet, 23 L. J., Ex. 332, per Ex. Ch.; 10 Ex, R. 390, S. C. See Pipe v. Fulcher, 28 L. J., Q. B. 12; 1 E. & E. 111, S. C.

2 R. v. Milton, 1 C. & Kir. 58.

3 Alcock v. Cook, per Tindal, C. J., cited 1 Ph. Ev. 251, n. 1. Pollard v. Scott, Pea. R. 19.

5 Evans v. Rees, 10 A. & E. 151; Roe v. Parker, 5 T. R. 26; Arundell v. Ld. Falmouth, 2 M. & Sel, 441; Damerell v. Protheroe, 10 Q. B. 20.

authorised inquiry, and representing the rights of the lcrd,'-and other similar documents, have been admitted as evidence of reputation; though unless, it can be satisfactorily proved, or at least reasonably inferred, that the proceedings were conducted in a legal and regular manner, it will seldom be prudent to run the risk of a new trial by tendering such evidence.3

§ 624. It has often been said that verdicts of juries, and judg- 559 ments, decrees, and orders of courts of competent jurisdiction, are evidence of reputation; and possibly, when juries were summoned, de vicineto, and were consequently assumed to be acquainted with the subject in controversy," this may have been a correct mode of stating the ground on which verdicts were admitted; though it never could have been strictly accurate with respect to other judicial documents, and though it does not apply, at the present day, even to verdicts. Still, these documents, though not reputation, are as good evidence as reputation; and whatever be the principle on which they are admitted, the rule has been established by too many authorities to be now questioned," that, in all cases, involving matters of public or general interest, wherein reputation is evidence, a verdict or a judgment upon the matter directly in issue, though pronounced in a cause litigated between strangers to the parties on the record, is also admissible; not as tending to prove any specific fact existing at the time, but as evidence of the most solemn kind, of an adjudication by a competent tribunal upon the state of facts and the question of usage at the time.' Thus, for example, where a public right of way was in question,

1 Crease v. Barrett, 1 C. M. & R. 919, 5 Tyr. 458, S. C.; Freeman v. Phillipps, 4 M. & Sel. 486; Gee v. Ward, 7 E. & B. 509.

2 See Evans v. Taylor, 7 A. & E. 626, as explained in D. of Beaufort v. Smith, 4 Ex. R. 450; and Daniel v. Wilkin, 7 Ex. R. 429.

3 See R. v. Leigh, 10 A. & E. 411.

5 Pim v. Curell, 6 M. & W. 254, per Alderson, B.

See post, 1683.

6 Evans v. Rees, 10 A. & E. 153, per Patteson & Coleridge, Js.; Brisco v. Lomax, 8 A. & E. 212, per Patteson, J.

Brisco v. Lomax, 8 A. & E. 211, per Littledale, J.

Evans v. Rees, 10 A. & E. 156, per Ld. Denman.

9 Pim v. Curell, 6 M. & W. 266, per Ld. Abinger; D. of Devonshire v. Neill, 2 L. R. Ir. 154, 155, per Palles, C. B.; Neill v. D. of Devonshire, L. R., 8 App. Cas 147, per Ld. Selborne, C., in Dom. Proc. S. C.

the plaintiff was allowed to show a verdict, rendered in his own favour against a defendant in another suit, in which the same right of way was in issue;' and it matters not with respect to the admissibility, though it may as to the weight, of such evidence, that the judgment has been suffered by default, and, though of a very recent date, is not supported by any proof of execution or of the payment of damages; or even that the verdict, where a verdict has been obtained, has not been followed up by any judgment or decree. Neither is it material whether the verdict be pronounced at Nisi Prius, or be the finding of a jury summoned under a commission from a Duchy Court, or any other special commission; provided it can be proved, or can be inferred from the circumstances, that the inquiry was a lawful one.*

5

§ 625. If, when the record is produced, a direct issue appears § 560 to have been raised on the right or custum in controversy, the opponent will not be entitled to show that in fact no evidence was given on that issue; since the record is conclusive of the fact of such a finding, though not of its truth as between other parties. If the record contains no direct issue on the custom, the party producing it must furnish some evidence to show that the custom was really in question; for, otherwise, the mere verdict would prove nothing. In the case of the Earl of Carnarvon v. Villebois, which was an action by the lord of a manor against a copyholder for trespassing on. his free warren, an ancient judgment on a quo warranto information filed by the Attorney-General against a former lord, in which the defendant pleaded, and the Attorney-General confessed, a prescriptive title to the free warren as appurtenant to the manor, was received in evidence for the plaintiff, as being the judgment of a competent court upon a matter of a public nature, which concerned the Crown and the subject. The court observed, that "it was admissible on the same footing as an allowance before the Justices of Eyre, an inquisition post mortem, or an inquisition

1 Reed v. Jackson, 1 East, 355.

See Petrie v. Nuttall, 11 Ex. R. 569.

2 Ld. Carnarvon v. Villebois, 13 M. & W. 313, 329, 332. See R. v. Brightside Bierlow, 13 Q. B. 933.

3 Brisco v. Lomax, 8 A. & E. 198; 3 N. & P. 388, S. C.

5 Reed v. Jackson, 1 East, 355.

6 Laybourn v. Crisp, 4 M. & W. 325, 326, per Ld. Abinger.

* Id.

issuing out of the Court of Exchequer to ascertain the extent of the Crown lands."1

§ 626. Decrees and orders of all competent tribunals stand upon ? 561 the same footing as verdicts; and, therefore, orders of the commissioners of sewers requiring landowners to repair sea-walls, will, on an issue respecting the liability of a party to make such repairs, be evidence as adjudications by a court of competent jurisdiction; and the fact that they have been duly executed and acted upon will be presumed, if they are of an ancient date.3 To render decrees of the old Court of Chancery admissible, it is unnecessary to put in the depositions to which they refer; because, in equity, the judge must have collected the questions in dispute from the bill and anwer only. Still, a decree, to be evidence, must be final; and mere interlocutory orders, not involving any judgment upon the rights of the parties, cannot be received. So anxious are the courts to confine this species of evidence within strict limits, that they have rejected an award in a suit inter alios, though the cause was referred by order of the judge at Nisi Prius. It seems scarcely necessary to add, that no mere claim to the possession of lands, not followed by judgment, will be admissible in evidence,' nor can any verdict, judgment, decree, or order, be received, if it appear that the parties pronouncing it were acting without legal authority.s

§ 627. Although judgments and decrees, when tendered as ? 562 evidence of reputation, must in general be proved either by producing the originals, or by examined, or now by office, copies, yet occasionally a copy of a less authentic character will be received,

1 13 M. & W. 313, 331, per Parke, B.

2 See Laybourn r. Crisp, 4 M. & W. 326, per Parke, B.; D. of Devonshire v. Neill, 2 L. R. Ir. 153, per Palles, C. B.

3 R. r. Leigh, 10 A. & E. 398, D. of Devonshire v. Neill, 2 L. R. Ir. 132, 152, 153.

Laybourn v. Crisp, 4 M. & W. 320, 326, 327. It seems that the depositions may be read by the opposite party as his evidence, id.

5 Pim v. Currell, 6 M. & W. 234, 265–267.

6 Evans r. Rees, 10 A. & E. 151; 2 P. & D. 627, S. C.; R. v. Cotton, 3 Camp. 444; Wenman v. Mackenzie, 5 E. & B. 447.

7

D. of Devonshire v. Neill, 2 L. R. Ir. 132, 165, 166, per Palles, C. B.

8 Rogers v. Wood, 2 B. & Ad. 245.

9 Rules of Sup. Ct., 1883, Ord. XXXVII., R. 4, cited post, ? 1538.