MATTERS OF PUBLIC AND GENERAL INTEREST.

393 currence of many parties unconnected with each other, who are all alike interested in investigating the subject; that such concurrence furnishes strong presumptive evidence of truth; and that it is this prevailing current of assertion that is resorted to as evidence, for it is to this that every member of the community is supposed to be privy, and to contribute his share (a).

§ 417. In speaking of matters of public and general interest, the terms public and general are sometimes used as synonymes, meaning merely what concerns a multitude of persons (b). But, in regard to the admissibility of hearsay testimony, a distinction has been taken between them; the term public being strictly applied to that which concerns every member of the state; and the term general being confined to a lesser, though still a considerable, portion of the community. This distinction should be carefully attended to, because in matters strictly public, such, for example, as a claim of highway or a right of ferry, reputation from any one appears to be receivable; and although declarations would be almost worthless, unless made by persons who, by living in the neighbourhood, or by frequently using the road or ferry, or the like, are shown to have had some means of knowledge; yet the want of such proof of their connection with the subject in question seems to affect the value only, and not the admissibility, of the evidence. If, however, the right in dispute be simply general; that is, if those only who live in a particular district, or adventure in a particular enterprize, are interested in it, hearsay from persons, wholly unconnected with the place or business, would be, not only of no value, but probably altogether inadmissible (c).

(a) Wright v. Doe d. Tatham, 7 A. & E. 360, 361, per Coltman, J.; S. C. 4 Bing. N. C. 528, per Alderson, B.; Morewood v. Wood, 14 East, 329, n., per Lord Kenyon; Weeks v. Sparke, 1 M. & Sel. 686, per Lord Ellenborough; Berkeley Peerage, 4 Camp. 415, 416, per Sir James Mansfield.

(b) Pim v. Curell, 6 M. & W. 234.

(c) Crease v. Barrett, 1 C. M. & R. 929, per Parke, B. By the Roman law, reputation, or common fame, seems to have been admissible in evidence, in all cases; but it was not generally deemed sufficient proof, and, in some cases, not even semiplena probatio, unless corroborated; nisi aliis adminiculis adjuvetur. Mascardus, De Prob, vol. 1, Concl. 171, n. 1 ; Concl. 183, n. 2; Concl. 547, n. 19. It was held sufficient, plena probatio, wherever, from the nature of the case,

394

MATTERS OF PUBLIC AND GENERAL INTEREST.

§ 418. Thus, in an action of trespass quare clausum fregit, where the defendant pleaded in bar a prescriptive right of common in the locus in quo, and the plaintiff replied, prescribing in right of his messuage to use the same ground for tillage with corn, until the harvest was ended, traversing the defendant's prescription; it appearing that many persons, beside the defendant, had a right of common there, evidence of reputation as to the plaintiff's right was held admissible, provided it were derived from persons conversant with the neighbourhood (d). So, where the question was, whether Nottingham Castle was within the hundred of Broxtowe, certain ancient orders, made by the Justices at the Quarter Sessions for the county, in which the castle was described as being within that hundred, were held admissible evidence of reputation; the justices, though not proved to have been residents within the county or hundred, being presumed, from the nature and character of their offices alone, to have had sufficient acquaintance with the subject in dispute, to make the statements in their orders admissible (e). Again, where the question related to the custom of mining in a particular district, persons, under whose estates the minerals lay, with respect to which the custom was said to exist, were held to be sufficiently connected with the subject to make

better evidence was not attainable; ubi à communiter accidentibus, probatio difficilis est, fama plenam solet probationem facere; ut in probatione filiationis. But Mascardus deems it not sufficient, in cases of pedigree within the memory of man, which he limits to fifty-six years, unless aided by other evidence-tunc nempe non sufficeret publica vox et fama, sed unà cum ipsâ deberet tractatus et nominatio probari, vel alia adminicula urgentia adhiberi. Mascard. De Prob. vol. 1, Concl. 411, n. 1, 2, 6, 7.

(d) Weeks v. Sparke, 1 M. & Sel. 679, 688, 689, per Le Blanc, J. The actual discussion of the subject in the neighbourhood, was a fact also relied on, in the Roman law, in cases of proof by common fame. "Quando testis vult probare aliquem scivisse, non videtur sufficere, quod dicat ille scivit quia erat vicinus ; sed debet addere, in vicinia hoc erat cognitum per famam, vel alio modo; et ideò iste, qui erat vicinus, potuit id scire." J. Menochius, De Præsump. tom. 2, lib. 6, Præs. 24, n. 17, p. 772. See also Mascardus, de Prob. vol. 1, p. 389, 390, Concl. 395, n. 1, 2, 19, 9, where the law is thus laid down :-" Confines probantur per testes. Verum scias velim, testes in hâc materiâ, qui vicini, et circum ibi habitant, esse magis idoneos quam alios. Si testes non sentiant commodum vel incommodum immediatum, possint pro suâ communitate deponere. Licet hujusmodi testes sint de universitate, et deponant super confinibus suæ universitatis, probant, dummodum præcipuum ipsi commodum non sentiant, licet inferant commodum in universum." (e) Duke of Newcastle v. Broxtowe, 4 B. & Ad. 273.

DECLARANT MUST HAVE COMPETENT KNowledge.

395

their declarations evidence, as they were more likely than others living at a distance to become adventurers, and consequently to be subjected to the operation of the custom (f). But where the point at issue was, whether the city of Chester anciently formed part of the County Palatine, an old document, purporting to be a decree of certain law officers and dignitaries of the Crown, not having authority as a court, was held inadmissible as evidence of reputation, because those personages had no peculiar knowledge of the subject, excepting what they derived in the course of that unauthorised proceeding (g). Thus it appears that competent knowledge in the declarant is, in all cases, an essential pre-requisite to the admission of his testimony; and although all the Queen's subjects are presumed to have that knowledge, in some degree, where the matter is of public concernment, yet, in other matters, which are not strictly public, though they are interesting to many persons, some particular evidence of such knowledge is generally required.

§ 419. If the quality of the hearsay itself raises a natural inference that it was derived from persons acquainted with the subject, the Courts will not require independent proof of that fact; and therefore, where the question turned on a manorial custom, depositions, purporting to have been made by copyholders in an ancient suit between a former lord and a person claiming admission to a copyhold, were admitted in evidence without proof that the persons making them were either copyholders, or were otherwise acquainted with the customs of the manor; for the Court assumed that such persons would not have been brought forward as witnesses, had they been ignorant of the subject (h). So, an ancient unsigned customary of a manor, which purported to be ex assensu omnium tenentium, and which had been handed down with the court rolls from steward to steward, was received as evidence to prove the course of descent within the manor (i). But where, in order to

(f) Crease v. Barrett, 1 C. M. & R. 919, 928-930.

(g) Rogers v. Wood, B. & Ad. 245, 256, recognised by the Court of Exchequer in Crease v. Barrett, 1 C. M. & R. 928, 929. See also Evans v. Taylor, 7 A. & E. 617,626, 627. (h) Freeman v. Phillipps, 4 M. & Sel. 486.

(i) Denn v. Spray, 1 T. R. 466, 473. See also Chapman v. Cowlan, 13 East, 10.

396

EXAMPLES OF MATTERS OF PUBLIC INTEREST.

prove the boundaries of a manor, an ancient survey was produced from the proper custody, which purported to have been made in the time of Queen Elizabeth by a deputy surveyor appointed by the Crown, and to have been founded on the presentments of certain tenants of the manor, whose names were appended to it, the Court rejected the document, on the ground that no proof had been given that the deputy-surveyor had any authority to institute the inquiry; and stripped of this authority, he not only had no right to make any kind of return, but the presumption that he did make one fell to the ground. The paper might have been written by any clerk idling in the office where it was found, from his own imagination, or compiled, possibly, by some interested person in furtherance of a sinister object of his own (j).

§ 420. It may be here expedient to enumerate a few of the principal questions, which have been deemed to involve matters of public or general interest, and to contrast these with some others, which the Courts have considered to be of too private a nature, to allow of their being illustrated by evidence of reputation. Thus, on the one hand, hearsay has been admitted, where the question trist related to a right of common (k), a parochial (1) or other distet 1 modus (m), a manorial custom (n), a custom of mining in a particular district (0), a custom of a corporation to exclude foreigners from trading within a town (p), the limits of a town (q), the boundary between counties, parishes, hamlets, or manors (r), or between old and new land in a manor (s), a claim of tolls on a

(5) Evans v. Taylor, 7 A. & E. 617, 626, 627.

(k) Weeks v. Sparke, 1 M. & Sel. 679. See ante, § 418.

(7) Moseley v. Davies, 11 Price, 162; White v. Lisle, 4 Madd. Ch. R. 214, Short v. Lee, 2 Jac. & Walk. 464, 473.

224, 225;
(m) Rudd v. Wright, 1 Ph. Ev. 240.

(n) Doe v. Sisson, 12 East, 62.

(0) Crease v. Barrett, 1 C. M. & R. 919, 928-930.

(p) Davies v. Morgan, 1 C. & Jer. 587, semble.

(9) Ireland v. Powell, cited Pea. Ev. 16, per Chambre, J., and recognised by Williams, J., in R. v. Bliss, 7 A. & E. 555.

(r) Nicholls v. Parker, 14 East, 331, n.; Brisco v. Lomax, 8 A. & E. 198; 3 N. & P. 388, S. C.; Evans v. Rees, 10 A. & E. 151 ; 2 P. & D. 627, S. C.;

Plaxton v. Dare, 10 B. & C. 17; 5 M. & Ry. 1, S. C.; Thomas v. Jenkins, 6 A. & E. 525; 1 N. & P. 588, S. C.

(s) Barnes v. Mawson, 1 M. & Sel. 81.

EXAMPLES OF MATTERS OF PUBLIC INTEREST.

397

public road (t), the fact whether a road was public or private (u), a prescriptive liability to repair sea-walls (v), or bridges (w), a claim of highway (x), a right of ferry (y), the fact whether land on a river was a public landing-place or not (z), the jurisdiction of a court, and the fact whether it was a court of record or not (a), the existence of a manor (b), a prescriptive right of toll on all malt brought by the west country barges to London (c), a right, by immemorial custom, claimed by the deputy day meters of London, to measure, shovel, unload, and deliver all oysters brought by boat for sale within the limits of the port of London (d), a claim by the lord of a manor to all coals lying under a certain district of the manor (e), a custom of electing churchwardens by a select committee (f), and a prescriptive right to free warren as appurtenant to an entire manor (g).

§ 421. On the other hand, evidence of reputation has been rejected, where the question was, what usage had obtained in electing a schoolmaster to a grammar school (h), whether the sheriff of the county of Chester, or the corporation of the city of Chester, were bound to execute criminals (i), whether the lord of a manor had a prescriptive right to all wreck within his manorial boundaries (j), whether the plaintiff was exclusive owner of the

(t) Brett v. Beales, M. & M. 416, 418, per Lord Tenterden.

(u) R. v. Bliss, 7 A. & E. 555, per Williams, J.

(v) R. v. Leigh, 10 A. & E. 398, 409, 411.

(w) R. v. Sutton, 8 A. & E. 516; 3 N. & P. 569, S. C.

(x) Crease v. Barrett, 1 C. M. & R. 929, per Parke, B.; Reed v. Jackson, 1 East, 355. (y) Pim v. Curell, 6 M. & W. 234.

(2) Drinkwater v. Porter, 7 C. & P. 181, per Coleridge, J.

(a) Goodtitle v. Dew, Pea. Add. R. 204.

(b) Steel v. Prickett, 2 Stark. R. 466, per Abbott, C. J.; Curzon v. Lomax,

5 Esp. 60, per Lord Ellenborough.

(c) City of London v. Clerke, Carth. 181.

(d) Laybourn v. Crisp, 4 M. & W. 320.

(e) Barnes v. Mawson, 1 M. & Sel. 77, 81. In that case there was evidence of

an uniform exercise of the right.

(f) Berry v. Banner, Pea. R. 156.

(g) Earl of Carnarvon v. Villebois, 13 M. & W. 313.

(h) Withnell v. Gartham, 1 Esp. 324, 325, per Lord Kenyon.

(2) R. v. Antrobus, 2 A. & E. 793-795.

(j) Talbot v. Lewis, 1 C. M. & R. 495; 5 Tyrwh. 1, S. C.