MEANING OF PROPER CUSTODY ILLUSTRATED.

433

naturally be supposed to have been deposited with the largest; still the Court held, that its actual place of custody was one, where it might reasonably be expected to be found (m). So, an old book of a collector of tithes would be equally well authenticated, whether produced from the custody of the successor, or executor, of the incumbent, or from the hands of the successor of the collector (n). So, also, an unproved will, more than thirty years old, disposing of real and personal estate, and produced from the custody of a younger son of the testator, who, in common with his brothers, derived a benefit under it, has been admitted, though it was contended that it should have been deposited in the ecclesiastical court of the diocese (o). Where an expired lease was produced from the custody of the lessor, and proof was given that he had received it from a former occupier of the demised premises, who had paid for several years the precise rent reserved by it, and who, subsequently to the expiration of the term, had procured it from two strangers who claimed no interest in it, the Court held the deed to be admissible, without proof in what manner it had come into the hands of these strangers; because, by the act of giving it up to the occupier, they admitted his right to the possession of it, and were, consequently, presumed to have held it on his account (p). Again, a case stated for counsel's opinion by a deceased bishop, respecting his right of presentation to a living, has been admitted against a subsequent bishop of the same see, on a question touching the same right, though the paper was not found in the public registry of the diocese, but among the private family documents of the descendants of the former bishop (q). So, where a mortgagee in fee brought an action of ejectment, and the defendant's case was, that the mortgagor, his father, had, previously to the mortgage, conveyed the estate to trustees in settlement, reserving to himself only a life interest, the Court permitted the son to put in the deed of settlement, it being more than thirty years old, though it was produced from among the papers of his late father, against whom

(m) Bishop of Meath v. Marquis of Winchester, 3 Bing. N. C. 201, 202, per Tindal, C. J. (n) Id.; referring to Jones v. Waller, 2 Gwill. 346.

(0) Doe v. Pearce, 2 M. & Rob. 240, per Coleridge, J.

(p) Rees v. Walters, 3 M. & W. 527.

(2) Bishop of Meath v. Marquis of Winchester, 3 Bing. N. C 183, 202, 203,

F F

434 WHEN CUSTODY MUST BE PROVED BY EXTRINSIC EVIDENCE.

its provisions were intended to operate; and though it was strongly urged that the trustees or their representatives were the parties entitled to its custody; and the more especially so, as by the deed having been permitted to remain with the settlor, he had been enabled to practise a fraud on the mortgagee (»).

§ 461. It appears to be a question of some doubt whether the custody of a document must be proved by a sworn witness, when it purports on its face to belong to the party who tenders it in evidence. In one or two settlement cases, the respondents have been permitted to produce old certificates, which purported to have been granted to them by the appellants, without giving any account respecting their custody (s); but, in the case of Evans v. Rees, where, on a question of boundary, the plaintiff's counsel proposed to read certain manor-books without proving the custody whence they came, on the ground that they belonged to the lord, who was admitted to be the real plaintiff, the Court held that they could not be read; Mr. Justice Coleridge observing, that unless some one was sworn for the purpose of proving their custody, they might have been procured from a grocer's shop (t). If, however, the witness producing the document can swear that he received it from the representative of the person originally entitled to it, as a paper which had belonged to such person, it seems that this evidence will, in ordinary cases, be sufficient, without calling the representative himself to explain how he became possessed of the document (u).

§ 462. It has been urged by an able writer on the law of evidence, that in order to render ancient documents admissible, proof, if possible, must be given of some act done with reference to them, and that where the nature of the case does not admit of such proof, acts of modern enjoyment must at least be shown (v). This doctrine, however, would seem to be advanced in somewhat too bold a manner, and to be unsupported by the current of

(r) Doe v. Samples, 8 A. & E. 151; 3 N. & Per. 254, S. C. See also Bertie v. Beaumont, 2 Price, 307; Lord Trimlestown v. Kemmis, 9 Cl. & Fin. 774, 775. (s) R. v. Ryton, 5 T. R. 259; R. v. Netherthong, 2 M. & Sel. 337.

(t) 10 A. & E. 151, 154. (v) 1 Ph. Ev. 276, 278.

(u) Earl v. Lewis, 4 Esp. 1, per Heath, J.

CORROBORATIVE PROOF OF ANCIENT DOCUMENTS.

435

modern decisions; for although it is perfectly true that the mere production of an ancient document, unless supported by some corroborative evidence of acting under it, or of modern possession, would be entitled to little, if any, weight, still there appears to be no strict rule of law, which would authorise the judge in withdrawing the deed altogether from the consideration of the jury-in other words, the absence of proof of possession affects merely the weight, and not the admissibility, of the instrument. Thus, in Rogers v. Allen, where, in order to prove a prescriptive right of fishery as appurtenant to a manor, ancient licenses to fish in the locus in quo, which appeared on the court-rolls, and were granted by former lords in consideration of certain rents, were tendered in evidence, Mr. Justice Heath, after argument, held that they were admissible without any proof of the rents having been paid; but he added that, "to give them any weight, it must be shown that in latter times payments had been made under licences of the same kind, or that the lords of the manor had exercised other acts of ownership over the fishery, which had been acquiesced in" (w). So, in the case of the Duke of Bedford v. Lopes, Bart., which was an action brought to try the title to the bed of a river, after proof of a grant from Henry VIII., two counterparts of leases were produced from the Duke's muniment room, comprehending the soil in question. No payment by a tenant was proved, nor any modern act of ownership; but Lord Denman admitted the instruments as coming from the right custody, observing that there was no circumstance in the case which threw suspicion upon them, and that "the absence of other kinds of proof was mere matter of observation" (x). Again, in one of the late ejectments brought by Lord Egremont (y), it became necessary to show that the land in question had been part of the estate of the lessor's ancestor, Sir William Wyndham; and in order to establish this fact, there was

(w) 1 Camp. 309, 311.

(x) Cited in argument, 3 Q. B. 623. (y) Doe v. Pulman, 3 Q. B. 622, 626. See further on this subject, Clarkson v. Woodhouse, 5 T. R. 413, n., per Lord Mansfield; Brett v. Beales, M. & M. 418, per Lord Tenterden ; Doe v. Passingham, 2 C. & P. 444, per Burrough, J.; Rancliffe v. Parkyns, 6 Dow, 202, per Lord Eldon; McKenire v. Fraser, 9 Ves. 5; Jackson v. Laroway, 3 Johns. Cas. 283, 287; Jackson v. Luquere, 5 Cowen, 221, 225; Jackson v. Lamb, 7 id. 431; Barr v. Gratz, 4 Wheat. 213, 221; Hewlett v. Cock, 7 Wend. 371, 373, 374.

436 PRESUMPTIONS IN FAVOUR OF ANCIENT DOCUMENTS.

produced from the muniment room of the property which had descended from Sir William, what appeared to be a counterpart of a lease of this land made by him; but it purported to be executed only by the lessee, and there was no proof given of actual possession under it. The Court of Queen's Bench, after consulting with some of the other judges, held that this deed was admissible in evidence.

§ 463. Under these qualifications, ancient documents, purporting to be a part of the transactions to which they relate, and not a mere narrative of them, are receivable as evidence that those transactions actually occurred. And though they are spoken of as hearsay evidence of ancient possession, and as such are said to be admitted in exception to the general rule; yet they seem rather to be parts of the res gestæ, and therefore admissible as original evidence, on the principle already discussed. An ancient deed, by which is meant one more than thirty years old, having nothing suspicious about it, is presumed to be genuine without express proof, the witnesses being presumed dead; and, if it be found in the proper custody, and be corroborated by evidence of ancient or modern corresponding enjoyment, or by other equivalent or explanatory proof, it will be presumed to have constituted part of the actual transfer of property therein mentioned; because this is the usual course of such transactions. The residue of the transaction may be as unerringly inferred from the existence of genuine ancient documents, as the remainder of a statue may be made out from an existing torso, or a perfect skeleton from the fossil remains of a part.

DECLARATIONS AGAINST INTEREST, WHEN ADMISSIBLE. 437

upon

CHAPTER XI.

OF DECLARATIONS AGAINST INTEREST.

§ 464. A FOURTH EXCEPTION to the rule rejecting hearsay evidence is allowed in favour of declarations made by persons since deceased against their pecuniary or proprietary interest (a). The ground which this evidence is received, is the extreme improbability of its falsehood. The regard which men usually pay to their own interests is considered a sufficient security against any wilful misstatement, and affords also a reasonable inference that the declarations or entries were not made under any mistake of fact, or want of information on the part of the declarant. The danger of any fraud in the statement will be still less dreaded, if we reflect, that the evidence is not receivable till after the death of the declarant, and that if the opponent can show that the statement was made with any sinister motive, it will at once be rejected. The ordinary tests of truth, afforded by the administration of an oath and by cross-examination, are certainly here wanting; but their place is in some measure supplied by the circumstances of the declarant; and the inconveniences that would result from the exclusion of evidence, having such guarantees for its accuracy in fact and its freedom from fraud, are rightly considered much greater in general, than any which are likely to be experienced from its admission (b).

§ 465. In order to render declarations against interest admissible as such, it must be shown that the declarant is dead (c); and the mere fact that he has absconded abroad in consequence of a criminal charge, or that he is otherwise out of the power of the

(a) Sussex Peerage, 11 Cl. & Fin. 103-114; Higham v. Ridgway, 10 East, 109; 2 Smith's Leading Ca. 183, S. C. ; id. 193, n.; Short v. Lee, 2 Jac. & Walk. 464, 488, per Plumer, M. R. (b) 1 Ph. Ev. 294.

(c) Phillips v. Cole, 10 A. & E. 106, 111, per Lord Denman ; Spargo v. Brown, 9 B. & C. 935; Smith v. Whittingham, 6 C. & P. 78. See ante, § 444, and post, § 492.