Winter et al. v. United States.
contest as to private rights; and it may not be improper briefly to state the reasons on which the rule is based.
It is certainly a general and long established principle of the law of evidence, that hearsay and reputation is not competent to prove any fact in a court of justice. The reason is that evidence ought to be given under the sanction of an oath, and an opportunity afforded of cross-examination. It is also tin questionable, that there are some exceptions, which are probably as ancient as the rule itself, and which are allowed, either because the danger attending such evidence is not likely to occur in the excepted cases, or because greater inconvenience would result from its exclusion than its admission; and among these exceptions are questions relating to public rights. In these cases common reputation is admitted, because such rights being matters of public notoriety, and of great local importance, become a continual subject of discussion in the neighborhood, where all have the same means of information, and the same interest to ascertain the claim. 1 Phil. Ev. 248; Weeks v. Sparke, 1 Maule & Selwyn, 679; Morewood v. Wood, 14 East, 329.
The boundaries of parishes or manors may be thus proved, because they are more or less of public concern; and it is not to be doubted that if a contest should arise between two States or two countries, as to boundary, general reputation would be admissible. Gris. Eq. Ev. 220. The tradition, however, of a particular fact, as that a post or stone was put down, or turf dug in a particular spot, is not competent evidence to establish a private right, because it is not a matter of public concern in which the community are interested.
This rule is undoubtedly sustained by the English cases, and by the weight of authority in the American courts. 1 Phil. Ev. 2–50; 3 Term Rep. 709; 5 Ib. 123; 14 East, 330; 1 Price, 253; 1 Anstr. 298; Cherry v. Boyd, Littell's Sel. Cas. 7; Lee v. Tapscot, 2 Wash. 276; United States v. Kingsley, 12 Peters, Rep. 483; Elecott v. Pearl, 10 Ib. 412.
The whole object and scope of Russell's deposition is to prove matters of reputation, or the voice of common rumor, which relate to no public, but to a strictly private right. The petitioners are prosecuting a private claim in this court, in
