m UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY TREATISE ON THE DOCTRINE OF PRESUMPTION AND PRESUMPTIVE EVIDENCE, AS ArFECTING THE TITLE TO i!!cal anti ^^cr^onal Jpcopcirtp, By JOHN H. MATHEWS, Esq. OF LINCOLN'S INN, BAKKlSTEll AT LAW. LONDON JOSEPH BUTTERWORTH AND SON, LAW BOOKSELLERS; 43, FLEET STREET. 1827. C. Balrtwin, Printer, New Bridge Street, Luiidon. THE FOLLOWING WORK IS INSCRIBED TO THOMAS SHEPHERD, ESQ. OF THE MIDDLE TEMPLE, AS A TESTIMONY OF RESPECT AND ESTEEM. a 2 ~!S?f3C PREFACE The object of the following work is to investigate and explain the doctrine of Presumption and Presump- tive Evidence in their application to Titles, and to show how far defects in titles arising from the want of direct evidence may be supplied by established presimiptions, or by those which are afforded from the particular cir- cumstances of the case. It was at an early period of his professional studies that the author was impressed with a sense of the utility of a work of this description. On almost every other subject connected with the practice of convey- ancing, treatises or digests of the cases already ex- isted ; these afforded a ready means of acquiring all the information extant, and removed many of the diffi- culties which the various subjects they embrace conti- nually presented to the conveyancer. But when ques- tions arose which were to be determined by the princi- ples of presumption (and to such questions every Ab- stract of Title gives more or less occasion), recourse could be had only to detached cases and judicial dicta in the books of reports, and to casual passages in the vi PREFACE. text books. The labour and difficulty in such a state of things were considerable : and the present work owes its origin to a conviction, that this labour and difficulty would be materially diminished by any at- tempt, however imperfect, to collect and to reduce into system the authorities on the subject, which were then scattered up and down in some hundreds of volumes. This being the first work that has appeared on the subject, and the plan and arrangement of it having therefore been left in a peculiar manner to the author's own discretion, he trusts it will meet with the indulg- ence of the profession. Apprehensive that errors as well as omissions will be discovered, it is with un- feigned diffidence that he presents the result of his labours to the public. In concluding, the author desires to express his thanks to his friend Edward John Lloyd, Esq., of Lincoln's Inn, for several valuable suggestions in the course of the work, of which he has availed himself. Lincohi'n Inn, December, 1826". CONTENTS. INTRODUCTORY CHAPTER. PRESUMPTIONS OF LAW. CHAP. II. Miscellaneous Instances. CHAP. III. Of the Presianpiioji with respect to the Exoneration of Real Es- tates from Charges or E)icumbrances,—Ji7-st, where they are paid off by Tenant for Life, — secondly, where by Tenant in Tail. CHAP. IV. Of the Presum'ption with respect to the Beneficial Ownership, — first, where a Purchase made by one Person is completed in the name of another,— and secondly, where an estate paid for by two or more is conveyed to them as Joint Tenants. CHAP. V. Of the Performance and Presumed Satisfaction of Covenants for Fa- mily Provisions,— first, in Cases relating to Personal Properly, — secondly, in Cases relating to Peal. CHAP. VI. Of the Presumed Satisfaction of Debts by Legacies or Portions. CHAP. VII. Of the Presumed Satisfaction of Portions by Legacies or Second Portions. CHAP. VIII. Of the Presumed Ademption of Legacies to Children by subsequent Portions. CONTENTS. nil CHAr. IX. Of the rrcsumption in Cases of Double Legacies. CHAP. X. or Ike Exclusion of Executors from the Residuary Estate PRESUMPTIONS OF FACT. CHAP. XI. On the Presumption of Instruments of Assurance. CHAP. XII. Of Presumed Conveyances of Outstanding Legal Estates. CHAP. XIII. Of Presumed Surrenders of Terms. CHAP. XIV. Of the Presiimption of Acts and Solemnities in support of Assurances and Rights. CHAP. XV. Of Presumptive Evidence in Matters of Pedigree, Sj-c. CHAP. XVI. Of Presumed Grants of Portions of' Tithes, of Advowsons, Faculties, Rents, Commons, Markets, Tolls, Lights, Ways, and Watercourses. CHAP. XVII. Of Presumed Dedications of Rights of Road to the Public. CHAP. XVIIl. Of the Presumptive Bar to Equities of Redemption. CHAP. XIX. Of the Presumed Satisfaction of Mortgage Debts, Judgments, War- rants to confess Judgment, Decrees, Statutes, Recognizances, and Bonds. CONTENTS. ix CHAP. XX. Of the Presumed Satisfaction of Annuities, Portions, Legacies, Liens for Purchase Money, and other Demands not Tvithin the Statute of Limitations. CHAP. XXI. Of the Presumed Dereliction of the Right to have Fraudulent Pur- chases, Purchases hij Trustees, and Purchases of Reversions, set aside in Equity. CHAP. XXII. Of the Presinned Waiver of Rights of Appropriation, — of Resumption on Forfeiture, Pre-emption, and Election, — of Rights under Exc- cutori/ Trusts, Devises in Equity, Agreements to Purchase, and Covenants for Renewal, — qfiheResponsibiliiyqf Executors, Ad- ministrators, and Trustees, — of the Liability of Purchasers to see to the Application of the Purchase Money, and other miscellaneous Rights and Equities. NAMES OF CASES CITED IN THIS VOLUME. Page Abbott V. Abbott 170, 173 Abdy V. Loveday 356, 360 Acherley v. Roe 14, 189 Ackworth V. Ackworth. ... 116 Acton, HaU v , . 128, 140 Adair v. Shaftoe 401 Adams v. Taunton 32 V. Lavender .... 87j 88 Adamson, Knight v. 209 Aggas V. Pickerell . . 330, 333 Ailsbie, Holmes v 200 Airey, Scott v., 285, 286, 288, 289 Albemarle, Duke of, v. Lady Purbeck 367 Alden v. Gregory 386 Aldred's case 308 Aldridge, Heathcote v. 287, 288 Alexander, Gillespie v. 149, 150 Allen V. Callow 146 , Wilson V 209, 210 Alley V. Deschamps 4l6 Alleyn v. AUeyn, 87, 8^, 100, 108 Alsop V. Bowtrell 24 Alston, Taylor v 55 Altham, Lord, Lord Angle- sey V 55 Amesbury v. Brown 47 Andrew, Maddison v 55 , Back V. 57, 59, 65, 67, 68 V. Clarke . . 172, 176 V. Wrigley . . 386, 391 Androvin v. Poilblanc .... 156 Anglesey, Lord, v. Lord Al- tham 55 Annesley, Lord, Hovenden V. 16, 380, 384 Anonymous (2 Atk. 333) 333, 336, 340 Anonymous (3 Atk. 313). . 330 (2 Freem. 22, ca. 20) . . 373 ■ — (2 Freem. 105) 154, 163 (6 Mod. 22). . 361 (6 Mod. 225) 197 (11 Mod. 2).. 361 , (1 Lord Raym. 735) 197 (2 Ves. 636, cited) 105, 109 (12 Vin. Abr. 57) 200, 209, 377 (12 Vin. Abr. 233).. 197,198, 208 Ardesoife v. Bennet 406 Arnham, Cook v. , 431 Arundell Lord, Bidlake v. 376 Ashe, Cusse v. 372, 433 , Parker V 373 Ashdowne, Stileman v. . . 57, 65 Astley V. Earl of Tanker- ville 45 V. ChHd 204 Aston V. Aston 367, 368 Atherton v. Pye 44 Atkinson v. Webb . . 109, 112 , Wingfieldv. 171, 180 Attorney General v. Bow- yer or Vi- gor .... 188 V. Ld. Dud- ley 395 V. Harley, 145, 149 V. Hooker. . 172 , Parmeter v. 401 , Parnther v. 19 V. Richards, 401 NAMES OF CASES. Page Attorney General v. Whor- wood.' 92, 9o Atwnod, Moth v 397, 399 Austin, Tate v. *5 , Culpepper V 433 Aveling v. Knipe . . . . Awdry V. Smallcoinbe Aynsly v. Reed Ayscough, Newton v. B. 74. 291 335 428 — , Strutt V. -, Toplis V. 352, Back V. Andrew, 57, 59, 65, 67, 68 Bacon, Williams v. 285, 287, 289 Badham, Hartwriglitv 309 Bagwell V. Dry 154 Bailev v. Hammond 281 Baillie v. Butterfield 143 Baker, Milfax v 402 285, 286, 288, 289 353, 351, 365 Baldwin, Goodtitle d. Par- ker V 15 Bales V. Procter 367 Ball V. Smith 172, 174 Ballard v. Dyson, 9, 305, 311, 313, 314 Balmain v. Shore 75 Balston v. Benstead 312 Bandon Earl of, Meade v. 358 Bank of England v. George, 53, 55 Bankes, Freemantle v. 132, 140 Barber v. Barber 438 Barclay v. Wainwright, 149, 150 Barker v. Richardson. . 15, 307 V. Heate 37 , Corbett v 330, 336 Barkham v. Dorwine .... 104 Barley's case I9I, 197 Barley, Cruse v 154 Barnard, Denn d. Tarzwell V. 204 Bamsley, Rexv 208 Barnston, Stackhouse v. . . . 436 Barr, Rexv 15, 320 Ban-ett v. Bcckford 81, 112 Page Barrington Lord, Searle v. *= 362, 365 .- V. O'Brien, 370, 447 Barron v. Martin .... 330, 340 Barry, Leader v 272 , Brodie v 369 Bartlet v. Downes 231, 259 Barton, Roscarrick v.. 330, 335 Basket V. Pierce 382 Batchellor, Bennet v l63 V. Searle, 176, 180, 182 Bate, Southouse v. 154, 170, 171, 176 Bateman v. Bateman .... 59 Bateson v. Green 3l6 Batteley v. Windle I6O Baugh V. Reed 130, 132 Baxte.-, Goodwin v 208 , Mainwaring v. , . . 282 Bayley v. Powell 172, 178 V. Corporation of Leominster 422 Bayne, Trimmer v. 128, 130, 134, 140 Baynham v. Guy's Hospi- tal 422 Beach", Hurst v. 55, 89, 143, 145, 150 Bealey v. Shaw, 9, 305, 311, 313, 314 Beard, Chapman v 265 , Bedle V 293 Beardsham^ Davie v 414 Beauclerk, Duke of St. Al- ban's v 145, 149, 150 Beaufort Duchess of. Lady Granville v. 173, 174, 180, 181, 182 Beaulieu, Lord, v. Lord Cardigan 404 Beaver, Lynn v 170, 180 Beckford v. Beckford 57 , Barrett v. . . . 81, 112 V. Close 330 -. , Campbell v 340 Bedall, Rex v 21 Bedle v. Beard 293 Beechey, Pennington v. . , . 28 Belch V. Harvey 332 Belchicr, Pearson v. 434 NAMES OF CASES. Bell V. Coleman 130, 134< V. Howard 419 Bellamy, Parsons v. 291 Bellaris, Brown v 73 Bellasis v. Uthwaite. . 120, 121 Bellingham, Fawkeners v. 297 Belwood, Crispe v 304 Bengough v. Walker, 85, 120, 121 Benn, Heupert v 376 Bennet, Rosewell v. . . 129, 131 140 V. Bachelor l63 , Darwell v 178 , Thomas v 369 , Ardesoife v 406" Bennett, Richards v 304 , Moreland v 362 Benson v. Olive 287 Benstead, Balston v. 312 Benton, Sawbridge v 266 Benyon v. Benyon 143, 145, 146, 147, 150 Bere, Bridges v 94 Berkeley Peerage case, 270, 271, 272 Bemey v. Harvey, 13, 287, 288 Bertie, Dormer v 1 79 Bethell, Vernon v 342 Bickerstaflfe, Earl of New- burgh V 437 Bicknell v. Gough. 385 Biden v. Loveday 262 Bidlake v. Lord Xrundel . . 376 Biggleston v. Grubb. . 128, 140 Bird V. Hooper 136 Blake v. Foster 333 , Moore v. 419 Bland v. Mosely 308 Blandy v. Widmore 81, S3 Blencoe, Lord Petre v 287 Blewitt v. Thomas 356 Blinkhome v. Feast. . 173, 178 Bloisv. Blois 116 Blunt v. Clark 263 Boghurst, Prebble v 98 BoUngbroke Lord, Flower V 358 Bolton Duke of, Williams v. Il6 Bond V. Seawell 39 Pa^e Bond, Gray v 315 V. Hopkins 382 Bonham, Newcomb v 338 Bonney v. Ridgard ...... 388 Bonnington v. Walthall . . 367 Bookey, Randall v. 170, 172, 173 Boore, Marquis of Hertford v. 420 Booth, Stocks V 294 v. Earl of Warring- ton 384 Bovey v. Smith 29 V. Skipwith 254 Bowen v. Edwards 338 Bowes v. Heaps 396 Bowker v. Hunter 178 Bowtrell, Alsop v 24 Bowyer, or Vigor, Attorney General v 188 , Clapham v 329 Boyde, Coote v. 149, 150, 151 Boynton, Lady Griffin v.. . I96 Bradbury v. Grinsell . . 14, 314 Bradford, Buffar v 178 -, Seed v 114 Bradley, Chalmer v. . 393, 394 Bradshaw v. Eyr 299 Bramlev Inhabitants of, Rex v. .'. 273 Brampton Inhabitants of. Rex V 273 Brangwin, Colesworth v... 178 Brasbridge v. WoodrofFe . . 178, 180, 181, 182 Braybrooke Lord v. Inskip 273, 276 Brazennose College, Twiss V. 291 Breary, Roundell v. 9I Brewer, Rakestraw v. 330, 345 Brewett, Joslin V 171, 173 Briant, Wood v 114, 434 Brice v. Smith 39 v. Stokes 430 Bridger, Pettman v 295 , Steward v . . 188, 297 Bridges v. Bere 94 , Kingdom v 67 V. Mitchell 438 Briggs, Lacon v 377 NAMES OF CASES. 220 176 226 409 369 196 Page Bri , Blunt V 263 , Dawson v l62, l64 , Gibson v 293 . , Kinaston v 285, 288 V. Sewell 109 Clarke v. Burgoyne 130 Clavering v. Clavering. ... 104 Clayton, Roe d. Wren v. . . 44 Clay, Smith v. . . 12, 436, 447 Cleaver, Powell v 128 Clennel v. Lewthwaite, 180, 182 Cleyton, Duke of Newcas- tle v 378 Page Clinton Lord, Marquis Cbol- mondeley v.. 334, 381, 382 Clive V. Walsh 142 Cloberrv v. Lymonds 351 Close, Beckford v 330 Cloyne Bishop of, v. Young, 166, 178, 185 Coatsworth, Dalston v 198 Cole, Isbam v 330 Coleman, Bell v 130, 134 Coles v. Emmerson 36l , Hunt V 241 Coleswortb v. Brangwin . . 178 Collet V. De Gols . ... 254 CoUett, Lloyd v 417 Collins V. Goodall 297 , Tolson V 90, 108 Colsell V. Budd 363 Colton V. Smith 304 Comber's case 359 Comber v. Hill 44 Combes v. Spencer I96 Compton, Silway v 267 Constable v. Somerset .... 363 Conway v. Skrimpton .... 342 Cook V. Arnham 431 V. Duckenfield l65 V.Walker 170, 171 Cooke, Hickes v. 17, 385, 389 V. Lloyd 272 V. Soltau 223 Cookes V. Hellier I98, 263 Cookson, Ellison v. . 128, 136, 139 Cooper V. Jones 44 V. Thornton 428 Cootev. Boyd.. 149, 150, 151 Copley V. Copley ... . 11 6, 117 Copner, Price v. 338, 341 Corbett v. Barker. . . . 330, 336 Cordell v. Noden 156 Corey v. Corey 360 Cornell v. Sykes 332 Corns v. Farmer 85 Corven's case 293 Cosh, Tucker v 73 Cotterell v. Dutton 332 V. Purchase, 332, 339 Couch v. Strattou 84 XVI NAMES OF CASES. Court, Oliver v ^^89, Courlhopc, Mathews v. 156, Cousmakcr, Kidney V. . 17, Coward, Lyford v V. Odingsale Cowlam V. Slack 299, Cowne V. Douglas Cowper V. Earl Cowpcr, \6, Catteris v. , Procter v. . . . 332, Cranley Lord v. Hale, 156, Cramncr's case 107, Crawfurd, Higgins v Creed, Duffield v Crimes v. Smith 265, Crisp, Nicholls V l63, . V. Pratt 65, ., Turner v Crispe v. Belwood Croft V. Pawlett Crompton, North v V. Sale.. 87,99, Crop V. Norton Crosbie, Burke v Cross V. Lewis 306, Crump V. Norwood Cruse V. Barley Cull V. Showell Culpepper v. Austin — , Rex V Cunliffe V. Taylor Cupit V. Jackson, 365, 367, Currie v. Pye . . 143, 144, Curry v. Pile Cusse V. Ash 372, Cuthbert v. Peacock D. Page 393 172 432 208 419 300 333 189, 198 29 340 159, 168 108 373 377 290 176 72 366 304 39 154 108 53 439 307 42 154 410 433 198 291 368 145 143 433 113 Dagley v. Tolferry 429 Dalston V. Coatsworth .... 198 Dalton, Dean v 156, 157 Dancer, E brand v 53, 57 Daniel V. North 15, 307 D'Aranda or Cox, Lee v. 81, 83 Dartmouth Lady v. Roberts, 285, 286, 289 — V. — V. folk Deacon v. Smith Page Darwell v. Bennet 178 Darwin v. Upton, 11, 304, 306 Davenport v. Oldis 44 Davers v. Dewes, 156, l65, 172 Davie v. Beardsham 414 , V. Hooper 121 Davies, Hunton v 376 Davila v. Davila 81, 83 Davis's case 1^^ Davis, Earl of Macclesfield V 28 V. Morgan 314 , Robinson v 198 , Swift V 58 Davison v. Goddard 104 Davys v. Howard. . 91, 93, 96 Dawson, Brown v . . . . 85, 104 Clark.... 162, l64 Duke of Nor- 15, 301 92, 95, 97, 101 Deakin, Doe d. Lloyd v., 279, 280 Dean v. Dalton 156, 157 Deardon, Keene v. . . 221, 222 Death, Smith v 275 Debeze v. Mann, 130, 132, 138, 139, 145 Dedire, Freemoult v 91 De Faria, Gowland v., 17, 385, 396, 398 De Gols, Collet v 254 Delane v. Delane 56 Delany v. Tenison 198 DeloraineEarl of, v. Browne 385, 398, 399 De Mazar v. Pybus. . 158, 179 Dench, Hall v 264 Denison, King v. 176 Denn d. Tarzwell v. Bar- nard 204 Dennis v. Nourse 360 Desbouvrie, Pusey v 403 Deschamps, AUey v 41 6 Desmond v. Popham S60 Devese v. Pontet. . 87, 88, 90, 112 Devie v. Lord Brownlow. . 291 Dewes, Davers V. 156, l65, 172 NAMES OF CASES. d. Llovd V. d. Bannina: Dicks V. Lambert 171 Dinwoody, Horcv v 426 Dlx V. Reed.. . .' iGl, 173, ISO DixaU, Roberts V. 122 Dixon V. Dixon 281 V, Metcalfe . 266 , Wetherby v 128 Doe d. Milner v. Bright- wen 189, 220 d. Burden v. Burvile 44 d. Wren v. Calvert 230, 259 Deakin 279, 280 Griffin 271, 279 d. Bennington v. Hall 197 d. Tarrant v. Hellier 402 d. Putland v Hilder 231, 235, 245, 256 d. Beanland v. Hirst 8 d. Hallen v. Ironmon- ger 42 d. George v. Jesson 279j 332 d. Taylor v. Johnson 402 d. Howell V. Lloyd 215, 217 Murless 208 Earl of . . 261, 270 Fishar v. Prosser 188, 195 Reed 14, 189, 351 d. Batten v. d. Johnson v Pembroke d. d. Fenwick d. Graham v. Scott 228, 235, 259 Staple 227 d. Hodsden v. d. Bowerman v. Sy bourn 210 d. Howson V. Water- ton 264 d. Gorges v. Webb. . 44 d. Foley v. Wilson . . 439 d. Burdett v. Wrighte, 231 , 232, 241 Doidge V. Carpenter 299 DoUand, Lyster v 75 Donnison v. Elsley 287 Dormer v. Bertie ........ 179 Dormer v. Fortescue 437 Dorwine, Barkham v 104 Dougal V. Wilson 304,305 Douglas, Cowne v 333 Downes, Bartlett v.. . 231, 259 Drake v. Rogers 443 Drury v. Moore 300 Drv, Bagwell V 154 Duckenfield, Cook v l65 Dudley Lord, Attorney Ge- neral V . . 325 . V. St. Paul. . 47 Duffield V. Creed 377 V. Duffield 121 V. Smith 103 Dunbar v. Tredennick 386, 398 Durham Bishop of v. Mo- rice 162, 164 Dutton, Cotterell v 332 Dwyer v. Lysaght . . 129, 140 Dyer v. Dver . . 44, 58, 59, 68 Dvson, Ballard V. 9, 305, 310, 31 4 E. Eastwood V. Vinke . 100, 108 Eaton V. Lyon 422 , York V 74 Ebrand v. Dancer 53, 57 Echlin, Tasburgh v 339 Edmunds v. Povey 254 Edwards, Bowen v 338 V. Carrol 447, 448, 449 — V. Harvey 271 V. Morgan 404 , Nagle V 13, 287 .,. V Lord Vernon 285, 289 Effingham Earl of. Keen d. • Earl of Portsmouth v. . . 200 Egremont Earl of, Wynd- ham V 50 Lord, Duke of Northumberland v 406 Eldridge v. Knott .... 14, 298 Elkenhead's case 128, 1S6 Elliot V. Brown 75 V. Elliot 59; 60, 64 V. Merriman . . 427, 432 Ellison V. Cookson 128, 136, 139 b NAMES OF CASES. Elphinstonc, Richardson v. 88j Elslcy, Donnison v Ely Dean of v. Stewart . . Emery v. Grocock . . 259, Emly, ex parte Eminerson, Coles v. England v. Slade Errington, Brougliton v. . . ; Randall v. .... Evans^ Bury Corporation v. V. Chesshire , White V 156, Evers, Garret v Ewer, Lockwood v , White V 329, Eyr, Bradshaw v Eyre, Pophani v Eyres, Jason v. ; Past' 87, 108 287 197 275 72 361 210 100 287 396 178 108 331 332 292 4.19 338 Falrclaim v. Shackleton . . 195 Fairfax v. Montague 340 Falkener, Jcacock v. . IO9, 120 Fane v. Fane 156 Fanshaw v. More 287 . V. Rotherham 285, 286, 287, 288, 289 Farmer, Corus v. 85 Fainham v. Phillips 140 Farnworth v. Bishop of Chester 266 Farquhar, M'Queen v, . 36, 37 Farrant, Chave v 114 Farrar's case 195 Farringtonv. Knightly I67, 172, 176 Fauconberg, Fitzgerald v. 39 Fausset, Whitfield v 197 Fawkeners v. Bellingham 297 Feast, Blinkhome v. . 173, 178 Ferrars, Roe d. Pellatt v.. . I89 Field V. Mostin 109 Finch V. Finch 56, 59, 60, II6 , Nourse or Hornsby V. 165, 167, 170, 180, 181, 182, 183 V. Resbridger 312 Fitton V. Earl of Maccles- field 447, 449 Page Fitzgerald v. Fauconberg 39 Fladong v. Winter 366 Fleetwood v. Templeman 330, 336 Fleming, Taylor v 74- Fletcher, Huet v 423 V. Sedley 72, 88 , Sibson V. . . , 355, 356 Flood, Fryer v. 13 Flower V. Lord Boling- broke 358 Floyd V. Mansell 333 Floyer v. Lavington 338 . V. Strackley 277 Foley V. Bumell 28 Folkard v. Hemmett 3l6 Forbes v. Moffat 51 Ford, Fordyce v. 417, 419 V. Gray 202 Fordyce v. Ford 417, 419 V. W^iUis 56 Foreman, Wilson v 9^ Forsight v. Grant 87 Fortescue, Doi-mer v 437 Foster, Blake v 333 , Fulthrope v 350 , Gorges v. I96 V. Hodgson . . 330, 332 V. Munt 156, 176 Foster's case 297 Fotherby v. Hartridge .... 372 Fowler v. Fowler .. 104, 113 Foxcroft V. Parris 285, 286, 288, 289 Foxon, Watson v. 44 Foy V. Foy 143,149 Frances v. Ley 293 Franklin, Murless v. 56, 58, 59, 60, 64, 68 Frazer v. Moor 330 Freemantle v. Bankes 132, 140 Freemoult v. Dedire .... 91 Frewen, Oliver v 178 V. Relfe 178 Froswell v. Welsh 263 Froud, or Proud, Green v. I90, 196, 199 Fry V. Wood 26I Fryer v. Flood 73 Fulthrope v. Foster 350 NAMES OF CASES. G. Page Gainsborough Earl of v. Lady Gainsborougli 180, 181 Gallimore, Moss v. ..... 353 Gardiner, Knewell v l66 Gardner v. Marquis 91 Garnons, Ward v . . . . 1Q6, 197 Garrat v. Garrat Ill Garret v. Evers 108 V. Lister I97 Garth v. Meyrick 141 Garthshore v. Chalie . . 81, 83 Gartside v. RatclifF 198 Gascoyne, Langford v. . . . . 429 Gatley v. Quarrel 69 Gaynon v. Wood 103, 110 Geofrey v. Thorn 36 1 George v. Bank of England 53, 55 Gibbs V. Rumsey 156, l62, 179 <3ibson V. Clark 293 , Lake V. 74, 75, 76, 77 Gilbert, May v 293 V. Wetherell 365 Giles Mainwaring v 295 Gillespie v. Alexander, 149, 150 Giraud v. Hanbury 156 Gladding v. Yapp 157, 180, 181, 182 Glaister v. Hewer 73 Glanville v. Paine SQ Glascock, Peacock v. . . . 89, 94 Goble, Martin v. 9, 305, 311, 314 Gobsall V. Sounden . . 1 71, 173 Goddard, Davison v 104 Godsale, Powell v 36l Goldsmid v. Goldsmid . . 81, 83 Goodall, Collins v 297 Goodfellow V. Burchett . . 108 Goodinge, Carey v 1 76 Goodman v. Grierson .... 339 Goodright d. Langfield v. Hodges . . 55, 51 d. Stevens v. Moss 273 — d. Tompson v. Saul .... 21, 23 Page Goodright d. Grosvcnor v. Swimmer . . 219, 221, 224 Goodtitle d. Parker v. Baldwin. ... 15 ■ d. Bridges v. DukeofChan- dos 192 d. Jones v. Jones 230, 255 d. Lloyd V. Lloyd 273 d. Norris v. Mor- gan 254, 255 Goodwin V. Baxter 208 Goold, Williamson v 443 Goolding V. Haverfield 124, 126 Gopp, Partridge v 69 Gordon v. Gordon 272 Gorge's (Lady) case 5^, 62, 68 Gorges v. Foster I96 , Willaurae v. 358, 359, 3m Gough, Bicknell v 385 Gould, Hay don v 273 Gowland v. De Faria, 17, 385, 395, 398 Gray's (Lord) case 59 Gray v. Bond 315 -, Ford V 202 Graham v. Graham 86, 104, 112 Granby Marquis of v. Earl of Northumberland .... 406 Grant, Forsight v 87 Granville Lady v. Duchess of Beaufort 173, 174, 180, 181, 182 Grave v. Earl of Salisbury 121, 128, 133 Green, Bateson v. 3l6 V. Froud or Proud I90, 196, 199 V. Stephens 44 Greenville d. Webb, Warren V 190, 198 Greenwood v. Greenwood 41, 142 , Nouaille v 221 Greese, Richardson v. . . . . IO9 Greeves, Rawlinson v. . , . . 263 Gregor v. Molesworth .... 385 b2 NAMES OF CASES. Page Gregory, Aklon v 386 .'- V. (Jregory 3.9'" Gricrson, Goodman v 339 Griffin Lady v. Boynton . . 1 96 ^ Doe d. Banning v. 271j 279 ■ V. Mason 37 Griffith V. Mathews . . 295, 296 V. Rogers 174 Griffiths V. Hamilton l60 Grinsell, Bradbury v . . 14, 314 Grocock, Emery v. . . 259, 275 Grose V. West 31, 32 Grove V. Hooke 87, 101 Grubb, Biggleston v. . 128, 140 Guernsey Lord v. Rod- bridges 312,314 Guest V. Homfray . . 41 6, 418 Gurrey, Hemtning v. . 149, 365 Gutteridge, Simpson v 299 Guy's Hospital, Baynham V 422 Gyles, Moyse v 74 H. Hadden, Woodver v. 321, 323, 324 Hale V. Acton 128, 140 , Lord Cranlcv v. 156, 159, 168 Hales V. Hales 355 Halfpenny, Macdowell v. 114, 434 Hall V. Bench 264 , Doe d. Bennington v. 1.97 V. Noyes 394 • Winchcomb v 385 Hallet, Pinnell v. 99 Hambly, Yates v 351 Hamilton, Griffiths v. l60 . , Smallman v. . . . 367 Hammond, Bailey v 281 Hamond v. Hicks 380 Hanbury, Giraud v. 156 V. Hanbury 103, 110, 120 Hancock, Spurrier v. . 41 6, 419 Hands V James 39 Hankey, Powell v 368 Hansard v. Hardy 341 Harper v. Charlesworth . V. Lee Page Harborough Earl of v. Sherrard lo5 Hardman, Omercd v 418 Hardwick v. Mynd, 17, 426, 431 Hardy, Hansard v . . . . 341 ~ V. Reeves 341 Harley, Attorney General V. 145, 149 Harmood v. Oglander 195, 368, 381 324 172 Harrington v. Wheeler . . 41 6 Harris, Howard v 338 . , Woollett V. 154, 155, 157 Harrison v. Hollins 334 Hartop V. Hoare 28 V. Whitmore 128 Hartopp V. Hartopp 89, 130, 132, 140 Hartpole v. Walsh 350 Hartridge, Fotherby v. . . . 372 Hartwright v. Badham . , 309 Harvey, Belch v 332 . Bernev v. 13, 287, 288 ■, Edwards v. 271 v. Philips 196 Hasland, Rowev.. .. 277,281 Hastings, Tooke v 97 Hatch V. Hatch 386 Hatton V. Hatton 1 69, 180 , Hooley V. . . . 141,143 Ladv V. Jay 360 Haverfield, Goolding v. 124, 126 Hawkins v. Mason 178 Rex V 27 Hay, Monkhouse v 28 Haydon v. Gould 274 Hayes v. Caryll 419 Haynes V. Littlefear I67, I68, 178 . V. Mico 88, 109 Head v. Head 20, 21, 22, 23 Headen v. Rosher 396 Headlam v. Hedlev 31 Healey, Hodle v. 330, 332, 342 Heaphy v. Hill 4l6 Heaps, Bowes v 306 Heathcote v. Aldridge 287, 288 , Martin v 43& NAMES OF CASES. Heiithfield, ex parte 435 Hoaton v. Hugell 330 Hedlev, HcatUara v 31 Heel, Holcroft v 11, 302 Hellier, Cookes v. . . . ipS, 263 , Doe d. Tarrant v. 402 Heming, Orde v. 351 Henimett, Folkard v 31 6 Hemming V. Gurrey. . 149, 365 Herbert v. Tuckal 270 Hercy v. Dinwoody 426 Heme v. Heme 85 Heron v. Newton . . . 177, 180 Hertford Marquis of v. Boore 420 Heupert v. Benn 376 Hervey v. Hervey . . 272, 273 Hewer, Glaister v 73 Hewett, Wallop v. 143 Hickes V. Cooke. . 17, 385, 389 Hicks, Haniond v 380 Higgins V. Crawfurd .... 373 Highara v. Ridgvvay 270 Hilder, Doe d. Putland v. 231, 235, 245, 256 Hill V. Comber , . 44 , Heaphy v 416 , Lewis V. Q5 Hillary v. VV^iller 211, 216, 326 Hilliard v. Phaley 273 HinchclifFc v. Hinchclifle 120, 123 Hinchingbrook Lord, Lord Shipbroke v. 436 Hirst, Doc d. Beanland v. 8 Hitchcock V. Sedgwick. . . . 254 Hoare, Hartop v. 28 V. Parker 28 Hobart v. Earl of Bucking- hamshire 47, 50 Hobbs V. Tate 105 Hodges, Goodright d. Laug- field V 55, 57 V. Peacock 1 44 Hodgson, Foster v. . . 330, 332 Hodle V. Healey 330, 332, 342 Hodson, Talbot v. 37 Holcroft V. Heel 11, 302 Lady v. Smith . . 197 Holford, Lade v. 226, 227, 231, 243 v.. Wood .... 142, 170 Pase Hollingshead's case 447 Hollins, Harrison v. 334 Hollis's (Lord) case 330 Holman, ex parte 259 Holmden, Lomax v 21 Holmes V. Ailsbie 200 V. Meynel 43 Holt V. Mill 254 Holworthy, Yallop v 437 Holyland, ex parte 19 Homfray, Guest v. . . 416, 418 Hooke V. Grove . . 87, 88, 101 Hooker, Attorney General V 172 Hooley v. Hattou 141, 143 Hooper, Bird v 1 36 , Davie V 121 Hopkins, Bond v. 382 Hord, Saunders v . 330 Horde, Taylor v. 38 Hornby, Weld v 313 Horner, Mayor of Hull v. I93, 303 Homsby or Nourse v. Finch 183 Horsface, Waller v. 198 Hoskins v. Hoskins 129, 130, 140. 174 Houghton, ex parte .... 28, 54 Hovenden v. Lord Annes- ley 16, 380, 384 Howard, Bell v 41 9 , Davys v . . 9I, 93, 96 V. Harris 33S Howell V. Price 14, 350 Stackpoolc v. 170, J 71, 176 Hucks V. Hucks 95 Huckstep V. Mathews .... 403 ' Hudson, Rex v. 314, 319, 324 Huet V. Fletcher 423 Hugell, Heaton v 330 Hulke V. Pickering 359 H ull Mayor of v. Horner 193, 303 Hummerston's case 55 Humphreys v. Humphreys 361 Hungerford Lord v. Bris- tol 176 Hunt V. Coles 241 Smart v 341 Hunter, Bowker v 178 Huntingdon's (Lord) case. . 4.') xxii NAMES OF Pa^e Hunton V. Davics 376 Hurst V. Beach 55, 89, 143, 145, 149 , Izard V. 129 Hiisscv V. Lcighton 294 , '-, Mordaunt v l65 H— t'scase - 196 I. Inskin, Lord Braybroke v. 273, 276' Ireland, Roe d. Johnson v. 188 Ironmonger, Doe d. Hallen V ^^ Isaacs, Van Braam v 443 Isham V. Cole 330 Ivat, Wilson V I6I, 178 Izard V. Hurst 129 J. Jackson, Cupit v. 3Q5, 367, 368 V. Jackson .... 75, 263 , Palmer v 341 — V. Stacey 305, 311, 314 V. Walker. . . . 290, 291 James, Hands v 39 . V. Semmens 143 Jarason, Vezey v. 154, lC2, l64 Janssen, Earl of Chester- field v 71 Jason V. Evres 338 Jay, Lady'Hatton v 360 Jayne v. Price 29 Jeacock V. Falkener. . IO9, 120 Jeffereys v. SraaU 74, 75 , Vachell V. . 172, 178 Jefferies, Bromley v 103 Jekyll, Shudal v. 128, 137, 139 Jenkins v. Powell 128 Jenner v. Tracey .... 330, 332 Jennings v. Lettis 287 I , Rawlings v 178 V. Selleck .... 59, 6I Jesson, Doe d. George v. 279^ 332 V. Jesson 116, 117, 121 Johnson, Doe d. Taylor v. 402 - V. Johnson 412 CASES. Page Johnson v. Lawson 271 . V.Smith 116 . V. Twist 178 Johnston, Newstead v. 170, 175 Jones, Cooper V. .. ^4 . , Goodtitle d. Jones v. 230, 255 V. Morgan 47, 50 V. Randall ^4 V. Turber%alle 372 . V. Westcombe 174 Williams v. 156, 180, 183 JosHn V. Brewett .... 171, 173 Joyner, Medlicott v . . 1 96, 198 Judson, NichoUs V. . . 108, 109 K. Karr, Roberts v 318, 325 Keate, Barker v 37 Keen d. Earl of Portsmouth V. Earl of Effingham. . . 200 Keene v. Deardon .... 221, 222 Kemys v. Ruscomb 358 , Thomas v 117 Kennedy v. Stainsby 172 Kennett, Cadogan v 28 Kenrick v. Taylor 295 Keynier v. Summers 309 Kevwick v. Thomas . . 117,118 Kidder, Rider v 53, 55, 67 Kidney v. Coussmaker 17, 432 Kinaston v. Clark .... 285, 288 , Newport v 143 King V. Denison 176 -, Smith V. 224 -, Urquhart v. 157, 158, 179 Kingdom v. Bridges 67 Kingston, Bull V 170 Kinnoul v. Money .... 44, 45 Kirkham v. Smith 47, 51 Kirkman v. Kirkman .... 84 Knewell v. Gardiner I66 Knight V. Adamson 209 Knightly, Famngton v. I67, 172, 174 Knipe, Aveling v 74 Knott, Eldridge v 14, 298 Knowles v. Spence . . 330, 333 Kuffin, Roberts v 438 NAMES OF CASES. L. Patjc Lacou V. Brlggs 377 Lade v. Holford 226, 227, 231, 243 V. Shepherd 32, 317, 321 Lakev. Gibson. . 74, 75, 76', 77 V. Lake 173, 180, 182, 183 V. Thomas 340, 348 Lambert v. Dicks 171 Lamplugh V. Lamplugh, 55, 57, 59, 60, 61 Langford v. Gascoyne .... 429 Langham v. Saudford l65, 170, 180, 182, 183, 184 Langley v. Chute 293 Lant, Ward v. . . 136, 170, 173 Laughton v. Ward 9 Lavender, Adams v. . . . 87, 88 Lavington, Floyer v 338 Lawrence v. Obce 308 , Whichcote v. 17, 395 Lawson, Johnson v 271 V. Lawson 175 Leach, Thompson v. 32 Leader v. Barry 272 Leake v. Leake 125, 126 Lechmere v. Lechmere 92, 95, 9(i Lee V. Brown 109, 429 V. Cox and D'Aranda 81, 83 , Chidley V 114 , Harper v. 172 V. WiUock 282 , Wynstanley v 308 Leeds L)uke of, Osborne v. 144, 148 , Pughe V. . . 121 Lees, MeUor v 338 Legh, Oswald v 362 Leighton, Hussey v 294 Leman v. Newnham 352, 354, 357 Lench v. Lench 96 Le Neve, Norris v. . . 393, 447 Leominster Corporation of, Bayley v 422 Page Lethbridge v. Winter 325 Lettis, Jennings v 287 Lewellin or Llevellyn v. Mackworth 174,381 Lewin, May v 156, 184 Lewis, Cross v 306, 307 V. Hill 95 V. Nangle 45 V. Price 304 , Ridout V. 369 V. Lord Teynham . . 372 Lewthwaite, Clennei V. ISO, 182 Ley, Frances v 293 Lincoln Earl of, Watson v. 117, 124, 128, 132, 140 Lister v. Garrett 197 Littleburv v. Buckley 180, 181, 182 Littlefear, Haynes v. l67, l68, 178 Livett V. Wilson l6, 309 Llevellyn or Lewellin v. Mackworth 174, 381 Llewellin, Lady Stafford v. 221 Llovd v. CoUett 417 v. Cooke 272 Doe d., v. Howell, 215, 217 Goodtitlc d., V. Lloyd 273 , Rees V. 262 , , Rex V. 317, 320, 321, 323 Lockey v. Lockey 437 Lockwood V. Ewer 331 Lomax V, Holmden 21 London Mayor of v. Russcl 1 47 Long Buckby, Rex v 40 Loveday, Abdy v. 356, 360 , Biden v 262 Lowe, Roe d. Eberall v. . . 208 Lowther v. Carlton 28 Loyd V. Read .. 53, 57, 6l, 62 Lucas V. Novosilieski .... 378 Luffe, Rex V 22 Lyford v. Coward 208 Lvmonds, Cloberry v 351 Lynch, Burke v 345 Lynn v. Beaver. ..... 170, 180 Lvon, Eaton v. 422 XKlV NAMES OF CASES. Lysaght, Dwyer v. .. 129, 140 Lvster V. Dolliuid 75 Lytton V. Lytton 447 M. Macclesfield Earl of v. Davies 28 , Fitton V 447,449 Macdowell v. Halfpenny 114, 434 Mackenzie, York Buldings' Company v ^95 Mackreth, ex parte 443 V. Marlar 417 Mackworth v. Llevellyn or LevveUin 174, 381 Maddison v. Andrew .... 55 Mainwaring v. Baxter .... 282 V. Giles 295 Malone v. Malone 402 Mann, Debeze v. 130, 132, 138, 139, 145 ManseU, Flovd v S33 V. Mansell 29 Mansfield, Phipard v 44 Marlar, Mackrelh V 417 Marquis, Gardner v 91 Marsack v. Reeves 396 Marston, Perry v. 341, 342, 343 Mart, Steele v 38 Martin, Barron v 330, 340 . V. Goble 9, 305, 311, 314 . V. Heathcote .... 438 V. Rebow.... 170, 173 Mascal v. Mascal 140 Mason V. Cheyney 87 , Griffin V 37 , Hawkins v 178 Masters v. Masters 144 Mathew v. Tompson .... 1 97 Mathews v. Courthope 156", 172 , Huckstep V 403 V. Mathews 87, 88, 101, 109, 110 Matthews, Griffith v. 295, 296 MaundrcU v. Maundrell . . 240 Mawbey, Burgess v. 116 Maxwell, ex parle 444 MaxweU v. Ward 422 May V. Gilbert 293 —. V. Lewin 156, 184 V. May 273, 274 M'Clelland v. Shaw l6l M'Queen v. Farquhar . . 36, 37 Meade v. Earl of Bandon. . 358 V. Norbury 287 Medley v. Talmy _ 288 Medlicot v. Joyner . . 196, 198 Medlicott v. O'Donel l6, 382, 384, 394, 399 MeUish, Sturt v 434 Mellor V. Lees 33^ Mence v. Mence l67, Meredith v. Wynn 1 1 1 Merriman, Elliot v. . . 427, 432 Merryweather, Rugby Cha- rity v , 319 Metcalfe, Dixon v 266 Meynel, Holmes v 4'3 Meyrick, Garth v 141 Mico, Haynes V 88, 109 Middleton v. Pryor 99 V. Shelly 360 Milbanke, Powell v 293 Milfax V. Baker 402 Mill, Holt V 254 Miller, Morres v. 272 Milnes v. Slater 179 Mil ward v. Earl Thanet . . 418 Minchin, Whitcomb v 389 Minuet V. Sarazine 112 Mitchell, Bridges v 438 Moffat, Forbes v 51 Moggridge v. Thackwell 149, 150 Molesworth, Gregor v. 385 Monck V. Lord Monck 129, 140 Money, Kinnoul v. .... 44, 45 Monke v. Butler 27 Monkhouse v. Hay .... 28, 54 Montague, Fairfax v 340 , Rex V 194, 328 Moor, Frazer v 330 Moore v. Blake 419 , Drurv v 300 V. Raw son 308, 309 Mordaunt v. Hussey l65 More, Fanshaw v 28T NAMES OF CASES. Pa-e Moreland v. Bennett 362 Morgan;, Davis v 314 , Edwards v 404 , Goodtitle d. Norris V 254, 255 , Jones V 47, 50 , Probert v 100 , Rickman v . . 118, 125 Morice v. Bishop of Dur- ham 16"2, 16'4 Morley Lady, Powlett v. 170, 173 Morony v. O'Dea 385 Morrel, Woodman v. 63 Morres v. Miller 272 Morrison, Ridges v. . . 144, 145 Morse v. Royal 393 Mortimer, Symmons v 443 Moselev, Yate v. . . . 410, 450 Mosely, Bland v 308 Moss V. Gallimore . . ... 353 , Goodright d. Stevens 273 Mostin, Field V 109 Moth V. Atwood .... 397, 399 Moulson V. Moulson. . 119, 120 Mowbrav, Rayner v 41 Moyle v' Lord Roberts 36l, 363 Moyse v. Gyles 74 Muckleston v. Brown 170, 176 Mumma v. Mumma 59, 6l, 62, 63, 68 Munt, Foster v 156,176 Mun3^ard v. New I6O Murcott, Carter. v 15, 327 Murless, Doe d. Batten v. . 208 v. Franklin 56, 58, 59, 60, 64, 68 Murrey, Nisbett v. . . . 171, 176 , Regina v 20 Mutloe v. Smith 414 Mynd, Hardwick v. 17, 426, 431 N. Nab v. Nab 56 Nagle v. Edwards .... 13, 287 Nangle, Lewis v 45 Nash, Shelly v 395 Netherthong, Rex v 261 Page Nevil V. Parker I66 New, Munyard v I60 Newburgh Earl of v. Bick- erstafie 437 Newcastle Duke of v, Cley- ton 378 Newcomb v. Bonham 338 Newlyn, Pearce v 414 Newman v. Newman .... 366 V. Rogers 419 Newnhara, Leman v. 352, 354, 357 Newport v. Kinaston .... 143 Newstead v. Johnston 170, 175 Nevv^ton v. Avscough .... 428 , Heron v. . . . 177, 180 NichoUs V. Crisp 163, I76 V. Judson . . 108, 109 Nicholson v. Wordsworth. . 32 Nisbett V. Murray , . 171, 176 Noden, CordeU v. 156 Noel V. Lord Walsingham 126 Norbury, Meade v. 287 Norfolk Duke of, Dawson v. 15, 301 Norris v. Le Neve . . 393, 447 North V. Crompton 154 , Daniel v. 15, 307 Lord V. Purdon 156, I66 Northampton Inhabitants of. Rex V 321 Northumberland Earl of v. Marquis of Gran- by 406 Duke of v. Lord Egremont. 406 Norton, Crop v 53 Norwood, Crump v. 42 Nouaille v. Greenwood. ... 221 Nourse, Dennis v 360 or Homsby v. Finch l65, 167, 170, 180, 181, 182, 183 Novosilieski, Lucas v 379 Noyes, Hall v. 394 O. Gates, Procter v 345 Obee, Lawrence v 308 NAMES OF CASES. Page O'Brian, Roche v. 17, 385, 386, 398, 399 O'Brien, Barrington v. 370, 447 O'Dea, Morony v 385 Odingsale, Coward v 419 O'Donel, Medlicott v. l6, 382, 384, 393, 399 Offley V. Offley 36"8 Oglander, Harmood v, 195, 368, 381 Oldham v. Carleton l66 Oldis V. Davenport 44 Olive, Benson V. . .■ 287 Oliver V. Brighouse 112 V. Court 389, 393 V. Frewen 178 Omerod v. Hardraan .... 418 Ommanncy v. Butcher 1()2, l64, 176", 177 Onslow v. Michell. 126 Orby V. Trigg 403 Ord V. Heming 351 V. Smith . . 330, 338, 341 Orford, Cholmondley v. . . 427 Osborn v. Duke of Leeds 144, 148 Osborne v. Villiers 185 Oswald V. Legh 362 Oughterloney v. Earl Powis 377 Oxenden v. Skinner . . 286, 290 P. Page v. Page 164 Paget, Philips v 428, 429 Paine, Glanville v 39 Painter v. Salisbury 164 Palmer v. Jackson 341 Paramour v. Yardley .... 267 Parker v. Ash ' 373 — — — , Hoare v 28 , Nevil v 166 . V. Philips 413 Parmeter v. Attorney Gene- ral 401 Parris, Foxcroft v. 285, 286, 288, 289 Parsons v. Bellamy 29I — V. Saffery 162, I76, 179 Partridge v. Gopp 69 Page Passer, Read v 272 Pawlett, Croft v 39 V. Lady Morley 170, 173 Payne v. Powlett 290 , Wilkinson v. 274 Peaceable d. Hornblower v. Read 195 Peacock, Cuthbert v 113 v. Glascock .... 89, 94 , Hodges V 144 Peake, Thrustout v 55 Pearce v. Newlyn 414 Pearson v. Belchier 434 V. Pulley 329 Peck V. Brown 128 , Staunton v. 44 Peggc, Bristow v 226 Pelham Lord v. Pickersgill 303 Pembroke Earl of Doe d. Johnson v 261,270 Pendrell v. Pendrell 21 Pennington v. Beechey 28 Pepper v. Winyeve . . 128, 140 Perkins, Reynoldson v 335 Perry v. Marston 341, 342, 343 V. Perry 87 V. Philips 102 Petit V.Smith .. 176, 180, 183 Petre Lord v. Blencoe .... 287 Pettiward v. Prescott 410, 437 Pettman v. Bridger 295 Petty v. Styward 78 Phaley, HiUiard v 273 Phelips, Perry v 102 Philips v. Harvey I96' v. Paget 428, 429 , Parker v 413 Phillips, Farnham v 140 Phipard v. Mansfield .... 44 Pickerell, Aggas v. . . 330, 333 Pickering, Hulke v 359 . V. Lord Stamford 425 Pickersgill, Lord Pelham v. 303 Pidgeon, Pit v 143, 144 Pierce, Basket v. 382 Pigion, White v. 349 Pile, Curry v 143 V. Pile 1 16, 123 Pilson v. Price I09 Pinnel v. Hallett 99 NAMES OF CASES. Pai;e Pit V. Pidgeoii 143, 144 Piatt, WoUey v 287, 289 Poilblanc v. Aiidroviii .... 156 Pole V. Pole 59 V. Lord Somers 113, 140 PolhiU, Ware v 47 Pomfret, Wallace v 105 , Lord WaUace v. . 113 Earl of V. Lord Windsor 370 Pontet, Devese v. 87, 88, 90, 112 Poole V. Cabanes 444 Pope V. Wliitcombe 41 Popham V. Desmond 360 . V. Eyre 419 , Roe V 55 Porter, Carlton v. 443 , Sacbeverill v 299 Postlethwaite, Reeks v. 342, 344 Povev, Edmonds v. 254 Powell, Bavley v 172, 178 V. Cleaver 128 V. Godsale 36 1 V. Hankcy 368 , Jenkins v 128 V. Milbanke 293 , Rawlins v. . . 113, 182 V. Stratford. . 404, 406 Powlett, Payne v 290 Powis Earl, Oughterloney V 377 Prankerd v. Prankerd .... 6l Pratt, Crisp v 65, 72 V. Sladden .... l60, 178 Prebble v. Boghurst 98 Prescot, Pettiward v. . 410, 437 Price V, Byrn 393 V. Copner 338, 341 , HoweUv. 14, 350 , Jayne v 29 , Lewis V 304 , PHson V 109 , WilUams V 291 Pricket, Steel v 31 Prime v. Stebbing 81, 89, 101 Prince, Upton v 130 Pring V. Pring 1 54 Prober t v. Morgan 100 Procter, Bales v. 367 Page Procter v. Cowper . . 332, 340 Proctor V. Gates 345 V. Warren 68, 72 Prosser, Doe d. Fishar v. |188, 195 V. Watts 205 Proud or Froude, Green v. 190, 196, 198 Pryor, Middleton v 99 Puglie V. Duke of Leeds . . 121 Pulley, Pearson v. . , 329 Purbeck Lady, Duke of Al- bemarle V 367 Purchase, Cotterell v. 332, 339 Purdon, Lord North v. 156, I66 Pusey V. Desbouvrie 403 Pybus, De Mazar v.. . 158, 179 Pye, Atlierton v 44 , Currie v. . . 143, 144, 145 and Dubost, ex parte 128, 136 Q- Quarrel, Gatley v. (id R. Rachfield v. Careless 156, 184, 185 Radley, Standish v S69 Radnor Earl of, Campbell v. 149 Rakestraw v. Brewer 330, 345 Randall v. Bookey 170, 172, 173 • V. Errington 394 Randell, Jones v 44 RatclifF, Gartside v I98 Raven, S wanton v 439 Rawlings v Jennings 178 Rawlins v. PoweU . . 113, 182 Rawlinson v. Greeves .... 263 Rawson, Moore v 308, 309 Rayner v. Mowbray 41 Rea v, Williams ....... 74 Read v. Brookman 298 , Loyd V 5S V. Passer 272 , Peaceable d. Horn- blower v 195 V. SneU 155 XXVlll NAMES OF CASES. Paee Ileade v. Heiidc 436" , Roc d. Ileade v . . . 227 Rcbow, Martin v 170, 173 RcdiiiKton v. Redington 47, 54, 55, 58, 6'0 Reed, Aynsly v 335 , Baugh V 130, 133 , Dix V. . . . 161, 173, 180 , Doe d. Fenwick v. 14, 189, 351 Reeks v. Postletliwaite 342, 344 Rees V. Lloyd 262 Reeves, Hardy v 341 , Marsack v 396 Rcgina v. Murrey 20 Rclfe, Frewen v 178 Resbridger, Finch v. 312 Rexv. Barr 15,329 V. Barnsley 208 V. BedaU 21 V. Brampton 273 V. Bramby .. 273 V. Marquis of Bucking- ham 321 V. Carpenter 303 V C?.tesby 26l V. Culpepper 198 V. Hawkins 27 V. Hudson. . 314, 319, 324 V. Lloyd 317, 320, 321, 323 V. Long Buckbv 40 V. Luffe ' 22 V. Montague 194, 328 V. Netherthong 201 V. Northampton 32 1 V. Ryton 26l V. Twyning 26 Reynoldson v. Perkins .... 335 Richards, Attorney General V. 401 V. Bennett 304 V. Richards 280 Richardson, Barker v . . 15, 307 V. Elphinstone 87, 88, 108 . V. Greese .... 109 Richmond, Sadler v. ..... . 254 Rickman v. Morgan . . 118, 125 Rider v. Kidder 53, 55, 67 Ridgard, Bonuey v. 388 Pasje Ridges V. Morrison . . 144, 145 Ridgway, Higham v 270 Ridout V. Lewis 369 Rigden v. Vallier 74 Roberts, Lady Dartmouth V. . . 285, 286, 289 V. Dixall 122 V. Karr 318,325 V. Kuffin 438 Lord V. Moyle 36l, 363 Robins, Spinks v 132 Robinson v. Brooke 290 _ V. Davis 198 V. Taylor . . 154, 155 .- V. Whitley 133, 137, 139 Roche V. O'Brien 17, 385, 386, 398, 399 Rodbridges, Lord Guernsey V. ..: 312, 314 Roe, Acherley v 14, 189 44 189 188 208 55 227 296 443 d. Wren v. Clayton d. Pellatt V. Ferrars . . d. Johnson v. Ireland. . d. Eberall v. Lowe . . d. Roach v. Popham . . d. Reade v. Reade .... Rogers v. Brooks .... 295, , Drake v , Griffith v 174 , Newman v. 419 RolfFv. Thorne 279 Roome v. Roome 129 Rorke, Webbv 389 Roscarrick v. Barton. . 330, 335 Rose V. Brvant 366 Rosewell v. Bennet 129, 131, 140 , Smith V 360 Rosher, Headen v 396 Rotherham, Fanshaw v. 285, 286, 287, 288, 289 Ronndell v. Brearv 91 Rowe v. Hasland'. . . . 277, 281 Royal, Morse v 393 Rugby Charity v. Merry- weather 319 Rumbold v. Rurabold .... 404 Rumsey, Gibbs v. 156, l62, 179 Ruscomb, Kemys v 358 Russel, Mayor of London v. 147 NAMES OF CASES. Pase Rutland Duke of v. Duchess of Rutland ISO, 182 , Willoughbv V . . . . 104 Ryton, Rex v. . . . .' 26l S. Sacheverill v. Porter 299 Sadler, Stanton v. 254 V. Turner .... 157, 179 Satfery, Parsons v. l63, 176", 179 Sale, Crompton v.. . 87, 99, 108 Salisbury, Earl of v. Grave 121, 128, 132 Painter v l64 Sandford, Langham v. l65, 170, 180, 182, 183 Sanger, Tucker v. 404, 410, 414 Sarazine, Minuet v 112 Saul, Goodright d. Tomp- son V 21,23 Saunders v. Hord 330 Savage v. Carrol 117 Savile V. Savile 11 6, 124 Sawbridge v. Benton 26'6" Scott V Airey 285, 28(), 288, 289 , Doc d. Graham v. 228, 235, 259 Scotton V. Scotton 128, 140 Scroop V. Scroop 56", 57, 59, 60, 65 Seaman v. Vawdrey . . 14, 401 Scarle v. Lord Barrington 362, 365 , Batchellor v. 176, 180, 182 Seawell, Bond v. . , 39 Sedgwick, Hitchcock v. . . . 254 Sedley, Fletcher v 72, 88 Seed V. Bradford . 114 Seley v. Wood 156, 170, 171, 172, 176 Selwyn, Brown v 140 Semmens, James v 1 43 Sewell, Clark v 109 Shackleton, Fairclaim d. Empson v. 195 Shaftoe, Adair v 401 Shales v. Shales 56, 59, 60, 62 Shalmer, Spalding v 433 Paa:e Shaw, Bealey v. 9, 305, 311, 313, 314 , M'Cleland v l6l Sheer, Wheeler v. 155, l65, 172 SheUy, Middleton v. 360 V. Nash 395 Shepherd, Lade v. 32, 317, 321 Sherman v. Sherman .... 438 Sherrard v. Lord Harbo- rough 165 Sherrington v. Smith .... 447 Shipbrooke Lord v. Lord Hinchingbrook 436 Shirley, Skipwith v. . . 197, 198 Shore, Balmain v. 75 ShoweU, Cullv 410 Shrewsbury Lady v. Lord Shrewsbury 47, 48 Duke of, Tal- bot v. 108 Shrimpton v. Stanhope. ... 177 Shudal v. Jekyll 128, 137, 139 Sibson v, Fletcher . . 355, 356 Silway V. Compton 267 Simpson v. Gutteridge .... 299 Skinner, Oxenden v. 286, 29O Skipwith, Bovey v 254 v. Shirley . . 197, 198 Skrimpton, Conwav v 342 Slack, Cowlam v. .". . . 299, 300 Sladden, Pratt v I60, 178 Slade, England v. 210 Slater, Milnes v 179 Slatford, Thurston v 199 Small, JefFereys v 74, 75 Smallcombe, Awdry v 29 1 Sraallman v. Hamilton .... 367 Smart v. Hunt 341 Smith, BaUv 172, 174 , Bovey v 29 , Brice V 39 V. Lord Camelford 11 6, 121 • V. Campbell 41 V. Clay 12, 436, 447 , Colton V 304 , Crimes v 265, 290 , Deacon v. 92, 95, 97, 101 v. Death 275 XXX NAMES OF CASES. Page Smith, Dufficld V 103 , Lady Holcroft v. . . 197 . Johnson v . Il6 , Kirkhamv 47,51 .V.King 224 , Mutloe V 414 Ord V. . . 330, 338, 341 ; Petit V... 176,180, 183 V. Rosewell 360 , Sherrington v 447 V. Strong 128,132 .-, Wathen v. 85 Smythies v. Wright. . . 15, 264 SneU, Readv 155 Soltau, Cooke V 223 Somers Lord, Pole v. . 113, 140 Somerset, Constable v SdH Duke of V. Du- chessDowager of Somerset ll6 Sounden, GobsaU V... 171, 173 Southcot V. Southcot 367 V. Watson . . 170, 174 Southcote V. Sweet ...... 28 Southouse V. Bate 154, 170, 171, 176, 177 South Sea Company v. Wy- mondsell 384, 434 Sowden v. Sowden 92, 96, 101 Spalding v. Shalmer 433 Sparke, Christophers v. 353, 378 Sparkes V. Cator .... 117, 120 Spence, Knowles v. . , 330, 333 Spencer, Combes v 196 Spinks V. Robins 132 Spurrier v. Hancock. . 41 6, 419 St.Alban's Duke of v. Beau- clerk 145, 149, 150 St. George's v. St. Margaret's 22 St. John V. Turner . . 331, 333 St. Paul V. Lord Dudley and Ward 47 Stacey, Jackson v. 305, 311, 314 Stackhouse v. Barnston. . . . 436 Stackpoole v. Howell 170, 171, 176 Stacpoole v. Stacpoole .... 423 Stafford Lady v. Llewellin 221 Stainsby, Kennedy v 172 Stamford Lord, Pickering v. 425 Standen v. Standen 274 Standish v. Radley -. . 369 Page Stanhope, Shrimpton v 177 Stanley V. White 316 , Stanton v. Sadler 254 Stanway V. Styles 107, 108, 112 Staple, Doe d. Hodsden v. 227 Starkey v. Brooks 154 Staunton v. Peck 44 Stebbing, Prime v. 81, 89, 101 Steel V. Pricket 31 Steele v. Mart 38 . , Wray v 53 Stephens, Green v 44 Stephens v. Vaughan ... 1 04 Steward v. Bridger . . 188, 297 Stewart, Dean of Ely v. . . 197 Stileman v. Ashdowne. . 57, 65 Smcks V. Booth 294 Stokes, Brice v 430 Stone V. Byrne 330, 333 Strackley, Floyer v 277 Stratford, Powell v.. . 404, 406 Stratton, Couch v 84 Streatfield v. Streatfield . . 94 Strong, Smith v 128, 132 Strutt V. Baker 285, 286, 288, 289 Sturt V. Mellish . 434 Styles, Stanway v. 107, 108, 112 Styward, Petty v 78 Summers, Keymer v. .... . 309 Swanton v. Raven 439 Sweet V. Southcot 28 Swift V. Davis .... 58, 60 Swymmer, Goodright d. Grosvenorv... 219,221,224 Sybourn, Doe d. Bowerman V 210 Sykes, Cornel v 332 Symmons v. Mortimer 442 Talbot V. Hodson 37 V. Duke of Shrews- bury 108 Talmy, Medley v 288 Tankerville Earl of, Astley v. 45 Tapper v. Chalcroft 128 Tasburgh v. Echlin 339 Tate V. Austin 45 , Hobbsv. 105 NAMES OF CASES. Pae;e Taylor v. Alston 55 , Cunlifle v 291 V. Fleming 74 V. Horde 38 , Kenrick v 295 , Robinson v. . 154, 155 V. Taylor . . 59, 60, 6"2 Taunton, Adams v 32 Templeman, Fleetwood v. 330, 336 Tenison, Delany v. I98 Teynham Lord, Lewis v.. . 372 Thackwell, Moggridge v. 149, 150 Thanet Earl, Milward v. . . 418 Thellusonv. Woodford 130, 134, 136 Thomas v. Bennet. 36Q , Blewitt V 356 V. Kemys . . , 117 , Keywick v.. II7, 118 , Lake v. .... 340, 348 Thompson, Chandler v. . (), 305 V, Leach 32 Thorn, Geofrey v. 36 1 Thome V. RolfF 279 Thornton, Cooper v 42§ V. Tracey 181 Throckmorton v, Tracy . . 262 Thrustout V. Peake 55 Thurston v. Slatford 199 Tibbits V. Tibbits 407 Tickell, Townson v 32 Tilsed, Chad V. 10 Tolferry, Dagley v 429 Tolson V. Collins 90, 108 Tompson, Mathew v I97 Tooke V. Hastings 97 Toone, Whatton v. . . 393, 394 Toplis V. Baker 352, 353, 357, 365 Townshend v. Townshend 384, 441 Townson v. Tickell 32 Tracey, Jenner v.. . . . 330, 332 — , Thornton v 181 Tracy, Throckmorton v. . . 262 Trash V. White 352, 353, 358 Tredennick, Dunbar v. 386, 398 Trigg, Orby v. 403 Page Trimmer v. Bayne 128, 130, 134, 140 Trowell v. Castle 39 Truman v. Walgham .... 303 Tuckal, Herbert v 270 Tucker, Carpenter v 36 1 V. Cosh 73 V. Sanger 404, 410, 414 Tufton V. Wentworth 267, 439 Turberville, Jones v 372 Turner v. Crisp 366 V. Richmond 254 , Sadler v. 157, 179 , St. John V. . . 330, 333 Tweddell v. Tweddell 442 Twisden v. Twisden 126 Twies V. Brazennose College 29 1 Twist, Johnson v 178 Twyning, Rex v 26 Tyrwhitt v. Wynne 26 1 u. Underbill, Earl of Castle- haven V 447 Upton, Darwin v. 11, 304, 306 V. Prince 130 Urquhartv. King 157, 158, 1 79 Uthwaite, Bellasisv. . 120, 121 V. Vachell v. JefFereys . . 172, 178 Vallier, Rigden v 74 Van Braam v. Isaacs 443 Vaughan, Stevens v 104 Vawdry, Vernon v. , .... 438 Vawdrey, Seaman v. . . 14, 401 Veal, Wood v. 15, 319, 323, 324, 325 Vernon v. Bethell 342 Lord, Edwards v. 285, 289 v. Vawdry 438 Vezey v. Jamson 154, 162, l64 Vigor, or Bowyer, Attorney General v 138 Villiers, Osborne v 185 v. Villiers 198 Vinke, Eastwood v. . . 100, 108 NAMES OF CASES. I'agc Vooi^ht V. Winch ir), 115, 327 Vowies V. Young 271 W. Wadsworth case 209 Wake V. Wake -^03 Walgham, Truman v 303 Walker, Bcngough v. 85, 120, 121 V. Burrows 72 . , Cookv 170, 171 , Jackson V. . . 290, 291 V. Lord Pomfret 105, 1 13 Waller, Hillary v. 211, 215, 2l6, 326 V. Horstace 198 W'allop V. Hewett 143 Walsh, CUvev 142 . , Hartpole v 350 Walsingham Lord, Noel v. 126" Walthall, Bonnington v. . . 367 Walton V. Walton 182 Wainwright, Barclay v. 149, 150 Ward V. Garnons 196, 197 v.Lant .. 136, 170, 173 . , Laughton v 9 . ., Maxwell v 422 Ware V. Polhill.. ^47 W^aring, Wynne v 366 Warington Earl of. Booth v. 384 Warren d. Webb v. Green- ville 190, 198 . , Procter v 68, 72 . V. Warren 1 1 6 Washington v. Bryraer. . . . 365 Waterton, Doe d. Howson V 264 Wathen v. Smith 85 Watson V. Foxon 44 V. Earl of Lincoln 117, 124, 128, 132, 140 , Southcot v.. . 170, 174 Watts, Prosser v 205 Webb, Atkinson v. . . IO9, 112 , Doe d. Gorges v. . . . 44 V. Rorke 389 Webster, Whistler v 404 Weld V. Hornby ' 313 Welsh, Froswell v 263 Past- Wentworth, Tufton v. 267, 439 West, Grose v 31, 32 Westcombe, Jones v 174 Western, Bush v 312 V. Cartwright 384, 393, 438 Wetherby v. Dixon 128 Wetherell, Gilbert v 355 Weyland v. Weyland 86 Whaley, Wingfield v 419 Whalley v. Whalley. . 384, 399 Wharton's case ^97 W^hatton V. Toone .. 393,39^ Wheeler, Harrington v. . . 416 V. Sheer 155, l65, 172 Whichcote v. Lawrence 17:, 395 Whitcomb v. Minchin 389 Wxiitcombe, Pope v . 41 White V. Evans 156, 178 ^-v. Ewer 329,332 V. Pigion 349 Stanley v 3l6 , Trash V. . 352, 353, 358 V. Williams .. 1 67, 185 V. Wilson 19 , Whiting V. . . 341, 344 Whitfield V. Fausset 197 Whiting V. White . . 341, 344 Whitlev, Robinson v. 133, 137, 139 Whitmore, Hartop v 128 Whistler v. Webster 404 Whorwood, Attorney Ge- neral V 95 Widmore, Blandy v 81, 83 Wilcocks V. Wilcocks 91 WUkinson v. Payne 274 Wilks V. Wilks 93, 94, 98, 100 Willaume v. Gorges 358, 359, 366 Willett V. Winnell 338 Williams V. Bacon 285, 287, 289 V. Duke of Bolton II6 V. Jones 156, 180, 183 V. Price 291 . , White V. . . 167, 185 , Wynn v 36S Williamson v. Goold 443 Willis, Fordyce v. 56 WUlock, Lee v 282 NAMES OF CASES. Page Willoughby V. Rutland . . 104 . .- V. Willoughby 239, 250, 252, 253, 254 Wilson V. AUen .... 209, 210 , CampbeU v 310 , Dougal V. . . 304, 305 — , Doe d. Foley v. . . 439 V. Foreman 96 V. Ivat 161, 178 , Livett V 16, 309 , White V 19 V. Witherby. . 223, 265 Winch, Vooght V. 15, 115, 327 Winchcomb v. Hall 385 V. Winchcomb 359 Windham v. Windham 143, 144, 150 Windle, Batteley v l60 Windsor Lord v. Earl of Pomfret 370 Wingfield v. Atkinson 171, 180 V. Whaley .... 419 WinneU, WiUett v 338 Winter, Fladong v 366 , Lethbridge v 325 Winyeve, Pepper v. . . 128, 140 Witherby, Wilson v . . 223, 265 Wolf, Burgh V. 360 WoUey V. Brownhill 265, 290, 291 V Piatt .... 287, 289 Wood V. Briant 1 14, 434 , Fry V 261 , Gaynon v. . . . . 103, 110 , Holford V 142, 170 , Seley v. 156, 170, 171, 172, 176 V. Veal 15, 319, 323, 324, 325 Woodford, Thelluson v. 130, 134, 136 Pasce Woodman v. Morrel .... 60, 63 Woodroffe, Brasbridge v. 178, 180, 181, 182 Woodyer v. Hadden 321, 323, 324 Woollaston's case 335 WooUett V. Harris 154, 155, 157 Wordsworth, Nicolson v. . . 32 Wray v. Steele 53 Wright V. Smythies . . 15, 264 Wrighte Doe d. Burdett v. 231, 232, 241 Wrigley, Andrew v . . 386, 391 Wymondsell, South Sea Company v 384, 434 Wyndham v. Earl of Egre- mont 51 Wynn, Meredith v Ill V. Williams 368 Wynne v. Tyrwhitt 26l V. Waring 366 Wynstanley v. Lee 308 Y. Yallop, ex parte 28, 54 ,- V. Holworthy 437 Yapp, Gladding v. 157, 180, 181, 182 Yardley, Paramour v. . . . . 26"7 Yate V. Moseley .... 410, 450 Yates V. Hambly 351 York V. Eaton 74, 78 York-buildings Company v. Mackenzie ^ 395 Young, Bishop of Cloyne v. l66, 178, 185 , Vowlesv 271 STATUTES CITED. EDWARD I. 13. c. 18. Elegit . . . Page 358 HENRY VIII. 32. c. 2. Limitation of time. . 291, 301 c. 37. Rents 298 MARY. 1 . s. 2. c. 5. Advowsons . . 29I ELIZABETH. 13. c. 5. Fraudulent Con- veyances. Cre- ditors f)8 c. 10. 1 Spiritual Cor- c. 20. J porations . . 284 27- c. 4. Fraudulent Con- veyances. Pur- chasers 63, 68, 442 JAMES I. 1. c. 15. Bankrupts. ... 73 21. c. 16. Limitation of Time 11, 187,438 CHARLES II. 13. c. 12. Qualifications for Offices 26 CHARLES II. 19. c. 6. P«Ke Evidence of Death . . 279 ANNE. 1. c. 7. Alienation of Crown Lands 15 2 & 3. c. 4.>y 5. c. 18. I p . , a 6. c. 35. >I^egistry. 6 7. c. 20.J GEORGE II. 8. c. 6". Registry .... 6" 14. c. 20. Recoveries . . 209 GEORGE III. 9. c. 16. Limitation of Time .... 299 17. c. 26. Life Annuities 37 55.C. 192. Copyholds 414 GEORGE IV. 73 (). c. 16. Bankrupts c. 74. Outstanding Legal Estates 224 c 2 ERRATA. Page 65, line 19, after the word "was" insert "made." 113, lines 14 and 15, transpose the words "corroborating" and "repel- ling." 101, note (c), at the end, for " 5 " read " 89." 124, lines 5, 10, and 15, for " children " read " daughters." 315, line 3, for " is " read " was." 341, 8, dele "a" before "foreclosure." 415, — 13, for "this" read "his." 311, 7, for "a" before "devisor," read "the." A TREATISE ON PRESUMPTION AND PRESUMPTIVE EVIDENCE, AS AFFECTING THE TITLE TO tiecA anti pnr^onaK ^topcrtp. INTRODUCTORY CHAPTER. Presumption is a principle of law, by which, for the furtherance and support of right, facts not esta- blished by positive evidence are inferred fro^n circum- stances. Presumptions are of two kinds ; — presumptions of law, and presumptions of fact. Presumptions of law are suppositions or opinions previously formed on ques- tions of frequent occurrence — being found from expe- rience to be generally accordant with truth — and re- main of force until repelled by contrary evidence. Presumptions of fact are conclusions drawn from par- ticular circumstances. It is observable that, formerly, many of the presumptions of law were considered too powerful to admit of contradiction : but this doctrine B 2 ON PRESUMPTION AND is now confined principally, if not altogether, to cases of estoppel (a). The grounds upon which legal presumptions rest are various. They are founded, in some cases, on the laws of nature, and the first principles of justice; , in others, on the nature and general incidents of pro- perty; and in others, on those innate principles of self-interest, and dictates of prudence or discretion, which for the most part actuate the conduct of man- kind : As that a man who has lost the faculty of reason continues subject to the deprivi^tion ; that a child born in wedlock is legitimate ; that possession of property carries with it the right of beneficial enjoyment ; that on the off"er of a benefit, acceptance will not be refused ; that words are used in their established meaning ; — in all which instances, the supposition of law springs from one or other of the sources above enumerated. Other legal presumptions originate in the policy of the law. Of this description, however, as they relate to questions of property, examples are rare ; the prin- cipal, if not the only instances, being the presump- tion in favour of the raising of cross remainders, where land is devised to two persons as tenants in common in tail ; and the contrary when to more than two ; and the presumption that money borrowed by husband and wife, on security of the wife's estate, is appropriated exclusively by the husband. Another class of legal presumptions, and perhaps (a) Phillipps oil Evidence, Cth edit. 146. PRESUMPTIVE EVIDENCE. 3 the most important, comprises all those cases in which an act, that may have proceeded from one or other of several motives or intentions, is, in the absence of ex- planation by the party, referred to that which appears most consonant with reason and probability. Thus, where tenant in tail pays off an encumbrance, he is con- sidered to do so in exoneration of the estate ; because, possessing the power of acquiring the absolute domi- nion, he has no immediate interest in keeping the charge on foot : but the case is reversed with ten- ant for life ; his discharging an encumbrance is not accounted to be done for the benefit of the estate, but for his own convenience, in order that he may oc- cupy the encumbrancer's place. So where a person, under obligation to do an act, does what, though not necessarily a satisfaction, admits of being so construed ; the presumption is, that a satisfaction was intended : the fulfilling of a duty being supposed to precede the collation of a benefit. On this ground also covenants are held to be discharged by what is tantamount to performance ; and debts, portions, and legacies, to be satisfied by equivalent provisions (a). Presumptions of fact, it was observed, are conclu- sions drawn from particular circumstances. The cir- cumstances which form the basis of these presump- tions, are designated presumptive evidence. They are such as are found by experience to be usually conse- quent upon, or co-incident with the facts presumed. («) That presumptions of this oflaw, see 3 Bro. C C. 63; 1 Ves. kind are considered presumptions jun. 108. B 2 4 ON PRESUMPTION AND And as presumptions of the present description are made upon the common principles of induction, they must of necessity correspond with, and be adequate to account for, the circumstances actually proved. Ac- cordingly, in the absence of every thing to negative the supposition, the origin of existing rights and interests, which could have been lawfully acquired only under grants from previous owners, is referred to regular assurances ; and the determination of interests formerly subsisting, but of late unclaimed, is ascribed to releases, or other effectual means of discharge. In this way support is given to titles, which, though actually good, have become defective by the loss or decay of written documents, or the death of witnesses ; and the re-assertion of old pecuniary and other satisfied claims is prevented, although the direct evidence of their hav- ing been satisfied be lost. To enumerate the several grounds or evidences of presumptive title and presumptive discharge, and also the sources of conflicting inference, would be a task not only difficult, but in a considerable measure useless. Deductions from peculiar or incidental circumstances (and it is on such circumstances that the decision of in- dividual cases commonly depends) seldom furnish any general principle. There is, however, one feature so peculiarly characteristic of all the cases in which pre- sumptions of the kind in question are made, that it merits particular attention. This is lapse of time : with regard to which it may be observed, that as pre- sumptions of fact proceed universally on the suppo- PRESUMPTIVE EVIDENCE. 5 sition, that the facts presumed were formerly capable of being established by direct proof, and that the evi- dence only has been destroyed, or lost, or decayed, by the common accidents of time ; reason manifestly re- quires, that lapse of time, since the occurrence of the presumed facts, should be held essential in order to let in the presumption. Indeed, so important an influence has lapse of time in all cases of this nature, that when of great length, and unaccounted for, it is deemed suffici- ent of itself, and without the aid of other circumstances, to resolve the question of right. And this is not only warranted by the maxim interest rei-imhlicce ut sit finis Utium, but any supposition that would go to reconcile the usurpation of an estate with long acqui- escence on the part of the rightful owner, or the abandonment of a pecuniary demand with a subsisting right to it, is utterly incompatible with the activity which distinguishes mankind in whatever relates to the acquisition or preservation of property. It follows, that the only rational conclusion from long unmolested enjoyment of real estate, or of rights incident thereto, is, that the title was lawfully acquired ; and from undue delay in urging a personal demand, that such demand is satisfied. Impressed with this reasoning, courts both of law and equity invariably discountenance stale and neglected claims. They hold it to be just and reason- able, that every presumption, which can be fairly made, is admissible to repel old dormant rights {a) : and fol- lowing up this principle, will, in favour of long pos- (a) See per Loril Alvanley, M. R., 2 Yes. jun. 583. 6 ON PRESUMPTION AND session, presume as well the existence of the needful instruments of conveyance {a), as the observance of all («) The only exception to this principle occurs in the casesof fines and recoveries, which cannot, it seems, be presumed without evi- dence directly pointing or allud- ing to them.— Acts of Parliament (Cowp. 215; 1 Jac. and Walk. 63;) and grants from the Crown, (Cowp. 102; 1 Jac. and Walk. 159;) though assurances of record are constantly presumed, even within the time of legal memory. And such, indeed, is the inclina- tion, generally, to maintain a title foinided on long possession, that, in some instances, one device failing, another has been adopted. Thus, in Goodtitle v. Baldwin, 11 East., 488, where the supposition of a grant from the crown was rebutt- ed ; a licence to occupy was pre- sumed, in order to give validity to an enjoyment of several years' standing. It has been considered doubtful, whether deeds affecting lands in the register counties, can be pre- sumed, in opposition to the want of registration ; or to state the point more explicitly, whether the alle- gation of releases of ancient claims; of reconveyances of old legal es- tates, by trustees or mortgagees ; of surrenders of outstanding satis- fied terms; or of conveyances from a prior to a succeeding owner; (which are the usual instances of presumed deeds) must not, in the case proposed, be necessarily re- garded as contrary to fact. But doubts of this nature, it is con- ceived, do not rest on very solid foundation. The object of the Re- gistry Acts was to prevent the commission of fraud ; and to pro- tect bond fide purchasers and mort- gagees against preceding secret acts, and fraudulent conveyances. And this was their only object: the preamble to each of the sta- tutes adverts solely to the injuries sustained by persons innocently buying, or advancing money, on estates previously sold or encum- bered ; and the enacting clauses, in order to provide a suitable re- medy, merely declare, that all fu- ture conveyances of lands shovdd, as against subsequent purchasers for valuable consideration, and mortgagees be adjudged fraudulent and void; unless memorials of such conveyances were registered be- fore the registering of the deeds under which the subsequent pur- chasers or mortgagees claimed. (See 2 & 3 Anne. c. 4 ; 5 Anne, c. 18 ; 6 Anne. c. 35 ; 7 Ann. c. 20 ; and 8 Geo. 2. c. 6.) Nor is there any thing in these statutes' making it imperative on parties to register the assurances through which they derive title ; an option only is given. The direction in the acts is, that a memorial mai/ (in the 2 & 3 Anne. c. 4. are inserted the words, " at the elec- tion of the persons concerned,") be registered : and consistently with this, there is nothing either ex- PRESUMPTIVE EVIDENCE. such acts and solemnities as are requisite to make actual assurances valid (b) ; and will also, in support of pressly declaring, or tacitly im- plying, that the want of registra- tion shouliJ be otherwise prejudi- cial to titles, than against subset quent purchasers and encumbran- cers. Then why shall these legis- lative provisions be construed to extend to cases which the legisla- ture never contemplated, and which do not fall within the mis- chief intended to be remedied ? It cannot be supposed, that the ob- ject of the register acts was to make the ownership of estates less secure ; — to supply means where- by (to use a judicial expression) holes may be picked in titles. Yet such would be the inevitable con- sequence, whenever the registra- tion of material instruments should be omitted; a consequence which, in some cases, would not only con- travene the prhiciples of justice, but defeat the very end and pur- pose of the statutes themselves. Suppose, for example, the case of a first and second mortgagee, the latter only of whom has registered his security, and got into posses- sion ; the first discovers, as he imagines, an old outstanding legal estate, or satisfied term, and ob- taining from the representative of the trustee or termor; a conveyance or assignment, brings his eject- ment ; when the second mortgagee produces in defence an old unre- gistered deed surrendering the term, or reconveyancing the estate from the original trustee : — or to put another case ; suppose the con- veyance to the mortgagor or his ancestor, being of above twenty years' standing, had not been regis- tered ; that the first mortgagee obtains a conveyance from the pre- ceding owner, and that the second rests his title on the unregistered conveyance to the mortgagor : — Is it possible in either of these cases seriously to imagine, that the plain- tiff' in ejectment would be allowed to recover.'' If so, the registry acts would frustrate their own de- sign. The negligent, or in the eye of the legislature the fraudulent mortgagee, would deprive the di- ligent and honest mortgagee of the advantage meant to be ensured him. But, doubtless, the courts would pause ere they made such a decision. The application of this reason- ing to the principal point is ob- vious. If the re-transfer of the outstanding legal estate, the sur- render of the satisfied term, or the conveyance from the preceding owner, could not, in the cases just proposed, be avoided on account of their non-registration ; the pre- sumption, by parity of reason, of a re-transfer, surrender, or con- veyance, could not, it is conceived, imder similar, and therefore vuider no circumstances, be held conclu- sively rebutted, by the fact of a registered memorial of the pre- sumed deed not being found. The cases are parallel : they cannot be 8 ON PRESUMPTION AND the extinction or satisfaction of old demands, presume proper deeds of discharge (c). It is obvious to remark, that if a contrary doctrine prevailed, and it were ne- cessary to adduce satisfactory evidence that every act which is presumable was in reality performed ; time, far from strengthening titles, would, by increasing the difficulty of proof, gradually diminish their security ; and instead of affording protection against ancient demands, would powerfully contribute to their assertion. Time being thus available as j^rimdjcicie testimony of instruments conferring or extinguishing rights, is a Jbrfiori efficacious in establishing and giving admissi- bility to evidence of an inferior order. Hence alleged copies of instruments, whose former existence would account for the quiescence of present claimants, are in the first place received as authentic : and recitals, in ancient deeds, of incidents, such as marriages, heirships, deaths, &c., explanatory of the devolution of an estate,, are taken to be faithful representations of facts. In regard to property which admits of a qualified enjoyment, long usage, while supplying presumptive distinguished on any clear or satis- as much as any other instrument factory principle. ^hich relates to landed property. Another case may, likewise, be it is a deed affecting the estate, mentioned as bearing strongly on over which the way runs, the question; that of an easement. But see on the subject of this as a right of road, which has been note generally. Doe v. Hirst, 11 uninterruptedly enjoyed for twenty Price. 475. years. Could the presumption (^,) Allusion is here made to the from length of time be obviated by solemnities of livery of seisin, seak showing that no grant had been j^g and delivery, &c. registered ?— and yet the grant of a (c) gee 2 Ves. jun. 583. right of way ought to be registered, PRESUMPTIVE EVIDENCE. 9 proof of title, determines at the same time, and on the same principle, the limits of the right itself. This is the case with incorporeal hereditaments : concerning which it is held, that the terms of the supposed grant or re- servation, whereto the title is ascribed, may be collected and ascertained from the manner in which the rights claimed have of late been exercised {a) : for the proba- bility is, that the antecedent corresponded with the recent enjoyment, and was commensurate with the privilege contracted for. Thus it has been resolved, that a right of way over a stranger's estate to a parti- cular close does not justify the use of such way for the purpose of going to other lands adjoining {b) : and again ; that a prescriptive right of way for carriages is no evidence of such right for all manner of cattle (c). So, with respect to rights of water and light, the party entitled cannot support a claim to appropriate larger quantities than what have previously been enjoyed {d). But long usage ascertains the nature and extent of the right, not only where the instrument of grant or reservation is presumed ; but in those cases also where the original deed which creates the right is extant, but the right conferred by it is not precisely and accurately defined. Accordingly, in a modern case, where the proprietors of certain lands on the sea-coast, with a view to reclaim, and bring into cultivation, a large (a) Per Lord Ellenborough, 14 279. See also 14 East. 339; 2 East. 340. Brod. and Bing. 406. (6) 1 RoUe's Abr. 391. tit. Che- {d) Bealey v. Shaw, 6 East, min private, 1. 50 ; Laughton v. 208 ; Martin v. Goble, 1 Camp. AVard, Lutw. 43. 322 ; Chandler v. Thompson, 3 (c) Ballard v. Dyson, 1 Taunt. Camp. 80. 10 ON PRESUMPTION AND space of sea-mud, which they alleged themselves to be entitled to, under grants of wreck from the crown in the reigns of Henry 2. and Flenry 8., ran an em- bankment across a small bay left almost dry at low water ; and, for above thirty years afterwards, exer- cised, without opposition, an exclusive right to the soil of the bay ; it was held, that this usage was evi- dence whence anterior usage might be presumed, and coupled with the general terms of the grant, served both to elucidate it, and to establish the right claimed («). The length of time which is necessary to substan- tiate the presumptive validity of titles, and the ex- tinguishment of demands, is from circumstances sus- ceptible of much variation. The species of property, as real or personal, — the kind of security, whether more or less solemn, — the original circumstances of the transaction, as fair or fraudulent, — and the degree of inconvenience, which the neglect of the parties, if overlooked, would produce, — are the material points that in this respect principally affect the determination. Peculiarities personal to the claimants, or incident to particular cases, produce of course further variations. But, as a general rule, it may be laid down, that unmolested enjoyment of land or of an easement for twenty years will, prima facie, establish a right of ownership ; and that the same length of forbearance, unaccounted for, will extinguish pecuniary demands. (a) Chad v. Tilsed, 2 lirod. and Biiig. 403. PRESUMPTIVE EVIDENCE. 11 In this particular the provisions of the statute of limitations (21 Jac. 1. c. 16.) have been followed. By that statute writs of formeclon and rights of entry are barred after a lapse of twenty years from the time when the rights of action and of entry first accrue. And in order to maintain an uniformity of decision on the subject of neglected rights generally, courts of law have adopted the same period as a convenient measure for determining the validity of rights not within the statute. But in so doing they regard non-claim for twenty years — not as a bar (a) — but as matter of evi- (a) In Holcroft v. Heel, 1 Bos. and Pul. 400. Eyre, C. J. is said to have held at N. P., that 20 years unmolested enjoyment of a market operated as a bar to an action of trespass, brought by the owner of a neighbouring market, for the disturbance: and in this opinion the other judges of the Court of C. B. are stated, in the report, to have concurred. But on a subse- quent occasion, in vi^hich Holcroft V. Heel was cited at the bar as an authority for the position, that twenty years constituted a bar to actions for the purpose of trying the title to franchises, Le Blanc, J. who had been of counsel in that case, said, that the true ground on which the cause went off was an intimation from the Coiut, that, if the case went down to trial again upon the same facts, it would be left to the jury to find for the defendant, on the presump- iion (if a grant, after the twenty years' uninterrupted use : and that they thought that such length of ad- verse possession was evidence so strong, that the Chief Justice ought to have left it to the jury to find a grant of the market from the Crown. See 3 East. 298. It ap- pears, therefore, from this ex- planation, that the case in ques- tion does not militate with other authorities, which, under the cir- cumstances adverted to in the text, regard enjoyment for twenty years as furnishing a presumption of right only. In a prior case (Darwin v. Upton, 2 Saund. by Serjt. VVms. n. 175. b. &c.), where Gould, J. at N. P. held that twenty years' pos- session of lights, unanswered, was sufficient evidence of right ; and it was insisted, in support of a rule for a new trial, that the learned judge had called the twenty years' possession an absolute bar, in- capable of being opposed by evi- 12 ON PRESUMPTION AND dence, affording, according to circumstances, the pre- sumption of a grant, release, agreement, or satis- faction. Courts of equity, on the common principle of following the law, observe a similar rule. Formerly, it is true, the judges in these courts were careful to refrain from mentioning any precise time as a guide for their determination in reference to old claims ; and lapse of time, when relied upon, amounted in general to a very considerable period. But now the statutory limit, except on special occasions, is never exceeded. It would be preposterous, said Lord Camden, for equity, — which by its own proper authority always entertained a limitation, — ^to countenance laches be- yond the period that law has been confined to by Parliament (a). To prevent misconstruction, it should be remarked, that, though in all cases where non-claim forms the only ground of defence, it must, to avail, be of at least twenty ye&rs' continuance ; delay for a shorter period, coupled with other circumstances, will often be equally fatal to the claimant's demand {b). dence, while, in point of fact, it menting, in the same case, on Mr. was merely presumptive proof. Justice Gould's use of the word which might be explained away; rz^/tf, said, the expression was open Lord Mansfield, C. J. said, he to a double construction : it was thought there must be some mis- properly used if intended to mean take in what had passed at the a presumptive bar; but impro- trial ; for though length of time perly, if to signify an absolute bar. was certainly a presumptive bar, (a) In Smith v. Clay, 3 Bro. which ought to go to a jury, it C. C. 639. n. was impossible to hold it an (^b) See 4 Burr. 1963; Lofft. absolute bar, like a statute of 320; 1 T. R. 271; 6 East. 215; limitations. And Buller, J. com- 1 Camp. 29. PRESUMPTIVE EVIDENCE. 13 The manner in which presumptions founded on lapse of time may be rebutted, occurs in the next place for consideration. But upon this head, a few general rules only — the topics most commonly de- pended on — can be offered. For, as we have before had occasion to observe, circumstances peculiar to each individual case almost universally constitute the prin- cipal ground of resistance. First, however, it may be noticed, that in some in- stances the allegation of title is capable of being dis- proved by reference simply to the natiu-e of the pro- perty in dispute, or the mode in which the asserted right has been exercised. Tithes, when claimed on the sole ground of long non-payment, fiu-nish an example of this kind. The retention, which is unlawful in its commencement, continues unlawful, in estimation of law, however often repeated ; and all tithes being originally church property, and still held quasi church property, in whosesoever hands they reside, the maxim nullum teminis occurrit ecclesice — applies as well to the case of a lay, as to that of a spiritual rector {a). Quit rents, which have not been duly paid, form an- other instance : here also a release will not be pre- sumed from the circumstance merely of non-payment for twenty years ; the courts conceiving themselves bound, inasmuch as the statute of limitations has allowed to the owners of such rents fifty years for pro- secuting their rights, not to attempt indirectly to (a) Nagle v. Edwards, 3 Anst. 702; Berney v. Harvey, 17 Ves. 119. 14 ON PRESUMPTION AND abridge the time(«). The case of mines belonging to a stranger, but claimed by the owner of the soil in consequence of the former having long delayed to work them, falls within the same principle. From the non- user, it is fully settled, no argument arises favouring the supposition of a release : as mines are often pur- chased with a view only to their being opened at a future time ; and when reserved, it is seldom with any intention to immediate use(Z>). Another instance, in which the presumption of a conveyance or release is deemed to be rebutted, is, when the possession, on which the presumption rests, can, in its origin, be satisfactorily accounted for; and it is shown that the late enjoyment only has been wrongful. Here, until at least twenty years after the commencement of the tortious occupation, the pre- tence of a lawful title is clearly unsustainable (c). Personal disability, such as infancy, coverture, im- prisonment, absence abroad, &c., are, by analogy to the excepted cases in the statute of limitations, also held effectual to repel the presum|)tion of a grant or release. The fact of the supposed grantor having but a par- tial or limited interest, as an estate for life() Seaman v. Vawdrey, 16 Prec. Cha. 423. V^S-^90. (^) Bradbury v. Grinsell, 2 (c) Acherley v.Roe, 5Ves,565; Saund. by Serjt. Wms. n. 175. d; PRESUMPTIVE EVIDENCE. 15 his holding by virtue only of an office, and being there- fore precluded from alienating («), supplies a further ground on which the allegation of title may be encountered. Grants of crown lands, since the statute 1 Anne. c. 7- or of lands belonging to the church, can- not for this reason be presumed. The effect is the same where the assumed grantee is incapacitated, either totally as an alien, or to a certain extent as the representative of a corporate body, from pur- chasing (Z>). But no length of time will raise a presumption of right in favour of encroachments on the public: at least no period has ever yet been mentioned as binding the community. The usual conclusion, therefore, arising from an enjoyment of twenty years, cannot, in such instances, be supported (c). In regard to rights of common, and easements claimed on the ground of long enjoyment, the i^rimd facie title may sometimes be met by proof of the land- owner's having been ignorant of the usage (J) : but to make this objection effectual, the ignorance must be clearly shown ; or at least such evidence adduced as gives it decided credibility {e). The asserted title, we may further add, is capable of being repelled by show- Wood V. Veal, 5 Barn, and Aid. and Aid. 662 ; Carter v. Murcot, 454;Damelv. North, 11 East. S72. 4 Burr. 2163; per Lord Ellen- (a) Goodtitle v. Baldwin, 11 borough, 7 East. 199. East. 488 ; Barker v. Richardson, {d) Dawson v. D. of Norfolk, 4 Barn, and Aid. 579. 1 Price. 246 ; Daniel v. North, {b) Wright V. Smythies, 10 11 East. 372; per Dallas, C. J. East. 409. 2 Brod. and Bing. 671. (c) Vooght V. Winch, 2 Barn. (e) Rex v. Barr, 4 Camp. 16. 16 ON PRESUMPTION AND ing, that the user has not been uniformly or quietly submitted to. The apparent assent of the adverse party is, in all cases of this sort, the true and essential source of inference : but it is evident that without a total disregard to fact, this cannot be maintained, where the claim has formed a constant subject of contest («). Ignorance has, sometimes, in courts of equity, been held to afford an answer to averred releases of demands. The desertion of a right, it has been judicially ob- served, always supposes a previous knowledge of it : it is absurd to say that a man has relinquished a right of which he is not aware (Z>). But this topic of defence, we should observe, when allowed, is never received without extreme caution. The presumption from ac- quiescence would otherwise be constantly avoided (c). Fraud and imposition are other circumstances by which, in the case of equitable demands, lapse of time may be accounted for {d). This, however, it is obvious, proceeds on the idea of the fraud or imposition being unknown: the delay is otherwise inexcusable, and must, on the general principle, preclude relief (^). But com- monly to permit time to afford protection to fraud would be, in effect, to give fraud encouragement. (a) Livett v. Wilson, 3 Bing. {d) 1 Fonbl. on Equity, 5th ed. 115. 331; 1 Madd. Prin. and Prac {h) Per Lord Commissioner GU- 257. 2d edit, bert, Sel. Cha. Ca. 11; Cowper V. (e) Hovenden v. Lord An- Cowper, 2 P. Wms. 730; per Sir nesley, 2 Scho. and Lefr. 607. 610. W. Grant, 2 Mer. 362. 636 ; Medlicott v. O'Donncl, 1 (c) Per Sir T. Plumer, 2 Jac. Ball and Be. 156. 165-6. and Walk. 142. PRESUMPTIVE EVIDENCE. 17 Recent admissions of the existence of demands, and, in like manner, the circumstance of there not having been any person competent or duly qualified to give a proper discharge, are frequently relied upon to dis- prove the averment of satisfaction (r/). The fact of the parties concerned being a body of creditors, entitled under a bankruptcy, or under an assignment to trustees for their benefit, is also an answer to lapse of time : such persons not being expected in their collective capacity to use the same diligence as is incumbent on individuals (J). Where the distress of an expectant heir, or of a person entitled in reversion, has been taken advantage of, in order to obtain an unconscientious bargain, the continuance of the distress is a sufficient reason for delay in seeking relief (c). But with this exception, in which the fact of distress is an integral part of the case, and is material as evidence of the fraud, poverty or embarrassed circumstances are not allowed to ex- clude presumptions which originate in long delay. This principle has been adopted from a sense of the many inconveniences which would result from a con- trary doctrine {d) . (a) See Preston on Abstracts, (c) Gowland v. De Faria, 17 3 vol. 364 ; also 12 Ves. 266 ; Ves. 20 ; Roche v. O'Brian, 1 Ball 19 Ves. 200. and Be. 330. (b) Whichcote v. Lawrence, 3 () Head v. Head, 1 Turn. 138. child, in consequence, was held to In this case there were no circum- be legitimate, stances to show that a private in- (c) See Goodright v. Saul, 4 terview might not be the occasion T. R. 356. 24 PRESUMPTIONS OF LAW. singly considered, that the presumption of non-access arises: this, for the most part, is only an inference from all the circumstances taken together ; the cogency of proof in such case lying in the consistency and mutual relation of facts, which, viewed by themselves, might perhaps be regarded as comparatively insignifi- cant. Concerning posthumous children, the rule appears to be this : — if born within the period which, according to the ordinary course of nature, allows the supposition of the deceased husband being the father, the pre- sumption is in favour of the child's legitimacy {a) ; and as the law does not require a birth to take place at any precise point of time, but only within certain limits, a longer than the usual period of gestation will not prevent the child being proved, from circumstances, to be the husband's offspring (h). But, on the other hand, the mere circumstance of the birth taking place within due time after the husband's death, will not, any more than if he were still living, conclude the question of legitimacy : the intendment of the law in this, as in the cases before treated of, may be met by proof of impotency or non-access (c). Other presumptions of law, which are founded on the principles of natural justice, are comprehended in the following maxims : Odiosa et inlionesta non sunt {a) Co. Litt. 123. b ; Palm. 9 ; sop v. Bowtrell, Cro. Jac. 541 ; Godb. 281. Palm. 9. {b) 1 Roll. Abr. 356. 1. 10; Al- (r) Sec 8 E«st. 206. PRESUMPTIONS OF LAW. 25 prcesumenda {a); Injuria non frcBSumitur \ Omnia prcESumuntur legitime facta donee prohetur in contra- rimn (h). In these maxims we may not perhaps re- cognize much of the practical wisdom which directs men in the common affairs of life. The lessons of experience are certainly not characterised by their freedom from suspicion. But it must be remembered, that when the conduct of individuals is brought in question for the purpose of redress or punishment, the decisions should be governed by principles very differ- ent from those, which, as being merely precautionary, are properly adopted in our intercourse with one ano- ther. From the above-mentioned maxims it follows, that in all cases of alleged wrong, whether the offence im- puted consist in acts of fraudulent dealing or of open injury — in the breach of a moral precept, or of a posi- tive law — the party charged has the supposition of in- nocence in his favour. And this principle, even in a civil point of view, possesses considerable influence. For every case, in which transactions, impeached on the ground of fraud, are, from want of proof, or length of delay, allowed to stand, — proceeds more or less on the assumed uprightness of the defendant's conduct (c). In like manner, where an heir at law is abroad, and the younger brother, on the death of the ancestor, en- ters on the vacant possession ; such entry, in virtue (a) 10 Rep. 56. a. Bath and Montague's case, 3 Cha. (h) Co. Litt. 232. b. Ca. 85. 111. See also Cro. Car. (c) Per Lord Keeper Somers in 550. 26 PRESUMPTIONS OF LAW. of the peculiar relation between the parties, is con. striied not to be tortious, but as made for the purpose of protecting the seisin of the elder brother against abatement by strangers (a) : — a consequence of which doctrine is, that if the younger brother die seised, and the estate descend to his issue, the entry of the elder brother, or his heir, is not tolled {b). On a similar principle, a charge of an act of immo- rality or of disobedience to a positive law, will not be received unless supported by direct evidence. Circum- stances showing probability merely, are, in such cases, not enough : the fact averred must be conclusively proved. Accordingly, in a case involving a question of legitimacy, where a woman, about twelve months after her first husband was last heard of, married a second time, and had children ; the Court of K. B., on appeal from the Sessions, held, that the magistrates did right in presuming the death of the first husband at the time of the second marriage, and in requiring the party who objected to the validity of the second marriage to bring evidence of the first husband having been then alive (c). So, in another case, where one of the questions was, whether a person had qualified him- self for becoming alderman of a borough by taking the sacrament within a year before his election, ac- cording to the Stat. 13 Cha. 2, c. 12 ; it was held, that as every one is presumed to have conformed to the law till something appear to repel the presumption, and as there was no evidence to such effect in the (o) Gilb. Ten. 28 ; Latch. 68. (c) Rex v. Inhabitants of Twy- Sed vide Litt. Ten. s. 396. ning, 2 Barn, and Aid. 386. (h) Litt. Ten. s. 396. PRESUMPTIONS OF LAW. 27 principal case, the alderman must be taken to have duly qualified himself, by performing the act re- quired (a). And again, where the defendant to a suit for tithes by a spiritual rector, objected that the plaintiff had not read the thirty-nine articles on taking possession of the rectory ; the Court, noticing the pre- sumption of law to be, that the rector had used every proper means to legalize and secure his enjoyment, called on the defendant to verify his assertion {b). It should however be remarked, in explanation, that although fraud is never presumed, it may not only be established by express proof, of which, from its na- ture, it is very seldom capable, " but it may also be inferred, if the inference be a necessary consequence from the acts done " (c). III. A third class of legal presumptions has been referred to the nature and general incidents of pro- perty. These may perhaps be reduced to the two fol- lowing : — that possession of property carries with it the right of beneficial enjoyment ; and that the owner- ship of real estate comprises a title to all the usual appendant rights and privileges. As to personal property of a moveable nature, the general rule is, that possession constitutes the criterion of title {d) ; and for this reason, that no other means exist by which a knowledge of the fact to whom it (a) Rex V. Hawkins, 10 East. (c) Per Lord Harclwicke in As- 211. ton V. Aston, 1 Ves. 268. (6) xMonkc V. Butler, 1 Roll. (J) 1 Ves. 360; 1 Atk. 168; 7 Rep. 83. See also 2 Anst. 372. T. R. 234 ; 13 Ves. 122. 28 PRESUMPTIONS OF LAW. belongs, can be attained (a). Hence a vendor of per- sonal chattels is never expected to show the origin of his right ; nor is a purchaser, without notice of the claim of the real owner, compellable to make restitu- tion (b). With regard to real property, a different rule, generally speaking, obtains. There possession, though coupled with receipt of the profits, is by no means conclusive of the absolute ownership ; for land is held, not by possession, but by title : and a purchaser is always expected to require production of the docu- ments proving what interest the vendor has. But even in the case of land, possession is not altogether unimportant as an evidence of title. For where, as it sometime happens, a purchaser professes inability to manifest his right otherwise than by the fact of present possession, accompanied perhaps by an unauthenti- cated statement showing whence the right is derived ; a purchaser, under such circumstances, though ex- posed to the adverse pretensions of legal, will, it should seem, be relieved against the demand of equitable, claimants (c) : and the like protection will be afforded (a) An exception to this rule Hartop v. Hoare, 3 Atk. 44.; and presents itself in the case of ships; Earl of Macclesfield v. Davis, 3 the title to which, since the Re- Ves. and Be. IC ; from which it gister Acts, may be conclusively appears, that a purchaser from te- ascertained by searching the re- nant for life of personal chattels, gister. Ex parte Yallop, 15 Ves. will not be secure against the claims 60; ex parte Houghton, 17 Ves. of those entitled in remainder. 251 ; Monkhouse v. Hay, 8 Pri. (c) Millard's case, 2 Freem. 43 ; 256. 277. et seq. Lowther v. Carlton, 2 Atk. 139 ; (Z») But see the cases of Cado- Sweet v. Southcote, 2 Bro. C. C. gan V. Kennett, Cowp. 432 ; Fo- 66 ; Pennington v. Beechey, 2 Sim. Icy V. Burnell, 1 Bro. C. C 274 ; and Stu. 282. Hoare v. Parker, 2 T. R. 376; PRESUMPTIONS OF LAW. 29 to a purchaser, whose vendor, having been enabled to conceal the fact of his holding only in trust, produced a good legal title, and thereby fraudulently effected the sale (a). To the preceding, we may subjoin, as further in- stances of the force of possession, considered as prima facie evidence of title to land, that mere occupancy, however recent, will support, or form an available ground of defence in actions of ejectment, against all, except such as can show in themselves a superior right to the possession (Z>) : and again, where the dispute respects simply the quantity of interest, which posses- sion and pernancy of the rents imply, the presump- tion is in favour of a seisin in fee, not of a seisin for any less estate (c). To the ownership of estates in land, there are, de communi jure, certain rights and privileges annexed, which, though not essential to the enjoyment of the property, contribute perhaps materially, to its value or convenience. Now these, — to illustrate the second instance proposed at the beginning of this section, — are considered, until the contrary be shown, as remaining with, and constituting part of the possession : from which it follows, that, though the rights and privileges spoken of may be capable of being disunited from their subject, an adverse claimant of them to hold in severance must, in order to succeed in his pretensions, (a) Bovey v. Smith, 1 Vern. 60 ; (Z>) Catteris v. Cowper, 4 Taunt, also in Mansell v. Mansell, 2 P. 647, and note, 548. Wms. 681. (c) Jayne v. Price, 5 Taunt. 326'. 30 PRESUMPTIONS OF LAW. be able to adduce direct proof of title. " When it is said," observes the learned annotator on Coke upon Littleton, " that a person is entitled to a right or pro- perty, hy common right, but that it maij belong to ano- ther, it is intended to say that the right or property in question is by the common law annexed to some par- ticular property of which the party is owner : yet that it is not so inseparably or inalienably annexed to this ownership, but that the party may transfer it to ano- ther. So that in all these cases, the presumption is in favour of him to whom the right or property is said to belong by common right ; yet this does not exclude the possibility of its belonging to another. To ano- ther, therefore, it may belong ; but, if he claims it, he must prove his title to it. On the other hand, the party to whom it belongs of common right is imder no obligation of showing his title to it ; to him, in the intendment of the law, it belongs, till there is a proof of the contrary. To exemplify this doctrine : the lord of a manor is lord of the soil of the manor o/* common right; that is, if it be admitted or proved, that he is lord of the manor, his right to the soil so far necessa- rily follows, that it is not incumbent on him to pro- duce any proof of it. He may, therefore, of common right, dig for gravel, unless it is to the prejudice of his tenants. But this right is not inseparable or inalien- able from the seignory. The lord may grant it to the tenants ; to the tenants therefore it may belong. But if they claim it, it is incumbent on them to prove their title to it" (a). Another example, we may add, of the (a) Co. Litt. 261 a, n. 1. PRESUMPTIONS OF LAW. 31 same kind, is the prima fade title of the different land- holders in a manor, to rights of common on the lord's waste ; and a further, that of the owner of the surface of land, to the minerals and inferior strata. The pre- sumption, that the possessor of a several fishery is owner of the ground covered by the water {a), and that where a highway i*uns over the waste of a manor, the soil belongs to the lord (Z>), are additional instances. But in all these cases, it is observable, the intendment of law may be encountered by testimony, showing a severance of the particular right from the original possession (c). On a principle similar to that which decides the soil of a highway over a manor waste to belong to the lord, it has been held, that where a road passes between the lands of different proprietors, and it cannot be shown who originally made the dedication, the right to the soil is in the owners on each side to the central line of the way (r/). In like manner, the strips of waste land lying between a high-road and the adjoining enclosures, are supposed primarily to belong to the owners of such enclosures {e). But here again, in both of these cases, the presumption may be rebutted, by proof of the dedication having been made by a jjarticular pro- prietor ; or by evidence that the ground which the way and the waste strips severally occupy, formerly consti- (a) Lofft. 364. See Co. Litt. (c) See 1 Roll. Abr. 401 ; 16 122 a, n. 7. Yes. 390 ; Co. Litt. 122 a, n. 7. (i) Lofil. 358 ; 1 Roll. Abr. 392. {d) Lofft. 359 ; 7 Taunt. 41. 1. 5. See also Headlam v. Hed- (e) Grose v. West, 7 Taunt. 39 ; ley, 1 Holt. N. P. Rep. 463 ; and Headlam v. Hedley, 1 Holt. Rep. Grose v. West, 7 Taunt. 39. 463; Steel v. Pricket, 2 Stark. 463. 32 PRESUMPTIONS OF LAW. tilted, or still continue to form part, of the lords' com- mon («). IV. The presumption that an advantageous offer will not be refused without cause, is referrible, as respects its origin, to a principle of self-interest. On this ground, the law implies assent in a devisee or grantee, to take the property devised or conveyed to him : which implication, it is observable, holds not only in cases, where the gift is to his own use, but also where the beneficial ownership is conferred on another ; trusts being matters only of equitable cog- nizance. Inasmuch, however, as no man is com- pellable to take an estate against his will, and as the construction under notice rests on an idea, that the grant or devise is advantageous to the party, while it may in point of truth be detrimental, the supposition of law continues of force only until repelled by con- trary evidence ; that is to say, until proof be brought of a renunciation of the gift. To this end parol testimony will probably suffice ; for a verbal renuncia- tion, it has been said, is of equal force with a re- nunciation by deed (b). It is a disputed question, whether the heir can dis- claim in those cases, in which it cannot be proved that his ancestor either agreed or disagreed to the estate. (a) Lade v. Shepherd, 2 Stra. particularly Thompson v. Leach, 1004; Grose V. West, 7 Taunt. 39. 2 Salk. 618. See also Nicolson (Zi) See generally on this sub- v. Wordsworth, 2 Swans. 365.372; ject the case of Townson v. Adams v. Taunton, 5 Madd. 435; Tickell, 3 Barn, and Aid. 31, and 2 Prest. on Abstracts, 226. and the authorities there cited, et seq. PRESUMPTIONS OF LAW. 33 But this question, it is conceived, admits, commonly, of a not unsatisfactoiy answer. The affirmative pro- position, it is obvious, if sustainable at all, must rest on an assumption of the deceased's ignorance of the gift : but that ignorance, it is also evident, must, ex- cept in some few cases, be most difficult to establish : and if this cannot be done, in which case the party's knowledge of the conveyance or devise must be sup- posed, an opening is immediately made for the ope- ration of the general intendment; — his acceptance must be presumed. A conclusion against the heir's having the power of disclaiming directly follows ; for if a grantee or devisee, who has once declared his assent (and here assent is implied), cannot afterwards disagree ; his heir, who succeeds precisely to the same situation, must of necessity be likewise bound. In cases where it is demonstrable, that the ancestor died in entire ignorance of the conveyance or will — and cases of this sort may doubtless occur, — the solu- tion of the question is more difficult; though the better opinion seems to be, that the heir, in such case, may renounce. The argument is : — If an heir oc- cupy exactly the place of the ancestor, he is of course invested with the same rights and powers : and con- sequently, if a disclaimer by the ancestor, on becoming acquainted with the gift or devise, would have the effect of showing that the property never vested in him at all ; a disclaimer by the heir, his locum tenens, must, by parity of reason, be attended with the like result. — In opposition to this, it is said, that until dis- agreement be positively proved, the estate, in legal D 34 PRESUMPTIONS OF LAAV. construction, vests in the donee or devisee ; and that as disagreement cannot be proved, when it is shown that the party was not aware of the interest bestowed, the property, in such case, would remain vested in him to the time of his death ; on which event it would be cast upon the heir by an act of law. From this the conclusion, though less satisfactory, is, that by the presumed seisin of the ancestor, which continued up to his death, and by the subsequent descent, the estate is become so fixed in the heir, that it cannot be lawfully devested otherwise than by a proper con- veyance. V. In this section, presumptions of law which appear to be founded in the dictates of prudence and discretion, are to be considered. They may be accounted for thus ; when regular means are once established for the at- taining of particular purposes, those means, it is natural to expect, will be resorted to, when the pur- poses in question are sought to be effected ; and vice vet'sd, when acts which are commonly done only with a view to particular ends are performed, that they proceeded from an intention to accomplish those ends. For these reasons, the solemnities required by law to give validity to the ordinary instruments of as- surance, as signing, sealing, delivery, &c., are, in the absence of proof of the omission, presumed ; and legal expressions, which have gained a fixed import, are understood primarily in their appropriate technical signification. To suppose that the party in such instances complies with the rules of law, is merely PRESUMPTIONS OF LAW. 35 to suppose that he acts conformably to right rea- son (a). It may perhaps be thought difficult to imagine a case, in which it can be necessary to presume the act of signing; except, indeed, where an instrument is mutilated in the place which the signature generally occupies, or where the instrument itself is lost. But another presents itself in the instance of a deed, the at- testation endorsed on which records only the facts of sealing and delivery ; for here, as may be perceived, a possible ground is afforded to doubt the correctness of the execution. To doubts, however, arising from this circumstance, no importance whatever is attached ; reason and probability alike avouching the maxim, omnia prcesumuntur recte et solenniter esse acta, donee prohetur in contrarium. And consistently herewith, in a case where the point was, whether a power, to. the exercise of which signing and sealing were required, but not an attestation to those acts, was well executed ; the word " signed " (though in the body of the instru- ment the deed was stated to be signed by the party in the presence of the witnesses according to the power) being omitted in the attestation ; Lord Eldon, upon the question, whether, after execution, it ought to be taken, that the donee of the power did sign in the presence of the witnesses attesting the sealing and delivery, said, there would be a miscarriage in a judge directing a jury, if that fact was found, not to presume that the (a) See Finch's Law, p. 37. D 2 36 PRESUMPTIONS OF LAW. deed was signed in the presence of the same witnesses as it professed to be. The attestation, therefore, in that case, his lordship added, was good («). The fact of sealing likewise will be presumed ; and this not only in cases where the deed is lost or torn, but also where no mark or impression on the parch- ment or paper appears ; provided only, that the at- testation notice the solemnity to have been complied with. The reason is, that to constitute sealing the use of wax, or of a wafer, is not essential : it is suffici- ent if the seal, stick, or other instrument, be impressed by the party on the plain parchment or paper, with an intent to seal {b). In like manner, the delivery of deeds will be pre- sumed, unless contradicted by particular circumstances. And hence, in a late case, where the attesting witness to a bond, not having, in reality, either seen the execu- tion by the obligor, or heard him acknowledge it, was of course unable to prove the validity of such execution ; the evidence of another person who saw the obligor sign, coupled with the circumstance of a declaration incorporated in the instrument, stating it to be sealed by him, was held sufficient to warrant the jury in pre- (ffl) McQueen v. Farquhar, 11 agreement to be signed, was over- Ves. 467. In the late case of Rist ruled. The signature was pre- V. Hobson, 1 Sim. and Stu. 543. sumed. a demurrer to a bill for specific (i) See Sugden on Powers, 3d performance of an agreement, be- edit. 236. cause the bill did not allege the PRESUMPTIONS OF LAW. 37 suining, that the deed had been regularly sealed and delivered (a). Enrolment, when necessary to the operation of a deed, will also, it seems, be on certain occasions pre- sumed. Thus where, in ejectment on the assignment of a term to secure an annuity, the defendant objected, that the lessor of the plaintiff was bound to prove enrolment pursuant to the statute of 17 Geo. 3, c. J26 ; Lord Ellenborough overruled the objection, and held, that if the annuity were not duly enrolled, the proof ought to come from the adverse party (b). As a point deducible from the preceding cases, and particularly from M'Queen v. Farquhar, it may in this place be observed, that the solemnities necessary to the due execution of a jiower, will, with the same readiness as in the case of other written instruments, primarily be supposed ; unless there is sufficient on the face of the deed, or from external circmnstances, to infer the contrary. Another case to which the maxim above-mentioned applies, is, where a bargain and sale for a year, on which a release is expressed to be founded, bears date the same day as the release. In this instance the law supposes priority of execution in the former instru- ment (c). Whether a similar construction would be (fl) Talbot V. Hodson, 7 Taunt. (c) See per Lord Keeper North, 251. in Barker v. Keate, 1 Freem. (b) Doe d. Griffin v. Mason, 3 251. Also 1 Burr. 106-7. Camp. 7. 38 PRESUMPTIONS OF LAW. made in the case of a bargain and sale dated the day subsequent to the date of the release, is problematical; though there are grounds even here to think, that the conveyance would be supported. The intention of the parties to make a valid assurance is certain ; and it is most agreeable to reason to believe, that the proper steps would be taken to render it effectual. The in- sertion of a wrong date is easily attributable to mis- take : and as it is clear, that the delivery of a deed may be shown to have preceded its date {a), it would be no gross departure from principle to intend such precedency in the present instance, especially when regard is had to the maxim, ut res mcfgis valeat quani pereat. We may add, that the doctrine of supposed priority is not confined to the case of a lease and release ; the principle holds in every other, where the precedence of one act is necessary to give validity to another. In Taylor v. Horde (b), accordingly, it was laid down by Lord Mansfield, that if two deeds bear date the same day, and are manifestly but one agreement, that shall be presumed to be executed first, which supports the evident intention of the parties. A further instance in which the presumption obtains, that all circumstances necessary to the validity of com- (a) Denton and Goddard's case, sidered m the text, Prest. on Conv. 3 Leon. 100 ; 2 Rep. 4 b. S. C. ; 2d vol. 363-4. 3S6-7. Clayton's case, 5 Repi 1 ; Steele (/j) 1 Bvirr. 60. 106-7. See also V. Mart, 4 Barn, and Cress. 272. 2 Rep. 74 b, and 75. Sec generally on the subject con- PRESUMPTIONS ON LAW. 39 mon assurances will be pui'sued, is where the attesting witnesses to a will of land, consisting of several sheets, see only the last sheet, or that on which they subscribe their names. The rule in this case, until the contrary be proved, is, to intend all the sheets to have been in the room where the witnesses were assembled {a). On a similar principle, if all the witnesses to a will be dead, so that it cannot be proved they subscribed in the testator s presence, compliance with the statute in that respect will, in the first instance, be sup- posed (b). Again : Interlineations, which, if made subsequently to the execution of a deed, would either vitiate it, or at least be nugatory, will on the principle now imder consideration be presumed to have preceded the sealing and delivery, unless the contrary clearly appear (c). And such, it may further be observed, is the intend- ment, not only where the insertions supply an evident defect, but also where the matter introduced is clearly the result of second or posterior determination. So that, in a case, where the effect of the interlineation was to enlarge a power, it was held, in the absence of proof to the contrary, that such interlineation should be regarded as made at the time when the deed was executed, and not afterwards {d). (a) Bond v. Seawell, 3 Burr. (c) Trowell v. Castle, 1 Keb. 1773; 1 Black. Rep. 407, S. C 22; Glanville v. Paine, Barnard. (b) Hands v. James, 2 Com. 19. Rep. 531 ;Bricev. Smith, Will. R. («/) Fitzgerald v. Fauconberg, 1 ; Croft V. Pawlet, 2 Stra. 1109. Fitzgib. 201.. 40 PRESUMPTIONS OP 1>AW. It remains only to notice, under this head, that where merely secondary proof of a deed can be given, it will be presumed, notwithstanding evidence which tends to negative the supposition, that the proper ad ■valorem duty stamp was affixed on the original. Thus, where, to prove that an indenture of apprenticeship had not been regularly stamped, the deputy register and comptroller of the apprentice duties gave evidence, that it did not appear in the office, either about the period alleged, or since, that any such indenture had been stamped or enrolled there, the Court of King's Bench held the evidence inconclusivt : Lord Ellenborough observing, that the presumption in favour of all being rightly done, was to be favoured ; and, that against the negative testimony adduced might be set the possibility of an irregularity in the returns to the office (a). Words and phrases which possess a fixed meaning are necessarily, on common occasions, understood at first in the sense of their ordinary acceptation : it is only when the speaker or writer, from the use of other words or phrases as synonymous, or from sjjecial cir- cumstances, appears to employ them in a different sense, that the ideas intended to be conveyed by them are taken to vary from what the terms themselves usually import. Courts of justice are governed by similar considerations. And accordingly, in the con- struction of legal instruments containing technical ex- pressions, they ascribe 'primo mtuitu, to such expres- () Prankerd v. Prankerd, 1 608 ; Jennings v. Selleck, 1 Vern. Sim. and Stu. 1. 467 ; Munniia v. Mumma, 2 Vern. 62 PRESUMPTIONS OF LAW, will the presumption be affected by the father's expend- ing money in necessary repairs or in improvements ; for such are only particular parts of the general advance- ment {a). But if the child be an infant at the time of the pui'chase, and the parent continues in possession after the minority terminates ; or if the child be adult at the time of the purchase, and the parent takes posses- sion and acts as owner from the first ; the question is open to very different considerations. For with regard to the former of these cases, that ot a father's purchas- ing in the name of an infant son, and retaining posses- sion after the minority ceases, it was said in Loyd v. Read (Z>), that such circumstance was evidence of a trust for the father, because the child was of years of discretion to claim his right. But this reason ap- pears to be far from satisfactory. A parent, who buys an estate in his child's name, though for the purpose of seciu-ing it to him as a future provision, frequently, if not always, means to retain a life interest. And as to the child's power, when of age, to assert his right, and his omitting to do so, that affords but little ground for concluding against his claim. It is seldom that a grown up son so far loses a sense of the gratitude and respect he owes his father, as to compel him by law to deliver up a possession, with the legal right to which the father had voluntarily invested him. But further; the dictiun in Loyd v. Read, seems directly opposed to the determination in Lady Gorge's case (c). 19 ; Taylor v. Taylor, 1 Atk. 386; 252 ; Mumma v. Mumma, 2 Vern. see also 2 Atk. 480 ; 2 Cox, 95 ; 19. 2 Swans. 600. (b) 1 P. Wms. 608. (a) Shales v. Shales, 2 Freera. {c , Cro. Car. 550, cited; 8 PRESUMPTIONS OF LAW. 63 In that case, it appeared that the Earl of Lincoln, who had purchased a manor in his infant daughter's name, but always kept the courts, and made leases, in his own name, and had regularly received the rents and profits, after enjoying the property for some years sold it to Sir S. Montague. The daughter, Lady Gorge, it is stated in the report, never questioned the sale during her father's life-time (an expression seeming to imply her power to have questioned it, in other terms to im- ply her having attained the age of twenty-one) ; yet after his death she succeeded in establishing her title to the manor as an advancement ; the case being held not to come within the meaning of the 27th Eliz. c. 4. As to the question of advancement in cases of pur- chases in the name of an adult child, where the father enters into and retains possession from the first, it is said in Lord C. B. Gilbert's Lex Prcetorm {a), that the child must be considered a trustee, because being of full age he is emancipated from the power of his father. And this doctrine receives covmtenance from the case of Woodman v. Morrel (b). There a father purchased a copyhold in the name of his daughter (who, it seems, was of age), and received the rents for twelve years. Afterwards getting into debt, and being desirous to sell, he preferred his bill against the daughter and her husband, to obtain a surrender ; and Mr. Justice Atkins, who sat for the Lord Chancellor, being of opinion that a trust resulted to the father, decreed Swans. 600. See also Mumma v. (a) Lex Prat. 271. Mumraa, 2 Vern. 19. (i) 2 Freem. 32. 64 PRESUMPTIONS OF LAW. accordingly. And in the late case of Murless v. Franklin (a), Lord Eldon laid it down generally, that possession, taken by a father at the time of a purchase in his son's name, showed the father's intention to pur- chase for his own use. Had the only authority for the proposition in the hex Prcetoria been the decision of Mr. Justice Atkins, it might not, perhaps, for the reasons about to be stated, have been considered entitled to much weight : though supported as it is, by the dictum in Murless v. Franklin — a dictum proceeding from so eminent a Judge — there is much cause to think that the point will be ultimately settled in the affirmative. It may, however, ibe remarked, that the reason assigned in the Lex PrcBtwia does by no means appear conclusive. A son, who has attained twenty-one, may be as much dependent on his father, and as much under his con- trol, as if still a minor ; and the ground of distinction hitherto generally taken and acted on in questions of advancement, has been, not the fact of the son's being above or under age, but that of his being, or not being, before provided for (b). And although great weight must be attributed to the dictum of Lord Eldon, yet it is open to remark, that not only is it too general in not being restricted to the case of an adult child, but it seems opposed, in the general principle, to preceding dicta and judicial determinations. Thus it was said by Lord Nottingham, that in all cases of asserted trusts between father and son, contrary to the consideration (a) 1 Swans. 17. (A) Elliot v. Elliot, 2 Cha. Ca. 231, 2. PRESUMPTIONS OF LAW. 65 and operation of law, the same ought to appear upon very plain, coherent, and binding evidence ; and not by any argument or inference from the father's conti- nuing in possession, and receiving the profits, which sometimes the son may not in good manners contradict, especially where he is but advanced in part («). And, consistently with this, in a case where lands bought by a father were conveyed to himself and his son as joint tenants, but the father continued in possession of the whole till death, a claim by his devisee, who contended that the son was only named as trustee, was disallowed : Lord C. J. Hyde, sitting in equity, said, that the pur- chase must, jwmidfade, be intended an advancement for the son, and not presumed a trust, unless declared so ; and that it was anciently the way to join the son in a purchase to avoid wardship -.—Which decree was afterwards affirmed by Lord Chancellor Clarendon {b). A similar decision, under circumstances still more strongly repelling a presumptive advancement, was in the case of Back v. Andrew (c). The presumption in favour of advancement, where a father purchases in the joint names of himself and a child, though the former alone receives the' profits, (which governed the two cases last mentioned), has not, indeed, been considered so forcible in later times, as formerly (d). In Stileman v. Ashdown (e). (a) See Finch, 340 ; 2 Swans. (c) 2 Vem. 120. See also Cnsp 600 ; 2 Cha. Ca. 231. v. Pratt, Cro. Car. 548. {b) Scroop V. Scroop, 1 Cha. (d) See 1 Ves. 76. Ca. 27 ; 2 Swans. 599 ; 1 Eq. Abr. {e) 2 Atk. 477. 480. 381, p. 6. 66 PRESUMPTIONS OF LAW. where the child was even an infant, Lord Hardwicke said, that such purchase did not answer the purpose of an advancement, for it entitled the father to the pos- session of the whole till a division of the estate, and to a moiety absolutely after a division, besides the father's taking a chance to himself of surviving to the other moiety ; and that if the son died during his minority^ the father would be entitled to the whole by virtue of the survivorship, which the son, being an infant, could not prevent by severance. His Lordship, accordingly, in that case, relieved a judgment creditor of the fa- ther's against the title by survivorship of the son. But the reason for this decision does not appear to possess that weight which generally belongs to Lord Hardwicke's judicial arguments. A joint te- nant, undoubtedly, in a legal sense, is entitled to a possession of the whole estate ; he is said to be seised per my and 'per tout^ and can give a valid discharge to tenants for rent : but it by no means fol- lows, nor is it true in fact, that he is entitled to an exclusive possession, or to appropriate the whole of the profits. The rights which the father immediately acquires from the joint seisin cannot, therefore, it is conceived, be relied on as affording any substantial in- ference against a presumptive advancement. Nor does more importance appear to be due to the fact, that the father, in case of a division, would take one moiety absolutely ; it merely shows, that he did not intend to give his son a title, from the first, to the whole pro- perty. So with regard to his retaining a chance of survivorship, nothing positive seems fairly deducible from tlience ; for survivorship is simply an incident of PRESUMPTIONS OF LAW. 67 the tenancy, and gives at most but a chance : the son too has the same prospective benefit, and with better hope of seeing it realized, the probability being in favour of his surviving: he has likewise the power, when of age, to sever the joint estate. And the cir- cumstance of his being an infant rather strengthens than opposes his pretensions : the inutility of an infant trustee is obvious ; and to objections drawn from the son's inability dui'ing nonage to effect a severance, it may be urged in reply, that such fact merely denotes an intention on the father's part to secure the property to himself in case the son should die before he wanted it. Nevertheless, to recur to the principal question, it must be allowed, that the argument of conveniency is strong for holding a purchase in the name of an adult child, to be a trust. The general tendency of the con- trary doctrine is, to preclude a father from entrusting his own son (a). The same rules on the point of advancement, which hold with regard to purchases in the name of a child, are also applicable, so far as the difference of circum- stances admits, to purchases in the name of a wife. It has, at least, been decided that such purchases shall, in the first instance, be presumed a provision or advance- ment for the wife (b) ; the disabilities under which she, as a feme covert, is placed by law, rendering her, in many respects, unfit for the office of trustee. (a) See 2 Cha. Ca. 232. Christ's Hospital v. Budgin, 2 lb) Kingdom v. Bridges, 2 Vern. Vern. 683 ; Rider v. Kidder, 10 ei ; Back t. Andrew, ib. 120 ; Ves. 367. F 2 68 PRESUMPTIONS OF LAW. When a purchase in the name of a child, or, as it should seem, of a wife, is determined to be an advance- ment, the consequence, as regards the father or husband, is to prevent his making any disposition of the pro- perty, in destruction or derogation of the child's or wife's right. He cannot, therefore, defeat their claim by devise (a) ; and, as the case falls not within the ope- ration of the Stat. 27 Eliz. c. 4, he has no power to prejudice their title by mortgage (b), sale for valuable consideration (c), or settlement on marriage {d}. Purchases in the name of a wife or child may, it is conceived, be avoided by creditors under the stat. 13 Eliz. c. 5. The point, it is true, has not been ac- tually decided. Indeed, it has been contended, on the authority of Fletcher v. Sedley (e), and Proctor v. Warren {f)> that such purchases cannot be impeach- ed ; and it was also urged, among other arguments, that as a man may give money to the object of his bounty, to be laid out in a purchase, so, pari ratione, he may himself make a purchase, and direct the con- veyance to be taken in the name of a wife or child. The cases above-mentioned, however, are as insufficient to establish the point for which they have been cited, as the arguments which have been adduced to the same end are inconclusive. For on the occasion of the former (a) Mumma v. Mumma, 2 Vern. (c) Lady Gorge's case, Cro. Car. 19 ; Dyer v. Dyer, 2 Cox, 92. See 550, cited ; 2 Swans. 600. also 15 Ves. 50, 51. {d) Murless v. J'ranklin, 1 {b) Back V. Andrew, 2 Vern. Swans. 13. 120 ; Prec. Cha. 1, S. C. (e) 2 Vern. 490. (/) Sel. Cha. Ca. 78. PKESUMPTIONS OF LAW. 69 case being cited before Lord Hardwicke, his Lordship is reported to have said, — " That case in Vernon was only the inclination of the court on the argument of counsel, and it would be dangerous to allow the argu- ments which are there " («). And in the latter case, the only observation of Lord King applicable to the subject was, that " he did not hioiv it had ever been determined, that where a man indebted, and minding to provide for his children, has an estate originally con- veyed to them, such estate was subject to his debts." So much for the cases which have been cited as autho- rities. With respect to the arguments advanced in support of purchases of this kind against the claims of creditors, we have already seen, that Lord Hardwicke has characterized them as dangerous. And as they are certainly rather subtle than substantial, and pro- ceed upon refined technical distinctions, which can never be admitted in a court of equity, it is conceived they will not be allowed to prevail against an enlarged and sensible construction of the statute under conside- ration ; which also being a remedial law in favour of creditors, must, as are all remedial laws, be construed liberally {h). It may also be observed, that the argu- ment, which has been derived from the alleged validity of a direct gift of money to the object of bounty for the purpose of being laid out in l^d, is not entitled to much weight since Lord Henley's decision in Partridge V. Gopp (c) ; in which case, after mature consideration. (a) See 1 Ves. 130. 2 Vern. 683, and Gatley v. Quar- (Z>) See 19 Vin. Abr. 6\o; per rel, there cited. Best C. J., 2 Bing. 197. See (t) 1 Eden. 163; Amb. 696; also Christ's Hospital v. Budgin, S. C. 70 PRESUMPTIONS OF LAW. he held, that a gift to a child of money by an insolvent debtor did come within the purview of the act of the 13th Elizabeth, and that the donee was answerable though the money might have been spent. But the argument now under discussion appears to be open to the much more serious objection, that it is drawn from an assumption, in which is really involved a i:ietitio pri7icipii. For if a purchase made by a father himself in the name of a child may be avoided by creditors, it is impossible to say that the mere co- lourable gift of the purchase money to the child to be by him laid out in land, could protect the transaction against their claim. A court of equity will never allow that to be done per indirectum which it forbids to be done directly. It would entirely disregard the super- ficial distinction which divides between the two cases, and would treat the circumstance of the gift as a clear fraudulent evasion of the wholesome provisions of the statute. The validity of a gift of money to be laid out in a purchase must not therefore be assumed : it is in truth itself dependent on, and must be proved by first establishing the validity of a purchase made immedi- ately by a parent in his child's name. Now if we strip the case of a purchase made in the name of a wife or child of the peculiar external circumstances, it can hardly be distinguished from a mere voluntary post-nuptial settlement. So that where there is no express declaration of trust in favour of the wife or child, and the matter is left entirely to presumption to raise a trust in their favour, it appears an almost ne- PRESUMPTIONS OF LAW. 71 cessary conclusion, that such presumption will not be allowed, where it would work an injury to creditors ; since it is very clear, that the duty of paying just debts is superior to that of advancing a wife or child. And although a trust be expressly declared in their favour, or possession have been taken by them, the case (besides being open to the objections just stated) seems also capable of being met on that ground of fraud which is mentioned by Lord Hardwicke in Chesterfield v. Janssen (a) where- in he says — " A fourth kind of fraud may be collected or inferred, in the consideration of this court, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons not parties to the fraudulent agreement:" — and — " Particular per- sons in contracts shall not only transact hondfide be- tween themselves, but shall not transact mala fide in respect to other persons, who stand in such a relation to either as to be affected by the contract or the conse- quences of it." It is for these reasons, and also by virtue of the statute of Elizabeth, that the voluntary disposal of money by which a purchase is effected, con- stitutes, in the case of an insolvent debtor, a fraud ; and that thus a sufficient ground is afforded for following it into the land, in the purchase of which it was speci- fically applied. On this principle too, and on the fact of fraud being established, where partnership property has been applied by one of the partners separately in the purchase of an estate, and it can be specifically traced to that purchase, the estate is considered as part- (a) See 2 Ves. 156. 72 r RESUMPTIONS OF LAW. nership property, and becomes liable to the demands of the joint creditors (a). We may add, if it appear that the insolvent, before the conveyance to his wife or child, had agreed for the purchase in his own name, and that the contract was such as to make him equitable owner ; in this case, there would be still stronger ground for disputing the validity of the grantee's title. "V^Tiere a purchase is made in the name of a wife or child, at a time when the person who pays the money is not indebted, the same reason holds for sustaining its validity against subsequent creditors, as if the estate had previously belonged to the husband or father, and had been settled by him in the' manner supposed. It has accordingly been decided, that, in such case, the title of the wife or child will prevail {b). Provisions for a wife or child, by estates brought in their names and conveyed to them, are not, it seems, affected by the subsequent bankruptcy of the real purchaser ; provided that at the time when the con- tract was completed, he was not an insolvent trader within the meaning of the bankrupt laws (c). For- merly, purchases of this kind, by a trader, even in solvent circumstances, could not be supported, the case (a) Ex parte Emly, 1 Rose, Cha. Cha. 78; See 8 Ves. 199, 61. 200. {b) Fletcher v. Sedley^ 2 Vera. (c) Crisp v. Pratt, Cro. Car. t90 ; Proctor v. Warren, Sel. 548 ; 7 Yin. Abr. 97, pi. 2. PRESUMPTIONS OF LAW. 73 falling directly within the fifth section of the statute 1 Jac. 1, c. 15 (a). But that act is now repealed : and as the statute 6 Geo. 4, c. 16, s. 72, avoids voluntary settlements only where traders are insolvent at the time of making them ; purchases in the name of a wife or child, while the party is solvent, cannot, it should seem, be impeached. II. As to Joint Purchases. — Where an estate paid for by two or more persons is conveyed to them as joint tenants, the survivor becomes at law entitled to the whole property. But in equity this is entirely a question of intention ; which, whether expressly de- clared or deducible from circumstances, the courts will effectuate, and for that purpose confine the survivorship to the mere legal title, or allow it to carry the beneficial interest also. In the absence of other particular indications of in- tent, the proportions in which the purchase money was advanced, is considered a circumstance sufficient for the foundation of a general rule. If the purchase money were advanced in ec[ual shares, it is presumed that the Jus accrescendi was contemplated ; if in un- equal shares, that it was not adverted to. The reason for allowing the legal right of the sur- vivor to prevail, where the purchase money is ad- vanced in equal portions, is the probability which that (a) Tucker v. Cosh, Style, 288 ; Glaister v. Hewer, 8 Ves. 195 ; 9 Walker v. Burrows, 1 Atk. 93; Ves. 12; and 11 Ves. 377 ; Brown Fryer v. Flood, 1 Bro. C. C 160 ; v. Bellaris, 5 Madd. 53. 74 PRESUMPTIONS OF LAW. circumstance, taken in connexion with the nature of the tenancy, affords, that each intended to purchase to himself, and give to the other, a chance of succeeding to the entirety (a). And this principle, we may re- mark, obtains not only in regard to purchases of the fee, but also to purchases of leaseholds for lives renew- able (b), or for terms of years (c). Nor does the rule continue of force only while the legal estate remains in the parties : the beneficial interest will survive, though they afterwards convey to a trustee ; provided, at least, no design be manifested to effect a sever- ance {d). The same principle likewise applies to joint agree- ments for purchase. Thus where two persons agreed for the purchase of an estate to them and their heirs, and paid a deposit in equal moities, but before the con- veyance was executed, one of them died ; on a bill filed by the heir of that person to participate in the benefit of the agreement. Sir W. Grant, M. R., held, that the contract for purchase being joint, and the advances equal, the vendees must be considered as having been joint tenants, and that the defendant consequently had succeeded to the whole interest. His Honour seemed also to be of opinion, that had the advances been un- equal, that circumstance would not have been decisive against the joint tenancy ; for it would have been (a) See York v. Eaton^ 2 Freem. (c) Taylor v. Fleming, cited 2 23 ; Lake v. Gibson, 1 Eq. Abr. Freem. 23 ; JefFereys v. Small, 1 291, pi. 3; Rigden v. Vallier, 3 1 Vern.217; also 1 Ves. jun. -tSi. Atk. 735 ; 2 Ves. 258, S. C {d) Rea v. Williams, Siigd. on (/>) Moyse v. Gyles, 2 Vcrn. Purchases, App. No. 21, 6th edit. 385 ; York v. Eaton, 9 Freem. 23. PRESUMPTIONS OF LAW. 75 enough, if, before the completion of the purchase, the parties had contributed equally (a). An exception, however, to the rule now under con- sideration occurs, where a joint purchase is made by partners for the purposes of their trade {b), or by per- sons embarking in an adventure, under an engagement to divide the profits, or sustain the loss, equally (c). In such cases, though the estate survive at law, it will not in equity. There it is accounted a portion of the stock in trade ; and the parties, by analogy to the common law principle, which, as to partnership effects, allows no Jus accrescencli («/), are adjudged to be entitled as tenants in common. Leases taken jointly, and, by parity of reason* lands purchased absolutely with a view to building, are likewise regarded as partnership property, and do not therefore survive beneficially {e) : and the rule appears to be the same in regard to farms let to two or more persons for the usual purposes of husbandry (y*) ; for, in all these cases, the intention is manifest to make the matter a partnership concern. In like manner, although a lease be such as, when first granted, would vest absolutely in the survivor, the fact (a) Aveling v. Knipe^ If) Ves. (c) Lake v. Gibson, 1 Eq. Abr. 441. 290, pi. 3 ; 3 P. Wms. 158, S. C. {b) See iVes. jun. 435; 1 Swans. {d) Co. Litt. 182 a; 3 Ves. 631. 508, 521 ; also Balmain v. Shore, (e) Lyster v. Dolland, 1 Ves. 9 Ves. 500; Jackson v. Jackson, jun. 431, 434-5. ib. 591. If it be doubtful that the (/) Elliot v. Brown, 9 Ves. property was bought to carry on a 597, cited. Sed vide JefFereys v. trade, an inquiry will be directed Small, 1 Vern. 217. before tire Master; 1 Ves. jun. 435. 76 PRESUMPTIONS OF LAW. of money being afterwards laid out in agricultural im- provements will, in equity, make the interest several, and prevent survivorship ; the subsequent conduct of the parties being considered indicative of their original object (a). But on the other hand, where a partner- ship clearly appears not to have formed the inducement to a joint purchase, an expenditure afterwards, in re- pairs or in improvements, will not, it is apprehended, whether the property be held for a term, or in fee, prejudice the right of the survivor. But it has been said, that under these circumstances, the representatives of the deceased joint tenant will, if such repairs, &c., were wholly paid for by him, have a lien on the land to the amount of the sums advanced {b). When the purchase money is advanced in unequal shares, the presumption which obtains is, that the parties intended to hold the beneficial interest in severalty, and that it should not be liable to the jus accrescendi. It is considered as highly improbable, that the person who paid the larger part of the purchase money should have meant to buy an interest equiva- lent only to that of the person who paid the less. And, therefore, it has been established, that the parties effecting a purchase in such manner, take interests in the nature of tenants in common, proportional to the amount of their respective advances ; and that, though the estate survives at law, the survivor, as to the sur- viving share, holds only as trustee for the real or per- (a) See 1 Ves. jun. 434. in Lake v. Gibson, 1 Eq. Abr. (/)) Per Sir Joseph Jekyll,M.R. 291. PRESUMPTIONS OF LAW. 7T sonal representatives of his deceased companion (a). The propriety of this rule has indeed been questioned, on the ground that the inequality of contribution may be referred to, and denote the relative value of the parties' lives (b). But unless the presumption of joint- tenancy, which this supposition affords, were followed up by some principle, which would protect and enforce what is thus taken to have been the intention of the parties ; such presumption would in all instances be liable to work, and in many would actually work, a positive injustice. For even supposing that the party advancing the larger sum were really the better life, and did in fact outlive the other, it would still be a sufficient objection to this rule, that the interest of that very party might be immediately destroyed by sever- ance of the jointure. So that in order to justify the presumption of joint-tenancy, it would be necessary for a court of equity to restrain the party advancing the less sum from effecting a severance, and thereby appro- priating to himself an interest greater than that which he is presumed to have contracted for. But as the matter rests entirely on presumption, and supposes the absence of any express contract or agreement between the parties in restraint of the right to make partition, it is evident that a court of equity could not interfere by injunction on the head of fraud : and as the power of making and compelling a partition is one of the legal incidents to a joint estate, there is manifestly no other principle in equity, which would sanction a proceeding (a) See 1 Eq. Abr. 291, in Lake (A) See Mr. Vesey's note, 9 V. Gibson; also per Lord Hard- Ves. 597. wicke, 3 Atk, 735 ; 2 Ves. 25H. 78 PRESUMPTIONS OF I-AW. destructive of this power. The joint-tenancy, there- fore, in every case of this kind, would be liable to be severed by the person advancing the less sum immedi- ately after the purchase :— Which clearly shows, that if, when the purchase money has been advanced in unequal shares, the presumption in favour of a joint- tenancy were adopted on the supposition, that those shares denoted the value of the respective lives at the time of the purchase, it would always be at variance with the nature of the estate, which is the result of that presumption. But indeed it is evident, that the supposition has been hazarded »vith a total disregard to the consequences which flow from it, and to the legal properties and incidents of an estate held in joint- tenancy. On the whole, therefore, the most reasonable supposition in this case appears to be, that each party intended to purchase in proportion to the sum he ad- vanced ; and that the estate was conveyed to them in joint-tenancy, with a view either to prevent the attach- ment of dower, or to attain some other end, which the nature of the property, or the circumstances of the purchasers, might make desirable. In the case of money advanced by two or more, on a mortgage, which is made to them jointly, the rule is, that the beneficial interest shall not survive ; the pre- sumption being that each party means to take back his own («). Hence, if the mortgagees foreclose, the mortgaged estate will, in equity, belong to them as (a) Petty v. Sty ward, 1 Cha. Rep. .57. See also, 3 Atk. 734- ; 2 Ves, 258; 3 Ves. jun. 631. PRESUMPTIONS OF LAW. 79 tenants in common {a). And a like consequence, as it seems, grounded on the same principle, ensues, where a joint purchase is made of the equity of redemption. As the parties are equitable tenants in common of the mortgage, they are supposed to purchase the absolute interest on the same mutual footing, and to take distinct and separate interests. It is also observable, that such purchases are sometimes made, with a view merely to obtain more effectual securities {b). In Edwards v. Fashion (c), where the two daugh- ters of a mortgagee for a term became entitled, under their father's will, to the residue of his personal estate in equal shares, and afterwards purchased the equity of redemption to them and their heirs ; it was decided, consistently with the above rule, that there was no survivorship. (a) 2Ves. 258. (i) York V. Eaton, 2 Freeni. 23. See also 19 Ves. WU (c) Free. Cha. 332. 80 PRESUMPTIONS OF LAW. CHAPTER V. PRESUMPTIONS OF LAW CONTINUED. Of the Performance, and presumed Satisfaction of Covenants for Family Provisions ; first, in Cases relating to Personal Propei^ty ; secondly, in Cases relating to Real. Lord Thurlow is reported to have said, that between cases of performance, and cases of satisfac- tion, in regard to covenants, he was at a loss to make any broad and useful distinction ; and that in both the governing principle was the covenantor's inten- tion («). A distinction, however, has in this re- spect always obtained. The assertion, that cases of performance are to be determined by reference to the intention, is denied. That, it is alleged, is to be consulted only in cases of satisfaction. And the rule seems now to be so settled : the inquiry, in cases of the former descrijDtion, invariably proceeding thus ; Has the identical act, which the party covenanted to do, been done ? in the latter ; Was the thing done, in- tended as a substitute for the thing convenanted ? The one is a question of fact ; the other only of in- tention {h). (a) See 2 Bro. C. C. 395. (/>) See 1 Swans. 219. PRESUMPTIONS OF LAW. 81 The common case of the constructive performance of covenants relative to personal property, is, where a widow, entitled under an agreement by her husband to a particular provision, becomes possessed, on his in- testacy, of a distributive share in his personal estate ; in such case he is held to have performed, through the operation of the law, what he had bound himself to do. The earliest decision on this subject is that of Blandy v. Widmore («). There a husband had agreed, before marriage, to leave his wife, if she should sur- vive him, 600/., and covenanted with trustees for pay- ment of the money by his executors : he died without a will : and the widow's legal right, under the statute of distributions, was considered to be strictly a leaving, or payment, within the terms of the stipulation ; she obtained specifically that for which she had contracted. This case has been followed ever since {b) : and the rule thereby established is applied, as well to the in- stance of a virtual, as of an actual intestacy ; where, for example, a testamentary disposition becomes in- operative by subsequent events (c). In a late case (c?), the presumption was admitted,^ though the widow's distributive share did not equal what she claimed under the covenant. Th^ husband had agreed to secure to her, on his death, a moiety of his whole personal pro- (a) 1 P. Wms. 324.; 2 Vern. per Lord Alvanley, 2 Ves. jun. r09 S. C. 4^64 ; and per Alexander C. B> (Z>) Davila v. Davila, 2 Vern. 1 M'Clel. and You. 50. 724 ; Lee v. Cox and D'Aranda, (c) Goldsmid v. Goldsmid, 1 3 Atk. 419; 1 Ves. 1, S. C See Swans. 211. also per Lord Hardwicke in Bar- (d) Garthshore v. Chalie, 10 rett V. Beckford, 1 Ves. 520, and Ves. 1. in Prime v. Stebhing, 2 Ves 411 ; 82 PRESUMPTIONS OF LAW. perty. The third, to which she became entitled on his dying intestate, was held to go in part performance of the agreement. The general principle, furnished by the preceding authorities, is, that where a man covenants to leave or give money or other personal property, at his death, to persons who, independently of that engagement, on account of the relation subsisting between them and the covenantor, and the rules of law attaching in the case of intestacy on that relation, take a provision out of his personal estate, such provision shall be ac- counted in performance, or part performance of the covenant ; and the covenant shall be regarded as having been entered into with immediate reference to that cir- cumstance (a). The ground, on which it is probable this principle originally rested, was the leaning which equity professes against double provisions {b). But to whatever origin referrible, the soundness of the doctrine has in latter times been much questioned. It was said, in one case, by Lord Eldon, that the argument on the other side, — namely, that the covenant constitutes no- thing more than an ordinary debt, and that after that is paid, a distinct claim, founded on the common law, then arises to the undisposed of residue, — would, if the case were new, be difficult to answer (c). And the late Master of the Rolls, Sir T. Plumer, also ex- pressed himself to the like effect (d). But the ques- (a) See 10 Ves. 13; 1 Swans. (c) 10 Ves. 10. 218, 219. {d) 1 Swans. 21T. {b) See 3 Atk. 421 ; 1 Ves. 263, 520. PRESUMPTIONS OF LAW. 83 tion having been set at rest above a century ago, both Judges held themselves to be bound by the rule. Slight circumstances of difference between the pro- visions made, and covenanted to be made, are not enough to prevent the application of the rule. The cases which have been already cited show, that the cir- cumstance of the property being acquired by operation of law, instead of the act and disposition of the party, or, of its being inferior in amount to that stipulated for, is unimportant. So with respect to the time of payment, though one, three, or six months, after the death of the covenantor, be the period named for that purpose in the contract, the fact of the distributive share being delayed to be paid until twelve months afterwards, will not affect the determination (a). Before this part of our subject be dismissed, it is proper to notice two cases, which, though at first sight appearing to militate with the doctrine above stated* will be found, on nearer inspection, to have been de- cided on their peculiar circumstances. The first case alluded to, turned on the wording of a jiroviso. In a settlement made before marriage, the husband cove- nanted for payment of 10,000/. after his death, to trustees, for the benefit of his intended wife, and their children ; with a proviso, that the sum thereby in- tended to be secured for the wife, should not bar her of what the husband might give or leave to her by (a) Davila v. Davila, 2 Vern. smid, 1 Swans. 211 ; Lee v. 72i ; Blandy v. Widmore, 1 P. D'Aranda, 1 Ves. 1 ; 3 Atk. 419 ; Wms. 324; Goldsmid v. Gold- Garthshore v. Chalie, 10 Ves. L G 2 84 PRESUMPTIONS OF LAW. deed, will, or otherwise. The husband died intestate ; and in conformity with the literal construction of the proviso, it was determined, that, in addition to the 10,000/. the widow was entitled to her customary and distributive shares in the residue («). In the other case, the husband covenanted, that, shortly after his death, 6000/. should be paid to trustees, as to 1500/. for the use of his wife absolutely, and as to the residue, in trust for her for life, remainder over. The husband dying intestate, his widow claimed to be entitled both to the 1500/. and to her distributive share of the personal estate ; and Lord Loughborough decided in her favour. The decree was grounded on the circumstance of the covenant being entire, and, that as part of the 6000/. engaged to be paid, that is to say, 4500/., was not given to the wife absolutely, and could not, therefore, be taken to be satisfied by her dis- tributive share, so neither could the remaining 1500/. {h). In cases of the satisfaction of covenants as dis- tinguished from performance, it was stated, that the intention of the party forms the only object of inquiry. Of these cases the characteristic circumstances are, — first, an engagement to do a certain act; and, secondly, the performance of an act, which, though different from that contracted for, may possibly have been intended in satisfaction of the engagement. The question, there- fore, to be determined is, whether the act done was or (a) Kirkman v. Kirkman, 2 C^) Couch v. Stratton, 4 Ves. Bro. C. C. 95. 391. See on this case, 10 Ves. 15. PRESUMPTIONS OF LAW. 85 was not meant to satisfy the covenant ; — whether the party intended to exercise his benevolence or to apply himself in discharge of the obligation. Now, in order to ascertain this point, equity institutes a comparison between the thing contracted to be done and the thing performed. If the act performed be equivalent to, and of the same nature with, that covenanted to be per- formed, it is concluded that the object was to satisfy the covenant ; if inferior in value, or different in kind, that a satisfaction was not intended. In the first place, then, it may be laid down, that where a man covenants to make a certain provision at his decease, for a wife or child («), and by deed or will gives or settles property, for the use of such ob- ject, equivalent to (b), or exceeding (c), the provision agreed to be made ; of a similar nature {cl), and equally advantageous, both in point of commencement and permanency {e) ; the gift or settlement will be ac- counted substitutionary, and preclude a claim to both benefits. From the general correspondence between the thing stipulated for, and that rendered, a presump- tion arises of the intention having been to satisfy the engagement. This presumption, we may add, is said to be stronger where the provision is made by deed, (a) See Heme v. Heme, 2 Vem. ^63, as stated in Mr. Raithby's 556; Bengough v. Walker, 15 note ; Corus v. Farmer, 2 Eq. Abr, Ves. 507. 34, pi. 1. (Z>) Wathen v. Smith, 4 Madd. {d) Brown v. Dawson, 2 Vem. 325; Brown v. Dawson, 2 Vem. 498; Free. Cha. 240, S. C 498 ; Free. Cha. 240, S. C. (e) Wathen v. Smith, 4 Madd, (c) Heme v. Heme, 2 Vem. 325. SG PRESUMPTIONS OF LAW. than where by will ; for, prima facie, a gift by will imports a bounty («). But the doctrine of implied satisfaction being founded on the correspondence in kind, and equality or superiority in amount of the provision made to that contracted for ; if the latter, in point of fact, be not equally beneficial in all respects, however superior in some, or be not of the same nature, the rule will be held inapplicable: the benefit conferred will be ac- counted merely a bounty, and the claimant adjudged to be entitled to both provisions. The points of cir- cumstantial difference prove the covenantor's disregard to the engagement he had entered into, and conse- quently the absence of intention on his part to fulfil it [h). Hence any of the following particulars may be suc- cessfully urged for the piu'pose of showing that a sa- tisfaction was not intended : First ; that the benefit bestowed falls short in value of that engaged to be furnished. For it is to be ob- served, that the supposition of a partial satisfaction will not be entertained. No man, who has the power to answer a claim of the kind in question, can be imagined to intend discharging it to a certain extent only. The greater probability is, that in making the particular provision, the fulfilment of the contract was not con- templated (c). (n) Weyland v. Wcylandj 2 (c) See Graham v. Graham, 1 Alk. 632, 63i. Yes. 'i62. (/>) Sec 1 Cox, \'J\-1 PRESUMPTIONS OF LAW. 87 Secondly; that the property given is not of the same kind as that agreed to be given. Thus land will not be accounted to go in satisfaction of money (a) ; nor an annuity in discharge of a sum in gross (b). For similar reasons, a covenant to pay a sum of money to be settled on the covenantee for life, remainder over, will not be satisfied by the legacy of a sum in gross, equal to that mentioned in the covenant. Nor will it alter the decision in such case, that, in consequence of the limitations over subsequent to the covenantee's life interest failing, the latter, under an ulterior disposition, becomes entitled absolutely to the sum ori- ginally agreed to be settled (c). Thirdly ; that the provisions contracted for and ac- tually made, differ in point of certainty, or in quantity of interest. A bequest of property dependent or de- feasible on a contingency {d), or a bequest for life only {e), will not therefore be taken as substituted for an interest of an absolute nature. And, on a like principle, it has been determined, that the bequest of a residue will not satisfy a claim under a prior cove- nant. A residue, it is true, may perhaps, in every respect, be as beneficial as the provision agreed for, (a) Richardson v. Elphinstone, {d) See Crompton v. Sale, 2 P. 2 Ves. jun. 463. See also Mason Wms. 553 ; also 1 Atk. 427-8. V. Cheyney, Finch, 42; Hooke v. (e) Perry v. Perry, 2 Vern. Grove, 2Eq.Abr.219;2P.Wms. 505; Forsight v. Grant, 1 Ves. QIQ^ jun.298. See also Alleynv.AUeyn, (b) See AUeyn v. AUeyn, 2 Ves. and Mathews v. Mathews, 2 Ves, 37, 37, and 635. (c) Devese v. Pontet, 1 Cox, 188, 191 ; Adams v. Lavender, 1 M'Clel. and You. 41, 51-3-4-6. 88 PRESUMPTIONS OF LAW. and even surpass it in amount : but that is uncertain. During a man's life time the vakie of his personal estate constantly fluctuates ; and at his death may be so re- duced as to make the residue below the sum necessary to constitute a satisfaction. Hence the improbability that by a gift of so precarious amount, the discharge of a fixed and definite duty could be intended (a). The bequest of a particular residue, as also a bequest of certain general divisions of the residuary estate, admit of the same construction (b). Fourtlii)' ; that the proA^ision alleged to be in sub- stitution does not connnence in benefit so early as that which the covenant stipulated for. This also makes a bequest accumulative, from the argument it affords of the party's inadvertence at the time to his former engagement {c). Fifthly ; that the gift resulted from another motive than design to fulfil the covenant (d) ; or that it was intended as an additional provision. An express confirmation of the agreement in a will, immediately followed by a bequest to the person entitled under (a) See 1 Ves. 521 ; 1 Cox, 192. (c) Haynes v. Mico, 1 Bro. (A) Devese v. Pontet, 1 Cox, C. C. 129 ; Adams v. Lavender, 1 188; Prec. Cha. 240, note by Mr. M'Clel. and You. 41. See also Finch, S. C But it is proper to Richardson v. Elphinstone, 2 Ves. observe that this rule does not jun. 4G3. hold with regard to portions : the (d) See Mathews v. Mathews, satisfaction of which zt'///, it seems, 2 Ves. 63.5; Hooke v. Grave, 5 be effected by a residuary bequest. Vin. Abr. 293 ; 2 Eq. Abr. 219. See infra Chap. VI T, PRESUMPTIONS OF LAW. 89 the agreement, has been held to come within the latter branch of this position (a). Parol evidence, it seems, is also admissible to repel a presumed satisfaction. So, on the other hand, to for- tify such presumption in answer to counter testimony, if in the first place justly afforded by the circum- stances {b). But parol evidence is not, as it is con- ceived, admissible originally and in the first instance to corroborate the presumption, and to show a spe- cific intention in the covenantor to substitute one pro- vision for another ; but only to meet other evidence which has previously been adduced in order to rebut the presumption (c). Much less can it be received to show that satisfaction was intended, when the facts of the case do not themselves lead to that supposition (d). For it is obvious in both of these cases, that to admit the parol evidence would be inconsistent with the prin- ciple, which forbids its reception when brought for the purpose of adding to, or varying, or explaining a writ- ten instrument {e). This rule, however, does not ex- clude any parol evidence, the object of which is merely to prove the facts necessary to raise a case of pre- sumption (J"). (a) Prime v. Stebbing, 2 Ves. topp v. Hartopp, 17 Ves. 184. In 409. this case the parol evidence went (b) See Peacock v. Glascock, 1 to show, that a portion provided Cha. Rep. 45 ; 6 Ves. 321, 397 ; by deed to be raised for a child 10 Ves. 10; 17 Ves. 184. moved from the father, who had (c) See Hartopp v. Hartopp, bequeathed to the same child a 17 Ves. 184. legacy of like amount. — On the (d) See 1 Bro. C C. 296. subject of parol evidence gene- (e) Hurst v. Beach, 5 Madd. rally, see the cases cited in rcla- 351. tion thereto in the last and five (/) See 6 Ves. 321 ; also Hai- following chapters. 90 PRESUMPTIONS OF LAW.. It may be remarked in conclusion, that as covenants in favour of a wife or children, are of the nature of debts, the rules established with respect to the satis- faction of debts to strangers are also applicable to, and are relied on as decisive in analogous cases of the kind under present discussion (a). The distinction between performance and satisfac- tion is not so strictly observed in regard to covenants for the settlement of real estate, as to covenants for the settlement of personal. For in cases of the former de- scription (which we now proceed to consider), the ful- filling of the covenant is, in some instances, held to be effected by an act partaking both of the nature of per- formance and satisfaction ; of performance, inasmuch as the act agreed to be done, though not completed, is executed in part ; and of satisfaction, because the party claiming receives substantially the benefit con- tracted for. Other cases, indeed, there are, which pro- perly and strictly may be denominated cases of satis- faction ; where though no decisive step towards per- formance has been taken, a provision in value equal, and in quality the same, is furnished. Cases of the mixed nature of performance and satis- (a) See in Devese v. Pontet, 1 portions ; for the same rules are Cox, 191; also Tolson v. Collins, not common to both. In the lat- i Ves. 4.83. The presumed satis- ter case the presumption in favour faction of debts is considered in the of satisfaction is not rebutted by- next Chapter. slight circumstances. See post Care must be taken to distin- Chap. VII. In the former any guish between cases on the satis- circumstance will be laid hold of faction of debts to children and of to evade it. See the next Chapter. PRESUMPTIONS OF LAW. 91 faction are, where a covenant is entered into for the settlement of land by a person who does not possess land at the time ; or for the purchase and settlement of land, whether the covenantor possess any land or not (the words of the covenant in the latter case not extending to land in possession) ; and the covenantor afterwards purchases an estate, but neglects to make the necessary settlement {a). Here, from the nature of the contract, compared with the act performed, an inference obviously arises, that the purchase was made with a view towards completing the agreement. On the force of this inference a court of equity will supply the circumstance omitted, and will decree the estate purchased to belong to the person entitled under the covenant, and so wholly, or in part, to satisfy his claim {h). The leading authority on this subject is Wilcocks v. Wilcocks (c), which came before Lord Cowper in 1706. There a man, before marriage, covenanted to purchase lands worth 200/. a year, and settle them on his wife for life, for her jointure, remainder to the first and (a) See 10 Ves. jun. 9 ; 2 Ves. and settle, specifically binds an 568. That a covenant to purchase estate then in the seisin of the co- and settle land, is not a lien upon venantor, is, in some measure, land of which the party is owner doubtful ; though the better opi- at the time, or which afterwards nion seems to be that it does not. descends to him, see Forr. 92; See Roundell v. Breary, 2 Vern. also Davys v. Howard, 6 Bro. 482; Freemoult v. Dedire, 1 P. P. C. by Toml. 370. The same Wtus. 429 ; Gardner v. Marquis rule, as it is conceived, applies to Townshend, Coop. 301. land taken by devise, or under the (Z>) See 1 Cox, 16G ; Coop. 303 ; limitations of a settlement. Whe- 10 Ves. 516, 520. ther a covenant merely to convey (c) 2 Vern. 558. 92 PRESUMPTIONS Ol' LAW. other sons of the marriage, sucessively, in tail. The husband purchased lands of the stipulated value, but made no settlement. At his death, they descended to his eldest son ; and on a suit instituted by him for spe- cific performance of the marriage articles out of the per- sonal estate, they were adjudged to go in satisfaction. In this case, the purchased estate devolved, by ope- ration of law, though for a different interest, on the same person, as it would have done by express limi- tation, had the projected settlement been executed : but authorities are not wanting to show, that though the estate be carried by descent to another than the party claiming under the covenant, the latter notwith- standing will be entitled, and the heir accounted to take as trustee only. Thus, where a covenant was entered into for the purchase and settlement of land on the wife of the covenantor during widowhood, re- mainder to the first and other sons in tail, in the usual manner, and the husband made the requisite purchase, but suffered the lands to descend to his son ; the de- visee of the son (he having died shortly after his father) was decreed to settle the estate on the widow for life, remainder over, according to the terms of the agreement (a). And again, where it had been agreed that the settlement should be made upon the widow, for life, remainder to the children equally, the eldest son and heir was directed to convey the land in the man- ner pointed out by the articles (b). (a) Deacon v. Smith, 3 Atk. ral v. Whorwood, 1 Ves. 534,540, 323. See also Lechmere v. Lech- et seq. mere, Forr. 80 ; Attorney-Gene- (b) Sowden v. Sowden, 1 JBro. C. C. 582. PRESUMPTIONS OF LAW. 93 In Tooke v, Hastings (a), it was held, that the same rule which converts the heir at law into a trustee for the parties claiming under a covenant of this nature, applies also to the case of a devisee ; though how far this position be tenable, where there are assets to satisfy the engagement without resort to the lands purchased, appears open to question {b). The very- act of disposing by will is certainly contradictory to the presumption. A covenant to purchase and settle is likewise dis- charged by a purchase in the name of the object to be provided for ; the indication of intent to perform the covenant in this case being still stronger than in the instance of a purchase completed by the covenantor in the ordinary way (c). It appears also, that the discharge of an encum- brance affecting a family estate, which is afterwards permitted to descend to the person engaged to be pro- vided for, comes within the same principle, and consti- tutes a case of mixed performance and satisfaction. Such at least seems to be the principle furnished by the decision of the House of Lords in Davys v. Howard (d). In that case, a sum of 7,500/. was vested in trustees, upon trust to lay it out in the purchase of land, and settle the land, when bought, on J. Davys for life, re- mainder subject to an annuity by way of jointure, to his first and other sons in tail. The trustees did not make a purchase pursuant to the agreement, but al- lowed Davys to get the money into his hands. After (a) 2 Vern. 97. (c) See AVilks v. Wilks, 5 Vin. (i) See 3 Atk 329 ; 1 Ves. Abr. 293 ; 2 Eq. Abr. 35. 974-5. (d) 6 Bro. P. C by Toml, 370. 94 PRESUMPTIONS OF LAW. Davys's death, the eldest son made a claim on his per- sonal estate to the amount of the money so received. But it being shown, that Davys had paid off several large encumbrances charged on a family estate, which descended to the son, exceeding in amount the money he had received of the trustees, their discharge was regarded in the light of a purchase ; and it was de- creed that the disencumbering of the estate was a sa- tisfaction of the debt due from the father to the trust. Cases of satisfaction, properly speaking, generally exhibit, first, the circumstance of the covenantor pos- sessing land at the time of making the contract, or of his acquiring it afterwards by descent, devise, or settlement ; and secondly, that of his suffering the land so possessed, or subsequently acquired, to descend, or of his giving it by will or deed, but without noticing the obligation, to the person for whose provision the covenant engaged. In these cases, no act done posi- tively with a view to fulfil the obligation appearing, the idea of performance is necessarily excluded. But if the estate devised, or permitted to descend, be equi- valent in value, and similar in kind to that agreed to be given, the courts will presume that the party in- tended in this manner to satisfy his engagement (a). From the correspondency indeed of the provisions, it is but reasonable to suppose, that such object was pre- sent to the mind and influenced the conduct of the covenantor. (a) Peacock v. Glascock, 1 Cha. Wilks v. Wilks, 2 Eq. Abr. 35 ; Rep. 45 ; Bridges v. Bere, 2 Eq. Mose. 8 ; 2 Ves. jun. 356 ; 3 P. Abr. 34., pi. 2; Streatfield v. Wms. 225. Streatfield, Forr. 176. See also PRESUMPTIONS OF LAW. 95 As the intention to satisfy a covenant is inferred, in part, from the circumstance of the estate obtained through the disposition or permission of the party- being equivalent to that agreed to be settled, if in reality it be less valuable, such intention cannot then be supposed, and the presumption failing a claim may be made to both provisions («). But in cases partak- ing of the nature of performance a different rule ob- tains : there the intention being deduced from ano- ther circumstance, namely, the single fact of a pur- chase having been made, the amount in value of the purchase is not adverted to ; so that though the land be of less worth than the sum agreed to be laid out, that will not prevent its being taken in part perform- ance. And this is founded in reason. To meet with an estate of nearly the value required may be very difficult, and cannot, at all events, be confidently ex- pected. If therefore an eligible estate, though smaller than what is sought for, offers, it will not be over- looked ; and this, until other purchases be made, ex- hausting the entire fund, will of course be retained in the seisin of the party, so that the whole of the estates purchased may be settled together (b). In like manner, disregard to small and unimportant circumstances, though in points of express require- ment, is not sufficient to repel a constructive perform- ance. Should the covenant, for instance, be to pur- (a) See 3 P. Wms. 226 ; Forr. Eq. Abr. 35 ; Deacon v. Smith, 3 92 ; 3 Atk. 326. Atk. 323 ; Lewis v. Hill, 1 Ves. (b) Lechmere v. Lechmere, 274 ; Att.-Gen. v. Whorwood, ib. Forr. 80 ; 3 P. Wms. 211 ; Wilks .540 ; Hucks v. Hucks, 2 Ves. 568. V. Wilks, 5 Via. Abr. 293; 3 See also 10 Ves. 9. 96 PRESUMPTIONS OF LAW. chase with the consent of certain interested parties, a purchase made without such consent will, notwith- standing, be taken to fulfil the covenant (a). So if the covenant be to pay money to trustees to be by them laid out in land, and the covenantor purchase himself, the difference in the agent will not be considered ma- terial (b). In these cases, the circumstances prescribed, — the consent of the parties interested in the first, and the intervention of the trustees in the second, — are regarded merely as expedients to prevent improper purchases : wherefore, if the lands bought be not im- proper, but adapted to the ends of the intended settle- ment, as the principal object designed from compliance with the forms required is then attained, and as the covenantor himself might have viewed the matter in this light, his non-compliance furnishes no argument adverse to the conclusion, that his object was to com- plete the engagement. Neither is the presumption of intent to perform a covenant rebutted by the fact of an antecedent mort- (a) Lechmere v. Lechmere, 3 wife's consent, to lay out the trust P. Wms. Sill; Forr. 80, 92; 1 money in land. The husband ob- Cox, 166. tained the trust money from the {b) Sowden v. Sowden, 1 Bro. trustees, and purchased a real C.C. 582; 1 Cox, 165; 3 P. Wms. estate. This estate was held not by Cox, 228, n. ; AVilson v. Fore- to be subject to the uses of the man, Dick. 593 ; more fully stated settlement ; there being no posi- 10 Ves. 519, 520; Davys v. How- tive stipulation that land should ard, 6 Bro. P. C. by Toml. 370. be purchased, but only a proviso. Care must be taken to distinguish that the trustees might, if they between these cases and that of thought fit, invest the money in Lench V. Lench, 10 Ves. 511. In land, such investment being with the latter case, trustees of a money the consent, not of the husband, .settlement had power, with the but of the wife alone. PRESUMPTIONS OF LAW. 97 gage remaining on the purchased estate; nor again, as it should seem, by the estate being mortgaged at the time for a sum borrowed to enable tlie buyer to com- plete his purchase {a). An option to settle a rent charge instead of land, if not acted on, will also be thought insufficient to destroy the presumption, which arises from a purchase being actually made (/>). But in order that a purchase may go in performance or satisfaction of a covenant, it is necessary that the estate be of a nature corresponding with the terms of the stipulation, and suited to the end proposed. Where local situation or the species of tenure is particularized, a departure from the agreement in either of these points will, it should seem, exclude the presumption, that the party intended, by such a purchase, to com- plete the contract. It would be against probability to suppose, that land situate in one county should be bought with a view to discharge an obligation for pur- chasing land in another ; or that copyhold or leasehold estate should be bought in satisfaction of a covenant for the purchase of freehold. Where the locality or tenure, however, is not specified, the question must, it is conceived, be decided by the fitness or unfitness of the property to meet the purposes intended. A pro- vision, for example, to be made for a wife during wi- dowhood, and then for the children in equal shares, may reasonably enough be construed as admitting of being fulfilled by a purchase of leasehold property. (a) Deacon v. Smith, 3 Atk. (b) Ibid; and Tooke v. Has- 328. tings, 2 Vern. 97. H 98 PRESUMPTIONS OF LAW. But if the object be a strict settlement, so that the lands purchased should become part of a family estate, lands of leasehold tenure at least {a), and in some in- stances copyhold, could scarcely be so taken. Lease- holds are in many particulars incapable of the modifi- cations of which freeholds are susceptible, and they devolve in a different line of representation ; and copy- holds, from the customs peculiar to the manors whereof they are held, may be equally unadapted to answer the purposes of the projected settlement. Lord Hardwicke is said to have expressed a doubt whether copyholds could at all go in performance of a covenant for purchasing, because of the general nature of the tenure, and the liability to forfeiture {h). But the question seems not to turn on these circumstances. It rather depends on the fact of the purchase corre- sponding or not with the terms and intent of the agreement. If there be not any positive inconsis- tency in this respect, the engagement may properly enough be accounted fulfilled by the gift or descent of copyhold (c) : though should such inconsistency really exist, an opposite decision must necessarily fol- low. And in Pinnell v. Hallett {d) accordingly, it was held that a copyhold estate could not be taken in satisfaction of a covenant to settle land, of which the wife was to be made tenant for life, without impeach- ment of waste ; and that being of the nature of Borough (a) 3 P. Wms. 225 ; Forr. 92. ble v. Boghurst, 1 Swans. 309, (Z>) 1 Ves. 541. and the decree, lb. 580. (c) Wilks V. Wilks, 5 Vin. Abr. (d) Amb. 106 ; 2 Ves. 276. 293 ; 2 Eq. Abr. 35, S. C. ; Preb- PRESUMPTIONS OF LAW. 99 English, descendible to the youngest son, it was inap- propriate to the purposes of a settlement, by which the eldest was to be made tenant in tail. A rent charge comes sufficiently within the descrip- tion of an estate of inheritance to go in performance or satisfaction of a covenant to settle property of that nature {a). But houses in cities are not held to fall within the same rule. Their liability from so many causes to destruction renders them unfit to answer in terms what is clearly meant to be in its nature inde- structible {h). Farm-houses, on the other hand, are an exception to this principle, since they are a neces- sary appendage to landed property (c). Reversions expectant upon lives are clearly incapa- ble of being applied in discharge of covenants of this sort, as the provision contracted for is intended to be of immediate, not of remote benefit {d). The purchase of contingent interests is still less capable of being so construed {e). In cases properly of satisfaction the provision made must correspond with that agreed upon both in qua- lity and in quantity of interest ; otherwise, the former will be adjudged a bounty. Thus a pecuniary legacy will not prevent a claim to specific performance of a (a) Middleton v. Pryor, Amb. {d) Forr. 92 ; 3 P. Wms. 225. 393. Sed vide 3 Atk. 328. (b) Pinnel v. Hallet, 2 Ves. 276 ; () See on this point, 2 Salk. Pole v. Lord Somers, 6 Ves. 324- 508 ; 2 P. Wms. 343 ; 3 ib. 355. 6 ; Wallace v. Lord Pomfret, 1 1 (c) See Fowler v. Fowler, 3 P. Ves. 542, 547, et seq. See ante Wms. 355. p. 89. 1 114 PRESUMPTIONS OF LAAV. disliked the suit, he could not discharge it (a). But on the same point coming before the Lord Keeper Wright, in the following year, the decision in the last case was overruled (b). The principle afforded by this determination by the Lord Keeper has been ever since followed and recog- nized (c). And, to adopt the words of Lord Hard- wicke, very few cases can possibly arise, in which a father will not be presumed to pay a debt he owes his daughter, when in his life time he gives her on mar- riage a larger sum than that he owes ; for it is most unnatural to suppose that he should choose to leave himself a debtor to her, and remain subject to an ac- count (d). (a) Chidley v. Lee, Prec. Cha. 321 ; Seed v. Bradford, 1 Ves. 228. 501 ; Chave v. Farrant, 18 Ves. (b) Macdowell v. Halfpenny, 2 jun. 8. Vern. 484. {d) See 2 Atk. 522. (c) Wood V. Briant, 2 Atk. PRESUMPTIONS OF LAW. 1)5 CHAPTER VII. PRESUMPTIONS OF LAW CONTINUED. Of the presumed Satisfaction of Portions hy Legacies, or Second Portions. The leaning of the courts against double provisions has already been casually noticed. This principle, as respects children, appears to have arisen from the iin- likelihood of a father's intending, without particular reason, to give a larger fortune to one child than to another, each having by nature an equal claim to his bounty {a) ; and in cases where a family estate is set- tled on an eldest son subject to charges in favour of the younger children, from the probability of the fa- ther's meaning to disencumber the estate for the benefit of such eldest son, the future head and support of his house {h). This latter reason seems also to apply in favour of claimants in remainder, to whom the estate is limited for default of male issue (c). On these grounds, whenever a parent, or person standing in loco parentis, after making a settle- ment which secures portions to his children or the (a) See 1 Atk. 427. (0 See 1 Ves. jun. 525; 6 Ves. \h) See 3 Atk. 98; 1 Ves. 520. jun. 398. I 2 116 PRESUMPTIONS OF LAW. other objects of his care, gives by will («), or advances in his life-time {h), sums equal to, greater, or less (c), than those before secured, such legacies or advance- ments, unless incidental circumstances oppose the ap- plication of the rule, are construed to go in entire or partial satisfaction. Indeed, as both provisions are the result of the same motive, and proceed from the same person, an inference not unfairly arises, that the benefits conferred were designed to compensate those before only secured {d). This principle also extends to the case of portions being given by a second settle- ment, similar to portions provided to be raised by a (a) Pile V. Pile^ 1 Cha. Rep 199 ; 1 Eq. Abr. 204, p. 5, S. C. Blois V. Blois, 2 Cha. Rep. 162 2 Freem. 46 ; 2 Vent. 347, S. S. Bruen v. Bruen, 2 Vern. 439 Prec. Cha. 195; 2 Freem. 254, S. C. ; Copley v. Copley, 1 P. Wms. 147 ; Ackvvorth v. Ack- worth, 1 Bro. C. C. 308, n. ; Duke V. Duchess of Somerset, ib. 309, 11. ; Finch v. Finch, 4 Bro. C. C. 38 ; 1 Ves. jun. 534. See also 1 P. Wms. 299; 3 Ves. 528-9; 4 Ves. 491; 9 Ves. 427; M'Clel. * Rep. 358. {b) Smith V. Lord Camelford, 2 Ves. jim. 6!)8, 713; Burgess v. Mawbey, 10 Ves. 319. The rule, as it should seem, extends to the case of illegitimate children, John- son V. Smith, 1 Ves. 313 ; though only, it is probable, where the father clearly shows, that he con- siders himself, with respect to the object of his bounty, to stand in that relation. Coop. C. C. 281 ; 19 Ves. 411, 412. It is worthy of remark, that the principle under notice was, on one occasion, car- ried beyond the case of parent and child : A testamentary bounty to a stranger was declared to be satis- fied by a subsequent provision by settlement : Williams v. Duke of Bolton, Dick. 405. And in the same case Lord Camden said, that where a provision is made for a wife by one deed, and a second portion or provision is afterwards made for her by another, but is not ex- pressed to be in addition to the first, the presumption is, that the latter was intended in satisfaction. The authority of this case and dic- tum is, however, very question- able. See 2 Bro. C C. 518 ; Coop. 281 ; 19 Ves. 411, 412. (c) Warren v. Warren, 1 Cox, 41 ; 1 Bro. C. C. 305, S. C; Jes- son v. Jesson, 2 Vern. 255 ; 1 P. Wms. 299 ; 3 P. Wms. 247 ; 1 Bro. C. C. 310. But see 2 Fonb. on Eq. 5th edit. 326 ; and Savile v. Savile, Sel. Cha. Ca. 32. {d) 1 P. Wms. 299 ; 3 Atk. 98, PRESUMPTIONS OF LAW. 117 first ; in which case a double security merely is held to be provided {a). It will not fail to be observed, that, contrary to the rule in cases on the satisfaction of debts, legacies or advancements, though of smaller amount, are held to go in part satisfaction of portions. The cause of this is the different grounds on which the presumption in the two cases rests ; the inference, in the case of debts, being drawn from the correspondence in point of benefit between the gift and the demand ; in that of portions, from the identity of motive. On this latter principle, indeed, it seems to have been thought, that a legacy even less than a portion, but payable at an earlier time, and on the whole probably an equiva- lent, might in some instances amount to a satisfaction in toto {b). Delay in the time for payment of a legacy (c), or portion subsequently secured {d), does not alter the legal implication. The end proposed both in the original settlement and in the subsequent gift being the same, namely, the child's provision, an in- tention in the parent to bestow a double fortune can- not, it is held, be concluded from a variation so insig- (a) Keywick v. Thomas, Gilb. 147; Sparkes v. Cator, 3 Ves. Eq. Ca. 65, cited ; Thomas v. Ke- 530, 535. See also 3 Atk. 98 ; 1 mys, 2 Vera. 348 ; Watson v. Earl Bro. C. C. 310 ; 2 Bio. C. C. 396 ; of Lincoln, Amb. 325 ; Savage v. 3 Ves. 466. Carrol, 1 Ball and Be. 265, 276. {d) Jesson v. Jesson, 2 Vem. (Z.) Byde v. Byde, 2 Eden, 19 ; 255 ; Thomas v. Kemeys, ib. 348 ; 1 Cox, 44 ; 1 Bro. C. C. 309, n. Gilb. Eq. Ca. 65, cited, S. C. (c) Copley V. Copley, 1 P. Wms. 118 PRESUMPTIONS OF LAW. nificant. A difference in the amount of maintenance during infancy is likewise accounted immaterial {a). Upon the principle that a legacy or advancement of inferior amount will pro tanto satisfy a previous por- tion, and that a variation in the time of payment is unimportant, it has been determined, that the bequest of a general or particular residue will wholly or in part, according to circumstances, prevent a claim to a preceding provision by settlement {b). The answer to the objection, that several years may elapse before the testator's personal estate be got in, and the residue ascertained, is, that the question of satisfaction is in the mean time suspended ; that the party may imme- diately insist on his right to the portion ; and that when the value of the residuary estate is known, then, but not sooner, comefs the time for electing between the provisions by the will, and by the settlement (c). A distributive share under an intestacy would proba- bly have the same effect, with regard to satisfaction, as a residuary bequest. As a general rule it is therefore seen, that slight variations between the original portion and the subse- quent provision furnish no decisive inference against a presumed satisfaction. In like manner, if the other requisite circumstances concur for presuming a por- tion to be satisfied by a legacy, little attention will (a) Keywick v. Thomas, Gilb. C. C. 63; 2 Bro. C. C. 394; see Eq. Ca. 66, cited. also 15 Ves. 513. (b) Rickman v. Morgain, 1 Bro. (c) 2 Bro. 0. C. 397; M'Clel. Rep. 360. PRESUMPTIONS OF LAW. 119 be paid to small peculiarities in the mode in which the gift is made, although the testator's meaning be there- by rendered generally obscure, and the bequest made capable of a construction favourable to the idea that the legacy was intended as an independent bounty. Hence, where on marriage part of the wife's fortune was paid to the husband in consideration of an an- nuity secured to her after his decease, and the re- mainder, subject to life interests to the husband and wife, was settled on the children in such propor- tions as the wife should appoint ; and afterwards, the husband, by will, directing his wife to relinquish her right under the settlement, gave to trustees a sum much larger than the fortune she brought, in trust to pay the interest to her for life, and the principal as she should appoint among the children ; a question being raised, whether the portions to the children were meant to be satisfied by the bequest, inasmuch as the direc- tion for relinquishment was confined in terms to the wife, it was determined in the affirmative ; — the pro- vision under the will was larger than that under the settlement, so that, prima facie, the case fell within the general rule, and there was no decisive manifestation of contrary intent to hold it an exception («). So, where the only child of a first marriage was en- titled under a settlement to 2,000/., and the father by will gave him a share in certain powder works, and such additional sum of money as together with the share would make up a fortune of 10,000/. ; it was held, that as a sum exceeding 2,000/. became payable (a) Moulson v. Moulson, 1 Bro. O, C. 82. 120 PRESUMPTIONS OF LAW. under the direction of the will, such sum should be taken in discharge of the portion, notwithstanding an objection on the score of the testator's intention drawn from his ignorance of what might be the value of the share in the powder works at the time of his death, and so whether or not any money might become due to the son under the provisions of the will {a). It is also observable, that although a father, between the periods of making a settlement for his children, and of advancing them on marriage or giving them le- gacies by will, materially enlarges his fortune, — whence an argument might be drawn of a desire to increase their portions, — yet unless an intention to that effect be clearly shown, the general rule will prevail (b). As an uncertain recompense, however, cannot be construed to satisfy a certain demand, a legacy or por- tion given to a child on a contingency will not satisfy a portion to which the child is entitled absolutely (c). The converse of this proposition seems also to be true : a portion to be raised on a contingency, particularly if remote, will not be discharged by an immediate pro- vision. Thus, where, in a marriage settlement, a term was limited, on failure of issue male, to raise a sum for daughter's portions, and there was issue of the mar- riage a son and two daughters ; legacies given by the ^ (a) Bengough v. Walker, 15 (c) J^ellasis v. Uthwaite, 1 Atk. V'es. 507. See also HinchclifFe v. 426. See also Jeacock v. Falk- HinclifFe, 3 Ves. 516 ; Sparkes v. ener, 1 Bro. C. C. 295 ; Hanbury Cator, ib. 530. v. Hanbury, 2 Bro. C C. 352, and (b) See Moulson v. Moulson, 1 per Lord Thurlow, p. 360. Bro. C. C. 82; and HinchclifFe v. HinchclifFe, 3 Ves. 516. PRESUMPTIONS OF LAW. 121 father to his daughter in the son's life-time, were decreed, in Dom. Proc.^ not to prejudice their rights under the settlement, though the son afterwards died unmarried {a). In order that a subsequent provision may be taken to compensate a preceding, it is further necessary, that both should be ejusdem generis, — that they should correspond generally in their nature, and be attended with similar results. On this ground, it has been determined, that a gift or devise of land will not de- feat a title to a pecuniary portion. The devolution and legal consequences of land and money are differ- ent : rights which result from the one do not arise from the other. The portion, for example, of a daugh- ter who marries^ belongs, on being reduced into pos- session, to her husband absolutely ; and survives to him whether reduced into possession or not : land, on the contrary, subject to the husband's marital right, belongs to the wife, and on her death descends to her heir at law {h). For similar reasons, a beneficial lease will not, it should seem, extinguish a claim to a por- tion (c). But a legacy of a sum in gross, is held to satisfy an annuity secured by settlement {d) ; and Go- vernment, East India, or South Sea Annuities, a por- tion of sterling money (e). (a) Duffield v. Duffield, 2 Vera. ford, 2 Ves. jun. 698, 713, was a 258 ; 3 Freem. 185 ; 2 Eq. Abr. case of election. 204, S. C. Sed vide Jesson v. (c) Grave v. Lord Salisbury, 1 Jesson, 2 Vern.255. Bro. C. C. 425. (J)) Chaplin v. Chaplin, 3 P. {d) See Bellasis v. Uthwaite, 1 Wms. 245 ; Davie v. Hooper, 6 Atk. 426. Bro. P. C. by Toml. 51 ; Bengough (t) Pughe v. Duke of Leeds, I V. Walker, 15 Ves. 507, 512; 1 Bro. C. C. 67, n. ; 6 Bro. P. C. by Atk. 428. Smith v. Lord Camel- Toml. 125. 122 PRESUMPTIONS OF LAW. As the general rule is in part founded on the cir- cumstance that both portion and gift move from the same person, it is obvious that where the latter, though taken immediately through the father, is in point of fact derived from another source, the rule fails of application, and the gift and portion being really in- dependent of each other are both payable. Ac- cordingly where a man, whose estate was charged with portions for his younger childi-en, and who had also a power over his wife's estate to be exercised for their benefit, appointed by will a sum to be raised out of the wife's estate, and paid to an only daughter in satisfaction of the charge on his own property, Lord Hardwicke held the declaration as to satisfaction to be void (a). Where an intention that the provisions shall be ac- cumulative clearly appears, there also the prima Jiacie satisfaction cannot be sustained. So where the legacy or second portion is given diverso intuitu, — on a sepa- rate and distinct consideration. Thus, it has been held, that a portion advanced on marriage, in substitu- tion of an annuity before given by will, did not preclude a right to a portion derived under a settle- ment (b). Extrinsic evidence, moreover, is here as in other cases of presumption admissible to rebut the con- structive satisfaction. And for this purpose parol de- clarations by the parent seem to be sufficient. Simi- (a) Roberts v. Dixall, 2 Eq. (h) 10 Ves. 319. Abr. 668, p. 19. See also Bar- nard, 156, 157. PRESUMPTIONS OF LAW. 123 lar testimony, we may notice, is also admissible to fortify the presumption when contested (a). It is not unusual, in settlements or other instru- ments providing portions for children, to insert a clause directing that if the father advance his childi-en before their portions become due, such advancement shall be taken in total or partial discharge of the ori- ginal provision. A question frequently arises — What species of preferment are within the meaning of clauses of this nature ? Although no rules of universal ap- plication can be given with a view to meet questions of this kind, each case necessarily depending on the par- ticular wording of the stipulation, yet it may not be useless to show the construction which has been adopt- ed in particular instances. A gift of land, it appears, is not considered with- in the meaning of a proviso which mentions only advancements by money. In Chaplin v. Chaplin (Z>), the proviso annexed to a term for raising daughters' portions was, that if the father should by deed or will give to his daughters equivalent sums of money, such sums should be accounted to go in satisfaction. The father left land to his daughters of the required value, and it was held they were entitled to both provisions. A gift of lands in reversion yielding no present pro- fit will not be construed as falling within the import of the expression " real estate," so as to frustrate a (a) PUe V. Pile, I Cha. Rep. Bro. C. C. 61 ; 1 Ves. jun. 100. 199 ; 1 Eq. Abr. 204, pi. 5, S. C. ; See further on the subject of parol HinchclifFe v. HinchclifFe, 3 Ves. evidence in the last two and the 516. See also 6 Ves. 'A21, 398 ; three following- Chapters. 15 Ves. 5U ; 1 Bro. C. C 296 ; 3 {b) 3 P. Wnis. 245. 124 PRESUMPTIONS OF LAW. claim to portions which are liable to be satisfied by an advancement of that description (a). But a con- trary rule, it should seem, would hold in regard to re- versions to which rents presently payable are incident. Where portions are secured to children absolute- ly at twenty-one with benefit of survivorship if any die under age, a devise to them of land in tail, with immediate remainder over to a stranger in such a manner as to exclude the implication of cross re- mainders among the children, will not be held to answer the intention of a proviso, which directs that the portions shall not be raised if an estate of inherit- ance of equal value descend from or be given to them by the father. The principal reason for which is, that in case any of the children died under age, the sur- vivors would not obtain the quantum of provision in- tended to be secured to them {b). Hence it appears, that the general design of the parties in a settlement, as well as the strict import of the proviso, must always be consulted. Generally speaking, however, a devise in tail is within the meaning of an advancement by a gift of lands of inheritance (c). And as the courts are usually very liberal in their exposition of clauses in restraint of double portions, where the intent of a proviso is sufficiently clear, they will not lay a stress upon the strict and literal interpretation of it; but if the act (a) Savile v. Savile, 2 Atk. 458, (b) Savile v. SavUe, 2 Atk. 458; 463. Sed vide Watson v. E. of Amb. 328, cited. Lincoln, Amb. 325 ; and Goolding- (c) Watson v. Earl of Lincoln V. Haverfield, M-^Clel. 345. Amb. 325, 328. PRESUMPTIONS OF LAW. 125 contemplated be done substantially, though not specifi- cally, will abstain from making a construction which would eventually defeat the object of the proviso. Thus, in a case, where a settlement making a provision for younger children contained a declaration, that if the father should give portions to such children on their marriage or should otherwise provide for them, those portions or provisions should go in discharge of their claims under the settlement ; the declaration was held to extend to advancements made to the children on other occasions than marriage, though the primary sense of the words " or otherwise provide for them " was conceded to be the making of a provision by other means than money,— as by a gift, for example, of real estate {a). On the same principle it has been held, that the object of a proviso directing the portions not to be raised, in case the father in his life-time or at the time of his death should give money or lands of tan- tamount value to the children, extended to the be- quest of a residuary personal estate. The objections taken were the uncertainty as to the time at which the bequest might commence in enjoyment, and the fact of its consisting neither of money nor of land {h). But the principle has been carried still further; for it has been decided, that a provision by will comes sufficiently within the meaning of an advancement in the parenfs life-time, to prevent the raising of portions (a) Leake v. Leake, 10 Ves. C. C. 63 ; 2 ib. 394. See also 1 5 47T, 488. Ves. 513. (/>) Richman v. Morgan, 1 Bro. 126 PRESUMPTIONS OF LAW. for children who may be so preferred. This point was on several occasions strenuously controverted ; but the opposition has only served more fully to establish the rule {a). It must however be observed, that a distributive share under an intestacy is not within the import of an advancement in the parent's life-time (b). For the same reason that the bequest of a residuary personal estate has been held to come within the scope of a proviso declaring that gifts of land or money should go in discharge of pecuniary portions, it was decided in the case of Pughe v. Duke of Leeds (c), that a proviso expressed in similar terms prevented a gift of East India Annuities from being taken as an addi- tional provision. We may add, that where a proviso of the nature under consideration allows the father, on advancing his children, to declare that the advancements shall not go in satisfaction of the portions raiseable imder the settlement; not only is the father, in such case, at liberty to direct that a child advanced shall notwith- standing receive his full portion, but he has also a right to consider himself the purchaser pro tanto of that portion, and to declare in effect that it shall re- main a charge on the estate for his own benefit {d). (o) Leake v. Leake, 10 Ves. (c) 6 Bro. P. C. by Toml. 125 ; 477, 489; Onslow v. Michell, 18 1 Bro. C. C. 67, n. S. C. Ves. 490 ; Goolding v. Haverfield, (rf) Noel v. Lord Walsingham, M'Clel. 345. 2 Sim. and Stu. 99. {b) Twisden v. Twisdeii, 9 Ves. 413. PRESUMPTIONS OF LAW. 127 CHAPTER VIII. PRESUMPTIONS OF LAW CONTINUED. Of the 'presumed Ademption of Legacies to Children hy subsequent Portions. Every provision made by a parent in favour of a child, whether it take effect in the life-time of the parent or after his death, is presumed to have been made with immediate reference to the natural obliga- tion he is under to provide for those who stand in such relation to him. And as the parent is the only person competent to estimate and balance between the relative claims and necessities of his children, he is regarded as the proper judge of what will satisfy the obligation. If this be effected by the gift of a legacy, the bequest is taken as ascertaining the whole amount of the pro- vision intended to be made for the particular child, and as completely discharging the parental duty. On these considerations is founded the rule to be treated of in the present chapter : which rule is, that if a parent, or one in loco parentis (a), after making a (a) It may not be amiss here they are those who assume the more at large to consider, who parental character ; but this must come within the description of very clearly appear. Where an persons standing in loco parentis. orphan is received under the care Generally, it may be laid down, of, or is supported by a relative, as 128 PRESUMPTIONS OF LAW. pecuniary provision for a child by will, advance to such child a portion on marriage («), or a sum of money a grandfather (2 Atk. 518), bro- ther (1 Ball and Be. 298), or uncle (2 Atk. 492), the latter evidently takes on himself the office of a parent ; and, consequently, a legacy given by him to the chUd will be held satisfied by a subse- quent advancement. A similar line of conduct pursued towards a young person by a stranger will also, it is conceived, in every point bear the same construction. Where the father is alive and maintains his child, or the father being dead the child is provided for by a particular relative or friend, in such cases, to bring the donor of the legacy and subse- quent portion within the descrip- tion of a person in loco parentis, it must be shown, that he so re- garded himself: and this, it should seem, can only be done from the terms in which the bequest is made, or from accompanying ex- pressions indicative of the testa- tor's motive. See 2 Bro. C. C. 516, 517, 518. If given in terms as a portion or provision for the chUd, the in- ference is that the testator meant to assume on that occasion the parental character ; and a portion afterwards given will, therefore, be held to adeem the legacy. But unless some such marked indica- tion of the testator's meaning ap- pear, the claim to both benefits may be sustained ; and whether, in the latter case, the testator be a relative of the child's (Brown v. Peck, 1 Eden, 140), or a stranger (Powell v. Cleaver, 2 Bro. C. C. 500; Shudal v. Jekyll, 2 Atk. 516; also see 2 Atk. 492; Dick. 407 ; 18 Ves. 153), is perfectly im- material. The law not recognising the re- lation of father and natural child, the former, so far as concerns the present inquiry, stands on the same footing as an entire stranger. So that unless the father, in pro- vidmg for the child by will, either directly or indirectly acknowledge the relationship between them, a presumption of intent to satisfy and adeem the legacy by a subse- quent portion or advancement, will not be entertained. Ex parte Pye and Dubost, 18 Ves. 140; Wetherby v. Dixon, 19 Ves. 407 ; Coop. 279, S. C. ; see also Grave V. Lord Salisbury, 1 Bro. C. C. 425; Smith v. Strong, 4 Bro. C. C. 493; Trimmer v.Bayne, 7 Ves. 508. (a) Hale v. Acton, 2 Cha. Rep. 35 ; Jenkins v. Powell, 2 Vern. 115; Elkenhead's case, ib. 257, cited ; 1 Stra. 236, cited, S. C. ; Hartop V. Whitmore, Prec. Cha. 541; 1 P. Wms. 681 ; 1 Bro. C. C. 307, n. S. C. ; Pepper v. Winyeve, 8 Vin. Abr. 158, pi. 10; and Calmady v. Calmady, there cited; Scotton V. Scotton, 1 Stra. 235 ; Tapper v. Chalcroft, 2 Atk. 492, cited; Biggleston v. Grubb, 2 Atk. 48 ; Watson v. Earl of Lin- coln, Amb. 325 ; Ellison v. Cook- son, 3 Bro. C. C. 61 ; 1 Ves. jun. 100, S. C. ; Trimmer v. Bayne, PRESUMPTIONS OF LAW. 129 for preferment in business («), such portion or sum, supposing it equal with or greater than the testa- mentary bounty, is prima facie an ademption of the legacy. In both instances the motive of the gift is evidently the same, and as the will shows the amount of. fortune intended to be given, a presumption not unreasonably is held to arise, that the advance was de- signed in substitution of the posthumous provision {h). This doctrine, it is true, has been impugned as likely often to disappoint the testator's intention (c) ; but, be- sides that it is difficult to enter into an inquiry of this kind, it is certainly quite as probable that in the great majority of cases the presumption has the effect of ful- filling the intention. The circumstance of the party afterwards " ratify- ing and confirming " his will by a codicil {cl), though expressly " in all respects " {c), does not preclude the constructive satisfaction. The reason is, that these words amount only to a new publication of the will ; in which view they are simply words of course, and can- not therefore be understood to evince the testator's final and deliberate resolution on the subject. But re- 7 Ves. 508 ; Dwyer v. Lysaght, 2 (c) 1 Bro. C. C 426-7 ; 1 Ves. Ball and Be. 156. jun. 109. {a) See Hoskins v. Hoskins, (c?) Izard v. Hurst, 2 Freem. Free. Cha. 263 ; Rosewell v. Ben- 224 ; 2 Eq. Abr. 769, S. C. net, 3 Atk. 77 ; Roome v. Roome, (e) Monck v. Lord Monck, 1 3 Atk. 181. Ball and Be. 298, 306. Sed vide 3 {b) See 2 Atk. 492, 518 ; Ambl. Atk. 183-4. 326 ; 1 Ves. jun. 107 ; 2 Cox, 220; 7 Ves. 515; 18 Ves. 153. K 130 PRESUMPTIONS OF I-AW. gard to the presumed intention of a testator, in contra- diction to the literal import of his express directions, was on one occasion carried even further than in the cases last referred to. A father who had several chil- dren advanced to four of them portions of 1500/. each. He then made his will, and, reciting that he had thus advanced th^ee of his children, gave to the fourth, in common with those before unprovided for, legacies equal in amount with the portions. It was decreed that the portion given to the fourth child prevented his claim to the subsequent legacy {a). A portion secured by settlement, though not payable till after the parent's death, will equally with an actual advancement, and for the same reason, satisfy a legacy previously given {h). And as the general rule is founded on identity of motive, an advancement of in- ferior amount to a legacy will be construed an ademp- tion pro tanto. The purchase money for a commission in the army, accordingly, has been held to go in part discharge of a legacy (c). In a case, indeed, before Lord Camden, a portion less than the bequest was held to be a total satisfaction {d) ; but that case, it seems, cannot be relied on. The principle (adopted from the civil law) on which the decision proceeded (a) Upton V. Prince, Forr. 71. recognised in Baugh v. Reed, 3 (/») Hartopp V. Hartopp, 17 Ves. Bro. C. C. 192; Debeze v. Mann, 184. See also Trimmer v. Bayne, 2 Bro. C C. 165, 519 ; Thelluson 7 Ves. 508; Clarke v. Burgoyne, v. Woodford, 4 Madd. 420; Bell Dick. 353. v. Coleman, 5 Madd. 22. (c) Hoskins v. Hoskins, Prec {d) Clarke v. Burgoyne, Dick. Cha. 263. See also the principle 353. PRESUMPTIONS OF LAW. 131 was, that the father, since the making of his will, must be presumed to have changed his mind in regard to the amount of fortune to be given (a). But clearly the more probable and reasonable supposition under the circumstances was, that the father might not choose, or might not be able, to spare in his life- time all that he meant to leave his child at his death (b). Nor, as it is conceived, can the doctrine laid down by Lord Camden be defended on the authority of Rosewell v. Bennett (c), in which case a sum not exceeding 300/. directed to be advanced in apprenticing the testator's son, was, upon parol testimony of the intention, held to be adeemed by the testator's after- wards himself placing out the son as a clerk in a public office, and paying with him 200/. as a premium : for it is obvious to remark in this case, that as the will directed, not a specific sum, but only a sum not ex- ceeding a certain amount to be laid out for the son's preferment, and as the object for which the legacy had been given was actually attained, no solid or satisfactory ground existed on which the demand to the remaining 100/. could be established. Points of unimportant difference between the pro- vision intended by the will, and that afterwards made in the parent's life-time, are not enough to repel the implied satisfaction. Within this rule may be enume- rated diversities in the amount of maintenance allowed during infancy, — in the period whence interest on the (o) See 18 Ves. 151. (c) 3 Atk. 77. {b) See 1 Ves. jun. 105. K 2 132 PRESUMPTIONS OF LAW. legacy and portion respectively are to be computed (a), —and, as it should seem, in the time for payment of the principal {b). But the circumstance of the portion being made to vest only on a contingency, while the legacy vests immediately, does not come within the same principle. Such provision, consequently, will be in the nature of an additional bounty (c). It has been held in several cases, that the bequest to a child of a residue, or of a share of a residue, is not within the range of the principle now under discussion, and that it is not virtually revoked by a subsequent advancement. This has been decided on the ground, that a residue being fluctuating and of uncertain amount is inefficient to the discharge of the positive and certain duty which attaches on a parent ; and that as it does not originally satisfy the meaning or pur- poses of a portion, which ex vi ternmii signifies some certain provision, the gift of a portion afterwards by no means implies a change of intention as to the re- siduary bequest (^/). The same argument, whatever be its value, appears to apply with equal force to the case of the bequest of a residue following a provision by way of portion, in which case, however, we have seen the portion is held to be satisfied. It is certainly difficult to discover any principle which can afford an intelligible distinction between the two classes of cases, (a) See Hartopp v. Hartopp, 17 {d) Watson v. Earl of Lincoln, Ves. 184, 191. Also, 7 Ves. 515 ; Ambl. 325, 7 ; Smith v. Strong, 4 18 Ves. 153. Bro. C. C. 493 ; Freemantle v. (Z>) See 2 Atk. 493. Bankes^ 5 Ves. 79, 85. (c) Spinks V. Robins, 2 Atk. 491. PRESUMPTIONS OF LAW. 133 or whereby the apparently conflicting decisions to which they have given rise can be reconciled. Dissimilarity in the nature and legal properties of the respective subjects of bequest and advancement, will also prevent the application of the rule. Thus real estate conveyed to a child in the father's life- time («), or the grant of a beneficial lease (^), will not adeem a previous legacy. On this ground, in Holmes V. Holmes (c), a legacy to a son was decreed to be paid, although the father, since the date of the will, had taken him into partnership, and had given him a share in the stock in trade greatly exceeding in value the amount of- the legacy. Where a consideration distinct from the parental duty appears to have formed the inducement to ad- vancing a portion, such as the child's relinquishing an independent claim on the father, there the portion, though superior in amount to the claim, will not pre- judice the right to the previous legacy {d). Neither is a previous beqviest revoked by the gift of money for a particular object, — as a pecuniary present for the purpose of buying furniture (e). It has been held as sufficiently indicative of diversity of design or motive in a parent to prevent a sum given (a) See the cases on this point, {d) Baugh v. Reed, 3 Bro. C. C. cited supra pp. 108, 121. 192; 1 Ves. jun. 257. (Z.) Grave v. Earl of Salisbury, (e) Debeze v. Mann, 2 Bro. 1 Bro. C. C. 425. C. C. 165, 519 ; 1 Cox, 346, S. C; (c) 1 Bro. C.C. 555; 1 Cox, Robinson v. Whitley, 9 Ves. 577. 39, S. C. 134 PllESUMPTIONS OF LAW. in his life-time being taken in satisfaction of a legacy by his will, that the advance is to the child absolutely, while the legacy is of merely a qualified interest. Such at least seems to be the rule, where the immediate gift is not made on the occasion of marriage or of some other event calling for an advancement in the nature of a portion (a). In the first of the cases just referred to as authorities for this position, the legacy was given to trustees to be settled on the testator's daughter when she married according to their discretion, she being in the meantime to take the interest ; in the second, the legacy was to a married daughter for life, remainder to her husband for life, remainder to her children ; the advance in both was to the child abso- lutely, and, so far as appeared? without any particular object in view. In neither instance, as before inti- mated, was the legacy held to be adeemed : and even the circumstance of a memorandum declaring the sum received to be in part of the daughter's portion, which occurred in one of them, was considered immaterial. But these cases must be carefully distinguished from others, vv^here, though the limitations be different, both legacy and advancement are evidently given for the same general purpose, namely, that of providing for the child. In such instances, a difference of modi- fication in the interests bestowed will not destroy the equitable implication. Thus, where a man gave a legacy, the interest to be paid to his daughter until marriage, and if she married, the principal to her ab- ((/) Thelhison v. Woodford, 4 Madd. 420, 436 ; Bell v. Coleman, 5 Madd. 22. PRESUMPTIOMS OF LAW. 135 solutely, but if not then over, and afterwards, pre- viously to her marriage, settled on her a sum equi- valent to the legacy for life, remainder to the husband for life, remainder to the children of the marriage; Lord Eldon held the legacy to be adeemed notwith- standing the difference in the limitations : and his Lordship addressing himself to the point said, that, on such occasions, the court overlooked small differences in the circumstances of the portion proposed to be given and of that actually given ; and that it did not inquire whether the legacy was entirely and absolutely to the child or not, because either way a provision afterwards, on marriage, according to the general rule, was a presumed satisfaction («). From this case it also appears, that the circumstance of the legacy being limited over to a stranger on the happening of a particular event, will not alter the construction {b). A general legacy to a child, additional to another legacy given by the same will exjjresd// as a portion, is not considered to be revoked by a future provision on marriage, although the sum then advanced be equal to, or greater than, both the legacies. The reason is obvious. By distinguishing thus pointedly between the two bequests, the testator shows, that be- sides discharging his natural obligation as a parent, he designed to confer a further bounty. And as the portion given on marriage can be accounted to satisfy only what before was particularly provided as a portion, (a) Trimmer v. Bayne, 7 Ves. {h) See also 1 Ves. jmi. 265. 308. See also 1 Ball and Be. 304, and 1 Ves. jun. 263. 136 PRESUMPTIONS OF LAW. the bequest of the general legacy, which comes not within that character, cannot be affected by it {a). The prima facie ademption may also be met by the apparent intention of the testator as deducible from the tenour and purport of a subsequent codicil. Thus where a man, after giving by will certain legacies to his several children, advanced to his eldest son on going abroad 400/., which he noticed in his cash-book, as be- ing a loan to the son ; and then made a codicil to his will, reciting that his estate would not be adequate to the payment of all the legacies, and therefore retrench- ing a certain part out of each of the younger children's fortunes, without however noticing the bequest to the eldest, and also at the same time specifying several debts owing to him which he directed to be applied to- wards discharge of the legacies, but not including in the number the loan of 400/. ; it was resolved, under the circumstances, that the advance to the eldest son could not be intended as made in diminution of the previous legacy (b). Extrinsic evidence of intention is likewise available to repel the legal presumption. This may consist either of written documents, letters, memoranda in the testator's books of account, or in other private papers (c), or of parol declarations (d). As several cases have oc- (a) Wardv. Lant,Prec.Cha. 182. parte Pye v. Dubost, 18 Ves. 140 : (b) Bird v. Hooper, Prec. Cha. also Elkenshead's case as stated in 298. note to Jenkins v. Powell, 2 Vern. (c) Bird V. Hooper, Prec. Cha. 115. 298 ; Ellison v. Cookson, 1 Ves. (d) See 1 Bro. C. C. 296 ; 2 ib. jim- 100; 18 Ves. 149; Thelluson 309; 1 Ves. jun. 101, 110; 7 Ves. V. Woodford, 4 Madd. 420; Ex 508,518; 15 Ves. 514. PRESUMPTIONS OF LAW. 137 curred in which testimony of the latter kind has been admitted, and from them a general idea of its com- petence to the end proposed may be obtained, — a subject of much importance, — it will not perhaps be thought without use here briefly to detail the result of those decisions. It has been before-mentioned, that the object for which a gift is made will in some instances prevent such gift going in satisfaction of a previous legacy ; and an instance was put of a present for the purpose of buying furniture. On one occasion, this particular in- tent was made out, (and a corresponding decision fol- lowed), from evidence of a private conversation between the father and mother of the child shortly before her marriage, in which the former said, that he meant, as soon as the marriage took place, to give his daughter a certain sum, because furniture would be wanted (a). In Shudal v. Jekyll (b), where a man, who had made his will and given to his niece a legacy of 1000/., on proposals of marriage being afterwards made to her, told the future husband, that " he would give him 500/. and also leave something to his niece by will, though he would not be considered under any obliga- tion so to. do ;" Lord Hardwicke held this intimation, especially as the will continued unaltered, sufficient to entitle the niece to the whole legacy : it plainly ap- peared to be the uncle's design to leave her a legacy. (a) Robinson v. Whitley, 9 (/>) 2 Atk. .516. See on this Ves. 577. case per Lord Eldon, 18 Ves. J49. J 38 PRESUMPTIONS OF LAW. and the quantum was for him, not for the court, to determine. So where a testator in conversation with the father of his daughter's intended husband said, "he could only give at the time of her marriage a certain sum, but that there would be more afterwards, as his life was a bad one" ; a legacy before given to the daughter was decided not to be adeemed by the portion advanced on her marriage {a). A reference in broader terms by a father to his will on the occasion of his daughter's marriage, declaring that she is the object of his bounty, will, a fortiori, preserve her right to a legacy, notwithstanding the subsequent advancement (5). From these cases it is seen of what, as regards the substance and import of the terms used, a testator's parol declarations may consist in order to repel a con- structive ademption. But it is observable, that in none of such cases was there room for an interpretation of the expressions used, different from that which was actually made. This point deserves attention; for where the words are ambiguous, admitting of a double signification, or of being applied to another distinct bequest in the same will, the general rule will prevail. Thus where legacies (described as 'portions) of 5000/. each were given to the testator's daughters, and also certain shares of the residuary estate, which was ex- («) Debeze v. Mann, 2 Bro- (A) See 1 Ves. jun. HI; 7 Ves. ('. C. 165. 520. PRESUMPTIONS OF LAW. 139 pected to be large ; and the testator subsequently on a treaty for marriage of one of the daughters said, " he intended to advance with her a portion of 5,000/., and that she would have something considerably more at his death, equal, or nearly equal, to the portion ; " the latter clause of the sentence was considered not necessarily to refer to the 5,000/. legacy, but on the contrary, and with more probability, by reason of the indeterminateness of the words " equal or nearly so," to the share of the surplus or residuary estate. The legacy of 5,000/. was therefore held to be satisfied («). The admissibility of parol declarations as evidence does not depend on the circumstances under which they take place. Whether made in conversation with people who have nothing to do with the matter, peo- ple making impertinent inquiries and obtaining angry answers, or in discourse with parties really interested, all are alike admissible. But they are entitled to very different credit and weight. Declarations to the in- tended husband himself (i), to his father (c), or to an agent in the marriage treaty (c/), are considered of first importance. Of no less moment are declarations to the testator's wife, or other persons having an interest of affection in the object to be provided for {e). Next in point of consequence may be reckoned conversations (a) Ellison v. Cookson, 2 Bro. (c) Debeze v. Mann, 2 Bro. C. C. 307; 3 ib. 61 ; 1 Ves. jun. C. C. 165, 519. 100 ; 2 Cox, 220, S. C (^) Ellison v. Cookson, 2 Bro. (Z.) Shudal V. JekyU, 2 Atk. C. C 307 ; 3 ib. 60 ; 1 Ves. jun. 516; Ellison v. Cookson, 1 Ves. 100, S. C. jun. 100. (e) Robinson v. Whitley, 9 Ves. 577. 140 PRESUMPTIONS OF LAW. with strangers, where such conversations bear gene- rally a character of seriousness and veracity (a) : and last of all, vague and frivolous discourse with persons who seek officiously to intrude themselves into the testator's confidence ; which, when an intention appears on the part of the parent to evade inquiry, and mis- lead the interrogator, is in truth altogether devoid of force {b). But extrinsic evidence is not only admissible to repel a presumptive ademption, it is also allowed to fortify the presumption whe:i impeached. Thus a recital in the marriage settlement of the child, stating the sum advanced to be given as the child's portion (c), or an acknowledgment to that effect in a memoran- dum delivered on receiving the money (d), has been relied on as demonstrative of the parties' understand- ino- on the subject. Parol declarations, likewise, are equally efficacious (e). It is observable, however, that testimony of the latter kind cannot be adduced to show that an ademption was intended, unless the circum- stances of the case be such as primarily raise that supposition (/*). (a) Dwyer v. Lysaght, 2 Ball Grub, 2 Atk. 48; Rosewell v. and Be. 156. See also 7 Ves. 520. Bennett, 3 Atk. 77 ; Mascal v. {b) Trimmer v. Bayne, 7 Ves. Mascal, 1 Ves. 323; Hartopp v. 508, 519, 520. Hartopp, 17 Ves. 184; Monck v. (c) Farnham v. Phillips, 2 Atk. Lord Monck, 1 Ball and Be. 298, 215; Watson v. Earl of Lincoln, 305; Dwyer v. Lysaght, 2 ib. 156. Ambl. 325. See also Pole v. Lord Somers, 6 {d) Scotton V. Scotton, 1 Stra. Ves. 321. 235_ (/) Farnham v. Phillips, 2 Atk, (e) Hale v. Acton, 2 Cha. Rep. 215; Freemantle v. Bankes, 5 Ves. 35; Hoskiris v. Hoskins, Prec. 79. See also Brown v. Selwyn, Cha. 263 ; Pepper v. Whiyeve, 8 Forr. 240; 1 Ves. 323-4, cited. Vin. Abr. 158 ; Biggleston v. PRESUMPTIONS OF LAW. 1*1 CHAPTER IX. PRESUMPTIONS OF LAW CONTINUED. Qfthe Presumption in Cases o/Double Legacies. There are two classes of cases on this subject. The first comprises those in which both legacies are given by the same instrument; the second, those m which they are given by different instruments. But both these classes are susceptible of a subdivision •— the former is into cases, where the same specific arti- cle is twice bequeathed ; where sums of the smie amount are given; and where the sums vary m amount: the latter, into cases where the legacies are specific, and where they are general. Whether the bequests be contained in the same or different instruments, if the subject of both be a spe- cific article, as a particular piece of furniture, the gift is of necessity constrxied single, the repetition being obviously attributable to mistake or carelessness («). When double pecuniary legacies (i) or double an- C.C. L; and per Lord Hard- Hooley - H''";"' 14^ PKESUMPTIONS OF LAW. nuities {{f) of equal amount are given by the same will or codicil, the legatee, prima facie, is entitled to one legacy or annuity only. From the similarity of the gifts, unless other circumstances clearly prove that they were given from different motives, identity of intention is presumed, and that the repetition proceeded from inadvertence or excessive caution. And slight modal variations in the bequests will not alter this con- struction. Thus, the circumstance of the first legacy being given to a Jeme covert generally, while the se- cond is given " for her own use and disposing notwith- standing her coverture " (b), or of the first being made payable at an earlier period than the second (c), is in this view accounted immaterial. But diversity of motive, when plainly shown, will of course except the case from the operation of the ge- neral rule. Much more, as it should seem, if an inten- tion to confer a double bounty can be gathered from the general scope and tenour of the will (d). If the legacies, though given by the same instru- ment, be of unequal amount, the presumption is in fa- vour of their being accumulative. Here the second bequest cannot be referred to mistake or too much caution : the variation between it and the former legacy admits not fairly of such an explanation. It (a) Holford v. Wood, 4 Ves. (c) Holford v. Wood, supra. See 76, 79, 91. also per Aston, J. 1 Bro. C. C. (6) Greenwood v. Greenwood, 390, n. 1 Bro. C. C. 30, n. {d) See and consider Clive v. Walsh, 1 Bro. C. C. 146. PRESUMPTIONS OF LAW. 143 follows that the legal construction must in this case correspond with the literal (a). Where the two legacies or annuities (h), are not contained in the same instrument, but one is given by will, the other by codicil, or they are given by two distinct codicils, the legatee is prima facie entitled to both : and it is matter of indifference whether the second be of equal amount with (c), greater (c?), or less (e), than the preceding (/*). The argument is, that the making of a codicil shows intent to correct or supply deficiencies in the will or former codicil, to which it refers ; and as this implies a previous atten- tive consideration and an accurate knowledge of the contents of such will or codicil, it is presumed that un- less an additional bounty had been designed, the testa- tor would either have declared his meaning that the second legacy should be substituted for the first, or that he would not have made the second gift. This (a) Curry v. Pile, 2 Bro. C. C Finch, 267; Hooley v. HaUon, 1 225. See also per Aston, J., in Bro. C. C 390, n. ; Dick. 491, Hooley v. Hatton, 1 Bro. C. C. S. C. ; Hurst v. Beach, 5 Madd. 391, note. 301 ; Foy v. Foy, supra. (Z>) James v. Semmens, 2 H. () Allon V. Callow, 3 Ves. 289. yon v. Benyon, 17 Ves, SI. PRESUMPTIONS OF LAW. 147 testator, after noticing that he had previously given to his wife 1,000/., added, " but now I give her 1,600/.," it was decided, on the apparent intention, that the lat- ter sum was the whole pecuniary provision to which she was entitled (a). A bequest by codicil to two trustees for the benefit of an infant will not be considered augmentative of an equivalent bequest by will to only one of the trustees for the same purpose ; it being improbable that the party should mean to create two distinct trusts, and provide two separate equal funds for the benefit of the same individual, — one to be under the management of a single trustee, and the other under the joint manage- ment of that trustee and a second (b). It has been before mentioned, that where a testator provides for after-born children generally by will, and on the subsequent birth of a child gives him indivi- dually a legacy by codicil, it is prima facie accumu- lative. This rule, however, holds only in cases where no opposite intention is shown. If such appear, or can be collected from circumstances noticed in the codicil, a different construction will take place. Thus where a man, who had given to his younger son a legacy of 10,000/. and similar legacies to all future chil- dren, made a codicil revoking the previous bequest to the son (as other security for his fortune had been lately provided), and giving 10,000/. to a daughter who had in) Mayor of Loiiaoii v. Rus- {h) Benyoii v. Beiiyon, 17 Ves. sel, Finch. 290. -U. 148 PRESUMPTIONS OF LAW. been born since the execution of the will ; it was held, that the daughter was entitled to only one legacy. Sir R. P. Arden, M. R., said, that the general presumption against double portions was a material ingredient in the case. Upon the will it was clear the testator thought, that the provision he had made was sufficient for his then only younger child, and for any after-born chil- dren. This was further manifested by his care to re- voke the legacy to his son as soon as the portion intend- ed for him had been otherwise secured. The legacy to the daughter by the codicil was merely giving to her, as persona designata, the sum which had before been meant to be given her as an after-born child. But why, it is then asked, did he not revoke the previous bequest ? The answer is, he did not mean it. He intended the legacy should stand. Supposing that the direction in the will might possibly apply to posthumous cliildren only, and knowing how critical lawyers are upon words, he took the precaution to declare that his in- tention with regard to the daughter was the same as if she had not been born till after his death {a). Another ground of exception from the general rule is the fact of such similarity existing between the dif- ferent testamentary instruments as creates a supposi- tion that the second was intended to form a substi- tute for the first, that a re-modelling only of the lega- cies, not a general augmentation of them, was contem- plated. The points of resemblance usually relied on as authorizing this supposition are the following; (a) Osborne v. Duke of Leeds, 5 Vcs, '^69, 3b 1. PRESUMPTIONS OF LAW. 149 first and principally (being in truth the original and proper foundation of the inference), a series of be- quests to the same or nearly the same individuals ; of secondary importance, but corroborative of the con- clusion thus afforded, the fact of the legatees being named, in each instrument, in the same order («), the use of the same forms of bequest (h), the alleging of the same motives (c), the adding of similar qualifica- tions {cl), the giving, in some instances, of the same specific articles (e), in others, of like sums (/). Fur- ther particulars conducing to the same end, are the use of similar introductory expressions, — expressions, for example, of religious resignation (g), an appointment on each occasion of executors, especially if of the same persons {h), and the constituting of the same residuary legatee (i). Nor will partial variations in the amount of the legacies, whether by increase (j) or diminu- tion (k), or in the objects of bounty, whether by (a) Duke of St. Albans V. Beau- well; Barclay v. Wainwright ; clerk, 2 Atk. 636 ; Moggridge v. Att.-Gen. v. Harley ; Foy v. Foy, Thackwell, 1 Ves. jun. 464. 3 Ves. 465, cited ; Hemming v. {b) Coote V. Boyd, 2 Bro. C. C Gurrey. 521 ; Moggridge v. Thackwell. (g) Att.-Gen. v. Havley, 4 Madd. (c) Duke of St. Albau's v. Beau- 263. clerk; Campbell v. Radnor, 1 (A) Ibid. Bro. C. C. 271 ; Barclay v. Wain- {i) Duke of St. Albans v. Beau- wright, 3 Ves. 462. clerk ; Coote v. Boyd, 2 Bro. C. C. (^d) Att.-Gen. v. Harley, 4 Madd. 521. 2g3 (j) Campbell v. Lord Radnor, (e) Duke of St. Albans v. Beau- 1 Bro. C. C. 271 ; Duke of St. Al- clerk; Hemming v. Gurrey, 2 ban's v. Beauclerk ; Gillespie v. Sim. and Stu. 311. Alexander, 2 Sim. and Stu. 145. (/) Duke of St. Albans v. (Ar) Dukeof St. Albans v. Beau- Beauclerk, 2 Atk. 636, 639 ; Coote clerk ; Barclay v. Wainwright ; V. Boyd ; Moggridge v. Thack- Gillespie v. Alexander. 150 PRESUMPTIONS OF LAW. adding or omitting («), alter the construction ; differ- ences in these respects, from time and change of cir- cumstances, being naturally to be expected. But it is observable, that in cases where legatees named in the first instrument are altogether omitted in the second, the former, so far as regards those legatees, will not, it seems, be considered revoked {b) ; and further, that al- though a diminishing by the second instrument of some of the legacies given in the first will not repel the supposed general substitution, yet if all the legacies contained in the second be considerably less than those previously given to the same legatees, the general rule will prevail (c). Parol declarations, offered as evidence of the testa- tor's intention to give only a single legacy, where the presumption of law opposes such construction, are not admissible. A different rule would break in upon the principle that parol evidence shall not be received to contradict the literal and express significa- tion of a written instrument {d). But when the legal inference — gathered from identity in the motive and nature of the two gifts, or from other internal cir- cumstances — is against their being accumulative, decla- rations showing the intention to have been a double provision will be allowed ; for here the effect of the evidence is to prove, not that the testator has said what (c) Duke of St. Alban's v. Beau- Alban's v. Beauclerk, 2 Atk. 640. clerk; Coote v. Boyd; Barclay v. (c) Benyon v. Benyon, 17 Ves. Wainwright ; Gillespie v. Alexan- 34. der ; supra. (d) Hurst v. Beach, 5 Madd. (b) Moggridge v. Thackwell, 1 351, 360. Also 5 Ves. 380 ; and Ves. jun. 464, 473 ; Duke of St. 2 Atk. 372, note by Mr. Sanders. PRESUMPTIONS OF LAW. 151 he did not mean, but that he has expressed himself agreeably to his intention : it is to support, not over- throw, the strict and obvious interpretation (a). In like manner, evidence of a change in the testator's cir- cumstances (as an increase in his fortune) between the times of giving the first and second legacy, has been considered effectual to show, that in bestowing the lat- ter the intention was to enlarge the preceding be- quest (b). (a) Windham v. Windham, Bro. C. C. 521. See also 5 Madd. Finch, 267; Coote v. Boyd, 2 360. (A) 1 P. Wms. 424; 2 Ves.242 152 PRESUMPTIONS OF T-AW. CHAPTER X. PRESUMPTIONS OF LAW CONTINUED. Of the Exclusion of Executors from the Residuary Estate. The appointment of an executor amounts, in the consideration of law, to a gift to the person appointed of the undisposed surplus of the testator's personal estate after payment of his debts. In equity, however, which in the present instance exercises a controul over the rule of law, this doctrine obtains with considerable modifications ; for there, whether the executor takes beneficially, is primarily a question of intention («). Some judges, indeed, have been disposed to allow the most trifling indications of the testator's mind to be sufficient to exclude the executor; — almost, in fact, to put the executor upon proof of an express in- tention in his favour {h). But the rule now established is, that the executor shall hold to his own use, unless there be a strong and violent, though not an irresisti- ble (c), presumption to the contrary {d). There are four principal divisions into which the (a) See 9 Mod. 28 ; 2 Ves. 166; (c) Ibid. 7 Ves. 228 ; 12 Ves. 308 ; 18 Ves. {d) 2 Ves. 96 ; 2 Ves. jun. 474 ; 254. 14 Ves. 197; 19 Ves. 646. (J)) See 14 Ves. 197 PRESUMPTIONS OF LAW. ' 153 cases to be here treated of may be distributed. In the first, the inference against the executor being meant to take arises immediately from the manner of the ap- pointment, or from directions connected with it im- porting the nomination to be merely to the fiduciary office of executor ; in the second, from the testator's manifesting a design to give away the residue to strangers. The principles thus furnished, are of uni- versal application. In the third and fourth divisions, the ground of inference is in a great measure the same as in the first, but the rules they supply admit only of a confined application; those deducible from the former, to cases where there is only one executor ; from the latter, to cases where there are at least two. 1. The first class of cases in the above distribution we have stated to comprise those, in which, from ex- pressions used in making the appointment or from di- rections connected therewith, it appears that the exe- cutor was named only with a view to discharge the duties of the office. The conclusion against the executor's claim in these cases arises from hence, that the limited object of the testator in making the appointment is by such means distinctly marked out, and supplies at the same time indirect evidence, that the beneficial rights attaching by law to an executorship were not in his contemplation. Of the indications of a testator's mind in this respect, the fact of the executor being designated a trustee is perhaps the most pointed ; it strongly denotes the ap- prehension of the party as to the nature of the interests 154 PRESUMPTIONS OF LAW. bestowed. Accordingly, it has been resolved, that where the executor, in the clause making the appoint- ment, is styled an " executor in trust," he cannot claim the undisposed surplus. The mention of a trust, though not declared for whom, shows at least that the executor is not the object of bounty. In the case, therefore, of a partial or defective disposition, equity holds him to take as trustee for the testator's next of kin (a). The same argument applies with greater force, where the personal estate is given generally to the executor as such, in trust for specified purposes. Nor is it material in this case, that the whole estate be not exhausted in fulfilling those purposes ; as where the trust is to devote all to the payment of debts, legacies, and annuities, and a surplus remains (b) ; or that the testator's intention from the deaths of parties (c), from objects meant to be benefited not coming into exist- ence {d), or from uncertainty in the objects them- selves (e), cannot be carried into execution : for the specific direction to hold in trust is in every event in- compatible with a right to the beneficial interest. Whether an executor, to whom, by his proper name. (a) Pring v. Pring, 2 Vern. 99 Bagwell V. Dry, 1 P. Wms. 700 ; Woollett V, Harris, 5 Madd. 452 ; Vezey v. Jamson, 1 Sim. and Stu 69. See also 2 Atk. 18; 14 Ves 198. Contra, Anon. 2 Freem. 105 (Z») Southouse v. Bate, 2 Ves P. Wms. 390 ; Cruse v. Barley, 3 P. Wms. 20 ; North v. Crompton, 1 Cha. Ca. 1 96, contra- (c) Bagwell v. Dry, 1 P. Wms. 700. () ; or where a desire is ex- pressed, that he would fake the trouble of being exe- cutor (c), or a kojw that, out of respect to the testa- tor's wife, the executorship would be accepted {d), or an appointment if the nominee would be so good as to comply with it {e) ; in these several cases the supplica- tory words have been considered enough to show that a burden, not a benefit, was intended. A still stronger case against the claim of the executor is where a legacy is given to him expressly for his care and trouble ; for, here, not only do the circumstances of the gift show the testator's sense of the nature of the office conferred, but the recompense offered for discharging the duties of it, his apprehension that otherwise the party would be burdened without re- quital (/). A provision for the executor's indemnity, or a (a) Androvin v. Poilblanc, 3 v. Noden, 2 Vern. 148; Rachfield Atk. 299. See also Lord Cranley v. Careless, 2 P. Wms. 158 ; 9 V. Hale, 14 Ves. 307. v. Mod.9; 1 Stra. 568,S.C.; Mayv. {b) Lord North v. Purdon, 2 Lewin, 2 P. Wms. 159, n. by Cox ; Ves. 495. Davers v. Dewes, 3 P. Wms. 40; (c) Cordell v. Noden, Prec. Mathews v. Courthope, 3 Salk, Cha. 12. 82; Dean v. Dalton, 2 Bro. C. C. {d) Giraud v. Hanbury, 3 Mer. G34 ; White v. Evans, 4 Ves. 21 ; 150 ; also 18 Ves. 254. Williams v. Jones, 10 Ves. 77 ; (e) Seley v. Wood, 10 Ves. 71. Gibbs v. Rumsey, 2 Ves. and Be. (/) Fane v. Fane, 1 Vern. 30 ; 294, 7 ; see also 2 Ves. 97 ; 2 Atk. Foster V. Munt, ib. 473; Cordell 46; 12 Ves. 308. PRESUMPTIONS OF LAW. 157 general direction for his conduct inconsistent with the supposition that he takes a private interest in the re- sidue, is likewise esteemed presumptive evidence of his sustaining only a fiduciary character. Thus it has been held, that provisions for reimbursement of ex- penses incurred in journeys, &c. {a), in remitting legacies to residents abroad (Z»), or against liability for losses from placing out the estate on insufficient security (c), are demonstrative of intent to impose merely a charge. A direction to keep accounts has been also considered to furnish a similar inference {d). "Where executors are appointed to act within a cer- tain district and for the performance of a particular duty only, there the rule is to hold them trustees : the appointment being confined to the attainment of a single object affords a clear presumption against their being designed to derive advantage from it. This was decided in a case, where a testator having property both in England and India apjjointed different exe- cutors to act in each country, ordering the executors in India to collect his effects there, and transmit them to the executors in England {e). Another particular relied on as indicative of the testator's intention, is the fact of the executors being nominated, not from motives of personal regard, but on account of the occupation they follow, or the (a) Dean v. Dalton, 2 Bro. C. C. {d) Gladding v. Yapp, 5 Madd. 634. 56. (Z>) Urquhart v. King, 7 Ves. (e) Sadler v. Turner, 8 Ves. 617. 225. (c) Woollett V. Harris, 3 Madd. 152, 7. 158 PRESUMPTIONS OF LAW. Station they hold in society : whence, especially if the selection contribute to facilitate the objects immediately in view, an inference is considered deducible, that the office was not meant to be productive of benefit. Thus, where a testator appointed a partnership in London (not individually, but as a firm — the house of P. and Co.) executors, and also guardians of his children. Lord Rosslyn decreed the residuary estate to go to the next of kin. No man, said his Lordship, could be absurd enough to make a partnership executors in order to take beneficially ; though it is very plain that they are fit to conduct the office: and if probability be con- sulted, how much more likely is it, that the testator should intend persons he knew to take the residue, than the members of a partnership who may at his death be composed of very different individuals from those at the date of his will(«). So, in a later case, where the American ambassador, or such person as at the time of the testator's death should be the American ambassador, was appointed executor ; Sir W. Grant, M. R. held that circumstance, coupled with others of like significancy, to be evidence of intention to confer a trust only. The appointment of the ambassador, his Honor observed, was not in his individual capacity as a friend, but in that of minister from the United States (^). Where the intent to make the executors trustees is sufficiently apparent, slight circumstances which might (o) Uc Mazar v. Pybus, I Vcs. (b) Urquhart v. King, 7 Ves. «iJ. 225. See also 12 Ves. 309. PRESUMPTIONS OF LAW. 150 otherwise call for a contrary construction, will not ex- clude the next of kin. Therefore, where an executor was appointed evidently because an executor was thought necessary to carry the will into effect, it was held, that a request to him " to make such little arrangements as he had reason to think the testator wished," did not necessarily imply, that he was to take the residue to his own use ; for if the testator knew what the duty of an executor was, he must also have known, that it was proper to address to him every testamentary request he might have to make («). In a late case, the testator gave the whole of his property both real and personal to his executors, directing the rents and profits, " together with the interest of any money in the public funds," to be applied for the benefit of his daughter during her life, and that if she was not molested by her husband (from whom she lived separate), the real estate after her death should become absolutely his ; but that in case of his non-compliance in that point, the executors should dispose of it, at their discretion, among testator's relatives. The will then proceeded, — " And should I leave any money in the public funds, I direct that one-half of it shall go and be subject to the same conditions as the other pro- perty for the benefit of my daughter, and after her de- cease to go to her husband, and the other half to he disposed of by nuj executors as they may judge right ; but in case of my son-in-law's decease, then I direct the whole of my property shall go and be applied for the benefit and support of my daughter." On a claim {a) Lord Cranley v. Hale, 11. Vcs. 307.. M'-l. 160 PRESUMPTIONS OF LAAV. by the executors to a beneficial interest in one-half of the funded property, under the clause directing a moiety to be at their disposal as judged right (a), Sir T. Plumer, M. R., conceiving that the testator's clear intention was to give all his estate to the use of his daughter for life, and the absolute interest in reversion on a contingency, declared that the demand of the executors could not be supported (b). But it must be observed, that the rule which pre- vents executors who are expressly constituted trustees from appropriating to their own use the undisposed of residue, is limited to those cases where the trust ex- tends to the whole personal estate. Where the trust is partial, affecting only a particular portion of the pro- perty which the testator has separated from the rest, as where certain sums are directed to be applied to given purposes, a different construction prevails. There, the nature of the trust affording no decisive inference against the claim of the executors generally, they will be entitled to stand on their legal rights {c). And the principle, that executors who as such take a beneficial interest in the residue are entitled to every accession to that residue, applies even to those legacies or sums of which they have been expressly named trustees in the will. If these legacies should by lapse or otherwise so fail that in ordinary cases they would become residue, the nomination of the executors as trustees of such («) See on this point the cases (c) Batteley v. Windle, 2 Bro. cited infra, p. 162. C. C. 31 ; Pratt v. Sladden, U (h) Munyard V. New, 3 Swanst. Ves. 193; Griffiths v. Hamilton, 119. . 12Vcs. 298. PRESUMPTIONS OF l.AW. l6l legacies will not be sufficient in that event to exclude them from taking therein a beneficial interest also ; for if executors be not altogether excluded, they oCcupy the place of residuary legatees to all intents and purposes, and take every thing that becomes residue, — no matter how given originally (a). It is further observable, in cases of this description, that provisions for reimbursing the executors' necessary expenses, or for indemnifying them against involuntary losses, will not prejudice their title. For although such provisions would be un- necessary in the general terms in which they are ex- pressed, if the parties were meant to take beneficially, the answer to that is, that no reliance can be placed upon clauses merely unnecessary, many clauses of that kind creeping into wills even when not inartificially drawn : besides which, the directions in question may, with much reason, be confined to the trust funds, so as to make them bear their own proper charges (b). With this may also be connected the remark, that legacies to the executors for their trouble in a distinct and independent trust have never been adjudged to exclude them from the surplus, such legacies being manifestly unconnected with the office of executor (c). The inference is still stronger, where the legacies are directed to be paid out of the testator's real estate (d) Care must likewise be taken to distinguish between cases where a bequest is made to executors in trust to (a) See It Ves. 199, 200. See (c) Dix v. Beed, 1 Sim. and also Wilson v. Ivatt, 2 Ves. 166. Stu. 237. (/.) See 14 Ves. 200,201. (^) M'Cleland v. Shaw, 2Scho. and Lefr. 538. M 162 PRESUMPTIONS OF J. AAV. pay debts, legacies, &c., in general terms,— which, as has been before noticed, will defeat their legal title to the residue,— and cases where the bequest is "in trust in the first place to pay, and charged with, debts, legacies, &c." In instances of the latter sort, if the trust do not exhaust the whole property, the executors will take beneficially, the construction being, that subject to the charge specified, an absolute gift was intended {a). Another distinction is to be taken between a gift to executors of the whole personal estate expressly in trust, but for an indefinite purpose, and a gift to them, which, though for an indefinite purpose, is not distinctly declared to be in trust. In the former case, the un- certainty of the objects to be benefited makes the trust void, and the declared intention to give in trust at the same time prevents the executors taking bene- ficially. In the latter, from the indeterminate nature of the testator's purpose, the court concludes that a proper trust could not be intended {h). Thus, while a bequest in trust for " objects of public or pri- vate charity to be selected at pleasure," confers on the executor no personal interest, though the trust be void (c) ; a bequest to such persons or for such pur- poses as the executor " shall in his discretion think fit," gives him the property absolutely {d). (a) Dawson v. Clark, 15 Ves. 270, et seq. ; Vezey v. Jamson, 1 409 ; 18 lb. 247. Sim. and Stu. 69. (b) See 2 Ves. and Be. 298. (t?) Gibbs v. Rumsey, 2 Ves. and (c) Moricev. Bishop of Durham, Be. 294. See also 14 Ves. 370; 9 Ves. 399; 10 Ves. 522; Om- and 3 Swanst. 119, 121, 129. manney v. Butcher, 1 Turn. 260, PRESUMPTIONS OF LAW. 163 To the preceding exceptions from the general rule it may be added, that where, after the gift of particular legacies, an actual bequest of the residue is made to the executors, they will be adjudged beneficially entitled, notwithstanding their having been denominated trustees as to the whole of the testator's estate in a former part of the will (a). II. The second division of cases in which executors are excluded from the residue, is where the testator has manifested an intention to give it wholly away to others. And the reason for this exclusion, though the intention becomes impossible to be effectuated, is, that still the testator's mind is sufficiently shown not to make the executorship an office of profit. First, as tending to this conclusion, may be men- tioned the circumstance of the residuary estate being in express terms bequeathed to a person who dies be- fore the testator. In this instance the original appoint- ment being obviously only to the office, the casualty of the lapse cannot, with reasonable fairness, be construed to restore the executor's beneficial interest. The prin- ciple of course is the same, whether there be only a single residuary legatee (b), or a plurality claiming as tenants in common : in the former case, if the party solely entitled die, the entire estate — and in the latter, if one or more of the co-tenants die, his or their parti- (a) Parsons v. Saffery, 9 Price, C. C. 28; 1 Ves. jun. 63, S. C; -578. See also infra, p. 179. NichoUsv. Crisp, Amb. 768. Con- (b) Bennet v. Batchelor, 3 Bro. ira, Anon. 2 Freeni. 105. M 2 164 PRESUMPTIONS OF LAW. cular shares — devolve to the next of kin (a). The latter branch of this rule applies as well where the residue is given beneficially to the executors to take as tenants in common, as where it is bestowed on strangers {b). The fact of the residue being given to trustees upon trust to apply it to purposes, which either as being superstitious or otherwise are contrary to public policy, or are so general and undefined in regard to the parties to be benefitted that the court cannot carry the trust into execution, may next be instanced as barring the claim of the executor. The argument here seems stronger than in the preceding case. There, from the testator's not making a new disposition after the lapse occurred, a supposition might be entertained, without any real violence to jDrobability, that the object of favour being removed, the party no longer had a wish to separate the office from its advantages. But, in the present instance, the intention clearly remains unal- tered (c). (a) Page v. Page, 2 P. Wms. which cannot be effected, the in- 489 ; Mose. 42 ; 2 Stra. 820, S. C; tention to exclude the executors is and see observations thereon, 2 not less clear than if the trusts Ves. 98-9 ; 1 Ves jun. 67', n. ; were such as could be carried into Painter v. Salisbury, 2 Ves. 93, execution : and it is that intention cited ; 1 Ves. jun. 66, S. C cited. which in the class of cases now vm- (b) Ibid. der consideration, forms the main (c) Morice v. Bishop of Dur- principle of decision. It must also ham, 9 Ves. 399 ; 10 Ves. 522 ; be remarked, that in Morice v. Ommaney v. Butcher, 1 Turn. 260, Bishop of Durham, the bequest 270, et seq. ; Vesey v. Jam son, 1 was 7iot to the Bishop in his cha- Sim. and Stu. 69. In these cases, racter of executor ; which, if Lord it is true, the executors themselves Eldon's doctrine in Dawson v. were the trustees. But it is con- Clarke (18 Ves. 253-5) be correct, ceived, that that cirumstance isnot makes that case an authority in material. If the residue be given point for the proposition in the to strangers, though for purposes text. PRESUMPTIONS OF LAAV. 165 Where a testator declares it his purpose to dispose of the residuary estate by a subsequent instrument, there the legal claim of the executor cannot be sus- tained; for, notwithstanding that the disposition contem- plated be never made, the declaration of itself is still sufficient to show, that the residue was not meant to pass by virtue of the will, and consequently not by the appointment of executor («). A gift of the surplus in trust to be applied to such uses as the testator should mention in a codicil (b), or according to private instruc- tions which he should furnish (c), will, in like manner, disappoint the legal right of the executor to the beneficial interest. So, if a testator, after having executed a will which does not contain any residuary bequest, directs a codicil to be prepared, or begins a codicil himself, to supply the deficiency ; since this also plainly evinces the apprehension of the testator, that by the appointment of an executor he had not made a complete disposition of his property {d). Instructions to a solicitor for an entire new will, directing particularly a residuary clause to be introduced, have been likewise held sufficient to show the mind and understanding of the party, and to mark an intention favourable to the executor (e). An inchoate purpose to appoint a residuary legatee is also relied on as aff"ording a presumption against (a) Davers v. Dewes, 3 P. Wms. (c) Mordaunt v. Hussey, 4 Ves. 40. 117. (Z>) Wheeler V. Sheers, Mose. (c?) Nourse v. Fmch, 1 Ves. jun. 288,290; and 15 Ves. 414. See 344; 2 ib. 78 ; 4 Bro. C. C. 239, also Cook V. Duckenfield, 2 Atk. S. C. 567, and Sherrard V. Lord Harbo- (e) Langham v. Sandford, 17 rough, Amb. 165,— as being cases Ves. 435, 453; affirmed 19 Ves. decided on the same principle. 641 ; 2 Mer. 6. 166 PRESUMPTIONS OF 1-AW, the demand of the executor. To this, indeed, it has been objected, that the executor himself might possibly be the person intended to have been nominated, and that therefore while such doubt exists, the executor's legal right ought to prevail. But admitting that it. might have been the testator's intention to give the residue to the executor, it is still evident, that he did not intend it should go to him by virtue of his office, but as a substantive and independent bequest. In this uncertainty the residue results to the next of kin (a). Cases which have been held to come within this principle are the following : first, where there is a resi- duary clause formally expressed, but the name of the legatee is omitted (b) : secondly, where after commenc- ing a general and comprehensive residuary clause, the testator proceeds to give certain fractional portions of the surplus, but fails to give all (c) : thirdly, where a residuary clause is begun, but before its completion the will abruptly terminates (d) : and fourthly, where the will, though containing no direct allusion to the resi- due, breaks off suddenly after a disposition of particular parts of the testator's estate, without any expression signifying that the will is completed, and without the subscription of the party. In the latter case, the pro- bability under the circumstances is, that the testator while engaged in writing his will had suffered an inter- (a) See 2 Ves. 99. (d) Bishop of Cloyne v. Young, (b) Lord North v. Piirdon, 2 2 Ves. 91; Nevil v. Parker, ib. Ves. 495. See also 15 Ves. 414. cited, 93, 100; Knewell v. Gardi- (c) Oldham v. Carleton, 2 Cox, ner, Gilb. Eq. Ca. 184. See also 399 18 Ves. 352. PRESUMPTIONS OF LAW. 167 ruptioii, which prevented him making- a complete dis- position of his property {a). It should be observed, however, that the fact of a blank space between the last line of a will and the sig- nature furnishes no such indication of intent to dis- pose of the residue as will preclude the legal right of the executor (h). So, although a clause expressive of an intention to give away the residuary estate followed by bequests which consume certain parts of it only, is notwithstanding considered a sufficient indication of design to exclude the executor, yet an introductory clause prefixed to a will, declaring it to be the testa- tor's object to make a general disposition of his pro- perty, will not produce that eifect ; the intention mani- fested by such preface, unless coupled with other cir- cumstances (c), being too vague and indeterminate to afford a presumption, that the office of executor was meant to be imposed without its legal advantages {dy For reasons similar to those which govern in cases where a residuary bequest is begun but not finished, it has been held, that a gift of the residue, though erased or become illegible (e), or partially cancelled by the le- gatee's name being struck out whether by pencil or otherwise (/), is still sufficient to disappoint the claim of the executor. (a) Farrington v. Knightly, 1 344, 356 ; Haynes v. Littlefear, I P. Wms. 544. Sim. and Stu. 496. (b) White V. WiUiams, 3 Ves. (e) See 1 P. Wms. 549. and Be. 72 ; Coop. C. C 58, S. C. (/) Mence v. Mence, 18 Ves. (c) See 14 Ves. 370. 348. (d) Nourse v. Finch, 1 Ves. jun. 168 PRESUMPTIONS OF LAW. A will directing the testator's general personal estate « to go according to law" gives no beneficial interest to the executor. The direction clearly applies to the whole personal estate, and the words " to go according to law" are construed to import a distribution according to the statute (a). Indeed universally, whenever what necessarily com- prehends all a testator's property at the time of his death is or is meant to be given away, there the exe- cutors can claim nothing. But to have this effect, the disposition must be of the entire estate: the gift of legacies which may or may not exhaust it, according to circumstances, will not, in the event of there being a surplus, defeat the executor's title. And, there- fore, where a testator gave pecuniary legacies which at the date of his will exceeded the amount of his for- tune, but in the result a considerable surplus was un- disposed of, the residue was adjudged to belong to the executors (b). III. The third division of cases on this subject are characterized by the appointment of only one executor, to whom an express legacy is given. The gift of the legacy, though made without any allusion to the office, is held to raise a presumption that the executor was not meant to take the residue beneficially, in other words, that he was intended to (a) Lord Cranley v. Hale, 14 (b) Haynes v. Littlefear, 1 Sim. Ves. 307. and Stn. 496. PRESUMPTIONS OF LAW. 169 take simply what is expressly given, but not more ; and for this reason, that otherwise the particular be- quest would be unnecessary, — as the legacy given to him must necessarily come out of the residue, and, to adopt the usual expression, it is absurd to suppose the testator intended him to take all and some (a). This reason, it is true, has not in modern times been thought sa- tisfactory, since the object of the testator might merely be to secure some recompense to the executor in case the other legacies should exhaust the whole estate, be- cause he would then have only to abate in common with the other legatees. But this argument however just has not prevailed to alter the equitable rule ; which having been long established, being well known, and having been extensively acted on, possesses an im- portance too great to be sacrificed on account of the unsoundness of its foundation {b). Another and per- haps better ground in support of the rule is, that a legacy to an executor amounts, in common accepta- tion, to a compensatory gift for his services ; adopt- ing which idea, equity, on a principle before men- tioned, converts him into a trustee (c). The construction is the same whether the legacy to the executor be given by the identical instrument which appoints him to the office, or by a subsequent (a) See 9 Mod. 28 ; 3 Atk. 228 ; Bea. 277 ; also Hatton v. Hatton, 1 Ves. jun, 356 ; 2 Ves. jun. 79, mentioned 2 Madd. Prin. and Prac. 471; 12 Ves. 309; 19 Ves. 643. 102, 2d edit. Coiitra, 2 Cha. Ca. 187. (c) See 2 Eq. Abr. 444, pi. 58; {b) See 2 Ves, 97 ; 1 Ves. and 1 Bro. C. C. 155; 12 Ves. 309. 170 PRESUMPTIONS OF LAW. instrument («) ; for in both cases, the bequest may with equal reason be referred to the testator's desire to remunerate the executor for his trouble. Whether the converse of this proposition be sustainable, that is, whether a legacy by will to a person appointed exe- cutor by codicil will bar the executor's right, is not yet settled; though, as such legacy, except under par- ticular circumstances, cannot be supposed to have been given with a view to reward the trouble of the office, it is probable that the point will ultimately be decided in the negative {b). With regard to the nature of the bequest which thus operates an exclusion from the residue, it may be laid down, that a legacy, pecuniary (c) or specific (d), immediate or reversionary (^), whether given directly to the legatee or to a trustee for his use {J'), and con- sisting either of a sum in gross or of an annuity, unless such annuity be charged on a fund given to a third (a) Muckleston v. Brown, 6 v. Finch, 4 Bro. C. C. 239 ; 1 Ves. Ves. 52, 64. See also Stackpoole jim. 344 ; 2 ib. 78, S. C. (in these V. Howell, 13 Ves. 417. the legacies were of debts) ; South- (b) See 2 Mer. 21. cot v. Watson, 3 Atk. 226 ; Hol- (c) Cook V. Walker, 2 Vern. ford v. Wood, 4 Ves. 70; (in these 676, cited ; Ward v. Lant, Free. of furniture, &c.) ; Southouse v. Cha. 182; Abbott v. Abbott, 6 Bate, 2 Ves. and Be. 396; (in this Ves. 343; Langham v. Sandford, of stock). In Martin v. Rebow, 17 Ves. 435 ; 19 Ves. 641 ; 2 Mer. and Holford v. Wood, leasehold 6, S. C. ; Bull V. Kingston, 1 Mer. property also was given. See also 314. 19 Ves. 643. (d) Pawlett V. Lady Morley, 2 (e) Seley v. Wood, 10 Ves. 71. Freem. 263 ; Martm v. Rebow, 1 Sed vide Lynn v. Beaver, 1 Turn. Bro. C. C. 154 ; (in these cases, 63, 68, 69. the legacies were of jewels, plate, (/) Per Lord Hardwicke in &c.) ; Randall v. Bookey, 2 Vern. Newstead v. Johnston, 2 Atk. 47. 425; Free. Cha. 162, S. C. ; Nourse PRESUMPTIONS OF LAW. I7I person («), will equally defeat the claim of the exe- cutor. And the determination, it seems, will not be affected by the circumstance of the legacy being incon- siderable in point of value {b), of its being given for the purpose of buying mourning or a mourning ring (c), or simply in token of friendship {d). The same result is produced by a bequest to the executor of a life in- terest in the residuary estate ; and this, whether given in express terms as residue {e), or by an enumeration of the specific articles of which the residue is in fact composed {/) : the limited nature of the interest be- stowed is in this case deemed decisive evidence of the testator's intention not to give the property abso- lutely. Although in the exclusion of the executor from the undisposed residue a partial intestacy arises, and the next of kin become entitled, yet the bequest of legacies to the next of kin will not repel the inference arising from the gift to the executor and so restore his legal title. A contrary doctrine, indeed, grounded on the circumstance that the probabilities on either side were thus balanced, and that the legal title must therefore (a) See 3 Atk. 229 ; also Seley son, 2 Vern. by Raithby, 673 ; and V. Wood, 10 Ves. 71. 2 Ves. 166. (A) See 2 Vern. 650; 2 Ves. {d) See Stackpoole v. Howell, 166. 13 Ves. 417. (c) Cook V. Walker, 2 Vern. (e) Joslin v. Brewett, Bunb. 676, cited; Nisbett v. Murray, 5 112; Gobsall v. Sounden, 2 Eq. Ves. 149, 158 ; Southouse v. Bate, Abr. 444. See also 2 Atk. 47. 2 Ves. and Be. 396 ; also 2 Atk. (/) Dicks v. Lambert, 4 Ves. 222. 5'erf ijjrfe Wingfield v.Atkin- 725. 172 PRESUMPTIONS OF LAW. prevail, seems at one time to have obtained («). But, in later determinations, the courts adhering to the broad and intelligible principle that an unqualified gift to an executor constitutes him a trustee of the surplus, have deemed it better to overlook conjectural deductions to the prejudice of the next of kin, than to encourage fresh distinctions for the sake of benefitting the executor (h). Nevertheless, it seems probable that a clause declaring the testator's intention not to give to the next of kin would serve to rebut their equity {c). Proximity of relationship between the testator and the executor is insufficient to except the case from the rule under consideration. On one occasion, indeed, where a man appointed his wife executrix, Lord Har- court was of a contrary opinion ; he thought the near- ness of the connexion was demonstrative that a bare office could not be intended {d). Subsequent authorities, however, have established the point as above stated. To allow distinctions on the score of relationship would only tend to create uncertainty ; for whenever a father, brother, son, nephew, cousin, &c. should be appointed to the executorship, new questions for deter- mination would arise, and it would be impossible to fix (a) Harper v. Lee, Mose. 4 Att.-Gen. V. Hooker, 2 P. Wms 338. (Z») Wheeler v. Sheer, Mose 288, 291 ; Bayley v. Powell, Ran- dall V. Bookey, 2 Vern. 361, 425 Vachell v. JefFereys, Pre. Cha 3 ib. 40, 43 ; Andrew v. Clark, 2 Ves. 162; Kennedy v. Stainsby, 1 Ves. jun. 66, n. ; Seley v. Wood, 10 Ves. 71 ; also 12 Ves. 309. (c) See Amb. 137. See also 7 Ves 518 ; 19 Ves. 650 ; and the cases cited infra, p. 182, n. (d). 170; Farrington v. Knightly, 1 (d) Ball v. Smith, 2 Vern. 675 ; P. Wms. 54t ; Davers v. Dewes, Mathews v. Courthope, 3 Salk. 82- PllESUMPTlONS OF LAW. 173 the point or degree of relationship after which the ge- neral principle should begin to operate {a). So, it appears, that the fact of the executor being an infant affords no conclusive argument against the presumption arising from the gift of a legacy. But the incompetence, generally speaking, of an infant to fulfil the duties of a trustee is not without weight in this respect ; and therefore slight auxiliary circum- stances negativing an intention to exclude will vest the surplus in the infant beneficially (b). Although a legacy to an executor be given to him as one of a certain class or description of persons who are the immediate objects of the testator's bounty, as children or nephews (c), or, as it should seem, in common with other legacies of equal amount to differ- ent relatives or friends, it is nevertheless still effectual to exclude him from the residue. But, on the other hand, a gift for life {a fortiori, if determinable on any earlier contingency) of particular chattels — as a term for years, plate, or furniture — which form only a part of the residuary estate, with remain- der over to a third person, will not prevent the exe- (a) Randall v. Bookey, 2 Vern. v. Rebow, 1 Bro. C C. 154. See 425; Ward v. Lant, Prec. Cha. also 1 P. Wms. 551. 182 ; Pawlett v. Lady Morley, 2 {b) See Blinkhorne v. Feast, 2 Freem. 263 ; Lady Granville v. Ves. 27, 30 ; 1 Wils. 285, S. C. ; Duchess of Beaufort, 1 P. Wms. also 10 Ves. 83 ; 1 Ves. and Be. 114; Joslin v. Brewett, Bunb. 278. 112; Gobsall v. Sounden, 2 Eq. (c) Abbott v. Abbott, 6 Ves. Abr. 444 ; Lake v. Lake, Amb. 343. Sed vide Dix v. Reed, 1 Sim. 126; 1 Wils. 313, S. C. ; Martin and Stu. 237. 174 PRESUMPTIONS OF LAW. cutor from taking the other part of the residuary estate to his own use. In this instance (however singular the construction) the gift to the executor is not regarded as a satisfaction for his trouble, but merely as an intro- duction to the bequest over, and an abridgement of the ulterior legatee's interest (a). So that the case does not involve the absurdity of giving expressly a part, while the whole is meant to be bestowed (b). On like grounds, where the legacy to the executor is taken out of, or forms an exception from another legacy, as where a dozen volumes are excepted in favour of the executor from the bequest of a library (c) ; or where an annuity for the benefit of the executor is charged on a fund given to a third person (d) ; in these and similar cases, the legacy being not so much sepa- rated from the residue as taken out of another gross legacy, is not that description of legacy which converts the executor into a trustee. In one instance, where 1,000/. to be taken out of the testator's stock in trade was directed to be settled on a son and his family, and the remainder of the stock in trade on a daughter who was appointed executrix ; this latter bequest was ad- judged to be not so much a legacy to the daughter as (a) Lady Granvill v. Duchess of Eq. Abr. 444^ pi. 58, cited. See Beaufort, 2 Vern. 648, 1 P. Wms. also 2 Ves. 97 ; 4 Ves. 731. 114; 3 Atk. 230, n. S. C; Hos- (b) See Mr. Cox's note, 1 P. kins V. Hoskins, Prec. Cha. 263 ; Wms. 116. Jones V. "Westcomb, ib. 316 ; (c) Griffith v. Rogers, Prec. Gilb. Eq. Ca. 74 ; 1 Eq. Abr. 245, Cha. 231. S C. ; Mackworth v, Lewellin, 2 {d) Southcot v. Watson, 3 Atk. 226, 229. PRESUMPTIONS OF LAW. 175 an exception out of what was given to the son. She was therefore declared to be entitled to the surplus {a). And it may be laid down generally, that whenever there is not an obvious incongruity between the gift of the particular legacy and an intention to bestow the whole residue, the executor will be allowed to insist on his legal litle. " It is not enough," to use the words of Lord Loughborough, " for a legacy to take away the right of the executor, that there should simply be a legacy ; but the legacy must be so qualified, that the giving of it is inconsistent with the supposition, that the executor is to take the whole (Z>)." In accordance with this principle it has been held that a gift in trust for the separate use of a married woman, who is made executrix, does not deprive her of the residue; for if the legacy were not so given, it would become part of the sur- plus, and consequently fall into the hands of her hus- band {c). So where a husband, by will, gave to his wife, whom he appointed executrix, certain articles of plate which belonged to her before marriage, and two additional pieces of plate in lieu of others which had also belonged to her, but which testator had departed with (d) ; and in another case where a husband gave his wife and executrix a sum of money due on bond (which was in fact part of her own fortune), together with her wearing apparel (e) ; in both of these cases, (o) Newstead v. Johnston, 2 (d) Ball v. Smith, Vern. 675 ; 1 Atk. 46. P. Wms. 552, cited. (A) 2 Ves. jun. 80. (e) Lawson v. Lawson, 4 Bro. (c) Newstead v. Johnston, 2 C. C. by Toml. 21. Atk. 46. 176 rRESUMFTIONS OF LAW, the widow was held entitled to the residuary estate : the testator's intention was construed to be simply a desire to continue and secure to his widow what he considered to constitute her peculiar property, and to make restitution for such part of it as he had himself disposed of. It remains to notice, that where the residuary estate is expressly bequeathed to the executor, a legacy pre- viously given in remuneration for care and pains will not prevent his taking the beneficial interest («). IV. For the same reasons, which in the case of a legacy to a single executor operate to exclude him from the residue, equal pecuniary legacies to both or to all the executors where there are more than two (Z>), — whether such legacies be of large or trifling amount (c), immediate or reversionary {d), given by the instrument making the appointment, or by one subsequent (e), — are held to convert them into trustees for the next of kin. And it has been likewise considered unimportant, under these circumstances, that other legacies of (a) Parsons v. SafFery, 9 Price, Ommanney v. Butcher, 1 Turner, 578. 260. {b) Lord Bristol v. Hungerford_, (c) Foster v. Munt, 1 Vem. Prec Cha. 81 ; 3 P. Wms. 194, n. 473 ; Batchellor v. Searle, 2 Vem. S. C. ; Farrington v. Knightly, 736 ; Petit v. Smith, 1 P. Wms. 1 P. Wms. 544 ; Andrew v. Clark, 7 ; Southouse v. Bate, 2 Ves. and 2 Ves. 16'J; Nicholls v. Crisp, Be. 396. Amb. 768; Carey v. Goodinge, {d) Seley v. Wood, 10 Ves. 71. 3 Bro. C. C. 110; Nisbett v. (e) Muckleston v. Brown, 6 Murray, 5 Ves. 149 ; Muckleston Ves. 64 ; Stackpoole v. Howell, V. Brown, 6 Ves. 52, 64 ; King v. 13 Ves. 417. Denison, 1 Ves. and Be. 260; PRESUMPTIONS OF LAW. 177 different values are at the same time bequeathed to the executors (a). Distinct specific legacies of equal worth to two or more executors will also preclude their right to the undisposed surplus ; but to have this effect, it is con- ceived, that the articles given must be such as possess something like a current value, capable of being ac- curately estimated. On this principle specific legacies of equal quantities of stock (b), or of mortgage or other debts of equal amount, or of equal portions of parti- cular debts, may, with the same propriety as legacies of money, be accounted as given in compensation for the trouble attendant upon the office of executor. In like manner, and for a similar reason, articles of plate or pieces of furniture may be construed to nega- tive the claim of the executors, provided the equality of price be obvious. But pictures, or natural or artificial curiosities, the value of which is arbitrary and dependent on taste and fancy, can scarcely, it is imagined, be deemed to induce the same result ; for, although the gifts in the estimation of particular judges may be equal in value, yet noti constat they were so regarded by the testator. It is observable, however, that where specific bequests are made to the executors jointly, the sameness of the interests given to each brings the case within the general principle (c). (a) Ommanney v. Butcher, 1 (c) SeeSAtk. 230, particularly Turn. 260, 268-9. See also 6 Ves. Shrimptonv. Stanhope, there cited; 64. which case is also mentioned in Mr. (Z>) Southouse v. Bate, 2 Ves. Cox's note, 1 P. Wms. 550-1. See and Be. 396- also Heron v. Newton^ 9 Mod. 11. N 178 FRKSUMPTIONS OY LAW. Where legacies of unequal amount are given to the executors (r/), or where legacies are given only to some of them (b), a different construction obtains. In such instances, the testator is supposed to have intended, not a remuneration to the executors for their trouble, — in the latter case indeed that supposition is not pos- sible, — but a preference p?'o tan to. They will, there- fore, be entitled to hold the surplus beneficially. But to this latter rule an exception occurs where the bequests to one or more of the executors are ex- pressed to be in consideration of the pains and care incident to the office. Such legacies undeniably prov- ing the executors to whom they are given to be ti*us- tees, it is concluded, that the other executors take as trustees likewise ; for as they must all claim toge- ther, and none can claim the beneficial interest but jointly with the rest under the same general character and in the same right, it follows, on a principle of uniformity, that as part are excluded by the express legacies given to them, none can be entitled to a per- sonal interest (c). (a) Brasbridge v. Woodroffe, 2 20, 26 ; BufFar v. Bradford, 2 Atk. 69; Blinkhorne v. Feast, 2 Atk. 220; Bishop of Cloyne v. Ves. 27 ; 1 Wils. 285, S. C. ; Bow- Boung, 2 Ves. 91 ; Wilson v. Ivat, ker V. Hunter, 1 Bro. C. C. 328 ; ib. i66; Johnson v. Twist, ib. Rawlings v. Jennings, 13 Ves. 39. 167, cited ; Oliver v. Frewen, 1 See also 12 Ves. 309; 19 Ves.. Bro. C. C. 590; Frewen v. Relfe, 648; 2 Jac. and Walk. 410-411. 2 ib. 220; Pratt v. Sladden, 14 — Contra, Bayley v. Powell, 2 Ves. 193; Haynes v. Littlefear, 1 Vern. 361; Prec. Cha. 92, S. C. ; Sim. and Stu. 496. See also 19 and Vachell v. JeiFeries, Prec. Cha. Ves. 648. — Contra Darwell v. Ben- 170; 5 Bro. P. C, by Toml. 51 : net, 2 Vern. 677, cited, and Coles- but see on these, cases per Lord worth v. Brangwin, Prec. Cha. 323. Loughborough, 1 Bro. C. C. 333-4. (c) White v. Evans, 4 Ves. 21 ; (i) Hawkins v. Mason, Mosc. 12 Ves. 308. PRKSUMPTTONS OF LAW. 179 On similar grounds we find, that, in De Mazar v. Pybus (a), where there were different sets of executors, one for England, the other for India, the former being appointed merely under the designation of a partner- shi]) or firm ; — in Sadler v. Turner (h), where execu- tors in India were nominated for the sole purpose of transmitting: the testator's effects to other executors in England; — inUrquhart v. King(c), where the American Ambassador for the time being and a private indivi- dual were made executors, the Ambassador simply on account of his station ; — and in Milnes v. Slater {d)» where to one of two executors the general surplus was given upon trusts which ultimately failed ; — in each of these cases some or one of the parties being held to take only in a fiduciary character, the whole residuary estate was adjudged to belong to the next of kin. The presumption arising from gifts of equal lega- cies to the executors generally, is of course rebutted by an express bequest of the residue {e), though the lega- cies be even mentioned to be in recompense for the services incident to the office {/). It may also be met by any expressions in the will which show, that the testator's mind was possessed with an idea that the executors would take an absolute and beneficial inte- rest in the residue. Thus, where a testator desired his (a) 4 Ves. 644.. 94 ; Gibbs v. Rumsey, 2 Ves. ana lb) 8 Ves. 617. Be. '294. (c) 7 Ves. 225. (/) Parsons v. SafFery, 9 Price, (d) 8 Ves. 295. 578. («) Dormer v. Bertie, Free. Cha. 180 PRESUMPTIONS OF LAW. executors to be kind to an old servant, and to give her certain pieces of furniture if she wished for them ; the court considered this direction to evince the testa- tor's intention that the executors should take the resi- due absolutely {a). And where legacies are given to two of three exe- cutors for the performing of a trust distinct from the executorship, and a legacy of equal amount is after- wards given to the third executor, in such case the legacies will not exclude from the residue. To the two first, it is clear, the bequests are not made in their character of executors, but of trustees ; so that the case is reduced to that of a legacy given to only one executor where there is a plurality (b). To repel presumptions founded on the circumstance of a legacy being given to a sole executor (c), or of equal legacies being given to two or more executors (d), or upon the fact of one of several executors being ex- pressly denominated a trustee (e), parol evidence, (o) Heron v. Newton, 9 Mod. 2 Ves. jun, 465, 644; Langham 11. V. Sanford, 17 Ves. 435; 19 Ves. (/>) Dix V. Reed, 1 Sim. and 641 ; 2 Mer. 6, S. C. ; Gladding v. Stu. 237. Yapp, 5 Madd. 56 ; Lynn v. Bea- (c) Lord Gainsborough v. Lady ver, 1 Turn. 63. See also 2 Atk. Gainsborough, 2 Vern. 252; Lit- 373. tlebury v. Buckley, 2 Vern. 677, (d) "Wingfield v. Atkinson, 2 cited ; 3 Bro. P. C. by Toml. 43 ; Vern. 673 ; Batchellor v. Searle, Lady Glanvill v. Duchess of Beau- ib. 736 ; Petit v. Smith, 1 P. Wms. fort, 2 Vern. 648; Duke of Rut- 7; Heron v. Newton, 9 Modd. 11 ; land V. Duchess of Rutland, 2 P. 2 P. "Wms. 160, cited ; 2 Ves. Wms. 210 ; Hatton v. Hatton, 2 jun. 472-S, cited, S. C. ; Bras- Bac. Abr. 426 ; Eq. Abr. 443, bridge v. WoodroiFe, 2 Atk. 69. S. C. ; Lake v. Lake, Amb. 126 ; (e) Williams v. Jones, 10 Ves. Nourse v. Finch, 1 Ves. jun. 344 ; 77. 2 ib. 78; Cleniiell v. Lewthwaite, PRESUMPTIONS OF LAW. 181 though disapproved of (a), is admissible. And it is received on this principle, that while the construction by which the executor it excluded, assumes the testa- tor to have meant what he has not said ; the effect of the evidence is to show, that the actual intention was such as exactly corresponds with the strict and literal interpretation of the instrument, and with the legal in- cidents and rights which attach to the office of executor. The efficiency of a testator's parol declarations to rebut the presumption, and to restore the executor to the rights from which other circumstances might have displaced him, seems to depend rather on the occa- sion of making them, than on the time when they were made considered with relation to the execut- ing of the will. For although all such declarations are alike admissible, and are accounted of weight (b), yet their importance is measured by the circumstances under which they were made, and which, as they ascer- tain the sincerity or insincerity, the seriousness or levity of the party at the time of utterance, properly determine the degree of consideration which is due to them (c). Where seriousness and sincerity appear, it does not seem material whether the evidence consist of decla- rations previous to {d), contemporaneous with {e), or (a) See 2 P. Wms. 215 ; 2 Atk. v. Buckley, 2 Vern. 677, cited ; 3 374; 2Ves. 28; 1 Ves. jun. 357 ; Bro. P. C. by Toml. 43; Lady 2 Ves. jun. 473;, 649 ; 4 Ves. jun. Granvill v. Duchess of Beaufort, 2 730. Vern. 648 ; Brasbridge v. Wood- (Z>) See 7 Ves. 518. rofFe, 2 Atk. 69 ; Nourse v. Finch, (c) Ibid : also 19 Ves. 649, 650. 1 Ves. jun. 344; and 19 Ves. 649; {d) Thornton v. Tracey, 2 Ves. 2 Mer. 23. jun. 465, 469 ; Gladding v. Yapp, (e) Earl of Gainsborough v. 5 Madd. 56. See also Littlebury Lady Gainsborough, 2 Vern. 252 ; 18i^ PRESUMPTIONS OF LAW. subsequent to, the execution of the will (a). But in cases of conflicting testimony, declarations at the time of preparing or executing a will are deemed of more consequence than declarations either before or after- wards, and declarations subsequent than those, which are antecedent {h) ; for the statements of a man as to what he has already done are more likely to show the real nature of his intentions at the time of perform- ance than statements of what he merely designs to do, and, still more, statements made at the time of a trans- action than statements either before or after it. Concerning the nature and substance of declarations relied on as available in this respect, it has been held, that not only explicit avowals of intent to give the ex- ecutor a beneficial interest (c), but intimations to such effect, if clear, will serve to prevent the visual con- struction. Declarations by a testator, that legacies bequeathed to his next of kin formed the whole he intended they should take {d), — that legacies to the executors were given purposely that they might be sure of something in case of a deficiency, but that if Batchellor v. Searle, 2 Vern. 736 ; (b) 7 Ves. .518 ; 17 Ves. 453-4; Duke of Rutland v. Duchess of 19 Ves. 649, 650; 2 Mer. 23 Rutland, 2 P. Wms. 210. W Rawlins v. Powell, 1 P. (a) Lake v. Lake, Amb. 126 ; Wms. 297 ; Walton v. Walton, 14 Clennel v. Lewthwaite, 2 Vea. Ves. 318; Gladding v. Yapp, 5 jun. 465; Walton v. Walton, 14 Madd. 56. Ves. 318. See also Littlebury v. (d) Batchellor v. Searle, 2 Vern. Buckley ; Lady Granvill v. Du- 736 ; Brasbridge v. WoodrofFe, 2 chess of Beaufort; Brasbridge v. Atk. 69. See also Littlebury v. WoodrofFe ; Ncurse v. Finch, uhi Buckley, 2 Vern. 677, cited ; 2 supra ; and Langhorne v. Sand- Ves. jun. 473. .ford, 17 Ves. 435; 19 Ves. 641; ^ Mcr. 6, S. C. PRESUMPTIONS 01 LAW. 183 there should be a surplus, such surplus would be theirs {a), — that he had left or should leave to his exe- cutors handsome fortunes {b), — or, in reference to par- ticular chattels, that after his death they would belong to the executors (c), — have, accordingly, been adjudged sufficient to re-annex to the office its legal properties. But it is an invariable rule, in order to parol declara- tions being eifectual to re-instate the executor, that they must be not merely such as render the applicabi- lity of the general construction doubtful {d), but such as plainly and indisputably prove the intention to have been to give the residue absolutely. Declarations therefore of equivocal signification {e), much more declarations met by counter declarations {f), will leave the question to be decided on the ordinary principle. The admission of parol evidence, it must be likewise observed, is confined to cases strictly of presumption. Where the executor is expressly styled a trustee in the will, evidence of intention to give him the surplus beneficially is not allowed ; for that would break in upon the principle, that extrinsic evidence cannot be received to contradict a written instrument {g). On the same ground, it has been decided, that a legacy expressed to be given for the care and trouble incident to the executorship precludes all parol testimony to (a) Lake v. Lake, Amb. 126. Ves. 435; 19 Ves. 641 ; 2 Mer. 6, (Z») Williams v. Jones, 10 Ves. S. C. 77. ( f ) Nourse or Hornsby r. (c) Williams v. Jones, ibid. Finch, 4 Bro. C. C. 239 ; 1 Ves. {d) Petit V. Smith, 1 P. Wms. 7. jun. 344 ; 2 Ves. jun. 78, S. C. {e) Langham v. Sanford, 17 {g) 14 Ves. 322; 5 Madd. 5 8, 59 ; 19 Ves. 643-4. 18-A PRESUMPTIONS OF LAW. show that the parties were meant to have more ; since a bequest of this kind is equivalent to a declaration, that they should hold the residue merely as trustees («). But where a specific legacy is given to the execu- tor, with the exception of a particular part of it, — as a bequest of testator's household goods, excepting plate, — and the part excepted not being afterwards disposed of falls into the residuary estate, this is not considered a case so distinctly and indisputably proving the testa- tor's intention to give the residue away from the exe- cutor, as excludes the reception of parol evidence ; although it has been argued, that as the part excepted constitutes an integral portion of the residue, and must be taken and go along with it, the circumstance of such part being expressly withdrawn from the gift to the executor, shows to demonstration the testator's meaning, that the executor should not take the surplus beneficially : for to this it was replied, that the gift with the exception amounts to no more than ;a gift of the several particulars of the actual bequest, taking no notice of the article excepted (h); and further, that the executor takes the principal bequest and the ex- ception, under different qualifications, the former being liable to contribute only to the payment of debts, the latter also to the payment of pecuniary legacies (c). The reason for admitting parol evidence is obviously («) Ratchfield V. Careless, 2 P. (b) Langham v. Sanford, IT Wms. 158; May v. Lewin, ib., Ves. 435, 449 ; 19 Ves. 644-5. cited, 159; 2 Ves. jun. 473; 17 (c) 19 Ves. 645. Ves. 443; 19 ib. 6U; 5 Madd. ->S-9. PRESUMPTIONS OF LAW. 185 stronger in the case of a legacy to the executor, which is merely, though in pointed terms, ordered to be paid out of the personal estate (a). Parol testimony may, in like manner, be adduced by the next of kin, to oppose similar evidence on the part of the executors, and to fortify the presumption that the latter were not intended to take a beneficial inte- rest (h). But such testimony is not admissible, in the first place, to show the testator's intention to impose a bare office of trust. To allow its admission would violate the principle before noticed, that external evi- dence shall not be received to contradict a written in- strument (c). (a) 19 Ves. 642. Abr. 426 ; 2 Eq. Abr. 416, S. C. ; {b) Bishop of Cloyne v. Young, White v. Williams, 3 Ves. and Be. 2 Ves. 91; Rachfield v. Careless, 72; Coop. C. C. 58, S. C; 19 2 P. Wms. 158. Ves. 643-4*. (c) Osborne v. Villiers, 2 Bac. 186 PltESUMFTlONS OF FACT. CHAPTER XL PRESUMPTIONS OF FACT. On the Presumption of Instruments of Assurance. Our attention has hitherto been confined to pre- sumptions of law. We now proceed to treat of pre- sumptions of fact ; which are so called because the facts presumed are exclusively deduced from the par- ticular circumstances of individual cases, such circum- stances containing them implicite, and yielding a kind of indirect or presumptive evidence of their existence. In reference to the subjects which come within the scope of the present treatise, it will be invariably found, that as length of peaceable possession is for the most part the consequence only of rightful ownership, lapse of time since the first commencement of titles which depend for their validity on the doctrine of presump- tion, is in all cases an essential, and in some the only inducement to the presumption requisite for their sup- port. It is on the consideration just adverted to, and with a view to give effect to long and quiet posses- sion, and to corroborate and affirm titles which are PRESUMPTIONS Ol' FACT. 187 founded chiefly or only upon this circumstance, that the courts will in many cases presume the previous existence of such instruments of assurance as are necessary to clothe that possession with the legal title. In some cases this presumption is made without any specific evidence of the existence of those instru- ments : in others it is made upon evidence which tends specifically to show that once they actually did exist, although they are not forthcoming. These two classes of cases will be considered in their order. It has been stated at a preceding page that there are a variety of cases to which the provisions of the statute of limitations (21 Jac. 1, c. 16) do not apply either directly or by construction ; and that in order to ex- tend the beneficial operation of this statute, courts of law and equity have established certain positive rules, framed by analogy to the provisions it contains, and which as far as possible meet and comprehend the omitted cases : — that in all such cases, where the ques- tion concerns the title to real property, they hold peaceable enjoyment for a period of twenty years to be p?imd facie evidence of absolute and rightful owner- ship. This ■ principle affords in its application many ex- amples of the first class of cases, in which a presump- tion is made of instruments of assurance without specific evidence of their former existence. So that after a long undisturbed possession, state opposing titles (though indisputably proved to have once existed, and against the present validity of which no positive testimony appears) will be presumed to have been re- 188 PRESUMPTIONS OF FACT. leased or otherwise transferred by instruments which have been since lost. The preceding enjoyment, unless originating in such instruments, cannot be reasonably accounted for, and thence the probability arises {a). Pursuant to the above-mentioned rule of analogy, possession for twenty years by one of two tenants in common, accompanied by an exclusive appropriation of the rents and profits, has been held to afford the presumption of a conveyance from the party out of possession {h) ; and receipt for the like period of a copyhold rent by a stranger, the presumption of a grant from the lord, of the freehold of the customary tenement (c). On the same principle a deed enfran- chising a copyhold was, in one case, presumed from long enjoyment even against the Crown (d) : and in another, from time coupled with other circumstances, a conveyance or release of an equity of redemption was presumed, so as to impress upon the mortgaged estate (which was in the mortgagee's possession) the cha- racter of his absolute property, and to bring it within the operation of a will made by the mortgagee about eight years after a clear recognition of a subsisting in- terest in the mortgagor (e). But in order to sustain the presumption of a con- veyance in cases of this description, the possession, on (a) See 1 Eden, 296; 1 Turn. {d) Roe d. Johnson v. Ireland, 218. 11 East, 280. (b) Doe d. Fishar v. Prosser, (f) Att. Gen. v. Bowyer, or Cowp. 217. Vigor, 3 Ves. 7U, 720, 724, (c) Steward V. Bridger, 2 Vern. 730 j 5 Ves. 303-4; 8 Ves. 273, 516. 275-6-7-8, 288. PRESUMPTIONS OF FACT. 189 which that presumption rests, must have been not a possession merely for twenty years, but an adverse possession for that period. If the enjoyment can be accounted for on grounds consistent with the former proprietor's title, inferences drawn from such enjoy- ment alone will necessarily fail ; and the latter, not- withstanding his long exclusion from the possession, will be entitled to recover. Hence, where the pos- session may be referred to, and can be shown to have commenced under an elegit, or an agreement to hold until a debt were satisfied {a), or under a term of years limited, or created for raising portions {h), or a right as tenant by the curtesy (c) ; or where the possession was taken in consequence of a mistaken construction of a deed or will (rf), or was continued under a supposed new agreement entered into on the expiration of a pre- ceding lease {e) ; in all these cases, the length of enjoy- ment, however considerable, will not be deemed con- clusive of the question of title ; unless, indeed, the debt, right, or agreement, should appear to have been satisfied or determined twenty years or more before legal proceedings instituted {/). Another instance of the favourable disposition of the courts to protect long established titles against dormant claims, is afforded in the case of an old recovery suffered at a time when the immediate freehold of the («) Doe d. Fenwick v. Reed, 5 (O Cowper v. Earl Cowper, 2 Barn, and Aid. 232. P- Wms. 720. (A) Acherley v. Roe, 5 Ves. 5Q5. (e) Roe d. Pellatt v. Ferrars, 2 (c) Doe d. Milner v. Brightwen, Bos. and Pull. 542. 10 East, 583. (/) See per Lord Eldon, 1 Mer. 125. 190 PRESUMPTIONS OF FACT. estate was apparently outstanding, in which case, if a subsequent possession of twenty or thirty years have corresponded with the uses of the recovery, a previous surrender of the freehold will be presumed (a). Re- coveries, though in their form they imply an adversary suit in which the demandant seeks by real action to establish his title to the land demanded, have for cen- turies been regarded in the light of common assurances founded in the agreement of the parties ; so that there is the same cause for entertaining every such reason- able supposition in their behalf as is admitted in the case of other assurances. Accordingly it was observed by Lord Mansfield, that where the persons interested to set aside a recovery have had opportunities to pre- fer their objections, but instead of doing so, have acquiesced, and not at all disputed its validity, a pre- sumption fairly arises, that the visual and proper means were employed to render it effectual (b). That the presumption, however, of an antecedent surrender by the immediate freeholder may arise, the case must be clear of all circumstances inconsistent with such presumption. If the previous estate be shown to have existed since the time of suffering the recovery, the courts will be bound by that fact ; so that although a subsequent possession of even great length may have accorded with the uses declared, yet if that possession have been not incompatible with the actual continuance of the prior interest, it will not countervail the want of the previous surrender. Thus, where an estate for (a) Green v. Frond, 1 Vent. and Lord Mansfield's comment 257 ; 1 Mod. 117, S. C See also thereon, 2 Burr. 1072. ^Varreii v. Greenville, 2 SLra. 1 12.9 ; (b) Sec 2 Bun: Rep. 1073. PRESUMPTIONS OF FACT. 191 life by way of jointure, in lands part of a larger property, was proved to have existed previously to the time when the tenant in tail suffered a recovery ; and it appeared, that, after the recovery, amongst other acts indicating ownership, the jointress granted a lease of the land in question to the vouchee in the recovery ; this circumstance, clearly acknowledging on his part the continuance of the jointure estate, was considered to repel the presumption of its having been previously surrendered : and the remainder-man, in consequence, after the vouchee's death succeeded in establishing his right, to the extent of the jointure lands, in an ejectment against the person claiming under the re- covery {a). The following decision yet more forcibly illustrates the position last stated, and together with the preced- ing case, seems to establish the rule, that although a conditional surrender of the legal freehold would sus- tain the validity of a recovery, such conditional sur- render will not be presumed, where the possession of the immediate freeholder appears not to have ceased at the time of the recovery ; unless the remainder-man in tail live many years after the expiration of the preced- ing estate, and take no further steps towards the de- struction of the entail, — for in this latter case, it should seem, the neglect to suffer a second recovery would be regarded as presumptive evidence of the surrender essential to the validity of the first. (a) Haines Barley's case, 5 Mod. 210. 192 PRF.suMrTioxs of fact. Mr. George Bridges, being tenant in tail of the manor and demesne lands of K., subject, as to part of the land, to an estate for life in the widow of a former owner, suffered a recovery, in terms comprising the whole property, and settled it upon the Duke of Chandos. Mr. Bridges died before the widow ; and it was not until her death, which happened above thirty years after the date of the recovery, that the Duke entered upon those lands of which she had been in possession. For this portion of the estate an eject- ment (a) was brought by the remainder-man in the original settlement, who obtained a verdict ; and on application being made by the defendant in the follow- ing term for a new trial, in answer to which it was objected on behalf of the remainder-man, that as the widow did not join with Mr. Bridges in making a tenant to the jjredpe, the estate tail and remainders over, in the lands she had enjoyed, were not affected by the recovery, the Court of King's Bench concurring in this argument, dismissed the application. Lord Mans- field, in delivering his opinion, said ; " The single pre- tence to any the least ground of presumption in the present case can be only this, that no tenant in tail in remainder would suffer a recovery, without first getting a surrender of the life estate, in order to make it effec- tual. But even that ground (slight as it is) does not hold here : and for this there are two especial reasons. One is, that there does not appear to have been any in- tention in the remainder-man in tail to suffer a recovery of these particular lands ; and the other, that there has (tt) Goodtitle d. Bridges v. Duke of Chandos, 2 Burr. 1066. PRESUMPTIONS OF FACT. 193 been no possession whatever under the recovery. On the contrary, the ejectment was brought, and the validity of the recovery put in litigation, immediately after the death of the tenant for life." His Lordship, however, expressed himself to be clearly of opinion, that if there had been a long possession by the tenant in tail after the determination of the preceding estates, — though such possession might be ascribed to the entail, — the presumption of a surrender, on the ground of acquiescence, and the probability thence arising that the jjarties knew the recovery was not defective, ought to have been made : and he added, that it was his wish to have it understood, that possession in such cases by tenant in tail, after the death of tenant for life, did leave a ground for jDresuming that there had been a surrender. According to dicta of several judges, records, when essential to the stability of titles which are evidenced by long enjoyment, may be presumed, notwithstanding there be no proof that such records ever existed (a). To a certain extent this proposition is undoubtedly true ; that is, if confined to grants from the crown, and other instruments (if any) creating original rights, which, to be effective, should appear on record (b). But the doctrine, it is conceived, must be under- stood with this qualification. It clearly cannot be ex- tended to fines. Nor do recoveries, except under the circumstances which we shall hereafter have occasion (a) Per Lord Mansfield, Cowp. (b) Mayor of Hull v. Horner, 10.')-110. See also 3 T. R. 158 ; 2 Cowp. 102. Ves. jun. 583. O 194 PRESUMPTIONS OF FACT. to mention, come more properly within its operation. The reason is obvious. Should a contrary rule obtain, not only would twenty years' adverse possession deprive (as it does) the owner of an estate tail vested in pos- session and his issue of their formedon, but would also be a presumptive bar to those in remainder and reversion ; — a conclusion which would both directly oppose the almost innumerable cases showing that every remainder-man, after his right accrues, is enti- tled to a certain period for prosecuting it ; and would open a new way to elude the enactments of the statute de donis. And indeed it is probable, that Lord Mans- field meant the word record to be understood in the restricted sense, in which only it is contended the prin- ciple is just : for in the case wherein his dictum on the subject occurs, he appears to use the words " re- cord " and " charter " (/. e. a grant from the crown) as synonymous ; and he enumerates, as one of the re- quisites to the presuming of records, a possession which, in strictness, could commence only under that species of assurance. It has been also laid down on various occasions, that for the purpose of confirming and securing titles at- tested by long enjoyment. Acts of Parliament, if need- ful, may be presumed («). And this position appears to be true, as well in regard to rights wherein the public are interested (&), as to those which concern indivi- (a) r?c?e 1 Edert, 296 ; Cowp. (A) Rex v. Mountague, 4 Bam. 215 ; 6 East, 215 ; 2 Ves. jun. 583 ; and Cres?. 598. 1 Jac. and Walk. 63. PRESUMPTIONS OF FACT. 195 duals only. That a private act may be presumed has been expressly determined (a). But it is worthy of remark, that in admitting pre- sumptions to sustain and fortify old possessions, the courts do not restrict themselves entirely to those of rightful conveyances or of rightful possession. The quieting and confirming of titles being the principal object and indeed the origin of the doctrine, such a presumption will be made (provided substantial jus- tice be not sacrificed) as will best meet the necessity of each particular case. And for this reason, the actual ouster of one tenant in common by another will, after twenty years exclusive possession by his companion, and in order to form a ground for the operation of the statute of limitations, be as readily inferred as a right- ful conveyance (b). We may add, that as at law, so also between tenants in common of an equitable estate, such transactions may take place, as will amount to a presumptive equitable ouster, and with twenty years' subsequent exclusive possession by the party evicting, will bar the neglected rights of the other (c). We now proceed to treat of the cases which are com- prised in the second class, and which are distinguished (a) Farrar's case. Skinner 78, twenty years, except under parti- cited; 12 Vin. 58, pi. 11, S. C cular circumstances, will not in- (A) Doe d. Fishar v. Prosser, duce the presumption of an evic- Cowp. 217. Fairclaim v. Shackle- tion, see and consider Peaceable v. ton, 5 Burr. 2604, seems contrary ; Read, 1 East, 568. but the point on the principle of (c) See Harmood v. Oglander, presumption was not agitated. 6 Ves. 199 ; and Lord Eldon's ob- That enjoyment for less than servations thereon, 8 Ves. 131. o 2 196 PRESUMPTIONS OF FACT. from the former by the circumstance of auxiliary evi- dence being coupled with time. This evidence, though inconclusive of itself, is such as either specifically re- cites, or distinctly alludes to, instruments account- ing for the present enjoyment ; or raises an infer- ence from circumstances that such instruments did once actually exist. In cases of this description, the previous possession and the extrinsic testimony mu- tually assist and strengthen each other. The lapse of time furnishes a ground for admitting the secondary evidence, (it being an established rule (a), that without some sufficient cause for supposing the existence of instruments alleged to be lost, collateral proof of their contents shall not be allowed), and it verifies that evi- dence when received ; and the deed, will, or other do- cument, being itself accredited by its correspondency with the late enjoyment, attests and confirms the right which primdjcicie that enjoyment implies (b). Upon these principles, an ancient copy of a deed or will (c), much more an old attested copy (d), or a copy enrolled for the purpose of safe custody {e), and d (a) See 1 Ves. 8S9 ; Skin. 673. 541 . In this case Lord Hardwicke (Zi) Brome v. Carr, Cro. Eliz. compelled a purchaser to accept 863 ; Green v. Proude, 1 Mod. a title, who objected to it because 117; Ward v. Garnons, 17 Ves. the enrolment of the original deed, 134; Bull N. P., 254; 7 Com. from which enrolment the copy- Dig-. 5th edit. 430, tit. Test- was expressed to have been taken, moigne B. 5, pi. 4. See also 2 could not be found : and his Lord- Atk. 72. ship said, that the copy was suffi- (c) Lady Griffin v. Boynton, cient evidence, even had it not Nels. 82; and Gorges v. Foster, been attested. there cited; ]\[edlicot v. Joyner, (e) H — t's case, 11 Mod. Rep. 1 Mod. Rep. 4 ; also 2 Atk. 72. 109 ; Combes v. Spencer, 2 Vern. (d) Harvey v. Philips, 2 Atk. 471. PRESUMPTIONS OF FACT. 197 fortiori a counterpart {a) ; an ancient copy of an ad- mittance to a copyhold, whether or not signed by the steward {hi) ; the rough draft of a release, especially if the original bargain and sale for a year be forthcom- ing (c), and in like manner the draft of a copyholder's admittance (^), or even the steward's book containing minutes of the surrender and admittance {e) ; an old abstract {f), particularly where such abstract appears to have been perused by professional persons, and ques- tions or objections relating to the title to have been raised and answered {g) ; a recital of the supposed deed, in an old writing, as being then extant iji) ; or a recital or memorandum of it in the records of a court of justice in consequence of its having been produced in a former action or suit (/) ; will severally be admitted as satis- factory proof of the prior existence, and of the parti- cular contents of the alleged instrument, when the sub- sequent enjoyment has been consistent with it. Nor will the force of such evidence be destroyed by the fact that an unexecuted engrossment of the deed in question has been discovered {j) ; for that engrossment (a) Anon. 6 Modd. 225; Gar- 15; Comb. 340; 6 Mod. 45; rett V. Lister, 1 Lev. 25 ; 2 Atk. Skip with v. Shirley, 11 Ves. 64. 72; Skin. 673. {i) Wharton's case, Clayton, 89; {h) Dean of Ely v. Stewart, 2 12 Vin. Abr. 231, pi. 2, S. C. ; Bar- Atk. 44. ley's case, 5 Mod. 210, 211; Mathew (c) Whitfield v. Fausset, 1 Ves. v. Tompson, ib. 384, 386 ; Lady 387; Ward v. Garnons, 17 Ves. Holcroft v. Smith, 2 Freem. 260. 134. In this last case, the then claim- (d) Anon. 1 Lord Raym. 735. ants under the lost deed were the (e) Doe V. Hall, 16 East, 208. very parties who before had proved (/) Bull N. P. 254; Style 205 it in Chancery, but at a time when is cited in support of the position. they were not concerned in point (<§■) Ward V. Garnons, 17 Ves. of interest. 134. (;■) Skipwithv. Shirley, 11 Ves, {h) Anon. 12 Vin. Abr. 233, pi. 64. 198 PRESUMPTIONS OF FACT. may have been lost or mislaid at the time by accident, and another prepared in its stead, or it may have been intended for a counterpart or duplicate. In default of the preceding species of proof, parol testimony, it appears, is also admissible (a) ; most un- doubtedly so where there is evidence of a wilful de- struction of the instrument by the opposite party, on the maxim omnia prcesumuntur in odium spoUato- ris {!)). To which may be added, that in confirmation and support of the above-mentioned evidence, the bill or books of account of a deceased solicitor containing charges for preparing or attending the execution of the averred instrument, (provided a receipt or notifi- cation annexed appear, declaring the demand to have been discharged), may be successfully resorted to and relied upon (c). The fact of a robbery having been committed in the place where the original document was probably kept, or of a fire or other accident hav- ing happened which might cause its destruction or loss, will likewise conduce to the same result {d). (a) 10 Co. Rep. 92 b. ; Villiers See Cowper v. Earl Cowper, 2 P. V. Villiers, 2 Atk 71. See also Wms. 720, 748-9, 752. Waller v. Horsface, 1 Camp. 501. (c) Warren d. Webb v. Green- (b) Gartside v. RatclifF, 1 Cha. ville, 2 Stra. 1129, and per Lord Ca. 292 ; Delany v. Tenison, 3 Mansfield thereon, 2 Burr. 1072 ; Bro. P.C. by Toml. 659; Dalston Skipwith v. Shirley, 11 Ves. 64. V. Coats worth, 1 P. Wms. 731. (d) Medlicot v. Joyner, 1 Mod. It may here be remarked, that a Rep. 4 ; Rex v. Sir T. Culpepper, spoliation will not be inferred from Skin. 673; Anon. 12 Vin. Abr. slight circumstances, or where the 233, pi. 15; Cookes v. Hellier, 1 formerexistenceofthe deed alleged Ves. 234; Robinson v. Davis, 1 to be lost is only problematical. Stra. 526 ; Jenk. 19, at the end of case 35. PRESUMPTIONS OF FACT. 199 But it must be observed, that previously to evidence of the kinds just stated being received, the courts ex- pect satisfactory proof of the impossibility of produc- ing the instruments asserted to be lost ; and for that purpose require it to be shown, that search in the pro- per places, and inquiry of the proper persons, have been diligently made. The reason for this precaution is obvious : a contrary rule would lead to, and facili- tate the introduction of endless forgeries {a). In like manner, it is only where a chasm occurs in a public registry or in the rolls of a court of record, or where the books of registration or the court rolls have been destroyed, that other evidence is admitted of that which the registry or rolls, had they remained entire or in existence, would themselves have shown (b). — Accordingly, in Green v. Proude (c), where an old copy of a recovery suffered in a court of ancient demesne was received as evidence of such recovery, not only had there since been a long conformable enjoyment, but the rolls, it was also proved, had been burnt. There are two cases, in which the legislature has thought fit, under certain limitations, to give to pro- bable the effect of positive evidence. By the statute 14 Geo. 2, c. 20, s. 5, a recovery of twenty years standing, in cases where the deeds creating the tenant to the precipe are lost or do not appear, is made (a) SeeSVes. 90. and Aid. 152; 1 Jac and Walk. lb) Hardr. 323 ; per Holt, C J., 620. in Thurston v. Slatford, 1 Salk. (c) 1 Mod. Rep. 117. 284-5 ; and per Bayley^ J., 3 Barn 200 PRESUMPTIONS OF FACT. presumptive proof of such deeds, provided the per- sons joining in the recovery had sufficient estate and power to suffer it, and that on the face of the recovery- there appears to have been a tenant to the writ of entry («). Under this act it has been held, that where a lease, the basis of a subsequent release, and making together with it a conveyance to the tenant to the pre- cipe is lost, the recovery suffered in pursuance of the release constitutes after twenty years decisive evidence of the lease {b). The objection made was, that al- though if both the lease and release had been lost, the statute would undoubtedly have applied, yet as the former onli/ was missing, such instrument might perhaps never have been executed ; and then the deeds making the tenant to the precipe being imperfect, the recovery by necessary consequence could not stand. And to some extent, it must be allowed, this objection had weight ; for the benefit intended by the act is con- strued not to extend to cases where the conveyance to the tenant can be produced : so that in such cases, if the extant deed be ineffective, the recovery grounded upon it will be invalid too (c). It cannot, indeed, for an instant be supposed, that the legislature intended a defective recovery, — defective because suffered on the foundation, and in pursuance of an inoperative deed (a) There is an old case in Vi- was then forthcoming. Anon. 12 ner, decided long before the 14th Vin. Abr. 57^ pi. 7. Geo. 2, c. 20, in which from the {b) Holmes v. Ailsbie, 1 Madd. circumstance of long enjoyment 551. under a recovery, the jury pre- (c) Keen d. Earl of Portsmouth sumed a deed making a tenant to v. Earl of Effingham, 2 Stra. 1267. {he precipe, although no such deed See also per Lord Mansfield, 2 Burr. 1073. PRESUMPTIONS OF FACT. 201 which exists, — to become, after twenty years, evidence of other instruments, on which its validity might pro- perly be sustained. The other case of legislative interference before alluded to is the converse of that last stated. By the fourth section of the same act, the deeds making a tenant to the writ of entry and declaring the uses of an intended recovery are allowed, in cases where no ' record of the recovery can be found, but purchasers for valuable consideration have been since in possession for twenty years or upwards, to be adduced as proof of the recovery having been actually suffered ; provided only that the persons making the deeds and declaring the uses had sufficient estate and power to make a tenant to the writ of entry, and to suffer the recovery. — In regard to this provision, it may be useful to ob- serve, (conformably with what is understood to be the general opinion of the profession), that where the mode prescribed in the deeds for suffering a recovery is manifestly irregular, the statute will not avail. It frequently happens in titles to freehold property, that the chain of documentary evidence is incom- plete from the loss of a bargain and sale for a year, which formed the foundation of an extant release. This deficiency, indeed, is in some instances not very material ; as where the release, on account of a subsisting estate for life or a term of years, admits of being construed as a grant of the reversion. But in others, where the existence of no such particular estate can be shown, the loss, unless supplied by evidence 202 PRESUMPTIONS OF FACT. aliunde^ may perhaps endanger the safety of the title, or prevent its acceptance by purchasers. Where the transaction is of recent date, it will seldom be safe to overlook this objection. For against the claims of persons who are not estopped by the release, the title clearly must be supported by its own proper evidence ; so that unless the possessor be able to prove his right under an effectual and per- fect conveyance, the legal ownership cannot be ad- judged to reside in him. Nor will the usual recital of the bargain and sale in the release avail to his protec- tion ; for that recital is conclusive only against parties and privies to the deed containing it, and their respec- tive representatives. With regard to others, including, as is apprehended, issue in tail, remainder-men, and reversioners («), and not improbably creditors by specialty, the recital except as evidence is wholly inoperative, and as evidence is of but little moment, unless corroborated by circumstances. And although in the course of actual litigation the title might be held good, it is manifest that the above reasons, considered as objections to the completion of a contract for pur- chase, are of such weight as to render the step at least unadviseable. But, on the other hand, where a considerable length of time, as twenty years or more, has elapsed since the date of the release, and the possession has been con- sistent with the limitations of it, there a strong ground (a) Ford v. Gray, 6 Mod. 44 ; Conveyancing, 443 ; and on Ab- lSalk.285. Sedvide 2 Preston on stracts of Title^ I vol.80. PRESUMPTIONS OF FACT. 203 is afforded for supposing that the time would cure the defect, and that the lease would be presumed. From the recital of such an instrument being contained in the release, there is obvious reason to conclude, that the parties were not ignorant of a lease being needful to the operation and legal effect of the release ; and then the maxim omnia prcesmnuntur recte et solenniter esse acta seems directly and forcibly to apply. Under a legislative provision too, we have seen, twenty years are effectual to supply the identical deficiency now spoken of, where a recovery appears to have been suffered according to the directions of an existing re- lease, notwithstanding the consequence be the destruc- tion of an entail. If the legislature has furnished such a precedent, there is surely much greater reason in ordinary cases, where for a similar period the possession of an estate has concurred with the limitations of a re- lease, to hold the recital therein of a bargain and sale to be sufficient proof of such instrument having existed {a). Titles to leaseholds for long terms of years are some- times apparently defective in consequence of the loss of the original leases, the only evidence of the duration of such leases, and of the terms under which they are held, consisting of recitals in subsequent assignments. The question here is, — how far may such recitals be depended on as evidence ? If the term be modern, the loss of the original (a) See 7 Com. Dig. 5th edit. and per Sir T. Plumer, 1 Madd. 4-30, tit. Testmoigne, B. 5, pi. 4 : 55 !•. 204 PRESUMPTIONS OF FACT. demise, unless conclusively supplied by other testimony, will of course be irremediable, whether viewed in re- lation to the claim of the reversioner, or as an ob- jection to the title by purchasers. Nor are recitals of it in later deeds more satisfactorily to be depended on; for those recitals, with regard to strangers, are simply inoperative. Where, however the term is of long standing, as of thirty or forty years, and the enjoy- ment has always been conformable with the terms of the recital, the case materially varies. These circum- stances, especially if a frequent change of owners have taken place, constitute per se an argiunent for the vali- dity of the title, and coupled with the recitals in the successive assignments, furnish a powerfid attestation to the genuineness of those recitals, and to the former existence of the lease as recited {a). Again ; where the alleged demise is of great antiquity, and there is proof by existing deeds of a holding on the supposition of such demise for sixty years or more, the evidence in this case is quite as satisfactoiy as positive evidence ; and objections to the title, on the ground solely of the original demise being lost, are in practice considered as untenable. For besides the increased presumption in favour of the title from longer enjojanent, there may also be taken into account by a purchaser the im- probability of the reversioner's being aware of his right, and the difficidty if conusant of it, while assert- ing his reversionary title, and thereby necessarily ad- mitting a previous tenancy of some kind by the (a) See Astley v. Child, Comb. Denn d. Tarzwell v. Barnard, 340 ; 12 Vin. Abr. 232, pi. 10 ; Cowp. 595. PRESUMPTIONS OF FACT. 205 termor, to avoid giving support to the termor's actual pretensions. An analogous case presents itself where the docu- mentary proof of a title does not extend backwards sixty years, but the history of it for such period may be collected from recitals of former deeds contained in existing instruments. Now here, primo intuitu, from the single consideration that every purchaser is sup- posed to inspect the deeds he recites, and to be satis- fied that they are recited truly, there is much reason to conclude the former existence of those deeds, and the accuracy of the recitals. And if, in addition to this, a long unmolested enjoyment has followed the convey- ances in which the recitals in question are found, the presumption then becomes so strong as scarcely to allow of dispute; since to argue from the non-appearance of the instruments recited to their never having existed, would be repugnant to all the rules and deductions of probability («). Titles accordingly thus situated, are generally regarded as in the main unobjectionable ; and though perhaps not so strictly marketable as to be forced upon an unwilling purchaser, are accepted and relied upon as satisfactory and secure. Circumstances which serve to account for the ab- sence of the earlier deeds, necessarily add weight to the credit which recitals of those deeds in subsisting in- struments possess of themselves. Of this description is the not unusual fact, that sometime previously to (a) See Prosser v. W&iis, 6 Madd. 59. 206 PRESUMPTIONS OF FACT. the date of the oldest deed extant, the property in question formed part of a more extensive estate : from which an inference is conceived to arise, that the muniments of title were retained by the then vendor, or delivered into the custody of a larger purchaser (a). (a) See also other circumstances held enough to account for the loss enumerated ante, p. 198, which are or absence of deeds. PRESUMPTIONS OF FACT. 207 CHAPTER XII. PRESUMPTIONS OF FACT CONTINUED. Of 'presumed Conveyances of outstanding Legal Estates. The apparent outstanding of legal estates may com- monly be attributed to the absence either of some inter- mediate conveyance in the direct deduction of the title from prior to succeeding owners, or of a reconveyance from former trustees whose duties have been dis- charged, or from mortgagees whose debts have been satisfied. It is proposed to consider, under what cir- cumstances in cases of this nature, the principle of presumption may be introduced in order to supply the defect. Where a change in the ownership of an estate appears to have taken place at a remote period, and the title deeds both previous and subsequent are forthcoming, and the possession has gone according to the limitations in the latter, but the deed by which the change of ownership was effected does not appear, such deed, unless the case be met by contrary proof, will be presumed. On this groimd, where a chasm in the documentary evidence of a title occurred between a will creating a trust and a deed forty or fifty years 208 PRESUMPTIONS OF FACT. old purporting at that time to convey the trust estate to trustees then newly appointed, successive convey! ances from the old to new trustees were accounted to have been regularly made (a). In like manner, the existence and regularity of old mesne assignments of leasehold property will be presumed, where a cor- responding possession is shown to have followed the later transfers (ft). And on a similar principle, it seems probable, that where the title to a term is de- rived immediately through assignment from a person described as executor or administrator of a former owner, but the will, or letters of administration, can- not be found, nor proper evidence of them obtained, enjoyment for thirty or forty years under the assign- ment would constitute satisfactory proof, that the will or letters of administration once existed (c). Nor, as it is conceived, would the circumstance of the probate of the will, or of the grant of the administration, not being recorded in the ecclesiastical court, decisively negative the supposition ; for the want of enrolment, without at all violating probability, may be accounted for on the score of negligence {d). It has likewise been determined, that long possession of copyholds under a devise affords the presumption of a surrender having been made to the uses of the will {e). {a) Roe d, Eberall v. Lowe, 1 Doe v. Miirless, 6 Man. and Sehv. H. Black. 446, 459. 110; which cases show, that a will (/)) Goodwin v. Baxter, 2 Black. or letters of administration may be Rep. 1228 ; Anon. 12 Vin. Abr. presumed on proper occasions. 233, pi. 15. See also per Lord (J) See per Lord Keeper North, Eldon, llVes. 350. 1 Vem. 195, on an analo oiis (c) See and consider Rex v. question. Barnsley,lMau.andSelw.377;ana {a) Lyford v. Coward, 1 Veru. PRESUMPTIONS OF FACT. 209 The deeds proper to have caused an alteration in the nature or quantity of interest vested in the earlier proprietors of a family estate, — for example, those which are requisite to convert a tenancy in tail to a tenancy in fee simple, — may likewise, it should seem, be presumed, where from the more modern docu- ments of title it is deducible, that such alteration must in all likelihood have been effected, and the later generations of the family have invariably con- sidered themselves and treated the estate, as possessing the unqualified dominion of it. Such, at least, was the construction in a case where, about two centuries be- fore, an entail had been created of copyhold lands, but several of the issue in tail, on coming successively to the property, had been admitted as tenants in fee simple (a). And in another case (long anterior it is proper to remark to the stat. 14. Geo. II. c. 20), where tenant in tail previously to his marriage was vouched in a recovery and settled his estate, the existence of the deeds making a tenant to the precipe was presumed after a lapse of sixty years (b). Another instance, in which the doctrine under con- sideration has been adjudged to apply, is where land given to trustees in trust to convey at a specified time, as the attaining of majority or the death of a person previously entitled, is delivered into the jdos- session of the cestui que trust at the appointed period, 195, edit, by Raithby ; 2 Cha. Ca. (a) Wadsworth's case, Clay- 1 50, S. C ; Knight v. Adamson, ton's Rep. 26. See also per Lord 2 Freem. 106. See also Wilson Loughborough, 1 H. Black. 461. V. Allen, 1 Jac. and W. 611, 620. (/>) Anon. 12 Vin. Abr. 57, pi. 7. P 210 PRESUMPTIONS OF FACT. and he and claimants under him, for a considerable number of years afterwards, enjoy consistently with the limitations of the trust : here, provided circum- stances do not oppose the supposition, the courts will presume the necessary conveyance to have been executed ; it being but reasonable to conclude that trustees, who evidently had in part performed their trust by letting the party into possession, jJi'oceeded fully to discharge the confidence reposed in them, and to make the conveyance as directed {a). The same construc- tion seems also to hold in regard to trusts to convey upon or immediately after the completion of previous particular trusts, such as the raising and payment of debts, legacies, portions, &c. ; in cases of which kind, if the preceding charges have been long satisfied, sub- sequent possession according with the terms of the ulterior trust will support an inference, that the direc- tion to convey was punctually complied with (b). But the principle just laid down appears to have obtained a still more extensive operation. On two late occasions, instead of an express trust to convey at an appointed time being considered to form a neces- sary term in the proposition, a constructive trust was deemed equally efficacious : and the rule apparently fur- nished by the decisions alluded to is, that where an estate is vested in trustees for a temporary purpose, and no further intention is declared which requires the (a) England v. Slade, 4 T. R. Rep. 500 ; and per Sir T. Plumer, 682; Doe v. Sybourn^ 2 Esp. Rep. 1 Jac. and W. 620. i96, 7 T. R. 3. See also per Lord (h) Wilson v. Allen^ 1 Jac. and Kenyon, 8 T. R. 122, and 2 Esp. Walk. 611, 620. PRESUMPTIONS OF FACT. 211 legal estate to remain outstanding, a trust to re-convey so soon as that purpose is effected arises by implica- tion ; and that taken in connexion with this implied duty, long subsequent possession becomes pri7nd Jcicie evidence of the legal estate having been re-con- veyed («). In Hillary v. Waller {b), vi^hich was the first of these cases, and came before the court in consequence of an objection to the title to an estate which the de- fendant had agreed to purchase, the circumstances were these : By indentures of lease and release, dated in February 1664, Fingreth Hall Farm, the estate in question, was conveyed by Sir Humf)hrey Mildmay to Henry Mildmay and his heirs, upon trust, (subject to the payment of two life annuities, one to Sir Humphrey Mildmay, and the other to Lady Jane Catherine, his wife,) as a collateral security to P. Gurdon and A. Knights- bridge for the title of the manor of H., which they had lately purchased ; and in the mean time until Gordon and Knightsbridge should be evicted, upon trust to pay the rents to Mary and John Mildmay for their lives successively, and then to such persons as they should appoint ; with a further trust, that in case Gurdon and Knightsbridge should not be evicted of the manor of H. before the expiration of eleven years after the death of Sir Humphrey and John Mildmay, or in case there should be such eviction, if Henry Mildmay, his heirs, &c., should not be evicted of the estate in question. (a) See per W. Grant, M. R., (Z>) 12 Ves. 239. 12 Ves. 251-2. 212 PRESUMPTIONS OF FACT. then he or they should convey one full moiety of that estate to Mary Mildmay, or if dead, to such persons as she and John Mildmay should appoint. There was no ulterior trust expressly declared as to the other moiety ; but the deed ended with a general declaration, that the assurance thereby made was for a collateral security to Gurdon and Knightsbridge. In 1694, a settlement was made of the Fingreth Hall Farm on the marriage of a daughter of Mary Mild- may, and in the covenant against encumbrances, an exception was made of the conveyance to Henry Mild- may for the purpose of the collateral security. It was also noticed, that Lady Jane Catherine was then still living. — The agreement for sale to the defendant was entered into about the year 1805, and the objection raised under the circumstances was, that, as a re-con- veyance of the property from the trustee in the deeds of 1664 did not appear to have been executed, the legal estate must be considered to remain outstanding. But this objection both at the Rolls and afterwards on appeal to the Lord Chancellor was overruled. Lord Erskine said, " See what the true meaning of the deed of 1664 is. The manor of H. was sold to Gurdon and Knightsbridge. There was to be security against some encumbrances, to have a speedy termi- nation : for such an indemnity as an estate vested in trustees, as an indemnity not only against encum- brances likely to appear speedily, but at the distance of 1000 years, without any specific danger in the minds of the parties, has never occurred. A title is impeached on account of some specific objection, de- pending upon something to happen within a few years ; PRESUMPTIONS OF FACT. 213 and the indemnity must be co-extensive with the objec- tion. The whole of this estate originally was conveyed to Henry Mildmay. That is the infirmity of the case, that the whole was conveyed. The object of the con- veyance was, first, to secure the annuities to Sir Hum- phrey and Lady Catherine Mildmay (the latter con- tinuing alive till 1694) ; and then this strange clause is inserted, which means, that in case of eviction the trustee should convey one half of this estate to the uses of the settlement. Upon what ground? The whole estate being originally in my trustee, for my in- demnity, upon what ground, if I am evicted, is one half to be so conveyed ? Through all this obscurity I can see the intention; that eleven years were the expected period of the infirmity of the title, and after that period this moiety was to be conveyed ; not the remainder of the estate, for there was another security to be answered. That could not be conveyed till Lady Catherine was dead. A moiety was to be conveyed as there was then an end of the obscurity and infirmity belonging to the title ; but the residue was not to go out of the trustee, as Lady Catherine was living. I am bound to presume, that whenever the danger of the H. estate was at an end, when that time arrived (which was designated by the period of eleven years), or any period, at which it could be said, there was no more danger, then that estate was to be saleable, and a re- conveyance was to be made. There is an answer then as to the length of time. Am I not to presume that the manor of H. is a good estate to the purchaser. It has not been disturbed for 14)0 years. If any claim 214 PRESUMPTIONS OF FACT. were now set up, is it possible to say such a plaintiff could recover in ejectment ? If that could be sup- posed, would not this court grant a perpetual injunc- tion against him, upon such a title, after uninterrupted possession for 140 years?" His Lordship, who had before explained the general princij^les upon which pre- sumptions of deeds and grants are made, added, " Here then is the application of those principles. I presume a conveyance from the trustee of the estate, intended as an indemnity against encumbrances, when for a cen- tury and more every idea of an encumbrance has been at an end ; and if these presumptions are made after twenty or thirty years, because the party being out of possession all presumption is against him, I make it in this instance. It would be very different if the in- tention had not appeared upon the deed. But when the time is designated, viz. eleven years, if I cannot do this at the end of 140 years, it is admitted this ob- jection must continue to any period. By supporting this objection, I should lay down a rule most danger- ous, and destroying the very reason of legal presump- tion. There is a defect and omission in the deed ; not providing that when the aniiuities are satisfied, there shall be a conveyance of the other moiety. My judg- ment is, that at this distance of time I ought to pre- sume that this re-conveyance has been made. I agree, I must make this presumption. My judgment is founded upon this, and I make the presumption with- out sending it to law, being confident a Judge must tell a jury they ought to presume, and they would presume that this re-conveyance had been made," PRESUMPTIONS OF FACT. 215 The case of Doe d. Howell v. Lloyd (a), the second case before adverted to, occurred shortly after that of Hillary v. Waller. There both the lessor of the plain- tiff and the defendant claimed under J. Thomas, who purchased the property in dispute above seventy years before. The conveyance was made to the use of Tho- mas and one Davies, and their heirs, but as to the estate of Davies in trust for Thomas. Davies sur- vived the purchaser. For the defendant it was con- tended, that the plaintiff must be nonsuited, as it did not appear that he possessed the legal estate : but Law- rence J., before whom the cause was tried, told the jury, that the conveyance could only be taken in this form for the purpose of preventing Thomas's wife from claiming dower ; that such purpose had long since been completely fulfilled ; and therefore they might pre- sume, that Davies, or his heir, had conveyed his legal interest to Thomas after the death of Thomas's wife, (an event which, it was proved, had happened in his life-time), or to some of his descendants since. Under this direction the jury presumed a conveyance, and found a verdict for the plaintiff. In the ensuing term, a motion was made by the defendant to enter a nonsuit, on the ground of there being no evidence to presume a conveyance ; but the court refused even a rule to show cause. These decisions have not produced universal satis- faction. The principle they establish has been objected (a) Peake on Evidence, 5th edit. App. 41. 216 PHESUMPTIONS OF FACT. to as likely often to contravene the intention ; and the reasoning has been impugned as inconclusive. It is true, that no improbability is involved in the supposi- tion, that an estate conveyed to trustees for a tem.po- rary purpose, should be meant to be re-conveyed as soon as that purpose has been effected ; but such, after all, is merely a probable, it is not a necessary conclu- sion, and various reasons, the result of particular cir- cumstances, may exist in each case, to induce the parties to keep the legal interest outstanding. So that whe- ther the construction in question corresponds generally with the intention in transactions of this nature, is at least uncertain : and in many cases most undoubtedly the intention must be defeated. But the propriety of the doctrine even as applied to circumstances such as in the cases just recited, appears to be more than sim- ply open to dispute. In Hillary v. Waller, it will be remembered, that with respect to the second moiety of the estate, no further trust was declared than what related to the proposed indemnity, and the su- bordinate disposition of the rents. But clearly, this deficiency allowed of being supplied by more than one supposition. The object might be to provide, by an adequate portion of the trust property, an indemnity to subsist, if not perpetually, at least so long as the parties indemnifying and to be indemnified should mu- tually agree upon. And such, especially when con- nected with the declaration, that the conveyance was designed to operate generally as a collateral security for the title of the estate previously sold to Gurdon and Knightsbridge, seems, at all events, as likely and as reasonable an explication as that adopted by the court ; niESUMPTIONS OF FACT. 217 according to which, it will be recollected, the indem- nity was to continue only until the time appointed for the re-conveyance of the first moiety, and the second moiety was retained solely for the purpose of securing the annuities to Sir Humphrey and Lady Mildmay. So, in Doe v. Lloyd, though it might be true that the conveyance was made to the purchaser and a trustee in order to preclude a present right of dower, it by no means follows, that the trustee was immediately after the death of the purchaser, or of his then wife, to divest himself of further interest in the property by a convey- ance or release. An equal, if not greater, probability is, that the equitable owner, whether the purchaser himself or his heir, but especially the former, might, as the means of preventing a subsequent right of dower, require the legal fee to remain in its existing state. Thus, it is seen, that in both these cases the judgment of the court proceeded on assumptions, which though possibly coinciding with the intention of the parties, might as possibly contradict it: while, in the mean time, precedents are furnished, a resort to which, how- ever beneficial in some instances, must in common practice, on account of the difficulty of understanding where and where not they justly apply, be a constant source of litigation and expense {«). But care must be taken to distinguish from the rule afforded by the decisions last mentioned, those cases where land is conveyed to trustees, without any expressed or manifest object in view requiring the separation of the (a) See Sugden on Purchases, 7th edit. 320. 218 PRESUMPTIONS OF FACT. legal and equitable interests ; or where an estate is covenanted — by articles before marriage, for example — to be settled or limited in a particular manner ; and the beneficial enjoyment in the first instance continues in the same family, and in the second corresponds with the tenor of the articles, but in neither is inconsistent with the fact of the legal interest being suffered to remain outstanding. Under these circvimstances, as the following determinations seem to show, no length of time will avail to establish the presumption of a con- veyance to the parties equitably entitled. On a trial at bar in ejectment for the recovery of a lead mine, the lessor of the plaintiff", to prove his title, produced a grant from the crown, and a conveyance from the grantees of the crown to M. and N., together with a deed of declaration of trust executed by M. and N., stating that the conveyance to them was in trust for the ancestor of the plaintiflf. Sir Richard Grosvenor, and covenanting to convey the legal estate to him. This deed was above one hundred and twenty years old. The Grosvenor family had con- tinued in the possession of the property ever since. To an objection by the defendants that the legal estate was still outstanding in the heir of the surviving trus- tee, it was answered, that there having been a cove- nant to convey so long ago, and possession having gone according to that covenant ever since, a convey- ance at that distance of time might be presumed. But per Curiam : " The objection is fatal, and if insisted upon, it will defeat this ejectment ; for by the deed the plaintiff" has produced, the legal estate appears to PRESUMPTIONS OF FACT. 219 be in a third person, and nothing but a legal estate can be recovered by ejectment. Twenty years' posses- sion, it is true, if nothing more had appeared, would have been a sufficient title : but then it must be a pos- session of a legal estate, under a supposed right to it. The possession here has been equitable only, under an equitable right. The possession legally has been all along in the trustees, in whom the legal estate remains, and to whom the cestui que trust is no more than a tenant at will. And apparent as it is, that the beneficial interest belongs to Sir Richard Grosvenor, the heir of the trustee may yet maintain an ejectment, and take the possession from him. If the possession had been en- joyed pursuant to the conveyance covenanted to be made so long ago, and the possessor could have de- rived no right but under that conveyance, there would have been some reason for presuming such a convey- ance had been made and lost : but here the possession is otherwise accounted for without such a presump- tion, it having gone on and continued in the same channel it would have done without such a convey- ance "(«). By the settlement made previously to the marriage of Edwin Lascelles Esq. with Miss Elizabeth Dawes, it was covenanted, that a copyhold estate belonging to her (part in possession, and part in reversion) should be settled on failure of issue of the marriage, to the survivor of them in fee. The marriage took effect : but although the immediate estate in possession of the (a) Doe d. Sir R. Grosvenor v. Swymmer, 1 Lord Kenyon's Rep. by Hanmcrj 385. 220 PRESUMPTIONS OF FACT. whole of the copyhold afterwards became vested in Mrs. Lascelles, no surrender was made to the uses of the settlement. She died in 1764, having had an in- fant daughter, but who was also then dead. Some time after the death of his wife, Mr. Lascelles was ad- mitted to the copyhold ; and in the entry on the court rolls it was stated, that he claimed admittance by virtue of the settlement on his marriage with Eliza- beth Dawes, the habendum in such entry being " to Edwin Lascelles pursuant to the said marriage settle- ment." After his decease, which took place in 1795, an ejectment for the copyhold in question was brought by the heir at law of Mrs. Lascelles ; in answer to which it was urged, among other grounds, that under the circumstances of the case, and after a possession for above twenty years, a release to Mr. Lascelles from an ancestor of the lessor of the plaintiff ought to be pre- sumed. But the Court observing, that Mr. Lascelles had a right to admittance as tenant by the curtesy, to which his possession might be referred, held that sufficient grounds were not shown to give probability to the presumption of a release («). It is observable, however, that although time alone be not sufficient in cases of the last description, to afford an inference that the legal estate has been conveyed, yet it does not seem necessary, in order to establish such supposition, that direct testimony of the fact should be adduced. The courts are satisfied with reasonable (a) Doe d. Milner v. Brightwen, Kenyon, 2 Esp. Rep. 500. 10 East, 583. See also per Lord PRESUMPTIONS OF FACT. 221 probability, and will receive circumstantial evidence as equally efficacious in this respect with positive. Thus the long and frequent exercise of such acts of owner- ship by the party beneficially entitled as make it proba- ble that the legal interest has resided in him, will enable the courts to entertain the presumption. So that if the proprietors of an estate have from time to time granted heneficial leases {a), mortgaged, or disposed of certain parts of it absolutely by sale {h), or have otherwise dealt with it so as to give reason to think that the title must, at different times, in the course of nego- ciations and transactions with third persons have been inspected, and due care taken that the right to the fu- ture legal enjoyment was secure ; in these and similar cases, a strong and sufficient ground will be afforded for presuming, that either before or at the time of such transactions, the legal estate was got in. But, on the other hand, such acts of ownership as might have been exercised whether the proprietor possessed the legal or only an equitable estate, or which would not neces- sarily lead to an investigation of the title, cannot, it should seem, be depended on as justifying the sup- position of a conveyance. Thus, the making of leases for short terms at rack rent is altogether incom- petent to that end (c). And where a trustee, by recon- veying, would obviously be guilty of a breach of trust, there the strongest and most decisive acts of ownership (a.) Lady Stafford v. Llewellin, and per Lord Eldon in Nouaille v. Skin. 77. Greenwood, 1 Turn. 29. (Zi) See per Le Blanc J., in (c) Goodright v. Swymmer, 1 Keene v. Deardon, 8 East, 266 ; Lord Kenyon's Rep. by Hanmer, 385. 222 PRESUMPTIONS OF FACT. by the party beneficially interested, even a sale for va- luable consideration, will not amount to presumptive evidence of a retransfer having been made of the legal seisin {a). A further instance in which the re-conveyance of a legal estate will be presumed, is where a mortgage in fee of remote date appears to have been long satisfied. This presumption is of course strengthened, if the mort- gage deed be found in the possession of the owner of the property ; and still more if the estate has, at dif- ferent recent periods, formed the subject of mortgage or sale. In 1745, the surviving trustee of a will, for purposes connected with his office, mortgaged the trust estate in fee. The mortgage debt, as it apjjeared, was soon afterwards paid off; for from the year 1753, when the party beneficially entitled came into possession, to 1823, when his son and heir entered into an agree- ment for sale of the estate, no claim for princi- pal or interest had been made. The deed of 1745 was, together with the other documents of title, in the hands of the proprietor : but there was no other evidence of a re-conveyance of the legal estate by the mortgagee, than what was supplied by the length of time, and the fact of a second mortgage having been made in 1791. Under these circumstances, the pur- chaser refused to compleat his contract, insisting that the legal fee must be considered to remain outstanding (a) Keene v. Deardoiij 8 East, 248. PRESUMPTIONS OF FACT. 223 in the representatives of the mortgagee of 1745 : but Sir J. Leach, V. C, on a bill for specific performance by the vendor, declared that unless the rule were, that nothing less than a production of the deed of recon- veyance should be admitted as proof, — which certainly was not the rule, — the court was bound, in the present case, to presume a re-conveyance ; and that the title was such as a purchaser was compellable to take (a). In this place, it may be remarked, that where a mortgage deed in fee, absolutely voidable by payment of the debt on a certain day, is in the custody of the mortgagor, and it cannot positively be shown that in- terest after such day was ever paid, the prima facie supposition in this case is, that the loan was repaid at the time appointed, and consequently that the legal estate does not remain outstanding {b). It has more than once been contended at the bar, that for the purpose of supporting- a long possession by cestui que trusU a disseisin of the trustees might under particular circumstances be presumed. The position is not perhaps altogether unsustainable ; for that such circumstances may exist has even been inti- mated by the Court (c) : though a decision to that effect, has not, it is believed, yet been made. But, indeed, if the point were established, it could not often be of pe- culiar utility ; because the same facts which would sup- (a) Cooke v. Soltau, 15 Dec. (A) Wilson v. Witherby, Bull. 1823, reported in Paget's Law N. P. 110. Journal for Feb. 1824, p. 30 ; 2 (c) See 1 Ves. 435, and 2 Mer. Sim. and Stu. 154, S. C 360. 224 PRESUMPTIONS OF FACT. port the inference of a disseisin wonld equally establish that of a conveyance — perhaps with still higher pro- bability ; the relation between trustee and cestui que trust being regarded at law precisely as that of land- lord and tenant, and the possession of the latter as consistent with, not adverse to, the right of the for- mer {a). This chapter may not inappropriately be concluded with observing, that by a late Act of Parliament {h), it is enacted, that when any persons seised or possessed of any lands or other property, or any estate or inte- rest therein, upon trust or by way of mortgage, should be out of the jurisdiction of or not amenable to the process of the Court of Chancery or Exchequer, or it should be unknown or uncertain whether they be living or dead, or that such persons should refuse to convey or assure such lands or property or estate or interest to the persons entitled thereto, or as they should direct, or to new trustees duly appointed by virtue of some power or authority or by the Court of Chancery or Exchequer, either alone or together with any continuing trustee or trustees, as occasion should require ; it should be lawful for the Court of Chancery or Exchequer to appoint such person or persons as to such court should seem meet, on behalf and in the names of the persons seised or possessed as aforesaid, to convey, surrender, release, assign, or otherwise assure the said lands or property or estate or interest (a) 2 Vent. 329 ; Doe v. Swym- East, 283. mer rthi supra; Smith v. King-, 16 {b) 6 Geo. IV. c 74, s. 5. PRESUMPTIONS OF FACT. 225 to such persons and in such manner as the said court should direct ; and that every such conveyance, release, surrender, assignment, or assurance, should be as valid and effectual, to all intents and purposes, as if the persons being out of the jurisdiction, or not amenable to the process of the said courts, or not known to be alive, or having refused, had by themselves executed the same. a 226 PEESCMPTIONS OF FACT. CHAPTER XIII. PRESUMPTIONS OF FACT CONTINUED. Of presumed Surrenders of Terms. There are perhaps few questions which have given rise to more discussion, or which, from the opposite determinations that have prevailed, have been kept longer in suspense, than that which relates to the pre- sumed surrender of terms. Nor are there many sub- jects of legal inquiry more interesting or more im- portant than the present, whether we regard the high authorities from whom principles so contradictory have emanated, or the magnitude of the interests which are affected. We shall therefore enter more at large than it has yet been our custom to do, into the particulars of the various cases, in which the matter treated of in this chapter has come under judicial considera- tion. It was declared by Lord Mansfield, in the case of Lade v. Holford («), that he and many of the judges had resolved, never to suffer a plaintiff in ejectment to be nonsuited by a term standing out in his own trustee, or a satisfied term to be set up by a mortgagor against a mortgagee ; but that they would, in such cases, (a) Bull N. P. 110. See also Bristow v. Pegge, 1 T. R. 758^ n. PRESUMPTIONS OF FACT. 227 direct the jury to presume the term surrendered. This rule was on several different occasions adverted to by Lord Kenyon in terms of general approbation (a) ; but it must be understood, said his Lordship, with this restriction, that although in either case the jury may presume the term surrendered, yet without such [pre- sumed] surrender the estate in the trustee must prevail at law (b). The proposition even thus qualified has not, however, commanded universal assent. For ad- mitting, that in some cases the doctrine may possibly correspond with the strict principles of justice, yet the effect of such doctrine, if not to overthrow, is at least to weaken the protection, which, according to numerous decisions both in law and equity, the owner of an estate derives from a satisfied attendant term vested for his benefit in the person of his trustee. The advantage which a purchaser acquires by the assignment of a satisfied term to a trustee of his own nomination, was broadly stated by Lord Hardwicke to be a protection against all estates, charges, and encum- brances, created intermediate between the raising of the term and the purchase (c). The importance and beneficial tendency of this rule, whether as respects the security it affords to purchasers, or the consequent facility of disposition it gives to vendors, is obvious : and it cannot excite surprise, that under an im- pression of its extensive utility Lord Eldon, adverting to the rule laid down in Lade v. Holford, though qua- (a) In Doe v. Staple, 2 T. R. (/>) Vid. 7 T. R. 45. 696, and in Roe v. Reade, 8 T. R. (c) 1 T. R. 768. 122. Q 2 228 PKESUMPTIONS OF FACT. lified by the restriction imposed by Lord Kenyon, should have expressed his disatisfaction of it. " Titles to property," said his Lordship, " may possibly be found to be very considerably shaken by the doctrine of the Court of King's Bench as to satisfied terms. In equity a second mortgagee having no notice of the first mortgage, may, if he can get in a satisfied term, thereby protect his estate against the first mortgagee. But when once it is said at law, that a satisfied term shall not be set up in an ejectment, the whole security of that title is destroyed ; so that even with the mo- dern correction which the doctrine has received, namely, that you may set up the term, though satisfied, and put it as a question to the jury, whether a surrender is to be presumed, it still seems to me to be very dan- gerous between purchasers. The leaning of the court ought to be that it was not surrendered : and I fully concur with Lord Kenyon, that it is not fit for a judge to tell a jury, they are to presume a term surren- dered merely because it is satisfied. To that end there ought to be some dealing upon it : otherwise you take from a purchaser the effect of his diligence in having got in the legal estate ; to the benefit of which he is entitled " (a). A recognition of the importance attached to satisfied terms attendant on the inheritance, seems to have formed the ground of decision on one of the points in Doe d. Graham v. Scott {b) ; — which occurred in 1809. There the lessor of the jilaintiff sought to (a) Fid. 6 Ves. 184-5. (/>) 11 East, 478. PRESUMPTIONS OF FACT. 229 recover a rectory, — to which he had been presented by the Earl of Oxford, jointly with three other persons in whom the remainder of an ancient term was vested, — from the defendant, the then incumbent, but whose title as rector, it was insisted, had ceased by reason of his collation to another living. Mr. Scott rested his defence, in part, on the ground, that the term in question was not then subsisting, but must be pre- sumed to have been surrendered, and that as the Earl, previously to Mr. Graham's presentation, had granted the rectory, among other estates, to trustees for pay- ment of his debts, none of the parties presenting had, at the time, any legal interest in the rectory ; so that the presentation of Mr. Graham was void. The term it appeared, had been created in 1727 by an ancestor of Lord Oxford's, to secure 20,000/. to a mortgagee. The next mention of it was in an indenture of 1751, (the marriage settlement of the late Lord Oxford), wherein it was stated that 27,000/., part of the lady's fortune, was to be applied in discharge of the mort- gage : but from that time no notice had been taken of it, nor was there any other evidence of its existence, until in a mortgage deed made in 1802, (subsequently to Mr. Scott's presentation), the term was assigned by the representatives of the original termors, under the direction of Lord Oxford, as a further security for the mortgage money. At the trial the jury returned a verdict for the plalntiif, under the direction of Mr. Baron Thomson, who thought the presumption of a surrender of the term could not be supported ; and the Court of King's Bench afterwards declared their con- currence in his opinion. Lord Ellenborough said, 230 PRESUMPTIOXS OF FACT. « There is no purpose of justice to be answered by pre- suming a surrender in this case ; nor is it for the interest of the owner of the inheritance to have such a presumption made. It may in fact have been his intention to keep alive the term, and to have it assigned to a trustee to attend the inheritance." It will not fail to be remarked in the case just cited, that although the term, after the attainment of the purpose for which it was created, viz. the re-payment of the pecuniary loan, had not been transferred to a trustee to attend the inheritance, and although it had remained unnoticed from 1751 until the assignment in 1802, a period of above fifty years, yet those cir- cvimstances were not considered sufficient to authorize the presumption of a surrender. Now it is evident, that had there been an assignment originally taken expressly to wait on the inheritance, a strong additional reason would have been furnished in support of the opinion of the court ; and accordingly, in an earlier case, where this additional fact presented itself, the jury, in a special verdict, found the term to be still existing, although it had not been dealt with after the assignment for nearly seventy years, and not- withstanding the prejudice which, in the judgment of the court, might thence accrue to the lessor of the plaintiff (who was the rightful owner of the property) in his title to recover. In the case alluded to (a), a term of 500 years, (a) Goodtitle d. Jones v. Jones, 7 T. R. 43. See also Doe v. Cal- vert, 5 Tamet, 169. PRESUMPTIONS OF FACT. 231 created in 1690, was assigned, in 1713, to a trustee in trust to attend the inheritance. The property to which it related not undergoing any change of owner- ship except by testamentary disposition, the term remained without notice until the year 1780, when in a mortgage (expressed to be of the fee) from a then tenant for life of the estate, a declaration was inserted, that the person in whom the term was vested, should stand possessed thereof in trust for the mort- gagee. In 1782, the tenant for life assumed to sell the inheritance in fee simple to the ancestor of the defendant, and the mortgagee joined in the convey- ance. After the death of the tenant for life, and eleven years after the sale in 1782, an ejectment was brought by the remainderman : in answer to which the de- fendant set up the term created in 1690, an assign- ment whereof he had procured since the action was commenced. On the special verdict which enumerated these facts, the Court of King's Bench reversed a judgment given in favour of the lessor of the plain- tiff by the court below. Two decisions (a), however, have been lately made, which confirm all Lord Eldon's apprehensions of the dangerous consequence likely to arise from the rule propounded in Lade v. Holford. The doctrine, (a) Doe d. Burdett v. Wrighte, der in this latter case was found- 2 Barn, and Aid. 710; Doe d. ed on the circumstance of the Putland V. Hilder, ib., 782. To term not appearing to have been these cases may perhaps be added assigned to attend the inheritance, Bartlett v. Downes, 3 Barn, and until very many years after it was Cress. 61G; though it seems pro- satisfied, bable, that the presumed surren- 232 PRESUMPTIONS OF FACT. under which an ancient attendant term was formerly- regarded as the best security for the unmolested enjoy- ment of a new purchase, has been shaken to the very foundation. In the cases alluded to, the incli- nation of the court, instead of opposing the presump- tion of a surrender, was unequivocally given in favour of such presumption, although the consequence was to avoid terms, which had been either actually assigned, or expressly directed to be held in trust, for the very purpose of keeping them on foot. And so far from its being thought unwarrantable to direct a jury to presume a term surrendered when merely satisfied, and no steps taken to obtain a sui'render, decided appro- bation was bestowed on a judicial direction in favour of such presumption, notwithstanding the manifest intention of the parties, and positive efforts made by them, to keep the terms alive. Such appears to be the effect of the cases spoken of. The facts on which the determinations in question were founded, and the arguments used by the court in supporting those deter- minations, were as follow : In Doe V. Wrighte, two several terms of 1000 years, created in 1717 to secure a mortgage debt, were as- signed in 1735, on the debt being paid off, to a trustee, in trust to secure an annuity to M and N, " and afterwards to attend the inheritance." N, the surviving annuitant, died in 1741 ; and the estate re- mained vmdisturbed in the hands of the successive owners of it (that is, of Mrs. Oglethorpe, who died in 1787, and of Sharpe, a devisee for life under her will) from that time until the year 1 813. PRESUMPTIONS OF FACT. 233 No notice in the mean time was taken of the terms, except that in 1801, on a sale of part of the pro- perty under authority of the land tax redemption acts, the devisee for life, in whose possession the deeds creating and assigning the terms then were, covenanted for the production of those deeds to the purchaser. Sharpe dying in 1813, a person who claimed to be heir to the testatrix, entered and remained in possession for about six years, when the real heir (the lessor of the plaintiff) appearing, brought his ejectment. For the defendant, it was insisted, that — the legal estate was outstanding in the representatives of the trustee of the deed of 1735, and that the plaintiff therefore could not recover ; but under the direction of Mr. Justice Park, — who thought that the circumstance of that instrument not being found in the hands of the trustee, but in those of the beneficial owners, whose occupation had so long continued * unfettered by any such clog,' was sufficient to warrant a presumption of the surrender of the terms {a), — the jury found a verdict for the plaintiff. A motion was afterwards made for a new trial, on the ground of a mis-direction by the Judge ; but a rule for that purpose was refused after argument. Mr. Justice Bayley, in delivering his opinion, which agreed with that of the rest of the court, said : " The question is, whether the learned Judge was wrong in directing the (a) We may here, once for all, always retained in the possession notice the inconclusiveness of the of the owner of the fee, and is in reasons offered by the learned no instance delivered over to the Judge, in support of the presumed custody of the trustee ; and that surrender. That inconclusiveness far from such term being consi- appears from the following consi- dered a clog to an estate, it is derations ; that the deed, whereby usually esteemed as an advantage a term is assigned to a trustee in of the highest importance, order to attend the inheritance, is 234 PRESUMPTIONS OF FACT. jury to presume the surrender of the outstanding terms. I think, that, in this case, even if he had used the strongest terms of recommendation and advice, he would have been right. The facts are these: the terms were created by indentures dated October 1st, 1717. In 1735, they were assigned for the purpose, first, of securing the payment of an annuity to the father and mother of Mrs. Oglethorpe, and after their death to attend the inheritance. Mrs. Oglethorpe's mother, the survivor, died in 1741, and she herself made her will in 1786. Now I cannot see any suffi- cient reason for continuing ihe terms during all that period ; for from the time of the death of the an- nuitants the object ceased ; and in point of fact, from 1741 till the present time, with one exception only, nothing is even heard of them. The principle upon which the courts proceed in these cases is, that they will presume a surrender, where it is for the interest of the owner of the inheritance that the terms should be considered as surrendered; and where an estate has continued for so long a period in the same hands, there seems no beneficial purpose which can be an- swered by the continuance of the terms. If, for in- stance, in 1786, these terms had been considered as subsisting, it would have been necessary for Mrs. Oglethorpe to have made inquiry, and to have found out the personal representative of the trustee, after a lapse of fifty-one years, and perhaps at the expense of a limited administration. I, therefore, can see no benefit, but, on the contrary, a great inconvenience to the owner of the inheritance, from keeping the terms alive. It is true, that in 1802 Sharpe covenants for the production of the deed of 1735 : he does not. PRESUMPTIONS OF FACT. 235 however, assign the terms, but only says, ' I find this deed in my possession and I covenant to produce it.' He treats the terms, therefore, as subsisting in jjarch- ment, but says nothing as to whether they are then subsisting in interest or not. The case of Doe v. Scott is very different from this : there the term had been dealt with as subsisting, and it would, be- sides, have been prejudicial to the owner of the inhe- ritance, if a surrender had been presumed. I think, therefore, that the learned judge was quite right in his directions to the jury upon this point." The facts of the case of Doe v. Hilder were these : Mr. Naylor, in 1 762, made a demise of land by way of mortgage for 1000 years, and afterwards by his will devised the land to trustees to sell. In 1779, the trustees conveyed part of the estate to John Newman in fee ; and the term was assigned to W. Denman, in trust for Newman, and to attend the inheritance. The property descended from John to his nephew Richard Newman, who, upon his marriage in October, 1814, settled it on himself for life, remainder to his wife for life, remainder to the issue of the marriage, with the reversion to himself in fee. In 1816, Richard Newman and his wife conveyed their life- estates and his reversion to Sarah Newman, Rich- ard's mother, as a security for a sum of money. Sarah Newman died in the following year, having devised the premises to a person under whom the defendant claimed as tenant. In 1819, an eject- ment having been brought by the lessor of the plaintiff on a judgment recovered in 1808 against 236 PRESUMPTIONS OF FACT. Richard Newman, and upon a writ of elegit and inquisition thereon in 1818 finding R. Newman to be seised in fee of the premises in question, the devisees of Sarah Newman, in order to the defence of the action, procured an assignment of the term of 1000 years from the son and administrator of W. Denman to a trustee for them. The deed creating the term was produced by a purchaser of the larger part in value of the estate comprised in it. The deeds of 1779 and of 1819 were produced by the defendant. At the trial Mr. Justice Park directed the jury to pre- sume a surrender of the term, which they did in ex- press words, and returned a verdict for the plaintiff. A rule nisi was obtained in the following term to set aside the verdict; but, after argument before the Court of King's Bench, and time taken to consider, it was discharged, — the Judges approving of the direction given to the jury. The judgment of the court was delivered by Abbott, C. J. : after stating the circumstances, he said, " We are of opinion, that in this case a surrender of the term might law- fully and reasonably be presumed. The principal ground of objection to the presumption was, that such a presumption had, in no instance hitherto, been made against the owner of the inheritance ; the for- mer instances being, as it was said, all cases of \}vq- sumption in favour of such owner. But this proposi- tion appears to be too extensively laid down. One of the instances in which it has been said that a sur- render shall be presumed, is the case of a mortgagor setting up a term against his own mortgagee ; and this is said generally, and without distinction, between PRESUMPTIONS OF FACT. 237 a mortgagee in fee or for years. But if such a term be set up against a mortgagee for years, and a sur- render presumed, the presumption is made against, and not in favour of the owner of the inheritance. It is made against his interest at the time of the trial, but in favour of his honesty at the time of the mort- gage ; for if the term existed at the time of the mort- gage, he ought in honesty to have secured the benefit of it to the mortgagee at that time, and not to have reserved it in his own power, as an instrument to de- feat his mortgage. And upon the same principle on which a surrender is presumed in the case of mort- gagor and mortgagee, we think it may reasonably be presumed in the present case ; though the principle is applicable not to the judgment creditor, but to other persons. One of the general grounds of a presump- tion is, the existence of a state of things, which may be most reasonably accounted for, by supposing the matter presumed." His lordship then instanced the case of a right of way, which from long use is pre- sumed to be founded in a grant, and from long non- user is supposed to have been surrendered. He then proceeded, — " Where a term of years becomes attend- ant upon the reversion and inheritance, either by ope- ration of law, or by special declaration, upon the ex- tinction of the objects for which it was created, the enjoyment of the land by the owner of the reversion (thus become the cestui qui trust of the term) may be accounted for by the union of the two characters of cestui qui trust and inheritor, and without supposing any surrender of the term ; and therefore in general such enjoyment, though it may be of very long con- tinuance, may possibly furnish no ground to presume 238 PRESUMPTIONS OF FACT. a surrender of the term. But where acts are done or omitted by the owner of the inheritance, and persons dealing with him as to the land, which ought not rea- sonably to be done or omitted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should prevent a surrender from having been made ; in such cases the things done or omitted may most reasonably be accounted for, by supposing a surrender of the term ; and therefore a surrender must be presumed. We think there are such things in the present case. In the year 1814, Richard Newman the debtor, and then owner of the inheritance, made a settlement upon his intended mar- riage, which took place immediately. Upon such an occasion the title and title-deeds of the husband would probably be looked into by professional men, on the part of the husband at least, if not on the part of the wife also : and notwithstanding the assertion, that it is not usual, on such occasions, to take any notice of an outstanding satisfied term ; we cannot forbear thinking that such a term always ought to be, and frequently is, in some way noticed, either by the deed of settlement, or by some separate instrument ; be- cause if it be not noticed, and the termor be not called upon to assign the term to the uses of the settlement, nor any declaration of trust made of it to those uses, it may afterwards be made an instrument of defeating the settlement. The title-deeds usually remain with the husband, and if he be driven by necessity to bor- row money, he may meet with a lender who has no notice of the settlement, and may by handing over his deeds, and obtaining an assignment of the term to him, and other conveyances, give to him a title that PRESUMPTIONS OF FACT. 239 must prevail both at law, and in courts of equity against the settlement. The supposed practice of taking no notice of outstanding terms on such an occasion appears to have been insisted upon before Lord Hardwicke, in the case of Willoughby v. Wil- loughby, as applied to marriage settlements and pur- chases. But that very learned judge, in giving his judgment in that case, says, he had inquired of a very learned and eminent conveyancer, and could not find that there had been any such general rule. And he afterwards proceeds to say, ' Wliere the assignment has been generally in trust to attend the inheritance, and the parties approve of the old trustees, they may safely rely upon it, especially in the case of a pur- chase or mortgage, where the title-deeds always are, or ought to be, taken in ; for if he has the creation and assignment of the term in his own hands, no use can be made of it against him. Such instances as these may account for the practice in many cases, but cannot constitute a general rule.' If in the present case it had appeared, that the deeds relating to the term were delivered to the trustees of the marriage settlement, as one of the securities for the settlement, the case would have stood on a very different ground. The marriage settlement, however, is not the only occasion on which we think it may most reasonably be supposed, that this term, if existing, would have been brought forward. It appears that in 1816, the same Richard Newman, being then indebted to his mother, and desirous of giving her security for the debt, prevailed upon his wife to join with him in con- veying to her the interests they derived under the set- tlement. Upon this occasion, an assignment of the 240 PRESUMPTIONS OF FACT. term, or a delivery of the deeds relating to it, would have undoubtedly been most important acts in favour of the mortgagee, because they would have protected the mortgagee against any subsequent use of the term to defeat her mortgage. On both these occasions, therefore, the term, if existing, could not have been wholly disregarded, without either want of integrity on the part of Richard Newman, or want of care and caution on the part of the professional men engaged in those transactions. We think it more reasonable to presume a prior surrender of the term than to pre- sume such deficiencies. It certainly might not unreasonably be left to a jury to consider to what cause they would attribute these omissions ; and this was done at the trial. It is true that an assignment of the term was taken a few days before the trial for the alleged benefit of the legatees of the mortgagee, Mrs. Newman, on whose behalf we were informed the present cause was defended. But this tardy act can- not be of any avail, and leads not to any presump- tion. The assignment was made by the administrator of the person in whom the term had been vested ; and the administrator would probably be ignorant of any previous surrender made by the intestate. The time for dealing with the term, on behalf of the mort- gagee, was the date of the mortgage. An actual as- signment of the term is more regarded than its mere quiescent existence. It will defeat the title to dower, which its existence only will not, according to the case of Maundrell v. Maundrell, 7 Ves. jun. 567, and 10 Ves. jun. 246, and the cases there cited. These observations respecting the settlement and the mort- gage, receive additional force from the consideration PRESUMPTIONS OF FACT. 241 of their dates. They were both long subsequent to the judgment, and they are the acts of a person mate- rially interested in protecting the land from the judg- ment, and excluding all questions on the subject of priority or otherwise in the case of the settlement, for the sake of his intended wife, and the issue that he might expect by her, and in the case of the mortgage, for the sake of the mortgagee, to whom he was so nearly related, and who was evidently a favoured cre- ditor. And it cannot be denied that an actual assign- ment of the term would have been in many respects more operative against the judgment, than its mere existence. In the case of the mortgage, it would have put an end to all question on the statute of frauds, by making the termor specifically a trustee for the mort- gagee before execution issued, according to the case of Hunt V. Coles, I Com. Rep. 226." The judicial opinion of Mr. Justice Bayley in Doe V. Wrighte, and the judgment delivered in the last case by Abbott, C. J., have been presented to the reader at length, that he may clearly and fully com- prehend the nature of the arguments relied on by the court in support of these respective determinations. We proceed to consider circumstantially the force of those arguments, and to point out where they do not directly afford the conclusion alleged to flow from them. The grounds from which Mr. Justice Bayley ap- pears to have deduced the propriety of presuming sur- renders of the terms in the case of Doe v. Wrighte, were ; first, that such surrenders were for the interest of the owner of the inheritance; secondly, that the 242 PRESUMPTIONS OF FACT. estate having been so long in the same hands, no bene- ficial pui-pose could be answered by a continuance of the terms ; but, thirdly, that instead of a benefit, a great inconvenience would be the consequence; and fourthly, that in the deed of covenant to produce the documentary evidences of title, in which were mentioned the indentures of demise and assignment, no special intimation was given that the terms then subsisted. These particulars, it is conceived, supply but feeble grounds for the inference they are asserted to fur- nish. It is indeed true, that under circumstances, the private interest of the owner of the fee has pre- vailed, in some instances, as a reason for presuming the destruction of terms, and in others, for excluding that presumption. But it by no means follows, be- cause such reason for the ends of substantial justice has had occasional influence, that the principle is to be acted upon universally. And whenever in pre- vious cases this rule was resorted to, the object for which the term was originally created had been accom- plished, and the term itself had since remained unno- ticed. No case had ever gone so far as to admit its operation, where there had been an assignment with an express declaration to attend the inheritance. Nor was it by any means the intention in those cases to establish, that the interest of the beneficial owner, even where fraud was visible, should always determine whe- ther or not the supposition of a surrender must ob- tain. And thus we find Lord Kenyon (to repeat the language used by his Lordship, before quoted) saying, " that although under the circumstances mentioned in PRESUMPTIONS OF FACT. 243 Lacle V. Holford, the jury vi'ight iwesume a term to be surrendered ; yet, without such [presumed] surrender, the estate in the trustee must prevail at law." The jury, his Lordship meant, should draw their own con- clusion from the peculiar circumstances of each case ; and the court ought not to influence their judgment. — But, secondly : to deny the benefit of an existing term, because the estate has continued for many years in the same hands, is to deny in substance the possibility of there being an ancient subsisting title, mortgage, or other encumbrance affecting the fee, against which the term might afford protection ; or that, in the event of a sale, the vendor could be interested in being able to give the purchaser a means so effectual for securing the future enjoyment of the property. To urge the inconvenience of keeping it on foot, at least according to the usage hitherto prevalent with respect to attend- ant terms, is still less to the purjiose. The inconve- nience apprehended by the learned judge was never before thought of ; and rests on an assumption perfectly gratuitous, — that when the owner of an estate, on which a satisfied term is attendant, makes his will, it behoves him, if the trustee be dead, to make inquiry for his per- sonal representative, and supposing there is no personal representative, to be at the expense of a limited admi- nistration. Bu.t not only would all the trouble and ex- pense to be thus incurred be perfectly useless, since a new assignment (for which purpose alone the limited administration could be required) would be unnecessary, the term already attendant on the inheritance mould- ing itself, as a matter of course, to the estates carved out of the inheritance by the will ; but. it is not cus- Ti 2 244 PRESUMPTIONS OF FACT. tomarij in any way to notice an attendant term upon making a devise of the property to which it relates; and what is usual in practice ought surely to be of weight in cases where the performance or omission of an act, from which intention or impression is to be inferred, is in fact governed by practice. And the general usage in this particular is not unreasonable. For if the term were mentioned in the will, the very instrument con- ferring the devisee's title would then show a legal estate to be outstanding, which in some events might prove highly prejudicial to him ; and to direct the term by a separate instrument to accompany the limitations of the fee as given by the will, if it did not frustrate, might at least stand opposed to the ultimate intentions of the testator : — for example, if he should afterwards revoke his will, and die intestate ; in which case the deed of direction would be worse than useless. — The fourth ground taken by the learned Judge in forming his conclusion, was the silence of the deed of covenant as to the existence of the terms. But here again the practice of conveyancers ought certainly to constitute the ground of decision : and in regard to the scheduling of title deeds to be subjoined to a covenant for their pro- duction, that practice is — to omit expressing what par- ticular interests are conferred by such deeds, or their present efficiency, but simply, after noticing the gene- ral descrif)tion of each instrument, to add the number of the parties and the parties' names. The want of spe- cifying, therefore, in the covenant deed in question, the then existence of the attendant terms affords, it is con- ceived, no inference whatever against such fact. On the contrary, if probability be consulted, the circum- stance of the purchaser's requiring a written agreement PRESUMPTIONS OF FACT. 245 for the production of the deeds creating and assigning them, seems rather to furnish an argument in favour of their being still alive : it shows that the purchaser did not consider those instruments to be either useless or irrelevant to his title. The reasons assigned for the determination of the court in Doe v. Hilder appear to arrange themselves under the following heads :— First, that the surrender of a term may be presumed, though against the inte- rest of the owner of the inheritance ; Secondly, that where a term, which, if in existence, ought reasonabhj to be assigned or distinctly noticed on particular occa- sions, is omitted to be assigned or noticed when such occasions happen, a surrender of it may jvistly be pre- sumed from the fact of that omission : And, thirdly, that the making of marriage settlements and mortgages are such occasions. From these premises is deduced the conclusion, that an assignment subsequent to the exe- cution of a settlement or mortgage, (in the case in ques- tion, about five years after the settlement, and three years after the mortgage), cannot, unless in actual con- templation at the time of the settlement or mortgage, be in any view considered efficacious. The position, that a surrender may be presumed against the interest of the owner of the inheritance when there are evident grounds for making that pre- sumption, cannot be denied. The reason, however, given in the present case in proof of the position is singu- larly unhappy. It is drawn from the rule, that a mort- gagor shall not be allowed to set up a satisfied term in order to defeat his mortgagee proceeding in eject- 246 PRESUMPTIONS OF FACT. ment. A general principle is made to rest upon a par- ticular instance, and the rule in that instance construct- ed solely to meet the artifices of fraud. The next point in the judicial argument is, that " where acts are done or omitted by the owner of the inheritance and persons dealing with him, as to the land, which ought not reasonably to be done or omit- ted, if the term existed in the hands of a trustee, and if there do not appear to be any thing that should pre- vent a surrender from having been made ; in such cases the things done or omitted may most reasonably be accounted for by supposing a surrender of the term, and therefore a surrender may be presumed." This rule, if intended to be of universal application, is, to say the least, new, and of questionable expediency. For al- though there may be circumstances, under which it may fairly, and with much probability of tnith, be allowed to govern, as where a series of mortgages or tranfers of mortgages have been made, or several successive changes effected in the absolute ownership of an estate by sale, and no notice in any of such transactions has been taken of the attendant term ; yet to hold that the omitting to make an assignment or declaration of trust, on the occasion of a single marriage settlement, or of a single mortgage, affords sufficient ground for the same inference, is carrying the principle to an extent beyond all former precedent, and is calculated in in- numerable instances to defeat the intention of the parties. For allowing, for the sake of argument, the minor proposition, that an assignment or some distinct notice PRESUMPTIONS OF FACT. 247 of an attendant term is reasonably called for on the making of a marriage settlement or a mortgage, yet the major proposition, that if in such case an assign- ment or distinct notice of a term is not taken there must have been a previous surrender of it, is by no means a fair and legitimate conclusion. It goes to establish a principle, which bears no proportion to the reasons from which it professes to be derived. If, indeed, on any given occasion, it could be shown, that to omit taking an assignment or declaration of trust of an attendant term would be a neglect in the highest degree rash and indiscreet, there, perhaps, the omission might with some plausibility be alleged as evidence of the previous destruction of the term. But it is a very different matter to deduce the same conclusion from the omitting to take an assignment or declaration of trust, where such assignment or declaration is merely a precautionary step which it would be reasonable to take, but which is not essential to the validity of the title. Prudence may suggest many acts as proper to be done, which it would not be directly imprudent to omit. A person who lends a sum of money to his friend may do wisely in accepting the offer of a real security, but it does not follow that he acts un- wisely, if under the circumstances he declines to take advantage of that offer. So it may be politic in a purchaser to require a fine to bar a title of dower, yet not perhaps impolitic to rely for protection on the assignment of an apparently existing term, which in the result may prove equally effective. Again, al- though a purchaser who procures the assignment of a satisfied term would act with discretion in searching for encmnbrances by the vendor, he may not, on the 248 niESUMPTioxs ui- fact. other hand, be chargeable with indiscretion though he foregoes the search, and confides in the term as an ade- quate protection. It is seen, then, that a wide distinc- tion exists between what is reasonable to be done, and what it is unreasonable to omit ; and that that which may be justly predicated of the omission in the latter case, may be very unjust when applied to the former. So that to infer the previous surrender of a term from the omission in question, merely because the obtaining of an assignment or declaration of trust would be rea- sonable only, and because such inference would properly arise if in a particular case it could be shown that the neglect was unreasonable, is neither logical nor just. But the question next presents itself, — Are marriage- settlements and mortgages such transactions, as do in reality require an attendant term to be assigned, or a declaration of trust expressly to be made in favour of the parties entitled. The affirmative of this proposi- tion was the third point assumed. In reply, it may be observed, that although to require an assignment or declaration of trust in the cases proposed would cer- tainly not be unreasonable, especially in the latter case, where the only object is to secure the repayment of a loan ; yet constituted as the law with regard to attend- ant terms has hitherto been understood to be, it seems equally evident, that a dispensation with the above means of auxiliary assurance does not betray a want either of prudence or of due caution. Unquestionably, the interests of claimants under settlements and of mortgagees ought to be carefully and properly se- cured ; but of the nature and degree of the security requisite those persons themselves must surely be PRESUMPTIONS OF FACT. 249 deemed competent to judge : and want of discretion on their part, when the principal means of assurance have been given, ought not to be hastily inferred, be- cause a casual injury is sustained in consequence of their not insisting on every possible instrument of col- lateral protection. To instance first the occasion of making a settle- ment in contemplation of marriage : This, it is mani- fest, is of all others an occasion on which scrupulous care to obtain a title perfectly secure and unimpeach- able can least be looked for. That strict and anx- ious precaution, justly observed by persons whose in- terests are adverse, is almost invariably, and not with out reason, remitted here; the parties naturally re- pose confidence in each other, and a suspicion that the husband would afterwards attempt to defeat the set- tlement is most unlikely to be entertained. The only point of which there are fair grounds to expect that the person taking an interest under the settlement would require to be satisfied, is that the settlor pos- sesses a sufficiently good title for the general purposes of enjoyment. If, therefore, a term attendant on the inheritance reside in the hands of a trustee, as it is no- torious that he will become a trustee to protect the new uses limited out of the inheritance, and that after notice of those uses he would commit a breach of trust by assigning to a stranger, there is strong reason to suppose that a transfer of the term to a new trustee, or an express declaration in writing that the trust of the term should follow the new uses, would not be urged as necessary : the rules of equity, by supplying the place, preclude the necessity of any such pxecau- 250 PRESUMPTIONS OF FACT. tionary measure. The conclusion is, that an omission to advert particularly to an outstanding term in the case under consideration, is by no means sufficient evi- dence of its previous surrender, but is, on the contrary, quite compatible with the fact of the term being still subsisting. With the tenour of these observations the actual practice remarkably coincides. The title to property settled on marriage is frequently not at all investi- gated ; never with excessive strictness. So far from any apprehension being entertained of a future attempt by the husband to defeat the uses of the settlement, the title deeds and settlement itself are commonly suffered to remain in his hands : which circumstance, though agreeing, it is true, with his right as tenant for life under the rules of law, shows at the same time that the parties think it not necessary, for the sake of greater security, to contravene the legal regulation. Proceed- ing upon the same principle, it is most unusual on making a marriage settlement, to direct a term which has before been assigned for the purpose of attending the inheritance, to follow the newly created uses. Such practice had even made considerable progress in the time of Lord Hardwicke («), and of late years has (a) It is remarkable, that in of a satisfied term in that very WiUoughby v. WiUoughby, 1 T. case, made shortly after a settle^ R. 763, — which was cited in order ment on marriage, was expressed to show that the custom of omit- to be in trust merely to attend ting all notice of satisfied terms, the inheritance. And it should be attendant on the inheritance by ever borne in mind, that the express declaration, was not gene- observation of Lord Hardwicke, ral at the making of marriage set- which was quoted by Abbott, C. tlements in 1756, — the assignment J,, extends as well to cases where PRESUMPTIONS OF FACT. 251 almost universally obtained. Nor, however erroneous the practice may be, as it is certainly so accounted by the Court of King's Bench, ought that consideration to affect its validity. The generality of the usage (if no- thing more) should secure it from impeachment ; and deference should be paid to it, both on account of the innumerable cases in which it has been followed, and of the titles which, if the practice be invalidated, must eventually be prejudiced (a). With respect to the implied want of reasonable pre- caution on the part of a mortgagee, who does not require an assignment or declaration of trust of an attendant term for his benefit, the amount of that want of precaution, it should seem, must be measured by the danger the mortgagee supposes himself to incur. Now clearly his determination is liable to be influenced by circumstances : thus, if the loan be needed only to meet a temporary occasion, and there is reason to ex- pect repayment speedily, it is probable that he would an absolute change of owners takes veyancers has settled a great deal place, as where a different modifi- of law, and if we have got no fur- cation only of the uses of an estate ther than this, that the antecedent is made by settlement. practice has been doubted, I should (a) On the deference due to the be disposed to abide by that ante- practice of conveyancers, a point cedent practice. I put this case which the courts both of law and therefore on the practice of con- equity have constantly acknow- veyancers; and after the abuse ledged. Lord Eldon, in a very re- which I have heard at the bar of cent case, where an exchange with the House of Lords and else- the tenant for life of an estate where upon the subject, I am not under a power was attempted to sorry to have this opportunity of be set aside, said, " Whatever stating my opinion, that great other people may say upon the sub- weight should be given to that ject, I think that the practice of con- practice." See 1 Turn. 86. 252 PRESUMPTIONS OF FACT. be satisfied with a security less perfect and complete, than if the borrower's necessity be likely to continue long. But whether a mortgage be made to secure a loan of a temporary or permanent description, there is one ground common to both cases, on which the mort- gagee may readily be imagined to dispense with an as- signment or particular declaration of trust for his pro- tection. It was said by Lord Hardwicke in Willough- by V. Willoughby («), above sixty years ago, (which passage, it may be recollected, was cited by Abbott, C. J., in his judicial argument), that " where an old term has been assigned generally in trust to attend the inheritance, and the parties approve of the old trustees, they may safely rely upon it as a protection against en- cumbrances, especially in cases of a purchase or mort- gage, where the title deeds always are or ought to be taken in ; for if a purchaser or mortgagee has the cre- ation and assignment of the term in his own hands, no use can be made of it against him." With this doc- trine the frequent practice has corresponded {b). In innumerable instances mortgagees, and even purchasers, trusting to the validity of this rule, have omitted all notice of satisfied attendant terms vested in trustees ; but, taking possession of the deeds creating and assign- ing such terms, have esteemed themselves secure of the same advantage and protection as an actual assign- ment would have afforded. Now it deserves remark, that in the principal case the assignment of 1779 to attend the inheritance had, as it in fact appeared, («) 1 T. Rep. 772. See also (h) See Mr. Butler's note to per Lord Eldon, 10 Ves. 259. Co. Litt. 290 b, in section XV. towards the end. PRESUMPTIONS OF FACT. 253 been delivered to the mortgagee, and that the deed creating it was not delivered, simply because that deed belonged to a third person, the purchaser of the larger portion of the estate comprised in the term : and yet, notwithstanding these circumstances, and in contradiction to the passage above quoted from Wil- loughby V. Willoughby, as also to an assertion in the judicial argument in question, admitting that if the deeds relating to the term had been delivered to the trustees of Mr. Newman's marriage settlement, the case, as respected a presumptive surrender, would have stood on very different ground ; the omission to assign or mention the term at the time of the mortgage being made, was relied on as leading to the conclusion that the term did not then exist. There is, however, a higher ground for disputing the proposition, that neglect to require an assignment or declaration of trust of an attendant term, on the occasion of a marriage settlement or a mortgage, raises a presumption of its previous surrender. The ground alluded to is the assumption or pre-supposition, on which those numerous decisions have proceeded, whereby a purchaser, whether of the absolute or of a partial interest, has, by obtaining an old satisfied term, been allowed to protect himself against all charges and encumbrances created between the grant of the term and the assignment. The indisputable inference re- sulting from these cases is, that the neglect of former purchasers to secure to themselves the protection of a satisfied term affords no presumption of a surrender ; the very foundation of such adjudications being that 254 PRESUMPTIONS OF FACT. the term legally and effectively exists. The doctrine of equity on this subject has been before stated, namely, that a hond fide purchaser or mortgagee without no- tice, who procures the assignment of a term waiting on the inheritance to a trustee for his benefit, may thereby protect himself against all prior purchasers, and mortgagees and other encumbrancers {a). It is evident that equity takes it for granted, that the fact of such purchases and mortgages having been made, without a contemporaneous assignment of the term, supplies no argument against its existence. And courts of law, until in the present cases, ever acted on the same principle. Goodtitle v. Morgan {h) is a striking instance. There a term created by way of mortgage was, upon the mortgage money being paid off, assigned to a trustee to attend the inheritance. Mortgages in fee of the estate were afterwards successively made to two dis- tinct persons ; but the term was not noticed on either of those occasions. A third mortgagee of the inhe- ritance procured the term to be assigned to a trustee for his use, and by means of it ejected the prior mort- gagees, who had taken possession of the estate. Another reason, which was adverted to as showing that the term was not in being at the time of New- (a) See per Lord Commissioner Turner v. Richmond, lb. 81; Holt Rawlinson, in Hitchcock v. Sedg- v. Mill, lb. 279 ; Bovey v. Skip- wick, 2 Vern. 159; per Lord Tal- with, 1 Cha. Ca. 201 ; 1 Eq. Abr. bot in Collet v. De Gols, Forr. 69 ; 323, pi. 2, S. C. ; which, though and per Lord Harwicke in Wil- cases where the previous encum- loughby V. Willoughby, 1 T. R. brance was a satisfied statute or p. 767 and 770. See also Ed- judgment, powerfully evince the munds V. Povey, 1 Vern. 187; force of the general principle. Stanton v. Sadler, 2 Vern. 30 ; (A) 1 Term Rep. 755. PRESUMPTIONS OF FACT. 255 man's marriage settlement, or of the subsequent mort- gage to his mother, was an alleged want of integrity on his part in not directing it, if existing, to be as- signed in trust to attend the uses of the settlement, or for the benefit of the mortgagee. But this argu- ment is entitled to little weight. For without insisting on the ground above stated, that such assignment was unnecessary, it belonged clearly, in the first case, to the intended wife or her friends to demand and prepare the requisite instrument ; and in the second, as the universal coui'se of practice evinces, it was not the part of the mortgagor to point out, but of the mort- gagee to consider and decide on, the assurances proper for his security. The only point remaining to be noticed is the asser- tion, that an assignment deferred until the lapse of five or three years after the time when regularly it should have been made, can never be considered as available for the purpose of a collateral security. That this position is not tenable seems to flow as an immediate consequence from what has been before ob- served with regard to the protection, which (as in Goodtitle v. Morgan) the assignment of a satisfied term has been always held to afford against mesne encumbrances ; and this conclusion is corroborated by the verdict which was given in the case of Goodtitle v. Jones («), where the jury found a term to be in existence, although the assignment of it for the secu- rity of a purchaser was not obtained until eleven years (a) 7 Term Rep. 43;, ubi sup. 256 PRESUMPTIONS OF FACT. after the purchase was completed, and until an action of ejectment had been in fact commenced against him by an adverse claimant. The rights of the parties in Doe v. Hilder, as de- cided by the Court of King's Bench, have since been reversed ; though it should be observed, that the reversal was grounded principally on a fact not adverted to at the first trial. An ejectment was brought by the de- fendants in the former action to recover back the estate ; and at the trial they produced in evidence a mortgage deed, still in force, which was made to one Markwicke in 1814, and which contained a general declaration of the trust of all outstanding terms for his benefit. It appeared that the assignment of the term in 1779 upon trust to attend the inheritance had been delivered over to Markwicke, and that a memorandum of that instrument had been inserted in a schedule of the title deeds, which was made at the time of the mortgage and was signed by the mortgagee. In reply to these circumstances, it was urged, that as no notice was taken in the mortgage deed of 1814 of any par- ticular term, nor an assignment made of the term in question, and that when it was recently assigned, or attempted to be assigned, the interest of the prior mortgagee was in no manner provided for or alluded to, there were not sufficient reasons for impeaching the former decision. But under the direction of Gar- row, B., who tried the cause, a verdict was returned for the plaintiff". In his charge to the jury, he said, that " the facts as they then appeared, were very dif- ferent from those proved at the former trial ; and that PRESUMPTIONS OF FACT, 257 his present opinion was sanctioned by the suggestion in that very case. Here the deeds were handed over to the mortgagee before the settlement and the conveyance to Newman's mother, which accounted for the term not having been mentioned in those securities. The circumstance of the deed having been scheduled and handed over to Markwicke showed that the term had not been surrendered." A new trial was afterwards moved for, but refused by the Court of Exchequer ; and both Richards, C. B., and Mr. Baron Graham took the opportunity of strongly expressing their disappro- bation of the doctrine laid down by the Court of King's Bench. The Lord Chief Baron said, that the doc- trine of presumption had of late been carried to a frightful extent ; and Mr. Baron Graham observed, that he had never suffered these presumptions to be made, except in cases very strongly warranting them, and where nothing was shown to the contrary. This account of the second ejectment and motion for a new trial is abridged from the statement in Mr. Sugden's late edition of his Treatise of the Law of Vendors and Purchasers {a). That able writer has also brought together several dicta of the Lord Chancellor, wherein his lordship pointedly and earnestly repro- bates the principle of the cases just considered (Z>). Sir T. Plumer, M. R. likewise expressed a similar (a) Seventh Edit. 437. Mr. mately appeared. This power- Sugden adds the following note : — fully shows that such a presump- " It appears, therefore, that the tion ought not to be made on presumption was made on the first slight grounds." ejectment, against the real facts (Z)) Sugden on Purchases, 7th and merits of the case as they ulti- Edit. 439, et seq. 258 PRESUMPTIONS OF FACT. disapprobation of it {a) : and neither in the offices of the Masters in Chancery, nor in common practice, is the doctrine received or acted on as being permanently- established. The mischievous effect of the above decisions is not, however, inconsiderable. They tend to perplex and create doubts in cases where no diffi- culty would otherwise occur. Purchasers scarcely know when they may, and when they may not, rely on attendant satisfied terms for their protection ; and vendors are encouraged in unjustly objecting to pro- cure representations to trustees in whom old terms were formerly vested, insisting that such terms must be presumed to be surrendered. Thus far, our attention has been confined to the case of a term assigned over to trustees, for the express purpose of being kept on foot, and attending the inhe- ritance. Between this case, and that of a term which has never been so assigned, nor since the completion of the purpose for which it was created has been noticed as continuing in existence, an important dif- ference occurs on the question of presuming a surren- der. The objection in the former instance, which principally arises from the necessity of contravening the declared intention of the parties, cannot apply here where no such intention is manifested. Unem- barrassed by that consideration, it is accordingly held that time alone will affi^rd evidence of the sur- render of a satisfied term : and fifty or sixty years, (a) See 2 Jac. and Walk. 1.59. PRESUMPTIONS OF FACT. 259 though the estate durhig all such period continues in the same family, will be sufficient for this pur- pose (a). The ground of presumption is of course stronger, if in the interim the estate has been fre- quently the subject of mortgage or sale {b). The lapse of twenty years, however, unless sup- ported by other circumstances, cannot be confidently depended on as evidence of a surrender. For even courts of law will not sanction the alleged destruction of a term, until after an interval of twenty years from the time when it is shown to have been satis- fied (c). (a) Emery v. Grocock, 6 Madd. 54. The decision in Bartlett v. Downes, 3 Barn, and Cress 616, may also perhaps have proceeded on this principle. But see Doe v. Scott, 1 1 East, 478, nbi supi-a. (b) Ex parte Holman. Sugden on Purchases, 7th Edit. 443. (c) See and consider Doe v. Calvert, 5 Taunt. 169. s 2 260 PRESUMPTIONS OF FACT. CHAPTER XIV. PEESUMPTIO^S OF FACT CONTINUED. Of the Presumption of Acts and Solemnities in sup- port of Assurances and Rights. We have already seen, that, in support of long pos- session, a presumption will be raised of the instruments originally creating a right to that possession, although no direct proof be offered of the previous existence and subsequent destruction or loss of such instru- ments. The grounds on which the presumption in cases of this sort is made, are still stronger and more determinate, where the requisite documentary evi- dence is extant, but the instruments themselves con- tain no proof, nor is proof to be derived from other sources, of the observance of those collateral acts and solemnities which were necessary to have given them validity. The deficiency of proof in this respect will accordingly be supplied by an adequate and appro- priate presumption. This subject, irrespective of the circumstance of the antiquity of the particular documents, has already been considered in a former chapter («). It was there shown, that in regard to deeds the facts of sealing and delivery, and in regard to wills that a compliance (fl) Chap. ii. sec. 5- PRESUMPTIONS OF FACT. 261 with the proper modes of execution and attestation, may be presumed, notwithstanding a want of distinct evidence of those facts, on the maxim Omnia prcesu- muntur recte et solenniter esse acta donee 'prohetur in contrarium. Now it is manifest, that the general pro- bability of the due execution of instruments, which were meant to have a legal operation, is by many degrees increased by lapse of time ; which, as it affords oppor- tunity to those whose interest it was to dispute their efficiency, shows at once the acquiescence of such per- sons, and also a conviction on their part that all pro- per steps were taken to render the assurances in ques- tion valid. On this principle, supported by a consi- deration of the difficulty, if not the impossibility, of obtaining living testimony, deeds of thirty years stand- ing, by a very ancient rule of law, are admitted in evidence without proof of their execution {a) ; and where the witnesses are dead, deeds of even a less age, (a) See Selw. N. P. 535, 5th Ed. The rule, however, is not con- Phillipps on Evidence, 458, 6th Ed. fined to deeds. It seems to ex- There is an exception to this rule tend to all other paper writings, in cases where a blemish by rasure as wills (Doe v. Earl of Pern- or interlineation appears in a ma- broke, 11 East, 504), receipts (Fry terial part of the instrument : In v. Wood, Selw. N. P. 5th Edit, these cases, to repel the suspicion 535, n.), entries in the books of the arising from the rasure or interli- steward of a manor (Wynne v. neation, the deed must be proved Tyrwhitt, 4 Barn, and Aid. 376), by the attesting witnesses, if alive, and parish certificates of a pauper's or if dead, by the authentication of place of settlement (Rex v. Ry- their hand-writing. Phil, on Ev. ton, 5 T. R. 259; Rex v. Nether- 6th Edit. 459 ; Selw. N. P. 5th Ed. thong, 2 Mau. and Selw. 337) 535. As to the point, whether or though such certificate be not not the attesting witnesses, if executed by the generally re- alive, must be called to prove a quisite number of overseers ard deed twenty years old to have been churchwardens (Rex v. Catesby, duly executed, see also Phil, on 2 Barn, and Cress. 814). Ev. 459, and Selw. N. P. 535, n. 262 PllESUMPTIONS OF FACT. provided the enjoyment of the property to which they relate has corresponded with the limitations, are received as genuine and authentic (a). In the pre- sent chapter we shall trace the further operation of the same principle ; first adducing additional exam- ples (time being a principal ground of inference) of the presumption of acts and solemnities, which com- plete and give an operative force to instruments of common assurance, — whether they be imposed univer- sally by the law of the land, or enjoined in certain instances by private provision only ; and then sub- joining some analogous cases, in which, on the same ground, an observance of formalities required by law to secure and establish particular rights and titles, is primarily supposed. Livery of seisin, when necessary to the perfecting of a lease {b) or conveyance (c), may be presumed after long enjoyment, although the usual indorsement attesting the fact be wanting ; and for this purpose, possession for twenty years may be considered suffi- cient {d). Nor will the circum.stance of there being a memorandum, certifying livery with regard to lands in one county, where the feoffment comprises property in two, exclude the presumption of livery with regard to the lands in the second county ; for the acts being dis- tinct, and taking place at different times, evidence of the performance of each must necessarily be distinct (a) Vid. Co. Litt. 6 b ; Wood's (c) Roll. Rep. 132. pi. 9; 12 Instit. 596. Vin. Abr. 125, pi. 5. (b) Biden v. Loveday, 1 Vern. (d) Rees v. Lloyd, Wightw. 196, cited; Throckmerton v. Tracy, 123; Biden v. Loveday, supra. Plowd. 149, 2d exception. PRESUMPTIONS OF FACT, 263 too {a). In such case, unius expressio non est alterius exclusio. Admittance to a copyhold in pursuance of a preAdous surrender will also be inferred from long enjoyment, especially where corroborated by the fact of the sur- renderee having paid the customary rents {h), or per- formed the accustomed services (c). The lord's accept- ance of a surrender to a third person, by one who claims to be a tenant of the manor, is likewise held to afford ground for supposing the previous admission of the surrenderor : it is a tacit recognition of his tenancy {d). The circumstance of the lord's making a grant of en- franchisement to a copyholder, whose admittance has not been entered on the rolls, is of similar import (e). Enrolment of a deed in a court of record may also be presumed, provided a chasm appears in the rolls about the period when the enrolment ought to have been made (/). But if the rolls have been regularly continued and properly preserved, this presumption cannot be raised ; for no presumption will be enter- tained which is positively opposed to fact. Had the enrolment been made, it would certainly appear : by its non-appearance decisive evidence is furnished that (a) Jackson V Jackson, Sel. (c) See SBulst. 239, Dyer, 292 Cha. Ca.81; Fitzg. 146, S.C. a, pi. 69^ ,^,,X'. Raw (i) Blunt V. Clark, 2 Sid. 61 ; (^) 1 RoH- Abr. 505 X; Raw- Froswell v. Welsh, Roll. Abr. 505, linson v. Greeves, 3 Bulst. 237. (X);3Bnlst.214,217;Godb.269, (e) Cookes v. Helher, 1 Ves. S.C: Cro. Jac. 403, S. C con- 234. i am i<;o. tra ; but on this report of the case, (/) See 3 Barn, and Aid. 152 , see note (n) to Watk. on Copyh- 1 Jac. and Walk. 620. 269. Sec also 7 East, 21, 22. 204 niESUMPTiONs (n- fact. it never was made at all. All argument, founded on probability is excluded {a). It was on one occasion thrown out by Lord Eldon, that from long possession of an estate consistently with the terms of a devise, re-publication of the will might perhaps in some cases be presumed ; where, for example, to obviate the effect of an implied revoca- tion (Z>). And, indeed, after a possession for thirty or forty years, there seems to be no very solid reason why the presumption might not be made. For although the will bear not any internal mark of re-execution, it is still open to suppose that it may have been re- published by codicil ; a supposition, which is forti- fied by the acquiescence on the part of the heir. This presumption would be the more readily enter- tained in courts of equity, which, as it is said, favour the new publication of wills, and rely on slender tes- timony as competent to establish the fact (c). Where any act in the nature of a condition, whe- ther precedent or subsec^uent, is necessary either to vest or to prevent the devesting of a right or interest, long undisputed possession is pj'imd facie evidence of the act having been performed. Thus, where the title of a lay person to a rectory was disputed on the alleged ground that the vicarage was not competently endowed (upon which fact the original grant of im- propriation of the rectory was made conditional) ; (a) Wright \;. Smythies, 10 (Z>) 8 Ves. 129. East, 409; Doe d. Howson v. (c) See Hall v. Dench, 1 Vern, Waterton, 3 Barn, and Aid, 149. 329, 330. PRESUMPTIONS OF FACT. 265 after a lapse of one hundred years, a competent endow- ment was presumed, there having been during that period a constant succession of vicars, all of whom had been inducted as rightfully endowed, and had paid their first fruits and tenths (a). And again, in a late similar case, where the allegation of non-endowment was corroborated by the actual production of a deed of en- dowment which was clearly insufficient, the court, from the unvarying acquiescence of the vicars, inferred the existence of a subsequent deed of endowment supply- ing the deficiencies of the former {b). On a like principle, fifteen years possession of a be- nefice has been held sufficient, in the absence of con- trary proof, to show that the incumbent was regularly inducted, and had read the Thirty-nine Articles (c). In this place, it may not be improper again to no- tice, that, where the effect of a proviso for redemption in a mortgage is absolutely to defeat the mortgagee's estate, and revest the property in the mortgagor ; if the debt has been satisfied, but it cannot be shown at what precise time, whether on or after the day ap- pointed in the proviso, the law, in order to support the beneficial owner's title, will presume the money to have been paid at the specified time {d). The confirmation of a deed by a third person, or his (a) Crimes v. Smith, 12 Rep. 4. {d) Barnardist. 93, per Lord (Z>) WoUey v. Brownhill, M'Clel. Hardwicke ; Wilson v. Witherby, 317. Bull.N. P. 110. (c) Chapman v. Beard, 3 Anstr. 9 42. 266 PRESUMPTIONS OF FACT. consent to it, is likewise presumed after long unmo- lested enjoyment. Thus, if a parson conveys away part of his glebe, the conveyance, after a great lapse of time, with possession under it, will be taken to have been confirmed, as the law requires, by the patron and ordinary (a). And as the right of presentation to a chapel of ease may be obtained by agreement with the incumbent of the parish church, sanctioned by the patron and ordi- nary, such agreement and sanction will, as it seems, be presumed after several successive presentations made by the person claiming in opposition to the incumbent : though, should the real origin of the asserted right ap- pear, and that be manifestly insupportable, the anti- quity of the usage will not defeat the incumbent's title (b). In the case of a modus, too, evidence of payment from a remote period, is deemed conclusive of its law- ful commencement ; that is to say, of the agreement with the parson having been confirmed by the patron and ordinary (c). And so, in the case of a composition real, the consent of the ordinary is held to be sufficiently proved by testimony of ancient enjoyment (d). To the inclosure of a common the consent of the (a) Semb. Cro. Jac. 456. (c) See 2 P. Wms. 573 ; 1 Eq. (Z») Dixon V. Metcalfe, 2 Eden. Abr. 368. 360 ; Amb. 528, S. C. ; Farnwoith {d) Sawbridge v. Benton, 2 V. Bishop of Chester, 4 Barn, and Anst. 372. Cress. 555, 568-9. PRESUMPTIONS OF FACT. 267 commoners is of course essential. But though proof of such consent be wanting, equity will not, for that reason alone, where a common has been enclosed, and a consi- derable length of time has since elapsed, allow it to be again thrown open : the necessary consent will be pre- sumed {a). In like manner, the consent of a landowner to an agreement entered into by his bailiff for the en- closing of the common, will be supposed after long ac- quiescence (h). In both these cases, twenty or thirty years, unanswered, will be sufficient to establish the presumption. On the same principle, as it should seem, the assent of an executor to a bequest may be concluded from the legatee's possessing himself of the subject bequeathed, and retaining it for some considerable time without com- plaint by the executor. For as very slight circumstances (for example, a congratulatory address) are in general sufficient to denote the executor's agreement to a legacy (c) ; so it is conceived, long acquiescence, which in all cases of this kind is esteemed a significant and important circumstance, may, without the aid of other marks of assent, be regarded as affording the requisite presumption. Where the bequest is of pro- perty yielding an annual income, as a leasehold tene- ment, and the executor allows the profits to be appro- priated by the legatee, the argument for the implied assent is manifestly stronger (d). (a) Silway v. Compton, 1 Vem. (c) Com. Dig., Tit. Administra- 32. tion, C 6. (b) Tufton V. Wehtworth, 5 (rf) See Paramour v. Yardley, Vin. Abr. 8, pi. 32. Plowd. 539. 268 PRESUMPTIONS OF FACT. CHAPTER XV. PRESUMPTIONS OF FACT CONTINUED. Of presumptive Evidence in Matters of Pedigree, 8^c. The title to property as regards individual posses- sors, whether founded in the general provisions of law, or in the limitations of a particular instrument, has in most cases to be proved through the medium of various matters in pais that have occurred since the time to which the title is traced. Of this description are marriages, deaths, heirships, survivorships («), the periods of attaining majority or marrying, the number of children in a certain family, the failure of a particu- lar person's issue, or the circumstance of such person never having married. But of these and similar facts or events connected with the vesting and determining of interests and estates, it frequently happens that di- rect proof either does not exist or cannot be obtained. Recourse therefore, in such cases, is of necessity had to secondary and presumptive evidence. The object of the present chapter is to particularize the species of proof which, on occasions of this nature, have been (a) As to the presumpJ;ion of note ; and Mr. Butler's preface to survivorship between two or more the seventh edition of Fearn on individuals who perish in a gene- Remainders. A court of equity ral catastrophe, see Mason v. Ma- will direct an issue to try the fact, son, 1 Mer. 308 ; also 6 East, 82, if the parties desire it. PRESUMPTIONS OF FACT. 269 received as effectual, — more especially with regard to marriages, heirships, and deaths. Recitals in ancient deeds, if consistent with the ap- parent state of a title, are one species of presumptive evidence of the facts which they relate. We have before had occasion to observe, that in themselves re- citals are conclusive only against parties to the instru- ments containing them, and claimants under those parties; and that, in regard to strangers, they are for the most part wholly inoperative. Where, however, the deeds in which they are contained are ancient deeds, they acquire a force originally foreign to them. Corroborated by the circumstance of a cor- responding subsequent enjoyment, a just and reasonable cause presents itself that they should no longer be re- garded in the light of mere ex parte statements ; be- cause not only are the facts recited, and the present possession connected as cause and effect, the one ac- counting for the other, but the quiescence of the per- sons interested in disproving them is a tacit admission of their accuracy and truth. In conformity with these principles, it is the usual practice as between vendor and purchaser, when direct testimony is wanting, to rely upon recitals which are contained in deeds of thirty or forty years standing, and are confirmed by unmo- lested enjoyment since, as sufficient and satisfactory. Memoranda in ancient family bibles, old pedigrees, and other similar family records, are also accounted good evidence, on the ground that they were most probably made, or at least recognized as faithful, by persons 270 PRESUMPTIONS OF FACT. who possessed the means of knowing the truth, and had no inducement to misrepresent it (a). Accordingly, in one case, an old cancelled will which had never been acted on, was held sufficient to prove the fact of seniority between two of the testator's sons, in a dis- pute between their respective representatives (b). On a similar principle, inscriptions upon tombstones and engravings on rings are admitted as evidence. For it is to be supposed that the relations of a family would not permit a monumental inscription to be made, or to remain when made, unless it were true in fact ; and that they would not give, nor would the donee wear, a ring with an error upon the face of it (c). An entry in the day book of a deceased medical practitioner for attendance on a woman at her lying- in, with a memorandum declaring the charge to have been paid, was in one case received as presumptive proof of the day on which the birth took place- The memorandum of payment was held, on the score of self-interest, to repel all objection to the competency of the evidence (d). Declarations by deceased relatives as to particular events occurring in a family, or as to the members of (a) Cowp. 594; 10 East lyo ; (b) Doe d. Johnson v. Earl of 13 Ves. 314. Berkeley Peerage Pembroke, 1 1 East. 504. case, 4 Camp. 401. That a me- (c) Cowp. 594; 10 East, 120; morandum in a father's almanack 13 Ves. 144, 514. of the time of a son's birth, is evi- (d) Higham v. Ridgway, 10 dence, see Herl^ert v. Tuckal, T. East, 109. Raym. 84. PRESUMPTIONS OF FACT. 271 which it consisted, or as to its state and circumstances at a given period, may, when better evidence cannot be obtained, be resorted to as a medium of proof : for example, to prove who was a person's grandfather, when he married, what children he had, &c. ; or to prove the death of a relation beyond sea, or that he died unmar- ried, or without issue {a). Such declarations are en- titled to credit, as they express the common reputation and belief in a family, of facts which are made the subject of anxious and disinterested inquiry. Declarations by a man who has married into a fa- mily are also admissible, because he naturally becomes intimate with and interested in the concerns of his wife's relations (^). But evidence of the declarations of servants or acquaintance, by reason of the difficulty of confining such evidence within proper limits, is not admissible (c) ; much less tradition and opinion current in the neighbourhood {d). The hearsay of deceased relations, to be effectual, must be above all suspicion of having proceeded from interested motives. Little or no weight will be at- tached to declarations, which have been made after disputes have arisen in the family, on the points to which the declarations relate {e) ; for the very prin- (a) Cowp. 594; 10 East, 120; () 7 Ves. 590. See also Dixon 4.04. V. Dixon, 3 Bro. C. C. 510. 282 PRESUMPTIONS OF FACT. fects (a). And in Mainwaring v. Baxter (b), trustees of a legal estate in land given to secure a life annuity- were directed, after a lapse of sixteen years from the time the annuitant was last heard of, to convey to the person entitled in remainder ; a term, however, being created to secure payment of the annuity and of the arrears, in case the annuitant should re-appear. With regard to titles the validity of which depends either on the fact simply of a particular death having taken place, or on the fact of such death having hap- pened within a certain period, it is obvious, that the length of absence without information which the law adjudges to be prima facie evidence of such event, cannot be relied on by a purchaser. It is at least certain that a purchaser would not be compelled in equity to accept a title so circumstanced. Where, however, merely the death of an individual, not his dying without issue, is in question, twenty or thirty years' absence unheard of may perhaps in most cases be considered sufficient to establish the fact : and generally speaking, a purchaser, under such circum- stances, may safely complete his contract. But where proof of a dying without issue is essential to establish the title of the vendor, the lapse of no definite period can be depended on ; unless indeed the party were greatly advanced in life when last heard of, and was then unmarried or had no children, and twenty years or more have since intervened. (a) Lee v. ^Villock, 6 Ves. 605. {b) 5 Ves. 458. PRESUMPTIONS OF FACT. 283 CHAPTER XVI. PRESUMPTIONS OF FACT CONTINUED. Of presumed Grants of Portions of Tithes, of Advow- sons, Faculties, Rents, Commons, Markets, Tolls, Lights, Ways, and Water-courses. I. As to Portions of Tithes. — Claims which are in derogation of the common-law right of rectors to tithes must, to be effectual, rest on one of the four following grounds ; a real composition ; a modus ; a prescrip- tive privilege de non decimando ; or a title in pernancy to a portion. A portion of tithes is a right to part of the tithes of a particular parish existing in some other person than the incumbent. Portions were originally held only by monasteries and abbeys, and by spiritual corpo- rations secular, as bishops, deans and chapters, and parsons incumbents of other churches. But in several instances they are now the property of laymen. On the dissolution of the monasteries, the portions which were held by the religious houses came with the rest of their possessions to the crown, and afterwards for the most part passed by grants from the crown into the hands of private individuals. Alienations from spiritual corporations of the secular order, before the 284 PRESUMPTIONS OF FACT. restraining statutes of Queen Elizabeth (a), are ano- ther cause to which the fact of portions being resident in lay hands may be ascribed ; and a third is found in alienations from lay rectors, since the time when the rectories thus held became impropriate. The two lat- ter possible modes of deriving a title in private per- sons to portions of tithes, enable the courts on proper occasions to admit the doctrine of presumption in questions affecting the right to property of this nature. As to claims founded in the title of a dissolved monas- tery, it is obvious that their validity must be esta- blished on other grounds ; the principle of presumption cannot be resorted to : for whether or not the portion claimed belonged to such monastery may always be as- certained as a matter of fact, by reference to the gene- ral survey of the lands, &c., of the religious houses made on or soon after their dissolution. The cases in which a presumptive title to a portion of tithes has been considered effectual, may be divided into two classes ; first, where there is an actual per- nancy and receipt of tithes issuing from the land of a stranger ; and secondly, where the claim is made by the owner of the land in which the tithes arise. In these two classes of cases, the nature and strength of the evidence necessary to create the presumption varies materially. With respect to the former cases, it is evident that as by one or other of the means before mentioned there (a) 13 Eliz. c. 10 ; 13 Eliz. c. 20. PRESUMPTIONS OF FACT. 285 may be a proper legal title to a portion of tithes, and that as the very circumstance of an actual adverse per- nancy and receipt of them, denying in the most distinct and palpable form the common-law right of the incum- bent, provokes the assertion of that right, if the title to the portion in question be ill founded, the acqui- escence of the incumbent in repeated acts of ownership by the party claiming title to the portion, raises in favour of the latter, as in all other cases of real pro- perty, a fair and legitimate presumption of right. It has accordingly been decided in several cases, that where an adverse perception or receipt of the tithes of a particular district, whether consisting of certain titheable articles only {a), of the whole tithes (b), or of a fractional part of them (c), has been had uninterrup- tedly for a long period of time, it shall be presumed in favour of the pernor, as well against a spiritual (d) as a lay rector (e), that such tithes have been properly se- vered from the rectory to which of common right they appertained; — more especially if ancient conveyances or wills corroborate the supposition. The severance, unless repelled by counter testimony (/), is, in cases where the parsonage remains in the hands of the church, referred to a period antecedent to the disabling (a) Scott V. Airey. Gwil. 1174 ; (d) Scott v. Airey; Edwards v Kinaston v. Clark, 5 T. R. 965, Lord Vernon ; Williams v. Ba- il; Lady Dartmouth v. Roberts, con; ubi supra. See also 17 Ves. 16 East. 334. 126. (b) Edwards v. Lord Vernon, 3 {e) Fanshaw v. Rotherham, 1 Gwil. 1177, n. ; Williams v. Ba- Eden, 276; GwU. 1177. con, 1 Sim. and Stu. 415. (/) As to which evidence see (c) Strutt V. Baker, 2 Ves. jun. Lady Dartmouth v. Roberts; ubi 625; Foxcroft v. Parris, 5 Ves supra. 221. 286 PRESUMPTIONS OF FACT. Statutes in the reign of Queen Elizabeth («), and where the parsonage is impropriate, to a time subse- quent to its passing into lay hands by gi'ants from the crown (b). In the first class of cases, then, long adverse pos- session alone is sufficient to raise a presumption of title. But in cases comprised in the second class, where the owner of the land sets up a title to the tithes is- suing out of that land, long possession alone is not suf- ficient. It was very early established as a rule of law, that rights belonging to the church could not be bound or prejudiced by time. Nullum tempus occurrit eccle- sice. In consequence of this rule (which still obtains) a mere retention or non-payment of tithes, for however long a time it may have continued, cannot as against a spiritual rector be adduced in support of an alleged title to retain them. By virtue of the statute 31 Hen. 8, c. 13, lay impropriators are entitled to the same pri- vilege. By the second section of that statute, it is en- acted, that parsonages belonging to the then or pre- viously dissolved monasteries should be held and en- joyed by the new proprietors in as large and ample a manner as the abbeys themselves had before held them ; which clause, though not without opposition (c), has been interpreted to confer on the present lay possessors a title by common right to the tithes of their impro- priate rectories, as absolute and uncontrolled by pre- (a) See Scott v. Airey ; Lady (6) Fanshaw v. Rotherham, uhi Dartmouth v. Roberts ; Strutt v. supra. Baker; Foxcroft v. Parris; nhi (c) See 5 Ves. 186; 17 Ves. supra; also Oxenden v. Skinner, 127; 2 Price, 347, e^ je^. Gwil. 1513. PRESUMPTIONS OF FACT. 287 scriptions in non decinando, or any other unauthorised pretence, as when those rectories were in the hands of the ancient ecclesiastical corporations («). When there- fore the owner of any particular land sets up a title to the portion of the tithes issuing out of that land, as the only effect between him and the rector is mere reten- tion or non-payment, such a mode of proving title by reason of the above mentioned rule cannot be resorted to : for no presumption is ever made when by pos- sibility it may contradict and subvert a clear rule of law. In order therefore to raise the presumption of title there must in these cases be something more than long possession. Documentary evidence (for the reputation of the neighbourhood {h) is nothing) must be adduced. And by this it must be satisfactorily shown, not only that the tithes claimed have not been paid to the owner of the rectory, but also that they have been held by the proprietor of the land out of which they arise, as a distinct possession under a separate and independent title. For such purpose however, it is not necessary that the original deed of severance should be forth- coming (c), which like all other instruments being liable {a) Bury Corp. V. Evans, Com. 17 Ves. 119; Heathcote v. Aid- Rep. 643 ; Benson v. Olive, Bunb. ridge, 1 Madd. 236, 243 ; Wolley 284; Fanshaw v. Rotherham, 1 v. Piatt, M'Clel. 468 ; Williams v. Eden, 276, 294; Fanshaw v. More, Bacon, 1 Sim. and Stu. 415. Gwil. 780 ; Jennings v. Lettis, lb. {b) Wolley v. Piatt, M'Clel. 952; Nagle v. Edwards, 3 Anst. 468; Donnison v. Elsley, 1 M'Clel. 702 ; Gwil. 1442, S. C. ; Lord Pe- and Yon. 1. tre V. Blencoe, 3 Anst. 945; GwU. (c) See 1 Eden. 297. Contra 1484, S. C. ; Meade v. Norbury, Jennings v. Lettis, 2 Gwil. 952, 2 Price, 338 ; Berney v. Harvey, 9^9. 288 PEESUMPTIONS OF FACT. to be lost or destroyed, secondary or presumptive evi- dence of its existence is admissible. If it can be shown that the tithes in question have at different times formed the specific and express subject of purchase, demise, mortgage, settlement, or testamentary disposi- tion, other evidence will be dispensed with ; and these circumstances will be held effectual to prove that the asserted right is not founded in long retention or non- payment, but in a valid discharge granted by parties competent to make it {a). Where presumi)tive testimony of a severance is given by the production of some ancient deed, it is not material, though the point seems to have been doubted formerly (b), that the person in possession should be able to show all the intervening conveyances, wills, and descents, whereby the title is brought down to him. It is enough if he possess the later evidences of his right ; that is to say, documents or other satisfactory proof carrying back the title sixty years, — the period at w^hich titles to real proj)erty are usually expected to commence. It would be preposterous, that a chasm in (a) Medley v. Talmy, Com. oppose the doctrine established by Rep. 652; 1 Eden, 299,300, cited; cases just cited : but on a careful Fanshaw v. Rotherham, 1 Eden, perusal, it will be found, that 276; 3 Gwil. 1177 ; Scott V. Airey, although his Honor's argument 3 Gwil. 1174; Strutt v. Baker, 2 trenches perhaps too far on the Ves. jun. 625 ; Foxcroft v. Parris, principle of presumption ; the de- 5 Ves. 221. See also Kinaston v. cision did not turn on the want of Clark, 5 T. R. 265, n. ; Berney v. evidence, but on the insufficiency Harvey, 17 Ves. 126. The case and impropriety of the plea, of Heathcote v. Aldridge, 1 Madd. (Z») See Burslem v. Burbage, 4 236, decided by Sir T. Plumer, Gwil. 1324. then V. C., seems at first sight to PRESUMPTIONS OF FACT. 289 the evidence, occuiTing" perhaps at the distance of a centiiiy, should furnish ground to let in the common- law right of the rector, after it has been once dis- tinctly negatived («). As to the least period of time to which in order to create the presumption of a severance evidence of title should ascend, no precise rule can be offered. In none of the cases which have occurred hitherto has the point been distinctly raised; nor do they contain data for a satisfactory opinion. In Scott v. Airey, Edwards v. Lord Vernon, Lady Dartmouth v. Roberts, Fanshaw v. Rotherham, and Williams v. Bacon, the period of adverse enjoyment varied from 130 to 170 years. And although in Medley v. Talmy, on forty- two years' possession the rector's bill was dismissed, yet the authority of that case, should we even disregard the subsequent decision in Jennings v. Lettis {b), (which has never been positively overruled), is too slender to be relied on as warranting the general inference, that forty or fifty years are competent to raise the supposition of a legal discharge. It is conceived there- fore in the present state of the question, that evidence of perception for much less than a century cannot be safely depended on. It remains only to notice, that where there is clear and satisfactory evidence, that prior to the restraining statutes, a portion of tithes which has since come to the hands of the owner of the premises was severed (a) See Fanshaw v. Rotherham, {b) 3 Gwil. 952. See also WoU Strutt V. Baker, and Foxcroft v. ley v. Piatt, M'Clel. 468. Parris, nhi supra. U 290 PRESUMPTIONS OF FACT. from the parsonage to which it originally appertained, long possession alone without any modern proof of holding under a distinct title will be sufficient to esta- blish the asserted right. The rector s claim de com- munijure being distinctly negatived, and the continu- ing adverse enjoyment serving to show that the por- tion was not afterwards re-annexed to the rectory, every reason is obviated for calling in aid the additional documentary evidence which the cases of retention usually require {a). The same rule, by parity of rea- son, applies to the case of tithes held by the land owner? though without any late evidence of a separate title, under an ancient existing discharge granted subse- quently to the time when the parsonage became impro- priate. It may not be amiss to add in this place, that dis- putes between rectors and vicars concerning their respective tithes are sometimes decided on the prin- ciple of presumption. Occasions of this sort are, — first, where the endowment of a vicarage is lost, and the extent of the vicar's right is by consequence not positively known ; — secondly, where the endowment being extant the vicar sets up a claim to tithes not specified in it ; — and thirdly, where the rector asserts a right plainly at variance with what according to the terms of the endowment belongs to the vicar. In each of these cases, evidence of long enjoyment is ad- judged to be conclusive of the pernor's title (b). Thus, (a) Oxenden v. Skinner, Gwil. Brooke, Gwil. 471,2; Jackson v. 1513. Walker, Gwil. 1231 ; Payne v. {})) Gibs. Cod. 720 ; Crimes v. Powlett, ib. 1247 ; Wolley v. Smith, 12 Rep. 4; Robinson v. Brownhill, M'Clel. 317. PRESUMPTIONS OF FACT. 291 If a vicar has been accustomed to receive all the small tithes within the parish, it will be presumed that he was endowed generally of the small tithes ; and therefore if a new titheable matter of that denomi- nation be cultivated, he will be entitled to the tithe of it («). So, where a vicar has been accustomed to re- ceive certain tithes not mentioned in the endowment, his title to receive them is reconciled with the circum- stance of their not having formed part of the original endowment, by presuming that the bishop, in exercise of his indisputable right to augment the vicarage, an- nexed the additional tithes to it by way of augmenta- tion {h). And, in like manner, where a rector proves in himself and his predecessors a perception of tithes appro- priated by the endowment to the vicar, this perception, unanswered and unexplained, will be considered evidence that, at a period antecedent to the disabling statutes, a new agreement was entered into determining what tithes should be accounted rectorial and what vicarial (c). II. As to Advoivsons. — To the time within which actions may be brought to try the title to advowsons, no lea'al limitation now exists of more recent date than the reign of Henry III. The statute 32 Henry VIII. c .2, indeed, restricted the prosecution of claims to real property generally to sixty years. But by a subse- quent act (). But the right to a prescriptive or customary quit rent, so far at least as mere neglect to require pay- ment influences the question, is not considered to be affected by the doctrine of presumption. The courts in no instance suffer length of time to be set up in answer to demands within the limitation fixed as a bar to those demands by the legislature ; and the statute 32 Hen. VIII. c. 37, allows quit rents to be recovered until after a lapse of fifty years from the time when payment was last made. Rents too of this kind are generally, if not always, of trifling amount,— scarcely perhaps requiting the trouble of collection ; so that in this circumstance a further reason presents itself why the courts should refuse to interfere to the prejudice of the owner, where the time specified by the statute has not elapsed (c). It is worthy of remark, that in a late case, where a title was objected to by a purchaser, because cer- tain fee-farm rents created by letters patent in the (a) Read v. Brookman, 3 T. R. (c) Eldridge v. Knott, Cowp. ^^^' 21 i. See also 10 Ves. 467, et sea. {b) See 2 Scho. and Sep. 106. PRESUMPTIONS OF FACT. 299 reign of James I. could not be shown to have been extinguished, the objection was disallowed on proof being adduced, that for above a century no claim respecting the rent had been made on the part of the crown (a). The case was held to fall directly within the provisions of the Nullum Tempus act {b). V. As to Commonable Rights. It was formerly doubted whether common appurtenant, for which in Lord Coke's Commentary on Littleton it is said a man must prescribe (c), was capable of being claimed as the subject of an alleged grant. But this doubt does not now exist. For besides that in the preceding page of the commentary it is mentioned, that appur- tenants might in some cases be created at this day, and an instance is put of a grant to a man and his heirs of common in a moor for his beasts levant and conchant on his manor, which it is said would have the effect of rendering the common appurtenant to the manor {d) ; in Sacheverill v. Porter {e), and the late case of Cowlam v. Slack {f), the question received a distinct decision. The argument was this : — A right of common may unquestionably be claimed by pre- scription ; but prescription is only evidence of a grant before the time of legal memory, by which the right was created; it follows, that the same means might (a) Simpson v. Gutteridge, 1 396, S. C. See also Bradshaw v. Madd. G09. Eyr, Cro. Eliz. 570. {h) 9 Geo. III. c. 16, s. 7. (/) 15 East, 108. See also (c) Co. Litt. 122 a. Doidge v. Carpenter, 6 Man. and Id) lb. 121 b. Selw. 47, (e) Cro. Car. 482 ; SirW.Jones, 300 PRESUMPTIONS OF FACT. be resorted to now as formerly, in order to confer a title to common appurtenant {(i). The title to com- mon in gross stands on the same footing as that to common appurtenant. It may be prescribed for, or claimed under a grant [b). These observations premised, it is manifest on general principles, that the long unmolested exercise of commonable rights will raise the presumption of title. And it seems, that for this purpose enjoyment for twenty years, unanswered, will be sufficient (c). Nor is it competent to rebut the presumption, that within living recollection there was a time when the rights claimed did not exist ; because the conclusion of title is drawn, not from the usage having subsisted immemorially, but from the privilege having been enjoyed without contradiction during a particular period {(l). But long usage does not of itself always furnish a conclusive presumption of right. The nature and cir- cumstances of the enjoyment may be such as entirely to negative that supposition. For instance, the exer- cise of the right may be attributable to mistake, or be the effect of accident ; in which cases, as the owners of the waste may either be ignorant of, or not sus- ])ect the encroachment to be wilful, no adequate cause exists to infer their acquiescence. Consistently with («.) See per Lord Ellenboroughj (d) Cowlam v. Slack, 15 East, 15 East, 115. 108. See also Dniry v. Moore, 1 {!>) Co. Litt. 122 a. Stark. 102, and the dicta of Thom- (c) Per Littledale, J. 3 Barn. son, C. B., and ^\'ood, B. 1 Price, and Cress. 339. 251, 253. PRESUMPTIONS OF FACT. 301 this it has heen held, that a claim to rights of com- mon could not be sustained, where it appeared that the enjoyment was plainly an act of encroachment, and arose either piir cause de vicinage, or in consequence of the boundaries of two contiguous commons being ill defined (a). It remains to notice, that by long non-user (for twenty years for example) a claim to rights of com- mon will be determined, unless there are circumstances which account for the non-user; the same reasons, which in the case of uninterrupted enjoyment induce the presumption of a grant, operating in this instance to support the presumption of a release (h). But it should seem that the commoner will not be precluded from prosecuting his title in a real action, until after the lapse of sixty years (the limit fixed by the sta- tute 32 Hen. VIII, c. 2.) from the last known exer- cise of the asserted right. VL As to Markets. The right of holding mar- kets is a franchise derived from the crown in exercise of the royal prerogative. It is in general conferred with much circumspection, the usual course being to ascertain previously by a legal process (the writ of ad quod damnum), that the new market is not likely to prejudice other markets in the neighbour- hood. If this previous step be omitted, or cannot (a) Dawson v. Duke of Nor- per Littledale, J. 3 Barn, and folk, 1 Price, 246. Cress. 339. (/,) 5 Vin. Abr. 16, pi. 3 ; and 302 PRESUMPTIONS OF FACT. be proved, the circumstance last mentioned is a con- dition on which the validity of the grant depends, as otherwise the law will suppose that the king was deceived in making it («). ^Vhere a person siio m'hitrio sets up a market, an information may be filed against him by the Attorney General ; and if the usurped jirivilege prove injurious to a neighbouring fair or market, he commits a nui- sance which the owner of such fair or market may remove by an action on the case for a disturbance. If, however, the parties interested in preventing the usurpation lie by for the space of twenty years or upwards, that acquiescence unaccounted for will pre- clude relief. The courts will then presume, that the franchise was lawfully acquired by grant from the crown {h). But we should not be warranted in concluding, that after enjoyment for the period of time above specified, the presumption of a grant would be made in the face of circumstances which would account for the acquiescence of the owner of a neighbouring market. Although no case has yet been determined in which the right claimed on the mere ground of enjoyment has been negatived, it is not unreasonable to suppose, that if the party aggrieved by the erection of the new market were under personal disability at the time of such erection, the usual period would be allowed him (a) 2 Inst. 406 ; 3 Lev. 223. East, 298 ; and per Lord Ellen- {h) Holcroft V. Heel, 1 Bos. and borough, C. J. 11 East, 491. Pull. 400; per Le Blanc, J. 3 PRESUMPTIONS OF FACT. 303 after the termination of the disability for resisting the usurpation. VII. As to Tolls. The right to exact tolls, which is another franchise derived from the crown, may likewise, on evidence of long and undisputed enjoy- ment, be presumed to have originated in a grant {a). But the antiquity of the usage must be very great to warrant this supposition, as in the only cases which have arisen on the subject the tolls claimed had been received for centuries. To prevent misconception, however, it is proper to remark, that the right to the tolls in those cases was not founded in prescription ; for in both a time was shown when it was clear they were not paid. The validity of the demand was as- cribed in each, and in the Mayor of Hull v. Horner in distinct and express terms, to the presumption of a grant from the crown. It may not be irrelevant while we are upon this subject to mention the case of Lord Pelham v. Pic- kersgill (Z>), the decision in which case strongly shows the inclination of the courts to give every possible sup- port to long enjoyment. But first we should observe, that toll for passing over a highway cannot be claimed, whether under a grant or by prescription, unless it be founded in some valuable consideration, as the repair of roads, &c. {c) ; because the subject would otherwise be deprived of his common right to pass along the king's (a) Rex V. Carpenter, 2 Show. (b) 1 T. R. 660. 47; Mayor of Hull v. Horner, (c) Trumanv.Walgham,2 Wils. Cowp. 102. 299. 304 PRESUMPTIONS OF FACT. highway, — a right which subsisted before all pre- scriptions. In the case adverted to, the plaintiff claimed toll of persons using a certain highway ; and in pr(5of of his claim produced evidence, that the liberty of pass- ing over the soil and the taking of toll for such pas- sage were both immemorial, and that the land and the tolls, though then severed, were before the time of legal memory in the same hands. The court, on a special verdict, gave judgment for the plaintiff. It should be presumed, they said, that the soil was origi- nally granted to the public in consideration of the tolls, which would be a good and sufficient ground to justify the demand (a). VIII. As to Lights. The right to lights or win- dows overlooking another person's land, is a privilege which, though generally obtained by purchase, ori- ginates not unfrequently either in a temporary per- mission by the adjoining landowner, or in the mere usurpation of the party. In both these cases, unless perhaps the permission in the former has been lately acknowledged, the effect of long unmolested possession is, to confer a legal title to the supply of light. It has accordingly been held in a numerous series of adjudications, that enjoyment of lights for twenty years affords presumptive evidence of an agreement, licence, or grant (Z>). (a) See also Crispe v. Belwood, 162; Dougal v. "Wilson, 2 Saund. 3 Lev. 424; Colton v. Smith, by Serj. Wms, n. 175; Darwin Cowp. 47 ; Rickards v. Bennett, v. Upton, ib. 175 a and b. See 1 Barn, and Cress. 223. also 3 Barn, and Cress. 335, et (b) Lewis V. Price, 2 Samid. by seq. Serj. Wms. n. 175 a ; 1 Vin. Sup. But although twenty years' pos- PRESUMPTIONS OF FACT. 305 The same presumption will be made in favour of a messuaofe which is erected even somev/hat within the boundary of the owner's premises, if it be so near to the boundary that the light coming to the windows be diminished in any sensible proportion by a structure session of lights affor As prima facie evidence of a permanent right, yet the right thus attested is not by necessary consequence abso- lute and unqualified in its degree. On the contrary, it is held to be limited to, and determined by, the extent and manner of the usage : so that any attempt to increase the measure or benefit of the case- ment, — by enlarging, for example, the space admitting light, — may, as a new and distinct act of en- croachment, be successfully re- sisted (Chandler v. Thompson, 3 Camp. 80. See also per Wilmot, C. J. in Dougal v. Wilson, 2 Saund. n, 175.) In like man- ner, an alteration which serves to improve the quality of the light before enjoyed cannot be justified. And therefore in a case, where a building between thirty and forty years old, formerly used for pre- paring malt, was converted into a parish workhouse ; and then the owner of the adjoining land raised a fence, which in a consi- derable measure deprived the house of the benefit of light and air, though the supply was still as great as when it had been used for the purpose of making malt ; Sir A. Macdonald, C. B., before whom the trial of an action for the obstruction took place, said, — It was not enough that the windows were to a certain degree darkened by the wall which the defendant had built. The house was enti- tled to the degree of light neces- sary for a malt-house, not for a dwelling-house. The converting it from the one into the other could not affect the rights of the owners of the adjoining ground. No man could by any act of his suddenly impose a new restriction upon his neighbour. The house in question had for twenty years enjoyed light sufficient for a malt- house, and up to this extent, but no further, the plaintift''s could still require that light shovild be ad- mitted to it. The question there- fore was, whether, if it still re- mained in the condition of a malt- house, a proper degree of light for the purpose of making malt was prevented from entering it, by the wall which the defendant had erected. In conformity with this opinion a verdict was given for the defendant. And it is to be ob- served, that although a rule for a new trial was afterwards granted by the Court of K. B., yet it was not for a misdirection on the point in question. Martin v. Goble, 1 Camp. 320. For cases decided on a similar principle, see Bealey v. Shaw, 6 East, 208; Ballard v. Dyson, 1 Taunt. 279 ; Jackson v. Stacey, 1 Holt. i55. X 306 PRESUMPTIONS OF FACT. afterwards raised on the adjacent land ; and an action will lie for damages sustained by the obstruction (a). The presumption from long enjoyment will in no case be rebutted by evidence that the right exercised had not an existence previously to the commencement of the twenty years ; for the inference (as was before observed with regard to commonable rights) is deduced simply from the user, and the acquiescence of the opposite party, for so great length of time (b). As, however, user and acquiescence are both neces- sary, user alone, although for twenty years and un- molested, if it be not sanctioned by the acquiescence of the party against whom the easement is claimed, is insufficient to raise the presumption of a licence or grant. So that if there be satisfactory proof that the usurpation has been unknown, as the apparent ac- quiescence is then rebutted (for acquiescence implies notice), and the case therefore is deficient in one of the essential grounds to create a presumption, the claim cannot be sustained. Thus, if the premises over-looked by the windows of an adjacent dwelling-house were in lease at the time when the privilege was first exercised, and have continued uninterruptedly since in the hands of the same tenant or his representatives, this will be a decisive answer to any argument grounded solely on the user ; and the knowledge and permission of the tejiant in such case cannot be urged to prove the land- lord's acquaintance with the transaction, because as (o) Cross V. Lewis, 2 Barn, and (b) Darwin v. Upton, 2 Saund. Cress, 686. by Serj. Wms. n. 175, a and b. PRESUMPTIONS OF FACT. 307 the tenant suffers no immediate injury to his own pos- session, and will therefore feel almost as little concern as a mere stranger, it is not to be expected that he should be much on the alert to guard the rights of the reversioner («). The presumptive right may also be rebutted by showing, that at the time when the user began, the adjoining proprietor was under a personal incapacity of making a license or grant, — as by reason of infancy or coverture. Proof of absence from the kingdom will likewise have the same effect. Nor can the presump- tion be made, if the party who is alleged to have au- thorized the use of the easement, possessed only a par- ticular interest in the estate prejudiced by it (b). A particular local usage, or bye-law, will also pre- clude the supposition of a right which is claimed on the ground of long enjoyment alone. In the city of London there is a custom, that the owner of an ancient messuage or of the scite of an ancient messuage, towards or over against which the windows of a neighbouring house front, may build to any height he pleases, notwithstanding a consequent obscuration of the adjacent windows, unless some agreement be proved in restraint of the customary right. In a late case, where the validity and extent of this custom came in question, and it was insisted, after an enjoyment of lights for above a century over a building formerly (a) Daniel v. North, 11 East, (i) Barker v. Richardson, 4 372. See also Cross v. Lewis, 2 Barn, and Aid. 579. Barn, and Cress. 686. X 2 308 PRESUMPTIONS OF FACT. very low, but which had been lately raised, that a grant of the use of the lights corresponding with the late enjoyment ought to be presumed ; Sir T. Plumer, M. R. said, " he could not accede to that argument. To admit it would be to supersede and abolish the custom, which could no longer be applicable to any case. The city would then be subject to the same rule as every other part of the kingdom " (a). As user of the easement confers a right to it, so non-user or abandonment of it will occasion its loss : a presumption is thence afforded, that the right has been either relinquished as needless, or has been re- leased for valuable consideration (h). And it is not necessary for this purpose, if the act of relinquishment be clear and indubitable, that the non-user should have continued for the space of twenty years. Thus, if a person entitled to ancient lights pulls down the wall containing them, and builds a plain wall in its stead, unless some contemporary act be done evincing an in- tention to resume the enjoyment within a reasonable period, the right will be determined from the first (c). And though the abandomennt be at first ambiguous, — as where the windows are merely filled up, or the house is taken down and not rebuilt, — so that no immediate conclusion is furnished against a design to resume the right, and time therefore becomes requisite to esta- blish the supposition ; yet if this state of things cou- (a) Wynstanley v. Lee, 2 {b) Lawrence v. Obee, 3 Camp. Swans. 333. Sed vide Bland v. 514. See also 12 Ves. 205. Mosely, cited in Aldred's case, (c) Moore v. Rawson, 3 Barn. 9 Rep. 58- and Cress, 332. PRESUMPTIONS OF FACT. 309 tinues for two or three years (particularly if the ad- joining landowner has meanwhile been induced to build, or a purchaser to buy for the purpose of building), the ambiguity will be explained by what has taken place subsequently, and the claim will be disallowed. Indeed to permit the neglected and apparently de- serted right to be afterwards acted on, especially under the circumstance of a building having been erected in the mean time, or of a purchase being made for that purpose, and taking into account the ease with which the presumption of a relinquishment might have been prevented, while it would probably contradict the original intention of the party, would certainly dis- appoint the manifest requirements of justice {a). IX. As to Rights of JVcitj.— Twenty years' peace- able enjoyment confers also a presumptive title to a way {b) ; the law, which never pre-supposes an act to have been wrongful, assumes that the privilege com- menced in a sufficient grant. Evidence to rebut that supposition is of course admissible ; and if the usage be shown to have suffered interruption (c), or to have formed the subject of perpetual contest (d), or can be accounted for on the ground of leave, favour, or otherwise than under a claim or assertion of right (e), the legal intendment will fail. But slight circum- stances (such for instance as make it merely probable (a) Moore v. Rawson, 3 Barn. Bull, N. P. 74. and Cress. 338, 341. (c) Hartwright v. Badham 11 {b) Per Lawrence, J. 3 East, Price, 383; particularly pp.394, 301; per Littledale, J. 3 Barn. 397. and Cress. 339; per Best, C. J. 3 (d) Livettv.Wilson,3Bing.ll5. Bing. 118; Keymer v. Summers, (e) Per Le Blanc, J. 3 East, 302. 310 PRESUMPTIONS OF FACT. that the user originated in mistake) will not be suffi- cient to destroy the presumption (a). Although the land over which the way runs has ever since the commencement of the user been in the occupation of tenants, still the neglect of the landlord to interfere during the above period will effectually conclude him, unless it can be shown, that the tenants acted collusively, or the owner's ignorance be distinctly and positively proved : he is otherwise supposed to have been cognisant of the fact, for as the tenants suffer an immediate and palpable injury, and their own interest as well as that of the landlord is affected, it is only fair to conclude, that they would duly apprize the latter of the usurpation (b). The circumstance that within a short time previously to the twenty years commencing the way did not exist is likewise immaterial ; for the presumption is founded solely on the length of recent enjoyment (c). But a right of way thus attested is held to be limited and qualified, with regard to the nature and extent of such right, by the mode of actual enjoyment. If the user has been confined to particular purposes, an un- restricted right cannot be pretended. Accordingly, it has been resolved, that evidence of a presumptive right of way for carriages does not necessarily argue a right of way for all manner of cattle (d). And so, in a late case at N. P., where a right of way for agri- (a) Campbell v. Wilson, 3 East, (c) Campbell v. Wilson, svpra. 294. (d) Ballard v. Dyson, 1 Taunt. (A) See per Lc Blanc, J. 11 279. East, 37.'). PRESUMPTIONS OF FACT. 311 cultural purposes was claimed and proved by the con- stant practice of carrying corn and manure ; it was held, that such qualified enjoyment did not confer a right to use the way for general purposes, and conse- quently, that a claim to carry lime, or the produce of a quarry over it, at all times, and for other than agri- cultural purposes, could not be sustained (a). Whether a way of necessity be commensurate only with the use made of the premises to which it leads at the time of the conveyance, or extends to all uses to which they may afterwards be applied, remains in some measure doubtful ; but it is most probable that the courts would hold the right to be unrestricted. The contrary doctrine, in truth, could proceed only on the supposition, which in general cases it would be monstrous to maintain, that the premises were sold subject to an agreement for their perpetual appropria- tion to a particular purpose. It remains to mention, that as twenty years' enjoy- ment of a right of way unexplained affords the pre- sumption of a grant ; so non-user for such period unless accounted for affords that of a release or sur- render of the right (b). The reason, as was said by Lord Erskine, is plain,— that no man possessed of a right, convenient or necessary to him, would for so long a time wholly abstain from the exercise of it (c). (a) Jackson v. Stacey, 1 Holt, {b) See per Abbott, C. J., 2 455. Cases decided on a similar Barn, and Aid. 791 ; and per Lit- principle are Martin v. Goble, 1 tledale, J. 3 Barn, and Cress. 339. Camp. 320, and Bealey v. Shaw, (c) See 12 Ves. 265. 6 East, 208. 312 PRESUMPTIONS OF FACT. X. As to Rights of Water. — To supiiort a claim to a run of water, evidence must be given either of an actual grant or licence or of long uninterrupted enjoy- ment, the latter circumstance (if at least of twenty- years continuance and unanswered) being held to afford the presumption of a grant {a). And this pre- sumjjtion will not be rebutted, though the enjoyment appear to have commenced at a time, when the estate from which the water is derived was in the occupation of a lessee, provided only that twenty years have elapsed since the lease terminated {h). It also seems to have been thought, that ineffectual attempts mean- while to prevent or put an end to the use of the watercoui'se, serve rather to confirm than weaken the presumption of right (c). After a possession for the period above specified, the owners of the land, through which a run of water passes, or wherein the spring is situate, are so far bound that not only they cannot lawfully divert the flow, but cannot even cut a drain which tends to diminish the quantity {d). With regard to rivers and ancient streams the ge- neral rule is, that every proprietor of land on either bank is entitled to the benefit of the water as it sub- sists in its natural state. No single proprietor, with- (a) Per Lord Ellenborough, 6 the name of Lord Guernsey v. East, 215 ; per Sir J. Leach^ V. C, Rodbridges. 1 Sim. and Stu. 203. {c) Ibid. (Z») Finch v. Resbridger, 2 (fZ) Bush v. Western, Free. Cha. Vern. 390. The same case is re- 530 ; Balston v. Benstead^ 1 Camp, ported in Gilb. Eq. C'a. p. 3, by WZ- PRESUMPTIONS OF FACT. 313 out the consent of the others, has a right to make use of the flow in such a manner as will he to their prejudice. He has power neither to apply it to any purpose which occasions a return of the water on the land above, or a diminution of the quantity below, nor to exercise any trade, or do any other act what- ever, by which the water may be deteriorated in qua- lity. But it must not be concluded from these re- marks, that for the purpose of establishing a right in any individual landholder to a particular mode of using a river or stream, the agreement of the other landowners whose interests are affected should ex- pressly appear. Consent by implication, it has been determined, will equally avail : and this may be in- ferred from unmolested continuance of the particular mode of enjoyment for twenty years ; acquiescence for such period, in the present as in other instances of usurped privileges, being equivalent in legal construc- tion to actual permission (a). But though the common right is capable of being thus abridged and modified in favour of any single proprietor, yet the other proprietors are as before entitled to the free use of such part of the water as continues to flow. And to this it cannot be effectually objected, as proof of a still more enlarged and ex- tensive right in the party acquiring the privilege, that successive appropriations of further portions of the (a) Bealey v. Shaw, 6 East, lor, 1 Sim. and Stu. 203; per 208; Weld v. Hornby, 7 East, Holroyd, J. 2 Barn, and Cress. 195; per Lord EUenborough, 6 690,911. East, 214; per the Vice Chancel- 3J4 PRESUMPTIONS OF FACT. water have at different times been made without mo- lestation ; for as each of such appropriations separately would constitute simply a new encroachment, conjunc- tively they can never, so long as any part of the ele- ment takes its natural course, evidence a right to the whole flow (a). To repel the right which would otherwise arise from long enjoyment, it may be shown that the parties whose interests have been prejudiced, were until lately incapable by reason of infancy, coverture, or other legal disability, to give the necessary licence (b). The fact of the appropriation having been made during the existence of a particular estate may also be relied on for the like purpose ; because to establish a permanent right, the acquiescence of those who are entitled to the inheritance is always necessary (c). And if the enjoy- ment has originated in a written agreement or lease, there can of course be no presumption made in favour of a more extensive claim than what is thus evi- denced (d). The validity of the claim, moreover, may be im- peached by showing, that the alleged privilege is an encroachment on the rights of the public : and there- fore in a recent case, where from a public navigable river not having been used as such for a great length of time, the water of a stream communicating there- (a) Bealey v. Shaw, 6 East, 208. bridges, Gilb. Eq. Rep. 3. See also Martin v. Goble, 1 Camp. (c) Bradbury v. Grinsell, 2 320; Ballard v. Dyson, 1 Taunt. Saund. by Wms. note 175. d. 279; Jackson v. Stacey, 1 Holt, (d) Davis v. Morgan, 4 Barn. i55. and Cress. 8. See also Rex v. {b) See Lord Guernsey v. Rod- Hudson, Stra. 909. PRESUMPTIONS OF FACT. 315 with had for twenty years been enjoyed at a certain height by the owner of a water-mill supplied by the stream ; it is resolved, than an action brought by him against the proprietor of lands higher up the stream, for a diversion of the water by deepening and widen- ing the ancient navigable river, could not be main- tained («). Lastly, it is to be noticed, that as a right to a par- ticular flow or supply of water, or to a certain mode of its occupation, may be gained by long enjoyment, such right may in like manner be afterwards lost by long non-user (b). To the cases in the three preceding sections we may add the following, principally because the decision pro- ceeded on the same general rule, — viz., that twenty years unmolested use of an easement constitutes prima facie evidence of title. In the case alluded to, it ap- peared that the owners of a fishery, or their lessees, had for above twenty years, publicly landed their nets on property belonging to a third person, and had at va- rious times repaired and improved the landing-place : under these circumstances, the jury were held to be fully warranted in presuming a grant of the right of landing to the proprietors of the fishery, notwithstand- ing a total want of evidence on their part to show that the owner of the premises knew of the encroach- ment (c). (a) Vooght V. Winch, 2 Barn. (c) Gray v. Bond, 2 Brod. and and Aid. 662. Bing. 607. (/j) Per Lord Erskine, 12 Ves. 26.5. 316 PRESUMPTIONS OF FACT. As no improper supplement to this chapter, it may- be remarked, that where the acquisition of a right evidenced by long enjoyment, cannot from peculiar cir- cumstances be properly referred to a grant, the courts will adopt such other supposition as agreeing with the facts of the case refers the alleged right to some other lawful origin. Thus the presumption of a reservation is sometimes relied upon ; — as in cases, where the as- serted right or privilege is connected with or extends over property which formerly belonged to the party claiming or his ancestors. Examples of this are some- times afforded in the means resorted to for the purpose of supporting rights to open and work mines, — to cut and carry away timber, — and for the lord of a manor to make occasional approvements without the assent of the commoners (a). (a) Stanley v. White, 14 East, R. 417, n. j Bateson v. Green, lb. 332; Folkard v. Hemmett, 5 T. 411. PRESUMPPIONS OF FACT. 317 CHAPTER XVII. PRESUMPTIONS OF FACT CONTINUED. Ofpt'esumecl Dedications of Rights of Road to the Puhlic. Whether time be necessary to create the presump- tion of the dedication of a road to the public, is a point on which there has not been a universal concurrence of opinion. Mr. Justice Chambre maintained the ne- gative proposition. He said, that no particular time was necessary for such purpose. A dedication was not, like a grant, presumed from length of time. If the act of dedication were unequivocal, it might take place immediately : as where a man builds a double row of houses with a street between opening at each end into an ancient public road, and sells or lets the houses ; in such case the street becomes a highway in- stantly {a). The instance put by the learned Judge is an extreme case, the strongest perhaps which could be offered in support of his opinion. But even, in such case, it is conceived, a strict application of the rule would be a severe' measure. Before the supposed street were (a) 5 Taunt. 137. See also per Lloyd, 1 Camp. 260 ; and Lade v. Lord Ellenborough in Rex v. Shepherd, Stra. lOOJ.. 318 PRESUMPTIONS OF FACT. finished, the question of dedication clearly could not arise ; for although a way would be requisite while the houses were building for the purpose of carrying ma- terials, it would not be necessary, in order to exclude the public, that such way should be inclosed {a). If so, surely the lapse of a few days or of a few weeks after the completion of the street, before the erection of a gate at one or each end of it, could not amount to decisive evidence of a dedication, or prevent the owner of the soil from confining the general use of the road (as might always have been his intention) to the accommodation of the particular householders {h). It seems unreasonable to contend that the usage becomes so established in this short period as to cause the de- termination of it to be felt and resented as the delibe- rate invasion of a public right. Other Judges have viewed the subject in a very dif- ferent light from Mr. Justice Chambre : and it is cer- tain that, in every instance where the question has come distinctly before the courts, time was considered as an important feature in the case. It may therefore be confidently laid down, that whenever a public right of way in a road or street is claimed on the ground of a presumptive dedication, it is essential, in order to establish such presumption, that the owner of the soil has for some considerable period submitted to the general usage. What precise length of time may be considered de- (a) 5 Taunt. 135, 140, 142. {b) See Roberts v. Karr, 1 Camp. 262. PRESUMPTIONS OF FACT 319 monstrative of the land-owner's acquiescence has not yet been determined. In one case {a) six years, and in another before Lord Kenyon (b), where the user begun during the existence of a lease which had since expired, eight years were held sufficient. But these decisions cannot be implicitly relied upon. The in- competency of a lapse of two or three years to afford the presumption of a dedication, has been expressly decided (c) ; and Lord Kenyon's opinion in the case above referred to has by no means received the gene- ral approbation of later Judges (d). If, said the Lord C. J. Mansfield, eight or six years be enough to show a relinquishment to the public, why may not one ? why not half a year ? It would then become necessary for every reversioner coming into possession of his estate after a lease, instantly to put up fences all round to prevent dedications (e). However, it seems not impro- bable, that where, as in the case put by Mr. Justice Chambre, an intention to dedicate is plainly and signi- ficantly shown from the outset, submission to the pub- lic usage for six or eight years, or possibly even for a less period, would preclude the owner of the soil from re-asserting his ancient right. But, under whatever circumstances a road begins to be publicly used, unmolested enjoyment of it for (a) See the case alluded to by Wood v. Veal, 5 Barn, and Aid. Lord Kenyon in the note 11 East, 454. 37g. (d) See per Heath, J., 5 Taunt. {b) Rugby Charity v. Merry- 140; per Holroyd and Best, Js. weather, 11 East, 376, n. 5 Barn, and Aid. 457. (c) Rex V. Hudson, Stra. 909 ; (e) See 5 Taunt. 142. 320 PRESUMPTIONS OF FACT. twenty years, with the knowledge of the owner of the inheritance in possession, will, it should seem, be con- clusive evidence of a dedication. It is true, the rule has not pointedly been so laid down : but the general principle being admitted that acquiescence for some period of time will establish the public right, it follows by analogy to decisions concerning private rights of way, that twenty years will operate to establish that of the public. Nor does the circumstance of the street or road not forming a convenient way or passage from one particular point to another, — as by its opening at both ends after a circuit without any other outlet into the same street, — make the case an exception from the general rule {a). Still less that it was originally in- tended only for private convenience {h). For the ques- tions are not, what was the original intention, or what is the quantum of benefit derived to the community ? — but what is the intention as ultimately manifested ? and has the public in fact used and enjoyed a right of passage without interruption or not? — It has also been determined, that the circumstance of the estate havinff been in the hands of a succession of tenants, unless the landlord's ignorance of the user be clearly shown, will not excuse his neglect (c). Nevertheless, to establish a public right of road, it seems not necessary that the dereliction by the owner of the soil be absolute and unqualified. The privilege may be under restrictions in regard both to the time and the manner of using it ; in other words, the right wiU (a) Rex V. Lloyd, 1 Camp. 260. (c) Rex v. Barr, 4 Camp. 16. {h) IbicL PRESUMPTIONS OF FACT. 321 be exactly commensurate with the actual user (a). Thus it has been held, that a right of passage over a bridge may be confined to the occasion solely of floods (b)- And on the same principle, where a street was erected leading out of a highway and terminating at the fur- ther extremity on land which was enclosed by a fence, it was held, that the street was not so dedicated to the public, that the owner of the adjacent land on removing his fence, might enter it by the opening thus made, and use it as a common high-road (c). Whether a cul de sac^ or street which is not a tho- roughfare, be a highway, is a point by no means set- tled. The dicta of Judges who have mentioned the subject are much at variance. Lords Kenyon and El- lenborough and Mr. Justice Chambre, on the one side, are opposed by the Lord Chief Justice Abbott, by Sir James Mansfield C. J., and Heath and Best, Js., on the other. Lord Ellenborough, indeed, seems to have assumed the affirmative of the question without much (a) See Lade v. Shepherd, Stra. poses, I suppose this had. There- 1004. fore every thhig would have been (6) Rex V. Marquis of Buck- done which has been done, though ingham, 4 Camp. 189; Rex v. there were no idea of a dedication Inhabitants of Northampton, 2 to the public, and although the Mau. and Selw. 262. plaintiffs had built a wall on their (c) Woodyer v. Hadden, 5 own land before they built the first Taunt. 126. In this case the house." The above circumstances, fact of the street having been however, in Rex v. Lloyd, I lighted, paved, cleansed, and pub- Camp. 260 (in which case to be licly watched, was urged as proof sure the street was a thorough- of its being abandoned to the fare) were relied on by Lord Ellen- public : but Mansfield C. J. said, borough as evidence of a dedica- " As every parish in London has tion. an Act of Parliament for these pur- 322 PRESUMPTIONS OF FACT. consideration. It was at Nisi Prius (a), and in a case where the locus in quo was clearly a thoroughfare, though on account of its terminating at both extremi- ties in the same street was little frequented. To an objection on this score against an alleged dedication, he remarked, that to assert a public right could not exist, because a particular place did not lead conve- niently from one street to another, would go to extin- guish all highways where (as in Queen-square) there was no thoroughfare. But Lord Kenyon appears to have weighed the matter more deliberately ; and ad- dressing himself to the point in the Rugby Charity case (b) he said, that as to Lamb's Conduit-street not being a thoroughfare, that fact could make no differ- ence with respect to the relinquishment to the public. " If it were otherwise, in so great a town as London, it would be a trap to make people trespassers." This sentiment was adopted by Mr. Justice Chambre, who added, that every street was, as a matter of course, laid down for the purpose of being a highway (c). On the other hand, Mansfield C. J., referring to the opinions of the two Judges last named, declared his entire disagreement. While a street was open with- out any prohibitory notice against , going there, he thought the simple fact of its being open and inviting persons to enter it would be enough to support a plea of licence. He did not know, that a street obstructed (a) Rex V. Lloyd, 1 Camp. 260, (b) 11 East, 376, n. 261. (c) 5 Taunt. 13T-13S. PRESUMPTIONS OF FACT. 32S at one end became a public way for all purposes ; all that people in such a street could require, would be a right of passing; and, as then advised, he did not know, that persons coming into a square, with horses and carriages to exercise for their recreation, and breaking up the pavement, had a right to do so ; or that they would not, after notice, be trespassers (a). A similar view was taken of the subject by Mr. Jus- tice Heath {b). He thought the owner of the soil did not mean to give the public any right over the land beyond a right of passage to the respective houses. The right given was only a right to each house. And as to idle people going there, that could make no dif- ference. The learned Judge, in support of this opi- nion, cited the following passage from Hawkins' Pleas of the Crown (c). " A way to a parish church, or to the common fields of a town, or to a private house, or perhaps to a village, and which terminates there, and is for the benefit of the particular inhabitants of such parish, house, or village, only, may be called a private way, but not a highway, because it belongeth not to all the king's subjects, but only to some particu- lar persons, and each of whom, as it seems, may have an action on the case for a nuisance therein." The reason alleged by Abbott C. J. against a street which is not a thoroughfare being a public highway, was, that the public at large could not well be said to be in the use of such a street (d). And Mr, Justice Best on (a) 5 Taunt. 14.1, 142, in AFood- (c) Book i. c. 76, s. 1. yer v. Hadden. (d) 5 Barn, and Aid. 4,5fi, iii (Z») lb. 140. Wood V. Veal. Y 2 324 PRESUMPTIONS OF FACT. the same occasion, after stating generally that a road for the accommodation of particular persons only is not a public road, added, he could therefore see no reason why the inhabitants in a street not a thorough- fare, might not put up a fence at the end of it, and exclude the public (a). The several judicial dicta on either side of this question have thus been brought together, that the reader may for himself determine to which the greater importance is due. But if dedication be, as it is imagined, a question of intention, superior weight ap- pears from that consideration to attach to the dicta which negative the public right. It may be added, that as well in Woodyer v. Hadden, as in Wood v. Veal, the authority of the Rugby Charity case was either depreciated or in express terms denied. Indeed, the former of these cases may be thought to amount almost to a -decision, that in a street which is not a thoroughfare the public have no absolute interest. To rebut the presumption of a dedication, evidence may be given that the public user began during the existence of a lease or other particular estate, since it is clear that the owner of the fee is the only person who is competent to make an effectual dedication {b). And to this it cannot be objected to the reversioner, that for twenty years or more he has been aware of the general custom ; for his knowledge by no means ex- presses his assent, and it rested solely with the tenant (a) 5 Barn, and Aid. 457. 454. See also Harper v. Charles- (i) Rex V. Hudson, Stra. 909 ; worth, 4 Barn, and Cress. 574. Wood V. Veal, 5 Barn, and Aid. I'RESUMrTIONS OF FACT. 325 in possession to allow or prevent the premises from being so nsed {a). Another ground which would in all probability re- pel the presumption, is legal disability in the proprie- tor of the soil, as from infancy, coverture, absence be- yond sea, &c. ; in which cases, the usage may fairly be attributed to united encroachment and misapprehen- sion. The putting up of a gate, bar, or chain, or any other like significant act manifesting intention in the land- owner to confine the use of the road to particular indi- viduals, will also negative a claim by the public. And it is not necessary for this purpose, that the gate or bar should be constantly shut, or the chain be drawn across the way, so as always to intercept the progress of passengers. It is enough if that be done occasionally. Thus, "the Duke of Bedford preserves his right in Southampton-street, Co vent-garden, by a bar placed across tlie street, which being shut at pleasure, shows the limited right of the public " (h). It has also been decided, that if a gate or bar erected to prevent a tho- roughfare be afterwards knocked down or forcibly re- moved, and the land-owner takes no further step to ex- clude the public for several years, yet such apparent acquiescence will not support the allegation of a relin- quishment ; the opposite intention, so plainly demon- strated at first, furnishes a decisive answer to the claim of the public (c). (a) Wood V. Veal, supra. (c) Roberts v. Karr, 1 Camp. lb) Per Lord Kenyon, 11 East, 262, n.; Lethbridge v. Winter, 376, II. , lb. 263, ii. 326 rr^ESUMPTiONs of fact. In delivering judgment in the case of Hillary v. Wal- ler (a). Lord Erskine, after noticing that the right to incorporeal hereditaments might be lost by long non- user, asserted that the same principle applied more strongly to the case of public roads. He had heard, he said, a contrary doctrine, and the reason given was that there could not be the same presumption of a surrender. And that might be so, he proceeded, if the right were vested in the public by matter of re- cord, for then the right would appear, while the sur- render would not. But if it did not rest upon matter of record, and the public had not enjoyed, it was surely in such case proper to be left to the jury to presume, and was indeed almost conclusive, not that the right had been surrendered, but that it had never existed ; and for this special reason, that one man might surrender, or for many reasons might not enjoy his right, but the probability was, as to the public, that some instance of enjoyment would be shown. The case was much stronger than that of a private road, where, for many years there has been no enjoy- ment ; for here what one man might relinquish, ano- ther man might be disposed to assert. These observations are undoubtedly weighty. But it should seem, that Lord Erskine must not be under- stood as intending to affirm, that the same length of disuse, which raises the presumption of the surrender of a private right of way, will prove destructive of a (a) Sou 1'2 Vcs. 26tK PllESUMrTIONS OF FACT. 327 public right. The cases, in this particular, certainly are not parallel. Twenty years may justly enough be held to bind parties whose private rights only are af- fected ; but the public have an interest in the suppres- sion of nuisances, and therefore power to suppress them, though of much longer standing {a). And accordingly, in a late case, where there had been pos- session for twenty years of water in a public navigable river at a certain height, which river had not been used for the purpose of navigation for more than twenty years, it was held that such length of pos- session by no means conclusively established the claim- ant's title, and that, therefore, upon the river being afterwards widened and deepened for use, whereby the level of the water was lowered, the party was without remedy (h). In like manner, although a seve- ral and exclusive right of fishery may be prescribed for, yet it has been determined that such right cannot be claimed on the ground of presumption, because the privilege of fishing in arms of the sea and navigable rivers is a privilege common to all people, and does not admit of being abridged otherwise than by proof of a prescriptive title (c). But it must not be understood from these obser- vations, that the claim to a common right of way is incapable of being repelled by evidence of a long ex- clusion of the public, though the way may possibly have (a) See per Lord Ellenborough, and Aid 662. 7 East, 199. (c) Carter v. Murcott, 4 Burr {b) Vooght V. Winch, 2 Barn. 2163. 328 PRESUMPTIONS OF FACT. been used within the time of living memory (a) ; but merely that so short a period as twenty years, un- accompanied by other circumstances, cannot be relied upon as competent to that end («). (a) See Rex v. Montague, 4 Barn, and Cress. 597. PRESUMPTIONS OF FACT. 329 CHAPTER XVIII. PRESUMPTIONS OF FACT CONTINUED^ Of the presumjitive Bar to Equities of Redemption. On breach of the condition or proviso, which is contained in mortgage deeds for payment of the mo- ney lent, the estate of the mortgagee becomes absohite at law. To mitigate the severity of this rule, it was laid down as a maxim in our courts of equity at a very early period, — Once a mortgage always a mort- gage; and it was resolved, that estates which had been pledged as securities for money, might be re- deemed at any time on payment of the principal sums secured and interest, although the period originally fixed for payment had passed. But it is obvious, that a strict adherence to this rule of equity, unless it re- ceived some concurrent qualification, would produce effects as injurious as those which it was intended to prevent. If the power of redemption were under no circumstances limited in point of time, much litigation, and in some cases real injustice, would ensue. It is therefore now held, by analogy to the statute of limi- tations («), that twenty years possession by a mort- gagee, without account or acknowledgement of an ex- isting right to redeem, forms a presumptive bar to the equity of the mortgagor {h). (a) 21 Jac. I. c. 16. Ca. 102; Clapham v. Bowyer, 1 {b) Pearson v. Pulley, 1 Cha, Cha. Rep. 206; White v. Ewer, 2 330 PRESUMPTIONS OF FACT. The principal reason for thus limiting the power to redeem is the mischief which in so many ways would arise from the assertion of long neglected claims — a mischief which it has been the constant endeavour of courts both of law and equity to prevent. A presump- tion is therefore entertained, that the mortgagor has deserted or released his equity {a). The neglect to pursue a right of redemption, as Lord Commissioner Gilbert observed (b), is evidence of a dereliction of all property in the pledge. Men are always sedulous in guarding their interests. If the right be worth pur- suing, it is natural to suppose that the mortgagor would follow it — at least within a space of twenty years. Another argument is furnished by the justice of the principle. From long unmolested perception of the rents and profits, a mortgagee is led to conclude, that the estate is abandoned to him in satisfaction of his demand. He is thence induced to discontinue regular accounts of his receipts and disbursements, and treat- ing the property as his own, to expend labour, time, and money, in improving it. Liability to the future claim of the mortgagor would place him in a situation Vent. 340; Jenner v. Tracey, 3 185; Rakestraw v. Briiyer, Mose. P. Wms. 287, n. Knowles v. 19 1 ; Frazer v. Moor, Bunb. 54; Spence, 1 Eq. Abr. 315; Heaton Orel v. Smith, Sel. Cha. Ca. 9; V. Hugell, 1 Barnardist, K. B. Rep. Fleetwood v. Templemaii, Bar- 272;Aggasv.Pickerell,3Atk.225; nardist. Cha. Rep. 187; Beckford Anon. lb. 313 ; Foster v. Hodg- v. Close, 4 Ves. 476, cited ; Bar- son, 19 Ves. 184 ; Hoodie v. Hea- ron v. Martin, 19 Ves. 327 ; Cor- ley, 1 Ves. and Be. 539., See also belt v. Barker, 1 Anst. 138, 143. Roscarrick v. Barton, 1 Cha. Ca. (a) Stone v. Byrne, 5 Bro. P. C, 217; Ishrfm V. Cole, 1 Cha. Rep. byTonil.209. See also 3 Anst. 759. 127; Saunders v. Hord, lb. 184; (/;) In Ord v. Smith, Sel. Cha. Floyd V. Mixnsdl, Gilb. Eq. Rep. Ca. 11 PRESUMPTIONS OF FACT. 331 worse than that of an agent or bailiff, for in addition to the difficulty, perhaps impossibility, of preparing and rendering proper accounts, he would be deprived not only of the benefit to arise from his care and industry, but also of all adequate recompense. In order to determine rights of redemption the whole of the twenty years' possession must take place subsequently to the time of the forfeiture occurring at law : possession for twenty years from the date of the mortgage deed only will not be enough, for until the forfeiture, the estate in the hands of the mortgagee is strictly a pledge. It may be observed, that the same rules which govern the right to redeem in mortgages of real estate, apply also to mortgages of personal pro- perty («). To prevent an unexplained possession for twenty years becoming a presumptive bar to the mortgagor's equitable title, it is necessary in ordinary cases, that a bill for redemption should be filed before that period has elapsed, and the suit be prosecuted to a decree. But although such a decree be obtained, the title of the mortgagor will not be thereby rendered permanently secure ; it must still be acted upon within a reasonable time. If the right be neglected for a further space of twenty years, the case will be the same as if no decree had been obtained {h). Nor is the single circumstance of a suit having been (a) Lockwood V. Ewer, 2 Atk (A) St. Joir v. Turner, 2 Vorn. 303 «1«- 332 PRESUMPTIONS OF FACT. begun within the proper time alone sufficient to pre- serve the equity of redemption : unless the mortgagee by his answer should admit the claim, the suit must be regularly proceeded in and prosecuted to a decree. Should the answer deny the right, and no further steps be taken before the twenty years have elapsed, the general rule will prevail (a). Much less is a mere demand, without process or acknowledgment, effectual to avoid the force of the presumptive bar {b). In their decisions on this subject, the courts observe a further analogy to the statute of limitations. By the second section of that statute it is provided, that rights of entry which first accrue to persons during a state of infancy, coverture, absence beyond sea, &c., may be enforced at any time within ten years after such im- pediment shall have been removed, notwithstanding the expiration of the original twenty years. So it is held in equity, that where the commencement of the twenty years' possession takes place during the in- fancy, coverture, &c. of the party entitled to redeem, his right shall not be barred until ten years after the removal of the particular incapacity (c). (a) See CoUerell v. Purchase, ter v. Hodgson, 19 Ves. 184; and Ca. Temp. Talb. 61. per Sir T. Plumer in Hodle v. (b) Hodle V. Healey, 1 Ves. and Healey, 1 Ves. and Be. 539. Be. 536, 540. According to the late cases of (c) Procter v. Cowper, 2 Vern. Doe v. Jesson, 6 East^, 80, and Cot- 377 ; Cornel v. Sykes, 1 Cha. terell v. Button, 4 Taunt. 826, the Rep. 193. See also per the Lord ten additional years are not to be Keeper in White v. Ewer, 2 so taken as to enable a person, who Vent. 340 ; per Lord King in Jen- is under disability when a right ner v. Tracy, 3 P. Wms. 287, n. ; accrues, to enforce his claim at per Lord Talbot in Belch v. Har- any time within thirty years after- vcy, lb. ; per Lord Eldou in Fos- wards, whether the incapacity PRESUMPTIONS OF FACT. 333 It has likewise been decided, in conformity with ad- judications at law on the saving clauses of the statute, that where a mortgagee's entry into possession is made when the mortgagor, or a claimant from him, is not un- der disability, and a subsequent disability arises, it shall not prevent the time running against the person hav- ing the right to redeem ; so that if the mortgagee after- wards goes abroad (a), or, being ajeme sole marries (/>»), or if the equity of redemption descends to an infant heir (c), in none of these cases will the interest of the party be saved beyond the usual period. On the common principle of equity following the law, as persons claiming in remainder or rever- sion are not barred by the statute of limitations till after the expiration of twenty years from the time of such remainder or reversion falling into possession, it has been urged that the same rule should be applied to successive limitations of an equity of redemption. This was done by Lord Manners in a modern case in Ire- land, where the person coming to redeem was a remote remainder-man after previous limitations in tail (cl). should or should not speedily end; (c) Floyd v. Mansell, Gilb. Eq. but, so only, that on the termina- Ca. 185 ; Knowles v. Spence, 1 tion of the disability, or series of Eq. Abr. 315 ; Mose. 225, S. C. ; disabilities, the person then enti- Stone v. Byrne, 5 Bro. P. C, by tied shall have the full space of ten Toml. 209 ; St. John v. Turner, 2 years to prosecute his right. The Vern. 419. ten years begin to run as soon as (d) Blake v. Foster, 2 Ball and the disability ceases, whether that Be. 565, 575, et seq. In the re- happen before or after the end of cent case of Cowne v. Douglas, 1 the twenty years from the time of M'Clel. and You. 321, a similar the right accruing. decision was made by the Court (a) Aggas V. Pickerell, 3 Atk. of Exchequer {absente Alexander 225, C. B.) But the authority of this (i) Anon. 2 Atk. 333. decision seems most questionable. 334 PRESITMPTIONS OF FACT. But the contrary, it should seem, may be regarded as now the settled law on the subject. For on the case referred to coming before the House of Lords (a), it was adjudged, that there could be no redemption after twenty years, in whatsoever way the estate might have been settled. And in an earlier case before Sir W. Grant, M. R., where the party claiming was entitled in remainder immediately after an estate for life, during the existence of which the mortgagee had entered, a similar decision was made {b). The ground of these resolutions is plain ; namely, the mischievous ten- dency of an opposite rule, — which would obviously be to introduce much of the evil apprehended from an unlimited power to redeem generally. But besides this, the principle might be even designedly abused to defeat the previous right of the mortgagee ; and for that purpose, it would merely be necessary to make a settlement of the property. Another reason which offers, is the want of resemblance between the cases under consideration in the following important article, that whereas a remainder-man of a legal estate cannot bring his formedpn until the remainder falls into pos- session, a remainder-man or reversioner of an equity of redemption has a present right to redeem, — which he may enforce by bringing a bill, when the persons who are entitled under the prior limitations (being It evidently proceeded on an erro- equity from the mortgagor. See neous principle. The learned Ba- 1 Anst. 143, rons considered, that twenty years' (a) Sess. 1823. The case is not possession by a mortgagee, in- yet reported. See also Marquis of stead of forming a presumptive bar Cholmondeley v. Lord Clinton, 2 to the equity of redemption, as it Jac and Walk. 1. has been held again and again to (i) Harrison v. Hollins, 1 Sim. do, affords merely the presumption and Stu. i71. of a release or conveyance of that PllESUMPTIONS OF FACT. 335 of necessity made parties) will be put to their elec- tion to redeem or not, and on their refusal the re- mainder-man will be let in («). This right of redemp- tion, it is contended, the parties entitled in remainder or reversion must enforce, if they would save the equity. Other arguments in support of the above decisions are deducible from the rule, that a decree of fore- closure against tenant in tail binds both the issue in tail and the persons in remainder, though the latter be not parties to the suit (b) ; and that the ordinary time for redemption will not be enlarged in favour even of creditors— a class of persons who are generally so highly regarded and favoured (c). There ought to be a time, say the courts, when mortgagees may become certain of their interest either of land or money ; they are the parties to be first considered ; and with respect to decrees of foreclosure against tenants in tail, if such were not binding upon claimants of future interests, and were open to impeachment by every contingent remainder-man, there might in some cases never be an absolute foreclosure ; the account would be endless ; and the general consequence would be, that no person would lend his money upon mortgage. It is worthy of notice, that previously to Sir W. Grant's determination, that where a mortgagee enters during the life-time of tenant for life, the persons in remainder will be barred of their right to redeem, after (a) Aynsly v. Reed, Dick. 249. Ca. 217, 220 ; Reynoldson v. Pcr- See also per Eyre, C B., 1 Austr. kins, Amb. 564. j3g (c) WooUaston's case, 2 Cha. (b) Roscarrick v. Barton, 1 Cha. Ca. 62, cited. 336 PRESUMPTIONS OF FACT. twenty years from such entry, it had been adjudged on grounds precisely accordant with the above observa- tions, ' that the existence of an estate by the curtesy was insufficient to prevent the presumptive bar which arises from long possession. Lord Hardwicke's remark on the occasion alluded to was, that there would be no bounds to redemption if the excuse of a curtesy estate should prevail ; mortgagees would never be quieted in their possession ; it was of no consequence to them, to whom the right of redemption belonged ; if the per- sons entitled did not make use of their right, it was only fitting they should be barred (a). From the case last mentioned it follows as a gene- ral rule, that to preserve a right of redemption where the person entitled in possession is tenant by the cur- tesy, it is incumbent notwithstanding on the heir of the deceased wife to urge his claim within the usual time. But there is an exception to this rule. For, if the mortgagee's possession be attributable to a title under the husband, independently of that as mortgagee, so that he becomes the party as well to pay, as to receive the interest of the mortgage debt, his enjoyment during the husband's life-time, of whatever length it be, will not prejudice the right of the heir. Thus in Corbett v. Barker {b) : Mr. and Mrs. Cor- bett, being seised in fee of an estate in her rio-ht, mortgaged it by demise and fine to one Carlisle for 1000 years. The mortgage was afterwards transferred (a) Anon. 2 Ath. 333. See also Sed vide Fleetwood v. Temple- 1 Anst. 138. man, Barnardist. Cha. Rep. 187. (b) 1 Anstr, 138; 3 lb. 755. PRESUMPTIONS OF FACT. 337 to the defendant ; and Mr. and Mrs. Corbett, by deed^ for a valuable consideration, conveyed to him their equity of redemption and the reversion in fee. Mrs. Corbett died in 1741, and her husband in 1785. In 1792, the plaintiff, who was their son, and also heir to his mother, brought his bill for a redemption. At the first hearing the defendant's long enjoyment was held by the Court of Exchequer to be a bar to the demand, and the bill was accordingly dismissed ; but, upon a re-hearing, that decree was reversed, Macdonald, C. B., in delivering judgment, said, " By attending to the different rights of the defendant, it appears, that he stood in the place of the tenant by the courtesy of the equity of redemption ; for he claims to hold under him by the last conveyance, and immediately upon taking it he entered into possession. In that charac- ter it was his duty to keep down the interest of the mortgage : as mortgagee he was to receive the inte- rest : uniting these two characters, he is to be con- sidered as having supported the different rights, and discharged the duties of each. In the general case, a presumption arises from no payment of the surplus rents being made, nor account delivered for so long a period of time as twenty years : here the presumption cannot arise, because it was the same person to pay and to receive. The case does not therefore fall within the general rule." From a recent decision by Sir J. Leach, Y. C, it further appears, that under circumstances of the nature last described, the right to redeem does not terminate until the end of twenty years from tlie time of the z 338 PRESUMPTIONS OF FACT. husband's death. So that, till that period has elapsed, the heir of the wife, or should the wife survive, she herself, may compel the mortgagee to re-convey the estate upon payment of the principal and interest {a). The presumptive bar from twenty years' posses- sion may also be rebutted by evidence of fraud or imposition, on the part of the mortgagee, in the ori- ginal treaty for the loan. Equity, careful to protect the interests of the necessitous, will not permit any difficulties to be thrown in the way of mortgagors, fettering or restraining the usual power of redemption. Accordingly, agreements to confine the assertion of such power to the mortgagor himself (b), or to the mortgagor and his issue (c), or to limit it to a certain number of years, at the end of which the estate is to become the absolute property of the mortgagee, and whether or not on payment of a further sum (c?), are on this ground held to be altogether void. Nor, as before intimated, is the interference of the court, in (a) Price v. Copner, 1 Sim. and to rescind the contract reserved to Stu. 347. the vendor. It is evident, that (Z>) Jason v. Eyres, 2 Cha. Ca. such an agreement may be entered 33; Newcomb v. Bonham, 1 into without mala Jide.i on the Vern. 7 ; Ord v. Smith, Sel. Cha. part of the purchaser ; and if this Ca. 9. be clearly made out, the courts will (c) Howard v. Harris, i Vern. sustain the purchase. Circum- 33, 190. stances, which are relied on in this {d) Bowen v. Edwards, 1 Cha. view, as showing the meaning of Rep. 221 ; Willett v. Winnell, I the parties and the fairness of the Vern. 488. To this rule there is transaction, are adequacy of price an exception, where it appears (Floyer v. Lavington, 1 P. Wms. that a purchase of the estate was 268.), a particular object to be in the original contemplation of accomplished by the purchaser the parties, and that the limited (Mellor v. Lees, 2 Atk. 494.), and power to redeem was, in point of want of the usual remedies given fact, merely a temporary option to mortgagees for enforcing pay- PRESUMPTIONS OF FACT. 339 invalidating agreements of this kind, confined to any period of time ; for, as the attempt to impose a restric- tion is founded in oppression, the case falls directly within the operation of another equitable principle, that time shall not prevent the redress of frauds. Hence, if, in consequence of any such stipulation as those before mentioned, the mortgagee obtains possession of the pro- perty, no subsequent enjoyment, however long, unless with the acquiescence of the mortgagor and of claim- ants under him for twenty years after they become acquainted with the illegality of the contract and are freed from pecuniary embarrassment, will serve in any degree to prejudice their interests. In some instances, the mortgagee is himself instru- mental in defeating the right which would otherwise have been acquired by long undisturbed enjoyment ; as where from some particular act, or a general line of conduct pursued by him in relation to the mortgaged property, it is manifest that he considers himself to hold simply in the character of mortgagee. Thus, if it appear, that within the last twenty years, the mort- gagee, or an agent acting under his authority, has stated or settled an account Math the mortgagor, since a principal cause for quieting a mortgagee in his posses- sion, viz. the difficulty to which he may be put in ren- dering accounts, does not then exist, equity will depart mentof the mortgage debt (Good- also relied on as serving to show, man v. Grierson, 2 Ball and Beat. that he regarded the conveyance 2T4, 278; Tasburgh v. Echlin, 2 as being absolute (Colterell v. Bro. P. C. by Toml. 265). The ac- Purchase, Forr. 61 ). quiescence of the vendor has been z 2 340 PRESUMPTIONS OF FACT. from the general rule, and relieve against the presump- tive bar {a). For similar reasons, it has been held, that even a private account kept by the mortgagee of the rents and profits of the estate, showing that he has treated it as redeemable, will if discovered pre- serve the interest of the mortgagor. A decision to this effect was made in one case, where the possession of the mortgagee had subsisted for fifty years {b). But it is not enough to open the redemption after a great length of enjoyment, that an account of the pro- fits has been kept by an agent or steward of the mort- gagee : nor is the case stronger, though such account has been preserved distinct from other accounts which relate to the remainder of the mortgagee's real pro- perty. It has likewise been resolved, that should the agent even prepare and deliver to the mortgagor a balanced statement of the net receipts on the one side, and of the sums remaining due in respect of the mort- gage debt on the other ; yet if, in doing so, he acted without the authority of his principal, the title of the latter will not be injured (c). Again : if in any legal instrument affecting a mort- gaged estate, such estate be noticed by the mortgagee as subject to redemption, this will take the case out of the general rule. A recital, therefore, or any inci- (a) Procter v. Cowper, 2 Vern. 474. See also the case before the 377 ; Anon. 2 Atk. 333. M. R. m 1792, cited at the bar, 3 (i) Lake V.Thomas, 3 Ves.jun. Ves. jun. 20, 21. Sed vide per 17 ; Fairfax v. Montague, cited by Sir W. Grant, 19 Ves. 333. Lord Loughborough, 2 Ves. jun. (c) Barron v. Martin, 19 Ves. S4 ; Campbell v. Beckford, 4 Ves. S27 ; Coop. C. C 189, S. C. PRESUMPTIONS OF FACT. 341 dental mention in a conveyance («), settlement (b), or will (c), — acts which suppose deliberation, — that the subject of assurance or devise is a redeemable inte- rest, will let in the title of the mortgagor ; and twenty- years from such acknowledgment must again elapse ere the new right which has been thus acquired will be barred (d). The fact of a bill of a foreclosure having been brought within the last twenty years affords another ground for extending the power to redeem, the diffi- culty of accounting, which, as before observed, is the chief inducement to limit the mortgagor's equity, being in this case also shown not to exist. At least such is the presumption : for as a foreclosure is decreed only in default of the sums due on the mortgage being paid by a certain day, it is necessarily concluded tliat a mortgagee, who thus seeks the aid of the court, must be able to state a regular account, — that other- wise he would not file his bill. A second reason for allowing the extension is, that the course of proceed- ing spoken of amounts to an admission, that the estate is held only as a pledge (e). The result is the same, when a mortgagee enters (a) Smart v. Hunt, 4 Ves. 478, foot of the page. n ; Price v. Copner, 1 Sim. and (d) See also Perry v. Marston, Stu. 347. 2 Bro. C. C. 399 ; and Whiting v. (b) Hansard v. Hardy, 18 Ves. White, 2 Cox, Rep. 290. 455. See the facts stated in Hardy (e) Palmer v. Jackson, 5 Bro. V. Reeves, 4 Ves. 466. P- C. by Toml. 281; and the case (f) Ord V. Smith, Sel. Cha. Ca. cited by Sir Jos. Jekyll, in Ord v- 9. See also 3 Atk. 314, at the Smith, Sel. Cha. Ca. 9. 342 PRESUMPTIONS OF FACT. into an agreement with his mortgagor for the pur- chase of the equity of redemption : this likewise amounts to a plain concession that his interest is lia- ble to be redeemed {a). A fortiori will the presump- tive bar be avoided by proof of the mortgagee's having acknowledged by letter, either directly, or impliedly, that his interest in the property is not ab- solute, but merely temporary, as a security for the re- payment of a loan {h). And it has been held, that even parol acknowledg- ments by a mortgagee, within the last twenty years, of the limited nature of his interest, and of his readi- ness to be redeemed, are sufficient to preserve the equity of the mortgagor (c). The expediency of this rule indeed was questioned by Lord Alvanley, who said, he could not help thinking, that it would have been very wise if no parol evidence had been admitted on the subject, though he would not then take upon him to contradict the authorities {d.) But Sir Wm. Grant, on the other hand, seems to have been of opinion, that parol evidence could not be excluded {e) ; and in the late case of Reeks v. Postlethwaite {f), Sir T. Plumer, who went at great length into the ques- (a) Conway v. Skrimpton^ 5 in 2 Cox, 295 ; and in Coop. C C. Bro. P. C. by Toml. 187. Consi- 165, n. The decree was after- der this case. wards reversed by Lord Thurlow, (Z») Hodle V. Healey, 1 Ves. but on another point. The ques- and Bea. 536. See also Vernon v. tion before Lord Kenyon was not Bethell, 2 Eden, 110. mentioned. (c) Perry v. Marston, 2 Bro. {d) See 2 Cox 300 ; and Coop. C. C. 397. The facts are fully de- C. C. 6. tailed in the note to Mr. Belt's (e) See 19 Ves. 333. edition of Brown's Reports ; also {f) Coop. C. C. 161, 169, et seq. PRESUMPTIONS OF FACT. 343 tiuii, declared himself of a similar opinion. In many cases, he' said, parol evidence was absolutely necessary to the proof of extraneous facts, which nevertheless, though after a lapse of twenty years, would indispu- tably prevent the loss of the equity of redemption. Such evidence, for example, was admitted to prove disabilities. But disabilities were not the only in- stances in which the general rule as to redemption was departed from. Receiving interest, keeping ac- counts, treating the property in any written instru- ment as a mortgage, had the same effect. There was no law which said, that evidence of such acts must be by writing. Then, after enumerating several cases both at law and in equity, in which rights were sus- tained by parol testimony, though admitting at the same time that Perry v. Marston (the case above referred to) showed the danger of always relying on such testi- mony, he said, — " But we must take care of the prin- ciple. To say there is danger of perjury amounts to little, because there is danger of perjury in all parol evidence, and the objection would therefore go to do it away entirely. All the court can do, is to watch and take care of it, when competent in its nature. Look to the danger the other way ; that is, if you were to say, that after twenty years, there shall be no parol evi- dence for a redemption. A mortgagee may have amused his mortgagor every day with promises of settling. Suppose even interest to have been paid, but which was only to be proved by parol. How easy would it be, in such cases, and in many others which might be put, for the mortgagee to draw on the mortgagor till twenty years were elapsed, and then to hold him at defiance." 344 PRESUMPTIONS OF FACT. It should be observed, however, that parol admis- sions by a mortgagee, that the estate continues liable to redemption, must, in order to prevail, be full, ex- press, and unequivocal. An acknowledgment that the title originated in a mortgage is not enough, such acknowledgment carrying the right to redeem no fur- ther than the deed itself does {a). The evidence must go to prove, that the mortgagee spoke of it as a sub- sisting mortgage, and, moreover, that he was willing, and prepared to be redeemed. If the evidence only shows that the defendant had acknowledged to hold under a conveyance by way of mortgage, while at the same time it appears, that he was unwilling or had positively refused, to be redeemed, the case will not be excepted out of the general rule {h). It is also to be noticed, in accordance with the decision in the above mentioned case of Reeks v. Pos- tlethwaite, that after a possession for twenty years, redemption will not be enforced on evidence of parol admissions by the mortgagee, unless such admissions be proved by two or more persons. The peculiar faci- lity with which a perverted or fabricated statement may be imposed, when there is no possibility of con- tradicting or explaining it, renders the uncorroborated depositions of a single witness suspicious and most unsatisfactory. And although the veracity of the wit- ness be granted, y^^ still, as the slightest mistake or failure of recollection may totally alter the effect of (a) See per Sir T. Plumer, Coop. 290 ; Coop. C.C. 1. See also Reeks C. C. 169. V. Postlethwaite, Coop. C. C. 16K {b) Whiting V. White, 2 Cox, pp. 171-2, and 19 Ves. 333. PRESUMPTIONS OF FACT. 345 the mortgagee's declarations, the danger with this supposition is but little diminished. Another case, in which the right acquired by long possession cannot be maintained, is where the mort- gagee, in his answer to a bill for redemption, submits to be redeemed (a). After thus distinctly recognising the mortgagor's title and acquiescing in his demand, to retract must of course be nugatory. From the decision in Rakestraw v. Brewer {b), it has been inferred and frequently laid down as a gene- ral rule, and in a late case in Ireland this rule was explicitly acknowledged and acted on (c), that if a mortgagor continues in possession of part of the mort- gaged premises, it will preserve his right to redeem the whole. In the case first mentioned, it appeared, that one Holford, in 1687, mortgaged a set of chambers in Gray's-Inn, to a person, who in 1700 assigned to the defendant. During the latter year, under an order of the Bench to deliver possession to the mortgagee, the defendant entered into part of the premises ; but the remainder the mortgagor continued to occupy until 1708, when he died, leaving the plaintiff, then an infant, his personal representative. From that time the mortgagee had possession of the whole set of cham- bers. A bill was brought to redeem in 1726 ; and a decree for that purpose obtained at the Rolls was afterwards affirmed by Lord Chancellor King. His (a) Proctor v. Gates, 2 Atk. 511; Mose. 189, S. C. 140. (t) Burke v. Lynch, 2 Ball and (6) Sel. Cha. Ca. 55; 2 P. Wins- Be. i2ti. 346 PRESUMPTIONS OF FACT. Lordship said, that nothing was more clear, or a more established rule, than that if mortgagor was in pos- session of any part, he should be admitted to redeem the whole ; for part he might as being in possession thereof, but that part he could not, separately from the rest ; and therefore he should redeem the whole. That in the present case the mortgagor was in possession of part till 1708; till 1714 the plaintiff was an infant; and from that time it did not amount to twenty years. This decision under the peculiar circumstances appears to be correct. The property, a set of cham- bers, could be in point of extent only small ; and from the usual mode in which chambers are constructed^ it may reasonably be supposed, that each part was essential to the conveniency of the whole. Hence, with some fairness it might be inferred, that the very motive for the mortgagor's continuing in possession of part, was to prevent any absolute right being ac- quired by the mortgagee. But there was this addi- tional circumstance, that the mortgagee entered into possession of the remaining part of the chambers within twenty years before the bill was filed. Now the right to enter could only be ascribed to his title as mortgagee: an implied admission was therefore made, that he held generally in that character ; and then the case fell within the common principle, that an acknowledgment within twenty years will sustain an equity of redemption. The determination in question, it should therefore seem, does not by any means warrant the broad pro- PRESUMr-TIONS OF FACT. 347 position drawn from it. Lord King, it is true, is reported to have expressed himself very generally. But his dictum does not amount to a decision, and was most likely uttered with especial reference to the circumstances before noticed, — which would make it quite unobjectionable. But whether or not that be so, those circumstances, it is conceived, should have been duly weighed, before any principle of universal appli- cation had been drawn from the decision. For with a very slight variation of circumstances the general in- expediency of such a rule becomes manifest. If we suppose, for example, the case of a mortgaged estate, which in its nature is easily divisible, and of which a part sufficient to cover the loan, but not so connected with as to obstruct or diminish the full and exclusive enjoyment of the remainder, is relinquished to the mortgagee, — why may not an abandonment of the equity of redemption as to such part be as readily pre- sumed as if the whole estate had been delivered up ? It is said that the divided occupation between the mortgagor and mortgagee shows an agreement, that the right to redeem should be perpetual, because as the mortgagor's possession of part indisputably keeps the title so far open, and as a redemption when sued for coidd not be granted as to that part only, and denied as to the rest, the decree must of necessity embrace the whole. But this reasoning assumes, either that the mortgagee has still a beneficial interest in the portion of the estate which is not in his pos- session, in other words, that he has an ascertained subsisting demand, for which the mortgagor continues liable ; or that, supposing his interest in the uuoccu- 348 PRESUMPTIONS OF FACT. pied part of the estate to be merely that of a satisfied mortgagee, the consequent admission that the title to the other part originated in a mortgage is a sufficient ground to decree redemption. The just and true in- ference, it is submitted, which results from the fact of a larger quantity of land being comprised in a mort- gage than what is delivered into the hands of the mortgagee, is merely this, that the mortgagee, satis- fied with part for his security, abandons his claim or right in the remainder to the use of the mortgagor, ab- solutely. The mortgagee's situation as to the lands in his possession being then precisely the same as that of any other mortgagee in possession, the same argu- ments are applicable to show that he is entitled to equal rights and advantages. A contrary rule must inevita- bly lead to the consequence in general so anxiously guarded against, viz. the difficulty and perplexity oc- casioned to mortgagees in being called upon to state and prove old and long accounts. This view of the subject seems to be favoured by a case before Sir Thomas Clarke, M. R., which was cited by Lord Loughborough in Lake v. Thomas (a). A mortgaged estate, of which the mortgagor had been very long out of possession, came into two different hands : the occupier of one part having kept accounts as mortgagee, a redemption as to such part was de- creed on that ground ; but with regard to the other part no accounts having been kept, the bill so far as related to it was dismissed. (u) 3 Ves. juu. 22, PRESUMPTIONS OF FACT. 349 It remains to be mentioned, that long undisturbed enjoyment by a mortgagee may sometimes be ac- counted for on the ground of an agreement between the parties. Thus, if it be stipulated, either at the time of the mortgagee's entering into possession or afterwards, that the right to redeem should not be considered as closed until the end of a certain num- ber of years, a bill for redemption may be brought, as it seems, at any time within twenty years from the ter- ' mination of the specified period. And accordingly, in \Vhite V. Pigion («), where a bill to redeem a mort- gage was demurred to, because, after a possession of forty-one years, a promise having been made that the mortgagor was to be at liberty to redeem for twenty- seven years, and fourteen years only having elapsed since the expiration of that time, the demurrer was disallowed. There is a species of mortgage, called from its hav- ing been formerly the usual mode of making mort- gages in Wales, a Welsh mortgage, which differs from the common security in that the estate is redeemable at any time on payment of the principal money (Z>), and that the mortgagee being let into immediate pos- session receives the profits in lieu of interest (c). The consequence, generally speaking, of a mortgage being thus framed is to preserve to the equitable owner, however long the mortgagee be in possession, his right to redeem {d), and as it is customary not to (a) Toth. 232. (c) 1 Vern. 395, 477. (b) 1 Vern. 77 ; 2 Atk. 363. {d) 1 Ves. 406 ; 2 Atk. 363. 350 PRESUMPTIONS OF FACT. insert a covenant on the part of the mortgagor for 23ayment of the debt, to prevent the mortgagee from compelling either redemption or a foreclosure (a). So early, however, as 1687, it was decided at the Rolls (h), that if the annual value of an estate mortgaged in this manner be excessive with regard to the amount of legal interest on the sum advanced, an account might be called for notwithstanding the agreement to retain the profits instead of interest. And since that time it is said to have been further determined, that if, on an account taken, it appear that the mortgage was satisfied by perception of the profits twenty years before the bill filed, and the mortgagee has continued in possession ever since, the equitable bar adopted in analogy to the statute of limitations will secure his future enjoyment (c). To this it may be added, that if, subsequently to the making of a mortgage of the nature supposed, the grantor covenant to pay the sum advanced at a time either specifically named or to be determined afterwards by the mortgagee, the case will be reduced to that of a common mortgage, and that therefore, should default be made in payment according to the terms of the covenant, possession for twenty years after such default will conclude the right to redeem (d). Securities for the repayment of pecuniary loans are sometimes made by a conveyance to the creditor and (a) 1 Ves. 406 ; 3 Atk. 280 ; 3 Atk. 363 ; per Lord Eldon, 1 P. Wms. 361 ; also Howell v. Men 125. Price, Prec. Cha. 423. (d) See Hartpole v. Walsh, 5 (/») Fulthrope v. Foster, 1 Vern. Bro. P. C. by Toml. 267, from *^6' which this proposition has betn (c) Per Lord Hardwicke, 2 considered deducible. PTIESUMPTIONS OF FACT. 351 his heirs, until by perception of the rents and profits the principal and interest are discharged ; — or by a conveyance in fee, with an agreement that he shall enter and hold until his demand be satisfied. Secu- rities of this kind partake so far of the nature of Welsh mortgages, that the mortgagee cannot compel a redemption, and yet continues liable to be redeemed so long as the debt remains unpaid (a). Nevertheless, in Yates v. Hambly, Lord Hardwicke admitted, that if after the principal has been satisfied by actual pay- ment, or by perception of the rents and profits, the mortgagee still keeps possession and is allowed to continue in possession for a period of twenty years, the statute of limitations would operate as a har{h). A like opinion was in a modern case strongly intimated by Lord Eldon (c). (a) Yates v. Hambly, 2 Atk. by extent under an elegit— an in- 360 ; Orde v. Heming, 1 Vern. terest, to which Lord Hardwicke 419. compared the estate taken by (Z>) 2 Atk. 362-3. See also Hambly in the principal case. Cloberry v. Lymonds, 2 Cha. Rep. (c) Fenwick v. Reed> 1 Mer. 393, where the defendant claimed 114, 124-5. 352 PRESUMPTIONS OF FACT. CHAPTER XIX. PRESUMPTIONS OF FACT CONTINUED. Of the iwesumed Satisfaction of Mortgage Debts, Judgments, Warra7its to confess Judgment, De-^ crees^ Statutes, Itecognisances, and Bo7ids. I. It was said by Sir W. Fortescue, M. R., in Leman v. Newnham {a), that although in common eases of debts, where principal or interest has been neither demanded nor paid for twenty years, the pre- sumption of law is, if nothing else, that they are satisfied, yet that a different construction obtained with respect to mortgages, because a mortgagee is regarded as continuing in possession of the mortgaged property, the mortgagor being but tenant at will to him, and the mortgagor's possession therefore in legal strictness his. This doctrine was afterwards recog- nised and approved of by the Court of Exchequer in Toplis V. Baker {h). But in neither of these cases was the point necessary to be determined ; there were in each of them other circumstances which repelled the presumption of satisfaction. On the other hand, in the case of Trash v.White (c), where the doctrine of Sir W. Fortescue was cited at (a) 1 Ves. 51. (o) 3 Bro. C. C. 291. \b) 2 Cox, 118. PRESUMPTIONS OF FACT. 353 the bar. Lord Thurlow said, he had always understood, that where it was clear no interest had been paid for twenty years, a presumption did arise that the princi- pal had been discharged. And on a late occasion («), when the point was again agitated, though a decision of it was not necessary, Sir T. Plumer, M. R., after no- ticing the cases first mentioned, and the principle there laid down, that as the mortgagor was merely tenant at will to his mortgagee he could not have an adverse possession, and consequently that the mortgagee might assert his title at any distance of time, proceeded thus : " I cannot accede to the doctrine, that no length of time will operate against a mortgagee who has been out of possession without claim or acknowledgment. The argument from there being a tenancy at will, arises from a mere fiction ; for there is no actual te- nancy, no demise either express or implied. The mortgagor has not even the rights of a tenant at will ; he may be turned out of possession without notice, and is not entitled to the emblements. It is only quodam moclo a tenancy at will, as Lord Mansfield says in one of the cases {h). We cannot push it to that extent, — reasoning on the supposed relation of landlord and tenant, which is not founded in fact. The relation of mortgagor and mortgagee is peculiar : in a court of equity the former is considered as the owner ; and that is the nature of the contract between them ; the tacit agreement is, that he is to be the owner if he pays. Then, what is to be the effect of one persons continuing for twenty years in pos- (a) Christophers v. Sparke, 2 (A) Moss v. Gallimore, Doug-. Jac. and Walk. 223, 234. 269. 2 A 354 PRESUMPTIONS OF FACT. session of the estate of another, who does nothing to make good his title, and to keep alive the relation of morgagor and mortgagee ? The difficulty I feel is, that if twenty years' possession, without claim on the part of the mortgagee, will not operate as a defence against him, I do not see how any period of time, however long, can bar him. If the fiction of the tenancy at will is an answer to the objection after twenty years, why will it not be an answer after any other time ? There would be no possibility of stopping. With respect to the mortgagor, it is clear that his equity is shut out by the mortgagee being in posses- sion for twenty years without acknowledgment ; then why should this not be reciprocal ? Why should it be necessary for the relation to be kept alive in the one case, and not in the other ? For these reasons, though I do not give a positive opinion, I cannot agree to the doctrine intimated in the cases alluded to." This argument frees the question from the legal technicalities which biassed the opinion of the court in the cases of Leman v. Newnham and Toplis v. Baker ; and it appears to be founded in just princi- ples and sound sense. Showing that the relation of tenant at will, which for some purposes subsists be- tween a mortgagee in possession and the mortgagor, is not universal and must not be carried out into all the particulars of that relation, it reduces the case of debts secured by mortgage to the condition of other long neglected demands, and thus rids the law of a mischievous anomaly. The reasons stated by the late Master of the Rolls in favour of a presumptive bar to PRESUMPTIONS OF FACT. 355 a mortgage debt, where there has been no acknowledg- ment of it for twenty years, are indeed so forcible, that the dictum of Sir W. Fortescue, unsupported as it is by any positive decision, and being directly opposed to the opinion of Lord Thurlow, may now be regarded as of no authority. There are, however, some decided cases (most of them it is true of ancient date), in which long vmclaimed mortgage debts were in a strict sense presumed to have been satisfied. Thus, in Sibson v. Fletcher («), a mortgage was made to the defendant in I6l6, and in 1623, the mortgagor, who till then continued to occupy the land, sold it to the plaintiff; on a bill filed by the lat- ter ten years afterwards to be quieted in his enjoyment against the defendant, who then first set up his title as mortgagee, the court decreed according to the prayer ■ of the bill, and ordered the mortgage deed to be deli- vered up to be cancelled. The ground of the deter- mination was, that as the defendant did not make any claim, nor give notice of his mortgage at the time of the plaintiff's purchase though he saw the possession altered, and as the estate for seventeen years had been in the immediate hands of the mortgagor and of the plaintiff who purchased from him, there was every reason to presume that the mortgage money had been paid. So, where the claimants under a purchase made six- teen years before were disturbed in their possession by (a) 1 Cha. Rep. 59. See also Hales v. Hales, ib. 105. 2 A 2 356 PBESUMPTIONS OF FACT. a person who set up a title as mortgagee under a for- mer owner, and relief against the encumbrance was sought in equity, the court, for want of direct proof to show that the mortgage then remained unsatisfied* decreed the deed to be delivered up and cancelled (a). And again, in the late case of Blewitt v. Tho- mas (b), where, to a bill setting up an old mort- gage, and stating an account settled twenty-five years before, the defendant pleaded forty years' possession in himself and his ancestors, without payment of interest or making any admissions of the debt, Lord Lough- borough allowed the plea, and said it was a complete answer to the demand. From these cases, then, it appears that the court has on certain occasions conceded the point, that by a mortgage being allowed to lie dormant for a consider- able number of years, a presumption is afforded of its previous satisfaction. It is true, that in none of those cases was there any particular period alluded to as serving to establish the supposition ; for although in Sibson V. Fletcher, and Abdy v. Loveday, sixteen or seventeen years were held to defeat the mortgagee's demand, yet in both instances much reliance seems to have been placed on the fact of there having been a sale of the estate since the mortgage was made, and of the mortgagee having failed to give notice of his right to the purchaser : but as the general principle was ad- mitted, the limits of its application it will not, as is conceived, be difficult to ascertain. Twenty years have (a) Abdy v. Loveday, Finch's {b) 2 Ves. jun. 669. Rep. 250. PRESUMPTIONS OF FACT. 357 long been held a convenient time for limiting the right to enforce old bonds and other similar securities, on the assumption that laches for so long a period could proceed only from want of right ; and the same rea- sons obviously apply for adopting the like measure of time as a limitation to claims under old mortgages. The presumption of satisfaction is of course liable to be repelled by evidence. And it seems, that for this purpose circumstances evincing the improbability of a discharge will be enough. Thus, Sir W. Fortescue considered the presumption of payment to be suffi- ciently answered, by showing that the mortgage debt belonged to the mother of the owner of the estate en- cumbered, and that she had not permitted the title deeds to be delivered to him. Her intention, he ar- gued, was thereby manifested " not to demand payment during her son's lifetime ; and yet not to part with her whole right, but to keep it in her own power " («). So where interest on a mortgage had not been paid for about twenty-three years, but it appeared that the estate at the time of the mortgage being made was in reversion, and did not come into the mortgagor's possession till within two years before the bill was filed ; the Court of Exchequer held the forbearance of the mortgagee to be accounted for (to at least a certain extent) by the unproductiveness of the security, and by that circumstance connected with an admission from the other party, ten years before, that the debt was then still unpaid, to be fully and satisfactorily explained (b). (a) Lem,in v. Newtihani, 1 Ves. {b) Toplis v. Baker, 2 Cox, 118 51. 358 PRESUMPTIONS OF FACT. With regard to the latter case, however, it should be observed that, although the unproductiveness of the estate might be accounted of importance as an auxiliary circumstance, the principal ground of the determina- tion was the acknowledgment ten years before that the debt then subsisted. It is quite clear, that where an admission of the demand has been made within twenty years, the allegation of a discharge cannot pos- sibly be maintained {a). II. Judgments, whether for debts recovered or ac- knowledged, or for damages found, cannot under ordi- nary circumstances be enforced, unless they have been acted on within the preceding twenty years ; the laches of the parties is held to afford ^jm«« facie evidence that such judgments have been satisfied (&). This rule is of much importance in practice ; for as judgments are liens on the freehold estate of the per- son against whom they are obtained (c), and take pre- cedence of all subsequent encumbrances and interests, — binding the estate even in the hands of a hond fide purchaser, — it is in no small degree conducive to the security of purchasers in general, that after a certain time the land should become effectually relieved from them. The presumption arising from the long forbearance (a) Trash v.White, 3 Bro. C. C. 1 Stra. 639 ; Willaume v. Gorges, 289, 291. See also Meade v. Earl 1 Camp. 217. See also Kemys v. of Bandon, 2 Dow. 268. Ruscomb, 2 Atk. 15. (A) Flower V. Lord Bolingbroke, (c) Stat. 13£dw. I. c. 18. PRESUMPTIONS OF FACT. 359 of the cognisee is, however, in all cases liable to re- buttal. It will therefore be destroyed by showing that interest has been paid, or that the cognisor has acknowledged the existence of the debt, within the last twenty years. For the same purpose the cognisee may prove, that he has not been able, in consequence of prior encumbrances, to extend the lands affected by the judgment («). But if twenty years have elapsed since the judgment was obtained or last recognised, the general rule will not be departed from, although the judgment creditor may be able to account for his forbearance, by evidence that the debtor has long been in extremely embar- rassed circumstances, and according to the opinion of those who know him incapable of paying the debt (b). III. Warrants of Attorney to confess Judgment are, for the same reasons as judgments themselves, liable to be affected by the creditor's delay. The lapse of twenty years will determine their validity (c). IV. The same period of time will also bar claims under Decrees of Courts of Equity, the existence of such claims being held on the common principle inconsistent with remissness to enforce them (d). (a) AVinchcomb v. Winchcomb, (d) Comber's case^ 1 P. Wms. 2 Cha. Rep. 101. 766. It is observable, that decrees (Z>) Willaumev. Gorges, 1 Camp. in equity act only in personam 217. not in rem, and do not affect the ((■) Hulke V. Pickering, 2 Barn. real estate of the party. 1 P. Wms. and Cress. 555. 766- 360 PRESUMPTIONS OF FACT. V. Statutes-Merchant, Statutes-Staple, and Recogni- sances, which resemble judgments in binding the lands of the cognisor, are like them liable to the presump- tion of satisfaction or a discharge («). And it is probable, that delay for twenty years to put these general liens into force would raise that presumption ; for, although in none of the authorities referred to was such particular period relied upon, yet as the doc- trine of presumption has in so many similar instances proceeded by analogy to the statute of limitations, there is every cause to think that the same analogy would be observed in deciding on the efficiency of old securities of the kinds in question. The negligence of the cognisee will not be excused by reason of the lands which are subject to his lien having devolved upon an infant ; because though, in such case, the land would not be extendible at law, still the cog- nisee might have obtained relief in a court of equity {b). It has also been held, that no sufficient answer to the length of time is furnished by proof of the cog- nisee having been placed under obligations to the cog- nisor, and of having been prevented from seeking payment of the debt through motives of gratitude or fear (c). The grounds, on which the prima facie satisfaction (a) Lady Hatton v. Jay, 1 Cha. v. Loveday, Finch, 250. Rep. 117; Dennis v. Nourse, ib. (/») Middleton v. Shelly, 1 Lev. 106; Pophani v. Desmond, ib. 198. 135; Burgh v. Wolf; Toth. 258; (c) Corey v. Corey, Finch, 331, Smith V. Rosewfll, ib. 277 ; Abdy PRESUMPTIONS OF FACT. 361 of statutes and recognisances may be repelled, are of course the same as those which prevail in regard to judgments : — for example, receipt of interest, or an acknowledgment of the debt, within the preceding twenty years, — the being prevented by prior encum- brances from extending the debtor's land, — and (not improbably) the creditor's absence from the kingdom. VI. Concerning Bonds, all the cases and dicta which have mentioned the subject, concur in authorizing the proposition, that if since the time limited for payment of the principal money secured, or since the last ac- knowledgment of the debt subsequently to that time, a space of twenty years has intervened, it furnishes an inference that the debt has been satisfied. The earliest cases on this subject came before the courts of equity, where it was usual to administer re- lief against old bonds upon which the obligees were proceeding at law ; and there so far back as 1635, twenty years without a demand seem to have been held sufficient ground to grant the relief sought for («). Sir Matthew Hale was the first judge who introduced the doctrine into the courts of common law, and twenty years was the period laid down by him as affording the presumption of payment. In this he was followed by Lord C. J. Holt {b) ; and the rule, as ob- (a) Carpenter v. Tucker, 1 Cha. 395 ; Powell v. Godsale, Finch, Rep. 78 ; Coles v. Emmerson, ib.; 77; Moyle v.Ld. Roberts, Nels. 9. Geofrey v. Thorn, ib. 88 ; Hum- (6) Anon. 6 Mod. 22; and Anon, phreys v. Humphreys, 3 P. Wms. 1 1 Mod. 2. 36*2 PRESUMPTIONS OF FACT. taining in courts both of law (a) and equity (6), has since been repeatedly recognised. Lord Mansfield indeed seems to have carried the doctrine further than other Judges. In one case (c), he said that no positive time had been laid down by the courts whence to infer the payment of an old bond, but that it might be eighteen or nineteen years ; and on another occasion (d) he laid it down, that a jury might presume the debt to be discharged, where no interest is shown to have been paid for sixteen years. But the authority of these dicta cannot be relied upon. If they are to be understood in a literal and unquali- fied sense, the principle they furnish is not only un- warranted by any former determination or judicial as- sertion, but extended much beyond them. And so in fact the dicta in question have been considered by later judges, — the position that a less period than twenty years will constitute evidence of a discharge, being held to apply to those cases only where, in addition to want of demand, other circumstances are found leading to the same conclusion. Thus in Oswald v. Legh (e), Mr. Justice Buller said, he had always been of opinion, that no less time than twenty years would of itself form a presumption that a bond had been paid ; and that in those cases where satisfaction had been pre- sumed within a less period, some other evidence had (a) Moreland v. Bennett, 1 Stra. (ft) See 3 P. Wms. 396 ; 2 Atk. 652; Searle v. Lord Barrington, 144; 12 Ves. 266 ; 19 Ves. 199. 2 lb. 826. See also 1 Burr. 435 ; (c) 1 T. R. 272. U Burr. 1963; Cowp. 109; 1 T. (d) Cowp. 109. R. 270, 272. (e) 1 T. R. 272. PRESUMPTIONS OF FACT. 363 been given in favour of the presumption, such as hav- ing settled an account in the intermediate time, with- out any notice having been taken of the demand («). Then after citing a case {b) before Lord Raymond, — where, to an action of debt on a bond due seventeen years before, the defendant having pleaded payment at the day, and urged in defence that as he had ever since the time fixed for payment of the bond possessed an estate in the plaintiff's neighbourhood, and had been constant and regular in all his payments, it should be presumed that the money was paid, the Lord Chief Justice said, he would never suffer a plaintiff to be stripped of a just debt by such a presumption ; — the learned Judge added, that that case fortified an idea he had taken up in reference to the dicta of Lord Mans- field, that when the question of presumption of pay- ment within a less time than twenty years had been left to a jury, it must have been so left upon some auxiliary evidence, though in such cases the slightest evidence was sufficient. This opinion of Mr. Justice Buller, we may observe, was in a late case at N. P., where Lord Mansfield's dicta were cited and relied vipon, confirmed in every particular by Lord Ellenborough (c). (a) That the fact of the parties an estate from the obligor since having meantime accounted toge- the date of the bond, fortified by ther, without noticing the bond eighteen years acquiescence, was debt, will, together with the lapse held to furnish a like inference, of sixteen or eighteen years amount (Z») Constable v. Somerset, Hill, to presumptive proof of payment, 1 Geo. 2, at Guildhall. See 1 T. see Colsell v. Budd, 1 Camp. 27. R. 271. See also Moyle v. Lord Roberts, (c) Colsell v. Budd, 1 Camp. Nels. 9, where the circumstance 27. of the obligee having purchased 364 PREsuMrxioNs, of fact. It has also been decided at Nisi Prius, that although the obligor has within twenty years acknowledged the existence of the bond, yet if the inference arising from the laches of the obligee be confirmed by evidence which tends to establish the presumption of a release, that acknowledgment will not keep the bond on foot. An action was brought, in 1802, on a bond payable in September 1767 ; and to support the plea of a re- lease which was put in by the defendant, evidence was adduced, that M. Foster (the obligee) having three daughters, to each of whom he said he intended to give a portion of 1,000/., advanced to the defendant, on his marriage with one of them, in 1764, a portion of 500/., and gave him an assurance that he should re- ceive a further sum of like amount at his (Foster's) death ; that in 1767 the defendant borrowed of Foster 400/., for which he gave the bond in question ; and that six years afterwards, on an application by the de- fendant for a further loan, Foster refused to make it, saying that the defendant had already had his share of the estate, and that he might do as he pleased with what he had, for he should never be called upon for it. Foster died in 1791. Under these circumstances it was insisted for the defendant, that although the idea of payment was excluded, the evidence was strong to pre- sume a release by the obligee ; and Grose J., in his direction to the jury, said, " This bond was given by a son-in-law to his father-in-law : and it appears that he afterwards was told that payment would never be called for. He therefore had every reason to suppose that it was either cancelled, or otherwise legally dis- TRESUMPTIONS OF FACT. 365 charged. It is dear by the production that it was not cancelled; a release therefore might have been executed." A verdict, accordingly, was found for the defendant (a). But in general, an admission or acknowledgment by the obligor that the bond has not been satisfied, will deprive him of the benefit which he would otherwise have from the long forbearance of the obligee. This was admitted by the Master of the Rolls, in a suit in Chancery on the same bond as occasioned the pro- ceedings at law in the case just stated {b) ; and in Toplis v. Baker (c), the point was expressly decided. One of the plainest and most significant modes of acknowledgment that a bond remains undischarged is payment of interest. So that evidence of interest hav- ing been received at any time within twenty years be- fore the commencement of an action on the bond will save the right of the obligee {d). The presumption of (a) Washington v. Brymer, the bond in the obligee's own Peake on Evidence, 4 Ed. App. hand writing, acknowledging the 76. That a parol discharge, receipt of interest on different oc- however, will not in general be casions, some within the period of effectual, where the demand is twenty years from the date of the secured by deed, see Cupit v. bond, and others within the like Jackson, M'Clel. 495 ; Gilbert v. space of time before the com- Wetherell, Hemming v. Gurrey, mencement of an action for the re- 2 Sim. and Stu. 254, 311, 320. covery of the debt; it was held, (6) Sec 6 Ves. 519. that that evidence was sufficient (c) 2 Cox, 118. See also Cowp. to rebut the presumption of pay- 109. ment, though nearly thirty years (rf) Searle v. Lord Harrington, had elapsed since the execution of 2 Stra. 826; 2 Lord Raymond, the bond. The reason given for 1370 ; 3 Bro. P. C by Toml. 593. admitting the indorsements as In this case, where it appeared evidence was, that it had been that there were indorsements on the general practice of the obligee 366 PRESUMPTIONS OF FACT. payment may also be resisted on the ground of the obligor's poverty, and consequent inability to pay (a) ; or of his absence beyond sea, by which the obligor was prevented from pursuing his demand with effect (b). It likewise seems, that the long continued absence abroad of the creditor will prevent the application of the general rule. The obligor being thus precluded all opportunity of making the supposed payment, no foun- dation exists on which an allegation to that effect can be reasonably supported (c). to indorse the payments of inte- rest, and this perhaps with the privity, and certainly for the sake of the obligor, who was made more secure by such indorsements than by taking loose receipts. But it should be observed, that in order to make indorsements effectual to rebut the presumption of pay- ment, some of them must appear to have been made within twenty years from the time when the bond was forfeited, or within twenty years from some other period when the debt is clearly proved to have existed ; in other words, such in- dorsements must have been made before they would be thought ne- cessary to encounter a presumed satisfaction (Turner v. Crisp, 2 Stra. 827, cited ; per Lord Hard- wicke, 2 Ves. 43.)} and at a time when the effect of them was clearly adverse to the writer's interest (Rose V. Bryant, 2 Camp. 321). {a) Fladong v. Winter, 19 Ves. 196 ; and Wynne v. Waring, there cited. See also 12 Ves. 266, and Covvp. 109. Sed vide WiUaume V. Gorges, 1 Camp. 217- (Z>) Newman v. Newman,- 1 Stark. N. P. Rep. 101. (c) 12 Ves. 266; 19 Ves. 200. PRESUMPTIONS OF FACT. 367 CHAPTER XX. PRESUMPTIONS OF FACT CONTINUED. Of ilie 'presumed Satisfaction of Annuities, Portions, Legacies, Liens for Purchase Money, and other Demands not within the Statute of Limitations. I. Annuities, whether the subject of gift or pur- chase, are, like debts and other demands secured by specialty (which have been considered in the last chap- ter), liable to the implication of satisfaction or a release, from long neglect to enforce the payment of them. And it seems, that a lapse of twenty years between the last payment and the time when a legal demand is made, unanswered, will defeat the annuitant's right («). But a less period than twenty years will not supply the inference that an annuity has been discharged or released, unless there be some auxiliary evidence which by its own proper force supports the presumption and makes up the deficiency of time {h). So, although no payment of interest may have been made for more than twenty years, yet if the existence of the annuity has been acknowledged within that time, it will rebut any (a) Smallman v. Hamilton, 2 vide Duke of Albemarle v. Lady Atk. 71 ; Southcot v, Southcot, 1 Purbeck, Fin. Rep. 252. Cha. Rep. 108 ; Bales v. Procter, {h) See Aston v. Aston, 1 Ves. lb. 144. See also Bonnington v. 264 ; Cupit v Jackson, M'Clel. Walthall, 2 Cha. Rep. 219. Sed 495. 368 PRESUMPTIONS OF FACT. defence grounded solely on the plaintiff's delay in prosecuting his claim (a). It has been contended, that although where by rea- son of the shortness of time, or from particular circum- tances, the presumption of satisfaction does not arise, an account of the arrears of an unpaid annuity can- not be carried back fui'ther than six years, that being the period to which accounts are restricted in cases where the rents and profits of estates are recovered in equity or by action at common law (b). The point, however, has been decided to the contrary. And it seems that whenever the right to an annuity itself is not defeated, all the arrears may be recovered (c). In the case of annuities granted by way of pin-mo- ney, there is a distinction to be observed with regard to the amount of arrears, which may be recovered at the husband's death. If the husband and wife have lived together, the arrears for the preceding twelve months only can be called for, because the wife having had the advantage of residing with her husband, is supposed in that way to have had her claim satis- fied (d), or in consideration of her maintenance to have (a) Wynn v. Williams, 5 Ves. fley, Prec. Cha. 26. It may be re- 130, 134. marked, that a similar rule applies (Z») Harmood v. Oglander, 6 to the case of a fund settled to the Ves. 199, 215. See also 10 Ves. separate use of a feme covert, who 469, 470. suffers her husband to receive and (c) Aston V. Astoti, 1 Ves. 264 ; appropriate the yearly income Wynn v. Williams, 5 Ves. 130 ; without complaint. Powell v, Cupit v. Jackson, M'Clel. 495. Hankey, 2 P. Wms. 82, and note ((/) 1 Ves. 267 ; Offley v. Of- by Cox, lb. 84. rUESUMPTIONS OF FACT. 369 waived it (a). But where the parties have lived sepa- rate, and the wife has not received a distinct and par- ticular allowance for her support, the com-t will decree an account as far back as the arrears go {b). So, if the wife were of unsound mind, all the arrears will be recoverable although she might continue to reside with her husband, because her condition rendered her inca- pable of waiving her right (c). II. Portions which are charged on real property, are not unfrequently suffered to remain on the security of the estate after they become due. AVhen this is the case, so long as interest is paid or the demand otherwise periodically acknowledged, the right of the party entitled to the portion, of course, cannot be pre- judiced. But if neither interest be received, nor re- gular acknowledgments of the existence of the charge be made by the land-owner, a neglect of the portioner to pursue his right within a reasonable time, as twenty years, will raise the presumption that the portion has been satisfied or released (d). An admission of the right within twenty years be- fore the commencement of a suit will exempt the case, as it has been intimated, from the principle of implied satisfaction ; and to have this effect, it is immaterial (a) Thoiiias v. Beniiet, 2 P. ground of exception from the ge- Wms. 341 ; Ridout v. Lewis, 1 neral rule. Atk. 269. The laUer case also (b) See 1 Ves. 267. shows that a parol promise made (c) See Brodic v. Barry, 2 Ves by the husband to the wife, that and Be. 36, 39. she should have the arrears of her {d) Standish v. Radley, 2 Atk. pin-money, is another effectual 177. 2 B 370 rUESUMPTIONS OF FACT. whether the admission be express or implied («). The presumption may also be rebutted by proof of the portioner's ignorance of his right, or of fraud on the part of the persons interested to prevent his asserting it. The latter proposition is deduced from the case of the Earl of Pomfret v. Lord Windsor {h). As that case is much complicated in its circumstances, a state- ment of it in this place, so far as relates to the point under discussion, will not, it is conceived, be deemed superfluous. In 1697, lands (the estate of Lady Jefferies) were conveyed in trust to raise 20,000/. for the benefit of Lord Jefferies, her husband. Lord Jefferies died in 1702 intestate, leaving his wife, and an only daugh- ter, who was then an infant. Lady Jefferies in the following year intermarried with Lord Windsor. In 1708, a private Act of Parliament was passed declar- ing that the 20,000/., subject to the payment of Lord Jefferies' debts, should be distributed according to the statute; and in 1712, by a decree in Chancery, the 20,000/. were ordered to be raised forthwith, the debts of Lord Jefferies to be paid, and two-thirds of the surplus to be laid out at interest for the benefit of the infant daughter. The daughter attained her majority in 1719, and in the following year married the plain- tiff. Lord Pomfret. The decree of 1712 not having (a) Barrington v. O'Brien, 1 (Z») 2 Ves. 472. Ball and Be 173. PRESUMPTIONS OF FACT. 371 been carried into effect, a bill was filed, in 1746, to compel the execution of the trust for raising the 20,000/., and to obtain payment of Lady Pomfret's distributive share. To this demand the defendant, who claimed under Lady Windsor, objected {inter alia) the length of time. But Lord Hardwicke, who considered the claim of Lady Pomfret in the light of a portion, after noticing that the decree of 1712 had been culpably disregarded by the trustees, — that Lord Windsor (the defendant's father), who stood in loco parentis to Lady Pomfret, by not forwarding the exe- cution of the decree, had very blameably neglected her interests to the promotion of his own, — that Lady Pomfret's rights were not disclosed to her on coming of age, as they ought to have been, — and that the defendant had admitted a balance to remain due to Lady Pomfret, — declared it his opinion, that the length of time was sufficiently accounted for by these circum- stances, and that, if it were a case which fell within the statute of limitations, they would be enough to take it out of that statute. in. With regard to Legacies which for a great length of time have been unacknowledged by the executor and unclaimed by the legatee, the general rule is that pay- ment shall be presumed. • But the application of this rule may be prevented by particular circumstances. In some cases, a postpone- ment necessarily takes place in the payment of lega- cies, from the difficulty of ascertaining the amount of the testator's debts. The same consequence follows, in 2 B 2 372 PRESUMPTIONS OF FACT. Others, from impediments to the getting in of the per- sonal estate. Such facts may therefore be adduced to meet the presumptive discharge. But as, in general, legacies become due at the end of twelve months from the testator's death, on the idea that a sufficient oppor- tunity has been then afforded for collecting the per- sonal estate and discharging the debts, the neglect of a legatee will be dated from that period : so that should twenty years thence elapse before steps are taken to enforce the demand, the court, as it seems on the common principle, will hold this delay to be jwimd facie evidence of payment («). And the laches of the legatee will not be excused, though some of the debts of the testator still remain undischarged ; for it is no proof, as Lord Commissioner Eyre remarked, be- cause one man has forborne to prosecute his claim, that another has done so too (h). Where legacies are claimed at a great distance of time after they become due, the onus 'prohamVi that payment has not been made lies with the legatees. To get over the delay, they must, as a general rule, adduce in proof such circumstances, as satisfactorily evince their previous conduct not to constitute what is tech- nically denominated laches. The only exception to this rule is, when in answer to a bill for payment of a legacy, the executor admits that if has not been dis- charged ; for then, it seems, the plaintiff is not obliged (a) Cusse V. Ash, Finch, 316; berville, 2 Ves. jim. 11; 4 Bro. Fotherby v. Hartridge, 2 Vern. C. C. 115, S. C See also per 21 ; Lewis v. Lord Teynham, 2 Lord Alvanley, 2 Ves. jun. 280. Ves. jun. 13, cited," Jones v. Tur- (i) 2 Ves. jun. U. PRESUMPTIONS OF FACT. 373 to produce other testimony in support of his claim. Nor is it important in such case, that the admission of the executor should be direct; an implied admis- sion will be equally efficacious. Accordingly, where to a bill for a legacy the executor pleaded the statute of limitations in bar, that plea was adjudged to let in the right of the legatee, as the executor by his office was simply a trustee, and the plea did not deny the substantial justice of the demand {a). IV. By a rule of equity, vendors who do not receive the whole of their purchase money, have a lien on the estate sold for such part of it as remains unpaid ; which lien is neither discharged by a receipt for the entire consideration indorsed on the deed of convey- ance, nor by accepting such a collateral security as affi^cts only the person of the purchaser, — as a covenant, bond, or note. To exonerate the estate from this equi- table charge, the intention of the parties must be ex- pressly stated, or necessarily implied, or a security must be given on other property for the sum unpaid. The lien in question is available not only against the purchaser himself, but against his heir and all persons claiming under him as volunteers, and also against as- signees under a commission of bankrupt, and credi- tors entitled under a conveyance for payment for debts. Purchasers for valuable consideration, and without no- tice, do not fall within the same rule ; but their pro- (a) Parker v. Ash, 1 Vern. 256. and Higgins v. Crawiurd, 2 Ves. See also Anon. 2 Freem. 22, ca. 20 ; jun. 571. 374 P11ESX3MPTI0NS OF FACT. tection against the lien depends entirely on the fact of their being ignorant of its existence at the time of pur- chasing, for if before the sale is completed they have notice that the whole or any part of the purchase mo- ney was not paid to the previous vendor, the lien will continue upon the estate in the hands of such pur- chasers. The protection afforded to purchasers with- out notice, it may be observed, extends to claimants of every description under them, as well those who have, as those who have not, received notice of the previous unsatisfied claim (a). One of the ordinary means by which purchasers are affected with implied notice of the existence of a lien, is the want of a memorandum acknowledging the re- ceipt of the consideration money of a former purchase indorsed on the instrument of conveyance. It must not be understood, however, that such indorsement is always requisite as proof of payment ; for where the deed contains a distinct substantive recital of that fact, as the additional acknowledgment is rarely, if ever, then given, the recital in such instances is regarded primarily as conclusive of the truth of the statement. The cases to which the principle applies, are where payment of the consideration is merely mentioned in general terms, and in the common form, as taking place at the time of the execution of the conveyance, when the receipt follows in the deed as a matter of course : the universal practice in these cases being to (a) See on this subject generally, Sugden on Purchases, C. XII. PRESUMrTIONS OF FACT. 375 sign an independent acknowledgment on the back of the deed, the courts hold the omission of such in- dorsement a circumstance sufficient to put a subse- quent purchaser upon inquiry, and therefore to give him implied notice, if the money be in fact unpaid. If the deed which wants the indorsement be of mo- dern date, and recourse cannot be had to the jDarties be- neficially interested, a purchaser must use the utmost circumspection before he acts on the supposition that no lien exists. This he is still more concerned to do, if the present vendor is either himself the person, or is a voluntary claimant under the person, who, on the previous purchase, seems not to have paid the purchase money. But the necessity for caution and diligent inquiry is much diminished, if the property has under- gone a change of owners since the time of the convey- ance in which the defect appears ; because then a pre- sumption arises that the intermediate purchasers had acquired information, and were satisfied, either that the receipt was originally omitted by mistake, or that payment of the consideration had been subsequently made. The case is evidently still stronger where an interval of considerable length has elapsed since the origin of the lien. Indeed, in this case, whether the estate has or has not in the mean time passed through the hands of subsequent purchasers, unless a recent acknowledgment can be proved or other satisfactory cause shown for the delay, the mere staleness of the demand will prove fatal to it. And it seems that twenty years may be depended on as sufficient for the 376 TRESUMPTIONS OF FACT. purpose ; the obvious conclusion from so long quies- cence is that the lien has been satisfied and dis- charged (a). It is not improbable, that a less period than twenty years would be held to raise this presumption, where the property, since the question of lien must first have arisen and been inquired into, has been sold or mort- gaged, or if the case be distinguished by any other cir- cumstances which corroborate the supposition of a dis- charge. In addition to the cases stated in the preceding divi- sions of this chapter, there remain to be noticed a few others, which, though similar in the general principle, cannot be reduced under any particular head. They concur, however, with the former in establishing the broad proposition, that unless there are circumstances peculiar either to the nature of the claim or to the person of the claimant, twenty years' forbearance to prosecute an ascertained demand is presumptive proof of payment. Thus, in a case where a note above twenty years old, payable eight days after sight, was attempted to be enforced. Lord Ellenborough held, that as delay for twenty years afforded presumptive evidence of pay- ment in regard to bonds, the same rule of presump- tion must a Jbrtiori apply to securities of an inferior (fl) Himton V. Davies, 2 Cha. 314; Bidlake v. Lord Arundel^ 1 Rep. 44; Heupertv. Benn, Finch, Cha. Rep. 93. PRESUMPTIONS OF FACT. 377 tlescription (a). So, at the time when it was consi- dered that a general trust in a will for payment of debts operated to revive simple contract debts of the testator barred by the statute of limitations, it was decided, on two different occasions, that demands of above twenty years standing indisputably came not within this principle, and that the length of time fur- nished a clear presumption against their subsistence (h). In like manner it has been held, that where an estate, which was formerly conveyed to trustees for payment of debts, has for many late years been enjoyed by the equitable owner without interruption, svich enjoy- ment, unless opposed by other considerations, raises a conclusive inference that the debts have been dis- charged (c). It seems that even a less period than twenty years will be received as affording proof of payment, where the hardship of the case is great, and the inconvenience occasioned to the party affected by the demand, is solely owing to the neglect and carelessness of the claimant. In a suit against an executor for performance of articles entered into by his testator fifteen years before, in which the latter had bound himself to the amount of 6,000/., it appeared that the plaintiff, shortly after the execution of the articles, had acknowledged satis- faction for the whole sum, — viz., by receipt of 4,000/. in money, and by a conveyance of land equal in value (a) Duffield v. Creed, 5 Esp. 105 j Oughterloney v. Earl Powis, N. P. Rep. 52. Ambl. 231. (Z.) Lacon v. Briggs, 3 Atk. (t) Anon. 12 Vin. Abr. 57, pi. 7. 378 PRESUMPTIONS OF FACT. to the remainder. On the testator's death, which hap- pened about three years afterwards, it was discovered that the land had been previously settled on his wife for her jointure ; and in regard to that circumstance the bill was brought. But at the hearing the court declared, that as the plaintiflf had acknowledged receipt of the 6,000/., which of itself was evidence of the performance of the articles, and had made no further demand for several years, it would be unreasonable to put the executor to prove a precise payment after so long a time. The bill was therefore dismissed (a). It remains to observe, that where a debt which is claimed after a great number of years is disputed by the defendant, who however admits that it has not been i)aid, so that all inference of jDayment from the lapse of time is excluded ; yet a court of equity, acting on the common principle of resisting stale demands, if the justice of the case so require, will hold the long neglect of the claim to be prima facie evidence that the debt never existed (5). In some instances the payment of demands is inferred from circumstances alone without the aid of time. Of this kind are claims for debts alleged to remain unpaid, while subsequent demands due on the same account, and arising from the same cause, are proved or admit- ted to have been regularly discharged. Thus a receipt for rent due at a particular time is strong presump- (a) Duke of Newcastle v. Cley- (i6) Christophers v. Sparkc^ "Z ton. Finch Rep. 246 Jac. and Walk. 'J23. PTIESUMPTIONS OF PACT. 379 tive evidence of the payment of all former arrears. If a man give a receipt for the last rent, says Lord C. B. Gilbert, the former is presumed to be paid, be- cause he is supposed to receive and tak6 in the debts of the longest standing ; especially if the receipt be in full of all demands, for then it is plain there were no debts outstanding (a). Presumptions of payment, how- ever, arising in this way are, like all other presump- tions, liable to be repelled by proof to the contrary ; unless, indeed, the acquittance for the more recent demand be under hand and seal, when such proof can- not be received, on the principle that parol evidence may not be given in contradiction of a written instru- ment [b). In a modern case, on an action for work and labour done for the defendant, where it was proved, that the plaintiff and other workmen employed by the defend- ant came regularly to receive their wages every week, and that the plaintiff had never been heard to complain of non-payment ; Lord C. J. Eyre held this evidence to furnish a clear presumption subversive of the plain- tiff's demand (c). (a) Gilb. on Evidence, 142. (c) Lucas v. Novosilieski, 1 {b) Ibid. ; Co. Lit. 373 a. Esp. N. P. Rep. 296. 380 PRESUMPTIONS OF FACT. CHAPTER XXI. PRESUMPTIONS OF FACT CONTINUED. Of the jyresumed Dereliction of the Right to have Fraudulent Purchases, Purchases by Trustees, and Purchases of Reversions, set aside in Equity. It is an established rule in equity, resulting from the relation between trustee and cestui que trust, that no length of possession by the forn^er shall prejudice the right of the latter («). The case does not come within the scope or analogy of the statute of limitations, as that statute applies only to cases of adverse enjoyment, and the possession of the trustee is not adverse to, but consistent with, the title of the equitable owner. Lord Redesdale has accordingly observed, that if a trustee be in possession, but does not execute the trust, his possession still is that of the cestui que trust, and if non-performance of the trust be the only circumstance in his favour, such possession will operate nothing as a bar, because it is agreeable with the equitable owner's title : — just as in the case of a lessee for a term ; whose possession, though he may not pay rent for fifty years, is no bar to an ejectment after the expi- ration of the term, the previous occupancy being in reality consistent with the right of the party against whom he seeks to set it up {h). (a) Hamond v. Hicks, 1 Vern. Bro. C. C. 554; 17 Ves. 97. i32 ; Lord Hollis's case, 2 Veiitr. {b) In Hovenden v. Lord Au- 34.5. See also 2 P. Wms. U5; 1 nesley, 2 Scho. and Lef. 633. PRESUMrTIONS OF FACT. 381 It has been attempted, by a forced application of tliis doctrine, to extend it to all cases where, during the existence of an outstanding legal estate in a trustee, the beneficial enjoyment, for some considerable time, has been had by a stranger. And for that purpose it was argued, that so long as the interest of the trustee is admitted to subsist, there could be no disseisin of the cestui que trust ; that the trustee held, and could only hold, for the benefit of the rightful owner ; that he could not divest himself of his character of trustee ; and no stranger could discharge or deprive him of it (a). But to this it was replied that, although a disseisin in the absolute sense of the term might not be effected, yet the possession of the stranger amounted virtually to a disseisin, and was no less adverse to the riffht of the beneficial owner, than if the latter were invested with the legal estate. And it was further urged, that did the rule, which prevents the sta- tute of limitations applying between cestui que trust and trustee, hold between cest?ii que trust on the one side and strangers on the other, this would almost an- nihilate the force and utility of the statute, since a very great, perhaps the major part of the landed property in the kingdom was vested in trustees, and if the point were decided in the way contended for, all such pro]ierty would be excepted from the operation of the act {b). After much contrariety of opinion, it seems however to be now settled, that if an equitable title be not enforced within the same time that would bar a legal title under corresponding circumstances, courts (a) See Harmood v. Oglander, Mer. 357-8-9. 6 Ves. 199 ; 8 lb. 106 ; Marquis {b) Llevellyn v. Mackworth, Cholmondeley v. Lord Clinton, 9 Baniardist. Clui. Rep. 445, 449. 382 PRESUMPTIONS OF FACT. of equity, regulating the aid they afford by analogy to the statute, will not relieve {a). On this very prin- ciple indeed, in a recent case before the House of Lords, twenty years' exclusive possession of an equity of redemption was considered to operate as a bar to all adverse claimants, and to produce the same effect as disseisin, abatement, or intrusion, with regard to legal interests. This, their Lordships held, was necessary for the general security of equitable titles {h). But, although in the case of a direct trust, no length of possession by the trustee will defeat the right of the equitable owner, yet trusts, which arise by implication or the construction of equity, are liable to be barred by the laches of the party. Such, among others, are those which exist in cases of purchases where fraud has been practised on the vendor, and of purchases made, under a trust to sell, either by the trustees themselves, or by persons who from connexion with them have acquired a knowledge of the property which they might be in- duced to exercise to the prejudice of the persons bene- ficially interested. In reference to these and similar cases, it was said by Sir Wm. Grant, that so far from courts of equity allowing a constructive trust to be made out at any distance of time after the facts and circumstances happened out of which it arises, — after long acquiescence, relief is refused not only where the length of time renders it extremely difficult to ascer- (a) See in Bond v. Hopkins, 1 {b) INIarquis Cholmondeley v. Scho. and Lef. 429 ; Medlicott v. Lord Clinton, 2 Jac. and Walk. 1, O'Donell, 1 Ball, and Beat. 156. and p. 191. See also Basket v. Pierce, 1 Vern. 226. PRESUMPTIONS OF FACT. 383 tain the true state of the facts, but where the true state of the facts is easily ascertained, and where it is perfectly clear that relief would originally have been given (a). It is intended in the present chapter to direct the attention of the reader to some particular applications of this doctrine. Two principal divisions of cases, namely, those of fraudulent purchases and those of purchases by persons sustaining a fiduciary character, have been already adverted to. A third division re- lates to purchases of reversionary interests. Concern- ing each of these it is proposed to consider, under what circumstances the neglect of the parties preju- diced will conclude their right to have such purchases set aside by a court of equity. I. Js to Fraudulent Purchases.— The ingredients which in this instance constitute fraud, appear to be reducible to the following heads ; breach or abuse of confidence previously placed in the purchaser ; — advan- tage taken of the ignorance, mistake, necessity, or mental imbecility of the vendor ; — and the undue exer- cise of a subsisting influence over him. On proof of any of these particulars, accompanied by the fact of inadequacy of price, equity will interfere where the transaction is of recent occurrence. Fixing on the purchaser's want of integrity, it will convert him into a ti*ustee for the vendor, and will decree a re-convey- ance of the estate, subject to a lien for the sum ac- («) 17 Ves. 9T. 384 PRESUMPTIONS OF FACT. tiially paid for the purchase with interest (deiUicting the intermediate profits), and for money expended in lasting improvements. But in cases where the alleged fraud appears to have taken place at a remote period, the matter as- sumes a very different aspect. From unreasonable delay on the part of the vendor to pursue his claim, a presumption arises either that the fraud charged never existed, or that after it was committed, the party, for valuable consideration, had confirmed the purchase, had released his equity, or had consented to abandon it. And if it can be shown, that the vendor was ac- quainted with the fact of the imposition, and has been since free from the pvirchaser's control, — under these circumstances, a lapse of twenty years where the pro- perty is land («), and of six years, as it should seem, where it is personal estate (Z»), will extinguish his right to equitable relief. The period from which acquiescence is calculated where the bargain is obtained through undue advan- tage of the pecuniary difficulties of a vendor aware at the time of the sacrifice of his interests, is the completion of the purchase (c). The subsequent con- (a) Townshend v. Tpwnshend, {b) Booth v. Earl of Warring- 1 Bro. C. C. 550 ; 1 Cox, 28, S. ton, 4 Bro. P. C, by Toml. 163 ; C. ; Hovenden v. Lord Annesley, South Sea Company v. Wymond- 2 Scho. and Lefr. 607-610, 636; sell, 3 P. Wms. 143. Medlicott v. O'Donnel, 1 Ball, and (c) Hovenden v. Lord Annesley; Beat. 156, 165-6 ; Whalley v. Medlicott v. O'Donnell, stipra ; Whalley, 3 Bli. 1. Western v. Cartwright, Sel. Cha. PRESUMPTIONS OF FACT. 385 tiniiance of his difficulties forms no excuse (a) ; for, generally speaking, tlie court does not consider the em- barrassments of its suitors as any legitimate reason for their neglect. " If it did, there would be an end of all limitation to actions in cases of distressed persons ; should relief be given after twenty years on the ground of distress, so it might after thirty, forty, or fifty years ; there would be no restriction whatever, and all pro- perty would be thrown into confusion " (b). Another argument is, that Parliament has not thought fit to admit poverty into the class, of legal disabilities ; and equity, in dispensing its aid, adheres in this as in other particulars, as nearly as possible to the provisions of legislature. Ca. 34 ; Earl of Deloraine v. Browne, 3 Bro. C. C. 633 : Hickes V. Cooke, 4 Dow. 16. See also Bicknell v. Gough, 3 Atk. 538, and Lord Redesdale's observations thereon, 2 Scho. and Lefr. 635; Morony v. O'Dea, 1 Ball and Be. 109 ; likewise 2 Ball and Be. 118 ; and Winchcomb v. Hall, 1 Cha. Rep. 40. It is observable that, al- though in Deloraine v. Browne, where the bill was demurred to on the ground of time. Lord Thurlow overruled the demurrer, thinking the length of time could not be taken advantage of in that way, though it might perhaps at the hearing, — and the principal ques- tion therefore between the parties remained undecided ; yet this case has always been considered, and has been even judicially cited, as an authority to show that the long forbearance of a plaintiff consti- tutes an answer to his demand. See per Sir R. P. Arden, M. R., 4 Bro. C. C. 268, and per Lord Redesdale, 2 Scho. and Lefr. 637-8. That notwithstanding the above decision by Lord Thur- low, and the decision in Gregor V. Molesworth, by Lord Hard- wicke (2 Ves. 109), laches by a plaintiff may be taken advantage of by demurrer, see Lord Re- desdale's Treatise on Pleading, 3d Edit. 173; his Lordship's remarks, 2 Scho. and Lefr. 637; and Mr. Belt's note, 3 Bro. C. C. 633. (a) An exception to this rule occurs where the sale is of a re- versionary interest. See Gowland V. De Faria, 17 Ves. 20; Roche V. O'Brien, 1 Ball and Be. 330 ; and infra 398. (Z>) Per Lord Redesdale, 2 Scho. and Lefr. 640. See also Hickes v. Cooke, 4 Dow. 16. 2 C 386 PRESUMPTIONS OF FACT. So long as the vendor remains ignorant of the fraud which has been practised upon him, no lapse of time will render the purchaser's title valid ; for until disco- very the right of the party does not completely arise («), and to presume a release or dereliction before such discovery would be absurd. As the conscience of the purchaser moreover is affected by the fraud, he cannot set up the remoteness of the transaction as a har in his favour, since it is an invariable rule in equity that frauds unknown shall not be barred by time. So, in the case of a sale obtained through abuse of influence, — until that influence ceases, the lapse of time will not operate to the advantage or prejudice of either party. The acquiescence of the seller, while he is prevented from showing his repugnance, clearly cannot be presumed ; and the continuance of the control is a fact which tends only more strongly to prove the rea- sonableness and necessity of the principle (5). When, however, the vendor becomes conusant of the fraud, and is freed from the control of the pur- chaser, he no longer continues an object of extraordi- nary favour. It follows, that for any delay which then takes place he alone must suffer. Indeed, if un- der these circumstances long quiescence did not pre- clude redress, the very imputation of fraud might be the means of committing a fraud ; for in the interim (a) Roche v. O'Brien, 1 Ball (Z») Alden v. Gregory, 2 Eden, and Be. 330 ; Dunbar v. Treden- 280 ; Roche v. O'Brien, 1 Ball nick, 2 lb. 304. See also 2 Ball and Be. 330 ; Hatcli v. Hatch, 9 and Be. 129. Ves. 292. PRESUMPTIONS OF FACT. 387 that evidence may be lost, by which such imputation might at first have been repelled (a). After a lapse of twenty years, therefore, to use the words of Lord Redesdale (Z>), the opposite party has a right to say, — You shall not bring this matter into discussion now, when it is only through your own neglect that you did not do so within the time limited by the statute. In this jDlace, as serving further to illustrate the principle under consideration, it may be remarked, that titles to leasehold property, which has been frau- dulently obtained from an executor, have on some occasions been held unimpeachable after long unmo- lested enjoyment. Executors, it is notorious, have a right by virtue of their office, to sell or mortgage any part of the personal estate, — even such part as may have been specifically bequeathed ; and the purchaser or mortgagee, under ordinary circumstances, is not obliged to inquire whether the sale or mortgage be necessary. But this rule obtains only where the ob- ject of the executor is unknown. For should the purchaser or mortgagee proceed after having notice that the act intended is a fraud on particular lega- tees, he then becomes implicated ; and equity, on the ground of his participation in the fraud, will hold him to take only as trustee. The case, it is obvious, is still stronger where the transaction originated in a col- lusive arrangement between the executor and the pur- (a) I Fonbl. on Equity, 5th {h) 2 Scho. and Lefr. 634. See Edit. 331 ; 3 Atk. 39. also 1 Ball and Be. 166. 2 C 2 388 PRESUMPTIONS OF FACT. chaser or mortgagee, for their mutual benefit. Ne- v^ertheless, in both these cases it has been held, that the persons beneficially interested must, in order to obtain the assistance of the court, pursue their rights within a reasonable time ; otherwise that the long delay will furnish such a presumption of acquiscence as, unless satisfactorily accounted for, the purchaser or mortgagee may successfully use in defence. And it seems, that for this purpose, supposing the de- frauded parties are aware of the fact, twenty years will be sufficient. We may add, that it is indifferent whether the interests of the legatees be immediate or reversionary {a). II. As to Purchases hj Trustees. — With a view to prevent as far as possible the abuse of confidence. Equity has laid down the rule (from which rule, except under its own superintendence, or in certain cases where the consent of the cestui que trust being sui juris is expressly given, no deviation is ever made), that no person, who as trustee or through any confidential em- ployment relative to an estate which is about to be sold has acquired a knowledge of its peculiar advan- tages, shall be permitted either directly or indirectly to become the purchaser. The persons to whom this rule extends are trustees for sale, trustees who have been engaged in the management of the property as guardians or stewards, attornies of the vendor, unless the relation has previously ceased, creditors consulted (a) Bonney v. Ridgard, 1 Cox, 125. See also per J. Leach, V. C, 145 ; 17 Ves. 97, 98, cited, S. C ; 5 Madd. 65. Andrew v. Wriglcy, 4 Bro. C. C. PRESUMPTIONS OF FACT. 389 as to the mode of sale, and auctioneers, as also the agents («) and assistants (b) of all such persons. But nominal trustees, such as those to preserve contingent remainders or to prevent dower, and trustees merely invested with the legal estate, but in no way concerned in the management, as also mortgagees, at least mort- gagees who are not in possession (c), do not come within the prohibition (d). It has been mentioned, that purchases by trustees or other persons confidentially em ployed are valid in certain cases, where the owner of the estate sold being sui juris — capable as well in point of age and judgment, as of freedom of will, to enter into a binding contract — con- sents to the sale. To make such consent binding the following circumstances are necessary ; first, that the purchaser should have communicated to the beneficial owner every information within his knowledge re- specting the nature and advantages of the estate ; se- condly, that he must have treated directly in his own name ; and thirdly, that the vendor, after freely dis- charging him from his fiduciary character, dealt with him as with an indifferent person [e). (a) Whitcomb v. Minchin, 5 and per Lord Redesdale in the case Madd. 91. of Hickes v. Cooke, 4 Dow. P. C (b) Oliver v. Court, 8 Price, 127. 28. {c) The decision in Webb v. {d) See the cases on this sub- Rorke (2 Scho. and Lefr. 661) by ject generally, collected in Sugd. Lord Redesdale, impugns in some on Purchases, 7th Edit. 588, et degree the position in the text with seq. ; and in 2 Fonbl. on Eq., 5th respect to purchases by mortga- Edit. 189. gees. But see Mr. Sugden s ob- {e) 6 Ves. 625 ; 10 Ves. 428-9 ; servations on that case in his Trea- 1 Wils. C. C 1 ; 2 Sim. and Stu. tise on Purchases, 7th Edit. 591, 49, 50. 390 PRESUMPTIONS OF FACT. The relief which equity affords when the sale may be impeached, is, at the party's option, a re-conveyance on payment of the original purchase money and money laid out in improvements with interest, deducting the amount of the intermediate rents and profits, — or a re-sale ; in which latter case, if a larger sum than the aggregate of the price given and expenses incurred in improvements be bid, the former purchase will be set aside, if not, it will be ordered to stand (a). Such is the course adopted where the transaction is of recent occurrence ; but if it be of remote date the case receives a very different determination. The long delay of the parties in bringing forward their objections to the sale will in ordinary cases be fatal to the application to have it set aside. From the delay a presumption arises that the relation between the purchasing trustee or agent, and the cestui que trust or principal, (assuming the latter to be under no legal impediment), had at the time of the purchase been totally or partially abandoned, and that in other re- spects the sale was conducted with fairness (b). The case is then in effect assimilated to that of a contract which in the first instance would have been allowed, and the purchaser, on such ground, therefore, is not permitted to be disturbed. In cases of this kind, persons claiming interests in remainder must be equally vigilant and prompt to {a) See Sugden on Purchases, (b) 11 Ves. 226. 7th Edit. 601, et seq. PRESUMPTIONS OF FACT. 391 object to the purchase as those who have interests in possession ; for they are in the same degree with the latter affected by the time which runs even during the continuance of the immediate estate in possession ; and whenever the lapse of time is such as to afford the argument of acquiescence against the party presently entitled, all those who claim in remainder are simul- taneously concluded from objecting to the purchase. An analogy to the provisions of the statute of limita- tions is in this respect with great propriety disregarded. That statute relieves the successive remainder-men from the bar which, as against preceding estates, may be complete, because until their estates successively vest in possession, they are not competent to bring their action. But in the case of a fraudulent purchase by a trustee or executor, every remainder-man, what- ever situation he may occupy in the order of limita- tions, and whether that interest be vested or contin- gent, has such a present and immediate right as would enable him to sustain the character of plaintiff in a suit to avoid the purchase (a). But although on the authority of the case of Andi'ew v. Wrigley, it may be laid down, that even contingent interests in remainder are affected by lapse of time in the same degree as immediate interests in possession, yet it is conceived that the rule must be restricted to those cases, in which, notwithstanding the interest be contingent, the person who is to take is in esse and (a) See Andrew v. Wrigley, 4 Leach, V. C 5 Madd. 55. Bro. C. C. 125 ; also per Sir J. 392 PRESUMPTIONS OF FACT. certain. It ought not to be extended to those, where the contingency consists in the description of the per- son who is to take in remainder, because until some one exists answering that description, as there is no person to whom a present interest in the remainder or limitation over belongs, a bill filed in respect of that remainder would be liable to be met by a plea in abatement. The conclusion to which these conside- rations lead may not perhaps be warranted by any authority, — but it cannot be doubted, that a court of equity would never allow interests of this description to be barred by a presumed acquiescence, when in fact there existed no person who could be said to ac- quiesce. ^Vhenever the person to take in remainder is ascertained by the happening of the contingency, then of course the time which he suffers to elapse, if sufficiently long, may be objected to him as affording the usual presumption. With regard to the length of enjoyment which se- cures the title of a purchasing trustee or person hold- ing a confidential situation, by concluding the right of those with whose interests he was formerly entrusted, no definite rule can be proposed. The judicial dicta are very general : they merely assert, that the appli- cation to impeach the sale must be made within a rea- sonable time {a) ; but no intimation has been given of the precise period which may be so denominated. And the decided cases merely show, that equity, in this instance is not governed by a regard to the provisions (a) See 5 Ves. 680 ; 1 Jac. and Walk. 59 ; 2 Scho. and Lefr. 672- PRESUMPTIONS OF FACT. 393 of the statute of limitations ; that, in fact, a neglect for eighteen («), or for sixteen years {b), may preclude the title to relief (c). It seems not improbable, that forbearance even for a shorter period than sixteen years would, under cir- cumstances, be effectual to quiet the possession of the purchaser. Thus, where the neglect of the plaintiff has been very palpable, — where, notwithstanding full knowledge of the facts, and ability to pursue his right, he has wilfully lain by, — twelve or thirteen years, per- haps, would be held to afford the presumption of a release or waiver {d). And if, in addition to these circumstances, the negociation should have been con- ducted in other respects with fairness, and is impeach- able only because the characters of vendor and pur- chaser were united in the same person, to annul the sale simply for that cause would assuredly be to sacri- fice substantial Justice to a mere technical rule. Where, however, the vendor or beneficial proprietor, at the time of the sale, is in pecuniary difficulties, and so continues afterwards, delay for less than twenty years cannot confidently be depended on as precluding the right to equitable relief. Fraud may not exist : but the situation and circumstances of the (a) Gregory v. Gregory, Coop. 12 Ves. 355 ; Western v. Cart- C.C. 201. wright, Sel. Cha. Ca. 34; Medli- (Z>) Whatton v.Toone, 5 Madd. cott v. O'Donel, 1 Ball and Be. 54. 156 ; Chalmer v. Bradley, 1 Jac. (c) See also Norris v. Le Neve, and "Walk. 51. 3 Atk. 26, 38 ; Price v. Byrn, 5 {d) See Oliver v. Court, 8 Price, Ves. 681, cited; Morse v. Royal, 127, 167-8. 394 PRESUMPTIONS OF FACT. parties aflfording to one such peculiar facility to over- reach and temptation to desert the interests of the other, a proportionably strong and efficient safeguard evidently becomes needful. And hence in Hall v. Noyes {a), where the vendor at the time of sale was much embarrassed in his affairs, a purchase by a trus- tee, under circumstances of the most favourable kind as respected his dealing in the transaction, was set aside after the lapse of ten years. But that twenty years in ordinary cases of this sort will bar the equity of the vendor, admits, it is conceived, of no dispute (b). To repel the presumption from long forbearance, evidence may be adduced on the part of the persons equitably entitled, of the existence of any of the com- mon legal incapacities (c). Ignorance that the trustee or person confidentially employed was the real purchaser may also be urged as efficacious in this respect ; for so long as that fact remains concealed, laches in con- testing the transaction clearly cannot be imputed, and the supposition of acquiescence being excluded, the case (when the discovery is made) is the same as if the breach of confidence had been but just com- mitted (d). A further ground of exception from the general rule is the fact of the cestuis que trust being persons, who, though interested generally as a class or body, (a) 3Ves. 748, cited. See also 62; ISVes. 375. 3 Bro. C. C. 483. (j) Randall v. Errington, 10 (b) Medlicott V. O'DoneJ, 1 Ves. 423; Chalmer v. Bradley, Ball and Beat. 156. 1 Jac. and Walk. 51. See also (c) See 1 Jac. and Walk. 51, Whatton v. Toone, 5 Madd. 54. PRESUMPTIONS OF FACT. 395 are not, at least in a material degree, as individuals. Of this description are creditors entitled under a com- mission of bankrupt, and creditors for whose benefit the debtor has conveyed or devised his property to be sold : — with regard to whom it is considered unrea- sonable to expect the same diligence in impeaching the conduct of the trustees, as it is incumbent on private persons to pursue, whose individual interests only are affected (a). The same rule obtains, where the cestuis que trust are a sect or united body of persons profess- ing particular religious opinions (b). III. As to Purchases of Reversions. — Purchases of reversionary interests, on account of the oppression which has frequently attended them, are generally re- garded in equity with much suspicion ; the only cases of exception appearing to be, when made at sales by public auction (c), or before a Master in Chancery under a decree. But although purchases of future rights by private contract excite suspicion, they will not always be overturned ; for where the present worth of the property is known, and on that a just estimate is made in the usual way of computing the value of rever- sions, a sale at the estimated price cannot, it should seem, be impeached. The instances in which relief is afforded, are where the sales complained of have not been openly and fairly conducted, or where an ade- quate consideration has not been given, such as a pay- («) Whichcote v. Lawrence^ 3 P. C by Toml. 49. Ves. 740, 752. See also a case be- (b) Att. Gen. v. Lord Dudley, fore the Court of Exchequer, cited Coop. C. C 146. 6 Ves. 632 ; and York-buildhigs' (c) Shelly v. Nash, 3 Madd. Company v. Mackenzie, 8 Bro. 232. 396 PRESUMPTIONS OF FACT. merit short of the computed value in the tables (a). Inferring from the artifice used, or from the inadequacy of price, that the vendor has suifered imposition, the court on the usual principle of preventing fraud vt^ill annul the sale, and on re-payment of the purchase money with interest and costs, decree a re-convey- ance (b). The protective interference of the court was for- merly confined, or nearly so, to unconscientious bar- gains with young heirs; and at this day so great is the jealousy shown in regard to such transactions, that when contested, it devolves, not on the seller to prove that the price obtained was inadequate, but on the purchaser to show that he gave the full value (c). According to later decisions, however, it appears, that equity does not confine its relief to these cases ; but that the same assistance will be given in every instance, where a remainder or reversionary interest has formed the subject of sale (d), of whatever age the seller may be {e). It seems also to be established, that no sufl^i- cient cause for deviation from the general rule is af- forded in the circumstance of the expectancy being contingent {/"). (a) Gowland v. De Faria, 17 246; also Marsack v. Reeves, 6 Ves. 20. Sedvide Headen v.Rosher, Madd. 108. I M'Clel. and You. 89. (e) 2 Swanst. 122, 141 ; 1 (b) See generally on this sub- Fonbl. on Equity, 5th Edit. 135. jeetj Sugden on Purchases, 7th (/) See per Lord Eldon in Evans Edit. 244. V. Chesshire, Belt's Suppl. toVesey, (c) Ibid, 246; 2 Swanst. 122, 306; Marsack v. Reeves, 6 Madd. 139. 108 ; Bowes v. Heaps, 3 Ves. and {d) 1 Fonbl. on Equity, 5th Edit. Bea. 117. 135 ; Sugd. on Purchases, 7th Ed. PRESUMPTIONS OF FACT. 397 While the vendor continues in the same state of distress in which he entered into the contract, it is dif- ficult to conceive how his quiescence can furnish any argument favourable to the title of the purchaser. Nevertheless, in a case («) before Lord Alvanley, M.R. in 1801, where a bill to set aside the sale of a rever- sion was brought twelve years after the transaction took place, his Honour dismissed it solely on the length of time. In the case alluded to, the plaintiff, who was in want of the very means of subsistence, had offered his reversionary estate for sale previously to the piu'chase complained of, to several different indi\dduals. After the purchase was completed he went abroad, and did not return till shortly before the bill was filed. The evidence merely went to show inadequacy of consider- ation. At the hearing the Master of the Rolls said, " This is one of those unfortunate cases, upon which the Court feeling that the transaction is not quite of the complexion to be wished, yet under all the circum- stances is not at liberty to grant the relief prayed. The plaintiff was very indigent, and of dissipated manners. The evidence as to the value of the estate is contradictory, as it always is. He was determined to sell this reversion : and if the law will not prevent a man from selling, it would be too much for a court of equity to say, any bargain upon the subject will be bad. The defendant was not going about, or lying by, to avail himself of an opportunity to get a good bargain. The plaintiff, it is clearly admitted, offered it over and over to all the town, to twenty persons. (o) Moth V. Atu-ood, 5 Ves. 843. 398 PRESUMPTIONS OF FACT. That circumstance is decisive ; and would alone be sufficient to dismiss a bill brought at the distance of twelve years from the transaction. I admit it is a very considerable bargain : but there was no fraud or circumvention. It was done deliberately ; and not in consequence of a 23lan laid to gain a good bargain. — The bill must be dismissed with costs." The authority of this decision in its full extent seems very doubtful, and will perhaps be held to go- vern only in cases precisely similar. The plaintiff, at the time of the sale, was an extremely needy man ; and his going and continuing to reside abroad are circum- stances which strongly show that for a considerable time his embarrassments did not cease. Now in Gowland v. De Faria («), Sir William Grant said, that he be- lieved there was no case, in which, during the con- tinuance of the same situation in which a party en- tered into a contract for the sale of a reversion, acqui- escence had ever gone for an)'^ thing : it had always been presumed, that the same distress, which pressed him to enter into the contract, prevented him from coming to set it aside ; and that it was only when he was relieved from the distress that he could be ex- pected to resist the performance of the contract. His Honour, accordingly, in that very case, set aside the sale of a reversionary interest, because of the inade- quacy of price, although twenty-five years had elapsed before the filing of the bill. (a) 17 Ves. 20 ; See p. 25. See 2 lb. 304. Sed vide Earl of Delo- also Roach v. O'Brien, 1 Ball and raine v. Browne, 3 Bro. C C. 633. Beat. 330 ; Dunbar v. Tredennick, PRESUMPTIONS OF FACT. 399 The acquiescence of the vendor, unless it be excused on the grounds above noticed, or on that of ignorance of the actual or constructive fraud («), is in general reckoned from the completion of the contract ; or if there be a temporary distress or ignorance of the un- fairness of the transaction, then from the time when such distress or ignorance terminated (b). On what particular lapse of time the court might refuse to invalidate a sale of the present kind, cannot very satisfactorily be determined. But twenty years, supposing there are no reasons to excuse the delay, or to excuse its continuance if such reasons did once exist, will of course have that effect. And, in Medlicott v. O'Donel (c). Lord Manners accordingly dismissed a bill to set aside certain reversionary leases obtained about twenty-seven years before by an agent at a con- siderable undervalue, referring in direct terms to the period in the statute of limitations. It seems, how- ever, not improbable, that an acquiescence of shorter duration would be held confirmatory of the transac- tion, and Moth v. Atwood is strong as an authority for the point — although perhaps for the reasons before given, it is impossible to go to the full extent of that decision. (ffl) Roach V. O'Brien, 1 Ball per Lord Manners, 1 Ball and Be. and Be. 330. 342 ; and Earl of Deloraine v. (Z>) Medlicott v. O'Donel, 1 Browne, 3 Bro. C C. 633. Ball and Be. 156; Whalley v. (c) 1 Ball and Be. 156. See Whalley, 3 Bligh. 1, 12. See also page 166. 400 PRESUMPTIONS OF FACT. CHAPTER XXII. PRESUMPTIONS OF FACT CONTINUED. Of the presumed Waiver of Rights of Appropriation^ — of Resumption on Forfeiture, Pre-emptiony and Election ; — of Rights tmder Executory Trusts, Devises in Equity, Agreements to Purchase, and Covenants for Renewal; — of the Responsibility of Executors, Administrators, and Trustees ; — of the Liability of Purchasers to see the Ap2)licatio?i of the Purchase Money, and of other miscellaneous Rights and Equities. I. From long non-user, the grant of a privilege to appropriate land, not before capable of exclusive occu- pation, will be presumed to be abandoned. This was decided in a case, where it appeared that a grant had been made by the Crown, in 1629, of certain mud lands and lands overflowed with the sea, situate on each side of the town of Gosport, to the intent they might be recovered and embanked, but which right until 1734 was never exercised: on an information against the claimant imder the grant, for making erections in a place which, adjoining the town of Gosport, was supposed to come within the terms of the grant, the Court of Exchequer first, and after- wards on appeal, the House of Lords, were of opi- nion, that the grantees, if they ever had a title to the PRESUMPTIONS OF FACT. 401 locus in quo, had, by their long delay to use the right conferred, abandoned it ; and that the title of the Crown, by the long possession of its subjects, had since revived {a). But the dereliction of rights affecting land is not in all cases held to be evidenced by mere non-user. Rights to mines and minerals, with the incidental privilege of boring for and working them, are an exception to this rule. When such rights are granted, their being continually exercised is never contemplated, nor when reserved, is it often with a view to immediate use. Hence the supposition of a relinquishment on the ground of non-user is excluded, and the title, how- ever long dormant, unless it be opposed by proof of actual adverse pernancy for twenty years, may be en- forced at an indefinite period {h). II. The right of Resumption for a Forfeiture, when neglected, (if such case does not fall within the statute of limitations,— a point not yet expressly determined), is another instance of the doctrine under consideration ; long forbearance, as for twenty years, especially if there are circumstances evincing a disposition in the party to waive the right, will be held to create a presump- tion of its relinquishment. Thus, the forfeiture of a copyhold, from the copyhold- er's having levied a fine or having committed any other («) Att. Gen. v. Richards, 2 (Z-) Seaman v. Vawdrey, 16 Vcs Anstr. 603;Paraieterv.Att. Gen. 390; Adair v. Shaftoe, 19 Ves. S. C. on appeal, 1 Dow. 31 (i. 156, cited •2 D 402 PRESUMPTIONS OF FACT. like act in prejudice of the lord's title, or the forfeiture of a lease, from the lessee's not having paid his rent within the stipulated time, or from his having otherwise acted contrary to the terms of the demise, will, after long neglect on the part of the lord or lessor to take advantage of the forfeiture incurred, be presumed to have been remitted. And this presumption is the more immediate and necessary, where the continuance of the copyholder's or lessee's interest has been either directly or indirectly acknowledged since the forfeiture; as where on the death of the copyholder admission has been granted to his heir, or rent subsequently due has been received from the lessee. The fact of a lessee, v/ho has incurred a forfeiture of his lease, being mentioned under the appellation of tenant in letters written by the landlord after the forfeiture, is also pre- sumptive proof that the forfeitui-e has been remitted (a). III. Unreasonable delay will prove fatal to a right of Pre-emption, — as it is manifest from the very nature of rights of this kind, that under ordinary circumstances (a) Doe d. Tarrant v. Hellier, rliie, was not waived by the land- 3 T. R. 162; and Milfax v. Baker, lord's distraining before the twen- there cited ; 1 Lev. 26 ; Malone ty-one days were past, and conti- V. Malone, 1 Ball and Be. 32, n. nuing in possession of the distress In regard to the point of recogni- on the premises, after they had ex- tion it may be useful to add, that pired. And in the above-men- an act, which does not necessarily tioned case of Doe v. Hellier, it imply an acknowledgement of the was laid down, that an acceptance continuance of the tenancy, affords of rent after a forfeiture was not no ground for presuming a dis- conclusive of the forfeiture being pensation of the forfeiture. Hence waived ; for the possession of the in a late case at N. P. (Doe d. tenant might remain though his Taylor V. Johnson, 1 Stark. 411), former estate was gone, and the it was held that a right of entry rent might be accepted from him for non-payment of rent within imder a tenancy from year to twenty-one days after it became year. PRESUMPTIONS OF FACT. 403 the party's option should be speedily declared. Long- neglect to exercise that option, it has been held, af- affords, with more than usual propriety, an inference that the privilege has been waived. By the will of John Huckstep, lands, after payment of his debts and legacies, were devised to two persons in fee, subject however to a condition, that if any of the testator's name should be desirous of pui'chas- ing, they should be sold to him for 200/. less than their estimated worth. Twenty-five years after the testator's death, a nephew bearing the same surname, exhibited his bill, and claimed a conveyance of the lands at the undervalue which the will specified. But the Lord Chancellor conceiving the demand after so great a length of time to be contrary to the testator's intention, dismissed the bill (a). IV. To constitute a binding Election, where by the rules of equity an election must be made between a gift by will, and property previously possessed or taken as heir to the testator, it is necessary that the party should have a knowledge of the nature and relative value of the different funds between which he is re- quired to elect ; for election imports deliberate pre- ference. So long as ignorance in regard to these par- ticulars continues, lapse of time, unless sufficiently great to show that the alleged ignorance must have been wilful, does not determine the general equity (b). (a) Huckstep v. Mathews, 1 {!>) Pusey v. Desbouvrie, 3 P. Vern.362. See also Orby v. Trigg, Wms. 315; Wake v. Wake, 3 9 Mod. 2. Bro. C. C. 255; 1 Vcs. jiui. 335, 2 D 2 404 PRESUMPTIONS OF FACT. Another rule respecting election is, that the party nnist have a distinct apprehension, that he is under an obligation to elect, and to signify his election by some plain and intelligible act. The cases to which it has been held this rule may apply, that is, when such an apprehension may possibly not exist, are where the devisee or legatee, according- to the will, would take an immediate particular estate as well in the property previously possessed, as in that newly given (cf) ; or where the antecedent property of the devisee or le- gatee being future or contingent, it is ai)parent from the general scope of the will, that the election need not be made until the reversionary interest falls into possession (Z»). But where an election is plainly necessary, and the comparative value of the funds is easy to be ascertained, and the devisee or legatee neglecting to make the needful inquiries, either receives the provision under the will, or limits himself to the enjoyment of his other property, though without expressly electing, — an S. C. ; Whistler v. Webster, 2 its being mentioned before him Ves. jun. 367,371. See also Rum- (1 Ves. jun. 172), referred the de- bold V. Rumbold, 3 Ves. jun. 65. termination to the particular cir- The principle which these cases cumstances ; and he is elsewhere establish was, in Lord Beaulieu v. said to have declared over and Lord Cardigan (Amb. 533 ; 3 Bro. over again, that it should never P. C. by Toml. 277), carried to an bind any other case where there extreme length. It was there held, was the least apparent difference that a right to elect lasted tUl the between them. See 1 Ves. jun. whole of the testator's affairs were 336. wound up, and the trusts exe- (a) Edwards v. Morgan, M'Clel. cuted; — which in that case con- 541. iSVt^ i^zWe Stratford v. Powell, sumed a space of fifty years. But 1 Ball and Be. 1. the authority of this decision, as (Z>) Tucker v. Sanger, M'Clel. affording a general rule, is very 4.24, 439. questionable. Lord Thurlow, on PRESUMPTIONS OF FACT. 405 election, after a sufficient time to allow of its being contradicted, will be presumed. And it seems from the obvious necessity in general cases for an imme- diate determination, that an acquiescence of twelve or eighteen months will prevent a claim to re-elect. This rule appears to hold with equal force, though the party required to elect be a feme covert. The following cases, which establish the doctrine thus generally laid down, serve at the same time to describe as well the nature or state of the circum- stances under which election commonly becomes neces- sary, as also the mode or course of conduct which has been held equivalent to a direct and specific choice. A testator gave to his son for life the interest of a mortgage debt, which was due from an estate that had been previously settled on the son in remainder after testator's death, and also gave him certain collections of furniture, upon condition of his executing a release of all claims he might have on testator's other property, and of his not contesting the will. The son survived his father only fourteen months. He never exe- cuted a release ; but on the contrary, upon hearing the will read expressed dissatisfaction, and even declared his intention to file a bill. Yet, forasmuch as he had been very early apprized of the nature of his rights (which indeed were sufficiently plain), and had not paid interest on the mortgage debt, and as he had also taken possession of the furniture and sold some part of it, and had used certain expressions of assent to the will in letters, — these circumstances were held by Lord Keeper Henley, and on appeal by Lord Camden, to be 406 PRESUMPTIONS OF FACT. evidence of the son's acceptance of the benefits con- ferred by the will («). So where the surrenderee of a copyhold estate, before admittance, made his will, and after giving a legacy of 5,000/. to the separate use of his sister (a feme covert and his presumptive heir), devised the copyhold to his mother in fee, and the sister who survived the testa- tor, received the interest of her legacy during five years, and in other respects acquiesced in the disposi- tions of the will ; on a bill filed shortly after her de- cease, controverting the validity of the devise of the copyhold on the ground of the testator's not having been previously admitted, and claiming it as having descended to his sister and heir at law, — Sir T. Sewell, M. R., avoiding to decide that point, held that, how- ever such question might be ultimately settled, the right of the devisee could not then be impeached. The sister having so long received the interest of the legacy was evidence, he said, of her election to take under the will; and that her infant heir (who since her death had been admitted) must be considered to hold only in trust for the devisee (5)., In Stratford v. Powell (c), the facts were these : Lord Alborough, in 1799, conveyed his mansion-house, with the furniture and paintings, and also certain ad- joining lands, to a trustee for his wife's benefit. After- (a) Earl of Northumberland v. (Z») Ardesoife v. Bennett Dick. Marquis of Granby, 1 Eden, 489 ; 463. Duke of Northumberland v. Lord (c) 1 Ball and Beat. \, 23, et. seq. Egremoutj Amb 657. PllESUMPTIONS OF FACT. 407 wards by his will, he gave the same (amongst other property) to Lady Alborough for life, with a contin- gent remainder to her children. The testator died without issue in January 1801. His widow entered into possession of all the estates devised to her ; and in the course of half a year from that time, defended, in the character of devisee, an ejectment brought by the heir at law. In December following she married again, and about eight months afterwards died. A suit in Chancery was then instituted for the purpose as well generally of settling the testator's affairs, as in parti- cular for obtaining a decision whether or not Lady Alborough had sufficiently shown her determination to take under the will. The affirmative of this was re- sisted on the ground of her having acted in ignorance of her rights. But Lord Manners declared himself of opinion, that there was no evidence whatever to sup- port that pretence : on the contrary, the widow had been in possession above a year, and many circum- stances had occurred during that period which called for an election. But other reasons, his Lordship pro- ceeded, besides an accurate knowledge of the two sub- jects of choice, may serve to determine the mind in cases of this description ; and Lord Alborough having left all his property to his widow with a contingent remainder to her children by any other husband, it was very natural for her to say that she would abide by the will. And again in a late case (a), where estates were de- (a) Tibbits v. Tibbits, 19 Ves. 656. 408 PRESUMPTIONS OF FACT. vised to testator's son, with a recommendation that he should continue his cousins A, and B. in the occupation of their respective farms, so long as they duly paid their rents, but the son, after accepting for about a year the same rents as A. and B. had before paid, brought ejectments because they refused compliance with a demand for an increase, and in answer to a bill filed by them, praying that the will might be established, and the recommendation in their favour carried into effect, insisted that he had a right to elect between per- mitting the plaintiffs to continue his tenants, and giv- ing them a compensation on their expulsion — a right which, he contended, it was yet open to him to pursue ; Lord Eldon refused to concede that point. It might be difficult, he admitted, to say that the defendant had elected to do any thing else than make compensation ; but, as in some cases, a determination to take under a will might be inferred from the acquiescence of the party, as where the length of time rendered it ine- quitable to disturb the opposite claimant's possession, and as circumstances might have occurred in the in- terval since the testator's death, which ought to in- duce the court to declare, that an election had been made to permit enjoyment according to the will, he should for these reasons defer his judgment and direct a search for precedents. A distinct class of cases on this subject respects the election, which it is incumbent on a widow to make between a provision to which she is entitled by mar- riage settlement, at common law, or by custom, and benefits given to her by the will of her husband. Here also, a compliance with the testamentary disposition. PRESUMPTIONS OF FACT. 409 unless opposed by circumstances, may be inferred from the conduct of the i^arty. Thus, if a freeman of Lon- don bequeaths his whole personal estate to his wife and children, but in proportions different from those into which the custom divides it, and after his death his widow submits to the will (not positively by any formal declaration, but negatively by not disputing it), and then marries again or dies ; her second husband or personal representative, cannot bring a bill for an account of the testator's estate, insisting that the widow was entitled to her customary share, and that the will was so far void : — the court, in such cases, always holds her manner of acting to be evidence of assent to take as legatee, and therefore conclusive on all per- sons claiming in her right {a). With regard to the length of time necessary to this end, Lord Hardwicke, on one occasion (b), said that acquiescence for a year, or a year and a half, would be decisive. So where a widows provided for by her husband's will, but in a mode inconsistent with her title to dower, or her claims under a marriage settlement, accepts and for some considerable time continues to enjoy the benefits given by the will, she cannot afterwards turn round and elect to take against it. The only ground at least on which a satisfactory excuse for the delay can be founded, is ignorance of the comparative value of the interests between which she has to choose (c). And as on the one hand, a right specifically to elect (a) See per Lord Hardwicke, 2 (c) Butricke v. Broadhurst, 1 Ves. 593, 668. Vos. jiiu. 171 ; 3 Bro. C. C. 88. (h) See 3 Atk. 616. 410 PRESUMPTIONS OF FACT. may be forfeited by the conduct of the party originally entitled, so it seems on the other, a right to compel election may be barred by the long acquiescence of the opposite claimant. But since, in this case, the delay is injurious only to the latter, the duration of such delay, to be evidence of a relinquishment, must be propor- tionably longer. A less jDeriod than twenty years, by analogy to the statutory limitation, cannot be relied on as invalidating his title {a). Thus where M. supposing he had power to dispose of a copyhold estate, but of which he was only tenant for life (the remainder belonging to B. in fee), devised the copyhold to B. for life, then to his children in tail with remainder over to the plaintiff, and also gave to B. the residue of his personal estate ; in a suit com- menced by the claimants in remainder vmder M.'s will, against the devisee of B. about twenty-four years after the death of the latter without issue, charging that B. had elected to take according to M.'s disposition ; — Lord Apsley, relying particularly on the length of time, dismissed the bill. The devisee of M., his Lordship observed, was admitted, and had also surrendered to the use of his will, thirty years before the bill was filed. The quantum of the residue too was uncertain, and could not with any likelihood of accuracy be ascer- tained at that distance of time {h). V. An equitable right to a provision by settlement (a) Petti ward v. Prescott, 7 See also Yate v. Moseley, 5 Ves. Vcs. 541. 480; Tucker V. Sanger, M'Clel. (/j) Cull V. Showell, Am\A. 727. i^l, isj). PRESUMPTIONS OF FACT. 411 has likewise, in some instances, been held to be deter- mined by the laches of the party. Thus, where part of a fund belonging to a married woman is ordered to be settled to her separate use, if the usual direction to limit it after her death to her children be omitted, and the order be acquiesced in by the children without complaint, they cannot, after long delay, unless excused by infancy or other impediment, come forward and require the omission to be supplied. By an order of the Court of Chancery in 1786, a sum of 250/., which belonged to Elizabeth Vaughan, a feme covert^ was directed to remain in the Accountant- General's name, — the interest to be paid to Elizabeth for her life, and, at her death, the principal to be dis- posed of as the court, on application from the persons then entitled, should direct. Elizabeth having survived her first husband married again, and died in 1820. Shortly after her decease, a petition was presented by the second husband for payment of the 250/. ; — which was opposed by a son of the former marriage, insisting, that according to the general rules of equity he was entitled, and that the omission in the order ought to be supplied. But Sir T. Plumer, M. R. said, " The only difficulty in this case arises from an order made in 1786, and acquiesced in ever since by the per- son now opposing the petition. If the order was wrong from settling the fund only partially and not entirely, it was wrong during the life-time of Elizabeth Vaughan, and ought to have been set right then. The son must have come of age long ago ; and after 412 PRESUMPTIONS OF FACT. his thus acquiescing in the order, which he now says was improper, I think it is quite impossible to set it aside " (a). So where a party, who is entitled under the limita- tions of an executory trust to a remainder in the estate directed to be settled, has neglected for a great length of time to require the trust to be carried into effect, his acquiescence will be adjudged conclusive against the relief sought for, provided that persons previously entitled (had the settlement been actually made) might in the mean time, by legal assurances, have obtained the complete dominion of the property. Edmund Parker, referring in his will to certain lands which had been purchased by his son Thomas with a sum of 3,000/. he had given him at the time of his marriage, bequeathed other 600/. to Thomas, and directed him to settle the lands so before purchased on the heirs male of his own body, with remainder, in default of such issue, to the right heir male of the tes- tator. Edmund Parker died in 1691. leaving an eldest son George, and also Thomas, surviving him. In 1700 the legacy of 600/. was paid to Thomas, but the settlement which was directed by the will he never made. In 1705, the male issue of Thomas, some of whom it appeared had lived to attain twenty-one, be- came extinct. Thomas himself died in 1742. Then George, who had survived him, died ; and shortly after the deatli of the latter, his eldest son, as right heir male of the testator, brought a bill against the co- ('i) Johnson v- Jolnjaou, 1 Jac. and ^V^alk. 4-72, 479. PRESUMPTIONS OF FACT. 413 heirs of Thomas to have the direction contained in the will respecting the settlement carried into effect. But Sir J. Strange, M. R., though admitting that, accord- ing to the terms of the will, the estate ought to have been settled on Thomas for life, remainder to his sons in tail male, remainder to George in tail, thought, that after an acquiescence by George for above forty years, the court could not interfere. The fact of George's not calling for the settlement, he said, while the issue male of Thomas subsisted, was sufficiently accounted for, because the latter, on coming of age, might have suffered a recovery, and barred the remainder ; and his not setting it up afterwards on failure of issue male showed, that he understood the estate, notwith- standing the receipt of the 600/., was to remain in his brother's family, and be a provision for them. The length of time was very material : and it would be of most mischievous consequence if the demand, which the plaintiff's ancestor never insisted on, but seemed to have waived, should at such a distance of time be allowed. To decree the remainder to the plaintiff after it had become impossible to bar it, would be an act of extreme hardship {a). VI. An equitable title to an estate under a devise is, in like manner, liable to be lost by the negligence of the devisee : that is to say, if he permit the heir at law to take possession, and lies by, without pursuing his right in proper time, a presumption will arise of his intention to relinquish it. But to establish this suppo- sition, a lapse of at least twenty years, by analogy to («) Parker v. Pliilips, 1 Ves. 530. 414 PRESUMPTIONS OF FACT. the legal rule, is necessary. A shorter period will not suffice (a). A purchaser of a copyhold, before admittance, made his will, and gave his copyhold estates, generally, to a person then his presumptive heir. The testator died shortly afterwards, leaving his wife enseint with a daughter. The devisee, thinking that as the copyhold was merely contracted for it did not pass by the will, suffered the daughter to be admitted, and, having agreed to take it of her as tenant, paid her rent for at least twenty years. Differences then arising be- tween the parties, the devisee set up his title under the will, and exhibited a bill praying that the estate in question might be decreed to him. But per Curiam : " Inasmuch as the plaintiff has admitted the title to be in the heir, — has paid her rent, — and agreed to do so, while he continues to hold the land, — such decree cannot now be made : but it would have been other- wise if the plaintiff had come in time " {h). In this place as resulting from a similar principle, it may not be irrelevant to remark, that an heir at law, who contests his ancestor's will with a party seeking to establish it in equity, is not entitled to an issue of demsamt vel non, at any distance of time ; though, it seems, he will not be refused that privilege, unless (a) Pearce v. Newlyn, 3 Madd. and Pearce v. Nevvlyn, 3 Madd. ^^^' 186. The will in this latter case, (Z.) Davie v. Beardsham, 1 Cha. it should be observed, was made Ca. 39 ; 3 Cha. Rep. 4, S. C. See before the slat. 55 Geo. 3, c. 192. also Mutloc V. Smith, 3 Aiistr. 709, PRESUMPTIONS OF FACT. 415 after such acquiescence as would bar his possessory rights at law (viz., an acquiescence of twenty years), or would put the adverse parties in a much worse si- tuation than they would have been in, had he disputed the will originally (a). VII. From a mistaken construction of the principle that time is not in general of the essence of contracts for purchase, it seems formerly to have been considered, that mere delay, unless it were so gross as to preclude excuse, was no reason for refusing specific performance of such contracts. The only cases of exception were those, in which the conduct of the party seeking performance showed that this neglect must have been designed, or where the nature of the property, or the exigencies of the opposite party, required the purchase to be imme- diately completed. This doctrine has, however, of late years been materially departed from ; and it is now the rule (for the jurisdiction which the court exercises in cases of specific performance is not ex dehito justicm, but ex gratia) that to obtain the aid of equity, the ap- plicant — whether vendor or purchaser — must show him- self to have been at all times " ready, desirous, prompt, and eager " to complete the purchase {h). A bill for specific performance, as Lord Manners observed, is an application to the discretion, or rather to the extraor- dinary jurisdiction of equity, which cannot be exercised in favour of persons, who have long slept upon their rights, and acquiesced in a title and possession adverse (a) Tucker v. Sanger, M'Clel. (/;) Per Lord Alvanlcy, 5 Ves. 4.24. 720, n. 416 PHEStJMPTlONS OF FACT. to their claim. Due diligence is necessary to call the court into activity ; and where it does not exist, equity will not lend its assistance : it alv,rays discountenances laches and neglect {a). With regard to the length of time which, on this ground, deprives the negligent party of the benefit of his contract, it may be laid down as generally true, that a year or even a less period will suffice, provided the delay be obviously inexcusable : nor is it material for this purpose, whether such delay occur before or after the plaintiff has taken steps towards completing the agreement (b). It has also been determined, that the fact of a deposit having been made by the purchaser will not vary the effect of laches on his part ; it cannot excuse his subsequent misconduct, and is therefore no answer to a presumption, that the contract has been abandoned (c). Of still less force, as an excuse for the delay, is the circumstance that the defendant has been in prison, and that the plaintiff, as he alleges, was unable to find him {d), or the temporary loss of the agree- ment, or of other papers material to sustain the suit (e). The introduction of the following cases, as explana- tory of the nature and state of circumstances to which the rule applies, will not, it is conceived, be deemed su- perfluous. (a) See 1 Ball and Be. 69. Yes. 225. (h) Guest V. Homfray, 5 Ves. (J) Harrington v. Wheeler, sit- 818; Harrington v. Wheeler, 4 p?a. Ves. 686; Spurrier v. Hancock, (c) Heaphy v. Hill, 2 Sim. and lb. 667. Stu. 29. This case shows the doc- (f) Harrington v. Wheeler, 4 trine to apply to agreements for Ves. 686 ; Alley v. Deschamps, 13 leases. PRESUMPTIONS OF FACT. 417 An estate was sold by auction in 1781, and the pur- chase, according to the conditions of sale, was to be completed in two months. The vendee dying soon afterwards, suits were instituted both in the spiritual court and the court of chancery, respecting his af- fairs. These prevented the completion of the contract until July 1784, when probate of the will having been granted, a decree was made directing the contract to be carried into execution. The defendants, the repre- sentatives of the jmrchaser, however, did not take fur- ther steps for above a year. The vendor then filed his bill to have the contract rescinded ; and Lord Ken- yon M. R., considering the delay since July in the pre- ceding year to be without excuse, decreed accord- ingly (a). In a subsequent case, the agreement for sale, which was entered into in August 1792, was to be concluded on the S5th of March following. A deposit was made at the execution of the contract. The pvu-chaser being unable to procure an abstract of title, applied for his deposit shortly after the time fixed for the conveyance of the estate, and on re-payment being refused, brought his action. A motion was then made for an injunc- tion to stay the proceedings at law, but Lord Loughbo- rough, considering the negligent conduct of the vendor to be evidence of an abandonment of his contract, de- clined to interfere (h). (a) Mackreth v. Marlar, 1 Cox, C. 469; 4 Ves. 689, n. See also 259, in Fordyce v. Ford, 4 Bro. C. C (Z») Lloyd V. ColleU, 4 Bro. C. 497-8. 2 E 418 PRESUMPTIONS OF FACT. Ill Guest V. Homfray {a), the agreement for purchase was elated 31st January 1798, but no time was spe- cified for completing it. An abstract of title was deli- vered to the defendant in April following. He took several objections to it ; upon which the plaintiff's soli- citor declaring that no better title could be furnished, the defendant, on the 2d of May, communicated to him his resolution to consider the agreement at an end. Through inadvertency, the abstract remained with the defendant until August, when it was returned ; and as the plaintiff had previously demanded it in order to answer the objections, the defendant, on re-deliver- ing it, expressly declared that he still considered the contract to be determined. Nothing further took place until Ajwil 1799, when another abstract was de- livered with the former objections answered. The defendant refusing to proceed, a bill was filed for spe- cific performance ; but Lord Alvanley M. R. said, — It is clear the plaintiff was called upon to be more quick than he has been. He has not done all he ought. When the abstract was sent back, there was nothing to show that he was proceeding with due dili- gence, and meant to proceed with the contract ; nor that he was even holding the purchaser to it. If he had cautioned him, that he was going to make out the title, — had hopes of doing so, — and showed a pro- bable ground, — a year might not perhaps have been too long. Bvit under the circumstances the bill must be dismissed. (a) 5 Ves. 818. See also Ome- ward v. Earl Thanet, lb. 720, n. rod V. Hardman, lb. 722; Mil- TRESUMPTIONS OF FACT. 419 The application of the general rule which now pre- vails on this subject is more inflexible, where the tri- fling and dilatory conduct of a purchaser in raising- frivolous objections to a title proceeds evidently from a design to gain time for his own accommodation {a) ; — or where, by the alteration of circumstances, the value of the bargain in the mean time increases, as when the subject of purchase being a reversionary interest, the particular estate determines (b) ; — or where the estate is sold in order to pay off encumbrances bearing a higher rate of interest than what the vendor receives in respect of the purchase money during the delay (c). But although the gross neglect of either party may be successfully urged in answer to a bill for specific performance, yet where the delay is wilful only in ap- pearance, but not in fact, being for example in conse- quence of difficulties in the title, or where it is attri- butable in any manner to the opposite party, the court, unless at a most unreasonable distance of time, will relieve. The agreement in Fordyce v. Ford (d), which was entered into on the 25th June 1793, stipulated for the (a) Hayes v. Caryll, 1 Bro. P. field v. Whaley, 1 Bro. P. C. by C. by Toml. 126. Toml. 200, and Moore v. Blake, 1 (b) Coward v. Odingsale, 2 Eq. Ball and Be. 62. Abr. 688, pi. 5 ; Bell v. Howard, (c) Popham v. Eyre, LofFt. 786. 9 Mod. 302 ; Newman v. Rogers, See also a case referred to by Lord 1 Bro. C. C. 391; Spurrier V.Han- Redesdale in 2 Sclio. and Lefr. cock, 4 Ves. 667. As to agree- 604. ments for leases presumed to be (d) 4 Bro. C C. 494. abandoned by the lessee, see Wing- Si E 2 420 PRESUMPTIONS OF FACT. completion of the purchase by the 30th of July following. The abstract however not being ready to be delivered until the 8th of that month, and some defects being found in the title which it required time to remove, it was near the end of September before the contract could be carried into effect. The purchaser then re- fused to proceed, alleging that he wanted the estate for a residence during the last summer, and insisted that he was not bound to go on by reason of the delay. But Lord Alvanley M. R., though admitting the rule to be, that where in a contract either party has been guilty of gross negligence the court will not lend its assistance to the completion of the contract, thought that in the present case there had been no such neg- ligence, and that the plaintiff was therefore entitled to a decree. In the case of the Marquis of Hertford v. Boore (a), where the bill for specific performance was filed by the vendor fourteen months after a correspondence respect- ing objections taken to the title by the defendant had ceased, but it appeared that to the last letter written by the plaintiff's solicitor, which called for a distinct answer and threatened a bill, no answer was returned, nor any notice of it taken ; Lord Loughborough re- ferred the title to the Master, saying, he was much in- clined to the general idea, that a vendor could not come at any distance of time ; bvit in the case before him the plaintiff had proceeded with expedition, — had put the defendant in possession of the abstract, — and, on objec- (a) 5 Ves. 719. PRESUMPTIONS OF FACT. 421 tions being taken to it, had obviated them. Every- thing was done by him to avoid a suit, — the last act calling for a distinct answer, and saying that other- wise he must be under the necessity of filing a bill. He takes a good deal of time upon that : but it may easily be imagined, that circumstances might have happened that would have made it peevish to file the bill immediately. VIII. The right to specific performance of a cove- nant for the renewal of leaseholds may be lost by the neglect of the lessee to take advantage of it. Cove- nants of this nature being in general beneficial only, or principally to the lessee, the courts deem it not only just, but in accordance with the spirit of such cove- nants, that a reasonable diligence should be exercised in seeking the performance of them ; so that if the party delay to require the stipulated renewal, or to en- force the covenant in equity on the lessor's refusing to comply with it, a presumption arises that the right has been abandoned (a). Where the delay is mani- festly wilful, it will be a decisive answer to the claim for renewal, however inconsiderable that delay may have been. In the case of leases for lives, the agreement com- monly is to renew on the death of any or either of the cestuis que vie. But this, it has been determined, does not bind the lessor to renew on the falling in of a second life, where application to grant a new lease was (a) See 3 Ves. 695. 422 PRESUMPTIONS OF FACT. not made on the death of the first. The true construc- tion of the phrase is, that upon the death of any one of the lives, the application required by the covenant should be made immediately (a). It is worthy of remark, that ignorance of the party's right to enforce a renewal, will not relieve him from the effect of delay in making the demand. The prin- ciple of the rule has respect only to the interests of the covenantor, and as he is in no way auxiliary to the ignorance alleged, it would be a gross inconsistency with that principle, if he should suffer by it (b). IX. Executors who are precluded from taking bene- ficially, and administrators claiming merely as such, cannot, on the lapse of time only, set up a title to the general residue. Being simply trustees, there is no principle of equity which, on that single considera- tion, can allow of their holding to the exclusion of the parties beneficially entitled. The retention of the funds supplies no argument, for that is consistent with the character they sustain, and amounts at most but to a breach of trust ; it does not excite any neces- sary suspicion of the executors' intention to appropri- ate them, so that the quiescence of the next of kin during such retention, since it cannot be construed into an admission of the adverse claim, is incapable of being received as evidence of a relinquishment. To have that effect the forbearance must be associated (a) Eaton v. Lyon, 3 Ves. 690 ; Ves. 295 ; Bayley v. Corp. of Leo- Maxwell V. Ward, M'Clel. 458 ; minster, 3 Bro. C. C 539. Baynham v. Guy's Hospital, 3 (b) See M'Clel. 464. PRESUMPTIONS OF FACT. 423 with and apj^arently accounted for by circumstances which lead distinctly to the supposition of a release or waiver. It has even been decided, that where an executor or administrator claims, though on mistaken grounds, to be entitled to an undistributed part of the deceased's estate, a delay by the persons really entitled for a space of twenty years or more, will not conclude their right {a). That cases however may exist in which great lapse of time, concurring with other circumstances to render a release or abandonment probable, will conclude the right of the parties interested, seems deducible from the decision in Huet v. Fletcher (b). There the plain- tiff's father dying intestate in 1699, his wife (the plain- tiff's mother) possessed herself of all the personal estate. After an acquiescence of forty years, and the accept- ance meanwhile of a legacy under his mother's will, the son brought a bill against her executor for an ac- count of his father's personal estate. But Lord Hard- wicke said, — " This bill is one of that sort which de- serves the utmost discouragement. It is to oblige an executor to account for a personal estate which through the great length of time he is utterly incapable of doing ; and besides this, the personal estate of a third person, which did not belong to his testatrix ; where the plaintiff himself has accepted a legacy under the will, the dispositions of which he now seeks in part to set aside ; and after he has acquiesced for a very considerable time. — The bill must be dismissed with costs." (a) Stacpoole v. Stacpoole, 4 (Z>) 1 Atk. 467. Dow. 209. 424 PRESUMPTIONS OF FACT. The difficulty of rendering an account formed, as it should seem, the principal ground for this determina- tion. But the fact of the jjlaintifF having accepted a legacy under his mother's will was also expressly ad- verted to — a fact which certainly made it highly pro- bable, that the demand had been relinquished ; in- deed, connected with the subsequent acquiescence (which his Lordship also noticed) it placed the ques- tion beyond all reasonable doubt. It will be observed, however, that the staleness of the demand was not by any means the sole ground for dismissing the plaintiff's bill. But, although the laches simply of the next of kin cannot j^rotect the personal representatives, yet if, being aware of their right, and able to enfol'ce it, they l^ermit the estate to be distributed, and lie by for a considerable time afterwards, a demand on the exe- cutor or administrator to account for the property dis- posed of will not then be entertained {a). An opjjosite I'ule would be contrary as well to reason as to justice. It would be to aid a claimant whose wilful negligence has been the sole cause of the injury complained of, and to allow the misconduct of one party to work the prejudice of another. But, on the other hand, if the next of kin at the time of distribution be ignorant of or misapprehend their right, an erroneous application of the funds will be set aside, though after a very considerable in- («) See 17 Ves. 165 ; also 2 Ves. jun. 583. PRESUMPTIONS OF FACT. 425 terval, and the jiroperty, if easily traced, and recover- able without producing individual hardship, will be ordered to be returned (a). Whether a mistaken divi- sion would be annulled, supposing the consequence to be grossly injurious to the parties who would have to make restitution, has not been expressly determined : but it is probable that it would not ; because even in cases where a restitution has been decreed, the decree has extended only to the original corjms, and not to the annual produce or other similar accruing benefit. Nor, as it is conceived, would the executor or adminis- trator in the case supposed be held personally liable. For although an executor or administrator invested merely with the office is as to the undisposed residue a trustee for the next of kin, — this is only sub modo ; he is a trustee for them generally as a class, not par- ticularly as individuals, until individually known. And, though it is doubtless incumbent on the perso- nal representative to use all reasonable diligence to discover who the persons beneficially entitled are, yet after a sufficient space of time for that purpose, he is bound to make distribution, and cannot refuse to do so, on the ground of there being possibly some indi- viduals who remain to be discovered {h). The same principle, which denies to next of kin when guilty of gross laches the right of contesting an erroneous distribution, is also applicable to creditors who for an unreasonable time delay to require pay- (a) Pickering v. Lord Stam- jun. 272, 581, S. C ford, 4 Bro. C. C. 214; 2 Ves. {b) See 2 Ves. jun. 583, ). (a) 1 Anst. 109. (Z>) Having already, in a former chapter, when treating on the sub- ject of purchases by trustees, had occasion to notice the peculiar fa- vour shown by equity to the de- mands of a class or body of cre- ditors, though such demands for a very considerable time have been neglected to be followed ; and the same principle having again come under consideration in the case stated in the text ; it seems advis- able here, in order to prevent a re- currence to the subject at a future page, to subjoin a further instance of the application of the same rule. B. Kidney, the owner of both freehold and copyhold lands, sub- jected his estates generally, by his will, to the payment of his debts. The copyholds not having been surrendered to the use of the will, the heir entered into possession and sold them. Several years af- terwards, and about twelve or thirteen years from the commence- ment of a suit by the creditors of Kidney for the payment of their demands out of the freehold estates, it was discovered that the produce of those estates would be insuffi- cient to discharge them. A sup- plemental bill was therefore filed to obtain the purchase-money of the copyholds, together with the intermediate profits. At the hear- ing (the principal claim it seems being admitted), it was insisted for the defendant that the account for mesne profits ought not to be carried further back than the filing of the bill But Sir Wm. Grant said, '' In Cook v. Arnham (3 P. Wms. 283 ; Forr. 35) an account was decreed only from the date of the will, upon the ground that the younger son was guilty of great laches in not having asserted his claim for foiuteen years. But it 432 PRESUMPTIONS OF FACT. XL By a rule of equity, purchasers of trust estates directed to be sold, where the purchase money is ap- is difficult to apply that doctrine to creditors who have no specific right or interest in the estate, but have only a right to have their debts paid, and the estate applied so far as is necessary for that purpose. These creditors might rot knew, until the account was taken, that it was necessary to make any claim to these copyhold estates ; and it was uncertain whe- ther they were to be applied until the freehold estates should have heen exhausted. Laches, there- fore, is not to be imputed to them, as to a specific devisee, for not having sooner asserted their claim. The claim is made, when they find it necessary for the satisfaction of their demands. Kidney v. Couss- maker, 12 Ves. 136, 158. The rule apparently deducible from this case is, that the neglect of creditors (unless extreme) whose debts are secured by a testamen- tary charge on the real estate of the debtor, will not affect the va- lidity of their claim on such estate while it continues in the hands of the heir or devisee, nor if sold, their right to payment out of the purchase money. But the appli- cation of this rule, at least where the delay is considerable, has its limits. It will not be allowed to ope- rate to the prejudice of purchasers. So that where an interval of seve- ral years occurs between the sale and the time of the creditor's claim being preferred, and the heir of the testator or devisee is then un- able to repay the consideration money, the purchaser, in such cases, cannot be resorted to for the deficiency. Thus where a testator devised all his real and personal estate (charged with the payment of his debts) to one Godwin, and ap- pointed him executor ; and God- win, not long after the testator's death, sold parts of the estate to several persons, and amongst others to the defendant ; it was held by the Master of the Rolls, that a bill brought by the bond creditors of the testator sixteen years after his death (on Godwin's becoming bankrupt) insisting that the purchaser took the estate sub- ject to their demands, was not sustainable. And His Honor said, that where creditors have so easy a remedy as to bring a bill against a devisee in trust of lands to com- pel a sale when the annual pro- duce is not sufficient to pay their debts, they should not disturb a fair purchaser after being in quiet possession of the trust estate for so long a time as sixteen years. Elliot V. Merriman, 2 Atk. 41. The circumstance of the devisee in the last case being also executor may probably have influenced the determination of the court. In- deed the Master of the Rolls dis- tinctly laid it down, that a charge for payment of debts gives an exe- cutor a right to sell as much as an express devise to him for that purpose j whence it seems, that in PRESUMPTIONS OF FACT. 433 propriated to the use of persons ascertained and of full age, are bound, unless expressly relieved from such ob- ligation by the instrument directing the sale, to see that the money is applied in the manner and to the purposes intended. The same rule holds where estates, subject to the payment of particular sums, are disposed of for the purpose of their dicharge. But these rules will not be acted on to the prejudice of purchasers beyond a reasonable time ; from long neg- lect an inference arises, that the parties beneficially in- terested had either been satisfied their demands, or had agreed to relinquish them. What space of time will serve to establish this supposition — whether or not a period less than twenty years — appears not to be distinctly settled; though the probability is, that if the period be much less than twenty years, the equity of the cestuis que trust would still subsist («). There is however no doubt that delay for so long as that of twenty years, unanswered, would prove fatal to the claim. Twenty-two years have expressly been held to discharge the purchaser's liability {h). XII. The determination of a right to require ac- counts has already come incidently under notice ; as the case under consideration, the wise executor (for the principle of purchaser was from the first ex- delay must apply equally to both empted from seehig to the applica- cases), a purchaser from him, after tion to the purchase money. The long peaceable possession, will point however mainly relied on by not be considered liable to the tes- His Honor was the plaintiff"s de- tator's unsatisfied creditors. lay. And it may, therefore, per- {a) Cusse v. Ash, Finch, 316. haps be fairly concluded, that whe- (Z>) Culpepper v. Austin, 2 Cha. ther a devisee charged with the Ca. 221 ; Spalding v. Shalmer, 1 payment of debts be or be not like- Vem. 301. ^ 2 F 434 PRESUMPTIONS OF FACT. in those cases where an improper distribution by an executor or administrator is complained of, — when the demand is for an account of the personal estate ; and again, where trust money which has been lost or mis- applied, is sought to be recovered, — the prayer of the bill in such case being for an account of the trustees' receipts and payments. The following miscellaneous cases concur in showing, that the liability of a party answerable for funds which he has received, or for money which he has neglected to pay, will, from the long forbearance of the persons entitled, be consi- dered to have been discharged. Thus, where a bill on the part of several of the officers and seamen of a company of adventurers, called the Royal Family Privateers of Bristol (who, in 1746, fitted out several ships for the purpose of cruising against France and Spain), was brought against the principal managers praying an account of the produce of the captures, but it appeared that nearly thirty years before a decree for the same purpose had been made in a former suit — though such decree had not been acted on ; Lord Alvanley, M. R., declaring it would be con- trary to the principles of equity to entertain the bill after so great a lapse of time, ordered it to be dis- missed («). By the act for the relief of insolvent debtors, passed in 1742, the assignee of the insolvent's estate was di- (a) Pearson V. Belchier, 4 Ves. Wymondsell, 3 P. Wms. 143; 627. See also Sturt v. Mellish, 2 Mackdowell v. Halfpenny, 2 Vern. Atk. 610 ; South Sea Company v. 484 ; Wood v. Briant, 2 Atk. 521. PRESUMPTIONS OF FACT. 435 rected, after payment of the creditors' demands and his own charges, to return the overphis to the debtor : Pro- vision was also made by the act for the removal, when necessary, of any assignee, and for the appointment of a new assignee, under the authority of a court of law. By virtue of this statute, an assignee was appointed to dispose of the estate and effects of an insolvent, who took the benefit of the act in the year wherein it was passed. That assignee was removed, and another ap- pointed ; and after a succession of removals and new appointments, M., in 1779, was made assignee under a rule of the Common Pleas. It appeared that M. ob- tained possession of the insolvent's estate, and disposed of some parts of it, but that he afterwards died with- out making distribution, leaving N. his heir and per- sonal representative. In 1818, the administrator of the insolvent (who had been dead several years) ap- plied for a rule against N. to show cause, why a new assignee should not be appointed, and an account taken of such part of the insolvent's estate as had come to the hands of M. or N. But the Court of Common Pleas, on the sole ground of the unreasonable length of time which had been suffered to elapse since M.'s appointment, rejected the application (a). Among other directions in a decree in chancery made in 1778, an occupation rent was ordered to be set by the Master on a mansion-house (part of a trust estate) then in the possession of the defendant. Lord Hinchingbrook. This was neglected to be done ; nor (a) Ex-parte Heathfield, 8 Taunt. 403. 2 F 2 436 PRESUMPTIONS OF FACT. was the subject even adverted to in the ensuing re- port. The defendant still continued in possession for several years, but without making any pecuniary ac- knowledgment for it. In 1807, a petition was pre- sented to the Lord Chancellor, praying that the direc> tion in the order of 1778 relative to the rent of the mansion-house might be carried into execution, and that the defendant should be ordered to pay rent for the time of his occupation. But Lord Erskine refused to make such order. The length of time since the matter was before agitated furnished in his opinion a clear objection. It was reasonable, he said, to presume from the parties not having before enforced the order, that there was a sufficient cause for not enforcing it. The money might have been paid ; or improvements might have swallowed up the rent, and made the de- fendant a creditor, and not a debtor; or he might have taken possession with the consent of all parties, under an engagement not to be charged with rent (a). In regard to bills for the rents and profits of land claimed under an equitable title, the courts, by analogy to the statute of limitations, will not in common cases allow the account to be carried further back than six years (b). Under special circumstances, the account will even be restrained to the time of filing the bill, — as where the laches on the part of the plaintiff has been purely voluntary (c). To the general rule, how- (a) Lord Shipbrooke v. Lord Reade v. Reade, 5 Ves. 749, 750 ; Hinchingbrook, 13 Ves. 387-396. Stackhouse v. Barnston, 10 Ves. (b) Per Lord Camden in Smith 469. V. Clay, 3 Bro. C C. 640, n. ; (c) Per Lord Hardwicke in PRESUMPTIONS OF FACT. 437 ever, an exception occurs, where a bill to obtain pos- session of an estate and to have an account of the rents and profits is brought by an infant; in which case, the account will be ordered to begin from the time when the infant's title accrued, on the ground that every person, who enters on the estate of an in- fant is in the capacity and subject to the responsibility of a guardian or bailiff («). But this indulgence in respect of infancy will only, it seems, be allowed where the claim is prosecuted during the continuance of the minority, or within a reasonable time after- wards. For in Lockey v. Lockey (Z>), where the owner of an estate neglected for six years or more, after coming of age, to require an account of the profits received by an agent during his minority. Lord Mac- clesfield held him to be as much barred by the sta- tute, or by analogy to it, ft-om bringing a bill for an account of the profits, as he was from bringing an action of account at common law. In like manner, if a person on coming of age, set- tles accounts with his trustees, and after an interval of six or seven years brings a bill generally to im- peach such accounts, the court will not allow them to be unravelled, but will only permit the plaintiff to surcharge and falsify ; the reason for which is the difficulty that would otherwise be imposed on trustees in obliging them to prove the particular items of their Dormer v. Fortescue, 3 Atk. 130 ; See also Earl of Newburgh v. Pettiward v. Prescott, 7 Ves. 547. BickerstafFe, 1 Vern. 296 ; Yalloji (a) Per Lord Hardwicke in v. Holworthy, 1 Eq. Abr. 7, p. 10. Dormer v. Fortescue, 3 Atk. 130. {h) Prec. Cha. 518. 438 PRESUMPTIONS OF FACT. accounts after so long a time {a). A less period how- ever than six years will not perhaps in general serve to protect accounts from being opened. Lord Hard- wicke, in Roberts v. Kuffin {b), said, that bringing a bill three or four years after an account is settled for errors in that account, was not too long a time. Where an accountant , has been guilty of fraud, the whole account is of course liable to be opened, though at an indefinite period (c). Accounts between merchants after six years' total discontinuance fall, as it is now settled, within the general provisions of the statute of limitations {d). Doubts were once entertained on this point, — mer- chants' accounts being in direct terms excepted from the operation of the act (e). But it deserves remark, that even while such difference of opinion prevailed, courts of equity uniformly refused their assistance in the investigation of accounts between merchants, where ths dealings between them had been long disconti- nued (/). XIII. That transactions liable in the first instance to be relieved against will be rendered ultimately un- impeachable by the long forbearance of the persons interested, is also a point which has before come vm- (a) Brownell v. Brownell, 2 Edeii, 169 ; Barber v. Barber, 18 Bro. C. C. 62 ; Western v. Cart- Ves. 286. Wright, Sel. Cha. Ca. 34. (e) See 21 Jac 1, c. 16, s. 3. (i) 2Atk. 113. (/) Sherman v. Sherman, 2 (c) Vernon v. Vawdry, 2 Atk. Vern. 276; Bridges v. Mitchell, ^9- Gill). Eq. Rep. 225, (d) Martin v. Heathcote, 2 PRESUMPTIONS 0¥ FACT. 439 der consideration. In the following cases, additional examples are furnished of the application of this prin- ciple. Thus, it has been determined, that after an acqui- escence of thirty years, the owner of an estate cannot dispute an agreement entered into by his bailiff' for the inclosure of an appurtenant common {a) ; and in like manner, that after an occupation for twelve or thirteen years of an enclosed parcel of a manor waste with the knowledge of the steward, the occupation shall be presumed to have originated under a licence from the lord (b). So, although a husband cannot alone make a bind- ing declaration of the uses of a fine levied by himself and his wife of the wife's land, yet if, after the termi- nation of the coverture, the feme delay for a consider- able time to signify her disagreement, the declaration of uses made by the husband alone will be sustained on the supposition of her acquiescence. Fifteen years, in a case before Lord Hardwicke, were accounted suffi- cient for this purpose (c). In Burke v. Crosbie (d), a misapplication of the separate estate of a feme covert was held to be irreme- diable solely in consequence of the laches of the par- ties. On the marriage of Edward Crosbie, an estate (a) Tufton v. Wentworth, 5 (c) Swanton v. Raven, 3 Atk. Vin. Abr. 8, pi. 32. 105. (6) Doe d. Foley v. Wilson, 11 (d) 1 Ball and Beat. 489. East, 56, 440 PRESUMPTIONS OF FACT. subject to a mortgage was settled on the husband for life, remainder to the issue of the marriage in the usual manner, and in default of issue, as to one moiety, to such uses as the wife should appoint. There was no issue of the marriage. In 1759, the mortgagee brought a bill for redemption or foreclosure, and in the result obtained a decree for sale of the pro- perty and for payment of the principal and interest of the mortgage debt. The sum produced by the sale was much more than sufficient to satisfy the mortgage ; but the surplus, instead of being retained upon the trusts of the settlement, was applied to other purposes. The wife lived fifteen years after this transaction, with- out complaint: and a lapse of other seven years oc- curred before a bill for the recovery of the misapplied funds was filed by her heir at law. Lord Manners, however, as to that claim, dismissed the bill. Pie thought that as the wife, who (it appeared) had lived separate from her husband, was aware of the whole proceedings, had had the means of enforcing her right, and yet had lain by, and as her heir had also remained so long inactive, the demand could not then be attended to. The destruction of a settlement and the wrongful disposition of the property settled will not be relieved against, unless complaint be made within a reasonable time. Thus, where, in 1708, soon after the second mar- riage of W. S., a mortgage term, pursuant to previous articles, was settled on himself for hfe, remainder to his wife for life, remainder to the first son of the PRESUMPTIONS OF FACT. 441 marriage in tail ; and in 1739 the settlor and his wife, by release and fine, conveyed the estate for an inade- quate consideration to uses for the benefit of a child of the first marriage ; a bill brought, thirty-five years after, by a claimant under the settlement of 1708 was dismissed. Lord Commissioner Ashhurst said : " The first point is, that the defendants are 2)urchasers for a valuable consideration, and that the settlement of 1708 was voluntary. If this had been all, we should have thought with the plaintiff: but as to the case of the defendants, they claim under the deed of 1739, and have been in possession ever since. It is said by the plaintiff, that the defendants took the term as a trust, with notice ; but it is unnatural to infer a fraud in this case, for then the mother must be presumed to have defeated the provision for her own children. In this view, one would rather infer, that the parties knew the settlement to be voluntary, or that some compensation was made to the children of the second marriage. Then as to trusts being an exception to the statute of limitations,— the rule holds only be- tween trustees and cestui que trusts. It is true, that a trustee cannot set up the statute against his cestui que trust: but this is merely the case of a trustee by implication, and as such affected by an equity. But that equity must be pursued within some reasonable time. And both courts of law and equity preserve an analogy to the statute of limitations («). So, in transactions between father and son, where the latter under the influence of paternal authority is {a) Townshend v. Townshend, 1 Bro. C C. 551. 442 PRESUMPTIONS OF FACT. induced, without any or for some trivial consideration, to defeat or abridge his reversionary rights, a court of equity, after long acquiescence, and especially if the destruction of interests since acquired by bond jide purchasers be involved in the determination, will not relieve. In Brown v. Carter («), a son, who was tenant in tail in remainder subject to his father's life interest, joined with the latter immediately upon coming of age in suffering a recovery, with a view to raise 3,000/. for the father, and to re-settle the estate. By the new settlement, an estate for life oiily was limited to the son, with remainder over to his first and other sons in tail. In 1779, ten years after the recovery, the son married; and in 1799 (the father having in the mean time died) he conveyed the estate in question, as abso- lute owner, for the benefit of his creditors. A bill was thereupon filed by the creditors against the trustee of the settlement and a mortgagee who advanced the 3,000/., claiming the estate as purchasers under the statute S7th Eliz. c. 4. But Sir R. P. Arden M. R., dismissed the bill. He declared it to be his opinion that, whatever equity the son might originally have against the settlement had been lost by his subsequent marriage, which operated to confirm it ; but that be- sides this, the long acquiescence on his part, which continued up to the end of six years after his father's death, was of itself sufficient to negative any complaint grounded on the abuse of paternal influence. (a) 5 Ves. 862. See also Tweddell v. Twetldell, 1 Turn. 1. PRESUMPTIONS OF FACT. 443 Whether in the instance of annuities open to objec- tion under the annuity acts, the long acquiescence of the grantor will preclude his right of complaint, seems to depend partly on the question, whether the de- fect is plain and distinct or ambiguous and disput- able, and partly on that of the transaction generally being fair or tinctured with fraud. If the defect con- sists in a non-compliance with any of the direct and positive requisitions of the legislature — such as admit neither of explanation nor excuse, or if any inequi- table advantage has been taken of the grantor, the lapse of time will not avail (a). But where the only ground of impeachment is an inaccurate performance of some of the acts or conditions prescribed, and the matter itself is capable of satisfactory explanation, there, it seems, the acquiescence of the grantor will preclude his right to judicial interference ; — especially if the agent or other indifferent persons engaged in and acquainted with the business are dead. Lord Rosslyn, indeed, it has been said, did not assent to this proposition ; he considered the annuity acts to be im- perative, and that the courts were bound by them, notwithstanding the party may have lain by (b). But Lord Kenyon's opinion was so different, that in Sym- raons v. Mortimer (c), where the principal point relied on for invalidating the annuity was a delay which had taken place in registering the memorial, yet as it appeared, that eight or nine years had passed since the (a) Van Braam v. Isaacs, 1 Bos. WiUiamson v. Goold, 1 Bing. 234.; and Pul. 451 ; Ex-parte Sir R. Calton v. Porter, 2 Bing. 370. Mackreth, 2 East, 563 ; Drake v. (b) See 12 Ves. 378. Rogers, 2 Bred, and Bing. 19 ; (c) 5 T. R. 139. 444 PEESUMPTIONS OF FACT. memorial was in fact registered, — that the agent who negociated between the parties was lately dead, — and that the affidavit of the grantor alone disclosed the facts on which the application to set the annuity aside was grounded ; his Lordship said, that if other reasons had been wanting, the length of time, and the fact of the grantors having lain by till the death of the agent, and till all evidence of the transaction except what he himself had disclosed was lost, would alone perhaps have been a sufficient answer to the application. And in a later case {a), where the validity of an annuity was disputed on a supposed deficiency of consideration, yet as it appeared that the grantee and also the wit- nesses were dead, and that payment of the annuity had been regvilarly made for seven years, his Lordship, adhering to his opinion in the former case, refused to annul the transaction, and intimated that by analogy to cases within the statute of limitations the objection ought to have been made within six years. It will be perceived from a review of the cases pre- sented to consideration in the present chapter, that as regards the length of time necessary to establish the presumption of the release or abandonment of neglected rights, no precise period can be named as the basis of a general rule, and that the only criteria to judge whether the delay of a party be such as amounts to laches, are the nature of the demand and the degree of inconvenience which its enforcement would in most (a) Ex-parte Maxwell, 2 East, Lord Erskine, 12 Ves. 378; and 85. See also Poole v. Cabanes, 8 per Park J., 1 Bing. 240. T. R. 328 — a case referred to by PRESUMPTIONS OF FACT. 445 cases occasion to the opposite party. Thus, in elect- ing to take under or in opjiosition to a will, — in the completing of an agreement for purchase, — and in requiring performance of a covenant for renew- al, — promptness and diligence are especially needful, the mischievous consequences of neglect in cases of this description being immediate and palpable, and very frequently extensive. In such instances there- fore delay for a year, or even for a less period, will evidence a relinquishment of the right. To these the case of creditors or next of kin who lie by per- mitting the erroneous distribution of a deceased's estate, bears a near resemblance ; and accordingly, it seems that the neglect of such persons until after the distribution is completed will discharge the personal responsibility of the executor or administrator. But the extent of time allowed in reference to claims, the non-assertion of which produces no present injury, is much more considerable ; and it may be laid down generally, in regard to cases of this kind, that six or seven years, where the subject of demand consists of or relates to personal property, and twenty years, where it is real, must elapse, before the courts, by ana- logy to the statute of limitations, will deny the title to relief. There are indeed some cases, though relating to real estate, in which forbearance for twelve or ten years will be a sufficient answer to the plaintiff's suit; as where the claim is not of a character so clear and indubitable as to render the resistance of the defendant obviously un- conscientious. The abandonment of a right to reclaim and appropriate waste lands, — the dispensation of a right of entry for a forfeiture, — the waiver of a title 446 PRESUMPTIONS OF FACT. under a devise, — or consent to an incJosure made un- der the sole authority of a steward, — cannot perhaps be presumed under less than twenty years. But a period considerably shorter, it seems, will prevent the exercise of a right of pre-emption, or jDreclude a widow who had joined with her husband in levying a fine of her estate but not in the deed declaring the uses, from signifying her disagreement. Where the person on whom a demand is made stands in the relation of trustee to the comj)lainant, the claim, if in any degree affected by time, may cer- tainly be enforced after an interval much greater than what is' allowed in ordinary cases ; and this rule holds as well in questions regarding personal estate as real. Thus legatees, and creditors whose debts are known, unless under very particular circumstances, will not be considered from mere forbearance to have relin- quished their rights and discharged the executor from his responsibility. Legatees, also, to whom or for whose benefit while infants, the executor has without proper authority advanced a part or the whole of the legacy, will not be concluded for many years after their majority from requiring a second payment. And even in the case of purchasers who may be bound to see to the application of the purchase-money, a lapse of twenty years at least appears to be requisite in order to relieve them from their liability. To the rule in question however an exception obtains, where one of several trustees ceases to interfere personally in the execution of the trust, and the parties beneficially inte- rested, being aware of the fact, communicate solely PRESUMPTIONS OF FACT. 447 with the others on the subject, and rely upon them. In this instance twelve or fourteen years, perhaps less, will prevent the cestui que trusts from coming upon such trustee for a loss occasioned solely by the mis- conduct or insolvency of his co-trustees. It remains to observe, that courts of equity, in ac- cordance with their uniform endeavour to put an end to litigation, will not suffer any unreasonable delay to take place in the different stages of suits. A bill of revivor cannot be brought after a delay of six years («). Diligence, though not of equal degree, is also necessary in order to warrant the filing of a supplemental bill (Z>). And so with regard to bills of review ; — concerning which it has been determined that even for error ap- parent, they will not lie after twenty years from the date of the decree (c), except in the case of persons not in esse at the time of the decree, and of persons having contingent interests, of infants and of others under any legal disability {cl). The judgment of Lord Chancellor Camden in the case of Smith v. Clay {e), which established the rule last mentioned with respect to bills of review, will form an appropriate conclusion to the present treatise. (fl) Hollingshead's case, 1 P. byToml. 98; Lytton v. Lytton, 4 Wms. 742. See also 2 Scho. and Bro. C C, 441. See also Sher- Lefr. 632. rington v. Smith, 2 Bro. P. C. by (Z.) See Barrington v. O'Brien, 1 Toml. 62 ; Earl of Castlehaven v. Ball and Beat. 173. Underhill, 2 Cha. Rep. 46 ; Fit- (c) Smith V. Clay, Amb. 645 ; ton v. Eariof Macclesfield, 1 Vern. 3 Bro. C. C. 639, n. S. C; 287. Norris v. Le Neve, 3 Atk. 26, 38 ; {d) Lytton v. Lytton, supra. Edwards v. Carrol, 2 Bro. P. C (0 Supra. 448 PRESUMPTIONS OF FACT. From the accuracy with which this judgment ascertains the principles that influence courts of equity in their treatment of stale demands, and explains the reasons upon which those principles are founded, it has been regarded as an authority applicable to all cases in which the circumstance of lapse of time forms a prominent and characteristic feature. The case arose upon a petition for a bill of review for error manifest upon the face of the record. It was between thirty and forty years after the time when the decree was pronounced. Lord Camden said, — The question upon this petition is, whether a bill of re- view here is not barred by the length of time. I am of opinion it is. There are two questions. First, what period of time is a bar to a bill of review ? Second, from what time this period shall be computed ? To the first question the answer here is easy. Twenty years is the period. Edwards v. Carrol (a) is deci- sive, and now not open to argument. A court of equity which is never active in relief against con- science, or public convenience, has always refused its aid to stale demands, where the party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence : where these are wanting, the court is passive, and does no- thing. Laches and neglect are always discountenanced, and therefore from the beginning of this jurisdiction, (a) 2 Bro. P. C. by Toml. 98. PRESUMPTIONS OF FACT. 449 there was always a limitation to suits in this court. In Fitton V. Lord Macclesfield, Lord North said rightly, that though there was no limitation to a bill of review, yet, after twenty-two years, he would not reverse a decree but upon verij cqyparent error. Expedit rei- puhlic^ ut sit finis litium, is a maxim that has pre- vailed in this court at all times, without the help of an act of parliament. But, as the court has no legisla- tive authority, it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year; it was governed by circumstances. But, as often as parliament has limited the time of actions and reme- dies to a certain period in legal proceedings, the Court of Chancery adopted that rule, and applied it to simi- lar cases in equity. For when the legislature had fixed the time at law, it would have been preposterous for equity (which, by its own proper authority, always maintained a limitation) to countenance laches beyond the period that law had been confined to by parlia- ment. Hence, in all cases when the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar. Thus the account of rents and profits, in a common case, shall not be carried beyond six years. Nor shall re- demption be allowed after twenty years possession in a mortgagee, except in cases of disability. By the like analogy, the House, in Edwards v. Carrol, determined that twenty years should bar a bill of review, because the statute of Will. HL had barred all writs of error after that period. As to the second question, his Lordship held, that the time, whence the period of 3 c; 450 PRESUMPTIONS OF FACT. twenty years was to be computed, was the date of the decree. And he remarked in conclusion, that the rule which prevented the bringing of bills of review after twenty years, was also applicable to the case of bills for re-hearing (a). (a) Amb. 649. On the latter point, see also Yate v. Mosely, 5 Ves. 480. INDEX. ABSENCE. Page Absence abroad, an answer to presumptions from lapse of time ---______ 14^ 3gQ Absence for seven years without interim account, presumptive evidence of death ---_-___ 079 ABSTRACT. Old abstract presumptive evidence of the deeds, &c., ab- stracted ---______ 197 ACCEPTANCE. Acceptance of property conveyed or devised to a man pre- sumed, unless evidence sriven of a disclaimer - - - 32 ACCOUNTS. Right to require accounts in all cases lost by laches - 433 — 436 Accounts for rents and profits not carried back in equity fur- ther than six years : sometimes the account is confined to the filing of the bill - - - ^ - - -436 except in the case of infants, when the account is carried back to the time when the infant's title accrued : the party however must complain within six years after his majority --_-_____ 437 Right to open an account generally, settled between trustee and cestui que trust on the latter coming of age, determines at the end of six years ; cestui que trust can then only sur- charge and falsify -------- 437 If trustee has been guilty of fraud, the account may be opened generally at any distance of time - - 438 ACTS OF PARLIAMENT. Acts of Parliament presumed in support of long possession, 6, n., 194 ACCUMULATIVE LEGACIES. See Double Legacies. ADEMPTION. Legacy by a parent, or person in loco parentis, adeemed, or presumed to be adeemed, by a subsequent advancement to the child of like amount with the legacy 127 — 129 by a portion of like amount secured to be paid to the child at the parent's death _ _ _ - - 130 pro tanto, by an advancement of inferior amount to the legacy --------- 130 Construction not altered by a codicil subsequent to the ad- vancement which " ratifies and confirms the will in all re- spects" ---------- 129 Differences in the period whence interest is to be paid, or in the time for payment of the principal, immaterial - 131 — 132 Where the legacy and advancement are both of modified inte- rests, differences in the modes of limitation immaterial - 134 Illegitimate children, if recognized as children, within the rule 128, n. 2 G 2 452 INDEX. ADEMPTION— {continued.) Page The presumption of intent to adeem rebutted, where the legacy is of a qualified interest, and the ad- vancement is absolute - - - - 133 — 134 where the legacy and subsequent provision depend for their vesting on different contingencies - - 132 where the legacy and advancement are not ejusdem generis ___-__-- 133 where the bequest is of a residue _ _ - - 132 where the advancement is grounded on a distinct consideration, or is made for a particular purpose - 133 where, in addition to a legacy given expressly as a portion, a general legacy is bequeathed - - - 135 The presumption repelled, by evidence of the parent's intention, as shown in a co- dicil after the advancement - - - - - 136 by extrinsic evidence of intention, whether written or parol --------- 136 What parol declarations are effectual to this end 137—140 Extrinsic evidence admissible to fortify the presumption when impugned - - - - - - - -140 ADMINISTRATION. Letters of administration presumable in support of an old as- signment of a lease from a person described in such assign- ment as administrator of a former owner, xemble - - 208 ADMINISTRATOR. See Executor. ADMISSION. Admission of a demand or equity within twenty years an answer to presumptions from time, 17, 339 — 344, 358, 365, 370, 372 373 ADMITTANCE. Admittance to a copyhold, what secondary evidence of - 197 Admittance to a copyhold presumed, after long possession and payment of the rents and services 263 from the lord's accepting a surrender from the party in possession to the use of a third person - - _ ib. from the lord's granting to the party in possession an en- franchisement of the copyhold - - - - - ib. ADVANCEMENT. Purchase in the name of a wife or child before unprovided for (though such child be illegitimate), and whether the estate be immediate or reversionary, an advancement - 56 — 5t So, a purchase made in the joint names of the parent and child, or of the child and a stranger ------ 57 Possession taken by the father, where the child is an infant, does not alter the construction - - - - - 61 Nor where the child is adidt, semhie _ - - - 63 — 65 Title of the wife or child not defeated, by an attempted disposition by the husband or father - 68 by his subsequent insolvency or bankruptcy, provided he were solvent at the time of purchasing - - - - 72 Contra, if he were not in solvent circumstances - 68 — 72 Child's title by survivorship, where a purchase is made in the joint names of himself and father, voidable by the father's creditors generally ------- 65 — 66 INDEX. 453 ADVANCEMENT— (coHiimied.) _ ... ^^S^^ Purchase in a child's name not being wholly paid for in the father's life-time, his assets liable to pay the remainder - 58 The presumption of intent to advance rebutted, where the child has already been provided for - - ib. A previous gift to the child of a dry reversion not a provision within the meaning of this rule, - 59 where a purchase is made by two persons in the name of a child of one of them _ - _ 57, n. (f.) where nominee is a grandchild (unless the father be dead), or nephew, or more remote relation - - 57 where the father expressly declares by a writing con- temporaneous with the purchase that the child is only a trustee ______-- 60 where, on grant of a copyhold for lives successive, the child's name is inserted as a nominee, and the father obtains at the same time a licence to make beneficial leases, or surrenders to the use of his will - - 61 See Ademption. ADVOWSONS. To writs of right of advowson no bar less remote than the reign of Henry III. - - - 291 Grant or conveyance of an advowson presumed in support of a title evidenced by several successive presentations - - 292 AGREEMENTS FOR PURCHASE. Specific performance of an agreement for purchase not en- forced unless acted on with diligence - - - 415 4.18 It is immaterial whether the delay occurs before or after steps taken towards completing the agreement, — whether or not a deposit has been made, — that the defendant has been in in prison, and plaintiff unable to find him,— or that the agreement or other material papers have been mislaid - 416 The rule more inflexible, where the purchaser's delay has been for his own accommodation, — where the estate contracted for, being in reversion at the time of sale, has fallen into possession,— or where the sale was made for the purpose of paying off incumbrances ------- 419 Where the delay has not been wilful, being the consequence of difficulties in the title, or is attributable to the oppo- site party, specific performance not denied - -419 — 421 ALIEN. Presumptions not made of deeds of conveyance or grant to aliens - - - - - - - - - -15 ANNUITIES. Where grantor of an annuity bequeaths to the grantee an an- nuity of like amount, it satisfies the former _ - - 104 Cowfro, if not payable equally soon _ - - - 109 Annuity, not demanded nor acknowledged for twenty years, presumed to have been released or satisfied _ _ - 367 If the release or satisfaction of an ainiuity long unpaid cannot be presumed, all the arrears may be recovered - 368 Annuity open to impeachment under the Annuity Acts set aside, notwithstanding long delay, where the defect proceeds from a culpable disregard of the Acts, or where inequitable advantage has been taken of the grantor - - - - 443 454 INDEX. ANNUITIES— (continued.) Page Contra, seinblc, where the defect is merely an inaccurate performance of some of the acts or conditions prescribed, and is capable of satisfactory explanation, — especially if the agents and witnesses are dead - - - 443 — 444 See Pin-money. APPROPRIATION. Right to reclaim and appropriate land not acted on within a reasonable time, presumed to be abandoned _ - - 400 APPROVEMENT. Right of making approvements presumed to have been re- served, where the lords of a manor have been immemorially accustomed to make approvements of the waste - - - 316 ASSENT. Assent of executor to a bequest presumable after long enjoy- ment, semble --------- 267 Slight circumstances generally enough to testify assent to a legacy --------- ib. Assent of commoners to inclosure of the common presumed after long acquiescence ------- ib. Assent of the lord or of a particular land-owner to an agree- ment entered into by his bailiff for inclosing a common, pre- sumed after long acquiescence ----- 267, 439 See Husband and Wife. ASSIGNMENT. Mesne assignments of a lease presumed - _ _ - 208 ASSURANCES. Assurances of record presumed ----- 6, n. See Deeds. BARGAIN AND SALE. Bargain and sale for a year presumed, semble, where - 201 — 203 BILLS IN EQUITY. Bill of revivor cannot be brought after six years - - - 447 Bill of review does not lie after twenty years - - - ib. Supplemental bill must be filed within a reasonable time - ib. BOND. Bond on which interest has not been paid for twenty years, presumed to have been satisfied - - - - - 361 So, although the time does not amount to twenty j'^ears, if there are auxiliary circumstances raising a presumption of payment 362 — 363 Although the debt is acknowledged not to have been satisfied, yet non-payment of interest, with other circumstances, may raise the presumption of a release ----- 364 The presumption of satisfaction does not arise where the debt has been acknowledged, or interest has been paid, within twenty years - - _ - 365 where the obligor has been in extreme poverty, or has been abroad -- - - - - - - 366 where the obligee has been out of the kingdom - - ih. BOOKS OF ENTRIES, ACCOUNTS, &c. Books of the steward of a manor secondary evidence of sur- renders &c., minuted therein - _ - _ _ 197, 261 Attorney's books of account secondary evidence of deeds and other writings charged for, and of their having been exe- cuted 198 INDEX. 4.55 BOOKS OF ENTRIES, ACCOUNTS, ikc.—(contin7ied). Page Books of account of a man-midwife secondary evidence of time when a child was born ------- CHARGES. See Creditors. Exoneration. CHURCH. Grant or conveyance not presumed from twenty year s enjoy- ment, if in prej udice of the rights of the church - - - 15 COMMON. , ^ , Consent to inclosure of a common presumed alter long acqui- escence 267,439 COMMONABLE RIGHTS. Tenants of a manor primd facie entitled to right ot common - Grant of rights of common presumed from twenty years ^n- ''''The'Vresumption "rebutted by proof of the other com- moners' ignorance of the user, or where the «f ^ h«^ arisen pur cause de vicinage - - - 15, 300 JOi Title to rights of common lost by long non-user - - - -i^i COMPLIANCE. , , ^ .^ Compliance with the requirements of law necessary to esta- blish a right or title, presumed, where - 26—27, 2bi—^i)^ Performance of conditions essential to the vesting or determin- ing of rights and interests, presumed, where - 26*— ^b5 CONFIRMATION. , , . Confirmation by patron and ordinary of conveyance by incum- bent of a living of parcel of the glebe presumed aftej long 31 299, 300 Confirmation by partron and ordinary of agreement made by incumbent for vesting the right of presentation to a chapel of eTse in a person making an endowment, presumed after repeated presentations by that person - - - - Contra, a the origin of the asserted right appears, and is invalid 266 ib. ib. ConfinSn of a'n agreement made by incumbent for receiv- ing a modus in lieu of tithes presumed from ^immemoria^l _^ usage ---"""" CONSENT. See Assent. CONVEYANCE. See Deed. ^^^Ancient copy of a deed, attested or unattested or a copy en- "^rS ed?o?safe custod^, secondary evidence ?f -ch ^^^^^^^ ^;_ ''' Ancient copy of admittance to a copyhold evidence of the ad- ^^^ An^leMcopy of e'xempUcati^n of "a recovery'evidence of such ^^^ recovery - - - - " . " ^^^S^Vco^Veyance of land to a corporation not pr_esum- ^^ able ---""* COUNTERPART. ,, _ _ ^97 Counterpart of a deed secondary evidence ot it - COVENANTS FOR FAMILY PROVISIONS. Distinction between performance and satisfaction of - - 80 456 INDEX. COVENANTS FOR FAMILY PROVISIONS— (conS—(conttnued.) . ^^^^ This rule inapplicable where the object of the trust is not plain, or where the estate was only under cove- nant to be conveyed to certain uses, and has been so enjoyed _ _ _ - - 217 220 unless there are other circumstances creating per se the presumption of a conveyance - 221 Nor where the trustees would by re-conveying com- mit a breach of trust - - - - 221 — 222 Re-conveyance of the legal estate on satisfaction of an old mort- gage in fee presumed - - - -- "" "*^ The presumption in none of the precedhig cases is rebutted, if the presumed deeds affect lands in the register counties, from the mere want of the registration, sanble - - 6, n. Deeds of release or discharge as to old claims presumed from long delay in asserting them - 8, 187—188, 352, 367, 384. Deeds presumed to have been properly executed, 34—36, 260— ^ 261 of thirty years old admitted in evidence without proof of execution - - - - - ' c'r ' ^^^ of less age admitted in evidence without proof of exe- cution, if the witnesses are dead, and the enjoyment has been conformable ------ 261 262 Secondary evidence of deeds, what is - - - -196 — 197 See Secondary Evidence. Deeds twenty years old making a tenant to the precipe pre- sumptive evidence of a recovery - - - - - 201 DELAY. See Demand. Laches. Payment. Release. DELIVERY. Delivery of deeds presumed, where - - - - - 36 DEMANDS. Demands though admitted not to have been satislfied, yet if founded in very old transactions, presumed never to have existed, semble ___----- 378 See Laches. Payment. Release. DEMISE. Deeds of demise for long terms presumed, where there are re- citals of such deeds in existing assignments, and the pos- session has been accordingly - - - - 203 — 205 DEVISAVIT VEL NON. Right to an issue of devisavit vel non lost by twenty years' delay 1.14—415 DEVISEE. Devisee presumed to accept the property devised to him - 32 Right of devisee of an equitable estate lost by permitting testator's heir to take possession and hold for twenty years --------- 413 — 414 DISABILITIES. Recognised legal disabilities answer to presumptions from lapse of time ---------14 DISCLAIMER. Grantees and devisees have power to disclaim - - " .^^ Disclaimer may be made by parol, semble - - - - ib. Heir at law of grantee or devisee whose acceptance cannot be proved or presumed, may disclaim, semble - - 32—33 INDEX. 461 DISSEISIN. Page Disseisin of a trustee by his cestui que trust presumable, if ne- cessary, semble __------ 223 See Ouster. DISTRIBUTION. Erroneous distribution by executor or administrator, (the par- ties really entitled being ignorant of their rights) may be set aside at any distance of time, if the restitution of the funds produces no extraordinary hardship _ _ _ - 424. Contra, if the parties entitled were aware of their rights, or the hardship on persons making restitution would be extreme --------- 425 DORMANT RIGHTS. Every presumption admissible to repel dormant rights - - 5 DOUBLE LEGACIES. Where a specific article is twice given, whether in the same instrument or in different instruments, the bequest is only single - - - - - - - - --HI Where double pecuniary legacies or annuities of equal amount are given by same instrument, although in some respects differently modified, or payable at different times, legatee is entitled to only one of them - - - - 141 — 142 Contra, if the legacies or annuities are of unequal amount, or given for different causes, or the second is given as an additional bounty - - - - - - - ib. Legacies by separate instruments, whether the second is equal to, greater, or less than the preceding, prima facie accumu- lative - 14.3 A fortiori, if the second legacy is given for a different cause, or the legatee is described as an object of peculiar favour, or the legacies are not ejusdem generis, or one of them is con- tingent - - - - - - - ^ - -- 14.4. Legacy to unborn children by will, and legacies to children nominatim by codicil when actually born accumvdative - ib. unless a contrary intention be clearly evinced - - 147 Legacies by separate instruments being equal, and both ex- pressly given for the same cause, one only can be claimed - 145 Contra, where a further reason is mentioned in regard to the second, as forming another inducement - - ib. Or where the legacies are uneqiial, though given on same account --------- ib. Coupling a specific with a general legacy in both instruments, where the general legacies are of the same amount, prevents the legatee taking both ------- 146 Legacies given by codicil, some expressly in augmentation of legacies before given, and others not expressly in augmenta- tion, not accumulative ------- ib. If a legacy by codicil is greater than a legacy previously given and testator appears to have intended an increase of the first legacy only to the amount of the difference between it and the second, the latter only is due _ _ - 146—147 Legacy by codicil to two trustees for an infant not augmen- tative of a like bequest by will for the infant's benefit to one only of those trustees - - - - - --147 Where such similarity exists between two testamentary in- struments as to make it probable that the second was intend- ed as a substitute for the first, single legacies only can be claimed 148-149 462 INDEX. DOUBLE LEGACIES— {conti7iued.) Page Parol evidence not admissible to show testator's intention to give a single legacy only, where the presumption is that he meant to give both _____ i5o is admissible to show that both legacies were intended, though the presumption is contrary - ib. DRAFT. Rough draft of a deed or admittance admissible as secondary evidence _________ 197 EASEMENTS. Grants of easements presumed from long user _ 5, 304, 309 Right to easements lost by long non-user - 308 — 309, 311 ELECTION. Right of newly electing not allowed where the party, being acquainted with the value of the funds and aware that he must elect, has submitted or acted contrary to testator's disposition for a year or more _ - _ - 403 — 408 Widow's right of electing between a provision under her husband's will and a provision by common law, custom, or settlement, is determined by her confining herself to one of those provisions for a year or more after the husband's death _________ 408, 409 Right to compel election presumed to be abandoned after twenty years ---____-_ 410 ENCUMBRANCES. See Exoneration. ENDOWMENT. Endowment of vicarage presumed to support the title of a lay rector --_______ 264 — 265 ENFRANCHISEMENT. Deed of enfranchisement presumed after long possession ad- verse to the lord -____-__ I88 ENROLMENT Enrolment of deeds, when presumed - - 37, 263 When not presumed _____ 199 353 ENTRY. Younger brother's entry on land which descends to his elder brother when the latter is absent not an abatement - - 25 Entry of the elder brother in such case not tolled, though the younger die in possession ---_--_ 26 EQUITY OF REDEMPTION. Release of equity of redemption presumed, so as to make the mortgaged estate pass as part of mortgagee's absolute pro- perty by his will, where - - - - - - -188 Possession for twenty years of mortgaged estate by mort- gagee without account, a presumptive bar to the equity of redemption ---____ _ 329 — 331 Right of party entitled to redeem not saved, though a suit for redemption be commenced within the twenty years, if it is afterwards abandoned ; or applica- tion is made to redeem, but mortgagee does not acknow- ledge mortgagor's title, and no further steps are taken, 331 — 332 though a decree for redemption be obtained, if not acted on for twenty years - - - _ _ _ - _331 though the estate subject to the mortgage is in settlement, and the twenty years run during the existence of a parti- cular estate ______ 333 — 335 INDEX. 463 EQUITY OF REDEMPTION— (con^mwec?.) Page by the existence of an estate by the curtesy " " ." ^^^ unless the person entitled to the curtesy estate sold his interest to the mortgagee, when the right of redemp- tion continues open till twenty years after his death, 336—337 though mortgagor continues in possession of part of the pre- mises, semble - - - - ~ ' - ^45 348 Right of redemption saved, by infancy, coverture, &c. ; and ten years are allowed after the disability ceases ___---- 332 But if the time once begins to run, a subsequent disa- bility does not avail - - - - - - 333 by fraud or oppression on the mortgagee's part at the time of the loan 7 ^^^~^^^ if mortgagee or his agent has settled an account with the mortgagor within twenty years ----- 339 Contra, if the agent acted without authority - - 340 if mortgagee has kept accounts ------ ib- by mortgagee noticing in any legal instrument withm twenty years that his interest is liable to redemption - - 340—341 by a bill of foreclosure filed by mortgagee within that time - 341 by mortgagee proposing to purchase the equity of redemp- tion3 or acknowledging himself by letter to be only mort- gagee ,",1 'i*^—^*^ where mortgagee acknowledges by parol that the estate is subject to be redeemed - - - - - . - 342 343 But a parol acknowledgment that the right originated^ m a mortgage is not enough, nor where the acknowledg- ment is proved by only a single witness - - - 344 where mortgagee, in answer to a bill for redemption, submits to be redeemed - - - - ", ". ~, ,j where it was originaUy agreed that the redemption should continue open beyond the usual period - - - - 349 In Welsh mortgages, and other similar securities, the equity of redemption barred, if mortgagee has been in possession for twenty years since his demand was satisfied by percep- tion of the rents ; or il mortgagor, after the mortgage was made, covenanted to pay the debt at a specified time, and twenty years have since elapsed - - - - - 350 EVIDENCE. See Parol Evidence. Presumptive Evidence. Secondary Evidence. FXECUTION. Deeds andwUls presumed to have been properly executed, 34—35, 260 — 261 Deed executing a power presumed to have been properly exe- ^^ cuted, semble - - - " " " " " " Execution of lease for a year bearmg the same date as the re- lease, presumed to have preceded the execution of the re- Execution of lease for a year bearing date the day after the release presumed to have preceded the execution of the ^e-^^^ lease, semble -----""" FXFCUTOR Executor' or administrator making an erroneous distribution not answerable for any loss which accrues to the next ot ^^^ kin or creditors, semble ------- 464 INDEX. EXECVTOR— {continued.) .. . ,. ^^^^ Certainly not, if the next of kin or creditors know ot the dis- tribution at the time, and lie by - - - *24, 425, 426 Executor assuming to determine doubtful passages in his tes- tator's will, and distributing the estate accordingly, answer- able to those who are prejudiced _ - - - 427 — 428 Contra, if the parties prejudiced are aware of the ambiguity of the will, and acquiesce in the distribution for a great length of time, semble - - - - - - ib. Liability of executor paying a legacy to an infant to pay it over again continues so long as it is clear that a release has not been executed - - - - -^ 428—429 Executor instrumental in placing part of testator s estate m the hands of a co-executor, not liable to make good a loss occasioned by the co-executor's misconduct, if the parties interested acquiesced in the arrangement, and have dealt solely with the latter as acting executor - - - 429, n. See Residuary Personal Estate. EXONERATION. , , , - .v Where wife's estate is mortgaged, and husband receives the money, his assets applicable in exoneration of the estate - 45 Co7itrd, if the loan was for the wife's exclusive benefit, or to discharge her debts dum sola, or the mortgage was made pursuant to an agreement before marriage - 45—46 Tenant for life or tenant in tail after possibility paying off an encumbrance, presumed not to exonerate the estate - 47, 48 It is immaterial that the remainderman is a relation - 50 This presumption rebutted, by an assignment being made of the encumbrance con- necting it with the inheritance - - - - - 48 by an apparent intention in tlie party (the estate being set- tled in remainder on a relation) to keep it in the family ib. Tenant in tail paying off an encumbrance, presumed to exone- rate the estate 47—48 That presumption rebutted, by the encumbrance being assigned to a trustee, in trust for the party, his executors, &c. - - - 50 where steps have been taken to obtain such an assign- ment ib. where the party mistaking the nature of his interest, supposes himself to be seised in fee simple - - 51 where the encumbrance is one only of several encum- brances, the amount of which together nearly equals the value of the estate ------ ib. FACULTY. Grants of faculties presumed, where _ - - - 293 — 296 See Pews. FEE FARM RENTS. See Quit Rents. FINE. Fines not presumed in support of long possession 6, n, 193, 194 FIRE. Proof of a fire in a place where lost deeds are supposed to have been kept corroborative testimony of their having existed ---------- 198 FISHERY. Owner of a several fishery is prima facie owner oi the soil - 31 INDEX. 4Gr, FORFEITURE. Page Right of resumption for a forfeiture presumed to be remitted, if not acted upon within a reasonable time after the forfeit- ure is known -------- 401, 402 FRAUD. Fraud, an answer to alleged releases of demands in equity 1 6, 370 prevents the presumptive bar from time to an equity of redemption ------- 338 — 339 not presumed --------25 may be inferred from circumstances - - - - 97 FRAUDULENT PURCHASES. Purchase obtained by taking undue advantage of vendor's embarrassments, or by means of a subsisting influence over him, not impeachable after twenty years, provided the ven- dor was aware of the unfairness of the transaction at the time, and has since been free from the purchaser's con- trol _-- 384.-385 Contra, where the vendor was ignorant of the fraud, or has been under the purchaser's influence ever since ; •when twenty years are allowed to the vendor from the time of discovering the fraud or of the emancipa- tion - - - - - - -- - 386 Fraudulent purchase from an executor not set aside after twenty years, though the parties interested are only enti- tled in reversion ------- 387 — 388 GIFT. Gift of property presumed to have been accepted - - - 32 GRANT. Deeds of grant presumed in support of long enjoyment - 283 — 315 presumed even against the crown 6, n., 193, 302, 303 HEIRS. Heirs, though generally a word of limitation where the devise is to a man for life remainder to the heirs of his body, may be shown to have been used as a word of purchase - - 41 HEIRSHIP. Long enjoyment by a collateral or remote heir, presumptive evidence of there not being a nearer heir in existence - 276—277 HIGHWAY. Soil of highway over a manor waste belongs to the lord ; soil of a highway between inclosed lands to the owners on either side ----------31 HUSBAND AND WIFE. Where wife has a separate estate, and suffers her husband to receive the income, she can only claim from his executor the amount of the year's income previous to his death - 368, n. See Pin-money. Where a fine is levied of wife's land, and husband alone de- clares the uses, assent of the wife to such declaration pre- sumed, if she neglect for long time after his death to signify her disagreement -------- '*39 Where wife's separate estate is misapplied, and she does not complain for long time though in a capacity to do so, her assent to the misapplication presumed - - - - "^ See ExoNEUATioN. 2 11 466 INDEX. IGNORANCE. P''&*^ Ignorance, a good answer to rights of light or ot common claimed on the ground of long enjoyment - - - 15, 300— ® 301, 306 sometimes in equity an answer to averred releases of rights 16,386,394 IMMORALITY. Immoral acts not presumed : the immorality of any particular act must be proved --------26 IMPRISONMENT. Imprisonment, an answer to presumptions from lapse ot time ^* INCLOSURE. Assent of lord and commoners to the inclosure of a common presumed after long acquiescence . - - 267, 439 INCORPOREAL HEREDITAMENTS. Grants of incorporeal hereditaments presumed from long en- joyment -------5, 283 — 315 The limits of the right determined by the enjoyment - 8—9 So, although the original grant be extant, if the right granted is not precisely defined ------ 9 INFANCY. Infancy, an answer to presumptions from lapse of time 14, 314, 332 INSANITY. Insanity presumed to continue until proof of recovery - - 18 Effect of this presumpti:on in protecting the rights of insane persons against imposition - - - - - -19 See Lunacy. INTERLINEATION. Interlineations in deeds presumed to have preceded their exe- cution __-------- 39 JOINT PURCHASES. Where an estate paid for by two or more persons in equal shares is conveyed to them jointly, the jus accrescendi obtains both at law and in equity ------ 73 Right of survivorship not destroyed by a subsequent conveyance to a trustee - - " . " . " - 74 nor by a subsequent expenditure in repairs or improve- ments by one of the parties : in this case however the representative of that person has a lien on the estate to the amount of the expenditure, semble - - - - 76 Same rule holds, where two or more enter into an agreement for a purchase, and make equal deposits - - - - 74 Though the deposits be in unequal shares, the right by survivorship will obtain, semble - - - - 74 — 75. Where an estate paid for by two or more in unequal propor- tions is conveyed to -them as joint tenants, they take inte- rests in equity corresponding with their respective advances 76 So, where an estate is paid for by two or more in unequal shares, and the conveyance is made to only one of them, or to a trustee 53, 37, n. If the trustee be a child of one of the parties, the child is not entitled to his father's share as an advancement, though no trust be declared - - - - 57, n. An estate conveyed in joint tenancy to partners in trade does not survive ---------75 INDEX. 467 JOINT PURCHASES— (cow5i" MORTGAGE. See Equity of Redemption. ''%^o?tg^gldfbr^^^^^^^^^ '>een paid off at the time uSdintheLndition, where the --^^gag^r h^^^^^^^^^^ in his custody, and there is no evidence to the contrary 223, 2b5 Mortgage debt^p'resumed to have been satis^ed, where interest has not been paid for twenty years - - - - 6o2-3oi The presumption of payment rebutted, where circumstances show the improbability ot th debt behig discharged - " " ' ...„ '' where the estate, when mortgaged, was a diy jfcver- whtre'thf debt" has'been" acknowledged 'within the 3.i7 ib. 358 twenty years - - - " " MORTMAIN. See Corporation. NEGLECT. Sec Laches. '''''Srrt''occTipancy enough to support or defend an ejectnieut ^^ against strangers - - " " " 4ro INDEX, OFFICE. Page Presumptions in favour of title from lapse of time rebutted by supposed grantor being entitled only in virtue of an office - 15 OWNERSHIP. See Land. Possession. PARENT AND CHILD. Who within the description of persons loco parentis - 127, n. Son induced by his father to give up his interest in a settlement loses his right of complaint by long delay, where - 441, 442 PAROL EVIDENCE. Parol evidence admissible to rebut the prima facie satisfaction of covenants for family provisions « - _ - 89,101 to rebut, and when opposed to sup- port the presinnptive satisfaction of a debt by a legacy - 113 Similiter, the presumptive satisfaction of portions by legacies or second portions -------- 122 Parol evidence admissible to show that double legacies were intended, when the presumption is contrary - - - 150 Contra, to show that a single legacy ordy was intended, when the presumption is that testator meant to give two distinct legacies __----, lb. to rebut the p?~esumptive exclusion of executors from the residuary estate - _ - 181 — 184 Contra, to repel the constructive exclusion of the executors by necessary implication ------ 183 on the part of the next of kin to meet similar evidence by the executor, and to fortify the pre- sinnptive exclusion of the executor - - - - - 185 Former existence and contents of deeds may be proved by parol testimony, particularly in the case of a wilful destruc- tion -_-_____-_ 198 Parol acknowledgment of a demand rebuts the presumption of satisfaction --__--_- 358 — 365 Mortgagee's parol admission that the estate is liable to re- demption saves the mortgagor's equity - _ _ _ 342 PARSON. Presumption in favour of title from lapse of time rebutted where the supposed grantor held oidy as the incumbent of a living ----___-_- 15 PAYMENT. Payment of pecuniary demands not within the statute of limi- tations presumed from twenty years' non-claim - 5, 376 — 377 A less period than twenty years affords the like presumption if the hardship is great, and the demandant's delay without excuse -----__-__ 377 Where land conveyed to trustees for payment of debts has been long in the remainderman's possession, payment of the debts will be presumed -------- 377 Payment of demands presumed from circumstances alone, ex- clusive of time _____--_ 378 The presumption from twenty years' non-claim rebutted, where fraud has been used, or the demand acknow- ledged within that time - - - - 17, 370 where the party has been too poor to pay, xed (jvere, 366, 359 See Annuities. Bonds. Demands. Debts. Decrees. Mortgage Debts. Por- tions. Statutes. Warrants of At- torney. INDEX. *'l PEDIGREE. , ^ , . -ui ^^^"^ In matters of nctliffrce family memorials, ike, admissible as evidence - - -269-270 Declarations of deceased relatives, or of a person who has mar- ried into the family, also evidence, miless made post hitvi motam ■; " -270—271 But declarations of deceased relatives in contemplation only of future controversy, though suspicious, arc not rejected if the relator had no interest to serve - - 272 Hearsay of acquaintance, servants, &c., not evidence, nor the tradition of the neighbourhood - 27 1 Long enjoyment by a collateral or remote heir presumptive proof of his title - - - ," .".^V. Zan What testimony competent to prove a death without issue - ^w See Death. Marriage. PERFORMANCE. . , , an H'i Covenants for famUy provisions performed, when - - ^"— »f Trust to purchase land presumed to be performed, where lOi— lu^ PEWS Disposal of the pews in a parish church belongs to the ordi- ^^^ "^Except where the pew is in an aisle which was built by the lord of the manor, or by the owner of a messuage within the parish, and the lord or owner of the house has always occupied such pew - - - - J"- "• Long possession of a pew by a non-parishioner no^evidence ot ^^^ Long possession of a pew as appurtenant to a messuage raises the presumption of a faculty, semhle - - - " ^^ ' Z.^ Contra, where the origin of the right appears - 295-296 Long possession by a householder of a pew taken under a dis- tribution of the pews by the rector and churchwardens after the rebuUding of the church, presumptive evidence that the distribution was made under proper authority - - - ^i*" **^^Wh^JJ^hTisband and wife live together, and he receives or re- tains her pin-money, wife can only claim one year s arrears ^^^ cZtrl, where the parties have lived separate, or the wife has been of unsound mind ------ at his death Com hi ^^™imfs' charged on land, which have been unclaimed for twenty vears, presumed to have been paid or released - 369 This i)resumption does not arise, , , . , „^q if the right has been meantime acknowledged - - 369 370 ib. where the party has been ignorant of his right - - where fraud has been used to prevent the ^assertion of Where apparent or person in loco jiarew/w under a particular obXatiSn to pro^^de a child with a P-tion, gives a legacy to such child, the legacy, if equal to the portion, is a W^^-_^^^ sumptive satisfaction oi it " , ." ^, "v,:i,i v,v n serond Same rule applies to a provision made for the child by a second settlement, or to a portion on marriage - - Legacy, or other provision less than the origma^l Portion,^a satisfaction pro tanto .----■" 116 117 . 472 INDEX. VORTWNS—icoiitinited.) Page The presumption of satisfaction obtains, though the child be illegitimate, if he is acknowledged to be a child - - - - - - - - 116, n. though the legacy or second portion is not payable at so early a period as the original portion - - - - 1 1 7 where the bequest is of a general or particular residue - 118 though from slight peculiarities in the mode of gift the tes- tator's meaning is obscure, and the bequest admits of a construction favourable to the idea that it was intended as a bounty 118 — 11& though the father increases his fortune before the time of giving the legacy or providing the second portion - - 120 The presumption rebutted, where the legacy or second portion is given on a con- tingency, and the original portion is vested abso- lutely; and vice versa _____ 120 where the two provisions are diversi generis - 121 where the subsequent gift does not in fact move from the parent, or is intended as an additional bounty, or is made for a distinct specific purpose - - 122 Parol evidence admissible to rebut the presumption, or to fortify it when impugned _ - - _ _ 122, 123 Settlements providing portions sometimes contain a declaration that advances to the children by the father shall wholly or in part discharge the portions. In such cases, a gift of land not within the meaning of a proviso which only mentions pecuniary advancements _ - _ 123 a gift of a dry reversion not within the import of the ex- pression " real estate" ______ 123 land devised to daughters in tail, with remainder over to a stranger, so as to exclude the implication of cross re- mainders, no satisfaction of portions given to them with benefit of survivorship, though a proviso directs that such portions should be satisfied by a gift or descent to the daughters of an estate of inheritance _ _ _ 124 a devise in tail within the meaning of " a gift of lands of inheritance ; " so is an advancement within the mean- ing of " a portion on marriage or provision otherwise made" ----.___ 124 — 125 a bequest of a residuary estate within the import of " a gilt of money or land "_--___ 125 a gift of East India annuities, within the meaning of a gift of " money " _______ \2Q a provision by will, within the meaning of an advance- ment in the parent's life-time _____ 125 Contra, a distributive share under an intestacy - 126 Where a proviso of this kind allows the parent to declare that an advancement to a child shall satisfy that child's portion, the father, on making an advancement may declare himself to be the purchaser of the portion satisfied, and that it shall remain a charge on the estate for his benefit _ - _ 126 See Ademption. POSSESSION. Possession the criterion of title to personal chattels - 27, 28 Ships, heir-looms, and quasi heir-looms, exceptions to this rule 28, notes («) and (b). INDEX. 1T3 POSSESSION— (cowi/HweJ.) Page Possession not the criterion of title to real estate - - - 28 But possession is important in equity as evidence of title, and is a defence against equitable claimants, where a pvu-- chase has been made from a vendor who possessed no do- cuments of title, or who being a trustee was able to con- ceal the trust -------- ib. Mere possession also at law efficacious to support or defend ejectments against strangers - - - - - - 29 And where the question respects merely the interest which possession implies, the presumption is in favour of a seisin in fee ---------- il>- Possession for twenty years not a bar except as to cases di- rectly or constructively withhi the statute of limitations - U Possession for twenty years, where not a bar, prima facie evi- dence of title to land and of the deeds necessary to support it 6, 186—193, 283—315 A less period than twenty years, coupled with other circum- stances, may have the same effect - - - - - 12 Possession for twelve years of an enclosed parcel of a manor waste with the knowledge of the steward, presumptive evi- dence of a license from the lord ----- 439 Possession for twenty years ground for admitting secondary evidence of deeds -------- 196 The presumption of title from lapse of time is inapplicable to tithes and quit-rents, which have been retained merely 13, 286, 298 mines which have not been worked - - - 14, 401 The presumption of title from long possession does not arise, where the circumstances under which the possession began are known, and the recent enjoyment only has been wrongful - - - - 14, 188 — 189 where the supposed grantor was under disability at the time the possession began, or was only tenant for life, or held only in virtue of an office - 14—15 where the party claiming is an alien, or a body cor- porate - - - - - " --15 where the claim respects an incorporeal heredita- ment, and the exercise of the right has not been known to the opposite party,— has been contest- ed, — or is an encroachment on the rights of the public ------- 15 — 16 No length of possession by trustee bars his cestui que trust - 380 But possession for twenty years by a constructive trustee will deprive the opposite party from contesting the title - - 382 Possession for twenty years of a mortgaged estate, or of an estate otherwise pledged for re-payment of money, with- out acknowledgment of the equitable owner's title, a bar to the right of redemption ----- 329 331,350 Possession of an equitable estate, as of an equity of redemp- tion, for twenty years, a bar to adverse claimants - 381 — 382 Heir at law by taking possession and holding for twenty years concludes the title of devisee of an equitable estate - 413 — 414 Long possession by a collateral or remote heir, presumptive proof of the justice of his title - - - - -276 277 474. INDEX. POSSE^SIO^— (continued.) _ Page Long possession by a person who claims under a particular designation, presumptive evidence of his being the person he represents himself to be - - - - - - -278 See Advowsons. Commonable Rights. Land. Lights. Markets. Payment. Pews. Tithes. Tolls. Ways. Water. I>OVERTY. Poverty, no answer to the presumption of long neglected de- mands being released - - - - - - -17 except in the case of vendors of reversionary rights - ib. Poverty rebuts the allegation of satisfaction as to bond debts unclaimed for twenty years, semble ----- 366 POWER. Power presumed to be rightly executed - - - 35, 37 PRE-EMPTION. Right of pre-emption presumed to be waived, where not acted on within a reasonable time ----- 402 — 403 PRESENTATION. Grant of right of presentation to a chapel of ease presumed, where ---------- 266 PRIORITY OF EXECUTION OF DEEDS. See Execution. PRESUMPTION. The principle of presumption defined _----! Presumptions of law, their nature __------- ib. different sources of- - - - - - - 2, 18 may be rebutted, contrary to the ancient opinion - - ib. Presumption of fact, their nature -------- 1, 3 grounds on which they rest ----- 4 — 5 PRESUMPTIVE EVIDENCE. Nature of presumptive evidence ------ 3 PUBLIC. Public rights determinable by non-user _ . _ _ 326 though not perhaps by non-user for merely twenty years 15, 314, 327 PURCHASE AGREEMENT. See Agreement. PURCHASE MONEY. Purchase money for an estate presumed to be satisfied, or the lien discharged, after non-claim for twenty years, semble, 375—376 Liability of purchaser to see to the application of purchase money determined, if the parties interested do not com- plain within twenty years _ _ _ _ - 432, 433 PURCHASES OF REVERSIONS. Purchase of a reversionary or contingent interest for inade- quate consideration, unimpeachable if vendor acquiesces in the sale for long time without complaint - - - - 396 Contra, where vendor has ever since the sale been in em- barrassed circumstances, or only lately discovered that the price was inadequate ----- 397 — 399 PURCHASES BY TRUSTEES. Purchase by trustee, when made with the knowledge of the beneficial owner, cannot be set aside after long acquies- cence __- 390—393 INDEX. 475 PURCHASES BY TRVSTEES—dconiinued.) Page Parties entitled in remainder^ or having contingent interests, as much afFected by time as if in possession, xcmble - 390 — 391 Unless the contingency consists in the description of the person who is to take - - - _ _ 391 — 392 The inference in favour of the purchaser from lapse of time does not arise, where the beneficial owner was in pecuniary difficulties at the time of sale, and has so continued, sed qucre 393—394 or was under a legal disability - - - _ _ 394 or was ignorant that the trustee was the real pur- chaser -------- 394 — 395 where the parties interested are a body of creditors or a religious sect - --_.__ 395 QUIT RENTS. Long retention does not raise the presumption of a release of quit-rents - - - -- - - -13, 298 No objection to a title that old fee-farm rents reserved to the crown, but not demanded for above sixty years, cannot be shown to have been released - - _ - . 298 — 299 RECITALS. Recitals in old deeds of more ancient conveyances, secondary evidence of such conveyances - - - _ 197,203 — ^205 Recitals in court records of old deeds, secondary evidence of those deeds _-----___ 197 Recital of a lease for a year in a deed of release, how far evi- dence of the lease ------- 201 — 203 Recitals in old deeds of matters in pais or pedigree, presinnp- tive evidence if the enjoyment has been conformable - 269 RECOGNISANCES. Recognisances dormant for twenty years presumed to have been satisfied ________ 360 RE-CONVEYANCE. See Deeds. RECORDS. Records secondary evidence of the deeds they recite - - 197 presumed, where - - - - - - 193, 199 RECOVERY. Deeds making a tenant to the precipe, and declaring the uses of a recovery, presumptive evidence of the recovery - - 201 Recovery of twenty years' standing, presumptive evidence of the deeds making a tenant to the joreczpe - - - 199 — 200 Cont?'a, if inefficient deeds for such purpose are in existence 200 Recoveries not presumed from mere long possession 6, n. 193 — 194 Secondary evidence of a recovery admitted, where - - 199 REDEMPTION. See Equity of Redemption. REGISTRATION. Want of registration not sufficient to repel the presumption of deeds affecting lands in the Register Counties, sernhlc, 6, n. Registry conclusive proof of title as to ships - 28, n. («), 54 RELATIONS. The word " relations," though usually interpreted to mean next of kin, may be shown from the context to have been used by a testator in a larger or more confined sense - 41 RELEASE. Rights and equities not acted on with reasonable diligence, presumed to be released ----- 5, 7 — 8, 384 470 INDEX. RELEASE— (continued.) Page Long delay in urging a demand, with other circumstances, may afford the presumption of a release, though the demand is admitted not to have been paid - _ _ 354^ 4,22 — 423 The presumption of a release rebutted, where the claimant has been imposed upon 16, 386, 394, 399 where the party is the vendor of a reversion, and has ever since the sale been in embarrassed circumstances, semble 17, 397—399 But the presumption is not in general rebutted by proof of poverty 17, 384—385 See Laches, Payment. REMAINDERS. See Cross Remainders. RENEWAL. See Covenants for Renewal. RENT. A receipt for rent lately due, presumptive evidence of payment of all former arrears - _ _ - _ -378 — 379 RENT-CHARGE. Grant or conveyance of a rent-charge presumed after twenty years' enjoyment -------- 296 Release of a rent-charge presumed after twenty years' non- claim --------- 297— 'J98 REPUBLICATION. Republication of a will presumable after long enjoyment, semble --__----__ 264 RESERVATION. Reservation of rights presumed, where ----- 315 RESIDUARY PERSONAL ESTATE. Residuary personal estate belongs at law to the executors - 152 In equity they are precluded from taking beneficially, when appointed " executors in trust " though no trust be declared -------. 153 — 154 where the personal estate generally is given to them as exe- cutors in trust for specified purposes _ - - 154^ 1(52 where the personal estate is given to the '' executors here- inafter named," or to persons, who being appointed exe- cutors in a subsequent part of the will, are noticed indis- criminately in declaring the trusts of the bequests as exe- cutors and trustees - - - - - - -155 Quere, where they are not thus indiscriminately noticed 154—155 where testator indicates his belief that he imposes a mere office, and intreats the executors to accept it - 155—156 a fbrtio7-i, where legacies are given to the executors ex- pressly for their trouble - - - - - -156 where there is a clause for indemnity of the executors against losses, and for the reimbursement of their expenses - 156 — 157 Unless such directions apply only to a particular fund given to them expressly in trust for others - - 161 where they are appointed to act within a certain district, and for the performance of a single duty - - _ 157 where they are not appointed from motives of personal re- gard, but on account of their situation in life, or occupa- tion in business ----___ 157 — j^g where the residue is specifically given away to others, though a lapse afterwards takes place - - - - itj3 INDEX. 477 RESIDUARY PERSONAL ESTATE -(continued.) Page where it is given to trustees for purposes which are contrary to law, or too general and undefined to be carried into execution ___------ 164 where testator declares his intention to dispose of the re- sidue by codicil, or directs it to be disposed of accorduig to instructions he should afterwards prepare - - - 165 where the will not containing a residuary bequest, testator begins or gives directions for a codicil to supply the de- fect, or orders a new will to be made with a residuary bequest _________ ib. where an inchoate purpose to appoint a residuary legatee appears, or where the will abruptly terminates after a dis- position of certain parts of testator's estate - 163 — 166 where a residuary bequest is become illegible, or has been erased or cancelled by testator - - - - - 167 where testator directs his personal estate " to go ac- cording to law " _------- 168 where equal pecuniary legacies are given to the executors, whether such legacies be immediate or reversionary, and given by the instnunent making the appointment, or by one subsequent, and although additional legacies are given in another part of the will to some of them - - 176 where distinct specific legacies of equal worth are given to the executors, or a specific legacy between them - - 177 where legacies are given to one or more of several executors expressly for his or their care and pains - - - 178 where it is obvious that the appointment of one or more of the executors is merely to the office - - - - 179 where a legacy is given to a single executor, whether such legacy be pecuniary or spi^cific, a sum in gross or an an- nuity, immediate or reversionary, given directly to the ex- ecutor, or to a trustee for him, and whether by the instru- ment containing the appointment, or by one subsequent 168 —171 Quere, whether the same rule holds where the executor is appointed by an instrument subsequent to that giving the legacy - - - - - - -170 where the residue is given to the executor for life - - 171 The construction adverse to the executor's legal right not re- butted, by conjectural indications of an opposite intention - 158—159 by the gift of legacies to the next of kin - - - - 171 by proximity of relationship between testator and executor 172 by the fact of executor being an infant ; though very slight auxiliary circumstances in addition to the infancy would perhaps give him a beneficial interest - - - - 173 by the legacy to a single executor being given to him as one of a particular class of persons who are the objects of the testator's bounty, semhle - - - - - - 173 Exclusion of the executors when founded merely on a pre- sumption may be repelled by evidence of testator's parol de- clarations __-_---- 180 181 What declarations are effectual to this end - - 181 — 184 Contra, where the exclusion is by necessary implication - 183 478 INDEX. RESIDUARY PERSONAL ESTATE— (continued.) Page ParoJ evidence admissible on the part of next of kin in answer to similar evidence adduced by the executor, and to fortify the presumption of the executor's exclusion - - - 185 The legal right of the executors is not affected, where they are made trustees of a particular fund only - 160 although there are provisions for reimbursement, &c., or legacies are given for recompense of their trouble in re- ference to such trust - - - - - - -161 where the personal estate generally is bequeathed to them " in trust in the first place to pay, and charged with debts and legacies " ___---- 161 — 162 where the general personal estate is given to them for an indefinite purpose not capable of being carried into exe- cution by a court of equity, and it is not distinctly declared to be in trust - - - - - " . " ." ^^^ where the only circumstance contravening their title is the fact of a blank space being left between the last line of a will and the testator's signature, which might perhaps have been left to insert a residuary clause - - . 167 where the introduction to a will asserts the testator's inten- tion to make a general disposition of his property, and there is no residuary bequest - - - - - ib. where legacies are given to various persons, which at the date of the will would entirely have exhausted testator's estate and there is no gift of the residue, and testator afterwards increases his fortune - - - - - 168 where the residue is expressly bequeathed to them, though previously called trustees, or legacies are given to them for their trouble 163, 176, 179 where testator shows his apprehension, that notwithstand- ing the gift of legacies, they would take the residue bene- ficially 179 where, though legacies are given to the executors, testator declares it to be his intention not to give any thing to the next of kin, semble - - - - - - -172 where imequal legacies are given to the executors, or lega- cies to only some of them - - - - - -178 where distinct specific legacies are given to them, which are obviously of imequal value, or cannot be accurately esti- mated ..___. .--177 where legacies are given to two of three executors for per- forming a particular trust, and a legacy of equal amount is afterwards given to the third executor - - - - ISO where the bequest to a single executor is of a life-interest only in particular chattels, with remainder over - - 173 where the bequest to a single executor is an exception from a legacy giver) to a stranger ----- 173 — 174 where an annuity is bequeathed to a single executor charged on a fund given subject thereto to a stranger - 170, 174 where the legacy to a single executrix (being a married woman) is to her separate use - - - - - 175 where testator makes his wife executrix, and bequeaths to her what was originally pait of her own fortune - - ib- Executor or administrator cannot set up a title to the residuary estate on the sole groiuid of long retention - _ - .122 INDEX. 479 RESIDUARY PERSONAL ESTATE— (continued.) Page But the delay of next of kin, with other circumstances proving their quiescence to be deliberate, may afford the presumption of a release, semble - - - 422 — 423 RESULTING TRUST. Where purchaser takes the conveyance in the name of a stranger, a trust results ----___ 52 Where creditor takes a security in the name of a stranger, a trust results ------___ 53 Purchase by two persons in the name of one of them belongs beneficially to both parties according to their respective advances ---__. ...jj^ Trusts do not result, where they would contravene the policy of an act of par- liament -----_«_ 54 where an intention appears to the contrary - 54—55 where nominee is a wife or child unprovided for - - 56 See Advancement. The resulting trust not prevented as to real estate by evi- dence of intention to make the nominee a trustee for a third person -_----____ ib. This question as to personal estate is unsettled - - ib. RESUMPTION. Right of resumption for a forfeiture presumed to be remitted, if not acted on within reasonable time - _ _ 401 — 402 REVERSION. See Puuchases of Reversions. ROAD. See Dedication. Way. ROBBERY. Proof of robbery in a place where lost deeds are supposed to have been kept, corroborative testimony of their having ex- isted _-_,_»-___ 198 SACRAMENT. Sacrament presumed to have been taken by an alderman pre- viously to his election _-_--- 26 — 27 SATISFACTION. Satisfaction of demands presumed from long delay - - 5, 8 See Annuities. Bonds. Covenants. Demands. Debts. Decrees. Lega- cies. Lien. Mortgage Debts. Por- tions. Statutes. Warrants of At- torney. SEALING. Sealing of deeds presumed -------36 SECONDARY EVIDENCE. To admit secondary evidence of deeds, a probable ground must be shown that such deeds really existed, and also proof that they cannot be found - - - - ■? - 196, 1.0!> Long possession a ground for admitting secondary evidence of deeds - - - - - - - - - -196 What sufficient as secondary evidence of deeds - - 196 — 197 Circumstances corroborative of such evidence - - - 19S ,When the former existence of a deed is sufficiently esta- blished by secondary evidence, an unexecuted engrossment of it will not destroy the force of the evidence, - 197 — 19S Recitals how far to be depended on as evidence - - 201 — 205 480 INDEX. SECONDARY EVIDENCE— {continued) Page Deeds twenty years old making a tenant to the precipe, pre- sumptive evidence of a recovery _ - - - - 201 Recovery of twenty years' standing, presumptive proof of deeds making a tenant to the jarecipe - - -199 — 200 SECURITIES. Securities for money taken in the name of a third person belong beneficially to the real creditor _ _ _ - - 53 SETTLEMENT. Child's right in equity to a settlement in remainder in part of a feme covert's estate which is ordered to be settled upon her, lost where the settlement made contains no provision for the child, and he does not complain after coming of age 41 1 Right in remainder under a settlement directed to be made by a will lost where the party neglects to require such set- tlement to be made, and persons previously entitled (had the settlement been made) might have suffered a recovery 412 — 413 Destruction of a settlement, and the wrongful disposition of the property, not relievable against, unless complaint made within a reasonable time ----- 439, 440 — 442 See Parent and Child. SHIPS. Registry of a ship conclusive proof of title - - 28, note («). Ship being bought in the name of a stranger, no trust results - 54 Ship in the order and disposition of a bankrupt, though it be- longs to others, passes to his assignees - - 54 n. (Z«). SIGNING. Signing of deeds presumed, where - - - - - 35 SOIL. Soil of a manor waste prima facie belongs to the lord - 30, 31 Soil of a high-road prima facie belongs to the owners of land on each side to the central line of the way - - - - 31 SOLEMNITIES. Solemnities necessary to the validity of deeds, and to the esta- blishing of rights presumed, where - 6, 7, 34 — 37, 260 — 267 SPECIFIC PERFORMANCE. See Agreements for Purchase. Covenants for Renewal. STAMP DUTY. Ad valorem duty presumed to have been paid, and a proper stamp affixed on a lost deed ___--- 40 STATUTE OF LIMITATIONS. This statute followed as to the length of time necessary to raise the presumption of deeds - - - - - -11 STATUTES MERCHANT AND STAPLE. Statutes presumed to have been paid if not enforced nor the debt acknowledged within twenty years, semble ^ - - 360 Cognisee's neglect not excused, though cognisor's land had descended to an infant, or from his being under per- sonal obligations to cognisor - - - - - ib. STEWARDS' BOOKS. Books of steward of a manor secondary evidence of siu-ren- ders, &c., minuted in them - - - - - -197 STRIPS OF WASTE LAND. See Land. SURRENDER. Surrender of copyholds, what secondary evidence of - - ib. Surrender to the use of a will presumed after long enjoy- ment by the devisee ------- 208 INDEX. 181 SURRENDER— (c'o////«««/.) Page Surrender of ficeliokl to tenant in tail in remainder pre- sumed in order to support a recovery, where - 189 — 191, 193 Surrenders of satisfied terms assigned to trustees to attend the inheritance, cases on the presumption of stated and dis- cussed --------- 226-258 Surrenders of satisfied terms, which have not been assigned to attend, presumed, where ----- 258 — 259 TENANT IN COMMON. See Deed. Ouster. TENANT FOR LIFE. Supposed grantor being only tenant for life, an answer to pre- sumptions from lapse of time - - - - - - 11 See Exoneration. TENANT TO THE PRECIPE. Deeds making a tenant to the precipe presumed, where - 199—200 TENANT IN TAIL. See Exoneration. TERMS. See Surrender. THIRTY NINE ARTICLES. Thirty nine articles presumed to have been read by a bene- ficed clergyman on taking possession of his benefice - 27, 265 TIMBER. - Reservation of right to cut and carry away timber presumed, where --- 316 Efficacy of time as evidence in support of titles, 5, 6, 187 — 225, 25:} —316, 329—351, 380—399, 400— 450 Efficacy of time as evidence of the release, payment, or extin- guishment of demands - - -5,7,352—378,422—433 Efficacy of time as corroborative of secondary evidence - 8, 196 The length of time necessary for these diffijrent purposes varies according to circumstances, but as a general rule twenty years are sufficient ------- 10 12 TITHES. . ^ Presumptive title to tithes does not arise from long non-pay- ment r •" 1 •" •^^' ^^^ Long adverse perception or receipt of a portion of tithes issuing from the lands of a stranger, presumptive evidence of title under an ancient severance - - - - _ - 284 285 Long possession by a land-owner of the tithes of his estate, with proof of their having been from time to time a specific subject of conveyance, devise, &c., presumptive evidence of title " -287—288 Presumptive evidence being given of a severance, loss of inter- mediate conveyances immaterial - - - - - 288 What length of time will create the presumption of a seve- verance, cpiere - - - - ",".," " Z Where there is clear evidence of a portion having been severed before the restraining statutes, or of a discharge by a lay rector, proof that the owner of the land out of which it is- sues holds by a separate title, not necessary - - 289—290 Long enjoyment of particular tithes by a vicar, where tne en- dowment is lost, presumptive proof that such tithes were contained in the endowment - - ".",",' ^'^ Vicar's long enjoyment of tithes not mentioned m the endow- ment, presumptive evidence that those tithes were armexcd to the vicarage by way of augmentation - - - - JO- 2 I 48^2 INDEX. TITHES— (confinued.) Page Where u rector has long enjoyed tithes hicluded in the endow- ment, a presumption arises that a subsequent agreement was made between the rector and vicar as to the division of the tithes - - - -- - - - - -291 TOLLS. Grants of tolls presumed from the crown, where - - - 303 TRUST. Trust to purchase presumed to be performed, where - 101 — 102 See Resulting Trust. TRUSTEE. If trustee, in committing a breach of trust, acts with the con- currence of th.e cestuis que trust, or they acquiesce after- wards, and a loss ensues, the trustee is not liable - - 429 Contra, if the ctsfids que trust are a body of creditors - 430 WAIVER. Waiver of rights and equities presumed, where - 382 — 450 WARRANTS OF ATTORNEY. Warrants of attorney not acted on for twenty years presumed to be satisfied --------- 359 WATER. Right to a run or spring of water presumed after twenty years' enjoyment -- - -- - - - - 312 Twenty years' occupation of the water of a river, presumptive proof of title 312—313 Limits oi" the presumed right determined by the mode of en- joyment "- - 9,313—314 The presumption does not arise, where the parties prejudiced were under disabilities when the occupation began, or had only a particular interest - - - - - - - -314 where the occupation originated in a lease or agree- ment -----___- ib. Avhere it is in derogation of the public rights - - ib. The presumptive right lost by non-user - - - 315 WA^'. Kight of way presumed from twenty years' enjoyment - 309 Mode of enjoyment determines the limits of the right - 9,310 Whether a way of necessity is limited to the uses made of the premises when the way was first used, que?^e - - - 311 The presumption not rebutted by evidence, that the usage began under a mistake - - 309 — 310 that the way did not exist before the twenty years began 310 that the land over which the way runs has been in the hands of a succession of tenants - - _ - 310 The presumption does not arise, where the usage has been interrupted or contested - 309 where it is accounted for on the ground of leave or otherwise ---_-___ ib. Rights of way lost by long non-user - - - - 311 See Dedication. WIFE. See Husband and Wife. WILL. Will presumed to be correctly executed - - - - 39 INDEX. 483 WILL— (continued.) p Will appointing an executor presumed in support of an old as- ^^^ signment of a term, made by a person described as executor ot a former owner, stmble _ ^08 Will thirty years old proves itself - _ . - 261 u wixS^P-.wL'^^^^r ^^ ^^^^ presumed after long enjoyment - 264 'ViiMJUWS. See Lights. WORDS. Technical words presumed to be used in a technical sense - 40 ^i,rT.r^^^^^*^^' ^^^^^ an opposite intention appears - - - 41 VVKONG. Wrong never presumed 25 26 Wrong may be inferred from circumstances - - - _ ' 37 THE END. C. Baldwin, Printer, New Bridge-street, London. SCHOOL OF LAW LIBRARY UNIVERSITY OF C/J.JFORNIA LOS AKGELSS UC SOUTHERN REGIONAL LIBRARY FACILITY