Faculties.

Fences.

Act of parliament.

which has, in different instances, been more or less clearly defined by legal authorities. (1)

With respect to the presumption of incorporeal rights from user not included within the statute, many presumptions may continue to be formed by juries, and will, it is conceived, be recommended to them in deference to legal authority, and in consonance with the justice of a case, though contrary to their opinion of the real facts; as, when faculties are presumed for regulating the right to pews or vaults. (2) The like may be said of copyhold customs, (3) and the liability to repair fences. (4) Various other instances might be added, resting as well upon modern as immemorial title. (5)

It has been said, that an act of parliament may be pre

sumed. (1) Thus, where a road obstructing a navigable channel had existed for so long a time, that the state of the channel could not be proved, it was considered that an act of parliament, or a writ of ad quod damnum, might be presumed, which Writ of ad had extinguished the public right in the channel. (2)

quod damnum.

the crown.

Grants from the Crown may be presumed; but where such Grants from a presumption has been made, it has been under particular circumstances, and, after a much longer period of time than has been deemed sufficient for raising the presumption of a grant from private individuals. (4)

Conveyances between private individuals are often recom- Private conmended to juries, in more or less forcible terms, as presumable veyances. in favor of a party who has proved a right to the beneficial ownership of property, and whose possession has been consistent with the existence of such a conveyance as is to be presumed, especially if the possession cannot be accounted for, and would have been unlawful, except on the supposition of a conveyance; such presumptions are made to prevent justice being defeated by a mere formal objection to the party's title in a Court of Law. (4) But where the original possession of pro

(1) By Lord Mansfield, in Eldridge v. Knott, Cowp. 215, citing Lord Coke.

(2) Rex v. Montagu, 4 B. & C. 599. See Cowper, 215; 1 Eden, 296; 6 Ves. 215; 2 Ves. Jun. 583; 1 Jac. & W.63; Lopez v. Andrews, Hayes' Conv. 11 n. That a private act of parliament may be presumed, Skinner, 78; 12 Ves. 265. That the relinquishment of public rights is not to be presumed in the same manner as that of private rights, Vooght v. Winch, 2 B. & A. 662. 4 Burr. 2613; 7 East, 199.

(3) Roe v. Ireland, 11 East, 161, enfranchisement of a copyhold by the Crown, presumed after an enjoyment of more than a hundred

years.

Rex v. Brown, cited by Lord Mansfield, Cowp. 110; 1 J. & W. 159. Mayor of Kingston v. Horner, Cowp. 102. Lord Mans

field, in Eldridge v. Knott, Cowp.

115.

(4) Per Tindal, Ch. J., in Doe v. Cooke, 6 Bing. 180. See Matthews, on Presumptions, ch. xi. Reconveyances of Mortgages, 2 Sim. & Stu. 154. B. N. P. 10. Conveyances by trustee to cestui que trust, 8 T. R. 122; 1 J. & W. 620. The doctrine extends to constructive trusts, 12 Ves. 239, 251. Reconveyance to feoffer, Tenny v. Jones, 3 M. & S. 472. Conveyances from old to new trustees, 1 H. Bl. 446, 459. Mesne assignments of leaseholds, Earl v. Baxter, 2 Bl. 1228; 11 Ves. 350; Anon. 12 Vin. Ab. 223; Skinner, 77; per Le Blanc, 8 East, 266; per Lord Eldon, 1 Turn. 29. As to the point, whether fines or recoveries could not be presumed, without evidence directly pointing to them; per Bayley, J. and Lord

Conveyance from trustee. Outstanding

terms.

perty may be accounted for, and is consistent with the fact of there having been no conveyance, it seems proper to direct a jury to presume a conveyance or not, according to their actual belief on the subject. (1)

With regard to the presumptions of a conveyance from a trustee to a cestui que trust, and of the surrender of outstanding terms, which are often necessary in order to constitute a legal title in an action of ejectment, considerable differences of opinion have been expressed. As these questions are somewhat removed from ordinary comprehension, it may be expected, that, although they must be submitted to a jury, yet that, in point of fact, they will ordinarily be decided upon principles of law by the Judge. A surrender of an outstanding term will, in general, be presumed, where the trustees ought to convey to the beneficial owner, (2) or where a term is satisfied, and is set up by a mortgagor against a mortgagee. (3) But such a presumption will not be made, where it would have been a breach of trust in the trustees to have surrendered the term; (4) or, in general, where the surrender would have been against the interests of the owner of the inheritance, especially if the term has been recognised as subsisting at a late period. (5) The mere fact of a term having been satisfied does not afford sufficient ground, upon which a jury can presume it surrendered. (6)

Tenterden, Ch. J., in Doe v. Reed,
5 B. & A. 237. It has been doubt-
ed, whether deeds can be presumed
in register counties in opposition
to the want of registration, Doe v.
Hurt, 11 Price, 475. Surrender of
lease not presumed, Doe v. Tho-
mas, 9 B. & C. 288. Non-pay-
ment of tithe does not raise, as
against a lay impropriator, a pre-
sumption to go to the jury of a
grant of tithe to the landowner,
Bayley v. Drever, 1 A. & E. 449.
Presumption of disseverance of
tithes, Countess Dartmouth v. Ro-
berts, 16 East, 334, where Lord
Ellenborough quotes a dictum of
Lord Kenyon, that he would pre-

It has been considered, that when 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 have been done or omitted if the term existed in the hands of a trustee, a surrender may be presumed. (1)

The principal difference of opinion has existed in respect of the presumption of the surrender of terms, from the circumstance of their not being noticed in recent marriage contracts or other conveyances. It should seem that the Courts of Law had in some instances proceeded on an erroneous opinion as to the practice of noticing outstanding terms upon such occasions. But the Courts of Equity having expressed great dissatisfaction at the decisions of the Courts of Law as to this matter, the Courts of Law appear to have been desirous, in later cases, to assimilate their decisions to those of the Equity Courts. According to one of the most recent decisions upon the subject in the Court of King's Bench, Lord Tenterden observed, that the authorities which had been discussed had been much questioned; and, in answer to an inquiry made by him, whether a term, like that under consideration, had been usually noticed in a marriage settlement, having received an answer in the negative, he observed, "if that be so, there is no ground for presuming that this term, which was assigned to attend the inheritance, was ever surrendered." (2)

Where the ground for the presumption of a conveyance between private individuals is simply that of length of possession, it should seem that the Courts have imposed a restriction upon

(1) Per Lord Tenterden, 2 B. & A. 792. See further on this controverted subject, Doe v. Hilder, 2 B. & A. 782. Bartleet v. Downes, 3 B. & C. 616. Doe v. Plowman, 2 B. & Ad. 573. Townsend v. Champernown, 1 Y. & J. 538. Doe d. Hammond v. Cooke, 6 Bing. 174. Day. Williams, 2 Cr. & J. 460. Doe v. Putland, Sugd. V. & P. 8th ed. 440. Marq. Townsend v. Bp. of Norwich, ib. 443. Cholmondeley v. Clinton, ib. 444. As

pinal v. Kempson, ib. 446. Sugden's V. & P. 8th ed. 440 to 446. Matthews on Presumptions, 226 to 259.

(2) The subject is fully discussed, by Sir E. Sugden, in the last edition of his book on Vendors and Purchasers (9th ed. A. D. 1837). He concludes, that the profession are justified by the authorities in considering the law to stand as it did, before the decision in Doe v. Hilder.

Livery.

Licences.

Bye-law.

Presumptions

in treason.

the discretion of juries. It has been held, that possession of land for any period less than twenty years by a feoffee is not sufficient to found a presumption, that livery of seisin has accompanied the feoffment. (1)

Licences may be presumed after a shorter space of time than is ordinarily required for the presumption of actual conveyances. Thus where an inclosure had been made from a waste twelve or fourteen years, and had been seen by the steward of the lord from time to time, without objection being made, it was left to the jury to say, whether the inclosure was made by the lord's licence. (2)

Although there do not remain any traces of a bye-law in the corporation books, and although there cannot be any proof given of the loss of it, yet, upon evidence of constant usage, a jury may be directed to presume it's existence. Sixty years' usage has been considered evidence of a bye-law. (3)

It has sometimes been laid down, that a conspiracy to levy war against the King, when proved, amounts, in presumption of law, to a compassing of the King's death; but, on the other hand, there are still higher and better authorities, both ancient and modern, for considering, that a jury are not bound to make such a presumption, unless they are satisfied, that the conspiracy was of such a nature as in it's consequences to occasion probable danger to the King's life. (4)

(1) Doe d. Wilkins v. Marq. Cleveland, 9 B. & C. 871. As to the presumption of livery of seisin, Isack v. Clarke, Roll. Rep. 132, pl. 9. Biden v. Loveday, Vern. 196. Rees v. Lloyd, Wightw. 123. The period of twenty years has been adopted by the Courts, in various instances, for the purpose of raising presumptions, in analogy, probably, to the statute of James; but, in regard to the proof of written instruments, by their production from the proper custody, without further proof of execution, the period of thirty years

has been adopted, 11 East, 504; 4 B. & A. 376; 5 T. R. 359; 2 M. & S. 337; 2 B. & C. 814. Vide infra, part 2.

(2) Doe v. Wilson, 11 East, 56. Goodtitle v. Baldwin, 11 East, 488. Ditcham v. Bond, 3 Camp. 525.

(3) See Rex v. Head, 4 Burr. 2518. Rex v. Bird, 13 East, 368. Per Lord Mansfield, in Perkin v. Warden of the Co. of Cutlers, 21 MSS. Serg. Hill, p. 65; 2 Ves. 330; B. N. P. 211; 4 Co. 78; Cowp. 110.

(4) See the authorities collected in Phillipps's observations on Lord