English law. the strongest perish first (n). However this may be, in opening the door to this class of questions, the lawyers of Rome and France lost sight of the salutary maxim "Nimia subtilitas in jure reprobatur (o)." The English law has judged more wisely: for, notwithstanding some questionable dicta, the true conclusion from the authorities seems to be that it recognizes no artificial presumption in cases of this nature; but leaves the real or supposed superior strength of one of the persons perishing by a common calamity to its natural weight, i. e. as a circumstance proper to be taken into consideration by a jury or ecclesiastical judge, but which standing alone is insufficient to shift the burden of proof. When therefore a party on whom lies the onus of proving the survivorship of one individual over another has no other evidence than the assumption that, from age or sex, that individual must be taken to have struggled longer against death than his companion, he cannot succeed. But then on the other hand it is not correct to suppose that the law presumes both to have perished at the same moment—this would be establishing an artificial presumption against manifest probability. The practical consequence is however nearly the same, because if it cannot be shewn which died first (n) See Beck's Juris. p. 397, 7th Ed., where is related an incident furnished by a modern traveller, who, in giving an account of a caravan coming in want of water in a Nubian desert, says that "the youngest slaves bore the thirst better than the rest; and that while the grown-up boys all died, the children reached Egypt in safety." The same author adds, “as to habit and variety of constitution, all such that have a tendency to affections of the head and lungs, should be deemed the first victims, in case the causes of the question will be treated by the tribunal as a thing unascertainable, and that for all that appears to the contrary both individuals may have died at the same moment (q). contra spolia § 398. Another very important and rather favourite Maxim"Omnia maxim is, "Omnia præsumuntur contra spoliatorem (r)" præsumuntur —a maxim resting partly on natural equity, but much torem." strengthened by the artificial policy of law. One of the Instances of its leading cases on this subject is that of Armory v. Dela- application. mirie (s); where a person in humble station of life having found a jewel, took it to the shop of a goldsmith to (9) One of the best known cases on this subject is that of General Stanwix and his daughter, R. v. Dr. Hay, 1 W. Bl. 640. The celebrated Mr. Fearne composed two ingenious arguments, one in favour of each of the claimants. See his Works. There is, however, a prior case of Hitchcock v. Beardsley, West. Rep. t. Hardw. 445; and an old case of Broughton v. Randall, Cro. El. 503, where a father and son were hanged together in one cart, and the son was presumed to have survived in consequence of his appearing to struggle longer and some other circumstances. The cases of late years have become comparatively (r) 2 Ev. Poth. 336; 1 Stark. (s) 1 Stra. 505. See ad id. Mortimer v. Cradock, 7 Jur. 45. acts of parliament (o), may thus be presumed: as also will grants from the crown (p), letters patent (q), writs of ad quod damnum and inquisitions thereon (r), byelaws of corporations (s), fines and recoveries (t), feoffments (u), the enfranchisement of copyholds (x), endowment of vicarages (y), exemption from tithes (z), consent of ordinary to composition deeds (a), &c. So, likewise, the disseverance of tithes by the requisite parties previous to the restraining statutes (b), copyhold customs (c), admittance to (d), and surrender of, copyholds (e), surrender by tenant for life (ƒ), and lawful executorship (g), will be presumed from lapse of time. In one case it was held that induction might be pre (0) Skiun. 78; Lopez v. Andrews, 3 Man. & R. 329, n.; per Lord Mansfield in Eldridge v. Knott, Cowp. 215. See per Lord Denman in R. v. The Chapter of Exeter, 12 A. & E. 532. (p) Mayor of Hull v. Horner, Cowp. 102; Gibson v. Clark, 1 Jac. & W. 159; Read v. Brookman, 3 T. R. 158. (q) Read v. Brookman, 3 T. R. 158; Pickering v. Lord Stamford, 2 Ves. J., 583. (r) R. v. Montague, 4 B. & C. 598. (s) Case of Corporations, 4 Co. 78, a. (t) Read v. Brookman, 3 T. R. 159, per Buller, J., citing Hasselden v. Bradney, T. 4 Geo. III. C. B. See Doe d. Fenwick v. Reed, 5 B. & A. 232. (u) 21 Edw. IV. 74, B. pl. 5. (x) Roe d. Johnson v. Ireland, 11 East, 280. (y) Crimes v. Smith, 12 Co. 4; Parsons v. Bellamy, 3 E. & Y. 832; Cope v. Bedford, Palm. 426; Wolley v. Brownhill, M'Clel. 317; Inman v. Whormby, 1 Y. & J. 545; Apperley v. Gill, 1 C. & P. 316. (z) Norbury v. Meade, 3 Bligh, 211; Bayley v. Drever, 1 A. & E. 449; Rose v. Calland, 5 Ves. 186. (a) Sawbridge v. Benton, 2 Anst. 372. (b) Countess of Dartmouth v. Roberts, 16 East, 334. (c) Doe d. Mason v. Mason, 3 Wils. 63. (d) Watkins on Copyholds, 269, Ed. 1797. See Rawlinson v. Greeves, 3 Bulst. 237. (e) Knight v. Adamson, 2 Freem. 106; Wilson v. Allen, 1 Jac. & W. 611. Ed. (ƒ) 2 Wms. Saund. 42 d, 6th (g) R. v. Barnsley, 1 M. & Selw. 377. sumed from fifteen years undisturbed possession (h); and where a chapel has existed from time immemorial, proof of the celebration of the rites of baptism, marriage, and burial is presumptive evidence of consecration (i). So, the liability to repair fences (k), the right to land nets (7), the death of remote ancestors without issue (m), mesne assignments of leaseholds (n), re-conveyances by feoffee to feoffor (o), and by mortgagee to mortgagor (p), &c., &c., have in like manner been presumed. trustees. General rule. § 374. Under this head comes the important doctrine Conveyances by of the presumption of conveyances by trustees. It is a general rule, that whenever trustees ought to convey to the beneficial owner, it should be left to the jury to presume that they have so conveyed, where such presumption can reasonably be made (9). This rule has been established to prevent just titles from being defeated by mere matter of form, but it is not easy to determine the extent of it. It may, however, be stated generally, that the presumption ought to be one in favour (h) Chapman v. Beard, 3 Anst. 942. (i) Moysey v. Hillcoat, 2 Hagg. N. S. 50. (k) Boyle v. Tamlyn, 6 B. & C. 329. (1) Gray v. Bond, 2 B. & B. 667. (m) The Earl of Roscommon's Claim, 6 Cl. & F. 97; Doe d. Oldham v. Wolley, 8 B. & C. 22. (n) Earl d. Goodwin v. Baxter, 2 W. Bl. 1228; White v. Foljambe, 11 Ves. 350. (0) Tenny d. Whinnett v. Jones, 3 M. & Scott, 472. (p) Cooke v. Soltau, 2 S. & Stu. 154. (q) 3 Sugd. V. & P. 25, 42, 43, 10th Ed.; 1 Greenl. Evid. § 46, 4th Ed.; Doe d. Bowerman v. Sybourn, 7 T. R. 2; Keene d. Lord Byron v. Deardon, 8 East, 263, 266; Viscountess Stafford v. Llewellin, Skin. 77; Goodtitle d. Jones v. Jones, 7 T. R. 43; Doe d. Reede v. Reede, 8 T. R. 122; R. v. Upton Gray, 10 B. & C. 813, per J. Parke, J.; England d. Syburn v. Slade, 4 T. R. 682; Wilson v. Allen, 1 Jac. & W. 620; Doe d. Hodsden v. Staple, 2 T. R. 696; Emery v. Grocock, 6 Madd. 54. Presumption of the surrender of terms by trus. tees for years. Formerly carried to an unreasonable length. of the owner of the inheritance, and not one against his interest (r); and the rule is subject to this further limitation, that the presumption cannot be called for where it would be a breach of trust in the trustees to make the conveyance (s). On the same principle, reconveyances from the trustees to the cestui que trust will be presumed (t), as also will, under proper circumstances, conveyances from old to new trustees (u). § 375. Few subjects have given rise to greater difference of opinion than that of the presumption of the surrender of their terms by trustees for terms of years. In Lord Mansfield's time, the courts seem to have entertained notions on this subject which, if carried out in practice, would have gone far to subvert the trial by jury on the one hand, and confound all distinction between legal and equitable jurisdiction on the other (x). In the case of Lade v. Holford (y), "Lord Mansfield," we are informed, "declared 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 set up by a mortgagor against a mortgagee, but direct the jury to presume it surrendered." There is no objection to the latter branch of this proposition, which has been always recognised in practice; for, by not assigning the term for the benefit of the mortgagee, and afterwards setting it up against him, the mortgagor (r) Phill. & Am. Ev. 476; Doe d. Graham v. Scott, 11 East, 483; Doe d. Burdett v. Wrighte, 2 B. & A. 719, 720. (s) Phill. & Am. Ev. 476; Keene d. Byron v. Deardon, 8 East, 267. (1) Hillary v. Waller, 12 Ves. 250, 251. See 2 Sugd. Vend. & Pur. 196, 10th Ed. (u) Roe d Eberall v. Lowe, 1 H. Bl. 446. (r) See 3 Sugd. Vend. & Pur. 39, 40, 42, 10th Ed.; Evans v. Bicknell, 6 Ves. 184; Lessee Lord Massey v. Touchstone, 1 Sch. & L. 67, n. (c); Wallwyn v. Lee, 9 Ves. 31; Doe d. Hodsden v. Staple, 2 T. R. 696; Doe d. Bristow v. Pegge, 1 T. R. 758, n. (y) Bull. N. P. 110. |