after a lapse of one hundred years, a competent endowment 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 endowment which was clearly insufficient, the court, from the unvarying acquiescence of the vicars, inferred the existence of a subsequent deed of endowment supplying the deficiencies of the former (b).

On a like principle, fifteen years possession of a benefice has been held sufficient, in the absence of contrary 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 notice, 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 appointed 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. (b) Wolley v. Brownhill, M'Clel. 317.

(c) Chapman v. Beard, 3 Anstr.

(d) Barnardist. 93, per Lord Hardwicke ; Wilson v. Witherby, Bull. N. P. 110.

consent to it, is likewise presumed after long unmolested 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 ordinary, 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 appear, and that be manifestly insupportable, the antiquity 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 lawful 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.

(b) Dixon v. Metcalfe, 2 Eden. 360; Amb. 528, S. C.; Farnworth v. Bishop of Chester, 4 Barn. and Cress. 555, 568-9.

(c) See 2 P. Wms. 573; 1 Eq. Abr. 368.

(d) Sawbridge v. Benton, 2 Anst. 372.

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 considerable length of time has since elapsed, allow it to be again thrown open: the necessary consent will be presumed (a). In like manner, the consent of a landowner to an agreement entered into by his bailiff for the enclosing of the common, will be supposed after long acquiescence (b). 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 complaint 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 property yielding an annual income, as a leasehold tenement, and the executor allows the profits to be appropriated by the legatee, the argument for the implied assent is manifestly stronger (d).

32.

(a) Silway v. Compton, 1 Vern.

(b) Tufton v. Wentworth, 5. Vin. Abr. 8, pl. 32.

(c) Com. Dig., Tit. Administration, C 6.

(d) See Paramour v. Yardley, Plowd. 539.

CHAPTER XV.

PRESUMPTIONS OF FACT CONTINUED.

Of presumptive Evidence in Matters of Pedigree, &c.

THE title to property as regards individual possessors, 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 (a), the periods of attaining majority or marrying, the number of children in a certain family, the failure of a particular 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 direct 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 presumption of survivorship between two or more individuals who perish in a general catastrophe, see Mason v. Mason, 1 Mer. 308; also 6 East, 82,

note; and Mr. Butler's preface to the seventh edition of Fearn on Remainders. A court of equity will direct an issue to try the fact, if the parties desire it.

received as effectual,-more especially with regard to marriages, heirships, and deaths.

Recitals in ancient deeds, if consistent with the apparent 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 recitals are conclusive only against parties to the instruments 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 corresponding subsequent enjoyment, a just and reasonable cause presents itself that they should no longer be regarded in the light of mere ex parte statements; because not only are the facts recited, and the present possession connected as cause and effect, the one accounting for the other, but the quiescence of the persons 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 unmolested 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