or as eldest son and heir, it is not necessary that evidence of the previous owner's death and of the general ignorance concerning him should proceed from members of his family. The testimony of strangers residing in the neighbourhood of the property has been held sufficient for this purpose; because if any of the family have, in the mean time, really heard of him they may be called on by the opposite party to rebut the presumption by their testimony (a). To prove the additional fact of failure of issue, so as to let in the right of a collateral heir, or of a remainder-man after a limitation in tail, stricter evidence than that of mere reputation may possibly be required, —namely, the evidence of relatives, or their hearsay (b). But although such evidence is of course more satisfactory, yet it may reasonably be doubted whether it should be regarded as absolutely necessary; for not only may evidence of reputation be, as in the former case, encountered by the testimony of the family, but should a contrary rule prevail, the remainder-man or collateral heir, if he should not possess the requisite proof, would be liable to be defeated of his inheritance. By admitting the inferior evidence, no injury is done to the absent party or his issue, for on his or their returning, the possession may again be recovered. And it has been determined in favour of a younger branch of a family claiming in consequence of the extinction of an elder, that if none of the elder branch has been heard of for a very considerable number of years, as fifty or sixty years, evidence to that effect is enough,

(a) Doe v. Deakin, 4 Barn. aud Ald. 433.

(b) Richards v. Richards, 15 East, 293, n.

as showing prima facie that neither he nor any issue of his now exists (a).

Where inconvenience must not necessarily follow or may be guarded against, it is probable that courts of equity will likewise regulate their decisions in respect to claims founded on the alleged deaths of persons long unheard of, with special reference to by the time laid down in the statute. It is true, that in those cases which have already occurred in equity on this subject, a much longer period than seven years appears to have elapsed. But the general principle from long absence was distinctly admitted: and arguing from that admission and the constant practice of equity to follow as far as possible the rules of law, there is every reason to conclude that in defining the exact limits of the principle, an analogy will be preserved to the provisions of the legislature.

It remains to notice on what occasions equity has acted upon the presumed deaths of persons long unheard of. The cases are but few; the following being perhaps the only instances with which the books furnish us. In Bailey v. Hammond (b), on evidence of absence for twenty years without any intermediate account of the absent party, payment of a legacy was ordered to be made to the personal representative of a co-legatee, security being given to re-fund in case of his return. In a previous case, fourteen years' absence were considered sufficient to justify an administrator in proceeding for the recovery of the deceased's ef

(a) Rowe v. Hasland, 1 Black, 404.

(b) 7 Ves. 590. See also Dixon v. Dixon, 3 Bro. C. C. 510.

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 happened 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 circumstances, 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. Willock, 6 Ves. 605.

(b) 5 Ves. 458.

CHAPTER XVI.

PRESUMPTIONS OF FACT CONTINUED.

Of presumed Grants of Portions of Tithes, of Advowsons, 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 prescriptive 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 corporations 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

restraining statutes of Queen Elizabeth (a), are another 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 latter possible modes of deriving a title in private persons 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 monastery, it is obvious that their validity must be established 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 ascertained as a matter of fact, by reference to the general 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 pernancy 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.