"When it is

be able to adduce direct proof of title. said," observes the learned annotator on Coke upon Littleton, "that a person is entitled to a right or property, by common right, but that it may belong to another, it is intended to say that the right or property in question is by the common law annexed to some particular 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 another. 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 another, 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 under 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 of common right; that is, if it be admitted or proved, that he is lord of the manor, his right to the soil so far necessarily follows, that it is not incumbent on him to produce 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 inalienable 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.

same kind, is the prima facie title of the different landholders 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 presumption, that the possessor of a several fishery is owner of the ground covered by the water (a), and that where a highway runs over the waste of a manor, the soil belongs to the lord (b), 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lord, it has been held, that where a road passes between the lands of different proprietors, and it cannot be shown who originally made the dedication, the right to the soil is in the owners on each side to the central line of the way (d). 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 particular proprietor; or by evidence that the ground which the way and the waste strips severally occupy, formerly consti

(a) Lofft. 364. See Co. Litt. 122 a, n. 7.

(b) Lofft. 358; 1 Roll. Abr. 392. 1. 5. See also Headlam v. Hedley, 1 Holt. N. P. Rep. 463; and Grose v. West, 7 Taunt. 39.

(c) See 1 Roll. Abr. 401; 16 Ves. 390; Co. Litt. 122 a, n. 7.

(d) Lofft. 359; 7 Taunt. 41. (e) Grose v. West, 7 Taunt. 39; Headlam v. Hedley, 1 Holt. Rep. 463; Steel v. Pricket, 2 Stark. 463.

tuted, or still continue to form part, of the lords' common (a).

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 cognizance. Inasmuch, however, as no man is compellable 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 contrary 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 renunciation, it has been said, is of equal force with a renunciation by deed (b).

It is a disputed question, whether the heir can disclaim 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. 1004; Grose v. West, 7 Taunt. 39.

(b) See generally on this subject the case of Townson v. Tickell, 3 Barn. and Ald. 31, and the authorities there cited,

particularly Thompson v. Leach, 2 Salk. 618. See also Nicolson v. Wordsworth, 2 Swans. 365.372; Adams v. Taunton, 5 Madd. 435; and 2 Prest. on Abstracts, 226. et seq.

But this question, it is conceived, admits, commonly, of a not unsatisfactory 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, except 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 supposed, an opening is immediately made for the operation 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 willand cases of this sort may doubtless occur,-the solution 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 occupy exactly the place of the ancestor, he is of course invested with the same rights and powers: and consequently, 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 disagreement be positively proved, the estate, in legal

D

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 conveyance.

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 attaining of particular purposes, those means, it is natural to expect, will be resorted to, when the purposes in question are sought to be effected; and vice versá, 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 assurance, 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