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PRESUMPTIONS OF FACT CONTINUED.
Of the Presumption of Acts and Solemnities in sup
port of Assurances and Rights.
We have already seen, that, in support of long possession, a presumption will be raised of the instruments originally creating a right to that possession, although no direct proof be offered of the previous existence and subsequent destruction or loss of such instruments. The grounds on which the presumption in cases of this sort is made, are still stronger and more determinate, where the requisite documentary evidence is extant, but the instruments themselves contain no proof, nor is proof to be derived from other sources, of the observance of those collateral acts and solennities which were necessary to have given them validity. The deficiency of proof in this respect will accordingly be supplied by an adequate and appropriate presumption.
This subject, irrespective of the circumstance of the antiquity of the particular documents, has already
been considered in a former chapter(a)(1). It was there shown, that in regard to deeds the facts of sealing and delivery, and in regard to wills that a compliance [*]with the proper modes of execution and attestation, may be presumed, notwithstanding a want of distinct evidence of those facts, on the maxim Omnia præsumuntur recte et solenniter esse acta donec probetur in contrarium. Now it is manifest, that the general probability of the due execution of instruments, which were meant to have a legal operation, is by many degrees increased by lapse of time : which, as it affords opportunity to those whose interest it was to dispute their efficiency, shows at once the acquiescence of such persons, and also a conviction on their part that all proper steps were taken to render the assurances in question valid. On this principle, supported by a consideration of the difficulty, if not the impossibility, of obtaining living testimony, deeds of thirty years standing, by a very ancient rule of law, are admitted in evidence without proof of their execution(b)(2); and where the witnesses are dead, deeds
(a) Chap. ii. sec. 5.
by rasure or interlineation appears (6) See Selw. N. P. 535, 5th in a material part of the instruEd. Phillips on Evidence, ment: In these cases, to repel the 6th Ed. There is an exception to suspicion arising from the rasure or this rule in cases where a blemish interlineation, the deed must be
(1) Hoddy v. Harryman, 3 Har. & M'Hen. 581. Jackson v. Davis, 7 Cowen, 123. Jackson v. Luguere, 7 Cow. 224. Barr v. Gratz, 4 Wheat. 213. Inhabitants of Stockbridge v. Inhabitants of West Stockbridge, 14 Mass. 257. Doe v.
Doe v. Trustees, fc. 2 Hawkes, . 233.
(2) A will more than thirty years old may be read in evidence without proof of its execution, although the testator has died within thirty years, and some of the subscribing witnesses are proved to be still
of even a less age, [*]provided the enjoyment of the property to which they relate has corresponded with the limitations, are received as genuine and authentic(a). In the present chapter we shall trace the further operation of the same principle ; first adducing additional examples (time being a principal
proved by the attesting witnesses, v. Wood, Selw. N. P. 5th Edit. if alive, or if dead, by the authen- 535, n.), entries in the books of the tication of their hand-writing. steward of a manor (Wynne v. Phil. on Ev. 6th Edit. 459; Selw. Tyrwhitt, Barn. and Ald. 376), N. P. 5th Ed. 535. As to the and parish certificates of a pauper's point, whether or not the attesting place of settlement (Rex v. Rywitnesses, if alive, must be called ton, 5 T. R. 259 ; Rex v. Netherto prove a deed twenty years old thong, 2 Mau. & Selw. 337,) to have been duly executed, see though such certificate be not also Phil. on Ev. 459, and Selw. executed by the generally reN. P. 535, n.
quisite number of overseers and The rule, however, is not con- churchwardens (Rex v. Catesby, fined to deeds. It seems to ex- 2 Barn. and Cress. 814). tend to all other paper writings, (a) Vid. Co. Litt. 6 b; Wood's as wills (Doe v. Earl of Pem- Instit. 596. broke, 11 East, 504), receipts (Fry
living; for the party producing the will may not know this fact. Oldham v. Wolley, 8 Barn. & Cress. 22. Jackson v. Christman, 4 Wendell, 277. Sed vide, Jackson v. Luguere, 7 Cow. 224. Doe dem. Lord v. Passinham, 2 Car. & P. 444. Jackson ex dem. Burhans ů. Blansham, 3 Johns. Rep. 292. Jackson ex dem. Lewis v. Larroway,
3 Johns. Cas. 283. Vandusen v. Vandusen, 5 Johns. R. 144. Doe v. Phelps, 9 Johns. 169. Doe v. Campbell, 10 Johns. 475. Hoddy v. Harryman, 3 Har. & M. 581. Joce v. Harris, 1 Har. & M. 196. Carrol v. Horwood, 1 Har. & J. 174. Thomson v. Bullock, 1 Bay, 364. Middleton v. Mass. 2 Nott & M. 55. Roberts v. Staunton, 2 Munf. 129. Lee v. Tapscott, 2 Wash. 276. Shaller v. Brand, 6 Binn. 435. Mallory v. Aspinwall, 2 Day, 280. Tolman v. Emerson, 4 Pick. 160.
Thomas' lessee v. Horlocker, 1 Dal. 14. It is the accompanying possession which establishes the presumption of the authenticity in an ancient deed.
ground of inference) of the presumption of acts and solemnities, which complete and give an operative force to instruments of common assurance,--whether they be imposed universally by the law of the land, or enjoined in certain instances by private provision only; and then subjoining some analogous cases, in which, on the same ground, an observance of formalities required by law to secure and establish particular rights and titles, is primarily supposed(1).
Livery of seisin, when necessary to the perfecting of a lease(a)(2) or conveyance(6), may be presumed after long enjoyment, although the usual indorsement attesting the fact be wanting; and for this purpose, possession for twenty years may be considered sufficient (c). Nor will the circumstance of there being a memorandum, certifying livery with regard to lands in one county, where the feoffment comprises property in two, exclude the presumption of livery with regard to the lands in the second county ; for the acts being distinct, and taking place at different times, evidence of the performance of each must necessarily be distinct [*]too (d). In such case, unius expressio non est alterius exclusio.
(a) Biden v. Loveday, 1 Vern. (c) Rees v. Lloyd, Wightw. 196, cited; Throckmerton v. Tra- 123; Biden v. Loveday, supra. cy, Plowd. 149, 2d exception. (d) Jackson v. Jackson, Sel.
(6) Roll. Rep. 132. pl. 9; 12 Cha. Ca. 81; Fitzg. 146, 3. C. Vin. Abr. 125, pl. 5.
(1) Knox v. Jenks, 7 Mass. 488. Gray v. Gardner, 3 Mass. 399. Coleman V. Anderson, 10 Mass. 105. Perkins v. Fairfield, 11 Mass.
(2) Carrol v. Norwood, 1 Har. & Johns. 174.
Admittance to a copyhold in pursuance of a previous surrender will also be inferred from long enjoyment, especially where corroborated by the fact of the surrenderee having paid the customary rents(a), or performed the accustomed services(6). The lord's acceptance of a surrender to a third person, by one who claims to be a tenant of the manor, is likewise held to afford ground for supposing the previous admission of the surrenderor: it is a tacit recognition of his tenancy(c). The circumstance of the lord's making a grant of enfranchisement to a copyholder, whose admittance has not been entered on the rolls, is of similar import(d)(1).
Enrolment of a deed in a court of record may also be presumed, provided a chasm appears in the rolls about the period when the enrolment ought to have been made(e). But if the rolls have been regularly continued and properly preserved, this presumption cannot be raised; for no presumption will be entertained which is positively opposed to fact. Had the enrolment been made, it would certainly appear : by its non-appearance decisive evidence is furnished that
(a) Blunt v. Clark, 2 Sid. 61; () See 3 Bulst. 239, Dyer, 292 Froswell v. Welsh, Roll. Abr. 505, a, pl. 69. (X); 3 Bulst. 214, 217; Godb. (c) 1 Roll. Abr. 505 (X); Raw269, S. C. ; Cro. Jac. 403, S. C. linson v. Greeves, 3 Bulst. 237. contra ; but on this report of the (d) Cookes v. Hellier, 1 Ves. case, see note (n) to Watk. on 234. Copyh. 269. See also 7 East, 21, (e) See 3 Barn. & Ald. 152; 22.
1 Jac. & Walk. 620.
(1) Thomson v. Hauser, 2 Const. R. 356. Reed v. Goodyear, 17 Serg. & Rawle, 350.