his holding by virtue only of an office, and being therefore precluded from alienating (a), supplies a further ground on which the allegation of title may be encountered. Grants of crown lands, since the statute 1 Anne. c. 7. or of lands belonging to the church, cannot for this reason be presumed. The effect is the same where the assumed grantee is incapacitated, either totally as an alien, or to a certain extent as the representative of a corporate body, from purchasing (b).

But no length of time will raise a presumption of right in favour of encroachments on the public: at least no period has ever yet been mentioned as binding the community. The usual conclusion, therefore, arising from an enjoyment of twenty years, cannot, in such instances, be supported (c).

In regard to rights of common, and easements claimed on the ground of long enjoyment, the primá facie title may sometimes be met by proof of the landowner's having been ignorant of the usage(d): but to make this objection effectual, the ignorance must be clearly shown; or at least such evidence adduced as gives it decided credibility (e). The asserted title, we may further add, is capable of being repelled by show

Wood v. Veal, 5 Barn. and Ald. 454; Daniel v. North, 11 East. 372. (a) Goodtitle v. Baldwin, 11 East. 488; Barker v. Richardson, 4 Barn. and Ald. 579.

(b) Wright v. Smythies, 10 East. 409.

(c) Vooght v. Winch, 2 Barn.

and Ald. 662; Carter v. Murcot, 4 Burr. 2163; per Lord Ellenborough, 7 East. 199.

(d) Dawson v. D. of Norfolk, 1 Price. 246; Daniel v. North, 11 East. 372; per Dallas, C. J. 2 Brod. and Bing. 671.

(e) Rex v. Barr, 4 Camp. 16.

ing, that the user has not been uniformly or quietly submitted to. The apparent assent of the adverse party is, in all cases of this sort, the true and essential source of inference: but it is evident that without a total disregard to fact, this cannot be maintained, where the claim has formed a constant subject of contest (a).

Ignorance has, sometimes, in courts of equity, been held to afford an answer to averred releases of demands. The desertion of a right, it has been judicially observed, always supposes a previous knowledge of it: it is absurd to say that a man has relinquished a right of which he is not aware (b). But this topic of defence, we should observe, when allowed, is never received without extreme caution. The presumption from acquiescence would otherwise be constantly avoided (c).

Fraud and imposition are other circumstances by which, in the case of equitable demands, lapse of time may be accounted for (d). This, however, it is obvious, proceeds on the idea of the fraud or imposition being unknown: the delay is otherwise inexcusable, and must, on the general principle, preclude relief (e). But commonly to permit time to afford protection to fraud would be, in effect, to give fraud encouragement.

(a) Livett v. Wilson, 3 Bing.

115.

(b) Per Lord Commissioner Gilbert, Sel. Cha. Ca. 11; Cowper v. Cowper, 2 P. Wms. 730; per Sir W. Grant, 2 Mer. 362.

(c) Per Sir T. Plumer, 2 Jac. and Walk. 142.

(d) 1 Fonbl. on Equity, 5th ed. 331; 1 Madd. Prin. and Prac. 257. 2d edit.

(e) Hovenden V. Lord Annesley, 2 Scho. and Lefr. 607. 610. 636; Medlicott v. O'Donnel, 1 Ball and Be. 156. 165-6.

Recent admissions of the existence of demands, and, in like manner, the circumstance of there not having been any person competent or duly qualified to give a proper discharge, are frequently relied upon to disprove the averment of satisfaction (a). The fact of the parties concerned being a body of creditors, entitled under a bankruptcy, or under an assignment to trustees for their benefit, is also an answer to lapse of time: such persons not being expected in their collective capacity to use the same diligence as is incumbent on individuals (b).

Where the distress of an expectant heir, or of a person entitled in reversion, has been taken advantage of, in order to obtain an unconscientious bargain, the continuance of the distress is a sufficient reason for delay in seeking relief(c). But with this exception, in which the fact of distress is an integral part of the case, and is material as evidence of the fraud, poverty or embarrassed circumstances are not allowed to exclude presumptions which originate in long delay. This principle has been adopted from a sense of the many inconveniences which would result from a contrary doctrine (d).

(a) See Preston on Abstracts, 3 vol. 364; also 12 Ves. 266; 19 Ves. 200.

(b) Whichcote v. Lawrence, 3 Ves. 740; Hardwick v. Mynd, 1 Anstr. 109; Kidney v. Cousmaker, 12 Ves. 136. 158.

(c) Gowland v. De Faria, 17 Ves. 20; Roche v. O'Brian, 1 Ball and Be. 330.

(d) Per Lord Redesdale, 2 Scho. and Lefr. 639. See also Hickes v. Cook, 4 Dow. 16.

C

CHAPTER II.

PRESUMPTIONS OF LAW.

Miscellaneous Instances.

PRESUMPTIONS of law were mentioned in the preceding chapter to rest on one or other of the following grounds;-the laws of nature-the first principles of justice the nature and general incidents of property -the innate principles of self-interest-the dictates of prudence or discretion-the policy of the law-and the motive or intention determining particular actions. Of presumptions referrible to the latter head, it is not here intended to speak more at large. An examination of the cases which have been decided relative to this portion of the subject will be found in subsequent chapters. With this exception, it is purposed, in the present chapter, to adduce examples of the several kinds above enumerated, and at the same time to point out particular cases which they respectively affect.

I. Semel furibundus semper furibundus præsumitur, is a maxim or supposition of law, grounded on the essential nature of insanity, and the constant experience that by far the greater number of persons so afflicted never recover the right use of their mental

faculties. This rule, connected with another, which denies to such persons the power of legal disposition, provides an effectual safeguard, in cases of madness, against imposition and fraud. But the principle is not confined to the permanently deranged: the same rules apply with equal force to lunatics, who, properly speaking, are persons intellectually disordered, but with lucid intervals. It might perhaps be objected, that acts proceeding from persons of this description, which, abstractedly considered, are reasonable, ought not to be regarded as done during a period of mental aberration. But this objection has not been allowed to prevail; because not only is it possible that a prudent act may be performed, while the will of the agent is not subject to the control of right reason; but the doctrine, if admitted, would operate directly as an encouragement to fraud. It is therefore now settled, that where the fact of lunacy is proved generally, a lucid interval shall not be presumed in support of a particular transaction, although in its character perfectly rational. To sustain the validity of any such transaction, the sanity and competence of the party at the time must clearly and positively appear: the evidence must go to prove not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficient to ensure the exercise of a sound discretion (a). It is not enough to show, as Lord Notting

(a) Per Sir W. Grant, M. R. 9 Ves. 611; Att. Gen. v. Parnther, 3 Bro. C. C. 441; ex parte

Holyland, 11 Ves. 10; White v. Wilson, 13 Ves. 88. See also 1 Fonb. 5th edit. 71.