were properly done, when the nature of the case will admit of positive evidence of the fact, provided it really exists (e)." It is a principle that irregularity will not be presumed (ƒ); and there are several instances to be found in the books of the courts dispensing with formal proof of things necessary in strictness to give validity to judicial acts. Thus, a fine will be presumed to have been levied with proclamations (g); and while common recoveries were a usual mode of assurance, it was held that when a recovery was suffered by a person who had power to do so, the maxim, "Omnia præsumuntur ritè esse acta," should apply, until the contrary appeared (h). So it is a rule never to raise a presumption for the sake of overturning an award; but, on the contrary, to make every reasonable intendment in its support (i): although there are many cases to be found in the books, especially the ancient ones, which it might be difficult to reconcile with this principle. § 342. It seems now established that the maxim, "Omnia præsumuntur ritè esse acta," does not apply to give jurisdiction to magistrates, or other inferior tribunals (k). Thus, where a power was given to the justices under a mutiny act, to take the examination of a soldier. quartered at the place where the examination took place, and the examination, when taken, did not shew on the face of it that the soldier was quartered at that place, the Court of Queen's Bench held the examination was not receivable for the purpose of proving a settlement, (e) 2 Evans' Poth. 336. (f) Macnamara on Nullities and Irregularities, 42; per Alderson, B., in Caunce v. Rigby, 3 M. & W.68; James v. Heward, 3 G. & Dav. 264. (g) 3 Co. 86 b. (h) 3 Stark. Ev. 961, 3rd Ed. (i) Caldwell on Arbitration, 132, 2nd Ed.; Watson on Awards, (k) R. v. Hulcott, 6 T. R. 583; 4o. Extra-judicial acts. Execution of wills. unless it were shewn by evidence that he was so quartered at the time (7). § 343. 4°. We next proceed to consider the application of this maxim to extra-judicial acts, such as written instruments, and matters in pais. Thus, it is an established rule, that deeds, wills, and other attested documents, which are more than thirty years old, and are produced from an unsuspected repository, prove themselves, and the testimony of the subscribing witness may be dispensed with, although it is competent to the opposite party to call him to disprove the regularity of the execution (m). And there are many instances of the application of this presumption, even where it is strictly necessary to prove the execution of an attested instrument. Thus, where a deed is produced, purporting to have been executed in due form by signing, sealing, and delivery, but the attesting witnesses can only speak to the fact of signing, it may be properly left to the jury to presume a sealing and delivery (n). So, where an agreement is stated to have been reduced to writing, signing will be presumed (o). § 344. The 7 Will. IV. & 1 Vict. c. 26, s. 9, (explained by 15 & 16 Vict. c. 24,) requires wills to be in writing and executed with certain formalities, and somewhat similar provisions, with reference to wills of real estate, were contained in the statute previously in force, the 29 Car. II. c. 3, s. 5(p). Under both statutes the courts have, in many instances, applied the maxims “Omnia præsumuntur ritè esse acta," &c., to the execution of wills; (1) R. v. All Saints', Southamp ton, 7 B. & C. 785. (m) 2 Phill. Ev. 245 et seq. 10th Ed. (n) Burling v. Paterson, 9 C. & P. 570; Ball v. Taylor, 1 C. & P. 417; Grellier v. Neale, 1 Peake, 146; Talbot v. Hodson, 7 Taunt. 251. (0) Rist v. Hobson, 1 Sim. & S. 543. (p) Supra, Part 2, ch. 3, § 216. and, as a general principle, lean in support of a fair will, so as not to defeat it for a slip in form, where the meaning of the legislature has been complied with (q). § 345. So, collateral facts requisite to give validity to Collateral facts. instruments will, in general, be presumed. Thus, where an instrument has been lost, it will be presumed to have been duly stamped (r); and where a party refuses to produce a document after notice, it will be presumed at least against him to have been duly stamped, unless the contrary appear (s). Where an ejectment was brought on the assignment of a term given by the defendant to secure the payment of an annuity, it was held unnecessary for the plaintiff to prove that the annuity had been inrolled in pursuance of the 17 Geo. III. c. 26, as, if it were not inrolled, that would more properly come from the other side (t). This principle has also been extended to the construction of instruments. Thus, where deeds Construction of instruments. bear date on the same day, a priority of execution will be presumed to support the clear intention of parties (u); as, for instance, where property was sought to be conveyed by lease and release, both of which were contained in one deed, it is said that a priority of execution of the lease would be presumed (x). So, in construing a deed or will, priority or posteriority in the collocation of words will be disregarded in order to carry into effect the manifest intention of the parties (y). (9) Right, Lessee of Cater, v. Price, 1 Dougl. 243; Bond v. Seawell, 3 Burr. 1773; 1 Jarman on Wills, 75 et seq. (r) Part 2, ch. 3, § 224. (s) Id. (t) Doe d. Griffin v. Mason, 3 Camp. 7. See acc. Doe d. Lewis v. Bingham, 4 B. & A. 672; and The Brighton Railway Company (u) Barker v. Keete, 1 Freem. (r) Per North, C. J., in Barker v. Keete, 1 Freem. 251. (y) Brice v. Smith, Willes, 1; and the cases there cited. Principle much extended by modern sta tutes. § 346. It only remains to add that the principle in question has been much extended by modern statutes. We have already alluded to this subject when treating of the history of the rise and progress of the English law of evidence (z); and some of the most important statutes bearing upon it will be found in the Appendix (a). Presumption of session, &c. in law. SUB-SECTION III. PRESUMPTIONS FROM POSSESSION ANd user. § 347. The presumption of right in a party who is in right from pos- the possession of property, or of that quasi possession highly favoured of which rights only occasionally exerciseable are susceptible, is highly favoured in every system of jurisprudence (b), and seems to rest partly on principles of naPossession, &c., tural justice, and partly on public policy. By the law of primâ facie evidence of proEngland, possession, or quasi possession, as the case perty. may be, is primâ facie evidence of property (c),-" Melior (potior) est conditio possidentis (d);"—and the possession of real estate, or the perception of the rents and profits from the person in possession, is primâ facie evidence of the highest estate in that property, namely, a seisin in fee (e). But the strength of the presumption arising from possession of any kind is materially increased by the length of the time of enjoyment, and the absence of interruption or disturbance from others, who, supposing it illegal, were interested in putting an end to it. In favour of such continued and peaceable enjoyment, the courts have gone great lengths in presuming not only a Length of enjoyment. (z) Part 1, ch. 2, § 117. (b) Huberus, Præl. Jur. Civ. (c) Ph. & Am. Ev. 472; 1 Ph. Ev. 484, 10th Ed.; 4 Taunt. 547. (d) 2 Inst. 391; 4 Id. 180; Hob. 103, 199; Vaugh. 60; 1 T. R. 153; 4 Id. 564. (e) B. N. P. 103; Jayne v. Price, 5 Taunt. 326; Denn d. Tarzwell v. Barnard, Cowp. 595. legal origin for it, but many collateral facts, to render complete the title of the possessor, according to the maxim, "Ex diuturnitate temporis, omnia præsumuntur solenniter esse acta (ƒ)." 348. In treating this important subject, it is pro- Division of the posed to consider, 1st, The presumption from long user subject. of prescriptive and other rights to things which lie in grant, both at common law, and as affected by the statutes 2 & 3 Will. IV. cc. 71 and 100. 2ndly, Incorporeal rights not affected by those statutes. 3rdly, Presumptions of facts in support of beneficial enjoyment. tion, &c. § 349. Among the various ways in which a title to 10. Prescripproperty can be acquired, most systems of jurisprudence recognise that of "prescription," or undisturbed possession or user for a period of time, longer or shorter as fixed by law (g). Præscriptio est titulus ex usu et tempore substantiam capiens ab authoritate legis (h).” According to the common law of England, this species of title cannot be made to land or corporeal hereditaments (i), or to such incorporeal rights as must arise by matter of record (k); and is in general restricted to such things as may be created by grant (1), such as rights of common, easements, franchises which can be created by grant without record, &c. The reason for this is said to be, that every prescription supposes a grant or (f) Co. Litt. 6 b. This maxim is clearly a case where priora præsumuntur à posterioribus. See supra, sub-sect. 2, § 335. (g) Introd. § 43. (i) Dr. & Stud. Dial. 1, c. 8; Finch, Comm. Laws, 31; Vin. Abr. Presc. B. pl. 2; Brooke, Abr. Presc. pl. 19; Wilkinson v. Proud, 11 M. & W. 33. A man may, however, prescribe to (k) Co. Litt. 114 a; 5 Co. (1) 2 Blackst. Comm. 265; 3 Cruise's Dig. 423, 4th Ed.; 1 Vent. 387. |