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assumption, that it was the practice among conveyancers to notice such terms; and, secondly, that the fact of the deeds by which the term was created or assigned being found in the possession of the owner of the inheritance, raised a presumption of a surrender to him. But, in answer to this, Sir E. Sugden very justly remarks, that there is nothing in the argument, unless the courts of law deny the power of a man to keep an attendant term in a trustee, and the deeds in his own possession. "In no case," he adds, "does the trustee of the term keep the deeds. They form part of the muniments of title, and are kept as such by the owner of the fee."(t)

§ 119. The principle laid down in these cases has not only not been followed in practice, but been condemned by high authority; by Lord Eldon, in the Marquis of Townsend v. The Bishop of Norwich,^) *Hayes v. Bailey,(/) Cholmondeley v. Clinton,(m) r #jgg -i and Aspinall v. Kempson.(n) It was doubted by Richards, * * C. B., and Graham, B., in Doe d. Newman v. Putland ;(o) and it should seem, also, by Sir T. Plumer, in Cholmondeley v. Clinton.(b) In Aspinall v. Kempson, in particular, Lord Eldon, in speaking of the case of Doe d. Putland v. Hilder, said, "I have no hesitation in declaring that I would not have directed a jury to presume a surrender of the term in that case; and, for the safety of the titles to the landed estates in this country, I think it right to declare, that I do not concur in the doctrine laid down in that case." Subsequent to all these occurred the case of Doe d. Blacknell v. Plowman,^) which was an ejectment tried before Bayley, J., in which a verdict was returned for the plaintiff, subject to a special case, which stated the following circumstances:—In January, 1787, the residue of a satisfied term, created in 1772, was assigned to trustees to attend the inheritance. The inheritance was purchased in 1789 by Susanna Blacknell, and the term assigned to trustees in trust for her, her heirs and assigns, and in the mean time to attend the inheritance. Susannah Blacknell entered into possession, and continued so until her decease, in 1816. The present ejectment having been brought by the lessor of the plaintiff as heir-at-law to Susannah Blacknell, the defendant set up the term, and the question was, ought a surrender of it to be presumed from the circumstance that it was unnoticed both in a marriage settlement entered into by Susannah Blacknell, in 1808, in which the property in question was *settled to various uses, and in r #iB7 -i

come on to be argued before the court in banc, it was contended, on the part of the lessor of the plaintiff, that, the term being so old, and the purposes for which it was created having been answered, and it not having been mentioned either in the marriage settlement or will of Susannah Blacknell, a surrender ought to be presumed. On Doe v. Wrighte and Doe v. Hilder being cited as authorities in point, Lord Tenterden (who, it will be remembered, delivered the judgment in Doe v. Hilder) observed, "The doctrine laid down in those cases, I believe, has been much questioned. Is such a term as this usually noticed in a marriage settlement?" And on receiving an answer in

(t) 3 Sogd. v. & p. 36. (*) Id. 61.

(/) Id. 62,10th ed. (m) Id. 63. (n) Id. 65. (o) Id. 59, 60, 61.

0?) 9 Jac. & W. 158. (j) 3 B. & Ad. 573, (22 Enj. Com. Law Repa.)


the negative, his lordship said, "If that be so, there is no ground for presuming that this term, which was assigned to attend the inheritance, was ever surrendered." Parke, Littledale, and Taunton, JJ., concurring, judgment was given accordingly for the defendant.

§ 120. It is to be observed, that, in the case of Doe v. Plowman, the term was allowed to defeat, not a purchaser, but the heir-at-law, forwhose benefit it was vested in the trustees. "Since the decision in Doe v. Hilder," continues Sir Edward Sugden, "the point has been repeatedly debated before the different Masters in Chancery, upon objections taken by sellers to procure representations to terms of years which, they insisted, ought to be presumed to have been surrendered; but the general and prevailing opinion has been, that the doctrine cannot be maintained, and the masters have acted on that principle. We may therefore be justified in considering the law to stand as it did before the decision in Doe v. Hilder; and conveyancers of course will T *168 1 follow tne advice of *Lord Eldon,(r) and not depart from L J the practice which they have hitherto followed."(s)

§ 121. It seems, however, that in equity a term which has not been assigned to attend the inheritance, and which has not been disturbed for a long time, will be presumed to be surrendered, on a question of specific performance between seller and purchaser.(<)

§ 122. Whether, in cases of this nature, the jury are bound to believe in the fact which they profess to find, has been made a question; and there certainly are authorities both ways. Mr. Starkie thus expresses himself on the point: "These presumptions are the mere artificial creatures of law, depending entirely on considerations of legal policy and convenience; they are pure legal rules; the jury being, for this purpose, mere passive instruments in the hands of the court."(u) It is hardly correct to say that these presumptions are " pure legal rules;" they are of a mixed nature, resting partly on their intrinsic probability, and partly on legal expediency; and, indeed, the same author, in another place, says, " The very mention of the. proposition is absurd, that a jury, who are bound by their oath to pronounce according to the evidence, should decide contrary to their solemn conviction, on any collateral suggestion of convenience; as, for instance, because a purchaser is aJavourite, either in a court of law or equity."(x) It is T *169 1 beyond all quesiion that the *practice of advising juries to *• * make artificial presumptions has been carried too far.(y)

Indeed, Richards, C. B. is reported to have said, that he never desired a jury to presume when he did not believe himself ;(z) and a similar opinion has been expressed in another case by Bayley, B.(o) This is going a great way: the learned judges might fairly be asked, whether they would think it necessary to believe in the surrender of a satisfied term, set up by a mortgagor against his mortgagee, before they would

(r) In the case of the Marquis of Townscnd v. Bishop of Norwich, already cited. The author believes that this advice has been adhered to, and the principle of Doe v. Hilder disregarded in practice by conveyancers. (») Sugd. V. & P. 64, 65, 10th ed.

(() Id. 66, citing Emery v. Grocock, Madd. & G. 54, and Ex parte Holman, MS. 24. July, 1821. (u) 3 Stark. Ev. 918, 3rd ed. (x) Id. 926, n. (m).

(y) See supra, Part 1, Chap. 3, art. 39. Doe d. Fenwick v. Read, 5 B. & A. 232, (7 Eng. Com. Law Rep.), and Day v. Williams, 2 C. Sl J. 460.

(*) Doe d. Newman v. Putland, 3 Sugd. V. & P. 61.

(a) Day v. Williams, 2 C. & J. 461.

advise a jury to presume it surrendered. Upon the whole, it may, perhaps, be safely laid down, that, as in all presumptions of this nature legal considerations more or less predominate, the jury ought to find as advised by the judge, unless the fact appear absurd or grossly improbable, in which case as he ought not to advise them to find, so neither ought they to find it.

*CHAPTER IV. [ *170 ]


§ 123. This class of presumptions has already been noticed as being in general entitled to more weight than such presumptions as arise casually ;(a) and they may be divided into physical and mora^. As instances of the first, the law notices the course of the heavenly bodies, changes of the seasons, and other physical phenomena, according to the maxim—" lex spectat ordinem naturae."(i) "If," says Littleton,(e) "a tenant holds of his lord by a rose, or by a bushel of roses, to pay at the feast of St. John the Baptist, if such tenant dieth in winter, then the lord cannot distrain for his relief until the time that roses by the course of the year may have their growth." So the law presumes all individuals to be possessed of the usual powers and faculties of the human race; such as common understanding, the power of procreation within the usual ages, &.c.,(d) for which reason idiotcy, lunacy, &c. are never presumed. So, *the usual incapacities of r #m -, infancy are not overlooked. It is a prcssumptio juris et de *- J jure that children under the age of seven years are incapable of committing felony ;(e) that males under fourteen are incapable of sexual intercourse ;(f) and that males under fourteen years, and females under twelve, cannot consent to rnarriage.(^) So, between the ages of seven and fourteen, an infant is presumed incapable of committing felony; but this is only prcesumptio juris, and a malicious discretion in the accused may be proved, in which case the maxim of law is "malitia supplet aetatem."(A)

§ 124. Under this head come the important and difficult questions of the maximum and minimum time of gestation of the human foetus —subjects replete with importance and delicacy, and on which a

(a) Part I. Chap. 4, art. 47.

(6) Co. Litt. 92, a., 197, b. (e) S. 129.

(rf) Huberus, Prsl. J.C. lib. 22, tit. 3, n. 17. In the case of gifts in tail, the tenant is preaumed never too old to be capable of having issue to inherit by force of the gift. (1 Phill. & Am. Ev. 462. See, also, the coses of Reynolds v. Reynolds, 1 Dick. 374, and Leng v. Hodges, 1 Jac. 585.) Several instances are given in Beck's Med. Jurisp. 148, 7th ed., of females having borne children above the ages of fifty and even sixty years. See, the celebrated Douglas cause given by him at page 402. Under the feudal system, if the guardian in chivalry married the heir to a woman past the age of child-bearing, it was deemed by law a disparagement. (Litt. s. 109 ; also Co. Litt . 80, b.)

(e) 1 Hale, P. C. 27; 4 Blackst. Com. 23.

(/) 1 Hale, P. C. 630; R. v. Phillips, 8 C. & P. 736, (34 Eng. Com. Law Reps.); R. v. Jordan, 9 Id. 118, (38 Eng. Com. Law Reps.); R. v. Brimilow, Id. 366, (38 Eng. Com. Law Reps.); R. v. Groombridge, 7 C. & P. 582, (32 Eng. Com. Law Reps.) See Part 1. Chap. 2, art . 18. (g) 1 Blackst . Com. 436. (A; 1 Hale, P. C. 26; 4 Blackst. Com. 23. false decision by a judicial tribunal may not only compromise the rights of individuals, but jeopardize female honour, and destroy the peace of families. They are medico-legal subjects, on which the opinion of physiologists and physicians must necessarily have great weight; but before we proceed to the examination of what they have written, it is necessary to consider whether we are tied up by any positive rule of law. As to the question of protracted gestation— T *172 1 acco*ding to Lord Coke, the *"legitimum tempus pariendi" *- J appointed by law is, at the furthest, nine months, or forty

weeks, for which he cites an old case of Robert Radwell, in the reign of Edward and endeavours to fortify his position by a passage from the book of Esdras.(A) But this doctrine is not clear even upon the ancient authorities,^) while it is denied by the modern,(to) and is repugnant to experience. According to many eminent authorities, the regular and usual period of gestation is nine calendar months ;(n) but others fix it at ten lunar months, being 280 days, or nine calendar months and about a week over.(o) It is, however, conceded on all hands that a delay or difference in the time may take place, of some days, or even weeks, as there are numerous causes, botn physical and moral, by which delivery may be accelerated or retarded.(p) But whether the laws of nature admit of such a phenomenon as the protraction of the term of gestation for a number of weeks or months beyond the accustomed period, is a point altogether unsettled, although

the weight of authority is *decidedly in favour of the affirm[ *173-4 ] ative.(^) It is perhaps hardly necessary to observe, that,

in all investigations of *this nature, the character and conduct of the mother are elements of the highest importance to be

(i) Co. Litt. 123. b.

(k) 2 Esdras, iv. 40, 41. "Go thy way to a woman with child, and ask of her, when she hath fulfilled her nine months, if her womb may keep the birth any longer within her. Then said I, 'No, Lord, that can she not.'"

(f) Sec them collected and ably commented on by Mr. Hargrove, in his edition of Co. Litt . 123. b., n. (2). (m) Runnington on Ejectment, p. 383.

(n) Dr. William Hunter's Answers to Mr. Hargrave, (Co. Litt . 123. b., n. (2);) Chitty's Med. Jurisp. 405; Evidence in the Gardner Peerage case, 1828.

(o) Beck's Med. Jurisp. 356, 7th ed.; who remarks, that is very important to recollect the distinction between lunar and calendar months. Nine calendar months may vary from 273 days to 275 days; but ten lunar months are exactly 280 days.

(p) See the authorities cited in the last three notes.

(o) Beck's Med. Jurisp. 376, 7th ed.; Chitty, Med. Jurisp. 405, 406; Smith, "Hints tor the Examination of Medical Witnesses," p. 99. It is incontestable that there are to be found on record a great number of cases, true or false, of gestation protracted considerably beyond the usual time. There are many old instances of children declared legitimate by foreign tribunals, after a gestation, real or alleged, of ten, eleven, twelve, thirteen, and fourteen months, and even longer. (Sec a large number collected in Beck's Med. Jurisp. 363, 374, 7th ed.; as well as other authors who have written on the subject in modern times.) And, in the case of the Gardner Peerage, in 1828, several physicians and accoucheurs oi eminence deposed to have met with cases of pregnancy protracted to 290, 300, and even 310 days. Undoubtedly, as we have said, the general opinion is in favour of the affirmative of this question; but some eminent authorities maintain the contrary, especially Dr. Beck, who, however, candidly avows that he is in a minority on the point . (p. 382.) Indeed, the whole of the ninth chapter of the seventh edition of his work, headed "Legitimacy," will amply repay perusal. Without pretending to decide on so difficult and important a question, we may say that the genuineness of many of the cases of protracted gestation may very reasonably be questioned. As to the o!d ones, the credulity of ancient times is well known; and in all the difficulty of ascertaining the commencement of the pregnancy is obvious. Where there has been but a single coitus, there is no doubt a point to start from; bat then recollect what motives may exist for falsehood and misstatement. In the case of taken into consideration, as also are the respectability or otherwise of the deposing witnesses, and the motives to falsehood or fabrication which may exist on either side.

§ 125. With respect to the minimum term of gestation—according, to Dr. W. Hunter, "a child may be born alive at any time from three months; but we see none born with powers of coming to manhood, or of being reared, before seven calendar months, or near that time. At six months it cannot be."0) According to Dr. Beck, however, it seems now to be generally "conceded, that no infant can T *i75 -| be born viable, or capable of living, until 150 days, or five *• J months, after conception.(s) There are, it is true, some old cases recorded to the contrary,(i) but the learned author just quoted doubts them.(u) It seems also conceded, that children born before the seventh month are very unlikely to live even for a few hours ;(x) and even at seven months the chance is against the child.(y)

§ 126. We now proceed to the consideration of presumptions of this kind, derived from observation of the moral world. Many of these are founded on the feelings and emotions natural to the human heart, of which we have already seen an instance in the celebrated judgment of Solomon.(z) Following out this principle, it is held that natural love and affection form a good consideration sufficient to support all instruments where a valuable consideration is not expressly required by law ;(a) that money advanced by a parent to a child is

married females, three tests are adopted. First, it is said that some females (for it is not pretended that this holds universally) experience certain peculiar sensations at the time of conception, or within a few hours, or a day, or two days, after the fruitful coitus; secondly, the period of quickening; and, thirdly, and principally, the cessation of the menses. With respect to the second of these, when we consider that the time of quickening is said to vary from the tenth to the twenty-filth week of pregnancy, (Beck, p. 137,) we can easily understand what a source of delusion this circumstance may have proved in unenlightened times, or among ignorant persons. But undoubtedly the time of suppression of the menses is the chief circumstance relied on by females and their attendunts; and just let us sec how this calculation is made. The usual course, it sccms, is to take the middle period between the last appearance of the menses and that in which they would have recurred, if pregnancy had not supervened; while some women calculate from the first week after the cessation. (Beck, 357; Chitty, 405.) Now, it is obvious, that, assuming the cessation of the catamenia to be an infallible test of pregnancy, either of these methods might produce an error of nearly four weeks; for the conception might have taken place either immediately after the last cessation of the menstrual flux, or immediately before the time when it ought to have reappeared. But there is no positively infallible test of pregnancy. The suppression of the menses may arise from other causes, during which cessation conception may take place; and it has been said, although it must be acknowledged to be a very disputed point, that cases have occurred where the presence of pregnancy has not suppressed them at all. (Beck, 132, 133.) Assuming, however, that genuine menstruation has never occurred during pregnancy, it seems that some women have discharges during pregnancy which strongly resemble the menses, and an ignorant female could hardly be expected to discriminate under such circumstances. (Id. 357 and 371.) Upon the whole, we may fairly conclude, that, admitting the possibility of gestation being protracted in the sense in which the word is used in this note, the genuine cases of it are rare, and it is difficult to withhold assent from the following observations of an eminent writer on this subject:—" If we admit," says he, "all the facts reported by ancient and modern authors, of delivery from eleven to twenty-three months, it will be very commodious for females; and if so great a latitude is allowed for the production of posthumous heirs, the collateral ones may in all cases abandon their hopes, unless sterility be actually present. (Louis, Memoire contre Legitimite des Naissances pretendues tardives, as cited in Beck's Med. Jur. 366, 7th ed.)

(r) Harg. Co. Litt . 123. b., note (2). (») Beck's Med. Jnrisp. 210, 7th ed.

(0 lb., and ChiUy's Med. Jurisp. 406. (u) Beck, ut suprii.

(x) Id. 212. (y) lb.

(z) 1 Kings, iii. 16, Part I. Chap. 3, art. 35. (a) 2 Blockst . Com. 297. January, 1845.—8

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