Imágenes de páginas

their concurrence. Thus, the courts will presume in favour of a return to a mandamus ;(i) and where a parish certificate, which appeared to have been signed only by one churchwarden, had been allowed by two justices of the peace, a custom was presumed of the parish having only one churchwarden.(1) And in R. v. Morris, Lord Kenyon lays it down, that everything is to be intended in support of orders of justices, as contradistinguished to convictions.(k) This expression, however, must not be understood to mean that presumptions will be made inconsistent with the manifest probabilities of the case.(l)

$ 68. We next come to the consideration of judicial acts. These, from their very nature, are in general susceptible of more regular

proof, so that the maxim, *** omnia præsumuntur ritè

Jacta,” has, with respect to them, a much more limited extent. “With respect to the general principle of assuming a regularity of procedure," says Sir D. Evans," it may, perhaps, appear to be the true conclusion, that, wherever acts are apparently regular and proper, they ought not to be defeated by the mere suggestion of a possible irregularity. This principle, however, ought not to be carried too far, and it is not desirable to rest on a mere presumption that things were properly done, when the nature of the case will admit of positive proof of the fact, provided it really exists."(m) It is a princi. ple that irregularity will not be presumed ;(n) 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.(c) So, while common recoveries were a usual mode of assur. ance, it was held, that, when a recovery was suffered by a person who had power to do so, the maxim, “omnia præsumuntur ritè acta," should apply, until the contrary appeared.(p) Thus, where possession had gone with a recovery for a long time, even the surrender of his estate by the tenant for life would be presumed.(9) In the case of Doe d. Hitchings v. Lewis,(r) it was contended, that no presumption would be made in support of a judgment obtained by confession or

y default, or in any other way *than upon a trial of the L oud merits. This however, seems overruled in that case, where it was held, that, after an acquiescence of nearly twenty years in a recovery in ejectment by a landlord, the affidavit required by 4 Geo. 2, c. 28, s. 2, that half a year's rent was due at the time of the ejectment brought, may under circumstances be presumed.

$ 69. So, in the case of awards, “it is a maxim of the courts both

[ocr errors]

of law and equity," says Mr. Caldwell, “never to raise a presumption for the sake of overturning an award; but, on the contrary, to make every reasonable intendment in its support.”(s) The cases in illustration of this principle are extremely numerous ;(() and the following general rules for the construction of awards are deduced from them by a recent writer on the subject :(u) ist, Noihing shall be intended against an award. 2ndly, Unless an award appears not to be final or certain, either on the face of it, or by averment, it is to be considered certain and final, although it may not be so according to extrinsic circumstances. 3rdly, If there be an ambiguity in the words of an award, the courts will put such a construction upon them as will best coincide with the apparent intention of the arbitrators."

$ 70. It seems now established, that the maxim,“ omnia, #præsumuntur ritè esse acta," does not apply to give juris. L diction to magistrates or other inferior tribunals.(v) Thus, where a power was given to the justices under a mutiny act, to take the exa. mination of a soldier quartered at the place where the examination took place, and the examination when taken, did not show 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, unless it were shown by evidence that he was so quartered at the time.(30)

$71. We next proceed io consider the application of this maxim to extra-judicial acts, such as written instruments, and other 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, of course, competent to the opposite party to call him to disprove the regularity of the execution.(y) 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 witness can only speak to the fact of signing, it may be properly left to the jury to presume a sealing and delivery.(z) So, where *a party under a power of appointment by deed, required to be signed and sealed L * in the presence of witnesses, exercised the power by a deed purporting

(6) Caldwell on Arbitration, p. 132, 2nd ed. This must, however, be understood with reference to the law as practised in modern times. “The early cases in our law books on the construction of awards," says Mr. Watson, “ turn on nice and subtle distinctions ; much refinement, and some uncertainty and contrariety of decision will be found on that subject. But a more certain, liberal and reasonable system has been for many years intro. duced on the subject of awards.” (Watson on Arbitration, p. 142, 2nd ed.)

(1) A great number are collected in the works cited in the last note. (u) Watson on Arbitration, 143 et seq.

id) Per Heath, J., in R. v. All Saints', Southampton, 7 B. & C. 790, (14 Eng. Com. Law Reps.) See the cases there cited, and also in R. v. Hulcolt, 6 T. R. 583.

(1) R. v. All Saints', Southampton, 7 B. & C. 790, (14 Eng. Com. Law Reps.) (v) Phil. Ev. part 2, c. 4, p. 650, et seq.

TE) Burling v. Paterson, 9 C. & P. 570, (38 Eng. Com. Law Reps. ;) Ball v. Taylor, 1 C. & P. 417, (11 Eng. Com. Law Reps. ;) Grellier v. Neale, Peake, 146 ; Talbot v. Hodson, 7 Taunt. 251, (2 Eng. Com. Law Reps.) .

JANUARY, 1845.-5

to be signed, sealed and executed in the presence of three credible witnesses, but the attestation only spoke of a sealing and delivering in their presence, it was considered by Lord Eldon, that the fact of signing ought to be presumed.(a) So, where an agreement is stated to have been reduced to writing, signing will be presumed.(b)

72. By the Statute of Frauds, 29 Car. 2, c. 3, s. 5, it was enacted, that “ all devises of lands should be in writing, and signed by the person devising the same, or by some person in his presence and by his direction, and should be atiested and subscribed in his presence by three or four credible witnesses." This clause has been repealed by 7 Will. 4 & 1 Vict. c. 26, s. 2; but as, by the 9th section of the latter act, every will must be executed in the presence of two or more witnesses, the decisions on the former act, as to what amounts to a signing in the presence of the testator, are still applicable.(c)

§ 73. Now, the courts have, in many instances, applied the maxim “ omnia præsumuntur ritè esse acta" to the execution of wills under both statutes, 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 statute has been complied with.(d) First, then, with respect to the signing by the testator in the presence of the witnesses : according to

several recent decisions in *the ecclesiastical courts, since [ *83 ]

the 7 Will. 4 & 1 Vict. c. 26, positive affirmative testimony is not required that a will was signed or the signature acknowledged by the testator in the presence of the witnesses, where the circumstances are such as fairly raise a strong presumption that the provisions of the statute have been complied with.(e) So, it has been established by several cases, that, where a will is signed by the wit. nesses in such a position that the testator might see them, it is to be presumed that he did see them sign it ;(f) as, for instance, where they attested the will in an adjoining room in which there was a broken window, through which the testator might see them;(g) and where they signed in a room into which the testatrix could see through the window of a carriage in which she was silting,(h) &c. But it is different where the witnesses attest the will in an adjoining room under such circumstances that the testator could not, from bis position, have seen them.(i) However, in the recent case of Newton v. Clarke,(k) Sir H. Jenner held, under the 7 Will. 4 & 1 Vict. c. 26, that where a paper is executed by the deceased in the same room where the witnesses are, and who attest the paper in that room, it is an attestation in the presence of the testator, although they could not actually see

him sign, *nor the testator actually see the witnesses sign. J So, where the contents of a will are scattered through

(a) M Queen v. Farquhar, 11 Ves. 467.

(6) Rist v. Hobson, 1 8. & Stu. 543. (c) I Jarman on Wills, 105. (d) Right, lessee of Cater, v. Price, Dougl. 243.

(e) See Blake v. Knight, 7 Jur. 633; Cooper v. Bocket, 7 Jur. 681 ; Pennant v. Kings. cote, Id. 754; Panton v. Williams, Id. 865. See, however, the judgment of Sir H. Jenner, Fusi in Ilott v. Genge, 3 Curt. 160.

U 1 Jarman on Wills, 75; 4 Burn's Eccl. Law, by Phillimore, p. 103, where the cases on this subjcct are collected.

(g) Shires v. Glascock, 2 Salk, 688. (h) Casson v. Dade, 1 Bro. C.C. 99.

(i) Doe d. Wright v. Manifold, I M. & S. 294; In the goods of Colman, 3 Curt. 118; Io the goods of Ellis, 2 Id. 395.

(K) 2 Curt. 320.

several sheets of paper, which would be adequately attested if all the detached parts were present when the act of attestation took place, that fact will be presumed unless the contrary is proved, and also that the attestation applied to the whole.(O) And the same presumption would hold, although less strongly, when each of the papers has a distinct independent character, as in the case of a will and codicil, or of two codicils.(m) Thus, where a testator acknowledged his signature to both sheets of a will consisting of two sheets, and also to a codicil consisting of one sheet, in the presence of F. H., who attested both and went away, subsequent to which the testator showed the codicil and last sheet of the will to J. V. and J. L., and sealed and delivered both in their presence, who attested as witnesses, but who never saw the first sheet, nor was any other paper on the table; both sheets of the will, not pinned together, being found, after the testator's death, wrapped up with the codicil in his bureau, it was held by the court of Queen's Bench, that it ought to be presunied the first sheet of the will was in the room at the time of the execution and attesting the other sheet.(n)

$74. So, collateral facts requisite to give validity to instruments will, in general, be presumed. Thus, where an instrument has been lost, it will be presumed to have been duly stamped ; and in one case this presumption was made in the case of an indenture of apprenticeship executed thirty years before, although an *officer from the Stamp Office proved that it did not appear that any !

[ *85 ]

HOE such indenture had been stamped.(0) 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.(p) And where a party brought an ejectment on the assignment of a term given by the defendant to secure the payment of an annuity, it was held by Lord Ellenborough, at Nisi Prius, unnecessary for the plaintiff to prove that ihe annuity had been inrolled in pursuance of the 17 Geo. 3, c. 26, as, if it were not inrolled, that would more properly come from the other side.(9) This principle has also been extended to the construction of instruments. Thus, where deeds bear date on the same day, a priority of execution will be presumed to support the clear intention of parties ;(r) as, for instance, where property is sought to be conveyed by lease and relcase, both of which are contained in one deed, it is said that a priority of execution of the lease will be presumed.(s) 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.(1)

$ 75. So, interlineations in deeds are presumed to have been made previous to their execution, unless the contrary appears, ee

36 ] or there are circumstances to cast suspicion *on them ;(u) L

(1) I Jarman on Wills, 78. (m) Ib. (n) Bond v. Seawell, 3 Burr. 1773.
(0) R. v. Long Buckby, 7 East, 45. (p) Crisp v. Anderson, 1 Stark. 35.
(9) Doe d. Griffin v. Mason, 3 Camp. 7.
(r) Barker v. Keete, 1 Freem. 349; Taylor d. Atkins v. Horde, 1 Burr. 106.
(6) Per North, C. J., in Barker v. Keete, I Freem. 251.
(1) Ib.; per Willes, C. J., in Brice v. Smith, Willis, 1; and see the cases there cited.

(u) Shepp. Touchst. 53, n., (1.) 8th ed.; Trowel v. Castle, 1 Keb. 21, 22. See, also, Fitzgerald v. Fauconberge, Fitzg. 214; and Glanville v. Paine, Barnard. Ch. R. 19.

and the same rule seems to apply to erasures.(v) But it is said, that a rasure or interlineation in a deed upwards of thirty years old raises a presumption against the instrument, which must be removed either by the evidence of the subscribing witness, or of some other party who can explain it.(x)

[ocr errors][merged small][merged small]

$ 76. The presumption of right in a party found in the possession of property, or of that quasi possession of which rights only occasionally exerciseable are susceptible, is highly favoured in every system of jurisprudence, (a) and seems to rest partly on principles of natural justice, and partly on public policy. By the law of England, possession, or quasi possession, as the case may be, is primâ facie evidence of property ;(6) 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.(c) 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 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 solemniter essa acta."(d) Í 199 *$ 77. In treating this important subject, it is proposed

" ] to consider, Ist, The presumption from long user of prescriptive and other rights to things which lie in grant, both at common law, and as affected by the statutes 2 & 3 Will. 4, cc. 71 and 100. 2ndly, Other incorporeal rights not affected by those statutes. 3rdly, Presumptions of collateral facts in support of beneficial enjoyment.

$78. Among the various ways in which a title to property can be acquired, most systems of jurisprudence recognise ihat of prescription or undisturbed user or possession for a period of time, longer or shorter, as fixed by law.(e) Præscriptio est titulus ex usu et tempore substantiam capiam ab authoritate legis.(s) According to the common law of England, this species of tiile cannot be made to land or corporeal hereditaments,(g) or to such incorporeal rights as must arise

(0) Shepp. Touchst. 53, n., (I.) 8th ed. (s) Selw. N. P. 549, 9th ed.; Phil. Ev. 663, 8th ed. (a) Huberus, Præl. J. C., lib. 22, tit. 3, n. 16. (b) Phil. Ev. 472, 8th ed.; 2 Inst. 391.

(c) Roscoe, Civ. Ev. 22; Jayne v. Price, 5 Taunt. 326, (1 Eng. Com. Law Reps.) See, also, Denn d. Tarzwell v. Barnard, Cowp. 595.

(d) Co. Litt. 6. b. This maxim is clearly a case where priora præsumunter a posteriori. bus. See the preceding chapter, art. 62.

(e) 2 Blackst. Com. 263; Greenl. L. E., art. 17; Cod., lib. 7, lit. 33 et seq. US) Co. Litt. 113. a. ig) Dr. & Stud. Dial. 1, c. 8; Finch, Common Law, 31; Vin Abr., lit. Presc. B. pl. 2; Brooke, Abr., lit. Presc. pl. 19; Wilkinson v. Proud, 11 M. & W. 33; 7 Jur. 204. A man

« AnteriorContinuar »