PRESUMPTIONS OF FACT. 133 § 131. A spirit of comity and a disposition to friendly intercourse are also presumed to exist among nations as well as among individuals, and in the silence of any positive rule, affirming or denying or restraining the operation of foreign laws, courts of justice presume the adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests (1). The instances here given, it is hoped, will sufficiently illustrate this head of presumptive evidence. § 132. PRESUMPTIONS OF FACT, usually treated as composing the second general head of presumptive evidence, can hardly be said, with propriety, to belong to this branch of the law. They are in truth but mere arguments, of which the major premiss is not a rule of law; they belong equally to any and every subjectmatter; and are to be judged by the common and received tests of the truth of propositions, and the validity of arguments. They depend upon their own natural efficacy in generating belief, as derived from those connections, which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the system of jurisprudence, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind, without the aid or control of any rules of law whatever. Such, for example, is the inference of guilt, drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house which, by means of such an instrument, had been burglariously entered. These presumptions remain the same under whatever code the legal effect of the facts, when found, is to be decided (m). § 133. There are, however, some few general propositions in regard to matters of fact, and the weight of testimony, which, (7) Bank of Augusta v. Earle, 13 Pet. 519, 589; Story, Confl. of Laws, §§ 36-38. (m) See 3 St. Ev. 932; 6 Law Mag. 370. This subject has been successfully illustrated by Mr. Wills, in his Circumst. Ev., passim. 134 TESTIMONY OF ACCOMPLICES-VERBAL ADMISSIONS. being universally taken for granted in the administration of justice, and sanctioned by the usage of the bench, may with propriety be mentioned under this head. Such, for instance, is the caution given to juries, to place little reliance on the testimony of an accomplice, unless it is confirmed, in some material point, by other evidence. There is no presumption of the common law against the testimony of an accomplice; yet experience has shown, that such persons are but little worthy of credit; and on this experience the usage is founded (m). A similar caution should prevail in regard to mere verbal admissions of a party, this kind of evidence being subject to much imperfection and mistake (n). Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, Nullum tempus occurrit regi, yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted possession. Accordingly, royal grants have been thus found by the jury, after long continued peaceable enjoyment, accompanied by the usual acts of ownership (o). So, after less. than forty years possession of a tract of land, and proof of a prior order of council for the survey of the lot, and of an actual survey thereof accordingly, it was held in America, that the jury were properly instructed to presume, that a patent had been duly issued (p). In regard, however, to crown or public grants, a longer lapse of time has generally been deemed necessary, in order to justify this presumption, than is considered sufficient to authorise the like presumption in the case of grants from private persons. (m) See further as to the corroboration of accomplices in the Chap. On the number of witnesses. (n) 5 C. & P. 542, n. per Parke, J.; R. v. Simons, 6 C. & P. 541, per Alderson, B.; Williams v. Williams, 1 Hagg. Cons. R. 304. See post, under head Admissions. (0) R. v. Brown, cited Cowp. 110; Mayor of Kingston upon Hull v. Horner, Cowp. 102; Eldridge v. Knott, Cowp. 215; Mather v. Trinity Church, 3 Serg. & R. 509; Roe v. Ireland, 11 East, 280; Goodtitle v. Baldwin, id. 488. (p) Jackson v. McCall, 10 Johns. 377.-" Si probet possessionem excedentem memoriam hominum, habet vim tituli et privilegii, etiam à Principe. Et hæc est differentia inter possessionem xxx. vel xl. annorum, et non memorabilis temporis ; quia per illam acquiritur non directum, sed utile dominium ; per istam autem directum." Mascard, De Probat. vol. 1, p. 239; Concl. 199, n. 11, 12. PRESUMPTION OF CONVEYANCE. 135 § 134. Juries are also often instructed or advised, in more or less forcible terms, to presume conveyances between private individuals, in favour of the party who has proved a right to the beneficial ownership, and whose undisturbed possession, being consistent with the existence of the conveyance required to be presumed, affords reasonable ground for belief that the legal title has, in fact, been conveyed (q). This presumption is made, in order to prevent an apparently just title from being defeated by mere formal matter (r); but here we may observe, in the language of Chief Justice Tindal (s), that "no case can be put in which any presumption has been made, except when a title has been shown by the party who calls for the presumption, good in substance, but wanting some collateral matter necessary to make it complete in point of form. In such case, where the possession is shown to have been consistent with the existence of the fact directed to be presumed, and in such case only, has it ever been allowed." § 135. Subject to these observations, the presumption in favour of a conveyance will, in general, be allowed to prevail, whenever it was the declared duty of trustees to convey to the beneficial owner at a specified time, as upon his attainment of the age of majority, or on the death of a cestui que vie, or after the payment of debts, legacies, portions or the like; for in such cases it is reasonable to presume that the trustees have performed their duty, and done what a court of equity would compel them to do (t). A like presumption will probably arise where the duty to convey, though not expressly declared, may constructively be gathered from the object of the trust; as, for instance, where an estate is vested in trustees for a temporary purpose, which has been attained, and no further intention is declared, or can reasonably be inferred, requiring the legal estate to remain outstanding (u). (2) Doe v. Cooke, 6 Bing. 180, per Tindal, C. J. (1) England v. Slade, 4 T. R. 682; Doe v. Sybourn, 7 T. R. 2.; 2 Esp. 496, S.C.; Wilson v. Allen, 1 Jac. & Walk. 611, 620, per Sir T. Plumer; Emery v. Grocock, 6 Madd. 54, per Sir J. Leach. In England v. Slade, a conveyance from the trustees was presumed, though only three years had elapsed from the time when they ought to have conveyed. (u) Hillary v. Waller, 12 Ves. 239, 251, 252, per Sir W. Grant; Doe v. Lloyd, 136 SURRENDER OF OUTSTANDING TERMS. § 136. It has been asserted, and probably with correctness, that this presumption will never be made against the owner of the inheritance, with the single exception of those cases, where he has attempted to defeat the solemn acts of himself, or of those through whom he claims. Thus, if a mortgagor attempt to set up an outstanding fee as against a mortgagee for years, or the appointee of a devisee in fee dispute the former right of the devisor to grant a lease of the premises in question, on the ground that the legal estate was, at the time of the grant, outstanding in a trustee, the jury, in cases where the estoppel is not pleaded, may still presume a conveyance; for in the first case (v) the presumption will be made in favour of the honesty of the mortgagor at the time of the mortgage, though against his interest at the time of the trial; and in the second (w) it will equally prevail, in order to give validity and effect to the grant of the devisor, which would otherwise be void. § 137. Questions respecting this head of presumptions frequently arose in former times, when juries used to be called upon to presume the surrender of outstanding satisfied terms; but by an excellent act (a), which was passed in the year 1845, these questions were finally settled. The act, after reciting that "the assignment of satisfied terms has been found to be attended with great difficulty, delay and expense, and to operate, in many cases, to the prejudice of the persons justly entitled to the lands to which they relate," enacts, "that every satisfied term of years, which either by express declaration or by construction of law, shall, upon the 31st day of December, 1845, be attendant upon the inheritance or reversion of any lands, shall, on that day, absolutely cease and Pea. Ev. App. 41, per Lawrence, J. These cases tend to establish a doctrine somewhat more favourable to presumptions than that stated in the text, but they have not met with general approbation from the profession. See 2 Sug. V. & P. 196; Mathews, Presump. Ev. 215-217. (v) Per Abbott, C. J., in Doe v. Hilder, 2 B. & A. 790. (w) Bartlett v. Downes, 3 B. & C. 616, 622, per Abbott, C. J. (x) 8 & 9 Vict., c. 112. The rough draft of the 1st and 2nd sections of this Act was drawn by Mr. Davidson and settled by Mr. Christie. The subject was afterwards submitted to the Law Amendment Society, who sanctioned the proposed amendment; and the Bill was then drawn in its present form by one of the ablest members of that body, and became the law of the land under the auspices of Lord Brougham. OUTSTANDING TERMS' ACT. 137 determine as to the land, upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years, which shall be so attendant as aforesaid by express declaration, although hereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and demand, as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said 31st day of December, 1845, and shall, for the purpose of such protection, be considered in every court of law and of equity to be a subsisting term." Sect. 2 enacts, "That every term of years now subsisting or hereafter to be created, becoming satisfied after the said 31st of December, 1845, and which by express declaration or construction of law, shall after that day become attendant upon the inheritance or reversion of any lands, shall, immediately upon the same becoming so attendant, absolutely cease and determine as to the land, upon the inheritance or reversion whereof such term shall become attendant as aforesaid" (y). § 138. Notwithstanding this act, it is perfectly clear that no presumption can be allowed in favour of the surrender of a term, which is still unsatisfied (z), or the continuance of which is found in a special verdict, or admitted in a special case (a); for whatever individual hardship may result from the rule of law that a plaintiff in ejectment must recover from the strength of his own legal title, it is obviously absurd to permit any inference to be drawn, which is directly opposed, either to the ascertained fact, or to all reasonable belief (b). (y) § 3 enacts, "That in the construction and for the purposes of this Act, unless there be something in the subject or context repugnant to such construction, the word 'lands' shall extend to all freehold tenements and hereditaments, whether corporeal or incorporeal, and to all such customary land as will pass by deed, or deed and admittance, and not by surrender, or any undivided part or share thereof respectively; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male." (2) Doe v. Staple, 2 T. R. 684, where the lessor of the plaintiff was heir-at-law, and only claimed the premises subject to the charge. (a) Goodtitle v. Jones, 7 T. R. 47; Roe v. Reade, 8 id. 118. (b) See per Bayley, J., in R. v. Upton Gray, 10 B. & C. 812. |