tory evidence of the date of the sale. Morgan v. Whitmore, 6 Exch. 716; 20 L. J., Ex. 289. On the ground of danger of collusion, it was considered necessary to give extrinsic evidence of the date of letters put in to show the terms on which husband and wife were living, in an action for adultery. Trelawney v. Colman, 2 Stark. 193.

In many cases, though the fact of actual knowledge cannot be proved, it will be presumed. Thus, where the rules of a club are contained in a book openly kept by the proper officer or servant of the club, every member of the club must be presumed to be acquainted with them. Raggett v. Musgrave, 2 C. & P. 556; Alderson v. Clay, 1 Stark. 405; Wiltzie v. Adamson, 1 Phill. Ev. 252, 6th ed. A person dealing with a registered company is presumed to know the registered constitution of the company. Balfour v. Ernest, 5 C. B., N. S. 600; 28 L. J., C. P. 170.

It is not very easy to distinguish those presumptions which are obligatory on a jury from those which they are at liberty to disregard and to negative, even when not rebutted. Judges have entertained different opinions on this head as regards the effect of long user in proof of prescriptions and customs. On the one hand, the title to important rights can hardly be considered as secure, if no antiquity of enjoyment can prevent them from being exposed to the casualties of a verdict; on the other hand, it seems to be a contradiction in terms to leave to the jury presumptive evidence of a fact with no alternative but to find it. See the remarks in Newcastle, Pilots of, v. Bradley, 2 E. & B. 430-1, n.

It is not permitted to the parties to prove every fact which would lead to a presumption in some measure bearing on the question in issue. If there were no limits to this, it is obvious that a trial might be unduly lengthened; and it is clear that a judge may refuse to receive evidence which only leads to a very weak presumption. See Proof of collateral facts, post, pp. 80, 81.

Presumption of Payment.] If a landlord gives a receipt for the rent last due, it is presumable that all former rent has been paid. Gilb. Ev. 157. And payment from 1864 to 1877 by a tenant in common to his co-tenant of a moiety of the rent of the lands is said to be evidence of such payment prior to 1864. Sanders v. Sanders, 19 Ch. D. 373, C. A. Where a bill of exchange, negotiated after acceptance, is produced from the hands of the acceptor after it is due, the presumption is, that the acceptor has paid it; Gibbon v. Featherstonhaugh, 1 Stark. 225; but not without proof of circulation after acceptance. Pfiel v. Vanbatenberg, 2 Camp. 439. Proof that the plaintiff and other workmen employed by the defendant came to him regularly every week to receive their wages from him, and that the plaintiff had not been heard to complain of non-payment, is presumptive evidence of payment of his past wages. Lucas v. Novosilieski, 1 Esp. 296; Sellen v. Norman, 4 C. & P. 80. So where the demand was for the proceeds of milk sold daily to customers by the defendant as agent to the plaintiff, and it appeared that the course of dealing was for the defendant to pay the plaintiff every day the money which she had received without any written voucher passing, it was ruled that it was to be presumed that the defendant had in fact accounted, and that the onus of proving the contrary lay on the plaintiff. Evans v. Birch, 3 Camp. 10. So where goods have been consigned to a factor to sell on commission, it may be presumed, after a reasonable time [e. g. 14 years] that he has accounted. Topham v. Braddick, 1 Taunt. 572. A debt, whether by simple contract or specialty, may be presumed to be satisfied from mere lapse of time. Thus, a simple loan 13 years ago may be presumed to be repaid, where no evidence to the contrary is offered; Cooper v. Turner, 2 Stark. 497. A similar presumption was held to arise in the case of a promissory

note; Duffield v. Creed, 5 Esp. 52; see also Brown v. Rutherford, 14 Ch. D. 687, C. A.; this was, however, doubted by Abbott, C. J., in Du Belloix v. Waterpark, 1 D. & Ry. 16. The production of a cheque drawn by the defendant on his banker, and payable to the plaintiff, with proof that plaintiff indorsed his name upon it, and that it had been paid, affords prima facie evidence of payment to him. Egg v. Barnett, 3 Esp. 196; Boswell v. Smith, 6 C. & P. 60. So the drawing of a cheque by A. in favour of B., and payment of it to B., was held proof of payment by A. to B., without showing that A. gave it to B. Mountford v. Harper, 16 M. & W. 825; correcting the decision in Lloyd v. Sandilands, Gow, 16. The strength of evidence such as that in the cases last cited must necessarily vary with the character of the debt, the mode in which it has been contracted, the position of the parties, and other similar circumstances. As if the party producing the security were fellow-lodger or clerk to the original holder, or his near relation, or in any position where he might easily possess himself of the document. Where S. proved that he lent B. a cheque on his bankers for 100l., and produced the cheque crossed with the names of B.'s bankers, and showed that 1007. had been paid to the account of B. the day after the cheque became due; but it appeared that the papers of B., after he became bankrupt, fell into the hands of S. it was held that there was no presumption that the amount of the cheque had been paid to B. Bleashy v. Crossley, 3 Bing. 430. In an action by indorsee against acceptor, to which defendant pleaded payment, the plaintiff produced the bill on which a receipt was indorsed; proof was given that an unknown person had, after dishonour by the defendant, paid the amount to a holder, and taken it away with the receipt indorsed: held that this was no evidence of payment by the defendant. Phillips v. Warren, 14 M. & W. 379.

Although a limitation of actions on bonds, &c., is now provided for by stat. 3 & 4 Will. 4, c. 42, yet a reference to the cases under the former law will still be occasionally necessary or convenient. Payment of a bond is presumed after 20 years without demand made; Oswald v. Legh, 1 T. R. 270; Bostock v. Hume, 7 M. & G. 893; and even after the lapse of a less time, if other circumstances concur to fortify the presumption, as a settlement of accounts in the mean time. S. C. Colsell v. Budd, 1 Camp. 27. The presumption may be rebutted by circumstances, as by the defendant's admission of the debt, or by proof of payment of interest within 20 years. So by proof that the defendant has resided abroad during the whole of the time; Newman v. Newman, 1 Stark. 101; Elliott v. Elliott, 1 M. & Rob. 44 ; or was insolvent; Fladong v. Winter, 19 Ves. 196; see Hull, Mayor of, v. Horner, Cowp. 109, and 3 Man. & Ry. 118, n., where the origin of the doctrine of 20 years' presumption is discussed. But see Willaume v. Gorges, 1 Camp. 217, contra.

On the ground that they are against the obligee's interest, indorsements on a bond made by the deceased obligee, acknowledging the receipt of interest within 20 years, have been admitted to rebut the presumption of payment of principal, provided there be evidence that such indorsements existed before the presumption of payment arose. Searle v. Barrington, Ld., 2 Stra. 826; Rose v. Bryant, 2 Camp. 322; Gleadow v. Atkin, 1 Cr. & M. 421. But where the indorsement was made after the lapse of 20 years it was not admissible in evidence; Turner v. Crisp, cited 2 Stra. 827. Since Ld. Tenterden's Act (9 Geo. 4, c. 14), s. 3, indorsements of this kind are no longer sufficient to prevent the operation of the Statute of Limitations in the case of bills, notes, and other simple contracts within the provisions of that statute; but they may still be admissible for other purposes, as to rebut the presumption of payment of principal; and as the act of 9 Geo. 4 scems to contemplate only "writings" within the old Statute of Limita

Property.-Grants, &c.

336

37

tions and no similar provision is contained in the stat. 3 & 4 Will. 4, c. 42, indorsements on bonds and specialties may still be available to exempt the debt from the operation of the statute, by constituting evidence of part payment under sect. 5 of the last act. If so, it may be a question whether notwithstanding the decisions mentioned under the last head respecting the presumption in favour of the dates which instruments purport to bear, some extrinsic evidence ought not to be given that the indorsements were really made at the date thereof, or at least before the time of limitation had lapsed. See the observations in 1 Taylor, Evid., §§ 623–629. The preponderance of authority is at present against the admission of such indorsements without extrinsic proof of the date. An indorsement, made within 20 years, of the payment of interest within 20 years, is sufficient to rebut the presumption, though the interest accrued beyond 20 years. Sanders v. Meredith, 3 M. & Ry. 116. An indorsement on a note, payable after demand, of the payment of interest is evidence of the note having become payable by a demand having been made. Brown v. Rutherford, 14 Ch. D. 687, C. A.

Presumption of Property.] Proof of the possession of land, or of the receipt of rent from the person in possession, is prima facie evidence of seisin in fee. See post, tit. Action for recovery of land. The owner of the feesimple is presumed to have a right to the minerals; but that presumption may be rebutted by non-enjoyment, and by the user of persons not the owners of the soil. Rowe v. Grenfel, Ry. & M. 396; Rowe v. Brenton, 8 B. & C. 737. Payment of a small unvaried rent for a long series of years [e.g. 38] to the lord of a manor, raises the presumption that the rent is a quit rent, and not rent service. Doe d. Whittick v. Johnson, Gow, 173. Sed qu. see Hardon v. Hesketh, 4 H. & N. 175; 28 L. J., Ex. 137. But long-continued payment by one lord of a manor to another lord is not presumptive evidence that one manor was originally part of the other. Anglesey, Ms., v. Hatherton, Ld., 10 M. & W. 218. In ejectment for a mine, a former recovery in trover for lead dug out of it does not per se afford evidence of the plaintiff's then possession of the mine. B. N. P. 102. The owners of contiguous houses have no presumed right of mutual support. It must be claimed by actual or implied grant or reservation. 2 Roll. Ab. 564, l. 50 ; Partridge v. Scott, 3 M. & W. 220; and see Angus v. Dalton, infra. But it is otherwise in the case of the ownership of adjoining land in its natural state. Roll. Ab. supra, and cases cited in Humphries v. Brogden, infra. So where the surface and the subsoil are vested in different owners, the presumption is that the owner of the surface has a right to the support of the subsoil. Humphries v. Brogden, 12 Q. B. 739, and judgment. Ibid. As to the presumption of a right of lateral support for buildings, see Angus v. Dalton, 6 Ap. Ca. 740, D. P. See further post, tit. Action for disturbance of right of support. In all these cases the presumption may be displaced or reversed by proof of express covenants between the parties, or by implied obligations arising out of the original circumstances under which the property became divided. See Richards v. Rose, 9 Exch. 218; 23 L. J., Ex. 3.

For other cases of presumed ownership, or property, see further the heads Action for nuisance, Trespass to land, post.

Presumption of Grants, &c.] It is a rule of prescription that "antiquity of time justifies all titles and supposeth the best beginning the law can give them.' So that if evidence be given, after long enjoyment of property to the exclusion of others, of such a character as to establish that it was dealt with as of right as a distinct and separate property in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in

pursuance of such an origin, which, in the absence of proof that it was modern, is deemed to have taken place beyond legal memory." Johnson v. Barnes, L. R., 7 C. P. 592, 604, per cur. ; L. R., 8 C. P. 527, Ex. Ch. Thus, independently of the statute 2 & 3 Will. 4, c. 71, for shortening the time of prescription, evidence of the adverse enjoyment of an easement (as of lights or a way) for twenty years or upwards, unexplained, is held to afford a presumption of a grant or other lawful title to enjoy it. Lewis v. Price, 2 Wms. Saund. 175 a; Campbell v. Wilson, 3 East, 294; Livett v. Wilson, 2 Bing. 115, post, Action for disturbance of way. The uninterrupted possession of a pew for 36 years affords a presumption of title by faculty or otherwise. Rogers v. Brooks, cited 1 T. R. 431, n. So the use for over 40 years of a signboard attached to an adjacent house is evidence of a grant of the easement to keep it there. Moody v. Steggles, 12 Ch. D. 261. Exclusive possession of a stream of water in any particular manner for 20 years is presumptive evidence of right in the party enjoying it derived from a grant, or, if need be, an act of parliament. Bealey v. Shaw, 6 East, 215. See Mason v. Hill, 5 B. & Ad. 1; Magor v. Chadwick, 11 Ad. & E. 571; Ivimey v. Stocker, L. R., 1 Ch.396. So from 20 years' enjoyment the jury may presume a grant of the right of landing nets on another's ground to the owners of a fishery. Gray v. Bond, 2 B. & B. 667. When rights of common and estovers have been enjoyed for many years by the freehold tenants of a manor, and also by the inhabitants, the latter will be presumed to claim through the former, so as to have acquired a legal origin for the right. Warrick v. Queen's College, Oxford, L. R., 6 Ch. 716. So where a borough corporation had by prescription a several oyster fishery in an estuary, and the free inhabitants of ancient tenements in the borough from time immemorial, without interruption and claiming as of right, exercised the privilege of dredging for oysters without stint during a portion of the year, it was held that the right of the corporation must be presumed to have been granted to them subject to a trust or condition in favour of such inhabitants in accordance with the usage. Saltash, Mayor of, v. Goodman, 7 Ap. Ca. 633, D. P. In order, however, to establish the presumption of a grant of an easement, it must appear that the enjoyment was with the acquiescence of him who was seised of an estate of inheritance; for a tenant for life or years has no power to grant such right, except as against himself. Bright v. Walker, 1 C. M. & R. 219; Daniel v. North, 11 East, 372; Barker v. Richardson, 4 B. & A. 579. And in order to make the enjoyment evidence as against a reversioner, there must be evidence against him of acquiescence distinct from the mere enjoyment of the easement. But, if the easement existed previously to the commencement of the tenancy, the fact of the premises having been for a long time in the possession of a tenant will not defeat the presumption of a grant. Cross v. Lewis, 2 B. & C. 686; see post, Action for disturbance of way; Proof of Public way. As to presumption of a grant of lateral support ing, see Angus v. Dalton, 4 Q. B. D. 162, C. A. ; 6 Ap. Ca. 740, D. P. As to presumed grants and reservations of easements, see further sub tit. Actions for obstruction of light and air, and for disturbance of watercourse, post.

for a

build

As a jury will be at liberty to negative a grant, unless some probable evidence of one is laid before them, the title by lost grant cannot always be relied on. See Norfolk, Duke of, v. Arbuthnot, 5 C. P. D. 390, 392. The stat. 2 & 3 Will. 4, c. 71, while on the one hand it confers a new title by uninterrupted enjoyments, and so dispenses with the necessity of presuming grants, on the other hand enacts (sect. 6), that in the cases therein provided for (that is, cases of easements and profits à prendre) no presumption shall be made in support of a claim on proof of enjoyment for a less period than the number of years specified in the act.

Charters and grants from the Crown may be presumed from length of

possession (as, for instance, 100 years) not merely in suits between private parties, but even against the Crown itself, if the Crown be capable of making the grant. Hull, Mayor of, v. Horner, Cowp. 102; Jenkins v. Harvey, 1 C. M. & R. 877. Even where there is no person competent to make an indefeasible grant, an act of parliament may be presumed in favour of very long user. Lopez v. Andrew, 3 M. & Ry. 329, n. But it has been said that "no judge would venture to direct a jury that they could affirm the passing of an act of parliament within the last 250 years, on an important subject of general interest, of which no vestige can be found on the parliament rolls or other records, or in the history of the country:" and the court accordingly refused to presume any act sanctioning a mode of nominating by the Crown to a deanery, which was shown to have begun in the 16th century, and to have continued, without interruption, for the last 250 years. R. v. S. Peter's, Exeter, 12 Ad. & E. 512; and see a like opinion expressed in Att.-Gen. v. Ewelme Hospital, 17 Beav. 366; 22 L. J., Ch. 846. See also Chilton v. Corporation of London, 7 Ch. D. 735. See also cases of presumption arising from long possession mentioned arguendo, in Tenny v Jones, 10 Bing. 78; Doe d. Millett v. Millett, 11 Q. B. 1036; Lyon v. Reed, 13 M. & W. 285. Where by an act of Will. 3 certain corporation land was set apart for a burial ground, which was afterwards consecrated; it was held that a conveyance of the land from the corporation might be presumed. Campbell v. Liverpool, Mayor of, L. R., 9 Eq. 579.

Where the origin of the possession is accounted for without the aid of a grant or conveyance, and it is consistent with the fact of there having been no conveyance, it requires stronger evidence than mere possession to warrant a jury in saying that any conveyance has been executed. Doe d. Fenwick v. Reed, 5 B. & A. 232. And user of land is evidence of a grant thereof, only where the user would otherwise be illegal; where the user is referable to an existing easement there is no presumption of such grant. Lee Conservancy Board v. Button, 12 Ch. D. 383, 406, 409, C. A. ; 6 Ap. Ca. 685, D. P. Where there is no evidence of the right to an easement, except mere user, without any trace of the commencement of it, it is evidence of a title by prescription rather than by grant. Blewett v. Tregonning, 3 Ad. & E. 554. A Crown grant of a profit à prendre to the inhabitants of a parish, thereby incorporating them, will not be presumed if the presumption is inconsistent with the past and existing state of things, and there is no trace of such a corporation having existed. Rivers, Ld., v. Adams, 3 Ex. D. 361; Saltash, Mayor of, v. Goodman, 7 Ap. Ca. 633, 637. And it seems that a jury ought not to be encouraged to presume a Crown grant from mere user in favour of a party, who might, if he pleased, have produced an authentic enrolment of it, which was shown by his own witnesses to be in existence at the Tower. Brune v. Thompson, 4 Q. B. 543. Where the plaintiff claimed, on an indebitatus count, a toll by prescription, and proved constant perception of a fixed amount, which the jury found to be unreasonable; held, that the plaintiff was not entitled to recover at all, although the jury found what amount would have been reasonable. S. C. As to presumption of fees, tolls, &c., being payable from long-continued payment of them, see the following cases- Shephard v. Payne, 12 C. B., Ñ. S. 433; 31 L. J., C. P. 297; 16 C. B., N. S. 132; 33 L. J., C. P. 158; Bryant v. Foot, L. R. 2 Q. B. 16; L. R., 3 Q. B. 497, Ex. Ch.; Lawrence v. Hitch, Id. 521, Ex. Ch.; Mills v. Mayor of Colchester, L. R., 2 C. P. 476; L. R., 3 C. P. 575; Gann v. Free Fishers of Whitstable, 11 H. L. C. 192; 35 L. J., C. P. 29; Free Fishers of Whitstable v. Foreman, L. R., 4 H. L. 266.

Mere possession of a lease by the lessor, with the seals cut off, affords no presumption of a surrender in writing under the Stat. of Frauds. Doe d. Courtail v. Thomas, 9 B. & C. 288.