executors should direct. The executors established a school; and the object of the suit was to recover so much of the personalty, vested in the mortgagees, as had not been applied (all dispositions by will of money secured by mortgage to charitable uses being void, by the statute of Mortmain). The Master of the Rolls, Sir R. P. Arden, upon the first hearing of the case, directed an inquiry to be made into the particular circumstances, without prejudice as to the result; and upon that occasion observed, that if a party, having knowledge of his rights, will sit still, and, without asserting them, permit persons to act as if they did not exist, to acquire interests, and consider themselves as owners of property to which the other will not assert his right, there is no reason why every presumption should not arise, as in the case of a bond.Upon the inquiry which was directed, it appeared that the accounts had been kept so regularly, that there was no difficulty in ascertaining the personal estate at the death of the testator. The Master of the Rolls, upon a full and able view of all the circumstances of the case, decided in favour of the claim of the next of kin. The following are the passages of his opinion more immediately applicable to the subject before us :- The bill certainly requires very extraordinary circumstances to sustain it at so late a period; and the first question is, whether, at this distance of time, it is too late to make the claim? The question in all the cases is, whether there are motives of public policy, or private inconvenience, to induce the court to say, that under all the circumstances the suit ought not to be entertained? It is a very sensible rule, that parties shall not, by neglecting to bring forward their demands, put others to a state of inconvenience, subjecting them to insuperable difficulties. If, from the plaintiff's lying-by, it is impossible for the defendants to render the accounts he calls for, or it will subject them to great inconvenience, he must suffer, or the court will interpose what is the best ground, public convenience. The question is whether these principles apply to this case? But first, I shall mention another ground; the presumption that the demand itself has in some manner been satisfied or released; that is a ground perfectly different from a bar, and prevails as much in a court of equity, as it has by modern determinations been wisely held to do at law. Every presumption that can be fairly made, shall be made against a stale demand. It may arise from the acts of the parties; or the very forbearance to make the demand affords a presumption, either that the claimant is conscious it was satisfied, or intended to relinquish it.' It will not be necessary to state the examination of the particular circumstances from which his honour very accurately concluded, that it was impossible by any fair presumption to infer, that the parties, being cognizant of their rights, slept upon them, or ever intended to relinquish, what he must say upon the whole complexion of the case, they never knew they had a right to.

"If the accounts of the personal estate (he proceeded to say) could not now be obtained, and it was impossible to know to what the plaintiffs were entitled, that is a sufficient reason for saying, they should not have it, and rob the charity, because they could not tell what belonged to them, and what to the charity; but that unfortunately is not the case. Therefore, desiring to be understood by no means to give any countenance to those stale demands, but upon the circumstances that there is nothing inducing great public or private inconvenience, that the accounts are found, and that the trustees are not called upon to account for what has been disbursed, I am bound to decide in favour of the plaintiffs.'

[22] "In Blewitt v. Thomas, 2 Ves. jun. 669, length of time was pleaded in equity, as matter of defence, and as inducing the presumption, that the demand was satisfied; and the plea was allowed. But in Pearson v. Belchier, 4 Ves. 627, the Master of the Rolls, while he held that a bill could not be entertained, on account of length of time, said, that it could not be pleaded in bar in the Court of Chancery. See also as to the following cases respecting the allowance or disallowance of length of time, in opposition to an equitable claim; Earl of Deloraine v. Brown, 3 Bro. Ch. 633; Hercy v. Dinwoody, 4 Bro. Ch. 257, 2 Ves. jun. 87; Ackerly v. Roe, 5 Ves. 565; Harmood v. Oglander, 6 Ves. 199, 8 Ves. 106. (1) In the case of Sutton v. Earl of Scarborough, 9 Ves. 71. (just published since this sheet was sent to the press) the Court of Chancery allows a plea of the statute of limitations to a bill in the nature of an action for money had and received, both as to the discovery and relief; but the decision does not affect the case of a mere bill of discovery. (2)

[23]"None of the statutes of limitations contain any provision in favour of incorporeal rights, (except in case of rents). According to the rules of law, the right to these can only be founded upon an actual grant, or an immemorial prescription, which supposes a grant. But in order to establish a right, as founded upon a grant, it would be unreasonable to expect the production of the grant itself, as a requisite indispensable to the support of the title which is derived from it. A long continued enjoyment, not otherwise to be accounted for, may, after such a period of time as renders it probable that the deed may be lost or destroyed, be fairly considered as evidence of its former existence; and from such evidence, the jury may be fairly induced to infer the truth of any proposition, which is not opposed by stronger evidence on the other side. But the decisions of our courts have carried the matter much further than is warranted by the mere application of this principle; and under the name of a presumption, have, in effect, rendered the length of enjoyment a direct and substantive title.

[(1) See further Stackhouse v. Bamston, 10 Vesey, 453, and cases there cited. As to iting an account to six years before the

filing the bill, see ibid. and Harmood v. Oglander, 6 Vesey, 199, 8 Vesey, 106.]

[ (2) See Baillie v. Sibbald, 15 Ves. 185.]

[24]"It is held that not only private grants, but records, and even Acts of Parliament, may be presumed from length of time; and so far as any such presumption is founded upon a real unaffected opinion of the truth so presumed, I subscribe to the justice and propriety of the proceeding. Beyond that, whilst I admit that the maintenance of a long established enjoyment is a very desirable object, I cannot forbear entertaining the opinion, that recent decisions have exceeded the proper limits of judicial authority, and have introduced a principle, which, though it is now perhaps only open to controversy, as a matter of speculation, was not warranted by the fair rules of legal argument.

"In the case of the Mayor of Kingston-upon-Hull against Horner, Cowp. 102, a toll had been received by the corporation for upwards of 300 years, but the corporation itself having been created within the time of legal memory, it was impossible that the title could be founded upon prescription; but it was left to the jury to infer from the usage, whether there had not been a grant of the duties subsequent to the charter of incorporation; and the verdict founded upon the presumption of such a grant was supported by the Court of King's Bench. But soon afterwards, Lord Mansfield, in referring to the authority of that case, advanced a position in favour of the principle which Í venture to contest. He said, that a grant may be presumed from great length of possession. It was so done in the case of the corporation of Hull against Horner; not that in such cases the court really thinks a grant has been made, because it is not probable that a grant should have existed, without its being upon record; but they presume the fact for the purpose, and from a principle of quicting the possession;" Cowp. 214. That is, in a case of adverse right, they profess, by way of form, to believe as true, what, in point of fact, they believe to be false, in order that length of time may, by fiction and circuity, produce an effect to which directly and primarily it is inadequate.

[25] "By statute, any quit-rent which has not been paid for fifty years is extinguished; and there having been no payment of a quit-rent of half-a-crown for thirty-seven years, that circumstance was left to the jury as a ground for presuming an estinguishment or release; but the Court of King's Bench decided, that such a presumption was not warranted by the evidence. Lord Mansfield, on that occasion, adverted to the principle, that the statute of limitations is a positive bar from length of time, and operates so conclusively, that although the jury and the court are satisfied that the claim still subsists, yet they are bound by the statute to defeat it : that there are many cases not within the statute, where, from a principle of quieting the possession, the court has thought that a jury should presume any thing to support a length of possession. He then proceeded to the position from which I have expressed my dissent, and afterwards shewed, from reasoning adapted to the particular case, that there was no ground for inferring an extinguishment. Mr. Justice Aston, in support of the same opinion, observed, that a presumption from length of time to support a right was very different from a presumption to defeat a right; Eldridge v. Knott, Cowp. 214.

[26] "But the case which seems to have had the most influence in modern determinations, is that of Lewis v. Price, tried before Mr. Justice Wilmot, at Worcester assizes, in the year 1761, in which he said, that where a house had been built forty years, and has had lights at the end of it, if the owner of the adjoining ground builds against them, so as to obstruct them, an action lies, and this is founded upon the same reason as where they have been immemorial; for this is long enough to induce a presumption, that there was originally some agreement between the parties: and he said, that as twenty years was sufficient to give a title in ejectment, on which he might recover the house itself, he saw no reason why it should not be sufficient to entitle him to any easement belonging to the house; Espinasse's Dig. 636. Afterwards, upon a motion for a new trial, twenty years' quiet and uninterrupted possession of ancient lights (a) was deemed a sufficient ground, from which a jury might presume a grant; Darwin v. Upton, cited 3 T. R. 159. So far as length of time is merely regarded as a circumstance, upon which a jury may exercise their judgment upon the real fact, I have already admitted the propriety of its influence. But now it has become a matter of daily and established practice to adopt Mr. Justice Wilmot's idea to its full extent, that twenty years' possession gives a title to any easement. It is acted upon as a presumption, juris et de jure, a legal fiction, upon which any argument or discussion is as much excluded as upon an averment of the defendant's being in the custody of the marshal of the Marshalsea, and not as a mere circumstance open to the discussion and consideration of a jury. (1) And it has even been held, that the forbearance to exercise a right for twenty years shall produce an extinction of the right itself, and that all rights incident to land shall be referred to the criterion of twenty years' enjoyment.

[27] "Having been engaged in opposing the application of that principle, and having in conjunction with some of the most distinguished ornaments of the profession, entertained the idea, that it was a deviation from the regular course of the law, to give the effect of a bar to a

"(a) There seems to be either a redundancy or inaccuracy in this expression. If the meaning was, that an enjoyment of twenty years was sufficient to impress the character of antiquity, the epithet of ancient is implied in the statement of the fact. If the word is used in its old and legitimate siguification, the VOL. III.

R

term of twenty years is out of the question.”

[(1) In Beeley v. Shaw, 6 E. 214, Lord Ellenborough said—“ Twenty years' exclusive enjoyment in any particular manner affords a conclusive presumption of right, derived from grant or Act of Parliament."]

mere presumption, whilst I submit to the contrary adjudication of the court, I cannot, upon the most frequent consideration, adopt the reasoning upon which that adjudication proceeded; and hope I shall not incur the imputation of presumption, by stating the argument by which it was opposed; fully aware of the influence of that prejudice which results from a professional engagement, and of the deference which is due to judicial authority.

[28] "I would previously suggest, that the analogy stated by Mr. Justice Wilmot is apparently subject to two objections; 1st. It is an analogy of common law, drawn from the provisions of a particular statute. The statute professedly introduces an alteration in the law, and it is the only authority by which such an alteration can be properly made. The courts of justice must take the law as they find it, and are not authorized to say, that because the Legislature has made an alteration, which we find to be beneficial in one case, therefore, we will make an alteration in another case, where the same beneficial effects will probably ensue. But, 2d. the principle of the statute of limitations is, that it operates upon an adverse possession, upon one person enjoying property which another was authorised to claim, and the omission of claiming which is a mark of negligence, and therefore should be discouraged; whereas the use of an easement is not in every instance an usurpation of property; it may not be subject to an action; and whilst the owner of the adjacent property is not injured in his own possession, he has no cause of complaint. But it would be injurious to debar him from the full enjoyment of the rights incident to his own property, such as the building upon his land, because another person had previously built on a contiguous part of the adjoining land, though in doing so, he had not rendered himself liable to any action, but had only been subject to the imputation of folly, by placing his windows in a situation where they were liable to be obstructed. (a) Whatever may be fairly ascribed to courtesy or forbearance, ought not hastily to be construed as the exercise of an adverse right; much less should any Act be allowed to have the effects of an adverse possession, where there could be no right of contest, and consequently no imputation of laches.

[29]"In the case of Prescott and Phillips, which was tried at Chester Spring assizes, 1797, it appeared, that the persons under whom the defendant claimed, had an ancient mill and weir, which were permitted to fall into decay; and after a period of twenty years, above nineteen years before the commencement of the action, another mill was erected (upon which it may be assumed, for the purpose of the argument, that there was no alteration in the scite or fall, as no reference was made to these circumstances), no act having been done in the mean time by the owners of the adjacent land, adverse to the right. The judges at the assizes, and afterwards in the Court of King's Bench, were of opinion that the cesser of twenty years in the enjoyment was an extinguishment of the right to the water-course; and, upon that general principle, decided in favour of the plaintiff, treating it as a case which would not even warrant an argument. "The observations which occurred to the present writer, in support of the position, that it ought not to be presumed that the ancient right was lost or abandoned, were, 1st, That no inconsistent or adverse enjoyment had been acquired; 2d, Because the traces of the ancient right remained at the time of the new erection; 3d, Because so long a period having elapsed since the present erection, without the right being judicially questioned, it ought to be presumed that that was in pursuance of, and connected with, the ancient right. An analogy has been adopted to the Statute of Limitations, in the cases of corporate offices, easements and bonds; but the Statute of Limitations, in cases of ejectment, only operates upon acts of adverse possession, not permitting an undisturbed possession and actual enjoyment to be defeated. In cases of corporate offices, the King's Bench proceeded upon the exercise of a discretionary power, and always in protection of a positive and actual enjoyment. None of the cases embrace the principle, that a right is lost by neglect, there having been no adverse enjoyment; and the protection is merely personal and individual. Upon the death of the corporator, the right reverts according to the original constitution.

"In respect to easements, all the cases are in support of positive acts, as the making windows there an enjoyment was actually acquired, which the court would not suffer to be defeated. There was a case in Surry, before Lord Mansfield, who laid it down, that an incorporeal right, which, if existing, must be in constant use, ought to be decided by analogy to the Statute of Limitations. Must be in constant use is emphatic. But non constat, that a right must be in constant use, the exercise of which is attended with expense and risk. The party has not submitted to any actual inconvenience, which he might have avoided by the assertion of his right; he has merely not deemed it necessary to exercise a right, which may or may not be beneficial according to times and circumstances; he has not acquiesced in any Act tending to contradict or invalidate it. If A. buys of B. the coals under a piece of land, and of C. a right of road to

(a) "If a person places windows contiguous to my land, must, according to modern practice, put myself to the expense of erecting a building to obstruct them, within the space of twenty years, which may be attended with detriment and inconvenience to me, or I must be decreed to have made a grant and surrender of the rights which previously belonged to me.

The practical inconvenience of this is perhaps not very great, with respect to buildings recently erected, for the modern decisions are sufficiently notorious, and the requisite precaution is generally taken; but many rights have been lost or prejudiced, for want of knowing, by the spirit of prophecy, that such a system would have been established."

these coals through a barren moor, (1) and declines getting the coals for twenty years (the place continuing a barren moor), is the grant void or lost? Here, at the time when the mill was suffered to fall into decay, the right was as great as if an original right to dam up the water had been granted at that time. If, after such grant, the plaintiff had made a weir, and enjoyed it for twenty years, the grant or right might be presumed to have been surrendered. That is a case of adverse enjoyment; but merely suffering the river to run in its natural course, is reducing it to the case of a barren moor; and the case of Eldridge and Knott establishes the position, that the mere non-enjoyment of an incorporeal right does not necessarily induce the presumption of its extinguishment. With respect to bonds, a personal demand should, from the nature of it, be recently pursued, and the non-claim of twenty years is a strong presumption of payment; but this is no-wise similar in principle to a right connected with the optional mode of enjoying a real estate.

[30]"The Court of Common Pleas have since decided, in an action brought by the owner of a market at Southall, for erecting another market at Hayes, within three miles, that the erection of pens, and the sale of cattle in them, for twenty years, was a clear bar to the right of action; Holcroft v. Heel, 1 Bos. 400.

"The attempt to found a right upon an enjoyment of twenty years was carried to the most extravagant length, in a case which was brought to trial at Lancaster Summer Assizes, 1800. A defendant, in justification of a trespass, pleaded that the owners of a messuage had, from time immemorial, enjoyed the right of shooting upon the plaintiff's land; and it was intended to be proved, that the defendant and his father had been in the habit of sporting there upwards of twenty years. But the counsel for the defendant did not persist in an attempt which could only have subjected themselves to equal ridicule with their client.

66

[31] The present discussion has been composed for several years, and I have ingrafted the substance of it into the view of the decisions of Lord Mansfield ; a work in which I have had the mortification to experience a total sacrifice of a considerable portion of assiduity and expence. Since that time, the subject has been before the Court of King's Bench, in the case of Campbell v. Wilson, 3 East, 294. The defendant had, for upwards of twenty years, used a way over the plaintiff's land; the right to which, if it really existed, must, from the circumstance of the case, necessarily have commenced within thirty years: but there was evidence to shew that the possession was adverse: on the other side there were circumstances to shew the probability of the claim having originated in mistake. Mr. Justice Chambre observed to the jury, that it was probable that the enjoyment did originate in the mistake supposed; but however that might be, if they were satisfied that it was adverse, and had continued twenty years, it was sufficient ground for presuming a grant. Upon a motion for a new trial, Lord Ellenborough observed, that it came to the common case of an adverse possession of a way for twenty years, without any thing to qualify that adverse enjoyment; and there was no reason why the jury should not, as in other cases, make the presumption, that the defendant acted by right. Mr. J. Grose thought that in substance the question was left to the jury, whether the enjoyment originated in a grant, or in any other manner? and therefore, he could not say, but that upon the evidence the jury might not make the presumption which they had done; though had he been one of them, he did not know that he should have dared to do so. Mr. J. Lawrence said, no doubt adverse enjoyment for twenty years, unexplained, is evidence sufficient for the jury to found a presumption that it was a legal enjoyment. Mr. Justice Le Blanc thought that such length of enjoyment was so strong evidence of a right, that the jury should not be directed to consider small circumstances as founding a presumption that it arose otherwise than by grant. The same learned judge explained the case respecting Hayes market to have only amounted to an intimation, that it would be left to the jury to find for the defendant, upon the ground of presumption of a grant, after twenty years' uninterrupted use. And Mr. J. Grose said, he assented to that case, as so explained, but no further.

"In reviewing the preceding opinions, Mr. Justice Grose seems to concur in the opinion which I have endeavoured to maintain-that the presumption in these cases is real matter of inference, upon which the jury are, as in other cases of circumstantial evidence, to exercise a genuine opinion as to the existence or non-existence of the fact in question. But I cannot concur with him in thinking, that such was really the spirit of the directions to the jury in the particular case. The other judges certainly appear to support the fictitious presumption (a)

[ (1) In Seaman v. Vawdrey, 16 Ves. 390. it was held, by the Master of the Rolls, that no presumption occurs from nonuser in case of mines, salt springs, &c.]

(a)" There are, in truth, two kinds of presumption acted upon in the law, which scarcely agree in any thing but the name: 1st, Inferences of facts really and bona fide made; as where a person, having the recent possession of stolen goods, is presumed to be the thief; 2. Presumptions of form; as where

a satisfied term is presumed to be surrendered, though, in fact, no such thing is believed to have taken place. And to the latter class, the practical application of the presumption in question is certainly to be referred; because in most of the cases, it is impossible to suppose that any person in his senses can believe the fact to be true, which is said to be presumed. Juries are never called upon to balance between the improbability of an enjoyment having subsisted for twenty years, without a legal grant,

Ꭱ ?

that although in point of fact, no legal title existed, the adverse possession of twenty years was to be deemed sufficient to constitute such title, and that the false supposition of a grant, destroyed by time or accident, was the mode and form in which that right is to be maintained."