linquish, what he must say upon the whole complexion of the case, they never knew they had a right to.

"If the accounts of the perfonal eftate (he proceeded to fay) could not now be obtained, and it was impoffible to know to what the plaintiffs were entitled, that is a fufficient reason for faying, 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 cafe. Therefore, defiring to be understood by no means to give any countenance to those stale demands, but upon the circumftances 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."

In Blewitt v. Thomas, 2 Vef. Jun. 669. length of time was pleaded in equity, as matter of defence, and as inducing the presumption, that the demand was fatisfied; and the plea was allowed. But in Pearfon v. Belchier, 4 Vef. 627. the Mafter of the Rolls, while he held that a bill could not be entertained, on account of length of time, faid, that it could not be pleaded in bar in the court of Chancery. See alfo as to the following cafes, refpecting the allowance or difallowance 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 Vef. Jun. 87. Vef. 565. Harmood v. Ogiander, 6 Vef. 199. In the cafe of Sutton v Earl of Scarborough, 1 Vef. N. S. 71. (just published since this sheet was fent to the prefs), the Court of Chancery allows a plea of the ftatute of limitations, to a bill in the nature of an action for money, had and received, both as to the difcovery and relief; but the decifion does not affect the cafe of a mere bill of difcovery.

Ackerly v. Roe, 5

None of the ftatutes of limitations contain any provision in favour of incorporeal rights, (except in cafe 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 requifite indifpenfable to the fupport of the title, which is derived from it. A long continued enjoyment, not otherwise to be accounted for, may, after fuch a period of time as renders it probable that the deed may be loft, or destroyed, be fairly confidered 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 fide. But the decifions of our courts have carried the matter much further than is warranted, by the mere application of this principle; and under

the

the name of a prefumption, have, in effect, rendered the length of enjoyment a direct and substantive title.

It is held, that not only private grants, but records, and even acts of parliament, may be prefumed from length of time, and fo far as any fuch prefumption 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 defirable object, I cannot forbear entertaining the opinion, that recent decifions 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 cafe of the Mayor of King fton-upon-Hull against Horner, Corp. 102. a toll had been received by the corporation for upwards of 300 years, but the corporation itfelf having been created within the time of legal memory, it was impoffible that the title could be founded upon prescription; but it was left to the jury to infer from the ufage, whether there had not been a grant of the duties subsequent to the charter of incorporation; and the verdict founded upon the prefumption of fuch a grant was fupported by the court of King's Bench. But foon afterwards, Lord Mansfield, in referring to the authority of that cafe, advanced a pofition in favour of the principle, which I venture to conteft. He faid, that a grant may be prefumed from great length of poffeffion. It was fo done in the cafe 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 fhould have exifted, without its being upon record, but they prefume the fact for the purpose, and from a principle of quieting the poffeffion." Corp. 214. That is, in a case of adverfe right, they profess, by way of form, to believe as true what, in point of fact, they believe to be falfe, in order that length of time may, by fiction and circuity, produce an effect to which directly and primarily it is inadequate.

By ftatute, 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-feven years, that circumftance was left to the jury, as a ground for prefuming an extinguishment or release; but the court of King's Bench decided, that fuch a prefumption was not warranted by the evidence. Lord Mansfield, on that occafion, adverted to the principle, that the ftatute of limitations is a positive bar from length of time, and operates fo conclufively, that although the jury and the court are fatisfied that the claim ftill fubfifts, yet they are bound by the statute to defeat it: that there are many cafes not within the ftatute, where, from a principle of quieting

K 3

the

the poffeffion, the court has thought that a jury fhould prefume any thing to fupport a length of poffeffion. He then proceeded to the. pofition from which I have expreffed my diffent, and afterwards fhewed, from reafoning adapted to the particular cafe, that there was no ground for inferring an extinguishment. Mr. Juftice Afton, in fupport of the fame opinion, obferved, that a prefumption from length of time to fupport a right was very different from a prefumption to defeat a right. Eldridge v. Knott, Cowp. 214.

But the cafe which feems to have had the most influence in modern determinations, is that of Lewis v. Price, tried before Mr. Juftice Wilmot, at Worcester aflizes, in the year 1761, in which he faid, 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, fo as to obftruct them, an action lies, and this is founded upon the fame reafon as where they have been immemorial; for this is long enough to induce a prefumption, that there was originally fome agreement between the parties: and he faid, that as twenty years was fufficient to give a title in ejectment, on which he might recover the house itself, he faw no reafon why it fhould not be fufficient to entitle him to any eafement belonging to the houfe. Efpinaffes' Dig. 636. Afterwards, upon a motion for a new trial, · twenty years' quiet and uninterrupted possession of ancient lights (a) was deemed a fufficient ground, from which a jury might prefume a grant. Darwin v. Upton, cited 3 T. R. 159. So far as length of time is merely regarded as a circumftance, 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. Juftice Wilmot's idea to its full extent, that twenty years' poffeffion gives a title to any easement. It is acted upon as a prefumption, juris & de jure, a legal fiction, upon which any argument or difcuffion is as much excluded as upon an averment of the defendant's being in the cuftody of the Marshal of the Marfhalfea, and not as a mere circumftance open to the difcuffion and confideration of a jury. And it has even been held, that the forbearance to exercife a right for twenty years shall produce an extinction of the right itself, and that all rights incident to land fhall be referred to the criterion of twenty years' enjoy

ment.

Having been engaged in oppofing the application of that principle, and having, in conjunction with fome of the moft diftinguished ornaments of the profession, entertained the idea, that it was

(a) There feems to be either a redundancy or inaccuracy in this expreffion. 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 wfed in its old and legitimate fignification, the term of twenty years is out of the question.

a devi

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APPENDIX, No. XVI.

(Referred to Vol. I. p. 474.)

On the Law of Evidence.

SECTION I.

General Preliminary Obfervations.

No part of jurifprudence is of greater importance than the law

of evidence for the administration of justice must neceffarily be preceded by the investigation of truth, and the application of the law must in every cafe be founded upon the establishment of the facts.

In adverting to this fubject, we perceive one of the strongest contrasts between moral and legal obligation. In the discharge of moral obligation, every man is a witness to himself with regard to his own conduct and intentions; but, in enforcing legal obligation, one man is called upon to form an estimate of the motives and conduct of another, of which in general he can only have an imperfect knowledge, and must act from representations subject in their nature to every gradation of error and deception.

The two important objects to be provided for in establishing a fyftem of evidence, are the manifestation of truth, and the exclufion of falfehood; but from the imperfection of human knowledge and perceptions, the full attainment of these is often impoffible; the latitude which is requifite for the one is inconfiftent with the caution which is too often neceffary for fecuring the other; an exceffive ftrictnefs, excluding the admiffion of truth, for the purpose of guarding against the dangers of falfehood, is equally attended with a falfe impreffion injurious to the interefts of juftice; the negative falfehood, in the one cafe, being no lefs repugnant to an adequate representation of the fact upon which juftice is to decide, than the pofitive falsehood on the other; and the withholding an actual right being not lefs an act of injustice, than the commission of an actual wrong. Whatever rule is established in general, for the purpose of securing these respective advantages, and avoiding either of these oppofite incoveniences, muft, from the very nature of the subject, be frequently defective, or erroneous VOL. II.

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in its particular application; and all the perfection which judicial wisdom can apply, must only confift in the adoption of such a sys tem as may, with reference to the state and condition of fociety, be productive of the greatest sum of advantage in the whole.

In examining the general principles of this fubject, we discern two different kinds of facts, very diftinguishable from each other: the first, embracing those which at their occurrence are neceffarily fufceptible of fome indifputable monument of authenticity, fuch as the pronouncing a judicial fentence; the other, comprizing acts of which the traces can only be preferved in the memory of those who were the witneffes of them, fuch as offences and injuries; but between these are various intermediate degrees of subjects, susceptible in their nature of fimilar gradations of authenticity.

The intercit of fociety is greatly promoted, by establishing authentic criteria of judicial certainty, fo far as this object can be effectuated without materially interfering with the claims of general convenience. Where the acts which may become the subject of examination will admit of deliberate preparation, and the purposes of them evince the propriety of a formal memorial of their occurrence, more efpecially when they are from their nature fubject to error and mifreprefentation, it is reafonable to expect that those who are interested in their prefervation fhould provide for it in a manner previously regulated and established, or that, in cafe of neglect, their particular interest should be deemed fubordinate to the great purposes of general certainty. But it is alfo certain that this system of precaution may be carried too far, by the exaction of formalities, cumbersome and inconvenient to the general intercourfe of civil tranfactions; the fpecial application of these principles must be chiefly governed by municipal regulations: but as a general obfervation, it is evident that the great excellence of any particu lar fyftem must confift in requiring as much certainty and regularity as is confiftent with general convenience, and in admitting as much latitude to private convenience as is confiftent with general certainty and regularity. It may be added, that for these purposes every regulation fhould be attended with the most indisputable perfpicuity; and that the established forms fhould be cautiously preferved from any intricacy or firictness, that may tend to perplex and embarrass the subjects which they were defigned to elucidate, and to endanger and destroy the fubftance which they were inftituted to defend (a).

SEC

(a) The annuity act is a strong inftance of the application of formal requifites, the defect of which is fubverfive of the tranfaction in numerous inftances, where there could not be possibly any other intention than a strict and fair compliance with its direc