Of identity of individuals.

Of seisin.

(f) S. C, 12 Jur. 476. As to the identity of lands of Ecclesiastical and Collegiate Corporations, see 2 & 3 Will. IV. c. 80; of Enfranchised copyholds, see 4 & 5 Vict. c. 35, s. 21; and of lands charged with tithe commutation rent-charge, see 1 Vict. c. 69, s. 9. Evidence of modern usage is admissible upon the question as to what passed under ancient grants; Duke of Beaufort v. Mayor of Swansea, 3 Exch. R. 413.

(g) Cited Hub. on Ev. 465.

(h) See Clarkson v. Woodhouse, 5 Durn. & E. 412; White v. Lisle, 4 Madd. 214; Welcome v. Upton, 6 Mee. & W. 536.

(i) Doe v. Coulthred, 7 Ad. & El. 235. ejectment (j), does not appear to have that effect as between vendor and purchaser (k).

Strips of waste lying beside an ancient highway or a river are, together with the soil to the middle of the way or river, presumed to belong to the owner of the adjoining inclosed lands (l): this presumption however seems to arise only as between such owner and the lord of the manor; and does not apply as between parties deriving title through different conveyances from a former owner of both the inclosed and waste land (m); and, even as against the Lord of the Manor, the presumption is rebutted by the circumstance of the strip communicating with a common or other large piece of waste (n); or by the fact that other adjoining strips, similarly circumstanced, are held adversely to the landowner (o).

And seisin being once proved, or presumed, will be presumed to have continued until the contrary is shown (p).

Intestacy, also, is a fact which, strictly speaking, does not admit of proof, but is merely matter of presumption; letters of administration are, in the absence of special circumstances, received by conveyancers as raising a sufficient presumption of intestacy; so, a will or probate of a will not affecting the estate in question nor putting the heir to his election, is received for the like purpose.

So, also, it will be presumed that persons who have acted in official capacities were duly appointed thereto (q).

So, it is conceived, that the statutory presumption that the person last entitled to land was the purchaser, and the stock of descent under the late Inheritance Act, would hold good as between vendor and purchaser (r); it is observed by Mr. Hubback, in his very valuable and elaborate work upon evidence (s), that the presumption cannot safely be relied on by the conveyancer, because it might, after completion, be shown in litigating the title that such owner did not purchase but inherited the land, and that the vendor, though the heir of the immediate, was not the heir of the more remote ancestor; this, no doubt, is true; but in every case of presumption there is a like risk of the conclusion being shown to be unfounded: the question is, not whether the purchaser may not require the vendor to make inquiries, and, if possible, procure evidence on the subject; for to this, as in the allotment case (t), he would, no doubt, be entitled (u); but whether, if such inquiries prove unavailing, the statutory presumption can be got rid of: the question is one of no very general importance, for it can only arise in cases where the commencement of the title is evidenced merely by possession and acts of ownership; and, even then, if forty years have elapsed since the death, any adverse claim must in all ordinary cases have been barred by the Statute of Limitations.

Of continuance of seisin.

Of intestacy.

Of official appointments.

Of person last entitled having been the purchaser and stock of descent.

(j) Doe v. Penfold, 8 Car. & P. 536.

(k) See 13 Ves. 122; Hub. on Ev. 131.

(l) 1 Jarm. Conv. by S. 79, and cases there cited; and, in particular, Lord Tenterden's judgment in Steel v. Prickett, 2 Stark. 463.

(m) White v. Hill, 6 Q. B. 487.

(n) Grose v. West, 1 Taunt. 39.

(o) Doe v. Hampson, 4 C. B. 267.

(p) Cockman v. Farrer, Sir T Jones, 182.

(q) See, as to Inclosure Commissioners, Casamajor v. Strode, 5 Sim. 87, 98; 2 Myl. & K. 708; as to Churchwardens, Ganvill v.- Utting, 9 Jur. 1081, Ex.

Thus also, (to come to matters of pedigree,) it is a general presumption of law that a child born in wedlock, even a day after the marriage (v), is the child of the husband; and this, although the parties have separated by voluntary agreement (w), and the wife be living in adultery (x): but the presumption does not arise in the case of a child born after an interval, exceeding the usual period of gestation, since the date of a divorce a mensa et thoro (y); or, it is imagined, since the commencement of the suit in the Ecclesiastical Court; the ordinary presumption is not to be rebutted by circumstances which create only doubt and suspicion; but it may be wholly removed by proper and sufficient evidence, showing that the husband was, 1st, incompetent; 2ndly, entirely absent at the period during which the child must in the course of nature have been begotten, or 3rdly, only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse (2); and it also seems that where the interview between the husband and wife has not been such as to raise an irresistible presumption of the fact of sexual intercourse, the subsequent conduct (a) of the parties may be referred to for the purpose of establishing the fact of non-intercourse; e. g., the circumstance that the wife who was living in adultery concealed the birth of the child, that the husband acted up to his death as if no such child were in existence, and that the adulterer aided in concealing the birth and subsequently reared and educated the child and left it all his property by his will (b): the old doctrine of quatuor maria has been long exploded (c).

Presumption in matters of pedigree - of legitimacy of child born in wedlock.

(r) See 3 & 4 Will. IV. c. 106, s. 2.