Evidence. strictly proved. Thus, from evidence of a custom that the youngest son shall succeed. it will not be inferred to be the custom, that, in default of lineal heirs, the youngest brother, or the youngest cousin shall succeed: Id., et ante, p. 140. The same evidence cannot be used to prove a custom that is relied upon to support a prescription, the two claims being obviously inconsistent: Blewitt v. Tregonning, 3 Ad. & E. 554.

Evidence of identity. Identity of parcels.

Identity of Parcels.]-The ordinary collateral sources of identification, where the descriptions of the parcels are unsatisfactory, are old plans, leases, books of deceased stewards, extracts from the landtax and parish assessment books; affidavits of old persons, &c. See Parry v. Hindle, 2 Taunt. 180; Barry v. Bebbington, 4 T. R. 514; Doe d. Strode v. Seaton, 2 Ad. & E. 171; Pim v. Currel, 6 M. & W. 234; Evans v. Rees, 10 Ad. & E. 151; Wilkinson v. Allott, 3 B. P. C. 684. As to the conclusiveness of a map drawn on the margin of a deed, see Taylor v. Parry, 1 Scott, N. C. 576; Nene Valley Drainage Commissioners v. Dunkley, 4 Ch. D. 1.

There is no point in which titles are so generally defective as in evidence of identity. The early deeds frequently contain no other than a general description, or, which is still more unsatisfactory, the names and contents of fields specified in them are no longer applicable, and probably had ceased to be so long before they were disused, conveyances being usually prepared by persons who are not locally acquainted with the property, and who continue to convey the lands by the old description, without noticing the changes of names and boundaries (which almost every estate gradually undergoes), until at length there is very little or no apparent connection between the lands described and the lands intended to be conveyed. Recourse must then be had to parol evidence of identity, and how defective this evidence commonly is, every day's experience attests. The evil would in a great measure be prevented if, in preparing conveyances, care was taken to notice the alterations of this

nature which have occurred since the last convey- Evidence. ance of the property (¿).

scription of

held to be

In a modern case, an objection to a title of copy- General deholds, on account of the vagueness of the description copyholds on on the court rolls, and its alleged inadequacy to court rolls comprise the lands in question, was overruled as im- sufficient. material, when it was established by the evidence Identity of in the case that the property had actually passed parcels. and been enjoyed by the description contained in the court rolls: Long v. Collier, 4 Russ. 267.

See the stat. 2 & 3 Will. 4, c. 80, intituled, "An

The use of maps or plans in the margin of deeds, according to the present practice, though a great help to the identification of parcels, and sufficient to prevent any ambiguity that might arise from mere changes of ownership and occupation, is not calculated to guard against the confusion caused by alterations in the physical conditions of the surface itself. The most effectual method of quieting titles on the subject of identity and boundaries, would be by the use of authorized district maps on a large scale, prepared and kept by public officers in a manner resembling the system of registering maps, which has long been used with great benefit in Norway and Sweden, Germany, Holland, Switzerland, the Tyrol, Denmark, Belgium, France, and Italy, as well as in America and the Colonies. Since the 3rd ed. of this work was published, many well-known attempts have been made to create a system of Land Registry, the last being Lord Selborne's comprehensive bill for compulsory registration in 1873. But independently of the question of registration, much might be done by the parties interested, even without legislative assistance, by making use of the new ordnance maps on the large scale of 25 inches to a mile, which affords a very obvious means of giving greater accuracy and permanence to the description of parcels. In consequence of the report of the committee appointed in 1879 to consider the question of transfer and titles of land, steps have now been taken, by doubling the working staff, to complete the ordnance survey on the scale of 25 inches to a mile in the year 1890. There are also to be maps (of which many, including London, have been published) of all towns of over 4,000 population, on the scale of 10 feet to a mile. Maps of the following counties had been published in December, 1882 :Berks, Bucks, Chester, Cumberland, Denbigh, Durham, Essex, Flint, Glamorgan, Hants, Hertford, Kent, Middlesex, Northumberland, Oxford, Surrey, Sussex, Westmoreland, beside the Isle of Man, and various isolated parts of the country. For a list of town maps published on the larger scale, and other information, the reader is referred to the Report of the Ordnance Survey, 31st December, 1882. The price of a sheet 38 by 25 inches is, for counties, from 2s. 6d. to 22s., and for towns, 2s. to 158., according to the amount of colour.

Evidence.

Stock in the

funds.

As to proving

of the pur

on the purchase of reversions.

Act for authorizing the Identifying of Lands and other Possessions of certain Ecclesiastical and Collegiate Corporations;" and, as to the powers of commissioners of inclosure to determine boundaries, see stat. 3 & 4 Vict. c. 31 (j).

Stock.]-A transfer of stock may be proved by an examined copy of the transfer in the bank books, the parties' handwriting being proved: Mortimer v. M'Callan, 6 M. & W. 58; 4 Jurist, 172. When the conduct of a vendor of stock, held in trust under a will, had not been perfectly open and regular, the certificate of a stockbroker that there was then standing in the bank books the sum of 3,1007. in the joint names of the three trustees of the will, was held insufficient. The fund was sold under a mortgage made after the testator's death. Lord Langdale, M. R., laid down that the purchaser was entitled to evidence of the identity of the stock, and also that it was subject to the trusts of the will, for on that the vendor's title depends: Hobson v. Bell, 2 Beav. at p. 22.

Evidence of Title to a Reversion.]-A peculiar docthe adequacy trine formerly applied in equity to the sale of a chase-money reversion, which threw upon a person purchasing property of this nature the obligation of proving the fairness of the transaction; and it was accordingly always advisable, where the transaction of the purchase had not become unimpeachable by the acquiescence of the parties in whom the right to disturb it resides, to restrain the purchaser from requiring evidence that a fair price was given. See Boswell v. Mendham, 6 Madd. 373.

A less strict rule obtained where the future interest was dependent on a contingency of such a nature as to be incapable of being the subject of estimate or calculation, as that of the prior tenant for life (who in the case cited was a bachelor) not leaving issue (Baker v. Bent, 1 Russ. & Myl. 224); and family arrangements were always considered to

() The question of identification of parcels will be more fully treated under the title "Conditions of Sale."

be in some measure exempt from the rule: Tweddell v. Tweddell, Turn. & R. 1, 13; Houghton v. Lees, 1 Jur., N. S. 862.

And now, by 31 & 32 Vict. c. 4, s. 1—

Evidence.

Stat. 31 & 32
Vict. c. 4.

of reversion

"No purchase, made bond fide, and without fraud or unfair No purchase dealing, of any reversionary interest in real or personal estate made bond fide shall hereafter be opened or set aside merely on the ground of ary interests undervalue."

And, by sect. 2, "Purchase" is defined as

"Every kind of contract, conveyance, or assignment under or by which any beneficial interest in any kind of property may be acquired."

But the Act is carefully limited to purchases made bona fide and without fraud or unfair dealing, and leaves undervalue still a material element in cases in which it is not the sole equitable ground for relief : Per Lord Selborne, C., in Aylesford v. Morris, L. R., 8 Ch. at p. 490. See also Bolingbroke v. O'Rorke, 2 App. Ca. 814 (k).

to be set aside merely on the ground of undervalue.

assent.

Assent of Executor.]-In transactions which took Evidence of place at a remote period, the rule is, ex diuturnitate temporis omnia præsumuntur solemniter esse acta (Co. Litt. 6 a; 2 Inst. 118, 362); and therefore a title depending either on an assignment by an executor, or by a legatee, without any express evidence of an assent, is accepted without any difficulty. But in transactions of a recent date, the caution is generally adopted of having the concurrence of the legatee and the executor in the assignment; of the legatee, to obtain his admission that there has been no previous assent to the bequest, and that the term still remains in the executor; and of the executor, to pass the term in that character. When the assignment is from the legatee alone, it is particularly important to have some evidence of the executor's assent to the legacy; and, in general, the consent

(k) The inadequacy of the price given may be so great as to amount to evidence of fraud sufficient to set aside the purchase, whether the property be in possession or reversion. See Miller v. Cook, L. R., 10 Eq. 641; Tyler v. Yates, L. R., 6 Ch. 665.

Evidence.

Any expression or act

concurrence,

will amount

to an assent.

of the executor, or other personal representative, is required to be testified by his concurrence in the deed of assignment, and by a confirmation thereof. To obviate the necessity of such concurrence, it is, as a point of practice, advisable that every legatee of a term for years should have an express assignment from the executor, or at least an instrument declaring his assent to the legacy: 3 Prest. Abst.

145.

But assent is only a perfecting act, for it is the which shows will of the testator which gives the interest to the the executor's legatce, and therefore the law does not require any or agreement, exact form in which it is to be made. Hence any expression or act done by the executor, which shows his concurrence or agreement to the thing bequeathed, will amount to an assent: 4 Bac. Abr. Gwill. ed. 444, Legacies (L.); Noell v. Robinson, 1 Vern. 94. For the executor's assent being analogous to a tenant's attornment to the grant of a reversion, a small matter will be construed an assent (Wentw. Off. Ex. 226; Noell v. Robinson, 2 Ventr. 358); and whatever verbal agreement will amount to an attornment may constitute an assent to a legacy: Shep. Touchs. 456; Godolph. Orphan's Legacy, 144; Wentw. Off. Ex. 224. Expressions to the following effect have been adjudged to amount to an assent:-"God send you joy of your bequest."-"I intend you to have your legacy according to the devise:" Com. Dig. Administration (C. 6.); Doe d. Sturges v. Tatchell, 3 B. & Ad. 675. The executor's allowing the legatee of a term to receive the rents for a time only, or applying the rents for the devisee's maintenance during minority, when they were directed to be so applied by the will, has been considered an implied assent: Colbourne v. Mixtone, 1 Leon. 129; Paramour v. Yardley, Plowd. Com. 539; 1 Rop. Leg. 251, 2nd ed. And see Williams on Executors, 1378 seq. Although an executor may assent to a legacy or assign a term before probate, yet the assent or assignment cannot be given in evidence as an assent or assignment by the executor, without showing probate of the will, in proof of his being the executor. Thus, till probate is obtained, there is a

Before an assent or assign.

ment can be given in evi dence, probate must be obtained.