p. 2048
meaning of the 5th Geo. IV., c. 51, it still remains to be decided, whether the burden of proof lies upon the Crown to shew, that the defendant’s possession of the land commenced since the passing of the Statute ; or whether the defendant ought to shew a possession anterior to that event ; and even this point, secondary and vastly inferior as it is to the principal question of title, is by no means free from doubt and difficulty. On the one hand it may be insisted on as a prerogative of the King, that every thing ought to be presumed in his favor, and that he should accordingly be considered to have a good title to all the land he claims until the contrary has been clearly proved by the defendant : whilst on the other side it may be urged, that, as the present proceeding is of the nature of an ejectment, the rule, “ Probat is qui non possidet ; qui si in probando deficiat, possessor vincit,”* ought to be enforced even in a Suit to which the King is a party. And, admitting that there is some weight in each of these arguments, we incline to think, that the latter ought to prevail. We conceive, too, that there may possibly be a difference in this respect where the action is instituted by a grantee of the Crown ; for however paradoxical the position may at first appear, that the King may by his grant confer a privilege which he cannot exercise himself, it will perhaps be found on an attentive investigation of the subject, that the enquiry into title which always precedes the issue of a grant, and the caution with which it must be supposed to have been executed, might reasonably justify a presumption in support of it which could not properly be entertained before the passing of it. But without pretending absolutely to decide that point at present, we are all of opinion that, as the defendant has proved to be in actual possession, and as no proof has been given that such possession commenced since the passing of the 5th Geo. IV., ch. 51, the Crown is not entitled, under the evidence which has now been adduced, to a verdict on either of the counts.
After hearing this charge the Jury almost immediately brought in a general verdict, “ Not Guilty.”
an obligation, or duty, to leave as much land unoccupied as that sort of fishery which is countenanced by the 3rd section is likely to require. It may be proper, too, to state here, that, though a grant may not be necessary to give a title to land where a peaceable possession was obtained before the passing of the 5th Geo. IV., ch. 51, yet that a grant must always prove a satisfactory confirmation to the title by possession, and must be particularly useful in putting an end to all disputes respecting the quantity of land actually held in possession.
* This rule of the Civil Law, (as well as the similar one, “ Probandum autem in Vindicatione dominium per Actorem, quo deficiente in probatione, possessor absolvendus est,”) is, in spirit, precisely the same as our maxim, that in ejectment the plaintiff must recover upon the strength of his own title : and both of them seem to be of universal application, as founded on a principle of universal reason and justice.
[1927lab]
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