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HEPBURN'S CASE. 111
to be made at the hearing, or trial as a matter of substance arising
out of the whole case; and which it was not necessary specially
to advance, and rely on in any previous stage of the proceedings,
to enable the party to have the benefit of it. Because, indepen-
dently of all positive enactments, there must be a period of time
after which every latent, or inactive claim to property must be pre-
sumed to have been radically defective in its origin, or to have been,
in some one way or other completely satisfied. It is asking too
much, to require, amidst the mutations of human affairs, and the
perishable nature of all things, that the evidences of the right of
property should be carefully preserved through a long and indefi-
nite period of time, (g) A presumption of right and of the correct-
ness of a state of things sanctioned by a long series of years is
necessary to the peace of society, (h)
The rule, nullum tempus occurist rigi, even in favour of the
crown in England, has been as to many cases abolished, or over-
ruled, (i) In Maryland, the Lord Proprietary was always held to
be bound by the statute of limitations; (j) and the republic, since
the revolution, has not only never, in any case, that I know of,
claimed an exemption from it; but has expressly subjected her
rights to its operation under circumstances where the propriety of
doing so might well have been questioned, (k) The republic, in
this instance, claims the application of no rule to which she her-
self is unwilling to submit; (I) and therefore, may well rely upon
a presumption which is necessary to the peace of all, and which
forms an important and essential principle in every code of juris-
prudence.
On behalf of the petitioner it is contended, that the presump-
tion, as urged against him, is deduced from the state of facts ordi-
narily existing between individuals, enjoying the common facilities
of intercourse, where the creditor is in a condition to demand the
payment of his claim, and the debtor is liable to legal coercion for
(g) Shipbrooke v. Hinchingbrook, 13 Ves. 396.—(h) Sherman v. Sherman, 2
Vern. 276; Prince v. Heylin, 1 Atk. 494; Sturt v. Mellish, 2 Atk. 610; Smith v.
Clay, 3 Bro. C. C. 639, note; Hercy v. Dinwoody, 4 Bro. C. C. 258; Cholmondely
v. Clinton, 2 Jac. & Walk. 140; Stevenson v. Howard, 3 H. & J. 554; Hillary v.
Waller, 12 Ves.265.—(i) Co. Litt. 119, n. 1; Com. Dig. tit. Prerogative, (D. 86 ;)
Bac. Abr, tit. Prerogative, E. 6; 3 Blac. Com. 307; The Attorney-General v. Rich-
ards, 2 Anstr. 615; Simpson v. Gutteridge, 1 Mad. Rep. 610; Roe v. Ireland, II
East 280; Goodtitle v. Baldwin, 11 East. 488; Nimmo v. The Commonwealth, 4
Hen. &. Mun, 70; The Mayor of Hall v. Homer, Cowp, 108,—(j) Kelly v. Green-
field, 2 H. & McH. 138.—(k) 1818, ch. 90; 1839, ch. 34.—(l) Cockey v. Smith, 3
H, & J. 26.
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