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intended as a gift, not as a loan,(b) &c. And it is a maxim of law, "nemo præsumitur alienam posteritatem suæ prætulisse."(c)

§ 127. The civil law laid down as a maxim, "Qui solvit, nunquam [ *176 ] ita resupinus est, ut facile pecunias suas *jactet, et indebitas effundat;(d) and in the common law, the fact of advancing money is presumptive evidence of payment of an antecedent debt, and not of a gift or loan.(e)

§ 128. In accordance with these principles is the maxim, which runs through the whole law, especially the criminal part of it, that every person must be taken to intend that which is the immediate and natural consequence of his deliberate acts.(f) Thus, a person who discharges loaded arms at another, or attacks him with any other deadly weapon, or lays poison for him, or beats or injures him deliberately in a cruel or barbarous way, is presumed to have contemplated his death.(g) So, where a baker delivered adulterated bread for the use of a public asylum, it was held unnecessary to allege that he intended it to be eaten, as the law would imply that from the delivery.(h) The setting fire to a building is evidence of an intent to injure the owner, although no motive be shewn ;(i) and the uttering a forged document is conclusive of an intent to defraud the person who would naturally be affected by it; which inference is not removed by that party swearing that he believed the accused had no such intention.(j) Where a party deliberately publishes defamatory matter, *malice [ *177 ] will be presumed ;(4) and a conspiracy to levy war upon the sovereign gives rise to, at least, a præsumptio juris of a compassing his death.(1) So, the tearing a will into several pieces by the testator is presumptive evidence of an animus revocandi.(m)

129. It is a præsumptio juris, founded partly on this principle, but deriving additional force from considerations of public policy, that, where the fact of slaying has been proved, malice must be intended, and that all circumstances of justification or extenuation are to be made out by the accused, unless they appear from the evidence adduced against him. (n) But it may be made a question, whether this presumption holds in cases of suicide, where the only fact established before a coroner's jury is, that the deceased terminated his own

(b) Hick v. Keats, 4 B. & C. 71, (10 Eng. Com. Law Reps.) per Bayley, J. “Quæ pater filio emancipato studiorum causâ peregre agenti subministravit, si non credendi animo pater misisse fuerit comprobatus, sed pictate debita ductus, in rationem portionis, quæ ex defuncti bonis, ad eundem filium pertinuit, computare equitas non patitur." (Dig., lib. 10, tit. 2, 1. 50.) (c) Co. Litt. 373. a.

(d) Dig., lib. 22, tit. 3, 1. 25. See, also, Voet. ad Pand., lib. 22, tit. 3, n. 15.

(e) Welch v. Seaborn, 1 Stark. 474, (2 Eng. Com. Law Reps.); Aubert v. Walsh, 4 Taunt. 293; Breton v. Cope, 1 Peakc, 31; Cary v. Gerish, 4 Esp. 9.

(f) 2 Stark. Ev., tit. Intention, 572, 3d ed.; Greenl. L. E., art. 18, p. 21.

(g) Ib.; 1 Hale, P. C. 451, 454; Halloway's case, Cro. Car. 131.

(h) R. v. Dixon, 3 M. & S. 15, (40 Eng. Com. Law Reps.)

(i) R. v. Farrington, R. & R. C. C. 207. (1 Br. C. C.)

(j) R. v. Sheppard, R. & R. C. C. 169. (1 Br. C. C.) See, also, R. v. Mazagora, Id. 291. (1 Br. C. C.) (k) Haire v. Wilson, 9 B. & C. 643, (17 Eng. Com. Law Reps.) (1) Many of the old authorities treat this presumption as irrebuttable; but the better opinion seems to be that the jury are not bound to convict unless they are satisfied that the probable effect of the conspiracy would be to endanger the life of the sovereign. (See 1 Phill. & Am. Ev. 478.) (m) In the goods of Colberg, 2 Curt. 832.

(n) Foster's C. L. 255. 290.

existence, and there is no evidence as to the state of his mind at the time.(o)

*§ 130. It is said by Lord Tenterden, in the case of Townson v. Tickell,(p) that, primâ facie, every estate, [ *178 ] 1 whether given by will or otherwise, is supposed to be beneficial to the party to whom it is given; and presumptions are sometimes founded on the assumption that a person must be taken to be willing to receive a benefit. Thus, in Thompson v. Leach,(9) it was held, that a surrender immediately divests the estate out of the surrenderor, and vests it in the surrenderee, whose consent to the act is implied; for, says the book, "a gift imports a benefit, and an assumpsit to take a benefit may well be presumed; and there is the same reason why a surrender should vest the estate before notice or agreement, as why a grant of goods should vest a property, or sealing of a bond to another in his absence should be the obligee's bond immediately without notice." So, in Smyth v. Wheeler,(r) where a lease was assigned to B. and C. on certain trusts, Hale, C. J., says, this "assignment, being of a chattel, is in both the assignees till the disagreement of B., and then it is wholly in C." So, it is said that mutual benefit is evidence of an agreement; as, suppose two men front a river, and each of them has land between them and that river, and they cut through each other's ground for water, and that continues twenty years, in such a case an agreement might be presumed. (s)

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PRESUMPTIONS DRAWN FROM THE HABITS OF SOCIETY, USAGES OF TRADE, ETC.

§ 131. THE presumptions drawn from the ordinary conduct of mankind and habits of society, and usages of trade, are somewhat numerous, and several of them come under the head of presumptions of law. Thus, the occupation of land carries with it an implied agreement on the part of the tenant to manage the land according to the course of good husbandry and the custom of the country. (a) So,

(0) See Borradaile v. Hunter, 5 Scott, N. R. 418. It is submitted, that the presumption does not apply to such a case, and for the following reasons:-First, the principle fails. The presumption of malice from slaying is only a rebuttable presumption, adopted on the ground, that, to call on a living person to justify a homicide, may be very advisable on pub. lic policy, and can work no hardship to the accused: an argument wholly inapplicable to the case of a person who, being no more, cannot be called on to justify or explain any thing. Secondly, presumption ought to be based on what most usually and generally exists. In many, probably most, cases of suicide, mental alienation, in some form or other, is present: in murder it is quite otherwise. Thirdly, the man who commits murder has only moral and religious feelings to subdue; he who destroys himself has also to struggle against the primary law of nature-self-preservation. Fourthly, and lastly, there seems no good reason why the law should in this case lose sight of its own maxim," Nemo præsumitur esse immemor æternæ suæ salutis, et maxime in articulo mortis." (6 Co. 76 a.)

(p) 3 B. & A. 36, (5 Eng. Com. Law Reps.)

(q) 2 Salk. 618; 3 Lev. 284; 2 Ventr. 198.

(r) 2 Keb. 774. See, on the subject of disclaimer, Nicholson v. Wordsworth, 2 Swanst. 365; and Adams v. Taunton, 5 Madd. 435.

(s) So held by Lord Cowper, H., 6 Ann. Vin. Abr. Ev., Q. a. pl. 8.

(a) Powley v. Walker, 5 T. R. 373; Legh v. Hewitt, 4 East, 154.

where the mere existence of a tenancy is proved, the law presumes it to be from year to year; and if the day of its commencement does not appear, it will be settled by the custom of the country.(b) Leases for uncertain terms are primâ facie leases at will; (c) but where a tenant holds over after the expiration of a term, he impliedly holds subject to all the covenants in the lease which are applicable to his new situation.(d) Where a servant is hired generally, without any stipulation as to time, the law presumes the hiring to have been for a year, unless there are circumstances to raise a presumption to the contrary ;(e) a promise to marry generally is interpreted to be a promise to marry within a reasonable time ;(f) and, on [ *180 ] proof of a regular marriage per verba de præsenti, carnal knowledge and consummation are implied.(g) The important rule of evidence, that admissions against interest are always receivable against the party who makes them,(h) seems to be founded on the principle under consideration. Under this head, also, come many presumptions of knowledge. Thus, the members of a club are presumed to be acquainted with its rules; (i) and parties claiming under a lease to know the title under which they took, and the circumstances connected with it.(k)

§ 132. The presumptions under consideration are frequently found useful in ascertaining the meaning of expressions used in contracts. The general rule on this subject is thus laid down by Mr. Starkie: "Where the terms used in a contract are of dubious meaning, the custom and usage of the country, or of any particular class of persons, as merchants conversant with the term, to use it in a particular sense, is evidence that the parties themselves so intended to use it. But where the meaning of the terms is plain and unequivocal and à fortiori, where the law has annexed a particular meaning to the use of the term, it is an universal rule that no evidence can be admitted of a custom or usage to receive such term in a different sense."(/) So, it is laid down in *Yeats v. Pim,(m) that "no usage [ *181 ] of trade can be set up in contravention of an express contract. All contracts made in the ordinary course of trade, without stipulation, warranty, or express provision, are presumed to incorpo. rate the usage and custom of the trade to which they relate. The contracting parties, being conusant of such customs, are presumed (and the presumption is generally consistent with the truth) to have it in their intention that their contract shall not exclude such usages.' § 133. It may be stated as a general rule, that, primâ facie, all documents must be taken to have been made on the day they bear

(b) Gresley on Evidence in Equity, 368.

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(c) Roe d. Bree v. Lees, 2 W. Bl. 1173. (d) Digby v. Atkinson, 4 Camp. 275. See Roe d. Jordan v. Ward, 1 H. Bl. 97; and Roberts v. Hayward, 3 C. & P. 432, (14 Eng. Com. Law Reps.)

(e) 3 Stark. Ev. 999, 3rd ed.

(f) Potter v. De Roos, 1 Stark. 82, (2 Eng. Com. Law Reps.); Phillips v. Crutchley, 3 C. & P. 178, (14 Eng. Com. Law Reps.); 1 Moore & P. 239, (17 Eng. Com. Law Reps.). (g) Dalrymple v. Dalrymple, 2 Hagg. C. R. 65, 66, (4 Eng. Eccl. Reps.)

(h) Slatterie v. Pooley, 6 M. & W. 664; 4 Jurist, 1038; Howard v. Smith, 3 Scott, N. R. 574.

(i) Raggett v. Musgrave, 2 C. & P. 556, (12 Eng. Com. Law Reps.); Alderson v. Clay, 1 Stark. 405, (2 Eng. Com. Law Reps.)

(k) Butler v. Lord Portarlington, i Con. & L. 24.

(m) Holt, N. P. C. 95.

(1) 2 Stark. Ev. 363, 3rd ed.

date.(n) Thus, a letter must be presumed to have been written and issued at the time it bears date :(0) and the same holds in the cases of bills of exchange and promissory notes,(p) and the indorsements on them.(q) So, a deed is presumed to have been executed (r) and delivered on the day it is dated.(s) This rule is. however, subject to an exception in the bankrupt laws, where, in order to prevent collusion between the creditor and the bankrupt, it is held, that, in order to support a petitioning creditor's debt, some evidence besides the date apparent on the face of an instrument must be given, to shew that it

existed before the act of bankruptcy.(t) But in an action [ *182 ] *by the assignees of a bankrupt, where the defendant

pleaded a set-off for goods sold to the bankrupt, and on an account stated; it was held, that a written paper containing a statement of mutual accounts between the defendant and the bankrupt, and which bore date previous to the bankruptcy, was presumptive evidence that it was written at the time it bore date.(u)

§ 134. Many presumptions of this kind are drawn from the usual course of business in public or private offices. Thus, if a letter is sent by post, that is primâ facie proof, until the contrary be proved, that the party to whom it is addressed received it in due course.(v) And, in the case of Fletcher v. Braddyll,(x) it was held, that the date in the post-mark upon a letter is primâ facie evidence that the letter existed at the time of the date; but then it should be proved that the letter bears the genuine post-mark used by the office whose stamp it purports to bear at the time the letter reached its destination. So, in the case of private offices, where, in order to prove notice of dishonour of a bill of exchange, it was shewn, that, on the day after it became due, the plaintiff wrote a letter to the defendant, stating that the bill had been dishonoured; and that this letter was put down on a table, where, according to the usage of the plaintiff's countinghouse, letters for the post were always deposited, and that a porter carried them from thence to the post-office; but there was no evidence as to what had become of the letter after it was put down on the table; Lord Ellenborough held, that *this was not primâ facie evidence of the letter's having been sent by post; [ *183 ] saying, "You must go farther. Some evidence must be given that the letter was taken from the table in the counting-house and put into the post-office. Had you called the porter, and he had said, that, although he had no recollection of the letter in question, he invariably carried to the post-office all the letters found on the table, this might have

(n) Davies v. Lowndes, 12 L. J. N. S., 510, Cam. Sacc.; Anderson v. Weston, 6 Bing. N. C. 296, (37 Eng. Com. Law Reps.); Smith v. Battens, 1 M. & Rob. 341; Sinclair v. Baggaley, 4 M. & W. 312.

(0) Hunt v. Massey, 5 B. & Ad. 902, (27 Eng. Com. Law Reps.)

(p) Anderson v. Weston, 6 Bing. N. C. 296, (37 Eng. Com. Law Reps.)

(9) Smith v. Battens, 1 M. & Rob. 341.

(r) Anderson v. Weston, 6 Bing. N. C. 296, (37 Eng. Com. Law Reps)

(8) Stone v. Grubbam, 1 Ro. R. 3, pl. 5; Ofley v. Hicks, Cro. Jac. 264.

(t) 2 Stark. Ev. 149; Anderson v. Weston, 6 Bing. N. C. 296, (37 Eng. Com. Law Reps.); Sinclair v. Baggaley, 4 M. & W. 312; overruling Taylor v. Kinloch, 1 Stark. 175, (2 Eng. Com. Law Reps.)

(v) Warren v. Warren, 1 C., M. & 109, (2 Eng. Com. Law Reps.)

(u) Sinclair v. Baggaley, 4 M. & W. 312.

R. 252; per Parke, B., Kieran v. Johnson, 1 Stark. (x) 3 Stark. 64, (14 Eng. Com. Law Reps.)

done."(y) So, where, in order to prove that a letter had been sent to India from London by the defendant, a clerk in his office was called, who produced a letter-book, in which the letter was copied in his handwriting, and stated the practice of the office to be for him to copy into the book all letters for India; that, when copied, they were given to the defendant to seal, and afterwards carried, either by the witness. or another clerk, to the letter-office at the India House; but that there was no particular place of deposit in the office for the letters that were to be carried. Both the clerks swore that they always carried the letters given them for that purpose, but neither had any recollection of this particular letter. Lord Tenterden said, "I have great reluctance to refuse this evidence, but am bound to do it. The practice here differs from that in most counting-houses: if the duty of the clerk had been to see the letters he copied carried to the post-office, it might have done; but here there is something else to be done afterwards, and that by the defendant."(z) And in the case of Hawker v. Salter, (a) where one of the plaintiffs' clerks stated that [ *184 ] a letter from the plaintiffs, which the witness had copied, giving the defendant notice of dishonour of a bill of exchange, was sent by the post on the morning of the 10th January, but he had no recollection whether it was put in by himself or by another clerk; the whole Court of Common Pleas thought this was not sufficient evidence that the letter had been put into the post. A libel sold by a servant in a bookseller's shop is evidence of a publication by the master, and, it should seem, was formerly deemed conclusive evidence ;(b) but by the recent stat. 6 & 7 Vict. c. 96, s. 7, it is enacted, that "whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part."

§ 135. There are several other presumptions drawn from the usages of trade. Thus, where a partnership is found to exist between two persons, but there is no evidence to shew in what proportions the parties are interested, it is to be presumed that they are interested in equal shares.(c) So, bills of exchange and promissory notes are presumed to have been given for consideration; (d) *and after [ *185 ] year from the issuing of a fiat in bankruptcy, it will be presumed that all the creditors have proved their debts, so that a release from those who had proved may be considered as a release from all the creditors.(e)

(y) Hetherington v. Kemp, 4 Camp. 194.

(z) Toosey v. Williams, M. & M. 129, (22 Eng. Com. Law Reps.)

(a) 4 Bing. 715, (15 Eng. Com. Law Reps.) See further on this subject the case of Pritt v. Fairclough, 3 Camp. 305, and those referred to in the note to that case; and Hagedorn v. Reid, 3 Camp. 377. So, with respect to the practice in an attorney's office, Doe d. Patteshall v. Turford, 3 B. & Ad. 890, (23 Eng. Com. Law Reps.)

(b) Greenl. L. E., art. 36, p. 42; 1 Phill. & Am. Ev. 466, where several cases are cited. (c) Farrar v. Beswick, 1 M. & Rob. 527, per Parke, B.

(d) Chitty & Hulme on Bills of Exchange, 68; Byles on Bills, 2, 88, 4th ed.

(e) Carter v. Abbot, 1 B. & C. 444, (8 Eng. Com. Law Reps.) See, for other instances,

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