of law, the court cannot assume the existence of such a modus from a pleading stating the fact; but the question of modus must be raised by the pleadings, and the recognized presumption made by a jury, under the direction of a judge. §16. The grounds of these præsumptiones juris are various. Some of them are natural presumptions, which the law simply recognizes and enforces. Thus, the legal maxim, that every one must be presumed to intend the natural consequence of his own [ *19 ] act;(f) and, therefore, that he who sets fire to a building intended injury to its owner,(g) and that he who lays poison for, or discharges loaded arms at another, intended death or bodily harm to that person, merely establishes for law a principle to which the reason of man at once assents. But in most of the presumptions we are now considering, the inference is only partially approved by reason, the law, from motives of policy, attaching to the facts which give rise to it an artificial effect beyond their natural tendency to produce belief.(h) Thus, although a receipt for money, under hand and seal, naturally gives rise to a presumption of payment, still it does not necessarily prove it, and the conclusive effect of such a receipt is altogether a creature of the law.(i) So, the maxim by which a party who kills another is presumed to have done it maliciously,(k) seems to rest partly on natural equity, and partly on policy. To these may be added a third class, in which the principle of legal expediency is carried so far as to establish inferences not perceptible by reason at all, and perhaps even repugnant to it. Thus, when the law punishes offences, even mala prohibita, on the assumption that all persons in the kingdom, whether natives or foreigners, are acquainted with the common and general statute law; and when it presumes that a person who renders himself executor de son tort, has in his possession an unproved will of the deceased, it manifestly assumes that which has no real existence *whatever, although the arbitrary inference may be dic[ *20 ] tated by the soundest policy. §17. A very important distinction exists among presumptions of law, namely, that some are absolute and conclusive, called by the common lawyers irrebuttable presumptions, and by the civilians præsumptiones juris et de jure; while others are conditional, inconclusive, or rebuttable, and called by the civilians præsumptiones juris tantùm, or simply præsumptiones juris. Of the former, the following most accurate definition is given by Alciatus :-" Præsumptio juris et de jure est dispositio legis aliquid præsumentis, et super præsumpto, tanquam sibi comperto, statuentis."() "It is," says Menochius, "called præsumptio juris because it is a presumption made by law; and de jure, because the law holds for truth the presumption thus made, and establishes a fixed right upon it."(m) In a word, they are inferences which the law makes so peremptorily, that it will not allow them to be overturned by any contrary proof, however strong. Thus, where (f) Phil. Ev. 463, 8th ed.; Haire v. Wilson, 9 B. & C. 643. (17 Eng. Com. L. Reps.) (g) R. v. Farrington, R. & R. C. C. 207. (h) 3 Stark. Ev. 929, 3rd ed.; Eldridge v. Knott, Cowp. 214; Hillary v. Waller, 12 Ves. (i) Gilb. Ev. 158. 266. (k) Foster's C. L. 255, 290; 1 Hale, P. C. 455; 1 East, P. C. 340. (1) Alciatus, Tract. de Præs., pars 2, no. 3; Menochius de Præs., lib. 1, quæst. 3, no. 17; Pothier on Obligations, art. 807. (m) Menoch. in loco cit. a cause has once been regularly adjudicated upon by a competent tribunal, from which there either lies no appeal, or the time for appealing has elapsed, the whole matter assumes the form of res judicata, and evidence will not be admitted, in subsequent proceedings between the same parties, to shew that decision erroneous.(n) So, an infant under the age of seven years is not only presumed incapable *of [ *21 ] committing felony, but the presumption cannot be rebutted by the clearest evidence of a mischievous discretion.(o) So, a bond or other specialty is presumed to have been executed for good consideration, and no proof can be admitted to the contrary until the instrument is impeached for fraud.(p) A receipt under hand and seal, is, as we have already seen, conclusive evidence of the payment of money; and before the abolition of the feudal tenures, it was an irrebuttable presumption of law, that no person under the age of twentyone years was capable of performing knight-service.(g) §18. These conclusive presumptions have varied considerably in the course of our legal history. Many presumptions, which, in earlier times, were deemed absolute and irrebuttable, have, by the opinion of later judges, acting on more enlarged experience, either been ranged among præsumptiones juris tantùm, or considered as presumptions of fact, to be made at the discretion of a jury.(r) Thus, it was formerly an established principle that a child, born after marriage, must be presumed legitimate, and that the contrary could only be established by proof, either of a physical incapacity of procreation on the part of the husband, or of his absence beyond seas during a period exceeding the full time of gestation. (s) But of late years this doctrine has been very properly relaxed; and it is now held competent to disprove legitimacy by negativing the fact of sexual intercourse. (t) So, in [ *22 ] ancient times, many circumstances were considered as raising a presumption of guilt sufficiently strong to support a counterplea to a wager of battle, which would not be allowed to have that effect at the present day, if that mode of trial were still in existence.(u) On the whole, modern courts of justice are slow to recognize presumptions as irrebuttable, and are disposed rather to restrict than extend their number. By an arbitrary rule, to preclude a party from adducing evidence which, if received, would compel a decision in his favour, is an act which can only be justified by the clearest expediency and soundest policy; and it must be confessed that there are several presumptions still retained in this class which never ought to have found their way into it, and which, it is to be feared, often operate seriously to the defeat of justice. Among these may be reckoned the presumption, that a boy under the age of fourteen is incapable of sexual inter (n) On the authority of res judicata in general, see Poth. Oblig. part 4, c. 3, s. 3; 2 Evans's Poth. 346 et seq.; Phil. Ev. part 2, c. 1, 8th ed.; and Mr. Smith's note to the case of Doe d. Christmas v. Oliver, 2 Smith's Leading Cases, 436. (0) 1 Hale, P. C. 27; 4 Blackst. Com. 23; Phillips on Ev. 462, 8th ed. (p) 2 Stark. Ev. 931, 3rd ed.; Lowe v. Peers, 4 Burr. 2229. See infra, Part 2. (9) Littleton, s. 103; Co. Litt. 78, b. (r) Phil. Ev. 460, 8th ed. (8) Co. Litt. 244, a; R. v. Alberton, 1 L. Raym. 395; R. v. Murrey, 1 Salk. 122. (t) Phillips on Ev. 462, 8th ed.; and infra, Part 2, Chap. I. Where, however, sexual intercourse with the husband has taken place within a possible time, the legitimacy of the offspring is still ranked among præsumptiones juris et de jure. (Ib.) (u) Per Abbott, J., in Ashford v. Thornton, 1 B. & A. 405. course ;(x) which, although true as a general rule, has been shewn, in numerous instances, to be by no means of universal application.(y) [ *23 ] * 19. Præsumptiones juris et de jure are not, however, without their use. On the contrary, when restrained within due limits, they exercise a very salutary effect in the administration of justice, by throwing obstacles in the way of vexatious litigation, and repressing inquiries on subjects where sound and unsuspected evidence is not likely to be obtained. Among the most useful, in these respects, may be ranked the principle which upholds the authority of res judicata, the intendments made by the courts to support the verdicts of juries, and, as qualified by modern decisions, the doctrine of estoppel.(z) * $20. Legal fictions are closely allied to irrebuttable [ *24 ] presumptions of law. "Fictio juris (according both to the civilians and our own authorities) est legis, adversus veritatem, in re possibili, ex justâ causâ dispositio, adversus quam probare non licet."(a) In other words, where the law, for the advancement of justice, assumes as fact, and will not allow to be disproved, something which is false, but not impossible. The essential distinction between these and præsumptiones juris et de jure consists in this; that the latter are arbitrary inferences, which may or may not be true, whilst, in the case of fictions, the falsehood of the fact assumed is understood and avowed.(b) Thus, the præsumptio juris et de jure, that infants under the age of seven (x) 1 Hale, P. C. 630; 4 Blackst. Com. 212. (y) An instance of the effects of this rule was presented by the case of R. v. Groombridge, MS. Surrey Summer Assizes, 1836, and which will be found reported, for another point, 7 C. & P. 582. The prisoner, described in the calendar as of the age of sixteen, was indicted for the then capital offence of carnally knowing a female child under the age of ten years. Whatever doubt might have existed as to the commission of the capital crime, there could have been none of its having been attempted, and perhaps as little of the prisoner's capacity to commit it; for he had communicated to the child a venereal disease, under which he was himself labouring when placed in the dock. On the case being called on, it was unexpectedly discovered that the prisoner's age was misstated, and that he had not completed his fourteenth year; whereupon the counsel for the prosecution, after a conference with the judge (Gaselee), consented to an acquittal, telling the jury that it was useless to shock with an indecent story, as, sooner or later, he must be met with the fatal objection, that the law conclusively presumed the prisoner to be incapable of sexual intercourse, and he was ac cordingly discharged with an admonition from the judge. See, for other cases, Beck's Med Jurisp., p. 400, 7th ed. (z) In unenlightened times, or in the hands of a corrupt tribunal, artificial presumptions and fictions are most dangerous instruments, and even in the best times require to be handled with discretion. As an instance of the notions of former ages in this respect, Bartolus gravely expresses himself thus :-"Item dico, si aliquis deprehenditur in domo alicujus, ubi pulchra mulier est certè facit hunc adulterum manifestum!" (Bartolus, Comment. in 2ndam partem Dig. Novi. fol. 122. b. de Furtis :) and a number of very absurd and mischievous presumptions, which at one time received the sanction of the civilians and canonists, are collected by Muller in his edition of Struvius, Syntagma Juris, exercit. 38, tit. 18, n. (5). But we need not travel beyond our own law. Lord Coke, in Calvin's case (7 Co. 17, a.) lays it down that "all infidels are in law perpetui inimici; for the law presumes not that they will be converted, that being potentia remotissima, for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility"-a charitable notion, and borrowed probably from the canonists, with whom it was a maxim, "semel hæreticus, semper præsumitur talis." (Struv. in loco cit.) The same great lawyer told the jury, in Sir Walter Raleigh's case, that the law presumes that a man will not accuse himself to accuse another. (2 Howell St. Tr. 19.) (a) 3 Blackst. Com. 43; Sheffield v. Ratcliffe, 2 Rol. R. 502; Palm. 354; Finch, C. L. b. 1, c. 5; Westenbergius, Principia Juris, lib. 22, tit. 3, n. 28; Gothofred, in Dig. lib. 22, tit. 3, fol. 322; Alciatus de Præs., p. 1. n. 2 ct 4; Huberus, Positiones Juris, pars 2, p. 260. (b) Huberus, Præl. J. C., lib. 22, tit. 3, n. 21; Johan. Voet ad Pand. lib. 22, tit. 3, n. 19; Alciatus de Præs., pars 1, n. 4. years are doli incapaces for felonious purposes (c) is probably true in general, although false in particular instances; but when, in order to give jurisdiction to the courts at Westminister, the law feigns that a contract, which was really entered into at sea, was made at the Royal Exchange, in London, (d) the assumption is avowedly false, and a fiction in the completest sense of the word. §21. "Fictions of law," says Mr. Justice Blackstone," although they may startle at first, will be found, on consideration, to be highly beneficial and useful."(e) They are invented, say the *25 ] civilians, "ad conciliandam æquitatem, cum ratione et sub- [ tilitate juris";(f) and it is a well known maxim of the common law, that" in fictione juris, semper subsistit æquitas;"(g) in furtherance of which principle, the two following rules have been laid down. § 22. First, fictions are only to be made for necessity, and to avoid michief, (h) and, consequently, must never be allowed to work prejudice or injury to an innocent party :(i) "fictio legis neminem lædit, nemini operatur damnum vel injuriam."(k) Thus, when a man seized in fee of lands marries, and makes a feoffment to another, who grants a rentcharge to the feoffor and his wife, and to the heirs of the feoffer, the feoffer dies, and his wife recovers the moiety of the land for her dower by custom, she may distrain but for half of the rent-charge; for although, by fiction of law, her claim of dower comes in above her claim to the rent, yet, if that fiction were carried so far as to allow her to distrain for the whole rent in the second half of the land, it would work a wrong to the feoffee, which the law will not allow.(1) So, although the vouchee in a common recovery was, by fiction of law, considered tenant of the land so far as to enable him to levy a fine to the demandant, or to accept a fine or release from him, still, as the vouchee had really nothing in the land, a fine or release by him to a stranger was void.(m) 23. Secondly, it is said to be a rule that the matter *assumed as true must be something physically possible.(n) [ *26 ] Thus, says Huberus, where a man devises all his property, on condition that the devisee shall do a certain act within a limited time after the death of the devisor, until that time has expired, with the condition unperformed, the deceased cannot be said to have died intestate; be (c) 4 Blackst. Com. 23; 1 Hale, P. C. 27. (e) 3 Blackst. Com. 43. (g) Blackst. Com. 43; Co. Litt. 150. a.; 10 Co. 40. a.; 11 Co. 51. a. (h) 3 Co. 30. a.; Butler and Baker's case. (i) lb. 29. b.; 11 Co. 51. a.; 13 Co. 21. a. (k) 2 Rol. R. 502; Palmer, 354. See, also, 3 Co. 36. a. (m) Ib. 265. b.; 3 Co. 29. b. "Chescun (1) Co. Litt. 150. a. (n) Huberus, Præl. J. C., lib. 22, tit. 3, n. 22; Alciatus de Præs., p. 1, n. 5. fiction doit estre ex re possibili; ceo ne serra d'impossible, car le ley imitate nature." (Per Doddridge, J., in Sheffield v. Ratcliffe, 2 Rol. R. 502.) The existence of this rule has been denied, and especially by Titius (Jus Privatum, lib. 1, c. 9, ss. 1 and 13,) who says of fictions in general, "totus iste fictionum apparatus, non tantum non necessarius, sed inutilis ineptusque visus est," and adduces, as instances of feigned impossibilities, the 26th Constitution of the Emperor Leo, to the effect that" castrati adoptare possunt ;" and also the fact that a child in ventre sa mere, is susceptible of many rights, as if it had been actually born. In the latter of these cases, however, the fiction involves no impossibility, its only operation being with relation to time; and with respect to the former, it is clear from the preamble of the constitution in question, that the right to adopt given to the persons in the condition there described, was conferred on them as an indulgence, without any reference to a supposed power of procreation. cause the condition, when performed, has a retrospective effect to the time of the death. But if the limited time be allowed to elapse with the condition unperformed, no subsequent performance of it can have relation back to the day of the death; for this would involve the absurdity of a man who had already died intestate being deemed to have died testate at a time subsequent to his decease.(0) § 24. Fictions are of three kinds: affirmative or positive fictions; negative fictions; and fictions of relation.(p) In the case of affirmative fictions something is assumed to exist which in reality does not; such as *the fiction of lease entry and ouster in [ *27 ] actions of ejectment; the old fiction, that the plaintiff in all suits on the law side of the Exchequer was accountant to the crown ;(q) and the ac etiam clause in writs, by means of which the Court of Queen's Bench preserved its jurisdiction over matters of debt after the passing of 13 Car. 2, c. 2, st. 2, &c.(r) In negative fictions, on the contrary, that which really existed is treated as if it did not. Thus, a disseisee, after his re-entry, may maintain trespass for injury done to the freehold during his disseisin; on the principle that, so far as the disseisor and his servants are concerned, the freehold must be taken never to have been divested out of its disseisee. (s) Fictions by relation(t) are of four kinds :-First, where the act of one person is taken to be the act of another; as, where the act or possession of a servant is deemed the act or possession of the master; or where a felonious act is done by one person in the presence of others who are aiding or abetting him, in which case the act of one is, in contemplation of law, the act of all,(u)-"qui per alium facit per seipsum facere videtur."(x) Second, where an act done by or to a thing is taken, by relation, as done by or to another; as where the possession of land is transferred by livery of seisin; a mortgage of land created by delivery of the title-deeds; or an acceptance of a portion of goods sold is taken as equivalent to a taking possession of the whole. Third, fictions as to place; as in the case already put, of a contract made at sea, or abroad, being *treated as if [ *28 ] made in London, and the like.(y) There is a curious instance of this kind of fiction in the civil law, by which Roman citizens, who were made prisoners by an enemy, were on their return home supposed never to have been prisoners at all, and entitled to various civil rights, as if they had not been out of their own country.(z) Fourth, (and lastly,) fictions as to time. Thus, where a feoffment was made with livery of seisin, a subsequent attornment by the tenant was held to relate back to the time of the livery. (a) It is on this principle that the title of an executor or administrator to the goods of the testator or intestate relates back to the time of his death, and does not take effect merely from the probate, or grant of the letters |