Imágenes de páginas

of administration ;(£,) an extremely useful fiction, to prevent the property of the deceased being made avvav with. And it is a fixed principle, that every ratification has relation back, to the time of the act done,—omnis ratihabitio retrotrahitur et mandato Eequiparatur.(c) This kind of fiction is also largely to be found in the procedure of the courts, where it is every day's practice to deliver pleadings, sign judgments, and do many other acts nunc pro tunc, &c.(rf)

§ 25. The other kind of presumptions of law, which we have called rebuttable presumptions, or *presumptiones juris tantiim, r #2g have been thus correctly defined by John Voet:—" Prae- J sumptio juris dicitur, quae ex legibus introducta est, ac pro veritate habetur; donee probatione aut praesumptione contraria fortiore enervata fuerit.(e) Every word of this sentence is worthy attention. First, like the former class, these presumptions are intendments made by law, but unlike them, only hold good until disproved. Thus, although the law presumes every infant between the ages of seven and fourteen to be incapable of committing felony, as being doli incapax, still a mischievous discretion may be shown; and there are many instances of children under the age of fourteen being punished capitally.(/) So, although the law presumes all bills of exchange and promissory notes to have been given and indorsed for good consideration, it is competent for the parties affected by these presumptions to falsify them by evidence.(g-) And we have already seen, that the legitimacy of a child born during wedlock may be rebutted by proof of the absence of sexual intercourse between its supposed parents.(A) To this class also belong the well-known presumptions against guilt, fraud, idiotcy, insanity, infancy, and coverture; the presumption that legal acts have been performed with the solemnities required by law, according *to the maxim "omnia prae- r -, sumuntur legitime facta;"(/) that every person performs *- * the duties or obligations which the law casts on him;(Ar) that a parson is always resident on his benefice ;(/) that every person intends the natural and probable consequences of his own acts, &c.(m) The concluding words of the definition of this species of presumptions, show that they may be rebutted by presumptive as well as by direct evidence, and that the weaker presumption will give way to the

(6) 36 H. 6, fol. 7, b., plac. 4. See the cases on this subject collected in Tharpe v. Stallwood, 12 L. J. N. S., C. P. 241; and Foster v. Bates, 7 Jurist, 1093.

(c) Co. Litt. 207, a., 245, a., 258, a.; 9 Co. 106, a.

(d) See further on the subject of fictions by relation, Butler and Baker's case, 3 Co. 25, a.; and 2 Roll. Abr. tit. Relation, and Trespass by Relation.

(e) Voet ad Pandectas, lib. 22, tit. 3, n. 15. See, also, Vinnius, Jurisprud. Contract., lib. 4, c. 36; Huberus, Pral. J. C, lib. 22, tit. 3, n. 18. The definition of Baldus is also very good:—"Animi legislators ad verisimile applicatio, onus probandi trausferens." Baldus, in Rubr. Cod. de Probationibus, n. 4, (i. e. Cod. lib. 4, tit. 19.)

(./) 1 Hale, P. C. 26; 4 Blackst. Com. 23.

(g) 3 Stark. Ev. 930, 3rd ed. For the cases in which the consideration of negotiable instruments can be inquired into, sec Bylcs on Bills, c. 11, p. 88,4th ed.

(A) Phil. Ev. 462; et supra, art. la (i) Co. Lit . 232, b.; 12 Co. 4 and 5.

(it) Monke v. Butler, 1 Ro. R. 83; Powell v. Milbank, 3 Wills. 355; R. v. Hawkins, 10 East, 211. (I) Co. Litt . 78, b.

(m) Phil. Ev. 463, 8th ed.; R. v. Dixon, 3 M. &. 9.15; Haire v. Wilson, 9 B. & C. 643 (17 Eng. Com. Law Reps.;) R. v. Sheppard, R. & R. C. C. 169; R. v. Farrington, ib. 207 B.V. Mazagora, ib. 291.

stronger; as shall be more fully shown when we come to treat ot conflicting presumptions.(w)

[ *31 ] *CHAPTER III.


§ 26. We now return to a more particular examination of praesumptionis hominis, or presumptions of fact; in treating of which, it is proposed to consider—1st. The grounds or sources from whence they are derived; 2nd. The legal admissibility of presumptive evidence; 3rd. Its probative force. We shall then briefly explain the nature of praesumptiones mixtae, or presumptions of mixed law and fact; and, lastly, show the extent to which the discretion of juries in drawing presumptive inferences is controlled or reviewed by courts of law.

§ 27. The grounds or sources of presumptions are obviously innumerable—they are co-extensive with the facts, both physical and psychological, which may, under any circumstances whatever, become evidentiary in courts of justice ;(a) but, in a general view, presumptions may be said to relate to things, persons, and the actions or thoughts of intelligent agents.(fi) With respect to the first of these, it is an established principle that conformity with the ordinary course of nature should always be presumed. Thus, the change and r -i *order of the seasons, the rising, setting, and course of

*• J the heavenly bodies, and the known properties of matter,

give rise to very important presumptions relative to physical facts or things. The same rule extends to persons. Thus, the absence of those natural qualities, powers, and faculties, which are incident to the human race in general, will never be presumed in any individual; such as the impossibility of living long without food, the power of procreation within the usual ages, the possession of the reasoning faculties, and the common and ordinary understanding of man, &c.(c) To this head are reducible the presumptions which juries are sometimes called on to make, relative to the duration of human life, the time of gestation, &c. Under the third class, namely, the acts and thoughts of intelligent agents, come, among others, all psychological facts; and here most important inferences are drawn from the ordinary conduct of mankind, and the natural feelings or impulses of human nature. Thus no man will ever be presumed to throw away his property,(rf) as, for instance by paying money not due ;(e) and it is a maxim, that every one must be taken to love his own offspring more than that of another person, &c.(/) Many presumptions of

(n) See infra, chap. IV.

(a) Desumitur prassumptio ex personis, ex causis, ex loco, ex tempore, ex qualitate, ex silcntio, ex familiaritate, ex fug&, ex negligentty, ex vicinia, ex obscuritate, ex eventu, ex dignitate, ex tetate, ex quantitate, ex araore, ex societate, &c. (Matthieus de Probationibus, c. 2, n. 1, p. 77.) (6) Huberus, Pmbl J. C. lib. Q2, tit. 3, n. 17.

(C) Ibid. ti) Voet ad Pand., lib. 22, tit. 3, n. 15; Dig., lib. 22, tit. 3, 1, 25.

(«)Ib. (/)CcLitt.373,«,

this kind are founded on the customs and habits of society; as, for instance, that a man, to whom several sums of money are owing by another, will take in the debts of longest standing first, &c. ;(g) and this naturally leads us to our second head of inquiry, namely,—

28. The legal admissibility of presumptive proof. r #gg Although, in resorting to presumptive reasoning, judges * and juries only apply, under the sanction of law, a process which the unassisted reason of man would have applied for itself, it by no means follows, e converso, that all facts which are naturally evidentiary of others will be received as evidentiary of them in the courts of justice; or, if received, will be allowed to act on the mind with no other force than their mere natural tendency to produce belief. On the contrary, the laws of most nations, and those of England especially, have established rules to regulate the admissibility, and, in some cases, even the weight of evidence. Some of these are of an exclusionary character, and reject, as legal evidence, facts which might in themselves be entitled to consideration, and the repudiation of which rests either on the ground that the connexion between the principal and evidentiary facts is too remote.(A) or that the facts, although evidentiary, if genuine, are of a nature peculiarly liable to fabrication; on the principle, that it is better to exclude truth in a few instances, than to open a door to fraud and falsehood in many. Thus, on a question as to the precise terms of an agreement to let premises, although it might assist to know the terms on which the landlord usually let to his other tenants, the evidence would be rejected, as too remote.(i) So, the admission, by an accused person, that he is addicted to the commission of offences similar to that with *which he is r #_- , charged, is inadmissible to prove his guilt in the actual L case ;(A) nor is it competent to disprove the handwriting of a party by shewing, from his general character, that he was not a likely person to sign an instrument of the nature of that purporting to be signed by him.(7) The effect of some of the other rules of evidence, on the contrary, is to invest natural evidence with an artificial weight, and sometimes to receive that which, abstractedly considered, ought not to be received as evidence at all. These seem chiefly to rest on the maxim, "interest reipublicae ut sit finis litiu,m,"(m) to which, also, many praesumptiones juris may be traced; particularly those which prohibit questions which have been settled by judicial decision from being litigated afresh by the same parties, and those which invest judgments in rem in the Exchequer with a conclusive force against all the world.(n) And the following general principles are laid down in a recent work: " With respect to presumptions which are too remote to admit of any reasonable direction to a jury, in regard to the issue which they have to try, a very nice exercise of discretion often devolves upon the judge. It is his duty to confine the evidence to the point in issue, lest the attention of juries should be distracted,

lg) Gilb. Ev. 157; Poth. Obi. art. 819; Cod., lib. 10, tit . 22, 1.3.

(A) In jure non remota causa, sed proxima spcctutur. Bac. Max. of the Law, Reg. 1.

(t) Carter v. Prvke, Peake, 95. See, also, Spenceley v. De Willott, 7 East, 110.

(*) R. v. Cole, Mich. 1810 ; Phil. Ev. 499, 8th ed.: Roscoe, Cr. Ev. 73.

(/) Da Costa v. Pyra, Peake's Ev. App. 35.

(m) 6 Co. 45. a; II Co. 69. a; 4 BL C. 338. (n) Phil. Ev. 551, 8th ed.

and the public time needlessly consumed; but in deciding whether the evidence of any particular circumstance is not receivable on this ground, he must impliedly determine that no presumption to be drawn r #S5 l from lnat circumstance ought properly *to have an effect !- J upon the minds of thejury.(o) In matters of this nature,

judges will naturally be much guided by decided cases and precedent.

§ 29. Presumptive evidence is not, in a legal sense, inferior or secondary to direct evidence.(p) By the rule of law which declares certain species of evidence inferior or secondary to others, and requires the best, or primary evidence to be given, is meant, not that some kinds of evidence are to be rejected as less convincing or credible than others, but that no evidence shall be received which shews, upon its face, that it only derives its force from some other which is withheld. In many cases the law has appropriated certain kinds of evidence as the proper proof of certain things; thus, a will or contract reduced to writing should be proved by the production of the document itself; the records and written proceedings of courts of justice are the proper proof of the facts therein recorded, &c.; in all which cases any evidence, direct or presumptive, deriving its force from, the will, contract, record, &c, such as copies, extracts, or the recollection of witnessess, are rejected as secondary,^) and not receivable, until the absence of the primary evidence under which they derive their force is satisfactorily accounted for. So, the production of a written document itself is the best or primary evidence of its contents, when those contents are in issue.(r) But, except in these and some few other instances, no evidence relevant to the issue, and r #gg -i a fortiori no evidence, which carries a presumption of * *truth with it, will be rejected, on the ground that written evidence, or evidence of a more direct or satisfactory kind, might have been procured. Thus the payment of money may be proved by a witness who saw the payment made, although a written receipt was given at the time ;(s) and a verbal demand of goods may be proved, although there was also a demand made in writing.(i) And it has been lately settled, after a long series of irreconcileable rulings at Nisi Prius, that admissions against interest, made by a party to a suit, are receivable as primary evidence against him, even though they relate to the contents of instruments of the most solemn kind; for such evidence is not secondary in its character, and has the presumption in favour of its truth arising from the admission being prejudicial to the party making it.(«) For these reasons, it may be laid down as a rule, that it is in general competent to prove any fact by presumptive, as well as by direct evidence,(a;) although the withholding the latter may be ground for observation.(y)

§ 30. The vast field over which presumptive reasoning extends must render ineffectual any attempt to reduce the presumptions to

(o) Phil. Ev. 481, 8th ed. (p) Roscoe, Civ. Ev. 15, 2nd ed.

(9) Domat . liv. 3, tit. 6, s. 2, n. 10; Roscoe, Crim. Ev. 1, 2; Gilb. Ev. 94. (r) The Queen's case, 2 B. & B. 286, by the judges.

(») Rambert v. Cohen, 4 Esp. 213. (t) Smith v. Young, 1 Camp. 439.

(u) Slatterie v. Pooley, SU.StVZ. 664 ; 4 Jurist, 1038; Howard v. Smith, 3 Scott, N. R. 574. (*) Roscoe, Crim. Ev. 15, 2nd ed.

(y) 2 Evaiu's Poth. 340 ; Theory of Pres. Proof, p. 62.

which it gives rise, into definite classes, according to their degree* of probative force. Some classification, however, has generally been deemed convenient ;(z) and there is one which, on the strength of some high authorities, seems to have become embodied r *into our law of evidence. "Presumptions," says Lord *- * Coke,(a) " are of three sorts : violent, probable, and light, or temerary. Violenta praesumptio is many times plena probatio; pracsumptio probabilis moveth little ; but praesumptio levis seu temeraria moveth not at all." As an instance of violenta praesumptio,amounting to plena probatio, Lord Coke, and in this he is followed by several eminent writers,(2,)

Euts the case of a man being run through the body with a sword in a ouse, of which he instantly dies, and another man is seen to come out of that house with a bloody sword in his hand, and no other man was at that time in the house. "This," observes Lord Chief Baron Gilbert,(c) "is a violent presumption that he is the murderer; for the blood, the weapon, and the hasty flight, are all the necessary concomitants to such horrid facts; and the next proof to the sight of the fact itself is the proof of those circumstances that do necessarily attend such facts." Notwithstanding the weight of authority in its favour, the above illustration of violent presumption has been made the subject of much and very deserved observation. If the learned authors above quoted mean to say, as their words imply, that there is no possible mode of reconciling the above facts with the innocence of the man seen coming out of the house, the proposition is monstrous! Either of the following hypotheses will reconcile them, and probably others might be suggested. First, the deceased, with the intention of committing suicide, might have plunged the sword into his own body; the accused, not being in time *to prevent him, drew out r t^ -. the sword, and ran out, through confusion of mind, for *- J surgical assistance. Second, the deceased and the accused might have both worn swords; the deceased, in a fit of passion, attacked the accused; the accused being close to the wall, had no retreat, and had just time enough to draw his sword, in the hope of keeping off the deceased, who not seeing the sword in time, ran upon it, and was killed.(d) It is, however, possible that Lord Coke and Chief Baron Gilbert only meant that the above facts constitute a sufficient primi facie case to call on the accused for his defence, and, in the absence of explanation by him, to warrant the jury in declaring him guilty.(e)

(z) A large number, taken from the works of the earlier civilians, are collected by Menochius. (Tr. de Praes., lib. 1, quajst. S.)

(a) Co. Litt. 6. b.; 2 Hawk. P. C, c. 46, s. 42; Gilb. L. E. 157.

(6) 2 Hawk. P. C, e. 46, s. 42; 1 Stark. Ev. 562, 3rd ed.; Gilb. L. E. 157.

(e) GUb. Law of Evid. 157. (d) 3 Benth. Jud. Ev. 236-7.

(e) Their language seems to have been so understood by Mounteney, B., in the case of Annesley v. the Ear) of Anglesca. (17 Ho. St. Tr. 1430.) Mr. Starkie however says, that the circumstances wholly and necessarily exclude any but one hypothesis. (I Stark. Ev. 562, 3rd ed.)—The illustration given by Lord Coke of a violent presumption is very ancient, and seems to have been a favourite both among the early civilians and common lawyers. The facts stated in the text are expressly adduced by Bartolus, in the 14th century, and other writers of that period, as conclusive proof of murder j (Bartolus, Comment, in 2ndam partem Dig. Novi, de Furtis, fol. 122. b.;) and they were deemed, in our own law, sufficient to support a counterplea to a wager of battle, and oust the appellee of his right to invoke the judgment of heaven. (Staundforde, P. C, lib. 3, c. 14, Countcrplces al Battaile; Brae ton, lib. 3, fol. 137; Button, fol. 14.) Their inconclusiveness, however, did not escape the

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