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matter for their discretionsq) And the same rule seems to apply where the presumption is one of much natural weight and frequent occurrence; as where larceny is inferred from the recent possession of stolen property, &c. In the case of presumptions of a less stringent nature, however, such a direction would be improper; and perhaps the best general rule is, that the jury should be advised or recommended to make the presumption.(r) To lay down rules for all cases would of course be impossible; but, as has been remarked by a recent writer on the law of evidence, it is certain that the language of the courts, expressed in regard to particular presumptions, may be expected to exercise considerable influence in the determination of future cases in which the like presumptions may arise.(s)

§ 41. It has been already remarked, as a characteristic r distinction between presumptions of law and presumptions * of fact, either simple or mixed, that when the former are disregarded by a jury a new trial is granted as matter of- right ;(<) but that the disregard of the latter, however strong and obvious, is only ground for a new trial at the discretion of the Court in banc. Now, although questions of fact are the peculiar province of a jury, still the Courts,

relates to the administration of justice,(a) will usually grant a new trial when an important presumption of fact, or mixed presumption, has been disregarded by a jury. But new trials will not always be granted when successive juries disregard such a presumption; and the interference of the Court in this respect will depend very much upon circumstances. As a general rule, it may be stated, that probably not more than one or two new trials would be granted.(a:) Thus, in the case of Foster v. Steele,(y) where the question in dispute was the seaworthiness of a ship, a verdict for the plaintiff having been set aside as contrary to evidence, the jury not having made the usual presumption that the ship was unseaworthy, from her having, shortly after leaving port, become distressed without apparent cause, a second jury having found a similar verdict, the Court of Common Pleas was equally divided in opinion whether a second new trial ought to be granted. Tindal, C. J., and Park, J., thought the question onewhich was peculiarly for the jury, and that *the verdict, T -. although not altogether satisfactory, could not be considered *- * preverse, and ought not to be disturbed; while Vaughan and Coltman, J J., thought that the reasons which induced the Court to grant a.second trial out to prevail with them to try the result of a third: but the whole Court agreed that, if a third jury were to find in the same way, the proceedings should end. But there are some mixed presumptions which the policy of the law, convenience, and justice so strongly require to be made, that the Courts will go much further than this in order to uphold them; the principal among which are the

(f) Jenkins v. Harvey, 1 C, M. & R. 877. See infra, Part 2, Chap. III. (r) R. v. Joliffe, 3 B. & C. 54, (9 Eng. Com. Law Reps.) (•) Phi!. Et. 461, 8th od. (t) Phil. Ev. 459, 8th ed.; Tindal v. Brown, 1 T. R. 167. (u) Goodwin v. Gibbons, 4 Burr. 2108; Burton v. Thompson, 2 Burr. 664. (*) Phil. Ev, 460, 8ih ed. (y) Foster v. Steele, 3 Binf. N. C. 892, (32 Eng. Com. Law Reps.)

January, 1845.—4

by virtue


power over every thing that existence of prescriptive rights and grants, from long and continued possession, &c. In a recent work it is said, " It is apprehended that if a jury (previous to the 2 & 3 Will. 4, c. 71) had disregarded the recommendation of a judge, that evidence of long enjoyment was cogent evidence of a grant, the Court would have directed a new trial toties quoties;"(z) for which the only authority cited is the observation of Alderson, B., in Jenkins v. Harvey,(a) that "if an uninterrupted usage of upwards of seventy years, unanswered by any evidence to the contrary, were not sufficient to establish a right like that then under consideration (namely, to a toll upon all coal brought into a certain port,) there were innumerable titles which could not be sustained." And in one case,(6) where an action was brought by the assignees of a bankrupt, to recover a sum of money paid by the bankrupt by way of fraudulent preference, two juries having found for the defendant clearly in defiance of evidence, the Court set the r #gj -I second verdict aside, *Tindal, C. J., saying,that "he was J extremely reluctant to send the cause to a third trial; but there were cases, and that appeared to be one of them, in which one could not help feeling that justice had not been done." It is, however, rather a strong proposition, to say that the Courts would set aside verdicts ad infinitum, because juries have found on facts in a particular way.(c)

[ «52 ] ^CHAPTER IV.


§ 42. It is obvious from what has been said in the preceeding chapters, that the majtim, stabit prcesumptio donee probetur in contrarium,(a) must be understood with considerable limitation. It is obviously inapplicable either to prasumpliones juris et de jure, whose very rfature is to exclude all contrary proof, or to those presumptions of fact which we have denominated slight, or prcesumptiones leviores; and is, therefore, necessarily restricted to such presumptions of law or fact, or masses of presumptive evidence, as throw the burden of proof on the parties against whom they militate.

(j 43. Now, rebuttable presumptions of any kind may be encountered by presumptive, as well as by direct evidence ;(b) and it not unfrequently happens, that the same facts may, when considered in

(z) Gale & Whatlev on Easements, p. 95. (a) 1 C, M. & R. S95. (6) Gibson v. Muskett, 3 Scott, N. R., 419.

(c) The granting new trials ad infinitum, for the disregard by successive juries of a presumption of fact, is very like setting aside the trial by jury. The practice of granting new trials at all is comparatively modern. The first case on the subject is said to be in Styles.— Per Curiam, in Bayley v. Bourne, 1 Str. 392—Where several sets of men, on their oaths, find in a particular way, would it not be more reasonable to presume grounds for their finding?

(a) Co. Litt. 393. b.; 4 Co. 71. b.; 2 Co. 48. a ; 6 Co. 73. b.; Hob. 297.

(b) Brady v. Cubitt, 1 Dougl. 39; Jayne v. Price, 5 Taunt. 328, (1 Eng. Com. Law Reps.;) 1 Marsh, 69 ; R. v. Harborne, 2 A. & E. 540, (29 Eng. Com. Law Reps.;) 4 N. & M. 341, (30 Eng. Com. Law Reps.;) Rickards v, Mumford, 2 Phillim. 24, 25; Mcnochiui de Pres., lib. 1, quest. 29, 30, 31 ; Mascardus de Frob. ConcJ. 1231.

different points of view, form the bases of opposite inferences ; in either of which cases it becomes necessary to determine the relative weight due to the conflicting presumptions. The relative weight of conflicting presumptions of law is of course, to be determined by the court or judge, who should also direct the attention of the jury to the burden *of proof as affected by the pleadings and evidence in r #g„ . each case; and although the decision of questions of fact <- J constitutes the peculiar province of the jury, still they ought, especially in civil cases, to be guided by those rules regulating the burden of proof, and the weight of conflicting presumptions, which are recognized by law, and have their origin in natural equity and convenience, (c)

§ 44. The subject of conflicting presumptions seems almost to have escaped the notice of the writers on English law; but several rules respecting it have been laid down by civilians. Some of these are, perhaps, questionable ;(d] but the following appear sound in principle, and likely to be serviceable in practice.

§ 45. I. Special presumptions take precedence of general ones.(e) This is the chief rule on the subject, and *rests on the ,- .. obvious principle that, as all general inferences (except, *• J of course, such as are de jure) are rebuttable by positive evidence, they will naturally be affected by that which comes nearest to direct proof: namely, specific or proximate facts or circumstances, which give rise to special inferences negativing the applicability of the general presumption to the particular case. Thus, although the owner in fee of land is presumed to be entitled to the minerals found under it, the presumption may be rebutted by that arising from non-enjoyment, and the use of those minerals by others.(/) So, although the possession of land and the perception of rent is prima facie evidence of a seisin in fee, still, where the demandant in a writ of right, claimed under a remote ancestor, it was held, that the presumption was successfully encountered by proof that the demandant and his father, through whom his title was traced, had, for a long time, allowed other parties to keep possession of the land, when they themselves Jived in the neighbourhood, and must have been aware of it.(g) The flowing

(e) 1 Stark. Ev. 542.

(d) In addition to thoso mentioned in this chapter, Menochius gives the following, (De Prasumptionibua, lib. 1, qurast. 29; De Arbitrariis Judicum, lib. 2, casus 472 ;)—1. Prossumptio qute & substantia provenit dicitur potentior ilia qua s descendit a soleranitatc. 2. Pnesumptio judicatur potentior quffl est benignior. 3. Pnesumptio judicatur firmior et potentior qusa juri communi inhteret, et ilia debilior quse juri speciali. 4. Pnesumptio est ralidior et potentior qute verisimilitudini magis convenit. 5. Prassumptio qua: deacendit a quasi possesione est potentior ilia qute est quod queelibet res pnesumatur libera. 6. Prteaumptio ncgativa est potentior et firmior affirmative. 7. Pnesumptio ilia judicatur potentior et firmior quae est fundata in ratione naturali, ilia quse est fundata in rutione chili, 8. Firmior et talidior existimatur ilia prassumptio qua. absurda et inasqualia evitantur. 9. Pnesumptio quae ducitur a facto, est firmior et potentior ca qute sumitur a non facto. 10. Prassumptio ilia quse fuvet animal, sicque saluti icterntc, potentior et firmior est ilia qua dicimus delictum non presumi.

(e) M.enochius de Prasuinptionibus, lib. 1, qutest. 29, n. 7 & 8; lb. De Aribitrariis Judienm, lib. 2, casus 472, n. 14. 16; Huberua, Prajl. Juris Civilii, lib. 22, tit. 3, n. 17; lb. Poaitiones Juris, pars 2, p. 260; Mascardus de Probationibus Conclusio, 731; 2 Evans's Pothier, 332; Peake's L. E. 119, 5th ed.

(/) Rowe v. Brenton, 8 B. St C. 737, (15 Eng. Com. Law Reps.;) Rowe v. Grcnfol, R. & M. 396, (21 Eng. Com. Law Reps.)

(f) Jayne v. Price, 5 Taunt. 32G, (1 Eng. Com. Law Reps.;) 1 Mar«h, 63.

of the tide is presumptive evidence of a navigable river ;(h) but the presumption may be removed by proof of the narrowness of the stream, or shallowness of its channel, or of acts of ownership in private individuals inconsistent with a right of public navigation.(i') The presumption of innocence is a very general, and rather a favoured presumption; but guilt, as we see every day, may be proved by preT *55 1 sumptive evidence. Thus, on an indictment for falsely L J taking *the freeholder's oath at an election, where the

issue was, did the defendant personate and answer in the name of J. W„ the following evidence was held sufficient for conviction:—It was proved, in the first place, that the freeholder's oath was administered to a person calling himself J. W., and presumptive evidence adduced to shew that there was no such person. It was then shewn that the defendant had voted, although he was not a freeholder, and did not vote in his own name ; there was no evidence that, on the day he voted, there was any other false vote given; and that the defendant, somtime after the election, had boasted that he had done the trick, but was not paid enough for the job, and was afraid that he should be pulled up for his bad vote.(&) Where the publication of an injurious libel has been proved, malice will be presumed;(/) as it will also on a charge of murder, from the fact of slaying.(m) So, a libel sold in a bookseller's shop, by a servant in the discharge of his ordinary duty, is presumptive evidence of a publication by the master.(n) And it is said to be a rule in the ecclesiastical courts, that, where the existence of an adulterouse intercours has been proved, its continuance will be presumed so long as the parties continue to live under the same roof.(o) The principle under consideration is also recognized in courts of equity. Thus, although a fine, without any deed executed to declare the uses, was presumed to have been levied to secure the title of the conusor, evidence was receivable to rebut the T *56 1 p1-e31"11?tio"' and shew that it was to vest *the land in the !- J conusee.(p) So, in many cases a general equity may

be rebutted by circumstances.(y) And although, previous to the 11 Geo. 4 & 1 Will. 4, c. 40, the executor was considered in equity a trustee of the surplus for the next of kin, if, from the nature of the circumstances of the will, a presumption arose that the testator did not intend to take it for his own use; still, where there were no such circumstances, the legal doctrine prevailed, and the executor was deemed entitled to retain it.(r)

§ 46. A general presumption, however, will not be set aside by a circumstance too slight to shift the burden of proof. Thus, in the civil law, the presumption of the right of property derived from the

(A) Miles v. Rose, 5 Taunt. 705, (1 Eng. Com. Law Reps.)

(x) lb. R. v. Montague, 4 B. & C. 601, 602, ^10 Eng. Com. Law Reps.;) Mayor of Lynn v. Turner, Cowp. 86. (AO R. v. Price, 6 East, 323.

(i) Haire v. Wilson, 9 B. & C. 643, (17 Eng. Com. Law Reps.;) 2 Stark. Ev. 630,3rd. ed.

(m) Foster's C. L.,255. 290; 1 Hale, P. C. 455; 1 East, P. C. 340.

(n) t Phil. &. An. 466. See 6 & 7 Vict . c. 96, s. 7; and infra, part 2.

(o) Turton v. Turton, 3 Hagg. N. C. 350 ; Shclford on Marriage and Divorce, 405.

ip) Roc v. Popham, 1 Dougl. 25; Pcake's Ev. 199, 5th ed.

(?) Per Lord Mansfield in Brady v. Cubitt, 1 Dougl. 39.

(r) 1 Story, Eq. Jur. s. 51)6, p. 557, where several of the cases on this subject are collected. See, also, 1 Roper on Legacies, 337, 3rd ed.; and 2 Wmi. Executors, 1050,2nd ed.

possession of land would not be set aside by proof that it was bought with money lent by another person.(s)

§ 47. II. Presumptions derived from the ordinary course of nature are stronger than casual presumptions.(t) This is a very important rule, derived from the constancy and uniformity observable in the works of nature, which render it probable that human testimony or particular circumstances, which lead to a conclusion at variance with those laws, are, in that particular instance, fallacious. Thus, on an indictment for stealing a piece of timber, it would probably be considered *a sufficient answer to the longest and strongest r -. chain of presumptive evidence, or even to the positive *- J testimony of an alleged eye-witness, to show that the log stolen was so large and heavy that twenty men could not move it.(u) Charges of robbery brought by a strong person against a girl or child, or of rape by an athletic female against an old or sickly man, are refuted in this way. So, sanity is also presumed, even when the accused is on his trial on a capital charge.(ac) Under this head come also those instances in which the presumptions, drawn from the natural feelings of the human heart, have been found to prevail over others, and, among the rest, that arising from possession, as in the judgment of Solomon, already mentioned.(y) So, where a parent advances money to a child, it is supposed to be by way of gift, and not by way of loan :(z) and the harsh doctrine of collateral warranty, as it existed at the common law, rested, in some degree, on a strained application of this principle.(a)

§ 48. III. Presumptions are favoured which tend to give validity to acts.(b) The maxim, "omnia prasumuntur rite esse acta," shall be fully considered in its proper place ;(c) and it will only be necessary, at *present, to instance a few cases in which this presump- -- %„„ -, tion has been held to override others also of a favoured L J kind. On an indictment for the murder of a constable, the fact of the deceased having been known and acted as constable is sufficient proof of his having been such, without producing his appointmenL(J) And on an indictment for perjury, in taking a false oath before a surrogate, it is sufficient, prima facie, to prove that the party administering the oath acted as surrogate.(e) So, on a charge of slandering a man in his office, who is proved to have held that office, his continuing to do so will be presumed.(/)

§ 49. IV. The presumption of innocence is favoured in law.(g)

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