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This is a well-known rule, and runs through the whole of the criminal law. Thus, on an indictment for bigamy, where, in order to prove the first marriage, a register was produced, which stated the marriage to be by license, and it appeared that the prisoner was an infant at the time, it was held incumbent on the prosecutor to show that the marriage had been solemnized with the consent of the parents or

f;uardian of the party.(A) The same rule holds in civil proceedings, n R. v. The Inhabitants of Twyning,(i) which is certainly one of the leading authorities on the subject of conflicting presumptions, it appeared by a case sent up from the sessions that the wife of a person, T *59 1 *ennsteQl and went abroad as a soldier, and was *• J never afterwards heard of, had married in a little more

than twelve months after his departure. On this evidence the Court of Queen's Bench, consisting of Bayley and Best, JJ., held that the issue of the second marriage ought to be presumed to be legitimate; and the former learned judge observes, "this is a case of conflicting presumptions, and the question is, which is to prevail? The law presumes the continuance of life [for seven years]; but it also presumes against the commission of crime, and that even in civil cases, until the contrary be proved. Are we to presume that the first husband was alive? If the female had been indicted for bigamy, the evidence would clearly not be sufficient. In that case the first husband must have been proved to have been alive at the time of the second marriage. It is contended that his death ought to have been proved; but the answer is, that the presumption of law is, that he was not alive, when the consequence of his being so is that another person has committed a criminal act. I think, therefore, that the sessions decided right in holding the second marriage to have been valid, unless proof had been given that the first husband was alive at the time." This language goes much farther than was necessary for the decision of the actual case before the court, and certainly cannot be supported to its full extent, as appears from the subsequent case of R. v. The Inhabitants of Harborne.(A) There, in order to support an order for the removal of a female pauper, of the name of Anne Smith, it was proved by the respondents that she had been married to one T *60 1 Henry Smith on the 11th April, 1831; and in *answer L J to which it was shown that he had been previously

married in 1821 to another female, with whom he lived until 1825. That several letters had since been received from him from Van Diemen's Land, one of which was produced, bearing date twentyseven days previous to the second marriage. The sessions on this evidence presumed the first wife to be still living, and quashed the order. On the case coming on for argument before the Court of Queen's Bench, R. v. Twyning was relied on as an authority to show that the party asserting the life of the first wife, and thereby the criminality of the husband, was bound to show the continuance of the life up to the very moment of the second marriage; and that the Court was precluded from inferring the life's continuance until the marriage,

chius de Pras. lib. 1, queest. 29, n. 11; lb. dc Arbitr. Jud., casus 473, n. 25; Mascardus d« Prob. Concl. 1231, n. 9, 30, &c. (A) R. v. Butler, R. & R. C. C. 61.

(i) 2 B. &. Aid. 386. (i) 2 A. it E. 540, (29 Eng. Com. Law Reps.)

by the strict rule of legal presumption laid down in R. v. Twyning. The Court, however, consisting of Lord Denman, C. J., Littledale and Williams, JJ., held that the conclusions drawn by the sessions from the evidence was proper. Lord Denman, in the course of his judgment, expresses himself as follows: "The only circumstance raising any doubt in my mind is the doctrrine laid down by Bayley, J., in R. v. Twyning. But in that case, the sessions found that the plaintiff was dead; and this Court merely decided that the case raised no presumption upon which the finding of the sessions could be disturbed. The two learned judges certainly appear to have decided the case upon more general grounds; the principle, however, on which they seem to have proceeded, was not necessary to that decision. I must take this opportunity of saying, that nothing can be more absurd than the notion, that there is to be any rigid presumption of law on such questions of fact, without reference to accompanying *circumstances, such, for instance, as the age or health of r the party. There can be no such strict presumption of *- J law. I am aware that, in that case, Bayley, J., founded his decision on the ground of contrary presumptions; but I think that the only questions in such cases are, what evidence is admissible, and what inference may fairly be drawn from it. It may be said, suppose a party were shown to be alive within a few hours of the second marriage, is there no presumption then? The presumption of innocence cannot shut out such a presumption as that supposed. I think no one, under such circumstances, could presume that the party was not alive at the time of the second marriage." Judgments to a similar effect were given by the other members of the Court. There is no conflict whatever between the decisions in the case of R. v. Twyning and R. v. Harborne, nor does the principle involved in either ofthem present any real difficulty. The presumption of innocence is a praesumptio juris, and as such good until disproved. R. v. Twyning decides that the presumption of fact of the continuance of life, derived from the first husband's having been shown to be alive about a year previous to the second marriage, ought not to outweigh the former presumption in the estimation of the sessions or a jury; while R. v. Harborne determines, that if the period be reduced from twelve months to twenty-seven days, it would be otherwise; and that the sessions or a jury might, in their discretion, presume the first husband to be still living.

*PART II. [ *62 ]

OF PARTICULAR PRESUMPTIONS OF LAW AND FACT.

Art. 50. It is proposed, in this Second Part, to consider the principal presumptions of law and fact usually met with in practice; and which will be treated of in the following order:—

1. The praesumptiones juris against ignorance of the law, illegality, fraud, covin, immorality, &c.

2. Of the maxim omnia praesumuntur rite esse acta, and the presumptions from possession and user.

3. Presumptions founded on the ordinary course of nature.

4. Presumptions drawn from the habits of society, usages of trade, &c.

6. Presumptions of the continuance of things in the state in which they have been once shown to exist.

6. Presumptions in disfavour of the spoliator.

7. Presumptions from the character of parties to a suit. •

8. Presumptive proof of handwriting.

9. Presumptions in national and maritime law.

10. Certain miscellaneous presumptions, not coming under the above heads.

[ *63 ] *CHAPTER I.

PRESUMPTIONS AGAINST IGNORANCE OF THE LAW, ILLEGALITY, NEGLECT OF DUTY, FRAUD, COVIN, IMMORALITY, ETC.

§ 51. The allowing violations of the criminal, or contraventions of the civil code, to pass without punishment or inconvenience to the parties transgressing, under the plea of ignorance of their provisions, would render the whole body of jurisprudence practically worthless. In every system with which we are acquainted, it is a preesumptio juris et de jure, that all persons subject to any law which has been duly promulgated, or which derives its efficacy from general or immemorial custom, must be supposed to be acquainted with its provisions so far as to render him amenable to punishment for their violation, and to have done all acts with a knowledge of their legal effects and consequences. Ignorantia juris quod quisque tenetur scire non excusat.(a)

§ 52. Courts of justice are also presumed to know the law, but in a very different sense. Private individuals are only taken to know it sufficiently for their own personal guidance, but tribunals are to be deemed acquainted with its provisions so as to be enabled to adminisr #fi4 1 ,er j,lstice wnen called on ;(b) for which reason it *is not, *- -I in general, necessary, in pleading, to state matter of

law.(c) The sovereign is also presumed to be acquainted with the law—» Praesumitur rex habere omnia jura in scrinio pectoris sui ;"(d) still, it is competent to shew that grants from the Crown have been made under a mistake of the law.(e)

§ 53. It is a prcesumptio juris, running through the whole law of England, that no person shall, in the absence of criminative proof, be supposed to have committed any violation of the criminal law, whether

(a) Dig., lib. 22, tit 6, § 9, de juris et facti ignorantia; 4 Blackst. Com. 27; 1 Co. 177. b.; 2 Co. 3. b.; 6 Co. 54. a.

(6) Sec the argument of the Attorney-General in Slockdale v. Hansard, 9 A. & E. 31, (36 Ene. Com. Law Reps.)

te) 1 Chit. Plead. 214, 6th ed.; Steph. Plead. 374, 4th cd. (d) Co. Litt. 99. a.

(«) 2 Blackst. Com. 348; R. v. Clarke, 1 Frecm. 172.

malum in se, or malum prohibitum,(/) or even done any act involving a civil penalty, such as loss of dower,(g) &c. And this presumption is not confined to proceedings instituted with the view of punishing the supposed offence, but holds in all civil and other proceedings for whatever purpose originated, and whether the guilt of the party comes in question directly or collaterally. Thus, in the case of Williams v. The East India Company,(A) which was an action brought by the defendants for having put on board the plaintiff's ship (which they had hired to convey merchandize) a quantity of combustible matter, without giving him notice of its dangerous nature, in consequence of which negligence his ship was burnt, Lord Ellenborough said—" There is a rule of law, that where any act is required to be done on the one part, so that the parties neglecting it would be guilty of a *criminal neglect of duty in not having done r -i it, the law presumes the affirmative, and throws the *• * burden of proving the contrary on the other side. If the defendants, being conusant of the dangerous nature of the article put on board, gave no notice of it, considering the probable danger thereby occasioned to the lives of those on board, it amounts to a species of delinquency, for which they are criminally liable, and punishable as for a misdemeanor at least;" and it was accordingly held, that the onus lay on the plaintiff to prove that no notice had been given of the dangerous nature of the article put on board. So, in an action against a performer for not acting, to which the defence was, that the theatre was unlicensed, it was held, that proof of performances having regularly taken place there was prima facie evidence that it was a licensed theatre; as a violation of law, in acting without such license, could not be presumed.(t) And the principle holds, though the question is only raised collaterally, or as affecting others than the actual litigants in the cause. Thus, in the case of Ross v. Hunter,(j) which was an action for a loss occasioned by an alleged barratrous act in the master of a ship, it was held unnecessary for the plaintiff to shew that the master was not the owner or freighter—on the ground that this would be calling on him to prove a negative; and Buller, J., said, that the Court cannot presume fraud (ft fortiori guilt) in a third party.

§54. But this principle only applies to actual violations of the law. Thus, in the case of Huckman v. Fernie, the plaintiff declared on a policy of insurance on the life of E. H., which had been entered into subsequent to *a declaration or attestation by the plaintiff, r #gg -. that, among other things, the said E. H. had led, and then -I continued to lead, a temperate life; and contained a proviso, that, if anything stated by the plaintiff in that document should not be true, the policy should be null and void. The declaration then averred performance by the plaintiff, and the truth of all the matters contained in the attestation: but the defendant pleaded that the attestation made

(/) Phil. Ev. 464, 8th ed.; 2 Ev. Poth. 332. A contempt of court will not bo presumed, Scboles v. Hilton, 10 M. & W. 15.

yj) Sidney v. Sidney, 3 P. Wms. 276; Watkins v. Watkins, 2 Atk. 97; Clarke v. Periam, lb. 333. (A) 3 East, 192.

(i) Rodwell v.Redge, 1 C. &. P. 220, (II Eng. Com. Law Reps.)

U) 4 T. R., 33,38.

by the plaintiff was not true, because, at the time when made, the said E. H. had not led, nor did she continue to lead, a temperate life. It was argued, that the onus of proving this plea lay on the defendant, as the law would not presume intemperance in any one; but Tindal, C. J., at N. P., held, that it lay on the plaintiff to prove the averment in the declaration, that E. H. had led a temperate life, which was afterwards confirmed by the Court of Exchequer.(i) The presumption in favour of innocence, of course, will not be made, when a stronger presumption is raised against it, by evidence or otherwise.(7)

§ 55. It is a maxim of law, " melior est conditio rei quam actoris;"(m) in furtherance of which it is sometimes said, that in civil cases, where there has been no fraud on the part of the defendant, the law presumes against the plaintiffs demand.(n) This, however, is not quite correct, and arises from confounding the doctrine of presumption with the general principles regulating the burden of proof. Generally speaking, r 9qj -i the law *presumes neither way in civil proceedings; but, *- J as the plaintiff is the party who brings the cause into

court, it holds him to proof of his case. And if the defendant plead a set-off, or other plea involving an affirmative, it lies on him to prove it.(o) Where, however, the case is left in such a state that it is necessary to presume one way or other, the law will rather assist, by its presumption, the party entitled to exact the proof, than the party on whom it is incumbent to give it. Thus, in the case of Clunnes v. Pezzy,(p) which was an action for goods sold and delivered, at the suit of a liquor merchant, and the evidence only shewed a delivery of several hampers of bottles at the defendant's house, the jury were directed to presume that the bottles were filled with the cheapest liquor in which the plaintiff dealt. And it is well known that disabilities, such as infancy, coverture, idiotcy, lunacy, &c, will not be presumed to assist any party.

§ 56. It is a branch of this rule, that ambiguous instruments or acts shall, if possible, be construed so as to have a lawful meaning. Thus, where a deed or other instrument is susceptible of two constructions, one of which the law would carry into effect, while the other would be in contravention of some legal principle or statutory provision, the parties will always be presumed to have intended the former—" In facto quod se habet ad bonum et malum, magis de bono quam de malo lex intendit."(^) Thus, where a tenant in tail makes a lease for life, without saying for whose life, it shall be understood that he meant his own, as that is a conveyance he might lawfully make; whereas, if r #gg 1 he had meant for the life of *the lessee, he would exceed L J his power, and, previous to the 3 & 4 Will. 4, c. 27, s. 39,

have worked a discontinuance.(r) So, where A., who had commenced an action against B. to recover a sum of money, agreed with C. to discontinue the proceedings on payment of a specified sum and

(i) Huckman v. Fernie, 3 M. &. W. 505; 2 Jurist, 444.

(/) See the presumption of malice in homicide, infra. Chap. IV.; of sanity, art. 47; of the continuance of adultery, art. 45; of the publication of libels, lb.; and the presumption! in disfavour of the spoliator, infra, Chap. VI.

(m) 4 Inst. 160. (n) 1 Camp. 8.

(o) See the authorities cited, p. 39, note (A).

(p) Clunnes v. Peizy, 1 Camp. 8. (j) Co. Litt. 78. b.; 10 Co. 56 a.

(r) Co. Litt. 42. b.

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