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the delivery of several promissory notes, C. undertaking, in the event of any of the notes being dishonoured, and A. issuing a capias against B., either to surrender him to prison, or pay the money due on the notes; it was held that the contract was legal, and must be understood to mean that C. was to procure the surrender of B. by lawful means, as by his consent, and not by any attempt to take him forcibly into custody.(s) A like principle applies where the acts of a party are susceptible of two interpretations.^)

§ 57. All persons are presumed to have duly discharged any duty imposed on them either by written or unwritten law. Thus, the judgments of courts of competent jurisdiction are presumed to be well founded,(a) and their records to be correctly made ;(v) judges and jurors are presumed to do nothing carelessly or maliciously ;(x) public officers are presumed to do their duty ;(y) a parson is presumed to be always resident on his benefice;(«) every beneficed clergyman is presumed to have read the articles of the church,(a) and to have made the declaration required by 13 & 14 Car. 2, *c. 4, relative r #gg 1 to the uniformity of public prayers, &c.(6) So, no evi- *- J dence is receivable against a party who is on his trial for felony or misdemeanor, of what he or the witnesses against him have been supposed to have said when before the committing magistrate, unless it appears that what they did say was not reduced into writing by the magistrate according to the direction of the statute 7 Geo. 4, c. 64: for the presumption of law is, that he discharged his duty by complying with its provisions,(c) and if the deposition so taken be in existence, it is the proper evidence, at least in the first instance, of what took place on that occasion.(d) So, where goods seized under a distress are appraised and sold under the 2 Will. & Mary, st. 1, c. 5, s. 2, the sale will be presumed to have been for the best price that could be gotten for them :(e) and under the 13 Car. 2, st. 2, c. 1, s. 12, which required all parties filling corporate offices to take the sacrament within a year next before their election, every party filling such office was presumed to have complied with the statute,(jf) &c.

§ 58. It is a principle of law nearly, if not altogether as universal as the former, that, "odiosa et inhonesta non sunt in lege praesumenda."(g-) In furtherance of this, it is a maxim that fraud and covin are never presumed,(A) either in litigant parties, or other whose conduct comes in question collaterally.(t) So the law in general presumes *against vice and immorality, and on that ground r holds cohabitation, reputation, &c, presumptive evidence t of marriage except in indictments for bigamy, and actions for

(») Lewis v. Davidson, 4 M. & W. 654. (t) Co. Litt. 49. a. and b.

(u) Rea judicata pro veritate accipitur. Co. Litt. 103. a.; Dig-, lib. 50, tit. 17,1. 207. (p) 1 Stark. Ev. 252, 3rd ed. (*) Sutton v. Johnstone, 1 T. R. 503.

(y) 3 Stark. Ev. 396, 3rd ed.; Van Omeron v. Dowick, 2 Camp. 44.
(x) Co. Litt . 78. b. (a) Monke v. Butler, 1 Rol. R. 83.

(6) Powell v. Milbank. 3 WilB. 355.

(c) 2 Evans's Poth. 335-6; 2 Stark. Ev. 38, 3rd ed.; Phillips v. Wimburn, 4 C. & P. 273, (19 Eng. Com. Law Reps.) (d) 2 Phil. Ev. 564, 8th ed.

(e) Com. Dig. Distress, D. 8; Walter v. Rumball, 1 L. Raym. 53.

(/) R. v. Hawkins, 10 East, 211. (g) 10 Co. 56 a.; Co. Litt . 78. b.

(A) 10 Co. 56 a.; Cro. El. 292; Cro. J. 451; Cro. C. 550; Bridgm. 112.

(») Butler, J., in Ross v. Hunter, 4T. R. 38; Shelford on Marriage and Divorce, 826.

(k) Doe ▼. Fleming, 4 Bingh. 266, (13 Eng. Com. Law Reps.;) Reed v. Paiser, Pcake, 233.

criminal conversation, in both of which an actual marriage must be proved.(Z) The former of there exceptions rests on the ground that the prisoner has the presumption of innocence in his favour; and the latter, partly that the action is in the nature of a penal one, but chiefly because it might otherwise be turned to a bad purpose, by persons giving the name and character of wife to women to whom they are not married.(n») One of the strongest illustrations of this principle (although resting also, in some degree, on grounds of public policy) is the presumption in favour of the legitimacy of children—"semper praesumiturpro legitimationepuerorum.etfiliationon potest probari."(n) Thus it is said to be a praesumptio juris et de jure, that a child born during wedlock, and of which the mother was visibly pregnant at the time of the marriage, must be taken to be the offspring of the husband.(o) So, every child born during wedlock, where the supposed parents are neither infra nubiles annos, nor, physically disqualified for sexual intercourse, is presumed legitimate,^) according to the maxim " pater est quern nuptiae demonstrant,"(<7)—a presumption which holds even where the parties are living apart by mutual consent,(r) but not where r , they *are separated by a divorse a mensa et thoro, pro

* nounced by a court of competent jurisdiction, in which case obedience to the sentence of the court will be presumed.(s) In very antient times this was only a praesumptio juris,(<) but was subsequently erected into a conclusive presumption, when the husband was within the four seas at any time during the pregnancy of his wife.(u) In later times, however, this has been very properly relaxed; and it is competent to negative the fact of sexual intercourse between the supposed parents, at any time when, according to the course of nature, the husband could have been the father of the child.(x) This may be done, by shewing that he had no opportunity of access to his wife, i. e. access under circumstances where sexual intercourse might have taken place.(y) If he had such an opportunity, it is to be presumed that he availed himself of it,(z) although this may be rebutted by evidence, but then it must be of the strongest and most convincing kind.(a) When, however, the fact of such sexual intercourse between the parents has been established to the satisfaction of a jury, the presumption cannot be rebutted by proof of adultery, as the law will not, in that case, allow a balance of evidence as to who was r -j most likely to be the father of the child.(6) The mode of

L J *encountering this presumption, by considerations drawn

(I) Morris T. Miller, 4 Burr. 2057; Birt v. Barlow, Dougl. 171. (m) Per Lord Mansfield, C. J., in Birt v. Barlow, Dougl. 174. (n) 5 Co. 98 b.

(o) 1 Phil. Ev. 463, 8th ed. See the old authorities on this point collected, 1 Rol. Abr. tit . Bastard, B. (p) Co. Litt. 244. a.; 1 Rol. Abr. tit. Bastard, B.

(o) Co. Litt. 7. b.

(r) Su George's v. St. Margaret's, 1 Salk. 123; Pendrel v. Pendrel, 3 P. Wms. 276, (note.) («) Ibid. (t) 1 Phil. Ev. 462, 8th ed.

(u) Co. Litt. 244. a.; R. v. Alberton, 1 L. Raym. 395; R. v. Murrey, 1 Salk. 122.

(x) Banbury Peerage case, 1 S. & Stu. 15S; R. v. Luffe, 8 East, 193; Morris T. Davies, 3 C. Si P. 217, (14 Eng. Com. Law Reps.;) 5 CI. & F. 163.

(y) Banbury Peerage case, 1 S. St Stu. 159; Cope v. Cope, 1 M. & Rob. 275.

(«) Head v. Head, 1 S. & Stu. 152. (a) lb. Cope v.Cope, 1 M. & Rob. 276.

(6) Cope T. Cope, 1 M. & Rob. S76; Morris v. Davies, 3 C. & P. 218, (14 Eng. Com. Law Reps.)

from the length of the time of gestation, will be considered in a subsequent chapter.

§ 59. Cruel, oppressive, or tortious conduct will not be presumed. "Injuria non praesumitur."(c) "Nullum iniquum est in jure praesumendum."(</) Thus, no species of ouster, such as disseisin, discontinuance, &c, will be presumed without proof, either direct or presumptive ;(e) and when a party to any forensic proceeding tenders, in support of his case, a document which must be taken, prim& facie, to be the property of another, the Court will presume that he did not come by it in any tortious way.(/)

§ 60. So, want of religious belief, or irreligious conduct, will not be presumed. "All the members of a Christian community," says Professor Greenleaf, " being presumed to entertain the common faith, no man is supposed to disbelieve the existence and moral government of God, till it is shewn from his own declaration."(g) "Nemo praesumitur esse immemor suae acternae salutis, et maxime in articulo mortis ;"(A) and " in his quae sunt favorabiliora animtc, quamvis sunt damnosa rebus, fiat aliquando extensio statuti."(i) It is partly on this principle that declarations made by a person dying a violent death, and who has given up all hope of recovery, are, contrary to the general principle which excludes hearsay testimony, receivable in evidence against a party charged with being the cause of the death.(k) *So, although by the Statute of Marlbridge, (52 H. 3), c. r , 6, a feoffment to a relative was deemed a collusive act J to deprive the lord of the fee of his wardship, still no will of land devisable by custom, or devise of a use, could be impeached for such collusion, &c.(/)

*CHAPTER II. [ *74 ]


§ 61. The important maxim which stands at the head of this chapter must be understood as of universal application.(i) The extent to which courts of justice will presume in support of acts depends very much on whether they are favoured or not by law, and also on the nature of the fact required to be presumed. The true principle

(c) Co. Lilt. 232, b. (d) 4 Co. 72, a.

(e) Doe d. Fishar v. Prosser, Cowp. 217; see Co. Litt. 42, a. and b.; Peaceable d. Hornblower v. Read, I East, 568. (/) Littleton, as. 375. 377.

lg) Greenl. Ev.,art . 42, p. 48. (A) 6 Co. 76 a. (i) 10 Co. 101 b.

(A) 1 Phil. Ev. 294,8th ed. (/) 6 Co. 76 a.; 2 Inst. 112.

(a) 2 Ev. Potii. 335; Phil. Ev. 470. 8th ed. This maxim is also expressed in the books in the form, " omnia proosumuntur solemniter esse acta," (12 Co. 4 and 5; 3 Stark. Ev. 935, 3rd ed.,) " omnia pnesumuntur legitime facta donee probetur in contrarium." (Co. Litt. 232, b.)

(6) Many of our legal maxims are expressed with too great a degree of generality, e. g. omnia pricsumuntur rite acta; omnia proaamuntur contra spoliatorem; omnia innovatio plus nnvitate perturbat quam utilitate prodest; (2 Bulst. 338;) "Omnia definitio in lege periculosa ;"j(Pigott on Rcc. 2, &c.) If definitions arc dangerous in law, universal propositions are not less so.

intended to be conveyed by the rule, "omnia pracsumuntur rite acta." seems to be, that there is a general disposition in courts of justice to uphold judicial and other acts, rather than to render them inoperative, and with this view,—where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of those acts, and by which they were probably accompanied in most instances, although in others the assumption may rest on grounds of public policy.

r 1 62. Taking a general view of the subject, the acts or

*- things thus presumed are divisible into three classes. 1.

Where, from the existence of a posterior act or acts in a supposed chain of events, the existence of prior acts in the chain are inferred or assumed,—ubi priora praesumuntur a posterioribus,(c)—as where a prescriptive right or grant is inferred from modern enjoyment.(rf) 2. Where the existence of the posterior act is inferred from that of prior acts; as where the sealing and delivery of a deed purporting to be signed, sealed, and delivered are inferred on proof of the signing only(e) —praesumuntur posteriora a prioribus.(/) This is manifestly the converse of the former, and, as a general rule, the presumption is much weaker.(g) 3. Where intermediate proceedings are presumed,—" probatis extremis praesumuntur media,"(A)—as where livery of seisin is presumed on proof of a feoffment, and twenty years' enjoyment under it;(i) or, where a jury are directed to presume mesne assignments.(Zc) § 63. The real nature and extent of this principle will be best understood by reference to the decided cases in which it has been T *7R 1 recognised ana" acted on by *the courts, together with * others where it has been held not to apply. With this view it is proposed to consider it, first, with reference to official appointments; secondly, to judicial proceedings; thirdly, to the execution of instruments, acts of parties, or other matters in pais. The application of this maxim in support of possession and user, especially where there has been long and peaceable enjoyment, will, from its importance, be reserved for a separate consideration in the next chapter.

§ 64. First, then, with respect to official appointments. It is a

fjeneral principle, that a person's acting in a public capacity is prima acie evidence of his having been duly authorized so to do;(/) and even though the office be one the appointment to which must have been in writing, it is not, at least in the first instance, necessary to produce the document, or account for its non-production.(»j) There

(e) 3 Benth. Jud. Ev. 213. (d) See the next Chapter, (e) Infra. (/) 3 Benth. Jud. Ev. 213.

(g) lb. " In every natural aeries of events," observea Mr. Bcntham, "facts posterior and prior are naturally evidentiary of each other. The probative force of posterior events in regard to prior ones is naturally much stronger than that of prior events with regard to posterior ones. In all human affairs, execution is better evidence of design than design of execntion. Why? Because human designs arc so often frustrated." (Id. 215, 216.)

(A) Grcenl. L. E., art. 20, p. 24.

(t) Doc v. Marquis of Cleveland, 9 B. & C. 864, (17 Eng. Com. Law Reps.;) Rex v. Lloyd, Wightw. 123; Isack v. Clarke, 1 Ro. R. 132.

(*) Earl d. Goodwin v. Baxter, 2 W. Bl. 1228; White v. Foljambe, 11 Ves. 350.

(/) 1 Phil. Ev. 452, 8th ed.; Berryman v. Wise, 4 T. R.366; M'Gahey v. Alston, 2 M. & W. 206. (m) 1 PhiL Ev. 4524,8tu ed.

are numerous instances to be found of the application of this principle. It has been held to apply to justices of the peace,(n) surrogates, (o) commissioners for taking affidavits,(/?) attorneys,^) under-sherifTs,(r) replevin clerks,(.<r) peace-officers and constables.(<) persons in the employment of the post-office,(u) vestry clerks,(a;) &c, and has been *expressly provided for by statute in the r m^ -, case of all revenue officers.(y) One of the strongest <- J illustrations of it is to be found in the case of R. v. Winifred and Thomas Gordon, who were indicted for the murder of a constable in the execution of his office, where the allegation in the indictment of his being constable was held sufficiently proved by evidence that he acted and was generally known in the parish as such. Both prisoners were convicted, and Thomas Gordon executed, but the female prisoner escaped on another point.(z)

§ 65. This presumption is not restricted to appointments of a strictly public nature. It has been held to apply to constables and watchmen appointed by commissioners under a local act,(a) and to trustees empowered by act of parliament to raise money to build a church.(b) But it does not, at least in general, hold in the case of private individuals, or agents supposed to be acting by their authority. Thus it does not apply to the assignees of a bankrupt.(c) or an executor or administrator,(rf) nor to a tithe-collector acting under the authority of a private person,(e) &c.: and it has been doubted whether it applies to ejectments brought in the name of a parish officer.(/)

*§» 66. This presumption of the due appointment of r -, public officers seems to rest on three grounds :(g)—1st, A *- J principle of public policy. 2ndly, In some degree on the ground that, in many cases not to make it, would be to presume the party acting guilty of a breach of the law.(A) 3rdly, That in cases of public appointments, there is a facility of disproof of the regularity of the appointment which cannot exist in the case of the agents of private individuals.

§ 67. The maxim, "omnia praesumuntur rite acta," holds in many cases where acts are required to be done by official persons, or with

(n) Borryman v. Wise, 4 T. R. 366.

(o) R. v. Verelst, 3 Camp. 432. (p) R. v. Howard, 1 M. &. Rob. 187.
(7) Pearce v. Whale, 5 B. & C. 38, (11 Eng. Com. Law Reps.)
(r) Doc d. James v. Brown, 5 B.&. A. 243, (7 Eng. Com. Law Reps.)
(«) Faulkner v. Johnson, 11 M. &. W. 581.

(t) Berry man v. Wise, 4 T. R. 366, Per Bullcr, J.; R. T. Gordon, Leach, C. L. 312.
(u) R. v. Rces, 6 C. & P. G06, (25 Eng. Com. Law Reps.)
(*) M'Gahey v. Alston, 2 M. & W. 206.

(y) 26 G. 3, c. 77, s. 12; 26 Geo. 3, o. 82, >. 6; 11 Geo. I, c. 30, s. 32. (*) The Gordons' case, Leach, C. L. 412.

(a) Butler v. Ford, 1 C. & M. 662.

(b) R. v. Murphy, 8 C. & P. 310, (34 Eng. Com. Law Reps.;) per Coleridge, J. The acts of Parliament in that case, namely, the 56 Geo. 3, c. xxix. and 1 & 2 Geo. 4, c. xxiv. are stated in the report to be private acta; but it appears that they contain clauses declaring them public acts. (e) Passmore v. Bousficld, 1 Stark. 296.

(d) Executors and administrators are bound in pleading, to make profert of the probate, or letters of administration. I Chit. PI. 420, 6th ed.

(«) Short v. Lee, 2 Jac. & W. 468. (/) 1 Phil. Et. 469, 8th ed.

(g) Many of the cases in the books rest on a totally distinct ground, namely, that the party against whom the evidence was offered, had, by words or acts, admitted the character of the person described as an officer. (A) Phil. Ev. 469, 8th ed.

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