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CONTENTS.

CHAPTER L

On Proof, Evidence, and Presumptions in General, with the division of the

latter into Presumptions of Law, Fact, and Mixed Law and Fact.

The pages referred to are those between brackets [ ].

Knowledge and judgment—faculties of the human mind conversant about

truth and falsehood . . . . . .1

Knowledge ...... 1

extenfcof human knowledge . . . . . 1,2

divided into intuitive, demonstrative, and sensitive . . 2

Judgment . . . . . . .8

founded on probability ..... 3

original and primary signification of the word " presumption" . . 4

Different meanings of the word " proof" . . 5, 7

Modes by which truths offact are evidenced to the mind . . 7

through the medium of the senses
by reasoning from truths which have been so evidenced
Meaning of the expression " evidence"—how distinguished from proof . 7, 8
Modes of reasoning on matters offact not coming under the cognizance of the

senses . . . . . . .8

necessary inference
probable or presumptive inference

In jurisprudence, the words " evidence" and "proof" not applied to questions

of law . . . . . . 10, 11

Decision of questions of fact by justices . . . .11

by things coming under the cognizance of the senses . . 11

by media of testimony, such as witnesses, documents, &c. . .12
division of judicial evidence into direct and circumstantial . 12

technical meaning of the expression " presumptive evidence, and secondary
signification of" presumption" . . . .12

Popular signification of "presumption" . . .14

Division of facts into physical and psychological . . 14, 15

Division of presumptions into presumption of law, of fact, and of mixed law

and fact . . . . . . . . 15,16

CHAPTER II.

On Presumptions of Law, and Fictions.

Presumptions of law ... . . . .17

grounds of ...... 18

are divided into "conclusive" and " rebuttable" . . .20

Conclusive presumptions, or " presumptiones juris et de jure" . . 20

formerly too numerous ...... 21

useful when restrained within proper limits . . . .23

Fictions . • . . . . . . . . 24

use of . . . . . . . . .24

rules respecting ....... 25

must not prejudice innocent parties . . . . .25

must have a possible subject-matter .... 25, 26

different kinds of ....... 26

affirmative or positive fictions ..... 26

negative fictions . . . . . . .27

fictions by relation ...... 27

relating to persons

to things

to place

to time ....... 28

Rebuttable presumptions of law, or " presumtiones juris tantum" . 28,29

CHAPTER in.

Presumptions of Fact, and Mixed Presumptions.

Presumptions of fact . . . . . . . .31

grounds and sources of—they relate to ^things, persons, and tho acts or

thoughts of intelligent agents ..... 31

legal admissibility of presumptive evidence . . . .33

rules of legal evidence ...... 33

presumptive evidence not inferior or secondary to direct evidence . 35

probative force of presumptive evidence .... 36

division of presumptions of fact into violent, probable, and slight . 37

Lord Coke's illustration of violent presumption ... 37

objections to it . . . . . . . .37

utility of threefold classification doubtful ... 33

presumptions considered with reference to the burden of proof . . 39

general rule respecting the onus probandi ... 39

divisions of presumptions of fact into slight and strong . . 40

slight presumptions of fact ..... 40

do not shift the burden of proof . . . . .40

use and effect of slight presumptions ... 41

strong presumptions of fact ... . . .42

shift the burden of proof ..... 42

effect of, in civil and criminal cases . . . .43

distinguishable from presumptions of law ... 44

Mixed presumptions, or " quasi praisumptiones juris" . . .45

different classes of ....... 45

artificial presumptions formerly carried too far . . . 45,46

true limits and use of . . . . . . . 47

Discretion of juries in drawing presumptive inferences controlled by the courts

of law _ . 48

direction to juries respecting presumptions of fact and mixed presumptions 48

new trials when they are disregarded by juries ... 49

CHAPTER IV.

On Conflicting Presumptions.

Of the maxim "stabit prsasumptio donee probetur in contrarium" . . 52

Conflicting presumptions ...... 52

rules respecting . . . . . . • .53

1. Special presumptions take precedence of general ones . 53

vii

PART II.

ON PARTICULAR PRESUMPTIONS OP LAW AND FACT.

Design of the second part . . . . . . .62

CHAPTER L

Presumptions against Ignorance of the Law, Illegality, Neglect of Duty, Fraud,

Covin, Immorality, etc.

Presumptions against ignorance of the law . . .63

private individuals . . . . , .63

courts of justice, &c. . . . . .63,64

Praesumptio juris against illegality . . . .64

instances ...... 64

extent of the rule . . . . . .65

no presumption against the plaintiff's demand in civil actions . 66

construction of instruments . . . . .67

Presumption of the discharge of duty . . . .68

Maxim "odiosa et inhonesta non sunt praesumenda" . . .69

presumptions against fraud and covin . . . .69

presumptions against vice and immorality ... 69,70

presumption of marriage from cohabitation . . .70

presumption of the legitimacy of children . . .70

Maxim" injuria non prsssumitur" . . . .72

Presumption against irreligion . . . . .72

CHAPTER n.

On the Maxim, " Omnia prasumuntur rite esse acta."

Meaning of the rule "omnia prasumuntur ritd esse acta" . . 74

General view of the subject . . . . .75

priora priEsumuntur a posterioribus

posteriora prcesumuntur a prioribus

probatis extremis, prsesumuntur media

Division of the subject . . ... 75

official appointments . . . . . .76

official acts ...... 78

judicial acts . . . . . .78

awards ....... 80

rule does not apply to give jurisdiction ... 80,81

extra judicial acts, . . . .81

examples of application of the rule . . . .81

execution of wills . . . . .82

signing by testator . . . . .82

attestation by witnesses . . . . .83

collateral facts presumed to give validity to instruments . . 64

construction of instruments . . 85

interlineations and erasures . . . • 85,86
CHAPTER III.

Presumptions from Possession and User.

Presumption of right from possession . . .

Division of the subject . . . .

1. Presumption from long user of rights to things which lie in grant t

prescription .....

at common law ....

statutes 32 Hen. 8, c. 2; 21 Jac. 1, c. 16

evidence of prescription from modern user .

presumption—how rebutted . . -

title by non-existing grant

generally .....

conflicting evidence ....

presumption of grant from the crown . .

presumption in derogation of public rights .

prescriptive right to pews . . .

prescription acts, 2 & 3 Will. 4, c. 71 and 100

inconveniences of the old law . . .

2 & 3 Will. 4, c. 71

2 & 3 Will. 4, c. 100

2. Cases not within the prescription acts . ,

presumption of the dedication of highways .

presumption of the extinction of rights by non-user

general principles ....

quit-rents ......

easements .....

licenses ......

3. Presumptions in support of beneficial enjoyment

general principles .....

instances ......

instances in which the courts have refused to presume in favour of pos-

session and enjoyment ......

presumption of conveyances by trustees . .

general rule .......

presumption of the surrender of terms by trustees for terms of

years .......

formerly carried to an unreasonable length a • .

surrender of terms presumable from circumstances .

surrender of terms presumed from acts of the owner of the inherit-

ance ........

discussion of the question, whether the surrender of a term of years

assigned to attend the inheritance is to be presumed, as

among purchasers, from the terms not being noticed in recent

marriage settlements . . . . .

arguments of Sir E. Sugden against it . .

the case of Doe d. Burdett v. Wrighte . _. .

case of Doe d. Putland v. Hilder ....

examination of these cases .....

subsequent cases at variance with them . . .

as also the subsequent practice ....

surrender of terms not assigned to attend the inheritance

presumptions in favour of title—belief of juries . . .

CHAPTER IV.

Presumptions derived from the Course of Nature.

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