"23. That a writing is truly dated;

"24. That a letter duly directed and mailed was received in the regular course of the mail;

"25. Identity of person from identity of name;

"26. That a person not heard from in seven years is dead; "27. That acquiescence followed from a belief that the thing acquiesced in was conformable to the right or fact;

"28. That things have happened according to the ordinary course of nature and the ordinary habits of life;

"29. That persons acting as copartners have entered into a contract of copartnership;

“30. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

"31. That a child born in lawful wedlock, there being no divorce from bed and board, is legitimate;

"32. That a thing once proved to exist continues as long as is usual with things of that nature;

"33. That the law has been obeyed;

"34. That a document or writing more than thirty years old is genuine, when the same has been since generally acted upon as genuine by persons having an interest in the question, and its custody has been satisfactorily explained;

"35. That a printed and published book purporting to be printed or published by the public authority was so printed or published;

"36. That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the state or country where the book is published, contains correct reports of such

cases;

"37. That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed to him, when such presumption is necessary to perfect the title of such person or his successor in interest;

"38. The uninterrupted use by the public of land for a burial ground for five years, with the consent of the owner, and without a reservation of his right, is presumptive evidence of his intention to dedicate it to the public for that purpose;

“39. That there was a good and sufficient consideration for a written contract;

"40. When two persons perish in the same calamity, such as a

wreck, a battle or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, sex, according to the following rules:

"41. If both of those who have perished were under the age of fifteen years, the older is presumed to have survived;

"42. If both were above the age of sixty, the younger is presumed to have survived;

"43. If one be under fifteen, and the other above sixty, the former is presumed to have survived;

"44. If both be over fifteen and under sixty, and sexes be different, the male is presumed to have survived; if the sexes be the same, then the older;

"45. If one be under fifteen or over sixty, and the other between those ages, the latter is presumed to have survived."

For an elaborate consideration of this topic, see 1 Rice, Civil Evidence, chap. 3.

25. Term Defined.

26. Case Made by.

CHAPTER IV.

PRIMA FACIE EVIDENCE.

27. Legislature may Declare the Effect of.

25. Term Defined.-Prima facie evidence is such evidence as in judgment of the law is sufficient to establish the fact, and, if not rebutted, remains sufficient for that purpose (Kelly v. Jackson, 31 U. S. 6 Pet. 632, 8 L. ed. 526; Lilienthal's Tobacco v. United States, 97 U. S. 268, 24 L. ed. 905); evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support which it is introduced (Emmons v. Westfield Bank, 97 Mass. 243); that which suffices for the proof of a particular fact until contradicted and overcome by other evidence. Cal. Code, Civ. Proc. § 1833; Swamp Land Dist. v. Gwynn, 70 Cal. 570. See Anderson, Law Dict. title Prima Facie Evidence.

Prima facie evidence is that which, not being inconsistent with the falsity of the hypothesis, nevertheless raises such a degree of probability in its favor that it must prevail if it be accredited by the jury, unless it be rebutted, or the contrary proved. Conclusive evidence, on the other hand, is that which excludes, or at least tends to exclude, the possibility of the truth of any other hypothesis than the one attempted to be established. 1 Starkie, Ev. 479.

As defined by the United States Supreme Court, prima facie evidence of a fact is such evidence as in judgment of law is sufficient to establish the fact, and remain sufficient for that purpose if not rebutted. The jury are bound to consider it in that light, and the court will set aside their verdict and grant a new trial if without any rebutting evidence they disregard it. In a legal sense, such prima facie evidence, in the absence of all controlling evidence, of discrediting circumstances, becomes conclusive; that is, it should operate in the minds of the jury as decisive to found their verdict as to the fact. Crane v. Morris,

31 U. S. 6 Pet. 598, 8 L. ed. 514; United States v. Wiggins, 39 U. S. 14 Pet. 334, 10 L. ed. 481.

Mr. Justice Story's definition is scarcely less logical and satisfactory. He says: "It is such that in judgment of law is sufficient to establish the fact; and if not rebutted, remains sufficient for the purpose. The jury are bound to consider it in that light, unless they are invested with authority to disregard the rules of evidence, by which the liberty and estate of every citizen are guarded and supported. No judge would hesitate to set aside their verdict, and grant a new trial, if, under such circumstances, without any rebutting evidence, they disregarded it. It would be error on their part, which would require the remedial interposition of the court. In a legal sense, then, such prima facie evidence, in the absence of all controlling evidence or discrediting circumstances, becomes conclusive of the fact; that is, it should operate upon the minds of the jury as decisive to found their verdict as to the fact. Such was understood to be the clear principles of law on the subject." Kelly v. Jackson, 31 U. S. 6 Pet. 622, 8 L. ed. 523.

A consideration for this topic becomes necessary when the principles that characterize the affirmative of the issue are recalled. A party litigant, upon whom is cast the onus probandi, in order to comply with certain well recognized principles of law, introduces in support of the averment of his declaration certain evidence. Thus, in an action to determine the liability on a promissory note, the plaintiff usually declares and incorporates in affirmation of his claim statements to the effect that the defendant made, executed and delivered the note in suit; that the complainant became, in the due course of business, the holder and owner thereof for value, before maturity; that the same is due and unpaid; and that payment has been demanded and refused. This constitutes a prima facie case, on producing the note, which is usually then offered in evidence, and the plaintiff rests. The burden of proof is then shifted.

This mercurial nature of the burden of proof, and many illustrations of the peculiar province prima facie evidence sustains in the actual trial of a case are afforded by a close examination of that topic. It would involve a technical inaccuracy, perhaps, but would thoroughly accord with the actual facts, as seen and developed in our trial court, were I to postulate for prima facie

evidence this characteristic, viz: "Whenever the burden of proof devolves upon any party other than the one originally holding the affirmative, then and in that event, prima facie evidence has been established, and if no other evidence were offered, each party would be entitled to judgment."

Mr. Best is singularly infelicitous in his attempt at a definition. He says: "Strong presumptions of fact shift the burden of proof, even though the evidence to rebut them involve the proof of a negative. The evidentiary fact giving rise to such a presumption is said to be 'prima facie evidence' or the principal fact of which it is evidentiary. Thus, possession is prima facie evidence of property; and the recent possession of stolen goods is sufficient to call on the accused to show how he came by them, and in the event of his not doing so satisfactorily, to justify the conclusion that he is the thief who stole them." Best, Ev. § 321, citing Gilbert, Ev. (4th ed.) 157.

§ 26. Case Made by.-The party upon whom the onus probandi rests, can make out a prima facie case, and close the evidence. The defense is not required to offer any evidence until the prosecution has made out a case sufficient to support a verdict; and when the prosecution has closed, the defendant is entitled to an acquittal if the case of the prosecution is not made out beyond a reasonable doubt. If the prisoner thinks it necessary to offer proof independent of what has appeared from the prosecution, he does not necessarily assume the burden of proof; it is simply offering rebutting testimony, which may be sufficient or not. The defendant all the time has the presumption of innocence, which is a substantial rule, operating during the whole trial, and continuing to operate until the case is finally determined. But because the defendant considers it necessary to rebut, is no reason why the law should raise a presumption of guilt, and thereby destroy the presumption of innocence, by evidence amounting to proof of innocence. Malone, Criminal Briefs, p. 250; Wharton v. State, 73 Ala. 366; Guffu v. State, 8 Tex. App. 187; State v. Wingo, 66 Mo. 181, 27 Am. Rep. 329; Jones v. State, 13 Tex. App. 1; Williams v. People, 101 Ill. 382; State v. Payne, 86 N. C. 609.

It is the province of the judge to determine whether there is testimony sufficient to make it appear, prima facie, that a crime has been committed. The evidence on which the judge acts may