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Story, " affirming or denying, or restraining the operation of foreign laws, courts of jusiice presume the tacit adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests."(a) "So," says Professor Greenleaf, " a spirit of amity, and a disposition to friendly intercourse, are presumed to exist among nations as well as among individuals."(6)
§ 173. There are other presumptions to be found in this branch of jurisprudence. Thus, the place of a man's birth is considered as his domicil, if it is at the time of his birth the domicil of his parents.(c) But a more important rule is, that the place where a person resides must be taken, prima facie, to be his domicil, until other facts establish the contrary.(rf) Where the family of a married man resides is generally to be deemed his domicil ;(e) and that of an unmarried one T *236 1 wil l be taken *to De in the place where he transacts his *- -I business, exercises his profession, or assumes municipal
duties or privileges.(/) And it is said to be a principle, that where the place of domicil is fixed by positive facts, mere presumptions from circumstances will not prevail against those facts.(g) This does not mean that presumptive evidence is inadmissible to prove domicil; and, indeed, it amounts to little more than saying, that the weaker evidence shall not be allowed to prevail against the stronger.
§ 174. It is also a principle of international law, that contracts are to be understood according to the laws of the place where they are entered into, and the contracting parties presumed to enter into their engagements under a knowledge of those laws.(A) So, a foreign marriage will be presumed to have been celebrated with the due solemnities required by the law of the place where it is celebrated.(i) And the general presumptions against crime, fraud, covin, immorality, &c. would probably be held applicable to acts done abroad, as well as to acts done at home.
§ 175. Where the subject of one state is also the independent sovereign of another, he is, of course, not responsible to the laws of the former state for acts done by him as such sovereign.(A;) And it would appear, from a recent decision in the Court of Chancery, that in respect to any act done by such a person out of the realm of which he is a subject, or any act as to which it might be doubtful whether it T *237 1 ou£nt to °® attributed to the *character of the sovereign *- J prince or to that of the subject, the act ought to be pre
sumed to have been done in the character of the sovereign prince.(f)
§ 176. Among the most important presumptions in maritime law, are those relating to seaworthiness. Every ship insured sails under an implied warranty that she is seaworthy. It is not necessary to inquire whether the owner acted honestly and fairly in the transaction; however just and honest his intentions may be, if he is mistaken in the fact, and the vessel is in fact not seaworthy, the underwriter is
(a) Story, Conflict of Laws, chap. 2, art. 38. (6) Greenl. L. Et., art. 43, p. 48.
(c) Story, Conflict of Laws, art. 46, p. 44, and the authorities there cited.
(d) Id. p. 45; Bruce v. Bruce, 2 B. & P. 229, 230. note (a); Bempde v. Johnstone, 3 Vee. jun. 198; Sunley v. Bcrnes, 3 Hagg. N. R. 137,(5 Eng. Eccl. Reps.)
(«) Story, Confl. of Laws, p. 46. (/) Id. (g) Id. p. 47.
(A) Id. art. 76, p. 75. (i) R. v. The Inhabitants of Brampton, 10 East, 282.
(i) The Duke of Brunswick v. The King of Hanover, 13 Law J , N. S., Chancery, 108. (1) Id.
not liable.(m) But if, shortly after sailing, a ship turn out to be unfit for sea, without apparent or adequate cause, the burden of proof is thrown on the assured, and a jury ought to presume that the unseaworthiness existed before the commencement of the voyage ;(n) and this rule holds, even though the ship had encountered a violent storm, unless it can fairly be inferred that the damage resulted from the storm.(o) This presumption is spoken of by Lord Redesdale, in Watson v. Clark,(p) as a rule of law; but this must be understood to mean a presumption of fact recognised by law.(<7)
§ 177. Where a vessel is missing, and no intelligence of her has been received within a reasonable time after she" sailed, it shall be presumed that she foundered at *sea.(r) Thus, where r ,„„„ a ship was insured in 1739, from North Carolina to Lon- L J don, with a warranty against captures and seizures, an action was brought against the underwriters, alleging the loss to have been by sinking at sea, which came on to be tried in M. T., 17 Geo. 2. The only evidence, however, was that she had sailed on her intended voyage, and had never since been heard of. On this, it was objected, on the part of the defendant, that, as captures and seizures were excepted, it lay on the assured to prove a loss, as alleged in the declaration; but Lee, C. J., said, it would be unreasonable to expect evidence of that, for as every body on board was presumed to be drowned, the plaintiff had given the best proof the nature of the case admitted of: and he left the case to the jury, who found for the plaintiff.(«) There is no precise time for this presumption fixed, either by the common or general maritime law,(<) although the laws of some countries have peculiar provisions on the subject ;(u) but the court and jury will be guided by the circumstances laid before them, and the nature of the voyage and navigation. A practice, however, is said to exist among insurers, that a ship shall be deemed lost if not heard of within six months after her departure, or after the time of the last intelligence from her, for any part of Europe; and in twelve months, if for a further distance ;(x)—a rule, as observed by Mr. Justice Park, reasonable enough in general, and only objectionable, as hardly sufficient in Indian voyages.(y) *In order, however, to raise this presump- r #2„, , tion, it must be distinctly shewn that the ship left port *- J bound on her intended voyage ;(z) and although her not being heard of for many months or years raises a presumption of her crew having perished, it affords none as to the precise time of the death of any person on board, which must be collected by the jury from the circum
(m) 1 Park, Insurance, 332; Douglas v. Scougall, 4 Dow. 276; Parker v. Potts, 3 Dow. 31. As to what constitututes seaworthiness in general, see Abbott on Shipping, by Shee, part 4, ch. 4. (n) Munro v. Vandam, 1 Park. Ins. 333.
(o) Douglas v. Scougall, 4 Dow. 269; Watson v Clark, 1 Dow. 344; Parker v. Potts, 3 Dow. 31. . (p) 1 Dow. 348.
(0) See Foster v. Steele, 3 Ring. N. C. 8D2, (32 Eng. Com. Law Reps.)
(r) 1 Park, Ins. 105, 106; Green v. Brown, 2 Str. 1199; Houstman v. Thornton, Holt, N. P. C. 243, (3 Eng. Com. Law Reps.) (i) Green v. Brown, 2 Str. 1199,1200.
(1) 1 Park, Ins. 106; and per Gibbs, C. J., in Houstman v. Thornton, Holt, N. P. C. 243, (3 Eng. Com. Law Reps.) (u) 1 Park, Ins. 107. (x) lb. (y) lb.
(z) Koster v. Innes, R. & M. 333, (21 Eng. Com. Law Reps.); Cohen v. Hinckley, 2 Camp. 51; Koster v. Reed, 6 B. &. C. 19, (25 Eng. Com. Law Reps.) January, 1845.—10
stances of the case.(«) And when, by the charter of affreightment, no time is fixed for the commencement of a voyage, the law implies a stipulation, that it shall be commenced without unnecessary or unreasonable delay, and also that there shall be no unnecessary deviation from the voyage when commenced.(6)
§ 178. It only remains to add, that the maxim, " Omnia praesumuntur contra spoliatorem," seems fully recognised in maritime law ;(c) especially in cases where papers have been spoliated by a captured party,(d) and also where neutral vessels are found carrying despatches from one part of the dominions of a belligerent power to another.(e)
[ *2i0 ] *CHAPTER XI.
(j 179. It is proposed in this chapter to advert to some presumptions likely to be met with in practice, and which have not been noticed in the former chapters.
§ 180. A large number of these relate to real estate, and are for the most part prmsvmptian.es quasi juris, or presumplions which the courts are anxious should be always acted on by juries, but which cannot be made without the intervention of a jury. Thus, the soil of the seashore, between high and low water mark, is presumed to belong to the crown ;(aa) but every subject has, prima facie, a right to take all fish found there, unless a right to take them can be shewn by prescription.^) So, the soil at the bottom of a navigable river is presumed to be in the crown; but where the river is not navigable, it is presumed to be the property of the owners on each side, ad medium filum aquae.(c) The same holus in the case of a highway, the soil of which is taken, prima facie, to belong to the owners of the adjoining lands, usque ad medium filum viae.(</) But, as this presumption is founded
T *241 1 on tlie suppoSition tnat *l^e roa(ls originally passed over *- J the lands of the adjacent owners,(e) it seems that it does
not apply to roads set out under inclosure acts,(/) nor to cases where the original dedication of the road can be shewn by positive evidence.^) And although the General Inclosure Act, 41 Geo. 3, c. 109, s. 11, gives the herbage on every road set out under that act to the proprietors of the land on each side respectively, no presumption,
(a) WiUon v. King, 1 Stark. 121, (2 Eng. Com. Law Reps.); Pattcson v. Black, 2 Park, Ins. 644; Sillick v. Booth, 1 Y. & C. N. C. 117.
(6) M'Andrew v. Adamee, 4 M. Sl Scott, 530, (40 Eng. Com. Law Reps.) and the authorities there referred to. («) Green], L. E., art . 31, p. 37.
(d) Case of The Hunter, 1 Dod«. Adm. R.480. («) Case of the Atalanta, 6 Rubins. 440.
(oo) Blundell if. Catcrall, 5 B. & A. 304, (7 Eng. Com. Law Reps ); per Bay'ey, J. (6) Bagot v. Orr, 2 B Sl P. iV2; Mayor of Oxford v. Richardson, 4 T. R. 437.
(e) Carter v. Murcot, 4 Burr. 2162.
(d) Berry v. Goodman's Case, 2 Leon. \ 4H; Grose v. West, 7 Taunt. 39, (2 Eng. Com. Law Reps.); Anon., Loflt. 358; Cooke v.Green, II Price, 73:). («) R. v. The Inhabitants of Edmondton, 1 M. & Rob. 32. (/) lb.; K.v. Wright. 3 B. & Ad. 681, (23Eng. Com. Law Reps.) ig) Headlam v. Headley, Holt, N. P.C. 463, (3 Eng. Com. Law Kepa.)
it is said, arises, that the road belongs to those respective proprietors.^) Again, the lord of a manor is, prima facie, entitled to all the waste lands within the manor but the presumption may be rebutted by circumstances: and strips of land adjoining a road are presumed to belong to the owner of the adjoining inclosed land, and not to the lord of the manor \(k) although this last presumption is either done away, or considerably narrowed, by proof that those strips communicated with an open common, or other large portion of land.(Z) It is doubtful whether "balks," i. e. strips of uncultivated land lying between the lands of private proprietors, are presumed to belong to the owners of the adjacent land.(m) It seems to be a prcesumptio juris, that one part of a manor is not of a different nature from the rest;(n) and in the case of party-walls, where the quantity of land contributed *by each party is unknown, the common use -- #242 1 of the wall is prima facie evidence that it and the land on' which it is built, are the undivided property of both.(o)
§ 181. Where the terms of the grant of a several fishery are unknown, the owner of the fishery may be presumed to be the owner of the soil; but where those terms appear, and are such as to convey an incorporeal hereditament only, the presumption is destroyed: (p) and the ownership of the soil is prima facie evidence of a right of fishery.(^) Proof of a carriage-way is presumptive evidence of a grant of a drift-way.(r) Where rents of small amount have been paid to the lord of a manor for a long series of years without any variation, the payment of them affords no evidence of title to the land; the presumption is, that they are quit-rents.(s) So, an allegation of seisin prima facie implies occupation, unless the contrary be shewn in pleading.(<)
§ 182. There are several presumptions of this class, founded on the conduct of parties, and the relation in which they stand to each other. Thus, a woman who commits felony or misdemeanor in company with her husband is excused, on the presumption (which, however, may be rebutted,) of her having acted under his coercion.(u) And in the civil law it is laid down, *" Filius familias qui pecu- r #043 -1 niam accepit creditam, praesumitur accepisse in causam >• J
(A) R. v. The Inhabitants of Hatfield, 4 A. 4. E. 164, (31 Eng. Com. Law Reps.), per Lord Denman, C. J.
(i) Doe d. Earl of Dunraven v. Williams, 7 C. At. P. 332, (32 Eng. Com. Law Reps.)
(k) Doed. Pringv. Pearsey,7 B.&C.3C4, (14 Eng.Com. Law Reps.); Steel v. Prickett, 2 Stark. 463, (3 Eng. Com. Law Reps.); Seoones v. Morrell, 1 Beav. 251; Doe d. Barrett v. Kemp, 7 Bing. 332, (20 Eng. Com. Law Reps.)
(/) Grose v. West, 7 Taunt. 39, (2 Eng. Com. Law Reps.)
(m) Bailiffs of Godmanchcster v. Phillips, 4 A. &. E. 550,560, (31 Eng. Com. Law Reps.) (n) Co. Litt. 78, b.
(o) Wiltshire v. Sidford, 8 B. &. C. 259, n, (15 Eng. Com Law Reps.); Cubitt v. Porter, Id. 257.
(p) Duke or Somerset v. Fogwell, 5 B. At C. 875,(12 Eng. Com. Law Reps.)
(o) 3 Stark. Ev. 1253,3rd ed. (r) See the case of Ballard v. Dyson, 1 Taunt . 179.
(«) Doc d. Whittick v. Johnson, 1 Gow. 173, (5 Eng. Com. Law Reps.) per Holroyd, J.
(0 Stott v. Stott, 16 East, 351. See Clayton v. Corby, 2 G. & Da?. 174; England v. Wall, 10 M. 4.W.699.
(») Seethe authorities collected in Archbold's Pleading and Evidence in Criminal Cases, pp. 16, 17, 9th ed. The rule does not extend to treason or murder, or other crimes which are mala in se, heinous in their character, or dangerous in their consequences, lb.
castrensem.(ar) In the case of Doe d. Lewis v. Rees,(y) Parke, B., says, " It is clearly settled, that encroachments made by a tenant are for the benefit of his landlord, unless it appear clearly, by some act done at the time of making the encroachments, that the tenant intended them for his own benefit, and not to hold them as he held the farm to which the encroachments were adjacent." It is also a maxim, that "In prresumptione juris judicium redditur in invitum."(*)
§ 183. In the case of contracts between individuals, many presumptions of law are to be found, based on general policy and convenience. Thus, it is conclusive presumption of law, that an instrument under seal has been given for consideration; which presumption can only be removed by impeaching the document for fraud.(a) There is a renlarkable exception to this rule, where the consideration of an instrument under seal is a restraint of trade, in which case a consideration must appear on the face of the instrument.(6) So, although in the case of contracts not under seal a consideration is not in general presumed,^) we have seen that the rule is reversed in bills of exchange, promissory notes, and some other mercantile documents.(rf) T *244 1 *^ ^nere J?oo0"8 entrusted to a common carrier, *- J to be carried for reward, are lost, otherwise than by the
act of God or the queen's enemies, it is a prcesumptio juris et dejure, that they were lost by negligence, fraud, or connivance on hispart.(e) By the act of God is meant storms, lightning, floods, earthquakes, &c, and such other things as cannot happen by the intervention of man:(/) and under the head of the queen's enemies must be understood public enemies, with whom the nation is at open war;(g) so that robbery by a mob, irresistible from their number, would be no excuse for the bailee.(A) This is an extremely hard presumption, but one which public policy seems to require. So, in the case of innkeepers, where the goods of a traveller brought into the inn are lost, it is presumed to be through negligence in the innkeeper,(i) unless he shew that they were lost through the negligence of the guest himself, or were stolen by his servants or companions.(A) But it is no defence that they were stolen by the inn-keeper's servants, or other persons within the inn, for it is his duty to provide honest servants and honest inmates, and to exercise an exact vigilance over all persons coming into his house as guests or otherwise.(Z) But, unlike the carrier, he seems not to be liable for a loss in the case of burglary or robbery by force from without *245 1 inn-(BI) "Rigorous as the law respecting *innkeepers J may seem," says Sir W. Jones, "and hard as it may actu
(*) Huberus, Prat. J. C, lib. 22, tit. 3, n. 20.
(y) 6 C. & P. 610, (25 Eng. Com Law Reps.) See, to the same effect, Doe d. The Earl of Dunraven T. Williams, 7 C. & P. 332, (32 Eng. Com. Law Reps.) (z) Co. Litt, 248, b.; 3 Co. 28, b.; 10 Co. 94 b. (a) 3 Stark. Ev. 931, 3rd ed.; Lowe v. Peers, 4 Burr. 2229.
(6) See Mitchell v. Reynolds, 1 P. W. 181, and the judgment of Parke, B., in Mallan v. May, 11 M.& W. 65, where most of the cases are referred to.
(c) Rann v. Hughes, 7 T. R. 350, n. (o).
(d) Chitty and Hulmcon Bills of Exchange, 68,69; Byles on Bills, 2, 88,4th ed. («) Bull. N. P. 70, n. (o).
(/) lb. Nor will even the act of God excuse a hoyman who puts to sea in tempestuous weather. Amies v. Stevens, 1 Str. 128. (g) Story on Bailments, art. 489.
(A) Coggs v. Bernard, 2 L. Raym. 918; per Holt, C. J.
(i) Story on Bailments, art. 472. (*) Id., art. 472,473. (I) Id., art . 471.
(m) Id., art. 472. In the case of Richmond v. Smith, 8 B. StC 9, (17 Eng. Com. Law